*1 STRUCTURES, INC., ARCTIC Glenn Root, Inc.,
Sinclair and Brown & Petitioners/Cross-respondents, WEDMORE, Wedmore, Jack Carol Home Company Insurance and Alaska Totem Inc., Enterprises, Respon- Electrical dents/Cross-petitioners.
Nos. 3654. Supreme Court of Alaska.
Dec. *2 Smith, Bliss, Bradbury An- J. &
Richard chorage, Glenn Arctic Structures Sinclair. Clark, Orlandini, Murphy L. An-
John L. Root, chorage, Inc. Douglas Libbey & Serdahely, J. Serdahe- and Carol Wed- ly, Anchorage, Jack more. Brown, Gibbs, Smith, Hagans, M.
Sanford Gibbs, Anchorage, for Alaska To- Erwin & Home Ins. Co. Enterprises and tem Elec.
OPINION J., BOOCHEYER, RABINOW- C.
Before BURKE, JJ., CONNOR, ITZ, ROWLAND, Superior Judge. RABINOWITZ, Justice. injuries personal
Jack Wedmore sustained Slope Alaska working North while on the date, Wed- on November 1974. On Totem of Alaska employee more was an Inc., the electrical Enterprises, Electrical on a construction employed sub-contractor contractor, Arctic general project by was em- Structures, Inc. Arctic Structures Inc., Alaska, by B. P. ployed in turn Root, also Inc. Brown & project owner. P. B. Alaska contract with was under services management provide project Slope, development superior the North orders issued Glenn court. The first supervising granted Sinclair was of Arc- order the motion of Jack and Carol tic Wedmore strike an affirmative Structures. defense in the answer of Brown & Root Wedmore, plaintiffs Jack and Carol be- basically urged the abolition of the low, alleged Jack Wedmore was in- *3 joint liability rule of and several in Alaska.1 jured by falling twenty fifteen to feet from second, superior court denied scaffolding оr platform supported by the Arctic for motion leave to Structure’s forks of Bay a lift-truck at a Prudhoe ware- amend its to answer assert affirmative de- house then under construction. The Wed- fenses to those similar asserted Brown & alleged mores further that Brown & Root Root.2 occupying and B. P. Alaska were the ware- opinion The first issue addressed in this house in joint and common economic ven- liability multiple whether third-party time; ture at the that the various defend- plaintiff-em- aby defendants action provided scaffolding ants safety and job injuries ployee who sustained on the to inspections; that Arctic defendant Struc- plaintiff’s which both and negligently tures failed to furnish a safe negligently defendants contrib- platform; scaffolding that and Brown & apportioned uted on should the basis of expressly safety Root warranted the fault or liability. appro- several Petitioners scaffolding which was in fact dangerously priately present concede that law with defective that such resulted. injury Carol regard joint liability to and several Alas- alleged consortium, Wedmore loss of both ka comports questioned with the orders of past and future. superior court which struck Brown & Petitioners Arctic and Structures Glenn Root’s liability defense based on several and Sinclair, brought petition for review ask- which Arctic denied Structures’ motion to ing this court to reviеw interlocutory two amend its answer include the same de- 1. The affirmative defense which was struck Plaintiff JACK WEDMORE’s thereby causing plaintiffs injuries Brown & Root’s answer the amended complaint following: reducing was the recovery and of ALASKA TO ENTERPRISES, INC., Root, TEM ELECTRICAL Defendant Brown & Inc. denies that COMPANY, negligent, and/or HOME it was negligent, if but if it is found that it was INSURANCE any, reducing Root, plaintiffs’ then defendant Brown & JACK WED Inc. negligence parties asserts that of other MORE’s and CAROL WEDMORE’s recover ies, litigation proximately plaintiffs’ any. this caused if Root, and defendant Brown & Inc.’s stated: fourth affirmative defense liability plaintiffs, any, STRUCTURES, INC., if should not ex- Defendants ARCTIC negligence ceed the attributa- deny they and GLENN SINCLAIR that were Root, Thus, ble to defendant Brown Inc. & if negligent, they but if it is found that were that, example, finder fact for determines defendants, negligent, then ARCTIC STRUC- Root, negligence Inc.’s amounted to TURES, INC., and GLENN SINCLAIR assert negligence proximate- of the total which parties negligence 10% that of other to this ly plaintiffs’ damages, caused then defendant litigation proximately plaintiffs’ caused dam- Root, plaintiffs Brown & Inc. is liable to STRUCTURES, ages and defendants ARCTIC only damages. of their 10% liability INC. and GLENN SINCLAIR’S plaintiffs, any, per- if should not exceed the petitioner 2. The affirmative defenses which negligence centage of attributable to defend- sought Arctic Structures to add included its ants, STRUCTURES, INC., ARCTIC theory (Affirmative of several Defense Thus, GLENN SINCLAIR. if the fact finder IV) Jackson, and the doctrine of Witt v. that, example, determines STRUCTURES, ARCTIC 57, Cal.Rptr. 369, INC., and GLENN SIN- (Affirmative III), Defense a California case CLAIR’S 10% negligent employer may which held that a proximately caused by, plaintiff-employee be indemnified and the defendants, damages, plaintiffs’ then ARC- may from, third-party not recover defendants STRUCTURES, INC., TIC and GLENN SIN- employ- that sum which the CLAIR, only plaintiffs are liable to 10% ee under the Workmen’s statute. damages. of their proposed defense affirmative read: simply plain- of fault Nevertheless, argue measure because petitioners fense.3 completely negli- free of imposes no con- tiff was less than law that common gence.5 rule adoption judicial straints prac- liability, particularly since several and Glenn Arctic Structures Petitioners several
tical and moral bases for negli- argue Sinclair have been liability of concurrent adopted in Kaatz should be ex- gence rule compara- court’s eroded apportionment tended to appropriate rule for tive they urge multiple between defendants and tort actions. apportioning of each de- to limit this court State, bar In Kaatz v. (Alaska proportionately fendant in the case at response 1975), adopted the rule of com- fault. this court doing, reject- original doctrine of In so we common law parative negligence. judicial meas- a marked reluc- fault cannot be arguments
