*1 Apr. S000194. [No. 1988.] EVANGELATOS, Petitioner, v.
GREGORY COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; al., ROGERS, INC., Parties in Interest.
VAN WATERS et Real & ROGERS, Petitioner, INC., VAN WATERS & COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; al., in Interest.
GREGORY EVANGELATOS et Real Parties *4 Counsel Cathcart,
Daniel C. & Deborah Mitzenmacheer and Cathcart Magana, Pierry for Petitioner and Real Parties in Interest Evangelatos. Greene, Levine, DeVries, O’Reilly, Browne R. Douglas Harvey Charles Sachs, McGrath, Caffray, Sanford Don R. Ian Gage, Leonard James Anderson, Bryce C. Burton and Steven Kazan as Amici Herzog, Danziger Curiae on behalf of Petitioner and Real Parties Interest Evangelatos. No appearance Respondent. Bonesteel, Wheeler,
Michael J. M. Roy G. Dennis K. Thomas Weatherup, Moore, Garcia, Bonesteel, Dickson, Jose H. C. Brown & Steven Haight, Smith and Rich & Ezer for Real Parties in Interest Van Petitioner and Waters & Inc. Rogers, Skadden, Flora, Slate, J.
Michael E. Breining, & Malcolm Arps, Meagher *5 Wheeler, Lowell, Hiestand, Wooster, Charlotte A. Kelly Fred J. C. Stephen Brobeck, Privett, Harrison, M. Snyder, J. Bill E. Phleger & Howard Schroeder, Black, Goette, Gordon, McCutcheon, A. Richard M. Jonathan Shea, Herbert, Hahn, & City Michael J. D. James K. Verleger Brady, Paul Attorney (Los M. Angeles), Helgeson, John T. Neville and Richard Zumbrun, City Findley Assistant H. and Attorneys, Ronald A. John L. Sharon Browne as and Real Parties Amici Curiae on behalf of Petitioner Van Interest Waters & Inc. Rogers, Opinion
ARGUELLES, J. approved June the voters of California measure, Code, (Civ. initiative the Fair Act of 1986 Responsibility §§ as, to, referred 1431.5)—popularly Proposition known and hereafter traditional, liabili- “joint 51—which modified the law and several common doctrine, noneconomic ty” liability an individual tortfeasor’s for limiting to a to the tortfeasor’s own damages proportion such damages equal election, the underlying of fault.1 Just a after the percentage few weeks pamphlet, in complete Proposition portions the election 1The text of 51 and all relevant Analyst’s analysis proponents oppo cluding nents, Legislative arguments and the appendix opinion. are set forth in an to this accident July of a case—which arose out injury action this personal the June 1986 nearly five years prior and which been for pending had requested Before the began, parties election—was trial. trial assigned determine, alia, newly revised whether the the trial court to inter that Plaintiff contended several doctrine this case. apply would reasons, maintain- the new should be for a number legislation applied not that, face, (2) its (1) 51 is unconstitutional on ing event, of action measure causes apply does Defendants contested both which accrued its effective date.2 prior arguments.
The trial 51 is constitutional its (1) court concluded after its face and that it should to all cases to trial (2) coming date, case, of action effective this of when the cause including regardless accrued. in these Reviewing pretrial trial court’s consolidated ruling the trial determina- upheld writ Court of court’s proceedings, Appeal tion in all issue—to respect retroactivity respects, declining—with decision, follow another recent Russell v. Court of Court Appeal Superior Cal.App.3d 102], which had concluded that Proposition 51 does not arose retroactively to cаuses action which to the initiative’s effective date. Because importance issues and the conflict in retroactivity Court of decisions on the Appeal granted we question, review.
As we shall we explain, have concluded that the Court of Appeal judg- ment should be affirmed in and reversed On the constitutional part part. we question, agree Appeal the Court facial constitu- plaintiff’s *6 tional 51 is challenge Proposition untenable. Past decisions of this court quite make it clear that the initiative measure—in the common modifying law rule liability governing potential tortfeasors—violates multiple neither the due process protection guaranties nor of the state or equal federal Constitution. a number Although proposition’s language leaves cases, of issues of interpretation application and to be decided in future justification those unsettled no questions down the provide striking measure on face. its
On the retroactivity, we question Appeal conclude the Court erred in ruling to causes of action which accrued applies widely before measure’s effective It is a recognized legal principle, date. Code, in embodied 3 of the specifically section Civil in the absence clear legislative intent to the contrary apply enactments 2 n II, Constitution, (a) Under section article subdivision California the measure 4, day went into effect on June after election.
prospectively. The drafters of the although initiative measure question, presumably aware of this familiar did not include lan- legal precept, guage the initiative retroactively that the measure indicating apply to causes of action that had already accrued and there is nothing suggest that the electorate retroactivity Although considered the issue of at all. defendants argue that we should nonetheless infer a intent on the part electorate to the measure from the general enactment, purpose and context of the majority overwhelming judicial decisions—both in California country—which throughout have considered whether similar tort reform should legislation apply pro- spectively or retroactively when the statute is silent on the point concluded that the statute the common- applies prospectively. Reflecting sense notion that it be unfair to “the rules of the in the change game” contest, middle of a these authorities demonstrate that persuasively general legal full force to a mea- presumption prospectivity applies with sure, here, like the initiative substantially at issue modifies a legal doctrine on which many may have relied in persons reasonably conducting their legal affairs prior to the new enactment.
Contrary to the rhetoric of the our con- extravagant dissenting opinion, clusion that Proposition must be properly interpreted apply prospec- tively does not 51 and postpone delay the effect of operative is in way no inconsistent with the fact that the adopted measure was to a response liability crisis. legal As we the new doctrine estab- explain, by lished Proposition 51 went day following into effect the passage the initiative immediately and could by companies be relied on insurance reduce insurance defendants to resume premiums by tort potential they may activities have curtailed and sever- preexisting joint because of Indeed, al liability rule. asserts although dissenting opinion vigorously that Proposition 51’s to a that the elector- relationship liability crisis proves ate must have retroactively, intended that the measure would statutes, that assertion clearly is belied the numerous recent tort reform crisis, which, in other adopted states in response to the same terms, their are 1219- expressly (See prospective operation. post, pp. demonstrate, 1220.) As these statutes Proposi- a prospective tion 51 totally initiative compatible history with the purpose *7 measure.
I. 1980, July school plaintiff Gregory 18-year-old high Evangelatos, student, home, in his while seriously injured attempting apparently 1981, make fireworks In July with chemicals from a retail store. purchased plaintiff filed an action retailer Science damages (Student for the against Inc.), & and Store, (Van Rogers, Waters distributor Inc.), the wholesale that defendants alleging he was using, four of the chemicals manufacturers theories. liability and strict his on both injuries negligence were liable for the manufacturers were dismissed three of against The causes of action the against dismissed the action voluntarily summary judgment plaintiff and whole- retailer and the The proceeded against fourth manufacturer. case sale distributor of the chemicals. filed, 23, 1986, been after the action had years
On June five almost the two and began, plaintiff trial. Before the trial assigned case was seeking the trial court determina- defendants filed motions with remaining 51, just had been voters approved tion which Proposition whether 1986, 3, election, in this would be weeks earlier at the June three validity of of the constitutional The a determination sought case. motions and, valid, to the relating a resolution of various questions if proposition of the measure. applicability interpretation and proper statement, ruling After trial issued written briefing, lengthy court 51 was (1) on five The court concluded separate issues. face; measure not on its that the validly (2) enacted and is unconstitutional cases, to all had not applies gone including present proceeding, 1986, 4, became trial before June the initiative measure the date on which effective, arose; in determin- (3) of action regardless when cause noneco- ing portion each defendant’s “several” for a plaintiff’s trier fact consider the damages nomic under the proposition, just injury, of all persons plaintiff’s conduct whose fault contributed action; (4) are conduct of defendants who plaintiff parties and that future loss of are “economic earnings medical and future expenses re- 51 for which defendants damages” meaning within the liable; jointly severally main that for purposes apportioning case, in favor of summary fault in this that had been entered judgment no causative fault three a determination that manufacturers constituted could attributed to them. properly
Immediately and one of defendants following ruling, plaintiff in the Court (Van Inc.) petitions Waters & filed mandate Rogers, separate of the trial court’s decision. Appeal, challenging aspects different and the initially petitions summarily, parties Court denied both Appeal us, Shortly then reached sought petitions court. before the review this Court, another its decision Russell Superior Court rendered Appeal to all holding Proposition inapplicable Cal.App.3d On effective date. causes action which accrued before the measure’s October denied a for review Russell petition our court transferred to the Court of Appeal the two this matter petitions *8 directions to issue alternative writs. Our Court Ap- order directed the attention to peal’s the Russell decision. remand, writs,
On the Court Appeal issued alternative consolidated the briefing matters for argument, and concluded the ultimately correctly issue, trial court had resolved all the the at questions including constitutionality facial of the measure and its to the instant applicability case. the Court of Although Russell had Appeal recognized the court issue, reached a contrary conclusion on retroactivity disagreed it decision, that, the Russell concluding while the initiative measure contained no or express affirmative indication that the to apply measure was intended retroactively, in its view “the take legislative intent was for the statute to immediately effect and to to many cases as feasible.” Finding be unduly would disruptive retrial of all tort cases that had require been tried before the enactment of judgments but which final, yet had not become the Court of maxi- Appeal concluded that “[t]he tried, mum feasible yet the Act is to all to be including cases this one.” review, plaintiff
Both petitioned defendant we granted review to resolve the important case. questions presented
II. issues, Before analyzing either the retroactivity constitutional or we be- lieve it useful place Proposition 51’s modification of common law liability and several doctrine in brief historical perspective. Prior to the adoption comparative California negligence principles mid-1970’s, jury, in an assessing liability awarding damages or action, ordinary generally tort or did determine relative degree of fault de- proportion attributable either to the to an individual plaintiff, defendants, or fendant or any action. Under then- nonparties doctrines, prevailing tort the absence any inquiry culpability into relative had harsh On potentially for both and defendants. consequences plaintiffs hand, if a one all plaintiff was found be at no matter how negligent, under the slight, contributory negligence generally precluded rule he was Witkin, Summary from obtaining recovery (See whatsoever. generally Torts, of Cal. Law (8th 1974) ed. On cited.) 2968 and authorities § hand, if other a defendant was negligent, regardless found to be all minimally, how under the joint and several rule he could be held for the responsible damages full sustained even if other plaintiff, concurrent tortfeasors had also been primarily, responsi- even partially, id., Moreover, ble for the injury. (See governing pp. 2333-2334.) §
1197 authority to decide unilateral plaintiff rules time gave at that id., 37, 2335); a defendant (see p. be sued defendant or defendants were to § had no right by the plaintiff generally had been out for suit singled who action, were other tortfeasors even if the tortfeasors into the bring other 46, id., 2346).3 p. injury (see for the plaintiff’s or more equally responsible § 858, Cal.Rptr. In v. Cab 13 Cal.3d (1975) Li Yellow Co. [119 modifying in step an initial 393], P.2d A.L.R.3d this court took structure, hardship ameliorating this traditional common law contributory doctrine negligence by abrogating all-or-nothing plaintiff “the Li that held negligence. in its rule of adopting place comparative a recovery, . . . not bar contributory shall injured negligence person the amount in but the awarded shall be diminished damages proportion 829.) Cal.3d at (13 recovering.” attributable to the negligence person 20 Cal. 3d (1978) Court Motorcycle American Assn. Superior step the next 899], modifying 578 P.2d our court took law structure, common the traditional this the preexisting time altering the American Although doctrines to diminish the to defendants. hardship joint and Motorcycle court that traditional common law concluded that on the fact liablity part, several doctrine should be retained—relying, had adopted at that time the majority” jurisdictions “overwhelming rule comparative had also retained the and several negligence Motorcycle court held 3d at same (20 p. 590)—at Cal. time the American to determine (1) plaintiffs right should no have the unilateral longer and that which defendant an action or defendants should included allegedly who were defendants who were sued could other tortfeasors bring cross-com through responsible injury for the into the action plaintiff’s could obtain defendant (20 604-607), (2) Cal.3d at plaints pp. defendants, basis, from other indemnity, on a fault equitable comparative among (See thus a tortfeasors. damages fair permitting apportionment 591-598.) pp. articulated that under the Subsequent principles cases established a Motorcycle, pursue American 20 Cal.3d a defendant (1) either claim other tortfeasors comparative indemnity against equitable a filing a by filing original in the tort action cross-complaint share indemnity proportionate action after more than its separate paying Proc., (Code 875-880) Civ. ameliorated situation 3The Contribution Act §§ damages plaintiff more than one permitting pro somewhat when the sued rata division only applied, joint judgment against That act defendant and a howеver, was entered the defendants. defendants, against multiple judgment in instances in which a had been entered action, and, principally if the defend plaintiff join culpable tortfeasor in the chose not singled right to ant or who had been out for suit had no contribution. defendants *10 the damages through the of a judgment through satisfaction or in payment Sears, (See, e.g., settlement. & v. Roebuck Co. International Harvester Co. 82 (1978) 496 Cal.App.3d 262]; American Bankers Ins. Cal.Rptr. [147 Co. Avco-Lycoming (1979) Division 97 Cal.App.3d [159 addition, In Cal.Rptr. 70].) more recent make decisions also clear that if or one more prove tortfeasors to be insolvent and able are not to bear their loss, fair share of the the shortfall such insolvency created should be equitably apportioned among the defend- remaining culpable parties—both ants and plaintiffs. (See, e.g., Paradise v. Schlossman ValleyHospital (1983) v. Kress Cal.App.3d 531]; Ambriz (1983) [191 Cal.App.3d 963 Cal.Rptr. 417].) these various