ed *4 basis, permit that contribution between tort- contributory a tance to ured on scientific independent but to con- feasors where concur- a deterrent careless even negligence is single inju- a duct, negligence doctrine rent contributed to comparative that administer, result,6 contributory negli- numerous rious is difficult for courts to gence jurisdictions passed have statutes is en- that cases settlement extent, which, greater allow existence of the to or lesser couraged by virtue of the among tortfeasors.7 Alaska negligence rule.4 In abandon- contribution contributory adopted which has in one of those states contributory negligence ing the rule of Among “Uniform Tortfeasors negligence, this court Contribution comparative favor Act,” provides which for 09.16.010- 060 inequity with the AS primarily concerned among tortfeasors injured plaintiff pro to bear rata requiring an severally for jointly found or liable her own far in excess of or regard, quoted Juneau, City F.Supp. In from Li v. Yellow 5. this Co., we 3. Lucas v. (D.Alaska 1955), 862- Cab that multi- Alaska decided (footnotes severally jointly 1230-31 ple are liable tortfeasors omitted), where the California where consecu- full amount wrote: or combine tive concurrent acts рroduce single injury. to catalogue unnecessary us to It is has critical that amount of comment enormous years against respect arguments, the ‘all-or- stated in been over the 4. With we directed these State, approach (Alaska nothing’ doctrine of contributo- of the Kaatz v. ry negligence. of that criticism 1975) (footnotes omitted): The essence doctrine is and clear: has been constant inequitable jurors’ precisely Although are not verdicts operation it fails to in because scientific, proportionate fault an allocation of responsibility proportion in to fault. distribute Against reality closely approaches more than to- argu- been this have raised several victory represented by tal loss the contrib- or proved justification, but have none ments utory negligence rule. As to the deterrent remotely adequate basic to the task. The even rule, contributory negligence effect of the grounded pri- objection to the doctrine — points that the law must Dean Prosser out system concept in which mal that in a wrongful de- deter conduct also aim to extent of fault should is based on govern only plaintiffs. Judicial ad- and not fendants irresisti- the extent of —remains presented ministration of the rule intelligent fair- notions of reason and all ble to jurisdictions insuperаble difficulties those ness. long Experience employed which it. State, 1037, 1048 Kaatz v. Quoted compar- argument out that has not borne Prosser, 1975). (Alaska Law See also W. negligence courts and ative difficult for 1971). (4th at ed. Torts juries apply. Similarly, to show that careful studies tend (4th Prosser, at 306 Torts § W. Law of as readi- cases be achieved settlement of ly can only 1971). wrote As of Prosser ed. system negligence' under the jurisdictions contri- had allowed nine American contributory negligence rule. as under the legislation among without bution effect of the Studies have also shown that effect. insurance rule on rates is minimal. Prosser, at 307. id. 7. See injury person same or property. light determining the tortfeasors’ foregoing, present- shares, thus degrees “their relative of fault shall ed respect changing to this court with considered;”10 however, “principles not be the existing common law rule of equity applicable general- to contribution a rule whether of several ly apply.”11 shall comments of liability would contravene the intentions of Commissioners on Uniform Laws in State legislature enacting Alaska the Con- regard Among to the Uniform Contribution Among tribution Tortfeasors Act. upon Act act Tortfeasors the Alaska is based indicate that a deliberate decision The Alaska Uniform Contribution comparative neg- was made not tо consider Among adopted Tortfeasors Act was aat ligence degrees or of fault in contribution time contributory negligence when and no cases. The comment to Uniform Contribu- right of contribution was law in Alask the. Among (section Tortfeasors Act 2§ 09.16.010(a) a.8 Section of the Alaska act 09.16.020(1) corresponding Alaska provides: contribution, act) states that exclusion “the of intention- Right (a) Except al, right willful and wanton actors from the provided chapter, otherwise where argu- to contribution eliminates the better two or persons jointly more become or degree of ments for a relative fault rule.”12 severally tort injury liable in same person Though Judiciary property or for the same Committee wrongful death, Representatives apparent-, is a there of contri- Alaska House bution them even judg- ly disagreed with Uniform Commission- *5 ment against been recovered on one point,13 ers this issue at the Alaska any or of them. statute, enacted, follows the exact lan- guage of respect the Uniform Act with to The statutory right of is ex- pro rata pressly principles contribution. The of pro limited to the rata of the common liability equity apply through 2(c) and of tortfeasor is which section “[n]o compelled beyond to make contribution (section 09.16.020(3) his the Uniform Act pro own rata share of liability.”9 the entire corresponding statute) Alaska were intend- Judiciary Report jointly injustice 8.The House Committee on liable and thus avoid the of- Among bill resulting the which became the ten Contribution under the common law.’ Act Tortfeasors indicates that the Act was 1970 House Journal 437. based on the 1955 the version of Uniform Con- 9. AS 09.16.010(b). Among tribution Tortfeasors Act: proposes This bill the the of Uni- 09.16.020(1). 10. AS Act, Among form Contribution Tortfeasors by prepared the National Conference of Com- 11. 09.16.020(3). AS missioners Uniform State Laws in 1955. prefatory The national conference’s note to 12. Uniform Contribution Among Tortfeasors part: this Act states in (U.L.A.) Act at 87 and Commissioners’ ‘This uniform act establishes the 1(c) See Comment also Comment to § person liable for for an unintention- at others, wrong compel al to are who liable damages, with him for the same share in to 13. The House Judiciary Report Committee discharging liability. the common states that: existing injured person ‘Under an the law may Judiciary select whom he wishes to sue from amendment Committee would jointly inju- require liability those liable to him for each share of the tortfeasor’s ry. may He need not sue all. He settle to out be based on relative fault. may of court or he sue all and collect the full After a review the official ac- comments judgment companying amount of the from one. Under the uniform Act and оf the rele- prevailing transcript the pages rule meeting law there is no recourse vant voluntarily pays one who or the national who forced conference’s committee which pay liability, against Judiciary the common wrote this oth- Committee is equally injured party prohibit ers who are liable to the unconvinced of the need to de- escaped payment. grees being (as but who have of fault from considered version). original ‘This act would distribute the burden done in the responsibility equitably among those who are 1970 House Journal at 438. wrongful pro- death unless its govern contribution when one defend- terms so ed insolvent, vide; and were not ant is found to be but it reduces the claim requirement that to affect rel- intended any stipu- others to the extent of amount degrees to be con- ative of fault are not covenant, lated the release or the in the apportionment.14 sidered as factor for amount the consideration it, greater; whichever is the Despite express language of the Alas- requiring pro distribution of ka act rata discharges tortfeasor whom it liability damages among concurrent liability given it from all contribu- tortfeasors, petitioners contend that un- tion to other tortfeasor. fair purpose of the act was the derlying re- “good on the faith” Petitioners focus multiple defendants equitable treatment ar- quirement provision in the release that sharing, than rather gue: it pro rata method was chosen because was recognition purposes of all the Adequate apportionment only thought method of statute, greatly changed or judicially acceptable workable before circumstances accept- become comparative negligence had that court construe the commends apportioning damages. ed as a basis for good provision of 09.16.040 faith AS urge this court Petitioners therefore require of reduction liability rule of several adopt judicially the 09.16.040(1)against in AS the claim recognition approach changed remaining defendants means reduction negligence brought about by the amount of State, (Alaska 1975), Kaatz v. settling party upon been visited legislative intent and to effect apportioning liability as a result of based an equitable achieve result even settling party remained on fault had language itself to the literal lends judg- to answer eventual available opposite outcome.15 ment.16 apportion- Petitioners further assert that rule of the common law ing liability Though on fault can be reconciled based un- impose does the risk of provision Uniform several with the Alaska *6 defendants, Among gov- collectibility upon Act the solvent Tortfeasors Contribution general a rule erning liability. releases from AS 09.16.040 we are convinced that as not alternative, cast the total provides: which would upon uncollectibility risk of When Release or covenant not to sue. assessing improvement. plaintiff, is an sue or not to
a release or covenant not to
change,
advisability
we think
given
good
faith
of such a
judgment
enforce
liable in
persons
significant
to one of two or more
it
that the National Conference
same
or the same
Laws
injury
tort
on
State
of Commissioners Uniform
death,
wrongful
joint
and several
has declined
abolish
Comparative Fault
Uniform
discharge
liability
it
of the other
does not
was
the National
liability
injury
approved
for the
or Act which
tortfeasors from
Co.,
Reliable Transfer
Among
United States v.
16.See
14. Uniform
Tortfeasors
Contribution
1714-1716,
397, 408-11,
(U.L.A.)
95 S.Ct.
Act
at 87-88 and Commissioners’
U.S.
§
(1975) (replacing the
Comment
L.Ed.2d
260-62
admiralty
actions
rule
divided
Co.,
Cooper Argonaut
possible,
requiring,
15. See
Ins.
with a rule
whenever
(Alaska 1976) (“While grammatically
proportion
rela
allocation of
disputed phrase
parties
more to the
lends itself
tive
of the
involved. The
fault
second
feel that the
adoption
.
.
. we
construction
no reason that
Court found
accurately conforms to
first alternative more
impede
sеttle
of court
new
should
out
rule
intent.”).
Li v.
See also
Yellow
ments).
Cab
Sands,
(1975);
Sutherland
2A C.
P.2d
Statutory
45.05,
(4th
§
at 16
ed.
Construction
1973).
Rather,
Conference in 1977.
place
act
Reallocation takes
par-
ties at fault.
a
This- includes a claimant
adopts
compromise position requiring con-
contributorily
who is
at
It
fault.
avoids
among multiple
tribution
defendants based
the unfairness
both
common law
degrees
on relative
allowing
fault and
joint-and-several
rule
liability,
at
reallocation of the
where the obli-
would cast the
risk of
uncollectibili-
gation of
proves
a defendant
uncollectible.
ty upon
defendants,
solvent
The
regarding
commissioners’ comment
joint-and-several
rule abolishing
matter of apportionment states:
which would cast the total risk of uncol-
joint-and-several
The common law rule of
lectibility upon the claimant.17
liability
joint
tortfeasors continues to
regard
joint
The case law with
apply
Act.
under this
This is true wheth-
jurisdictions
several
which have
er the
contributorily
negli-
claimant
adopted
comparative negligence system
gent or
plaintiff
not.
can
recover
rejected
should
merely,
because of
the total
judgment against
amount of his
change
comparative negligence.18
who
defendant
is liable.