Although served to much of developments reduce rules, harshness of the original all-or-nothing common law the retention of joint the common law liablity several doctrine some situa- produced tions which defendants who bore small of for only a share fault an accident be obligation could left with the all of large or a share pay if plaintiff’s damages other culpable more tortfeasors were insolvent. The initiative measure in case to this question this was addressed issue. remaining While in a rule which recognizing potential inequity require injured would plaintiff who sustained considerable medical expenses other as a bear damages result of an accident to full brunt of the if loss one of a number of insol- prove tortfeasors should vent, the drafters of the initiative at the same time concluded that was unfair in such only situation tortfeasor be mini- require might who mally result, to bear all of culpable the drafters plaintiff’s damages. As a crafted a compromise solution: Proposition 51 retains the traditional liability several doctrine respect damages, to a economic plaintiff’s liability but a rule of adopts several for damages, noneconomic providing each only defendant is liable for noneco- portion plaintiff’s nomic which is damages degree commensurate with that defendant’s injury.4 fault It heavily was this compromise measure—which drew 1431.2, Civil Code section provides constitutes the full: heart death, “(a) personal injury, property wrongful upon prin action for damage, or based fault, ciples comparative damages of each defendant for non-economic shall be only joint. several and shall not be Each defendant shall be liable for the amount non- damages economic proportion per allocated to that defendant direct defendant’s fault, centage amount, separate judgment and a against for that shall rendered that defendant section, (b)(1) purposes damages’ objec For of this the term means ‘economic [fl] tively costs, monetary inсluding earnings, verifiable expenses, losses medical burial loss of property, repair obtaining of use of replacement, loss costs of domestic costs substitute services, employment loss of employment opportunities, and loss of business or For [fl] section, subjective, purposes damages’ of this term ‘non-economic means non-mone to, inconvenience, tary including, suffering, pain, suffering, losses but limited mental by the but not by the Senate passed a number bills which had been upon 75No. Sen. Bill (see sessions Assembly in a number preceding Sess.); Sen. Bill (1983-1984 Reg. Bill (1985-1986 Reg. Sess.); Sen. No. in the by the electorate No. 500 (1981-1982 Reg. Sess.))—that adopted June 1986 election. *11 joint modification legislative 51 is the first
Although Proposition California, years in recent liability and several doctrine to be enacted in and common law analogous joint traditional statutory alterations coun liablity by many throughout several have states adopted rule been compara try, implementation often as of a part comprehensive liability doctrine joint tive fault The revisions of the and several principles. have in several states jurisdictions variety other have taken a of forms: liability entirely “pure” it with a joint replaced abolished and several and 5 rule, liability guidelines several states have formulated various other and have more and less tortfeasors distinguish culpable culpable between tortfeasors,6 still several for less and adopted liability only culpable others, California, like different distinguished categories between in an and several damages injury, retaining joint sustained some form of for liability “medically adopting “economic” or while damages, related” some form of several for and and other noneco liability suffering” “pain Thus, nomic made a damages.7 while 51 Proposition unquestionably distress, consortium, injury reputa- society emotional companionship, loss of and loss tion and humiliation.” 5 liability (See, “pure” e.g., At least five 60- states several rule. Kan.Stat.Ann. § 258a(d) (1983); (Supp. 1987); Vt.Stat.Ann. tit. Ohio Rev.Code Ann. 2315.19 § § 78-27-38, (Page 1981); Utah Ann. (1987); Code 13-21-111.5 78-27-40 Colo.Rev.Stat. §§ § (1987). (West 1987) also Supp. [adopting See Wash.Rev. Ann. 4.22.070 liabil Code several § rule, several, ity general liability areas]; retaining joint specified as a but and several 1987) (Supp. [same].) Nev.Rev.Stat.Ann. 41.141 § 6At adopted approach. (See, e.g., least four 668.4 states have such an Iowa Code Ann. § (West 1987) [joint liability per apply to and several does not defendants who bear less that fault]; 604.02(1) 1988) cent of (West Supp. municipal Minn.Stat.Ann. defend state or § [if percent, jointly severally greater ant’s is less fault than “it is and liable for an amount no (Vernon 1987) fault”]; Supp. than twice the medical amount of Mo.Ann.Stat. 538.230 § [in malpractice “any damages jointly against cases made shall be defendant whom an award of is apportioned percentage equal liable fault is to or less those defendants whose defendant”]; (Vernon 1988) than such Tex.Civ.Prac. & Rem. Code Ann. 33.013 § [defendant actions, or, severally percent, specified percentage greater liable unless fault than 20 is greater fault is plaintiff’s].) defendant’s than states, California, (See, e.g., At N.Y. least four in addition to have embraced such a rule. liability (McKinney Supp. 1987) & R. less than 50 Civ.Prac.L. defendant’s is § [when liability percent, defend plaintiff’s defendant’s loss shall not exceed that of noneconomic 768.81(3) share; categories equitable excepted]; ant’s cases Fla.Stat.Ann. numerous § abolished, 1987) (West Supp. [joint except percent where a defendant’s several claimant, jointly age equals particular and sever fault or exceeds that of a the defendant is ally damage]; liable for claimant’s economic Ore.Rev.Stat. 18.485 § [defendants severally severally damages, jointly economic liable for noneconomic liable for doctrine, substantial change this state’s traditional tort when viewed from a national it becomes perspective apparent that the measure’s modification of the common law and several liability rule was not an isolated or aberrant but phenomenon rather similar paralleled developments evolution and implementation in other comparative-fault principle states.
Having briefly reviewed the historical background we turn initially to broad claim plaintiff’s that the Court of erred in Appeal failing to strike down the initiative measure as unconstitutional on its face.
III. Plaintiff contends that facially unconstitutional on two *12 separate grounds, asserting (1) that the measure is vague ambigu- “too ous” satisfy to the due process requirements of either the state or federal Constitutions, and that the (2) enactment violates both the state and federal equal protection clauses establishing classifications that rational- are not ly related see, to a legitimate state interest. As we shall both of these constitutional claims are similar to contentions in just years raised a few ago a series of cases challenging validity a variety of another provisions measure, legislative tort reform Injury Medical Reform Compensation 1975, 1975-1976, 1, 2, Act of 1975 (MICRA) (Stats. 2d Ex. chs. Sess. pp. 3949-4007), an enactment which a modified number of common law tort doctrines in the medical in malpractice area. Our decisions the earlier MI- CRA clearly cases establish that current constitutional plaintiff’s challenges lack merit.
A. Plaintiff initially contends unconstitutionally that 51 is Proposition vague. Relying on the United States Court’s classic statement of Supreme the vagueness doctrine in Connally (1926) v. General Const. Co. 269 U.S. 385, 322, 328, L.Ed. 46 S.Ct. either forbids statute which [70 126]—“a or requires the of an doing act terms so that men of common vague must intelligence necessarily at its guess and differ as to its meaning applica tion, violates the first essential of due maintains process law”—plaintiff subject is to just such a criticism. To his support damages unless plaintiff percent defendant is less at fault than or less than at fault 110, only severally which case damages]; defendant liable for economic Ill.Ann.Stat. ch. 2-1117, (Smith-Hurd 1987) Supp. jointly severally 2-1118 defendants liable for medical [all expenses, percent severally defendаnts who are less than 25 at fault liable all other dam ages, percent jointly severally defendants who are more than 25 at fault liable for all oth damages].) er contention, relating catalogues questions series of plaintiff language 51 which he suggests application these existence of He that the no clear answer.8 asserts provides measure unconstitutionally the measure unanswered renders questions numerous in its of the enactment its face and warrants the invalidation vague on entirety. most, are statutes Many, flawed. plainly probably
Plaintiff’s contention invariably under which arise ambiguous some and instances respects a statute may long So application unclear. language or other does threaten of First Amendment infringe not on the exercise numerous, however, not even if do rights, constitutional such ambiguities, justify the of a statute on face. order succeed invalidation its threaten facial measure does not vagueness challenge issue constitutionally measure at protected conduct—like the initiative identify here—a must do more than some instances party he must demon ambiguous; statute be uncertain or strate “the vague (Italics law is in all its impermissibly applications.” added.) 455 U.S. (Hoffman Estates Estates Flipside, Hoffman L.Ed.2d has satisfied clearly S.Ct. Plaintiff 1186].) this burden.
Plaintiff’s similar vagueness argument claim echoes a constitutional in 36 raised American Bank Co. Community & Trust v. Hospital 359, 671, 670, Cal.3d 233], 377-378 P.2d 41 A.L.R.4th Cal.Rptr. [204 Procedure, with respect section 667.7 of the Civil a section Code of MICRA which for in medical provided judgments periodic payment Bank, malpractice cases under plaintiff certain circumstances. American claimed, alia, inter that the statutory mandating periodic payment provision ... be for “should struck down ‘void unconstitutionally vagueness, as ambiguity and unworkability,’ many questions because it leaves unanswered as to a how trial court is to actually payment formulate comprehensive (36 very schedule without the benefit verdicts.” special jury detailed 377.) Cal.3d at p. problems application After that the noting practical petition questions following allegedly Plaintiff’s as to for review lists the unanswered proposition’s application: “1. apply Does it to this case? apply jury “2. if Gregory Does it finds at fault? 0% . apply jury “3. if lia- Rodgers products Does it finds & liable on strict Van Waters based bility? intentionally? jury “4. if the Student acted [Does finds Science it] jury recovery adjusted? “5. If Gregory finds at his more than fault how is 0% “6. naming serving parties? Who bears the burden of and other special parties “7. must or Can the verdict form ‘other’ box or such contain catch-all non-parties specified be limited to the evidence adduced trial?” insurmountable,
were by no means we went on to out that point “[i]n event, plaintiff no provides authority its claim that the support remaining uncertainties may inhere in provide the statute basis for. proper striking it down on its face. As with other innovative and doc- procedures trines—for example, the first instance trial comparative negligence—in courts will deal novel that arise in problems case-by-case time-honored fashion, courts remain in appellate will available to aid the familiar common law task of filling statutory in the scheme. gaps [Citation.]” (Id. at 378.) case,
Precisely the same in this reasoning applies Although the language provide every a certain answer for possible situation in which the modified and several liability doctrine may come into play, the of the statute in application many instances will be Thus, clear. quite while example, cites the statute’s lack of plaintiff issue, clarity on the retroactivity there is no but that the statute question applies date; causes of action accruing similarly, after its effective al though plaintiff complains the statute is not clear as to whether it applies causes of action based on intentional tortious conduct or how it tortfeasors, should be applied with to cases absent respect involving statute’s application in an ordinary tortfeasor multiple comparative negli gence Further, action in which all joined tortfeasors are is not in doubt. as Bank, stated American when situations which arise, the statutory language can ambiguous statute’s time-honored, resolved trial and courts “in fash appellate case-by-case ion,” by reference to the language statutory scheme as a purposes whole. The judiciary’s traditional role of ambiguous interpreting is, course, statutory language “filling schemes gaps” applicable initiative measures as it is to measures adopted Legislature. (See, Amador e.g., Valley High Joint Union Sch. Dist. State Bd. Equalization (1978) Cal.3d 244-246 *14 P.2d 1281].) there claim that Accordingly, is no merit to plaintiff’s the statute should be unconstitutionally struck down as on its face. vague
B. Plaintiff alternatively contends that Proposition violates the state and federal because equal protection guaranties, allegedly the classifications drawn the statute to a rationally are not related state legitimate interest.9 Plaintiff claims in that the statute is particular 9Although plaintiff suggests proposition’s also that the classifications should be evaluated standard, stringent, scrutiny” under a more controlling “strict make it clear decisions (See, relationship” equal protection that the traditional applicable “rational is here. standard it because discriminates (1) invalid clause protection under equal and the damage suffer economic injured between the class of who persons full damage, providing class of who suffer noneconomic injured persons for protection a lesser damage for suffer economic but those who protection it damage, improperly and because those who suffer noneconomic damage, within the victims who suffer noneconomic discriminates class of tortfeasors, injured by for who are solvent recovery full victims permitting insolvent recovery injured by victims only but providing partial clearly Both claims аre without merit. tortfeasors. treatment of economic disparate
Plaintiff’s to the challenge proposition’s similar attack that a damages parallels equal protection and noneconomic 3333.2, which at Civil of MICRA was directed Code section a provision $250,000 be recov- damages may limit on the noneconomic placed action, limit ered in no similar malpractice placed a medical but which in Fein v. damages. economic In that rejecting equal challenge protection there Permanente Medical 38 Cal.3d we Group, explained supra, clearly rational basis for between economic and noneco- distinguishing losses,10 nomic and and damages protection fuller for economic providing equal protection certainly require observed clause does not “[t]he recovery to limit a Legislature expenses victim’s for medical out-of-pocket earnings or lost it has some simply place because found appropriate limit on losses.” damages for and and similar noneconomic pain suffering fashion, (38 162.) clearly Cal.3d at In equal similar clause protection liability does not a state to and several require modify traditional rule as it to economic the state has found it applies damages, because simply to limit an for an in- appropriate individual tortfeasor’s potential Indeed, jured person’s noneconomic damages. Propo- distinction which is, sition 51 draws between damages general economic noneconomic terms, Fein-, less severe than the upheld distinction 51 places no dollar limit on damages the noneconomic plaintiff recover, but properly simply that each individual tortfeasor will be provides for liable that share which is plaintiff’s damages noneconomic Co., 359, 373, 12; e.g., Bank fn. American & Trust Fein Permanente Medi- Cal.3d 665].) Group (1985) cal 161-164 695 P.2d 10 Fein, pointed legal long questioned out the court had whether commentators public policy supported comparable sound economic and noneconomic treatment damages, “[tjhoughtful jurists legal explaining that scholars have for some time raised any negli questions awarding damages pain suffering wisdom serious alia, case, *15 gence noting, monetary placing value on such inter inherent difficulties a losses, money damages intangi only imperfect compensation that such the fact are at best for to, injuries damages by, generally ble that innocent con passed such are on and borne is, course, firmly general propriety damages sumers. imbedded our While of such jurisprudence sug [citation], case of are aware has ever common law no California which we constitutionally gested right injuries recover immune that for such noneconomic is 159-160.) legislative (Footnote omitted.) (38 pp. from or at limitation revision.” Cal.3d commensurate the tortfeasor’s fault. There is comparative no impediment constitutional to such differential treаtment of economic and losses. noneconomic
Nor is vulnerable constitutional attack the basis of plaintiff’s claim that it discriminates within class of improperly plaintiffs who have harm. suffered noneconomic Plaintiff that asserts statute arbitrary draws an distinction persons between with noneconomic damages injured who by have been solvent tortfeasors and those who have been defendants, injured by recovery insolvent full of noneconomic permitting damages by recovery by the former class but the latter partial class. however, itself, legislative terms of the reflect no intent to proposition injured solvency discriminate between victims on the basis of the instead, they tortfeasors whom are injured; quite clearly measure to limit simply liability intended of an individual defendant for potential noneconomic to a that damages proportion commensurate with defendant’s personal share fault.