Although
a few
jurisdictions
legislatively
have
abolished
judgment
for each claimant also
joint
liability,19
it
is notable
forth, however,
sets
equitable
share
that we can find
no state which
statu-
obligation
of the total
to the claimant for
tory
scheme of
and several
party,
each
per-
based
his established
judicially
been
modified or abolished.20
centage of
fault.
This indicates
significant,
Even more
two states other
eventually
that each
should
(as
than
opposed
Alaska
judicially
have
responsible
as a
result
the rules
legislatively)
comparative
adopted
negli-
judgment
of contribution. Stated in the
gence,
expressly
issue
have
addressed the
itself, it makes the information available
retention
and several
parties
normally
and will
be a basis
upheld
the continued
validity
for contribution without
the need for a
subsequently.
doctrine
arising
court order
or sepa-
motion
Florida,
Jones,
Hoffman v.
280 So.2d
rate action.
(Fla.1973),
replaced the old common law
equitable
Reallocation of the
share of
rule of contributory
with the
obligation
of a party
place
takes
principles
At
negligence.
when his
decided,
uncollectible.
the time Hoffman was
Florida had
Comparative
(U.L.A.)
(Kan.Rev.Stat.
17. Uniform
Fault Act
states
§
These
include Kansas
(Supp.1979).
Comment at
60-258a(d));
(Nev.Rev.Stat.
Ann. §
Nevada
41.141,
3);
(N.H.Rev.
Hampshire
apparent
§
subd.
New
It
that the
Commissioners Uni-
507:7-a);
(Vt.Stat.Ann.,
rejected peti-
§
Stat.Ann.
form State
Vermont
Laws considered and
12, 1036).
argument
Tit.
compar-
tioners’
that the
*7
negligence
requires
ative
doctrine
the abolish-
liability. Though
ment of
Schwartz,
and
Compa-
20.
v.
See V.
Li Yellow Cab
legislature
adopted
Alaska
has not
ny:
Survey
Uniform
A
of
Under
California Practice
Comparative
Act
Fault
and it therefore
747,
is not
Comparative Negligence, 7
Pac.L.J.
dispositive
intent
Raskoff,
(1976).
Comparative Neg-
also
See
M.
case,
present
compromise
the existence of the
ligence
Litigation,
Multiple Party
in California:
petitioners’ policy argu-
solution does undercut
771,
(1976).
Pac.L.J.
point.
ments on this
Supreme
The
alter a
Court of Wisconsin did
among
equal
law rule
common
of
contribution
Compagnie
18. See Edmonds v.
Trans
Generate
judicial adoption
after
of a com-
tortfeasors
atlantique, 443 U.S.
99 S.Ct.
parative negligence
contribu-
doctrine
allow
(joint
(1979)
L.Ed.2d 521
and several
percentage
negligence
tion
on
based
causal
shipowner
damages
to a stevedore
90%
attributable
Bielski v.
each tortfeasor.
unloading
firm’s
boat,
while
Schulze,
(1962).
16 Wis.2d
ment of
full
and the
at
split
on the resolution of the
sable
attributable
injury.
liability
multiple parties
several
where
contention,
were
Contrary
petitioner’s
we
involved.25 The
joint
California
conclude that
and several
liability
recently
appellate
resolved the conflict
logically
does not
conflict with
compar-
a
Motorcycle
Indeed,
court decisions in
As-
negligence regime.
American
ative
as we
Court,
578,
sociation v.
20
Superior
out,
Cal.3d
point
great majority
jurisdic-
182,
146 Cal.Rptr.
(1978).