Although one statute’s several consequence adoption liability for noneconomic will be damages persons that who are unfortunate enough injured by an insolvent tortfeasor will not be able obtain full recovery losses, for their consequence noneconomic does not render the provi- scheme, sion unconstitutional. tort liability plaintiff Under who is is, course, injured by single tortfeasor to be who insolvent worse proves off than a who is who can an plaintiff injured single tortfeasor pay adverse flowing Such “differential treatment” from the relative judgment. however, solvency of the tortfeasor has injury, who causes never been to render all tort thought require statutes unconstitutional or to the state to compensate judgments against for uncollectible obtained insolvent plaintiffs liability defendants. And while the law and several joint common doctrine has in the a measure from the past provided plaintiffs insol- protection vency of a tortfeasor when there additional tortfeasors who are finan- are cially able to bear the total has no damages, plaintiff cited case which is a suggests constitutionally and several doctrine law, mandated rule immune from modification revision. As legislative with other common law tort doctrines—like the doctrines issue in the recent line of MICRA Bank & (see, e.g., decisions American Trust Co. v. Community Hospital, supra, 36 Cal.3d 366-374 of com- [modification mon law providing lump sum]; doctrine for Barme payment judgment v. Wood P.2d Cal.3d 174 446] [mo- rule]; dification of Fein v. Permanente Medical collateral source Group, of noneconomic allocation damages])—the [limitation entirely of tort is an sub- damages among multiple appropriate tortfeasors ject regard, resolution. In it is worth recalling Propo- this *16 entire risk of a 51 does the to bear the injured plaintiff sition not require insolvency; fully defendants continue to share tortfeasor’s solvent potential damages. risk to a economic respect in such plaintiff’s sum, the may disagree reasonable as to wisdom although persоns liability joint common law and several 51’s modification Proposition doctrine, is not on its face. measure unconstitutional
IV. major is that if the lower Plaintiff’s second contention even courts constitutionality were correct in the trial upholding proposition, concluding court and Court of were nonetheless in in that the Appeal error newly retroactively enacted statute should causes of action—like present action—which accrued to the effective date of initiative prior measure. Plaintiff out that to the enactment of points prior many plaintiffs individuals—both and defendants—relied on then-exist and ing deciding several doctrine which parties join litigation relating whether to settlement such accept reject offers claims, and that there is preexisting plaintiff nothing contends because the terms proposition which indicates it is to apply reliance, to defeat such lower courts erred it such giving applica tion. In response, defendants contend that application retroactive is war ranted in the nature light of initiative measure. purposes
A.
Before
analyzing
retroactivity
by
discussed
principles
precedents
contention,
both
we must address a
parties,
threshold
raised
a number of
amici,
retroactivity
who assert that there is no need to consider the
issue at
all in this case. Although defendants themselves do
suggest
applica-
tion of
51 to causes
of action which accrued
to its effective
but
date
which did not come to
until after
date
trial
such effective
would
retroactive,
constitute
rather than a
prospective,
measure,
amici have put
several
forth that
suggestion, arguing
confining
measure’s
to trials
after the initiative’s
operation
conducted
effective date
the Court of Appeal simply applied Proposition
prospec-
and,
tively.
theory
The Court of
did
Appeal
not rest its conclusion on this
explain,
we
the governing cases do not
amici’s contention.
support
In Aetna Cas. &
Co. v.
Surety
Ind. Acc. Com.
1206 to awards made workers’ board after the effective date compensation statute, of the new even the awards which the though pertained injuries workers had suffered before the new was enacted. The legislation injured employees that such an argued application of the statute to future awards retroactive, would constitute a prospective, rather than a application statute. Cas., court, Gibson, In Aetna this Chief em speaking through Justice “
phatically rejected the argument, explaining law is retrospective ‘[a] acts, one which affects rights, obligations, transactions and conditions ” which are performed or exist of the statute.’ prior adoption (30 391.) at “Since the industrial is the basis injury any compensa award, tion the lаw in force injury at the time of the is to be taken as the (Id. measure of the injured recovery.” person’s right p. 392.) Decisions of both the United Supreme States Court and the courts of our sister states confirm that the of a tort reform statute to a application cause of action which arose to the effective date of the statute but which is tried after the statute’s effective date would constitute a retroactive of the statute. v. application (See, e.g., Ry. (1913) Nor. Pac. Co. Winfree 518, U.S. 296 L.Ed. 33 S.Ct. v. 273]; Joseph Lowery (1972) Or. [57 P.2d 273].) amici’s that the Accordingly, argument legal principles [495 relating the retroactive of statutes are not relevant in this case application clearly without merit.
B. The fact that 51 to the instant case application would constitute a retroactive rather than a prospective application statute is, course, conclusion, just rather than beginning, analysis. of our Although plaintiff maintains that a retroactive of the statute 751, would be unconstitutional In re (cf. Marriage (1985) 39 Cal.3d of Buol 759-764 705 P.2d 354]), properly defendants observe [218 in numerous situations courts which modified legislation legal have upheld County rules actions. San Bernardino applicable pending (See, e.g., Indus. Acc. Com. Cal. P.2d Because the (1933) 673].) 627-629 [20 is, whether a question prospectively statute is to apply instance, body the first which enacts the policy for the question statute, before we must determine reaching question constitutional whether, as a matter of 51 should statutory interpretation, If, a matter properly construed as or retroactive. of statu prospective tory no constitutional interpretation, provision question is prospective, is presented.
In we are resolving interpretation question, guided v. Security familiar the recent decision of United States legal principles. 235, 243-244, 79-80 L.Ed.2d Industrial Bank U.S. *18 succinctly the 407], Justice) captured S.Ct. Chief (now Rehnquist Justice of a statute to governing interpretation legal precepts well-established prospectively, explaining: applies determine whether decisions only judicial statutes while prospectively, “The that principle operate This every is court law student. operate retrospectively, [Citations.] familiar is must legislation rule that pointed has out-. construction ‘[7]/ze of often first . . . The rule has past. be considered as not to the future, addressed to always import, but of one that expressed been of varying degrees strength statute given a will be to a retrospective operation interferes and import antecedent . . . unless such be “the rights unequivocal inflexible ’ terms, legislature.” intention and the [Citation.]” of manifest of (Italics added.) As
California this Chief long general principle. authorities have embraced & Co. v. Ind. Surety Justice Gibson wrote for court Aetna Cas. Acc. Com., retroactivity 30 Cal.2d decision noted supra, 388—the seminal of that statutes are not to is established canon interpretation above—“[i]t given clearly unless it is made to that retrospective operation аppear 393.) such was the This rule has legislative intent.” Cal.2d at been (30 v. repeated (See, e.g., followed innumerable decisions. White Western 870, 509, Title Ins. Co. 40 P.2d (1985) 309]; 884 710 Cal.Rptr. Cal.3d [221 263, v. Glavinich Commonwealth (1984) Cal.App.3d Land Title Ins. Co. 163 Witkin, 272 5 Law Summary See of Cal. Cal.Rptr. generally (8th [209 266]. Law, 288, 1974) ed. 3578-3579.) Constitutional pp. § Indeed, 3, Civil Code of statutory section one the general provisions governing of all the Civil Code—includ interpretation provisions ing provision legislative at issue in this case—represents specific codification this general that legal principle, declaring part “[ri\o [this retroactive, (Italics unless so Like added.)11 declared.” expressly Codé\ similar Proc., provisions many (see, e.g., found in other Code Civ. codes 11 583, 587, 427, Marriage Bouquet (1976) Cal.Rptr. In In re 16 Cal.3d footnote 3 [128 1371], “[sjection specifically recognized 546 P.2d the court 3 of Civil Code embodies against retroactivity,” presumption the common numerous of this law decisions court recognized comparable represent legislative provisions other codes embodiments Com., general legal principle. (See, e.g., Surety supra, this Cas. Co. v. Aetna & Ind. Acc. 30 388, 740, 172, Code]; (1965) Cal.Rptr. 395 In re Estrada 63 Cal.2d 408 [Lab. [48 167, (1962) P.2d See v. Cal. also State Board Education 2d DiGenova 948] [Pen. Code]. 369, 865].) Cal.Rptr. 172-173 in a footnote P.2d To the extent that dictum in the [18 1041, Appeal (1983) Municipal Cal.App.3d Court of decision in Andrus Court 1045- discussing 341], provision footnote 1 Code of Civil similar Pro [192 cedure, suggests provision that such a no to amendments to such has codes codes, applies original provisions contrary to the that dictum is to the numerous (See Supreme disapproved. Court noted Estate decisions above and must be also Frees cited.) 187 Cal. 155-156 P. and cases 112] Code, 3; Lab. 4), understanding section reflects the common
§ § they are and that provisions presumed operate prospectively, should be so “unless or clear and unavoidable interpreted express language implication negatives (Glavinich v. Commonwealth Land presumption.” Co., Title Ins. Cal.App.3d 272.) The dissenting opinion—relying in a few decisions of this passages court to the effect that the is to be “subordi- presumption prospectivity ... nated transcendent canon of construction that *19 of the design Legislature only effect . . . be given applied is to [and] after, factors, all determined considering it is that it is pertinent impossible to ascertain the legislative (Marriage intent” 16 Cal.3d Bouquet, supra, of 583, 678, 587 v. deleted]; Mannheim Court 3 Cal.3d Superior (1970) [italics Estrada, 585, 686-687 478 63 Cal.2d Cal.Rptr. 17]; P.2d In re supra, [91 740, 746)—apparently legal takes the the well-established position principle every which Justice “familiar to law Rehnquist was suggested Bank, 70, (see student” v. Security United States Industrial 459 U.S. supra, 235, 79 L.Ed.2d 243]) is in this state and that Civil Code inapplicable [74 section 3 and other similar virtually have no effect on provisions court’s determination of whether a statute or retroac- applies prospectively however, dissent, tively. The language in the by decisions relied on been, be, has generally and to mean that should not properly interpreted California has embraced a unique general prospectivity of the application principle, (see distinct from the in other approach jurisdictions followed 41.04, 2 generally 1986) Sutherland on ed. Statutory (4th Construction § pp. 348-350), so that the to operate that statutes are principle presumed has retroac- prospectively ordinarily analysis no on a court’s bearing tivity question only be considered a court as a matter properly of last resort and then as a factor. tie-breaking Estrada, Mannheim, 740, years
In the 3 since 63 supra, supra, 678, 583, Cal. 3d court Marriage 16 Cal.3d both this Bouquet, supra, and the Courts of analysis ques commenced of the Appeal generally tion of whether a of the retroactively statute with a restatement applies fundamental generally presumed enactments are principle “legislative ex operate prospectively Legislature and not unless the 621, 38 Cal.3d presses (See, (1985) different intention.” Fox v. Alexis e.g., Co., 132, 637 40 v. Western Title Cal.Rptr. 309]; supra, 699 P.2d White [214 870, 590, 884; Cal. 42 593 (1986) 3d v. Board Retirement Cal. 3d Hoffman Cal.Rptr. 511]; (1987) Cal.App.3d 724 P.2d Baker v. Sudo [229 936, 943 38]; Sagadin Cal.App.3d Ripper [240 Co., Title v. Commonwealth Land Ins. Cal.Rptr. 675]; Glavinich These demonstrate Cal.App.3d 272.) precedents numerous codified principle, California continues to adhere to the time-honored that in the similar provisions, Code section and Legislature Civil will not be retroactivity a statute express provision, absence of Legisla- from sources that the retroactively unless clear extrinsic very it is The lan- application. or the voters intended a retroactive ture must have Estrada, Mannheim, not be inter- Bouquet should Marriage guage well-established, principle. preted modifying legislatively-mandated this matter, find noth in the we
Applying principle present this general indicates that in the ing language expressly of Proposition attempts this case retroactively.12 statute is to each Although party statute support to stretch the isolated language portions favors,13 as a position reading proposition each believe that fair we it clear subject retroactivity whole makes that the prospectivity Civil 3 and not addressed. As we have under Code section simply explained, general principle express provision the absence prospectivity, retroactive directing strongly supports prospective operation Although the measure. raise a of claims in an attempt defendants number *20 the force of escape this well-established principle interpretation, none of their contentions is persuasive.
C. lan- Defendants contend that even there is initially though express no in the statute guage an intent that for retroactive calling application, provision objec- should can inferred apply clearly be from the the legislation, tives of in the “findings as reflected stated and declaration purpose” in the ballot which accompanying provision and arguments appendix opinion. The full text of in the 51 is set out to this 13Plaintiff, taking portion Appeal his part cue in from a of the Court of in Russell decision Court, 810, 818-819, v. Superior supra, Cal.App.3d suggests word that the use of the passages only op “shall” in various in the statute indicates the drafters a future intended contend, however, likely eration. As defendants in think it is more the use context we mandatory provision, “shall” was intended to reflect the rather than to refer nature temporal operation. its Defendants, turn, 1431.2, rely in clause section states on the initial of Civil Code however, simply provision apply language, that the is to . . .” That familiar action. “[i]n merely any implication negates spe- that the new rule was to to a several category malpractice legislation—and pro- cific of tort cases—like the earlier medical tort broad, contemplated. general vides no indication that a retroactive Similar legisla- language statutory provisions in other has not been considered sufficient to indicate a Security retroactively. (See, e.g., tive intent that the United statute is to be States Bank, 235, 70, 82, gen- supra, Industrial U.S. fn. 12 few words of L.Ed.2d 245] [“ [74 ‘[a] meaning appearing given eral connotation con- in the text of statutes should not wide ” trary policy, plainly [Citation]”]; a settled “excepting purpose as a different shown.’ 182-183, Un. Pac. R.R. v. Laramie 199-202 Stock Yards 231 U.S. L.Ed. 101].) 34 S.Ct. As
were before the voters at the time the measure was adopted.14 out, defendants in the we correctly on a number of occasions point past have found that even when a statute did not contain an express provision mandating history retroactive or the context application, legislative sufficiently the enactment clear that the provided Legislature indication intended the statute to that we found it operate retrospectively appropriate Bou Marriage accord the statute a retroactive application. (See, e.g., Mannheim, 583; quet, 686.)15 3 Cal.3d supra, Defendants assert that consideration of the factors deemed relevant “ to the into context inquiry legislative intent those cases—e.g., [of ‘[the] remedied, view, enactment], the evils to be object ” history subject’ (Marriage times and of the same legislation upon 1431.1, introductory Civil Code forth section section of which sets “findings” purpose,” provides People various the State and a “declaration of in full: “The [j[](a) joint legal of California find and declare as follows: several liabili The doctrine and rule’, ty, deep pocket system inequity injustice known also as ‘the has resulted in a and bankruptcy governments, public agencies, private has threatened financial indi of local other higher goods public and prices viduals businesses and has resulted in and services to the for higher taxpayers. [j|] (b) private taxes are governmental Some defendants perceived to in coverage have substantial financial and have thus been resources or insurance though finding cluded lawsuits even them at fault. Under there was little or no basis fault, liability, they they and several if often are are found to share even a fraction of the financially damage. liable People—taxpayers held for all the and consumers alike—ulti taxes, mately pay higher higher higher prices for these lawsuits in the form of insurance (c) premiums. governments police, Local some essential fire have been forced to curtail [1J] protections soaring premiums. and other because of the of lawsuits and insurance costs Therefore, People remedy inequities, of the State of that to these de California declare *21 financially degree in proportion fendants tort actions shall be held in to their of liable closer differently [fí¡ People To State Cali inequitable. fault. treat them is unfair and of the of liability necessary prop fornia further in are and declare reforms the laws in tort actions catastrophic governmental as consequences er to avoid economic and local bodies for state private well as individuals and businesses.” Estrada, 740, supra, In In re that a enactment the court also held clause, retroactively retroactivity applied despite express but that should be the absence of an ordinary statutory retroactivity question. quite case involved considerations distinct from the Estrada, Legislature punishment In to be had amended a criminal to reduce the statute violators; imposed mitigating on after the defendant punishment the amendment was enacted Following prohibited in Estrada had committed act his conviction was final. but before by (see applied Supreme majority the rule states 63 Cal.2d at the United States Court and a 748), p. benefit of the miti the Estrada court concluded that the defendant should receive the Legislature gated punishment was “because to hold otherwise would be to conclude that the vengeance, in of modem theories of permitted motivated a desire for a conclusion not view (63 penology.” 745.) p. Cal.2d at Although in civil language subsequently some in invoked of the broad Estrada was Mannheim, 678, Marriage Bouquet, supra, 16 Cal.3d supra, context in the 3 Cal.3d and decisions, 583, ruling relationship determina- the rationale for the Estrada bears little to the below, statutes, and, retroactivity jurisdictions nonpenal of the noted other tion of most determining penal provisions in applied special applicable have not rule to ameliorative similarly retroactivity We conclude general like 51. tort reform measure guidance of this case. provides that the Estrada decision no for the resolution retroactive Bouquet, 587)—supports Cal. 3d supra, agree. we cannot legislation explain, issue here. As shall at we Mannheim, with, nothing there is Marriage Bouquet To unlike begin or the bro in of purpose” either and declaration statutory “findings that, of any absence suggests notwithstanding chure materials which actually was retroactivity, retroactivity express question on provision Bou Marriage In consciоusly the enactment process. considered during court, case should be statute at issue in that quet, the in that the concluding relied, of a part, Legislature’s adoption on the applied retroactively, measure, resolution, indicating shortly after the enactment retroactivity during debate discussed specifically was question intended to apply on the measure that the was declaring provision pp. 588-591); 16 Cal.3d at Marriage Bouquet, supra, (see Mannheim, separate reference a incorporated in question statute retroactive, made and the statutory scheme had been expressly which the later Mannheim must have intended Legislature court reasoned that it statute have a which parallel application provision Mannheim, 686-687.) 3d De expressly pp. fashioned. 3 Cal. at (See supra, fendants can brochure materials the election point nothing any on the provide part of an intention comparable confirmation actual retroactively. the drafters or electorate to the statute “ Indeed, the same legislation when ‘the of the times history upon ” considered, 587) subject’ (Marriage Bouquet, 16 Cal.3d in omitting appears rather clear that the drafters of Proposition retroactivity, recognized that the statute provision regard must have above, briefly the tort retroactively. would not be As we noted similar reform measure somewhat by Proposition paralleled instituted tort reform in the mid-1970’s legislation—MICRA—which was enacted in the medical field. response malpractice insurance crisis v. Bolen Woo 958-959 96 Cal.App.3d 454] 98 Cal.App.3d Robinson Medical Inc. (1979) Pediatric Group, Affiliates *22 907, Court of 791], 911-912 the separate panels two [159 reform addressed whether one of the tort Appeal provisions the question MICRA to a cause of action that accrued apply should into effect. MICRA’s but was tried after the act went enactment Robinson, both Bolen in the of a specific and the courts held that absence in for such the provision legislation calling application, gen retroactive eral the Bolen court should presumption application apply; prospective observed if the had the statute to retroac apply intended Legislature tively very easily it “could inserted such in statute itself. language have It at one of the (96 p. 959.) chose not to do so.” Because least Cal.App.3d very 51 drafters of was principal Proposition institutional and proponents much involved in the it post-MICRA litigation,16 appears inescapable that—given the Bolen and Robinson decisions—the drafters of Proposition have provision would included for specific providing appli- retroactive of the cation initiative measure if such had retroactive been Co., (Cf. intended. Aetna Cas. & Surety supra, 30 Cal.2d must [“it be assumed that Legislature with the settled rules of acquainted statutory and that it would for interpretation, expressly have re- provided of the amendment if it so Since trоspective operation intended.”].) had drafters declined to insert such a provision the proposition—perhaps order avoid the adverse have political flowed consequences might from inclusion of such a for provision—it would this appear improper retroactivity court read a into juncture. clause the enactment at this
D. contend, however, Defendants that whether or not the of the drafters retroactively, that the proposition intended measure would is the that, of the they intent electorate that is controlling, light maintain it is purposes proposition, evident that the must have voters intended retroactive application. novel, argument,
This while is flawed in a number of fundamental re with, To begin spects. the intent of electorate although prevail would over the intent of the if drafters there were a for determining reliable basis conflict, that the two were in no present there is basis for simply case finding any analysis such conflict. Analyst’s Neither the Legislative Prop 51 nor any osition statements or proponents opponents before were the voters in spoke retroactivity the ballot to the pamphlet is question, thus there no reason to believe that the harbored electorate retroactivity issue at specific thoughts intent with to the respect all. Because mea past cases have made it clear that initiative long subject sures are construction ordinary rules and canons of Carter v. (see, e.g., Seaboard Finance Co. 579-582 758]; Valley P.2d Amador Union Sch. Dist. v. State Bd. High Joint Equalization, Cal. 3d informed members of the 244-246), who retroactivity electorate happened presum consider issue would ably concluded that other measure—like statutes—would organizations (ACTR) The Association for California Tort Reform one of numerous brief, sponsored filed that have amici curiae briefs in this case. In its states that it ACTR legislation precursor that was its chairman “the to and model for 51” and that Attorney proponent “was the official who General filed California re with the preparation summary questing placement participat title of a on the ballot.” ACTR *23 many Co. v. leading (E.g., ed as an amicus of the MICRA cases. American Bank & Trust Community 359; Hospital, Group, supra, 38 supra, 36 Fein v. Medical Cal.3d Permanente 137.) Cal. 3d retroactive provision no express because applied prospectively the proposition. included in was of the Furthermore, “remedial” purpose claim that the defendants’ have intended that the electorate must necessarily demonstrates measure retroactively Although cannot be sustained. apply that the proposition clearly in the proposition included purpose” of “findings and declaration remedy inequities to the perceived measure was proposed that the indicate and to liablity and several doctrine preexisting under the resulting “de fairer under which system considered a create what the proponents in closer financially proportion be held liable actions shall fendants tort Code, does a remedial 1431.1), purpose such (Civ. of fault” degree to their § retroactively. Most an intent to statute necessarily apply indicate are, course, situation to improve preexisting intended statutory changes affairs, itself objective if an were such about a fairer state bring and to intent to statute retroac legislative apply a clear sufficient to demonstrate would statutory apply and initiative measures all tively, provisions almost light general principles In of the retroactively prospectively. rather than above, provisions set out statutory particularly interpretation Aetna Cas. & clearly (See, flawed. e.g. Code section the contention is Civil Com., 395.)17 30 Cal.2d at Surety supra, p. Co. v. Ind. Acc. is that there are consider-
What overlooks special defendants’ contention em- change the merits of the substantive legal distinct from ations—quite are legislation—that frequently triggered in the new bodied Co., clearly Surety supra, the un opinion Aetna Cas. & demonstrates Justice Gibson’s tenability support an the remedial nature of a statute is sufficient to of defendants’ claim that above, retroactively. As in Aetna the apply noted inference that the statute was intended compensation workers’ question before the statute which increased court whether injuries prior work-related should be workers who had sustained benefits new were not awarded benefits until after new statute took enactment of the law but who course, case, matter, sought injured parties present it was the who effect. In that unlike the statute; light argued remedial nature application of the workers that in retroactive provisions compensa mandate that workers’ of the increased benefits and Code, (Lab. 3202), liberally injured to extend benefits to workers tion law be construed § Legislature part the act even court should infer intent on the provision though express act to that effect. contained no authority is rejecting argument, court observed: “No cited for the novel the Aetna against require ignore operation the rule retroactive would the court doctrine which legislation. increasing persons rule of respect to benefits to favored remedial statutes ordinarily pro- operate construction and the rule that statutes should construed to liberal mutually peculiar nor exclusive. ... It would be a most spectively are neither inconsistent purpose of judicial reasoning such doctrine be invoked for the de- which would allow one clear, retrospec- stroying therefore, It that the intent in the other. seems favor implied the mere the statute operation tive a statute cannot be remedial from fact Co., (Italics added.) (Aetna Surety subject & to the rule liberal construction.” Cas. 395.) *24 new, of a
application “improved” legal principle retroactively to already circumstances in individuals action in have taken rea Thus, sonable reliance the previously existing on state the law. the fact that the rule electorate chose new remedial for the future does adopt necessarily demonstrate an intent to the new rule apply defeat reasonable of those who have their expectations changed position in on The reliance the old law. assures presumption prospectivity that reasonable on in legal reliance current will not defeated principles the absence of a clear indication of a intent override such legislative reliance.
The Oregon Joseph Lowery, Court’s decision in Supreme well, P.2d 273 in point closely illustrates a context related to the quite case. in newly instant The at issue whether a enacted question Joseph was statute should be to a comparative-negligence applied retroactively cause action which accrued before the of the statute which did not passage but trial come to until after the new law went effect. The in into plaintiff case, case, like in forcefully defendants this court argued should infer from the remedial nature of the legislative change Legislature that the enacted, intended to newly equitable negli- more comparative gence rule to all cases tried after the new even passage legislation, when the cause of prior enactment; action accrued to the em- plaintiff in phasized, this regard, the defendant’s conduct” at the time “primary obviously the accident was not undertaken in reliance on the contributo- ry negligence doctrine.
The Oregon rejected Court for retroac- Supreme plaintiff’s argument statute, tive “Certainly, of the no one has an acci- explaining: However, dent the faith of the upon existing then law. it would come as a shock to someone has liability arising who estimated his from a probable accident, past and who has his affairs to find that his planned accordingly, therefor is not to be as of responsibility determined the happening but accident is also what dependent upon might subsequently the legislature Every do. day necessary it is conduct affairs individuals a closely businesses to make calculated estimate of the responsibility lack thereof from resulting an accident or from other unforeseen and un- planned circumstances and to act reliance such We believe estimate. court, there prior is merit view of this as demonstrated its deci- sions, that, in contrary, the absence of an indication acts to the not be changes should construed a manner which legal rights respon- sibilities out of transactions which occur of such arising passage (495 276.) acts.” P.2d at other majority courts—including vast United States whether a question Court—which faced Supreme doc- contributory negligence remedial statute replacing all-or-nothing *25 1215 rule should negligence a more equitable comparative trine with of the to date which accrued to causes of action statute, is silent on the retroac- enactment when the comparative negligence court, issue, applying as the tivity Joseph have reached the same conclusion only.18 the new remedial statute prospectively noted, the voters no indication that as we have there is
Although, retroactivity consciously ques 51 considered in approving all, recognized have they they might if had considered the issue tion at individuals result placing retroactive of the measure could application than litigants old position who had acted reliance on the law a worse briefly We why application under the new law. examine retroactive could have such a proposition consequence. with, Proposi-
To arose before begin long whose causes of action plaintiffs joint on the reasonably preexisting tion 51 was will have relied enacted often sue tortfeasors to potential and several doctrine in which liability deciding rule, plaintiffs not to and several which sue. Given the been other may reasonably while there have have determined that addition in their complaint—who tortfeasors—in to defendants named to the go also be no reason to might responsible injuries, for their there was tortfeasors, since expense join added and effort to such other attempt could and noneconomic— damages—economic recover all of their plaintiffs understood, of from the named defendants. Such would plaintiffs course, rules, defendants could that under the the named then-governing bring any through cross-complaints such additional into the suit tortfeasors if the defendants desired. itself, course, joining 51 from plaintiff
While
does not bar
tortfeasors—indeed,
en-
may be to
additional
its effect in the future well
plaintiffs
every
responsible party—the
conceivable
courage
join
18
Co.,
See,
296;
(1933)
e.g.,
Ry.
v. Ludtke
v. Nor. Pac.
U.S.
Brewster
227
Winfree
449, 450];
(1973)
P.2d
retroactive preexisting measure causes of action would frequently have the effect depriving plaintiffs recov- opportunity er the of noneconоmic attributable to proportion damages absent tortfea- *26 sors, in many because cases the statute of limitations on the plaintiff’s cause of action preexisting against such an absent tortfeasor will have run Thus, before the enactment of Proposition 51.19 while in nothing there language legislative history of 51 to that the elector- Proposition suggest off ate intended to cut a plaintiff’s recovery to obtain full opportunity for noneconomic damages, the retroactive of application the measure would frequently have such an just effect. fashion,
In similar retroactive application to actions proposition which were pending prior of the measure adoption frequently would defeat the reasonable of into expectations parties who entered settlement in reliance agreements on the and several rule. preexisting on the Acting assumption any nonsettling defendants would remain fully liable for both economic and noneconomic in damages, plaintiffs pre- Proposition may actions frequently have settled with some defendants for a sum they lesser than they would have if that the accepted were aware remaining severally defendants would be liable for noneconomic dam- contrast, By ages. plaintiffs who settle accruing Propo- causes action after sition 51 fully would be aware the applicable principles.