parative joint common law rule. The negligence to ameliorate the in- continues, equitable liability several doctrine consequences of the after contributo- Li, ry play important legitimate negligence rule does not warrant protecting ability negli- abolition or contraction of the role in of a established doctrine; ‘joint liability’ gently injured person and several each adequate obtain tortfeasor negligence proxi- injuries whose is a for his from those mate cause of an injury negligently indivisible re- who have inflicted tortfeasors individually mains compen- liable for all the harm.26 percentage figure Motorcycle Superior culpa- Ass’n v. some 25. See American relative Court, 694, Cal.App.3d Cal.Rptr. bility negligent compared 65 135 497 of one defendant as vacated, 578, Cal.Rptr. (1977), any way suggest 146 Cal.3d another does Stores, Safeway (1978); Inc. negligence proxi- each defendant’s is not a Nest-Kart, Cal.Rptr. Cal.App.3d injury. v. mate cause the entire indivisible vacated, (1976), 146 Cal. Second, joint abandonment of the and sev- (1978); Stambaugh Rptr. by AMA’s eral rule is not warranted Court, Superior Cal.App.3d Cal. that, Li, longer plaintiff is no claim after a Rptr. (1976). course, Initially, no ‘innocent.’ it is invariably Li means plaintiffs true that after negligence. guilty will be Motorcycle Superior 26. American Ass’n v. many plaintiff completely a will be instances Court, accident, responsibility free of all for the explained The court yet, proposed abolition of under reasoning reaching in detail its these con completely a such faultless clusions: wrongdoing plaintiff, rather than a defend- First, simple feasibility apportioning ant, portion to bear a would be forced fault on a basis does loss if one of the concurrent tortfeasors injury not render an indivisible ‘divisible’ for prove financially satisfy unable to his should proportioned purposes and several damages. share of already explained, rule. As we have a con- Moreover, plaintiff partially even when a current tortfeasor is liable for the whole of an plaintiffs culpa- injury, his a at fault for own injury negligence indivisible whenever his bility equivalent to that of a defendant. is not proximate injury. many cause of that setting, plaintiffs negligence In this only relates instances, of each of several for his own a failure to use due care sufficient, may concurrent itself, protection, re- while a defendant’s injury; to cause the entire in other safety of lack of due care for lates to a instances, simply impossible it is to deter- recognized Although Li that a we others. particular mine whether or not a concurrent jus- negligence would plaintiffs self-directed alone, negligence, acting tortfeasor’s recovery proportion tify reducing to his injury. have caused the same Under such accident, fact re- for the of fault circumstances, equitable has no a defendant plaintiffs conduct that insofar as mains injured plaintiff vis a vis an to be claim self-injury, only con- such a risk of creates duct, damage which he relieved of defendant, unlike that of simply proximately because some caused not tortious. may also have other tortfeasor’s words, standpoint, Finally, we from a realistic In other the same harm. caused suggested possible may assign AMA’s abandonment think that it fact that mere
435 that, should liability judicially after several not be The court therefore concluded modified.29 Li, negli- “a concurrent tortfeasor whose of
gence proximate is a cause indivisible brings This us to the second issue injury presented petition, namely, the amount in remains liable for total this whether in third-party may defendants a tort action only ‘in damages, proportion of diminished plaintiff- their the liability reduce to to to the amount of attributable ” in employee proportion the of person recovering.’ the American Motor- plaintiff’s negligence attributable to the Court, 20 cycle Superior Association v. employer. argues Petitioner Brown & Root 182, 189-190, Cal.Rptr. Cal.3d employ- that the fact that Jack Wedmore’s (1978), quoting Yel- P.2d 906-07 Li v. er, Inc., Enterprises, Totem Electrical al- Cal.Rptr. low Cab ready statutorily had the defined 858, 875, (1975). 532 P.2d In our of him compensation worker’s Motor- opinion, reasoning the of American responsibil- does not relieve the of cycle persuasive Association for retention ity proportion for In liability of the joint and several rule.27 Thus, causing injury. even the light existing pro legisla- of Alaska’s required employer cannot be to contribute damages apportionment tive for scheme employee is further poli- and the joint public receive,30 Root argues Brown & entitled legislation,28 we implemented by cies that are entitled to defendants liability joint proportion hold rule a reduction of that the common law liability rule work and several 30.The Alaska Workmen’s 23.30.005-.270, provides employ- and unwarranted deleterious effect that serious AS injured ability negligently practical liability on for workmen’s er’s persons adequate compensation to receive awards is exclusive. by- injuries. principal of the their One regard, In this AS 23.30.055 states: products liability of the rule liability. Exclusiveness injured frequently person permits an that it chap- employer prescribed in 45 of this an recovery injuries full for his even obtain place other and in ter exclusive responsible parties more when one or fellow em- do not the financial to cover resources representa- ployee employee, legal recog- liability. a case rule their such tive, wife, dependents, parents, husband or ‘wronged nizes party fairness dictates that the that kin, anyone next otherwise entitled deprived right to not of his should from or fellow recover redress,’ wrongdoers but that should ‘[t]he admiralty employee law or on account at ap- left to work out between themselves However, injury if death. an em- of the ployer or portionment.’ not de- Li decision does payment compensa- to secure fails poli- slightest pragmatic from this tract by required chapter, tion an cy determination. employee legal representative or his in case Id., 188-189, Cal.Rptr. at at 905- P.2d injury may elect to death results omitted). (citations omitted) (footnote chapter, or to under this claim employer at maintain an action ju reject However, admiralty we have considered account law оr indemnity partial rule of a dicial creation law, injury that or death. action adopted plead the California may as a defense that defendant Superior Motorcycle Ass’n v. injury in American was caused Court, 578, 146 servant, fellow assumed injury employment, risk or that of his contributory negligence of the due employee. supra. 28. See note 26 compensa- forth rates of AS sets 23.30.170 to an Guinn, 547 n.42 29. See State employee injured job is determined on the judicial 1976) (recognizing (Alaska compensation stat- purposes of the workmen’s comparative negli- ,of the doctrine ute. State, gence in Kaatz v. 1975), require (Alaska amend- will Among ment Uniform Contribution of Alaska’s Act). Tortfeasors *10 436 depends gov stances on the nature of the fault attributable pri employer. While one foundation ernmental function involved and the
plaintiff’s
governmental
vate interest affected
liability argu-
this claim is
several
action.33 While it is manifest
that no one
above,
rejected
ment we have
particular mode of
right
has a vested
Root also raises constitutional
issues of due
change is
procedure such that
process
equal protection.
process
require that a
prohibited, due
does
Essentially, Brown & Root claims that
remedy
substantial
and efficient
remains
the combination of the doctrine of
provided
one
when a
available
liability
applies
several
as it
preexisting
statutorily
defense is
limited.34
defendants,
availability
and the lack of
however,
case,
it is doubtful
present
pro
negligent
rata contribution from a
em-
whether
the defense of a co-defendant’s
ployer under the Alaska Uniform Contribu-
sepa
ever has been available
Act,
Among
tion
Tortfeasors
09.16.-
AS
rately
relationship
from its
to the lack of
010-.060,
limited,
because of the
exclusive
part
on the
of the defendant
of an
under
the Alaska
asserting the claim.35 Under
the common
Act,31 deprives
Workmen’s
it
prior
law of Alaska
to enactment
of access to the courts to raise the defense
Among Tortfeasors
Uniform Contribution
employer’s negligence
under the due
negligent
defendant
concurrently
process
equal protection clauses of the
contribution from other
was entitled to no
state and federal constitutions.32
The Contribution
parties.36
procedural
process may Among
What
Tortfeasors Act introduced the con
due
require
any particular
cept
under
of circum
tort-
set
supra.
31.
Id.
36.See
note 8
It should be noted here
indemnity
two
that contribution and
constitute
I,
7;
32. Alaska Constitution art.
1 and
U.S.
§§
concepts
distinct
of allocation of
Constitution,
V,
Amends. XIV.
among tortfeasors.
See,
g.,
terms,
apportionmеnt
e.
Fund Ins.
Fireman’s
Co. v. Arizo
In traditional
Ass’n,
453,
Guaranty
Ariz.App.
na Ins.
22
528
multiple
loss between
thought
tortfeasors has been
(1974),
7,
P.2d 839
vacated 112 Ariz.
536 P.2d
contribution;
present
question
(1975);
Co.,
Aguchak Montgomery
695
Inc.,
v.
Ward
contrast,
indemnity, by
traditionally been
1352,
(Alaska 1974)
520 P.2d
1357
solely
viewed as
with whether a
concerned
(“Whenever
prima
demonstrates a
facie
entirely
loss should be
shifted from one tort-
law,
process
reviewing
denial of due
another,
feasor to
whether the
rather than
court must balance the interest of the state in
loss should be shared
the two.
between
procedure challenged against
the act or
Court,
Motorcycle
Superior
American
Ass’n v.
right
individual.”).
denied the
See also Morris
578,
182, 190,
146
Brewer,
471,
sey
2593,
v.
408 U.S.
92 S.Ct.
33
899,
Thus,
(1978) (citations omitted).
907
(1972);
Connecticut,
L.Ed.2d 484
Boddie v.
401
Sunspan Eng’r &
Brown & Root’s citations to
371,
780,
(1971);
U.S.
28
113
S.Ct.
L.Ed.2d
Spring-Lock Scaffolding
v.
Const. Co.
414,
States,
Yakus v. United
321 U.S.
64 S.Ct.
(Fla. 1975),
Smogard,
So.2d
and Carlson v.
660,
Reid,
(1944);
pensation liability employ- MATTHEWS, J., participating. not regardless
ee
absence of
part
or the contributory negligence of
BOOCHEVER,
Justice, dissenting.
Chief
the employee.
employee,
for his
I
majority opinion
understand the
to hold
part,
guaranteed
recovery for his com-
liability among joint
tort-feasors is to
damages against
mon-law
contributing
several,
several,
rather than
compen-
tortfeasors or for his
and that it
prorated according
is to be
award,
sation
greater,
whichever is
but
the number of defendants. For the reasons
may
duplicate
he
these recoveries.
set
opinion,
agree
forth in the
I can
But the act is neutral insofar as the third-
and several agree
but I cannot
concerned, leaving
tortfeasor is
him
rata contribution
defendants re-
with
his common-law
to the in-
gardless
degree
of their
of fault.
I believe
jured
or,
emрloyee,
if the latter has been
Guinn,
that our decision in
State
recompensed
therefore to
extent
(Alaska 1976),
allocating
controls in
lia-
compensation payments, to the statutori-
bility among
defendants
accordance with
ly subrogated employer who has made
their
equal
rather than in
payments.46
those
Guinn,
shares. In
we stated:
Based on
foregoing,
we
ap-
think it
necessary
It is therefore
to remand this
parent
cogent arguments
can be made
superior
case to the
court for a determi-
on either side of the reimbursement issue.
degrees
nation of the
of fault attributa-
Indeed, Professor Larson notes that “[P]er-
Guinn,
ble to
the State and McGee. .
haps the
evenly-balanced
most
controversy
in all of compensation law
is the
summary,
consideration of
whether
a third
in an
action
arguments
State’s
has led us to the fol-
*14
employee
get
can
indemnity
contribution or
lowing
Contributory negli-
conclusions.
from the employer,
employer’s
when the
gence of the
decedent
established as
negligence has caused or contributed to the
a matter of law. The effect of that
injury.”47 Nevertheless, we have conclud-
governed by
should be
ed
light
that in
specific
reimburse-
doctrine of
negligence. It is
provision
ment
23.30.015(g)
in
ap-
AS
necessary that this case be remanded to
proрriate forum for resolution of the issue
superior
purpose
court
of at-
legislature.
with the
Although we think
tributing degrees of fault to the three
there is considerable merit in adoption parties
litigation.
in this
the Associated Construction Engineering
Id. at 542.