Furthermore, retroactive 51 could Proposition also have adverse unanticipated, for consequences defendants well. As settling above, law, noted under a pre-Proposition defendant could choose to enter into a settlement agreement with the which settled the plaintiff plain- defendants, tiff’s entire claim all against bring could thereafter an equitable comparative indemnity action against other tortfeasors to compel them to bear their fair share of the amount which the defendant had settling Sears, paid settlement of the (See, claim. Co. v. plaintiff’s e.g., Roebuck & Co., International 496; Harvester American supra, Cal.App.3d Division, Bankers Ins. Co. v. Avco-Lycoming supra, Cal.App.3d law, 736.) Under if preexisting settling a defendant such a course pursued insolvent, action and if one or more of the culpable proved tortfeasors by shortfall insolvency caused such would be shared on equitable basis all of the solvent (See, e.g., tortfeasors. Paradise ValleyHospital Schlossman, 93.) If 51 were Cal.App.3d 19Although present may in the parties plaintiff case we do not know the additional have litigation, chosen to sue if 51 had been effect at outset of the defendants— post-Proposition filings—have connection with their suggested responsibility some may plaintiff’s parents. for accident lie either with plaintiff’s some friends or with any statute of plaintiff against limitations on cause of action have had such individuals has, course, long run. since enactment, to its accrued of action that retroactively to causes claim indemnity with an however, who was faced tortfeasor nonsettling liability limit his be able to tortfeasor would brought by settling degree to his own equal personal damages percentage noneconomic fault, into the settlement had entered and the tortfeasor—who settling to absorb be left state of law—would on the reliance preexisting was attributable damages noneconomic himself proportion to an tortfeasor or tortfeasors. insolvent could
Thus, litigation the measure past retroactive application *27 in all who acted for consequences parties unfair unexpected potentially of the of the law. Prospective application state then-existing reliance from measure, benefits of provision the remedial withholding while actions, all parties litigation would assure that to defendants in pending they to in join decided whom were rules” when “ground aware of the basic be settled. terms the case should action and on what course, many voters were aware Of that most or even suggest we do not from the retroactive application that would result consequences indicate, however, that 51. A these does Proposition consequences review of in changes Proposition a voter the remedial embodied who supported of those application not the retroactive necessarily supported would taken of individuals who had changes to defeat the reasonable expectations on the state of the law. irreversible actions in reliance preexisting It possible is no doubt misunderstanding, To avoid a caveat is in order. electorate, appli- of retroactive consequences that an informed aware cation, if the statute retroactive would have chosen to make the nonetheless directly to it. The retroactivity had been presented or issue prospectivity 51 did not address crucial is point Proposition because simply retroactivity determining no how we have reliable basis question, threshold issue of either the broad electorate have chosen to resolve would retroactively, or the prospectively whether the be applied measure should should if apply the proposition further of how policy question i.e., to cases apply whether the new rule should retroactively: was to apply filed, yet which had not yet been cases which had not complaint trial, yet been a trial court had not judgment come to to cases in which entered, final yet or to on appeal.20 cases which were Proposition light purposes dissenting opinion 20The of the remedial asserts virtually apply proposition inescapable” “the that the electorate intended inference is 1232-1233.) (See, post, pp. date of the measure. to all trials conducted after the effective fact, however, states which enact dissenting opinion that most aрparently overlooks liability response crisis 51 in to the same ed tort reform measures similar retroactivity issue in precipitated specifically and which addressed above, As we have explained well-established that stat- presumption utes apply the absence of a prospectively clearly contrary expressed intent gives to the fact that recognition retroactive of a statute discussed, often entails the kind of unanticipated we have consequences ensures that courts do not assume Legislature that the or the electorate intended such unless consequences clearly such intent appears. Because present matter there is nothing suggest that the electorate considered these results or depart intended to from the general rule that changes operate prospectively, prospective application required.21
E. Defendants next argue that even if the remedial nature of Proposition is not sufficient to indicate an intent on the part electorate the measure retroactively, this court should infer from the such intent fact that the measure’s statement of purpose and election brochure arguments demonstrate that the proposition was to meet a adopted insurance crisis. Defendants years maintain that because it will be before *28 causes of action which accrue after the effective date of the proposition trial, actually come to a of the prospective application measure would not effectuate the of purpose alleviating the insurance crisis and thus could not reasons, have been by intended the For a electorate. number of we conclude argument that this cannot be sustained. with,
To begin defendants’ of account the of prospective consequences of the measure is application inaccurate a number of significant respects. First, liability because premiums insurance are if not exclu- part, based sively, on damages company the insurance it incur will anticipates for the risks which will by be covered the policy, any reduction anticipated to damages be awarded in the future for causes of action which arise statutes, provide newly their did not application for retroactive of the enacted reforms to all (See, 1219-1220.) light cases tried after the new post, pp. enactment. at of these other enactments, it is difficult to “inescapable” understand how the can it from the dissent find purpose context of the a application enactment that such retroactive must been in- have tended. dissenting opinion suggests support proposi discusses a number of cases which it tion that generally apply retroactively. (Seepost, pp. remedial statutes are to intended 1233- dissent, however, 1235.) The cases discussed general did not involve tort reform stat utes, Proposition like but rather implementing procedur concerned enactments changes unlikely al in circumstances in which application it was that retroactive would defeat party’s a reasonable reliance the displaced procedural rule. statutes, In its proper discussion of the of interpretation remedial the dissent makes no mention of the Supreme numerous decisions both the Court United States state throughout country overwhelmingly courts which have concluded that tort reform stat- ute, retroactivity question, which is silent on the applied prospectively should be to causes of accruing ante, (See action p. 1215.) after the effective date of new statute. fn. in an be reflected logically the act should periods following during policy for defendants pay reduction in the which premiums potential immediate Thus, coverage. prospective application insurance post-act immediate been to afford reasonably could have proposition expected Similarly, governmental the extent benefits to defendants. potential the anticipated the fear of other activities had been curtailed because of accidents, any such the knowledge financial of future consequences Proposition future incidents would be governed provisions of the activities. logically resumption would support prompt Moreover, defendants because insurance premiums potential pre- coverage had to the enactment of paid prior least on the part, accidents were presumably computed, doctrine several assumption then-prevailing incidents, mea- would the covered retroactive insurers, rather sure be defendants’ might windfall to expected provide con- than a the initiative direct benefit the insureds themselves because tained no to return provision requiring portion previously insurers Indeed, collected premiums potential their insureds. this consequence mea- retroactive have one application may been reason drafters measure; sure chose to include in the express retroactivity provision if this potential company insurance windfall from retroactive application electorate, had might been to the attention of the brought well from detracted popularity the measure.
Finally, Proposi- defendants’ that a suggestion prospective application years tion 51 will mean that will affect the it will before measure *29 by actual that the damages defendants in tort cases overlooks fact paid vast of trial. majority tort actions are resolved settlement rather than po- Because the amounts at are reflect the defendant’s which cases settled trial, liability tential damages actually at the effects of on Proposition by defendants are to be at a much date than defend- paid likely felt earlier ants if the predict even measure is apрlied prospectively.
Thus, we cannot is inconsistent agree prospective application the objective liability-insurance of alleviating crisis.
Indeed, 51, a review of statutory provisions, Proposition other similar which were enacted states at the same time as approximately other high and to the same concerns over the effects response liability this not neces premiums,22 insurance demonstrates that factor does “Findings preambles closely 22The the 1986 and 1987 track the of number of statutes Laws, 305, 100; (See, Purpose” e.g., Wash. ch. Tex. Declaration 51. § sarily retroactively an intent to to all tried evidence statute cases apply after the altering effective date of the the numerous statutes enactment. the joint liability were enacted throughout several rule which coun 1987, try in only 1986 and state legislatures adopted various 5, 6, 7, different fns. but liability (see substantive variants of several ante), newly also arrived at differing conclusions as to whether enacted stat utes retroactively should be preexisting causes action. Several only of the new statutes were made to causes of action explicitly applicable 768.71(2) date accruing legislation (Fla.Stat.Ann. after the of the new § (West 1987); 1987); Mo.Ann.Stat. 538.235 Supp. (Vernon Supp. § 110, Ill.Ann.Stat, 2-1117, (Smith-Hurd ch. note 2-1118 following Supp. ¶¶ Nev.Stat., 709, 1987); 1987 2), only ch. some of the enactments apply § Laws, cases filed on after the (1986 effective date the statute Colo.Sess. 108, 682, Laws, Laws, 7; ch. 910; Wash. ch. N.Y. ch. § § Acts, C.S., 2, 4.05, 12; 1987 70th & Tex. 1st ch. Tex.Civ.Prac. Leg., § § Ann., Rem. Code (Vernon 1988)), only note 9.001 one following § liablity statutes—which rule limited to less adopted culpable several governmental on or on cases commenced defendants—applies “pending Laws, or after” the ch. (1986 date the enactment These 95). Minn. § course, varying responses, are relevant to the before us question they inasmuch as demonstrate that other bodies which enacted statutes in response same crisis that precipitated Proposition 51 and consciously retroactivity which on the question focused arrived whether, extent, different a statutory conclusions and to what such mo dification should apply to causes of action. Because the preexisting provi sion before is silent us on the general presumption question, dictates a clear contrary in the absence of a intent prospective application must control. closely directly California decision most this con- point supports Woo, above,
clusion. As noted in Bolen 958- Cal.App.3d 959, the Court of tort addressed the one of the Appeal question whether reform cause of action provisions MICRA should to a that accrued to MICRA’s enactment but tried after the act that was Bolen, case, went into effect. The in this relied defendant in like defendants *30 heavily on the fact that that the of MICRA demonstrated preamble measure by “skyrocketing” in to a adopted response crisis caused liability insurance costs23and established an intent argued that purрose 1987, 1.01, C.S., 2, Ann., Leg., Acts 70th 1st ch. in Tex.Civ.Prac. & Rem. Code note fol- § lowing (Vernon 1988).) 9.001 § 23 preamble The a part: Legislature to MICRA in “The declares that there is read finds and major skyrocketing malpractice health care crisis in the State of attributable California premium delivery system, resulting potential costs and breakdown of the health severe medically hardships indigent, economically marginal, for the denial access for the contention, rejected Bolen retroactively. the act The court apply above and em- discussed relying general principle prospectivity retroac- if the intended the statute to had phasizing Legislature statute itself. tively very easily language it “could such inserted 959.) It chose do (96 not to so.” Cal.App.3d Bolen, that the if felt light proponents provisions, crisis of the measure’s necessitated retroactive application retroactivity provi- seems evident that included an they express would have sion the proposition.
F. that, retroactiv argue express Defendants next the absence of despite ity provision, analogy 51 should be applied Cab, this v. Yellow court’s in Li retroactive of the decisions 804, Association v. supra, Motorcycle Superior Cal.3d and American Court, 578, supra, 20 at the pending Cal.3d to at least some cases that were Li, 804, 829; time those 3d decisions rendered. Cal. (See were supra, Stores, 322, Safeway Inc. v. 333-334 Nest-Kart 21 Cal.3d [146 550, reasons, do 579 P.2d number those decisions 441].) For a not support defendants’ claim. Li,
First, 804, supra, both 13 Cal. 3d supra, Motorcycle, American 578, involved law were made changes common tort doctrine that decision, by judicial from enactment. As the earlier quotation clear, Chief Justice makes a fundamen Rehnquist general as a rule there is tal retroactivity retroactivity difference between the and the of statutes judicial decisions: “The that statutes principle operate prospectively, judicial while every law decisions is familiar operate retrospectively, Bank, student. States v. Industrial (United Security [Citations.]” U.S. in the L.Ed.2d It is because of this difference 243].) governing legal comparative in which the in most states principles rule negligence judicial has decision—like Califor adopted through been nia—the newly rule has least some cases adopted pending been to at Schwartz, 8.2, (see 140-143), (2d 1986) Comparative pp. ed. Negligence § while in established those states in has been negligence which comparative statute, (See the change uniformly has almost applied prospectively. been id., 8.3, 8.4, Thus, 143-149; fact that the pp. ante.) see also fn. §§ depletion physicians substantially care available quality such as to worsen the health police powers, Legislature, acting scope citizens of this its finds state. within the remedy statutory remedy provided provide adequate herein and reasonable is intended to public safety permit now foregoing within limits of what health considerations *31 12.5, 1975-1976, 2, 1975, 4007.) (Stats. the and into foreseeable 2d Ex. ch. future.” Sess. §
1222 judicial modifications of tort in American were Motorcycle doctrines Li and accorded some retroactive no application provides support for defendants’ claim that the subsequent Prop- modification of a tort doctrine in osition 51 retroactively. should apply
Second, related, argument defendants’ more overlooks a but somewhat Li, fundamental, 804, 13 Because the Cal.3d and American point. supra, 578, Motorcycle, 20 the Cal.3d cases it the court which was made decision that common be policy the law rules at issue those cases should the changed, the court was to determine or not appropriate body whether and, so, retroactively. the new rule if applied retroactively should how (See generally Ry. Gt. v. Co. (1932) Northern Sunburst U.S. 358 [77 360, 145, L.Ed. 85 A.L.R. v. 254]; (1982) S.Ct. Peterson Court Superior 147, 784, 31 Cal.3d 151-153 642 P.2d Cal.Rptr. 1305].) present the [181 case, contrast, the it was electorate who made the policy decision rule, implement a in the traditional common law the change thus it was voters who possessed authority the policy decide the of whether question new statute Unlike in Li applied retroactively. should be or in American Motorcycle, in this case our court has no its own views as power impose wisdom or retroactively. appropriateness applying Because, above, as we have discussed is the re- silent on proposition troactivity question, Civil Code section 3 and well-founded principles statutory interpretation establish that the must be statute interpreted prospectively.