Co.
problem,
solution to the
we are reluc-
modify
tant
existing legislative
plaintiff
If a
per-
is unable to collect the
scheme set out
23.30.015(g).
centage
AS
judgment
share of the
from one of
46. The
Machinery
court in Schweizer v. Elox Division of
See also Cacchillo v. H. Leach
Industries,
Colt
70 N.J.
359 A.2d
(1973) (Even
111 R.I.
305 A.2d
543-44
(1976),
explained:
further
employer’s negligence
contributed
injuries
employee,
to
employer
received
where
impressed by
We
argu-
are not at all
compensated
employee pur
had
Legislature
ment
should not be
statutory
compensation
suant to the
scheme,
deemed to have
worker’s
intended a ‘reward’ to a
‘wrongdoer’.
The latter
defendants who were also
characterization is
place
employee
out of
in liable to the
industrial scene
were not entitled to
where
negligence by corporate agents
human
employees
recover contribution from the
under
commonplace
certainly
Act.)
Among
car-
the state Contribution
Tortfeasors
legislative
ries no moral connotations. The
Larson,
existing
47. 2A A.
Workmen’s
rаtionale for the
pensation
scheme of the com-
76.10,
whole,
(1976) (footnote
together
Law
ted).
at 14-287
omit-
act as a
read
with
employer subrogation
and reimbursement
provisions,
plain
quite
defensible.
process rights
defendants,
only logical that the whether constitutional due
it is
liability of the other defendants
increased
are violated.1
in accordance with their
should be shared
The
California
degrees of fault.
Ameri-
proportionate
See
suggested
reached the same result
here al-
Court,
Superior
Motorcycle
can
Ass’n
though applying
equi-
a rationale
based
Cal.Rptr.
partial indemnity.
table
American Mo-
See
appor-
(1978).
agree
I
that this method of
Court,
Superior
torcycle Ass’n v.
in accord with the
tionment is not
182, 195-199,
prescribed in Alas-
method of contribution
912-16
apportionment
ka’s statute for
por-
respectfully disagree
I also
with the
09.16.020(1).
tort-feasors. AS
opinion
tion of the
which holds that third
however,
conform,
It does
to the
may not
party defendants in tort actions
justly apportioning damages
intent of
plaintiff in
reduce their total
to the
among joint tort-feasors and the
proportion
ap-
requirement
“principles
equity
employer.
I
plaintiff’s
to a
attributable
generally
ap-
shall
plicable to contribution
party
believe that
the amount of
09.16.020(3).
ply.” AS
should be rеduced
defendant’s
the Alaska Uniform Con-
when
percent
negligence up to
Act was
Among
tribution
Tort-Feasors
employer’s payments
a maximum of the
passed, comparative negligence was not au-
employee. Assuming
compensation to the
Act should be
thorized.
I believe that the
percent
that the third
defendant is 50
conformity
general
with its
construed in
percent at
at fault and the
is 50
purpose
permit contribution in accord-
$10,000.00
fault,
with total
ance with
instead of an
$5,000.00
under the
basis, as the reason for
arbitrary pro rata
act,
party’s
the third
longer
no
dividing
equally
exists.
$5,000.00
plaintiff
rather
would
comparative negligence, sharing
Without
$10,000.00.
however,
than
approximation
equally,
rough
furnished a
would not
entitled to recover
just
certainly
example,
result. For
it was
$5,000.00
paid.
benefits
preferable
when two
tort-feasors were
$10,000.00
still recover
liable,
equally
paying
for them to share
($5,000.00
from the third
damages,
go
simply
than for one to
free
$5,000.00 compensation
benefits from
to recover
plaintiff
because the
elected
employer).
sharing
from the other. Yet such a
is far
*15
follow
opposite
equitable
is 90
The
result which
from
when one defendant
holding
glaringly
is
percent
percent.
majority’s
at fault and the other 10
under the
fact,
party
In
is
The third
defendant
inequitable.
once
$10,000.00,
pay
al-
assuming
required
that both defend- would be
available and
at fault. The em-
responsible, requiring
though only
percent
ants are
the defend-
fault,
at
percent
who was also 50
percent responsible
ployer,
ant who is 10
to bear 50
$5,000.00previously
loss,
his full
percent of the
the same amount as the would recover
fault,
act so as to be
paid
compensation
at
is so
under the
percent
one who was 90
only is the result
presents
any liability.
a serious
free of
Not
arbitrary that it
simplicity.
now authoriz-
Since we have
determining
due
1. In
a violation of substantive
however,
pur-
comparative negligence,
process,
applied
ed
test of whether
we have
the
ineq-
justify
arbitrary
provision
pose
longer
the
would no
seem to
the action is
or whether the
pay
relationship
legitimate
having
more
to a
uitable
defendants
has no reasonable
result
However,
purpose.
Corp.
degree
state
v. Local Bound-
than their
of fault warrants.
Mobil Oil
Comm.,
(Alaska 1974);
ary
may
question as to
Brown & negli- actually requires claim is differential treat- based on the cоntribution but ment of who become involved gent employer to be reimbursed for tort claims com- employee-employer as employee. injured an amounts he pared Only to all other tortfeasors. result does not bear relation to Such a prohibited securing pro former are necessity limiting employer’s lia- concurrently their rata contribution from above, fact, gives bility. it discussed co-defendants, negligent when the co-de- negligent employer windfall at the question happens fendant to be the expense third party. of a plaintiff. Re- Compensa- employee to recover Workmen’s equal challenges view of protection independent tion benefits is governed by the standards set out brought courts. action in the state Erickson, (Alaska State employer’s The determination 1978). The purpose of Workmen’s is not involved in the fault including the exclu- proceedings, so even minimal increase in liability provision sive attacked compensation procedure efficacy of the at- Root[, action, provi- in this Inc.] requiring a result of not evalua- tained as medical sion financial and benefits no bears rela- fault injuries victims of work-connected having assume at tionship to efficient, dignified, most most and most just of his portion least a goal accomplishing certаin form. I can see party proceeding. no the third securing adequate compensation relationship permitting between conceivable injured employees expense without to recover com- delay in a determination of inherent *16 pensation purposes the paid and over-all employee fault as the em- between Therefore, compensation the act. the dif- ployer, apparently the also legislature involved ferential treatment tort-feasors found it to limit the total necessary from oth- employer-employee tort claims employer’s liability amount of to the the to the justified er tort-feasors cannot be statutory have award. We concluded required such are extent that tort-feasors that there is rela- a fair and substantial indemnify negligent employer to the tionship legislative objective the between compensation payments not that do exceed providing guaranteed, expeditious employer’s the share of based compensation injured employee to the employer’s and the the total his her of fault. limitation on or
443 to be the in- legislature’s for what we believe providing the statute I believe that parties recovery from third Argonaut allocation Cooper v. Insurance tent. See tо such an construed so as avoid may be Cos., (Alaska 1976). 556 525 result. unnecessary and unconstitutional suggested This is similar solution by em- authorizing After suits by the California Court in Witt v. specifies in subsection ployee, AS 23.30.015 Jackson, 57, 369, 17 Cal.Rptr. (g): no (1961). P.2d 641 It does violence to the representa- If or (g) employee the his remedy provisions exclusive of the Alaska per- the third tive recovers from Compensation for the em- son, Workmen’s representative the or shall employee promptly pay employer to the the required ployer would not be to contribute paid by the under amounts any more amount than the section, (C) (E)(1)(A), (B), of this he or was already benefits for which she recovery is after insofar as the sufficient quo quid pro by liable under Act. The the and ex- deducting litigation all costs employer’s liability which the would lim- em- recovery by the penses. Any excess compensa- specified ited benefits shall be credited ployee representative making prompt exchange tion act payable by the em- against amount employee, regardless of payment ployer thereafter. would unaltered. The only employee It the “[i]f however, to re- would be unable person,” the recovers from third they those unless exceeded payments cover payment must-be made proportion damages rеpresented by recovery as the is suffi- employer “insofar employer’s degree of fault.2 litigation deducting cient after costs expenses.” suggested I does The solution which have suggested, encompass here
Under solution not all of situations damages to the employee not recover legislature addresses may arise. Until his benefits. extent of party third problems presented the full amount thus receives present Workmen’s Com- provisions of our (damages compen- plus which he is entitled aris- problems and other pensation statute however, sation). The does not recovery, comparative neg- ing out of the for reimbursement include amount pos- not solution is ligence, comprehensive “recovery that the compensation so [not] many solution A sible. reasonable reimbursing purpose sufficient” case are set by this suggested variables employer. Admittedly, Engi- Construction forth Associated statute, we of the but strained construction Ap- neering Co. v. Workers’ apply a liberal such hesitated Cal.Rptr. Board, peals necessary to past construction in the when (1978).3 with injustice and to accord prevent obvious stated; court 3. The California in other have been achieved 2. Similar results par jurisdictions. Pennsylvania a third allows Applying principle that the neg ty from a tortfeаsor contribution to secure should, party extent consistent ligent employer of com limited to immunity with pensation payments has made employ tort share burden Fahs, employee. Pa. Maio v. tortfeasors, recovery we con ee’s Dickey, (1940); A.2d Brown v. Pa. employ concurrently negligent clude that the Carolina, 155 A.2d North either or reimburse compensa er should receive credit requiring limited instead ment for the amount which his judgment negligent employer, reduces proportional exceeds of com the third the amount recovery. (See injured employee’s Ar pensation if the third can show the Mfg. baugh v. Procter & Gamble Co. employer. 508-509, concurrent Cal.App.3d *17 Ry. N.C. 169 S.E. v. Southern 608.) (1933); Lloyd, 236 N.C. employer’s concurrent Lovette of an When the issue forum, applica- judicial S.E.2d in a arises Thus, equal I would to an amount employer’s hold that among joint comparative tort-feasors be in based on accordance fault. degrees with their although re-
maining joint I and several. would further
reduce the amount of assessed against parties by the amount of com- pensation paid by employer up benefits settlement, negligence principles
tion of claim based on a third relatively straightforward. appropriate The third board must determine the contri- plead employer employee’s tortfeasor should be allowed to bution of the recovery since the employer’s negligence partial defense, represent judicial as a does not deter- inject- damages. the manner Specifically, of Witt. Once this issue is mination of tort trial, (1) ed into the the trier of fact should deter- board must determine of fault employer’s degree mine the ing of fault accord- the total principles Motorcycle. of American which the is entitled. The board employer’s deny The court percentage then should deduct the must then credit until the employee’s employee’s share of the total re- ratio of his contribution to the covery party’s liability up damages corresponds proportional from the third to his — employer’s the amount of the workers’ share of fault. Once the workers’ employer. level, benefits assessed respondingly, Cor- contribution reaches this granted should be denied he should be a credit for the full Only claim of reimbursement —or lien un- amount available under section 3861. (b) der section subdivision the ex- when such level of contribution been —to reached, however, grant tent that his contribution would then fall will responsibili- adequately short of his principle share of credit accommodate the ty employee’s recovery. profit that a should When wrong. the issue of an concurrent from his own Id. omit- [footnotes arises the context of his credit ted]