G.
Finally,
re-
defendants contend that
should be
cases,
troactively by
v.
Tulley
to line of
analogy
beginning
California
274,
Tranor
(1878)
Cal.
a number of
have applied
amendments, which
modified the
recoverable
legal
damages
measure
action for
conversion
trials
wrongful
or real
to all
personal
property,
conducted after the
(See
effective date of the
statute.
also Feckensch-
revised
v. Gamble
er
1223 the with, the of clearly scope overstate To we believe defendants begin a rule establish broad in that those decisions Tulley suggesting line of cases of dam affects the amount any statutory that in which provision California As retroactive. is рresumptively which an recover ages injured person Co., seen, 30 Surety & supra, decision in Aetna Cas. we have the seminal the 53 Cal. Tulley, 274—applied Cal.2d long supra, 388—decided after statutory a provision general of presumption prospective compen in a increased or benefits recoverable workers’ which the damages above MICRA cases noted Similarly, relatively sation action. the two recent Woo, 944; v. Pediatrics Robinson (Bolen Cal.App.3d v. 96 supra, Affiliates Inc., the traditional Medical Group, supra, Cal.App.3d 907) applied MICRA which of to a of principle provision prospective application in medical malprac the could recover a affected which a damages plaintiff Code, rule].) tice collateral source (Civ. action. 3333.1 of [modification § Co., Indeed, Title Ins. in v. Western our even more recent decision White “' 870, 884, court, is 40 Cal.3d supra, noting general this after “[i]t that, rule of . . . to make it retrospective construction unless the intention itself, clearly the not be construed to appears from act statute will ’ [citations],” that effect” on to observe rule is particularly went that “[t]his to a of applicable statute diminishes or an cause extinguishes existing which Thus, (Italics action.” that the added.) (Ibid.) suggest it is accurate to ordinary statute which presumption prospectivity inapplicable all, 3, com damages; modifies after Civil section which codifies the Code mon law of the Civil provisions with presumption prospectivity respect Code, damages. contains no exception relating statutes
Instead, 274, Tulley, its con- primarily 53 Cal. were supra, progeny Co., entirely cerned Cas. & separate Surety supra, with issue. In Aetna Gamble, 388, court, Cal.2d our supra, Feckenscher discussing Cal.2d that in Feck- Tulley 482—one of the cases the line—observed enscher the court had in question found that the statute language that the showed the measure to be retroactive- Legislature intended ly, and that mainly “the court was concerned whether question (30 has laws effect.” Legislature power give those such retroactive decision, statutory Cal.2d at p. 393.) Tulley too—after finding Feckenscher, 482, supra, change at issue involved a revision Cal.2d damages Civil in a action. pertaining Code section to the measure of real estate fraud Although opinion ac- at the quote does not the version of section 3343 effect time arose, appears plaintiff point permitted tion that at to recover statute a defrauded equal property representation sum to the difference as to the value between defendant’s revised, plaintiff property; received and actual value of that section recovery permitted value that with which of “the difference between actual parted . . .” person defrauded value that which he received . the actual Stout, Feckenscher, supra, with a revision like 12 Cal.2d dealt 3343, setting damages Civil in a estate fraud action. Code section forth the measure of real *33 to be amendment was intended
language left “no reasonable doubt that the to its prior to a case in which the conversion had occurred applicable of wheth- (53 question Cal. at on passage” p. 278)25—focusedprimarily er the a new measure Legislature authority had the constitutional to of to accrued to the enactment damages causes of action which enactment, that the concluding new statute but which came to trial after the Thus, Legislature authority. (See 279-280.) did have such Cal. at pp. it is not while for the claim that Tulley support and its do progeny provide alter the measure of dam- necessarily unconstitutional for the to Legislature action, not decisions do ages with causes of those respect preexisting a or to reject ordinary adopt of purport presumption prospectivity a intended Legislature new standard for whether the legal determining that the statute to be retroactive the decisions found simply or prospective; that the mea- of the statutes at issue in those cases demonstrated language retroactively. sures were intended to apply above, course, Proposition As we have noted whether question may constitutionally ques be is distinct from quite applied retroactive tion whether the should be as proposition properly interpreted The Aetna as a matter prospective statutory interpretation. cannot Surety Cas. & Co. line of cases Tulley decision makes it clear that the inter statutory properly interpreted ordinary displacing principles Cas. & Aetna pretation regard retroactivity. (See question Co., also Surety Other have supra, 393-394.) jurisdictions Cal.2d at pp. generally prospective application traditional presumption in tort actions. modify statutes which the amount recoverable damages 1105; 80 A.L.R.3d (See generally (1977) Annot. 98 A.L.R.2d Annot. 583, 601-602.) event, statutory
In provisions is unlike the quite in Tulley, important issue in a number of Cal. or its progeny all, cases, unlike 51 does First of respects. the statutes those purport damages to alter either the measure or the total amount 51 does a plaintiff may Although Proposition recover for a tort. particular may be affect the tortfeasor amount of noneconomic damages particular injury, for an required pay when more than one tortfeasor is responsible if one or recovery ultimate reducing the effect of plaintiff’s insolvent, a legisla- more tortfeasors are in the measure evidences nothing issue, Tulley reaching interpretation court relied its conclusion on the wrongful the fact that question provided the section in detriment caused “[t]he ” personal (italics added), reasoning that property presumed conversion of tobe . . . “[t]he expression presumed legal presumption ‘is that it was to establish a to be’ indicates intended operate, (53 pp. . 278- operate, and which at the trial of the cause . . .” Cаl. at could 279.) recovery full to obtain tive objective denying plaintiff opportunity all by joining responsible damages for both economic and noneconomic dam- of noneconomic the appropriate proportion tortfeasors and collecting however, above, retroactive we have discussed ages from each tortfeasor. As plaintiffs the effect of placing would often have the measure *34 actions, since in future in a than pending position plaintiffs actions worse all ability to join no have the may longer in plaintiffs pending actions Thus, of limitations. of the statute potentially liable tortfeasors because in line Tulley at issue the statutory whereas application provisions to like treatment cases to both and future actions at least accorded pending in case would current and retroactive this plaintiffs, application future effect, class detriment on one impose but would a equalizing unique case, in it this than Accordingly, it is more difficult assume plaintiffs. cases, was in was intended. Tulley application the that retroactive Second, Tulley in the statutory revision at issue given the nature cases, taken line of the in actions had unlikely parties pending it was the irreversible actions their in reliance on changed preexist- position contrast, above, many measure of ing damages. By plaintiffs as discussed undoubtedly and defendants in relied on the pending preexisting actions enact- joint and several rule in their liability conducting litigation prior too, ment reason in this Proposition 51. On there is more ground, this case in Tulley than the a retroactive question applica- decisions to whether tion of the statute was intended. here,
Finally, it is statutory at issue impossible ignore change the a to all modifying long-standing negli- common law doctrine applicable actions, in gence represents signficant change a much more substantial and the law than cases. Tulley the narrow modifications at issue in the statutory the Because of widespread impact of retroactive application Proposition 51, the need the for an statement of intent becomes all express more essential. line the
Accordingly, Tulley of cases does not retroactive support application 51.26 26Although argument, defendants in case have not several amici contend this embraced ground “proce 51 should that the measure is be ap concluding Appeal, dural” rather than that retroactive “substantive.” Court while warranted, plication expressly rejected argument, reasoning that be this nonetheless plaintiff’s re provision cause the effect or a could have a substantial on a defendant’s covery, “its substantive is evident.” effect agree supported We be Appeal with the Court that retroactive cannot addressing characterizing merely “procedural” question Proposition 51 as statute. In may retroactivity question by denominating whether the be a statute “substan- resolved “procedural,” Surety, supra, explained: tive” or in Aetna Cas. & 30 Cal.2d court
H. Having arguments, reviewed defendants’ we numerous think useful, conclusion, take a last look at one instructive particularly In precedent. v. Nor. Pac. L.Ed. Ry. Co. U.S. Winfree 518, 33 S.Ct. United 273], States Court was faced Supreme with question very which is interpretation similar to question us today. before In Employers Liability Federal Act—which granted railroad who of their workers had been the course em- injured ployment the right bring negligence against action federal court employer—had contributory been amended to doctrine of replace negli- gence Winfree, claimed that comparative negligence. the plaintiff act, although injury that case had the 1908 preceded comparative *35 negligence doctrine should nonetheless because the matter had applied be to trial until the gone gone plaintiff after act had into effect. maintained even that because before the 1908 the defendant enactment railroad should have that it be its negligence known could held liable if in a resulted there injury, deny plaintiff worker’s was no reason to the the benefit of the new rule. negligence comparative Winfree, Supreme rejected Court contention plaintiff’s held that statute could not to causes of properly applied be preexisting conclusion, action. In reaching its the court relied on “the almost universal future, They rule that statutes are to the not to the usually addressed past. constitute a new factor in the affairs and of men and should not be relations indeed, unless, held affect what be used or happened has words explicit by clear implication at 301 required.” (227 p. that construction be U.S. [57 L.Ed. at a p. 520].) Because 1908 “introduced new policy amendment law,” radically that it quite court changed existing emphasized as particularly the kind of statute that not be construed retro- “should (Id. spective.” 302 L.Ed. p. 520].) at p.
As we have is applicable same explained, precisely principle here. 51 will have a “introduced new which Proposition policy” a truth, “In the distinction not so effects. If sub- relates much to the form of the statute as to its made, changes ordinarily procedur- might stantial are in a statute as even be classified al, operation rights past on existing legal would be effects of retroactive because the changed, be operate events would and the statute will be futuro unless construed to above, contrary clearly appli- intent appears.” explained to the As retroactive Proposition preexisting very cation substantive causes of would have a definite action who, plaintiffs both during pending litigation, effect on took irreversible and defendants al., (See Harper then-existing actions in reasonable et reliance on state the law. also 10.1, (2d joint 1986) Law of Torts ed. tort- imposed and several [“The § independent producing injury feasors or tortfeasors is a ‘substantive cоncurrent indivisible liability* pay damages. might ‘procedural This li- entire differs from what be described as ability’ joined single action.”].) with other tortfeasors as defendants Civil section Under Code on most tort actions California. broad effect if the measure was interpretation, and the general principles retroactively, directing appli- retroactive to be provision intended express of such an have In the absence cation should been included. must be the proposition conclude that retroactivity, declaration we interpreted prospective.
V. finding erred we concluded the Court of Appeal Because case, reach is need to this there no Proposition applies issues, of vari- relating interpretation the additional by the Court which were discussed portions proposition, ous Appeal. as it upholds
The decision the Court of is affirmed insofar Appeal constitutionality insofar as holds but reversed to the effective to causes of that accrued applies action date of the initiative measure.
Each shall bear its in these party proceedings. own costs *36 Mosk, Broussard, Panelli, J., J., J., C. and concurred. Acting KAUFMAN, J. Proposition majority’s holding concur in the I Act) Fair or the Responsibility Act of 1986 (hereafter Proposition equal guarantees violates neither the due nor the process protection however, dissent, from its hold- respectfully state federal Constitutions. I which accrued Proposition 51 does not to of action ing apply causes conclude, Appeal, the measure’s I as the Court of before effective date. did tried, including the designed yet that the Act was to all cases to apply Therefore, one. I the Court of Appeal instant would affirm the judgment entirety. in its
Discussion .51 . . indi- expressly Because in the “nothing language Proposition concludes that retroactively,” majority cates that the statute apply is Hence, majority 1209.) must prospectively. (Majority opn. apply by the liability rule and enacted holds that modified several accrued any electorate shall not “cause of action” that 51’s if had before Act’s effective date even suit not been filed enactment.
The majority grounds 1) on holding its three fundamental assumptions: that section 3 of the Civil Code an statement retroactive requires express intent, that if 2) the drafters of the Act had applica- intended a retroactive tion, they would 3) have said so and that a retroactive proposition, may intent not legitimately be inferred from sources other than the proposi- tion itself. legally Each these as I shall is incorrect assumptions, explain, and inconsistent with prior decisions of this court.
Aside from these majority justifies three erroneous legal assumptions, its holding on two practical additional considerations. Application asserts, date, Act to all cases untried on its effective the majority would result in: 1) on plaintiffs may unfairness who have relied the former rule of joint and sеveral litigation such tactical decisions as making sue, settle, whom to whom much to 2) and for how an unwarranted companies “windfall” to insurance their computed pre- premiums As basis of the former law. will appear follows, from the discussion which these practical asserted considerations are for the factually most part any incorrect event are unsound as basis for decision.
The presumption said to be codified in Civil Code prospectivity section intent, does not require statement nor express of retroactive does the absence of such a statement the Act indicate that its drafters must have intended that the presumption should consideration apply. paramount here, construction, as in other matter of to ascertain the intent of the body so enacting effectuate the the law. purpose
A variety wide factors be relevant to the determination of whether body the enacting given intended a new statute to be retroactive effect. As below, fully more explained particular two factors of relevance here are the *37 Act’s history and express its remedial When these are considered purposes. law, in light of the relevant facts and decisional the conclusion becomes nearly the inescapable that Act’s can be served if is purposes fully to all cases not tried to date. its effective
As to the practical ramifications of an of Act to cases not date, tried before its effective analysis reveals the dispassionate majority’s concerns to be largely groundless. majority Indeed the implicitly concedes as much that holding the Act shall cause action not that of accrued prior regardless to its effective date the plaintiff of whether has taken any steps which could even be construed as “reliance” arguably the former law. conclude,
I finally, by that would noting strange attempt logic justify a retrospective application of the tort restructuring radical of
1229
804
13 Cal.3d
(1975)
Cab Co.
in Li v. Yellow
effected
[119
which this court
as “unfair” a
858,
1226,
yet condemn
393],
78 A.L.R.3d
P.2d
532
Cal.Rptr.
reform enacted
relatively limited
retrospective application
little credit to
inconsistency does
51. The
through Proposition
electorate
court,
judicial impartiality.
and appearance
the principle
this
or to
Prospectivity
Presumption
1.
Legislative Purpose
majority opinion—
only real point
essentially
The first and
a Hindu mantra—is
intoned, however,
regularity
the drumbeat
state-
express
absent
is dispositive
“presumption
prospectivity”
repeated,
how often
contrary. No matter
intent
legislative
ment of
held that the
however,
This court has
mistaken.
is
point
profoundly
relevant
Code section
is
Civil
codified
presumption
prospectivity
that it is impos-
it is determined
factors,
all
considering
pertinent
“only after,
added,
re
(1965)
Estrada
(Italics
intent.”
sible
ascertain
172,
v.
740,
Fox Alexis
948]; accord
408 P.2d
Cal.Rptr.
Cal.2d
746 [48
132,
621,
309];
Marriage
P.2d
In re
(1985)
Cal.Rptr.
38 Cal.3d
629 [214
427,
583,
1371];
546 P.2d
Cal.Rptr.
(1976) 16 Cal.3d
Bouquet
[128
678,
v.
3 Cal.3d
686-687
(1970)
Mannheim
Court
Superior
counseled,
...
is
“That rule of construction
17].)
478 P.2d
As Estrada
in so many
not set forth
Legislature
Where the
has
straightjacket.
intended,
should not be followed
what it
the rule of construction
words
may give
legisla-
a clue
blindly in
of factors
complete disregard
746;
Marriage Bouquet, supra,
re
(63 Cal.2d at
accord In
p.
tive intent.”
Court,
587;
v.
“deduced” from a variety” including “wide of “pertinent remedied, “context of legislation, history its to objective, the evils be and of times the same legislation upon subject, policy, public Alexis, . .” contemporaneous (Fox construction . . v. 38 Cal.3d at supra, 629; In re p. Marriage 591; 16 3d v. Bouquet, supra, Cal. at Mannheim p. Court, Estrada, Superior 686-687; Cal. In re supra, pp. 3d at supra, Cal. 2d at 746.) p.
The majority’s fundamental basic misunderstanding these principles Thus, leads it into other errors. “the majority assumes that drafters Proposition 51 would have included a retro- specific provision providing active of the such initiative measure if retroactive application had been 1212.) intended.” That (Majority p. assumption. is a false opn. seen, silent, As we have where the of the may statute is courts language not automatically body assume that the enacting must have intended the law contrary, should On apply prospectively. presumption factors, prospectivity after, be all considering pertinent “[i]s it is determined that it re impossible (In is ascertain the intent.” Estrada, 63 Cal.2d at added.) italics
Indeed, if we properly assume that the 51 were proponents silent, aware of the relevant law when chose it is they unlikely to remain not tried, that they assumed the yet Act would cases not and thus all notes, had no reason to so As which expressly provide. majority statutes modify recoverability of damages frequently been held this court to be applicable yet (See, Tulley to cases not tried. v. Tranor e.g. (1878) 274; 53 Cal. Feckenscher (1938) v. Gamble P.2d [85 885]; Stоut Turney (1978) Cal.3d 718 586 P.2d [150 therefore, 1228].)1Contrary if majority’s may to the assumption, anything reasonably (which be inferred from the Act’s I do not strongly silence advocate, inasmuch as the evidence of intent is that the Act controlling) should apply yet to all cases tried. retrospectively
Nor does Bolen v. Woo Cal.Rptr. 454], 96 Cal.App.3d closely “decision most majority, according suggest point” otherwise. The issue in Civil that case an amendment to the was whether (§ 3333.1) Code rule source” in actions abrogated the “collateral health care against retroactively. The Bolen court noted providers applied that prior Counsel passage legislation, rendered Legislative opinion which counseled that the fall within the proscription statute “would course, damages actually change plaintiffs does not the amount of awarded, damages merely among but modifies the allocation of noneconomic tortfea Thus, sors. change damages it constitutes less so as than modification measure reduce the amount recoverable. *39 Thus, . at p.958.) . . against (96 Cal.App.3d retroactive . Bolen . . the retroactivity . . . with . . “[ajrmed opinion counsel’s concluded, be sufficient Legislature’s the silence could considered court (Id. 959.) at p. its intent that the statute should apply prospectively. proof of mere legislative for the The reliance on Bolen majority’s proposition is clearly triggers misplaced. silence the presumption prospectivity Purpose 2. Retroactive Intent and Remedial gov- presumption prospectivity
Based on mistaken notion that concludes contrary, majority erns declaration to the express absent other sources. validly that a intent be inferred from retroactive However, held consistently contrary. We have law is precisely after, all “only factors, applies considering pertinent that the presumption re (In intent.” legislative is determined that it is to ascertain the impossible Estrada, recently As we reaffirmed supra, added.) Cal.2d at italics p. Alexis, variety may be in Fox v. a “wide of factors 38 Cal.3d a new relevant to our to intended Legislature effort determine whether its legislation, statute be The of the given retroactive intent. context remedied, objective, history to be and of legislation evils of the times subject, the same construction upon public policy, contemporaneous may all indicate the Two factors (Id. 629.) purpose.” relevance here times” “history are the of the particular perceived “evils remedied” the Act. laudably
The 51 with a majority its discussion of prefaces Proposition 1196-1199.) “brief historical perspective.” (Majority opn. per- at pp. however, entirely consists almost decisions spective provided, is, curiously, this court. There no of the context almost mention dramatic “liability of the Proposition adopted, conceived so-called interests, crisis” the pitched among or battle business government agenciеs, insurers, and or consumer advocates over the of the crisis origins perceived efficacy it; increasingly 51 to alleviate no mention of common multimillion dollar tort of the judgments alleged inequities or the rule saddled and other institutions “deep-pocket” public agencies beyond fault; far damages prohibitive their no proportion mention from insurance and entities premiums had forced numerous persons centers, day-care doctors to municipal corporations corporate giants, mention, business; “bare” go finally, either or out of and no go to 38 overwhelming percent electorate’s a vote of 62 approval, percent, crisis, the Fair designed mitigate Respon- tort-reform measure this sibility Act of 51. merely
An awareness of historical context illuminates more than law, text the Act Act; it the letter of the as well. The spirit of the clarifies *40 begins unusually “Findings statement of and forthright Declaration The Purpose.” findings: “(a) Act sets forth three The legal specific rule’, doctrine of joint liability, and several known as the ‘deep pocket also has in a system resulted and has threatened finan- inequity injustice that cial governments, of local other bankruptcy agencies, private individ- public uals and businesses has in goods and resulted for and services higher prices and in . . public (b) taxes to the . Under higher taxpayers, ffl] and liability, several if to even a [‘deep are found share pocket defendants’] fault, fraction they financially often held for all damage. are liable The alike—ultimately and People—taxpayers pay consumers for these law- taxes, in suits the form of higher premi- and insurance higher prices higher [j[] ums. Local (c) governments have been forced to some essential curtail fire and other costs of police, protections soaring because of the lawsuits and insurance premiums.”
In light of these the Act that findings, declares its express explicitly is “to purpose remedy these defendants “liable in inequities” by holding closer proportion to their fault. treat is unfair degree differently To them and Act inequitable.” “further that reforms in the declare[s] laws tort actions necessary are and to catastrophic avoid econom- proper ic for consequences state and as governmental private local bodies well as individuals and businesses.”
Thus, it is clear from as well as from the plain language Act crisis, context which it adopted, 51 was conceived Proposition “ and dedicated that the rule’ has resulted in proposition ‘deep pocket system of inequity injustice.” Its were no less than goals express ” avert bankruptcy, to “avoid economic catastrophic conse- “financial quences,” “higher to stave off taxes” and and to “higherprices,” preserve “essential” services. public
In light of these remedial the inference express virtually purposes, inescapable that the electorate intended 51 to as soon Proposition broadly аs as When possible. system the electorate voted to reform a per- ceived as “inequitable and unjust,” they obviously change voted to now, system not five ten years or when of action that accrued prior causes finally they come to trial. When voted avert “financial bankruptcy” “catastrophic consequences,” “high- economic stave off taxes,” “services,” er . . . and prices and to higher public essential preserve relief, they clearly voted for immediate five ten years reform gradual now, down the Aline. crisis does not calls for call action. It action future board, action across action as as broad and Con- comprehensive stitution will allow. It is clear 51 will purposes *41 its effective to prior all cases not tried only if it is to fully applied served date. When legisla- inference. such an compels
The law not but permits, penalty a less severe or to remedy impose seeks to an existing inequity tion law, held that the have long the courts of this state than under the former to matters apply have that the statute should body must intended enacting expression classic This found concept that occurred to its enactment. prior Estrada, held, 740, notwithstanding 63 we in In re Cal.2d where stat- amendatory an retroactivity, that when statutory presumption against judg- final date of becomes effective lessening prior ute punishment ment, when than the statute effect the amendment rather applies amendment in 744-745.) question (Id. act occurred. at prohibited pp. was former punishment determination that the had indicated Therefore, reasoned, must have intended we the Legislature too severe. constitutionally could every case to which it the new statute should to apply was Legislature be to conclude that the for “to hold otherwise would apply, contrary to civilized objective a desire an vengeance,” motivated for 64 745; (1966) v. Durbin justice. (Id. standards of at accord People 474, 657, (1969) 413 P.2d Holder v. Court 433]; Superior 479 Cal.Rptr. [50 853].) 269 316-317 Cal.App.2d Cal.Rptr. [74 remedy to designed The courts similar to statutes reasoning . . . in the civil law. “In the of remedial statutes construction inequities which the statute was always must be had for the evident for regard purpose transactions, enacted, as well and if the reason of the statute extends to past future, . . . .” v. Stone (Abrams those in the then it will be so applied as to added; Coast 42 accord 453], 154 P.2d italics (1957) Cal.App.2d [315 30].) v. Holmes (1971) Cal.Rptr. Bank Cal.App.3d [97 (1974) In Harrison v. Workmen’s Bd. Comp.Appeals For example, an amendment 508], the court held that Cal.Rptr. Cal.App.3d [118 five years employer Labor Code which a cutoff date of provided injuries claims of occupational injury applied retrospectively exposure “pro After reviewing to the amendment’s effective date. incurred law, morass,” former delays and attendant expense upon cedural retrospec required that the remedial of the law purpose court concluded in the statute notwithstanding language tive the absеnce designed was legislation such an intent: amended manifesting “[T]he morass which ameliorating procedural for the purpose introduced Thus, is clear that the cases. has faced the board defendant multiple situation which remedy amendment was to immediate purpose of disabled litigants upon delay upon hardship undue imposing expense unless will legislation . . object . employees effectuated \T\he well as board is permitted retrospectively amendment prospectively. that it it be Legislature We conclude was the intent 205-206, so applied.” added.) italics (Id. pp. County
Like reasoning supported City also the decision of Sausalito Marin held 843], where the court Cal.App.3d that an amendment which relaxed Government Code the procedural *42 standards “It rea applied retroactively. local governing zoning proceedings sonably the section 65801 appears Legislature that enacted as a curative statute judicial for the of decisions which purpose terminating recurrence had invalidated technical omis zoning local proceedings procedural sions. be the fully This would served purpose [Citations.] if section were . . regardless offending . whether the applied procedural omission 557- the enactment.” (Id. occurred section’s at pp. after before 558, italics added.)
In Andrus v. Court Cal.App.3d Municipal 341], statutory the right issue was whether an the repealed amendment to chal appeal extraordinary from an writ the court superior proceeding court, an lenging action in to the municipal appeals the filed before effective date of was language of the amendment legislation. Though intent, silent as to goal the court concluded that the “obvious of the amend ” ment . . . logic at italics suggests (Id. retroactive application. p. statute, noted, added.) The former the court broader provided appellate review of matters in court than relatively municipal trivial was accorded Therefore, an accused in deny court. retroactive superior applica “[t]o amendment,” concluded, tion to the the court “is to subscribe to notion that the Legislature to a postpone procedural loophole desired the demise of which was inequitable offenses, more serious accused [and] defendants .... placed unnecessary and redundant courts. appellate burdens on We absurd.” italics proposition (Id. added.) at p. find is, therefore, It fairly holds that a prosaic retrospective a rule which intent may be inferred from a remedial compelling purpose. specific The is case. question justified before us whether such an inference this earlier, As noted with the intent to express designed . . “remedy joint liability, . in the and several rule inequities” existing inequities which harm to the weal. grave threatened and imminent public Indeed, declared, such cata “necessary,” reform was the Act “to avoid strophic consequences economic for state and local bodies as governmental well as If private added.) individuals and businesses.” this was not (Italics language (Andrus “the Mu logic application” evocative of of retroactive Court, nicipal 1046), then Cal.App.3d nothing is. to post- infer intent To retroactive Act would deny as inequi- drafters condemned expressly a rule which its pone repeal Indeed, that rule infer an intent unjust. perpetuate table and it would the Act’s effective that accrued thousands of actions potentially liability, it would infer that system date. of a fair and Instead uniform a would drafters a where courts system justice, intended dual defendants, to one set of reformed rule of and several discredited, find that patently rule to another. I inequitable proposition unjust. untenable as well as
Nevertheless, retroactive intent majority insists inferred remedial purpose. from clear statement compelling reason, . . . are changes is that according majority, “[m]ost . . “almost intended . about a fairer state of affairs” and therefore bring *43 statutory all and initiative measures would provisions apply Furthermore, rather than at prospectively.” (Majority opn. p. 1213.) asserts, nearly majority rejected years ago a similar argument this court in Aetna Surety Cas. & Co. Ind. Acc. Com. 30 Cal.2d scrutiny. P.2d Neither of these contentions withstands 159].
Aetna Code retroactivity concerned the of an amendment to Labor that compensation increased workers’ benefits. In of support retrospective law, mandate application injured workers relied “liberally of provisions the Workers’ Act are Compensation Code, injured (Lab. 3203.) construed” to extend their benefits to workers. § however, rejected We argument, workers’ holding retrospective intent could not be remedial from the mere fact that the statute is “implied subject and The (30 p. 395.) rule of liberal construction.” Cal.2d doctrine “liberal we construction” and the presumption prospectivity, noted, construction, merely most were two and would be a canons of “[i]t observed, one such peculiar judicial reasoning,” we “which would allow doctrine to be for the other.” Cal.2d destroying (30 invoked purpose at p. 395.)
Aetna one canon general therefore stands for the simple proposition “liberally” are to be (that construction workers’ compensation provisions construed) (that presumed apply does not another statutes are supersede The no to Aetna. Here the case at bar bears resemblance prospectively). unre- evidence to remedial consists not of abstract relating principles intent issue, lated to the statute at of clear and unmistakable statements but itself, Act and indications remedial in the of similar particular purposes cited history previously in the The cases and authorities implicit Act. not remedial but demand that we examine these permit, expressions may for whatever clues on the retroactivi- purpose they provide question Aetna, ty, otherwise. nothing indicates There equally majority’s is little merit to the that the Act’s assertion remedial are purposes many irrelevant because statutes could be described as “remedial.” The argument powerless weigh that courts are suggests case, value of the in each probative evidence remedial purpose decide whether inference retrospective reasonably logically intent Indeed, follows. that is the sort of courts precisely perform function which daily.
Moreover, remedial; merely remedy here it was to purpose whether, crisis. The before us is from reason- question that purpose, ably be inferred that the Act should to all cases not tried to its prior effective date. evidence and our demon- overwhelmingly decisions strate that the “yes.” answer to that question 3. The Fairness Issue
A. The Insurance “Windfall”
I am
troubled
greatly
by majority’s
concern that
apparent
of the Act to cases untried on the Act’s effective date would result in an
“windfall”
they
unwarranted
to insurance companies
computed
because
their
pre-Proposition
on the basis of the former rule of unlim
premiums
*44
joint
ited
and several
is in
In Li v.
liability. A little
here
order.
perspective
Cab,
804,
Yellow
supra, Cal. 3d
this
the traditional all-or-
abrogated
court
doctrine of
in its
nothing
contributory negligence and
a rule
adopted
place
later,
years
Motorcycle
A
comparative negligence.
few
in American
Assn.
182,
v.
Court
Superior
899],
Consistency and to would impartiality appear of a companies that this to insurance consequences court view fiscal the same cool detachment retrospective application all, Motorcycle. manifested Li after it scadAmerican in the tort designed remedy injustices existing also certain perceived results in a “windfall” to liability system. If a application retrospective insurers, justice of a application what of it? Where the and retroactive logic holding is I no basis for otherwise compelling, perceive principled contrary industry might insurance benefit. because the simply
Indeed, if will majority’s retroactive result assertion is savings (the premised speculation, insurers correct contention evidence), not on hard militate in favor rather than appear it would discussed, against retroactivity. As one of the previously goals Proposi- tion 51 was to slow the defendants holding insurance-premium spiral only liable for noneconomic damages percentage their proportion As set findings, fault. forth the Act’s the so-called insurance crisis “threatened higher financial of local . . . governments prices bankruptcy goods services to the taxes to To higher taxpayers.” public extent that the Act results in smaller than insur- exposure less payouts ance companies might otherwise serves anticipated, further these goals.
The thus majority’s largely inflated concern with insurance “windfalls” is however, does, underly- bias misguided. That concern the unstated expose the in the is the ing majority’s opinion. majority’s analysis assump- Implicit essentially designed tion that bill to Proposition was a private-interest offer aid and defendants; comfort to the broader its there- scope, corporate fore, However, greater if to prejudice judge we were plaintiffs. there no strictly before us fairness to question plaintiffs, a standard of retroactivity. doubt that The the balance would fall on the side of squarely exclusively Act’s statement of clear its not findings purpose makes that Ultimately, or even to aid it is plaintiffs, insurance principally companies. insurers, judgments. to pay who suffer when tortfeasors lack insurance whole, which suffers community industry, It is the as a not the insurance day-care they when centers afford insurance. must close because cannot Act, interests, sure, but enacted it. People Parochial to be supported Their deserves an decision social and application equal pressing economic concerns which it. inspired
B. “Reliance” The Issue course,
Of in response to all of the militate in favor of arguments that may one that retroactivity, justly recall one is another party’s gain party’s remedy loss. purported existing joint- in “inequity” and-several doctrine the rule as it to noneconomic abrogating damages. Though Act no limit on of noneconomic placed the amount awarded, damages plaintiffs that could be to full right restricted plaintiffs’ such recovery damages recovery in instances by allowing some as to damages those from their fault. proportion defendants may Courts whether properly consider of a retrospective application statute affect rights, substantially would substantial alter rules on which have relied. parties detrimentally (Hoffman v. Board Retirement (1986) 42 Cal.3d 511].)2 724 P.2d question therefore, is presented, whether an Act to all cases not application of the would, asserts, tried to its effective prior majority unfairly date as the of “a deprive plaintiffs legal reasonably doctrine on which have [they] relied in their conducting legal (Majori- affairs the new enactment.” ty at opn. p. 1194.)
The majority concludes that an to cases not tried Act before its effective date would who “acted reliance on the place persons old law in a worse law.” position litigants (Majority than under the new 1215.) at Two opn. such reliance are examples suggested. detrimental First, majority action arose before opines whose causes of plaintiffs 51 “will often reasonably preexisting joint have relied on the several doctrine in tortfeasors to sue deciding potential Thus, and which not to sue.” (Majority majority opn. p. 1215.) rule, suggests reliance on the old and several attor- plaintiffs’ neys “often” refrained from suit liable filing against potentially defendants in order to save their clients service of process. the “added expense” (Majority opn. at p. 1215.) 2Indeed, long distinguish rights attempted courts statutes that affect “substantive” merely “procedural” rights determining propriety retrospec from those affect *46 Stone, (See, 41; operation. e.g. supra, Cal.App.2d p. tive Abrams v. at Coast Bank v. 154 33
Holmes, 593-594.) suggested supra, Cal.App.3d pp. 19 at that statutes Some courts have even only “procedural" applied which affect not be as when matters should defined “retroactive” Holmes, (See, e.g. supra, to events v. that occurred to their effective date. Coast Bank 19 593-594; Cal.App.3d pp. Ry. (1935) 2 Cal.2d at Morris v. Electric Co. 768 [43 Pacific observes, however, 276].) majority long rejected correctly P.2d As the has since this court Com., (See Surety such a distinction. Aetna Cas. 30 Cal.2d at & Co. Ind. Acc. (Id. 394.) pp. 394-395.) p. The critical issue is not form of the statute its “effects.” at but number of any substantial There no evidence that this occurred is usually sue teaches that contrary, general plaintiffs cases. On the experience Indeed, most cases the former everyone might damages. be liable for who many to name as joint rule of and encouraged plaintiffs several from be recovered judgment as because the entire could possible defendants event, defendant, unlikely liable. In the minimally one no matter how however, from a actually a omitted potentially liable defendant rule, a tactical constituted obviously in reliance on the former it complaint old rule that was decision of a by plaintiff advantage part take defendants, liable, entirely part unfair to marginally deep-pocket very remedy. unfairness was intended Proposition majority
The other “reliance” factor cited concerns settlements. “may fre- majority cases suggests plaintiffs pre-Proposition they than would have settled some for a lesser sum quently with defendants only have if they remaining were aware that the defendants would accepted 1216.) A severally (Majority liable for noneconomic at damages.” opn. first, contention, thought moment’s reveals that this like the contains far less eye. than meets the
First, the In a argument again runs counter to common case experience. solvency, rarely defendants of multiple varying plaintiffs degrees settle first with the defendants in order to the defend- “deep-pocket” pursue ants who are effectively Where defend- judgment-proof. “deep pocket” first, however, ant does settle less than likely substantially it is to be for worth, the case there recovery since is little likelihood of from substantial remaining defendants. Second, is well exactly to recall what It provides. repeals the joint and several rule i.e. applied damages, pain to noneconomic distress, (Civ. and emotional like. suffering, loss of consortium and the Code, 1431.2, subd. has no (b)(2).) joint It effect whatsoever § common several rule as more tort ex- damages—medical loss of loss or penses, earnings, repair replacement, costs property, Code, 1431.2, loss of subd. employment (Civ. business opportunities. § Thus, on the (b)(1).) whatever reliance a settling plaintiff placed joint liability, largely former rule of and several remains undis- that reliance turbed the enactment 51. rule, it is clear that
Finally, with or without the former several Tech-Bilt, Inc. v. faith settlement since good (at least our decision & Woodward-Clyde Associates
P.2d must fall 159]) within reasonable of the settlor’s range proportionate (Id. liability. share of in Tech- recognized As this court further p. 499.) Bilt, every settlement factors which could reason- involves a multitude of *47 ably propor- the defendant’s impel plaintiff settling to settle less than “ settlement share low
tionate of fault. For ‘a example, disproportionately uninsured, insolvent, and figure relatively is often in the of a reasonable case ” (Id. Stambaugh underinsured, from quoting tortfeasor.’ 843].) v. Superior Court Cal.App.3d less in pay Other factors the a settlor should “recognition include trial,” as the as well settlement than if he liable after a he would were found risk, (Ibid.) of trial. obvious and inconvenience avoidance of costs rule by We do not the former suggest “deep pockets” mean to this that a defendant’s may not have for less than influenced some to settle plaintiffs any such settle To the extent proportionate damages. share of noneconomic estimated range ment was for defendant’s substantially settling less than the however, and should not liability, defendants nonsettling it was unfair to supra, (Tech-Bilt, have been the first place. sаnctioned the trial court Moreover, as one 38 Cal. 3d at former rule is viewed p. 499.) when the out influenced myriad plaintiffs’ that may legitimately of factors have liability, decisions share of to settle for less than a proportionate defendant’s role that question speculative. reliance becomes hopelessly rather decision- joint-and-several the former rule the overall may have played implies. making process certainly majority is far than the significant less In itself studious- light of it is no that the foregoing, majority surprise in this ly ignored holding its argument formulating “reliance” when to any matter. For the Act shall not majority broadly holds that date, regardless “cause of action” that accrued to its effective prior reliance on whether plaintiffs slightest potential manifested even merit, majority former If “reliance” had law. argument minimum, hold, Act surely would its at a have tailored decision to Its failure would be date. inapplicable only to to its effective prior casesfiled to do so and “unfairness” reveals the of its “reliance” makeweight nature arguments. sum, retrospec- I that a am not assertion persuaded majority’s
tive significant in a diminution application of would result contrary, plaintiffs’ rights or law.3On the under the former expectations a whole clear that the of the Act interests purposes public and the yet tried would be Act to cases only by served all its effective date. Co., note, Cab I v. Yellow finally, would of Li that our earlier discussion Court, Motorcycle Superior Cal. Assn. 3d and American retrospective ap say, plaintiffs’ Needless to contention that a we find no merit related plication rights. deprivation in an of vested Act would result unconstitutional
1241 578, directly the issue of fairness parties 20 Cal. also 3d bears supra, majority As acknowl relied on law. might preexisting who Motorcycle of Li and American principles our decision to edges, apply arising out rights expectations affected substantial retrospectively relatively The limited transactions that occurred before those decisions. the same court 51 Yet by Proposition pales comparison. reform effected sweeping changes determined to unhesitatingly apply Li, broad by applica effected be offended when same purports now 51. contained in It is urged tion is for the limited reform puzzlement. Li, notes, 13 majority supra,
It is an as well. as the irony, although, For 804, original 3d much of the harshness of the all-or- Cal. “served reduce rules, joint of the common law nothing common law the retention 578, 20 Motorcycle, several in American Cal.3d liability supra, doctrine” addressed,” nevertheless other “was perpetuated inequities. Proposition observes, to at majority (Majority opn. pp. these remaining problems. 1197-1198.) contributory If the in the rule of com inequities negligence Li, its on set pelled retrospective application notwithstanding impact unlimited surely tled in the rule of expectations, injustice inherent and several 51. broad compеls equally Li, however, otherwise, majority,
The that because arguing concludes 804, 13 Cal.3d was a “the court supra, judicial appropriate decision determine body to whether applied or not the new rule should be retroac- . . . .” The tively at No one otherwise. (Majority opn. p. 1222.) suggests however, court’s Li point, concerns the fairness decision retroactively, power not its to do so. ground also Li on the that “statutes majority attempts distinguish . . . judicial operate retrospectively.” while decisions
operate prospectively, (Majority at This not misstates the rule as opn. p. 1221.) general (the body governs to statutes intent of the enacting interpreta- statutes, tion of not the but distorts the rule presumption prospectivity), decisions, automatically judicial judicial as to For decisions are not well. retroactivity more than stat- governed a mindless “presumption” carefully utes are As this court governed prospectivity. presumption 147, Peterson Court Cal.3d explained (1982) Superior [181 784, retroactivity judicial 642 P.2d Cal.Rptr. 1305], question [of “[T]he (Id. fairness and depends upon public policy.” considerations of decisions] Nest-Kart, Stores, 152; 21 Cal.3d at p. Safeway accord Inc. v. 333; re Marriage Brown issue 164].) P.2d 94 A.L.R.3d As we further explained, such reliance comprehends upon considerations as “extent public *49 rule,” rule,” and the “effect by to be served the new “purpose the former (Id. 152- at pp. of a retroactive justice application.” on the administration 61, 74-75 153; County Isbell v. Sonoma (1978) see also [145 368, & Levy, Cathcart Magana, Olney, 577 P.2d 188]; Neel Cal.Rptr. 837, 176, 421].) P.2d 6 Cal.3d Gelfand fairness, new If purposes considerations of public policy Li, retroactive appli- rule announced in 13 Cal.3d its compelled cation, and others by insurers the extensive reliance notwithstanding placed rule, 51 is the same broad upon surely application the former justify retrospec- indeed which can strange logic here. It is a compelled liability, of civil revolution in the common law tive of a virtual designed of the electorate deny later similar to an enactment yet scope revolution. Perhaps in that selfsame inequities redress certain lingering I cannot. results. differing commentators will be able to reconcile these reasons, Court of I affirm the decision of the For the would foregoing entirety.4 in its Appeal J.,* J., concurred.
Eagleson, (Carl W.), and Anderson Inc., for a Rogers, real Waters & petition interest Van party was denied June 1988. rehearing bar, majori case at Proposition 51 to the 4Because of its conclusion that does by par Appeal briefed
ty does not reach the additional issues decided the Court defendants, ties, meaning relating damages nonjoined apportionment rea Appeal’s well damages Proposition 51. I affirm the Court of “economic” under would among the “uni holding damages apportioned soned that under must be tortfeasors, damages future medical holding include verse” of as well as its that “economic” earnings. expenses and future loss of * Four, District, Justice, assigned Division Presiding Appeal, Appellate Court of First Acting Chairperson the Judicial Council.