*1 damages to the full here with plaintiffs Were the funds they entitled. were which Petitioner, KUSSMAN, Barbara J. several and off to be set re- v. plaintiffs would not only, the portion of dam- compensation for ceive AND OF CITY COUNTY Harmony Homes indi- ages attributable DENVER, Respondent. and to- vidually; the settlement and No. 83SC214. represent gether would award. We of the total portion several Colorado, Supreme of Court of the Act a construction adopt refuse En Banc. that nullifies plaintiffs. in favor of the rendered Sept. 1985. Moreover, explained Kussman Rehearing Denied Oct. 1985. Denver, P.2d County City and (Colo.1985), designed the Act is 781-782 settlement, encourage even when settle paying may result proportionate more than Shops, Inc. v. Sobik’s Sandwich ee S (Fla.App.
Davis, 711-12 371 So.2d Klein,
1979); Mass. Bishop (1980); Uniform Con 1371-72
N.E.2d Com
tribution Comment, 12 U.L.A.
missioners’
(1975). Here, deducting the settlement joint and several
amount from the discourage settlement:
alone would settle, aware that the
tiffs would refuse re applied
settlement amount would damages recoverable from the
duce the
remaining tortfeasor.4 Act are policies
We believe interpreting the “claim
best served comprise other tortfeasors” to
against the circumstanc- case.
es of this be deducted
settlement amount should $67,037 judgment.
from the entire and case remanded to
Judgment reversed to rein- court of with directions judgment.
state the district court nonsettling paying policies fully either less or Although 4. subordinate to the promoting compensating ments, rata shares of the and more than equitable liability. distribution meth- In contrast to the setoff several purposes remains one of adopted by the district court court ods normally should be considered in the Act and appor- appeals, method of setoff—the a third Kussman, any inquiry kind. See at 778- of this between the indi- of settlement funds tionment purpose of this consideration liabilities —does vidual and and several present inquiry does not advance upon equitable have a foreseeable effect upon Depending the amount of settle- case. distribution However, ment, liability, and the individual the amount of supra, explained in note degree case, assigned parties in the of fault history precluded by method of setoff is appeals’ method and the both the court of purposes of the Act. result in district court's method of setoff could *2 Martin, Gregory E. Snyder, Martin & Boulder, and Halperin, Debra A. Dominick Boulder, Halperin, petitioner. & Stephen Kaplan, City Atty., H. Denver Mangino, Denver, Carl R. City Atty., Asst. respondent. Denver, Aisenberg, Bennett S. for ami- Lawyers cus curiae Colorado Trial Ass’n. Laugesen, Denver, Richard W. amicus curiae.
DUBOFSKY, Justice. granted We certiorari Kussman v. Denver, City County P.2d 1000 (Colo.App.1983),to consider whether feasor found liable for less than the full plaintiff’s damages amount of the enti- tled to have deducted from its in settlement to the responsible another tortfeasor injury. same The court of held that the Uniform Contribution Tort- -106, (Act), feasors Act 13-50.5-101 to §§ (1984 Supp.), requires a deduction C.R.S. disagree for the settlement amount. We and reverse.
I.
18, 1977,
September
On
van collided with a fire truck owned
County
(city)
of Denver
at an
intersection in Denver. At the time of
collision,
driving
plain-
Janna
was
Kuss-
plaintiff,
and the
Barbara
tiff’s van
man,
passenger in the van. The
was a
against the
plaintiff commenced an action
Court, alleging that
city in Denver District
in the collision
injuries
she suffered
negligence of the driv-
were caused
truck,
city was
and that the
er of the fire
doctrine
negligence under the
liable for this
city, in
superior. The
II.
respondeat
answer,
Gray’s neg-
claimed inter alia that
question
this case is whether
ligence
cause of the
sole
and the
“liable
tort for the same
injury,
Gray’s negligence should
injury”
and that
under section
13-50.5-105
a man-
permits
ner that
to set off
plaintiff in
from its
order to de-
Gray paid
in considera-
*3
city
joined Gray
feat her claim. The
also
tion for
covenant not to sue. Section
defendant,
third-party
alleging
a
that it
provides:
13-50.5-105
$2,055
had suffered
in
as a result
(1)
a
or
When
release
a covenant not
Gray’s negligence.1
to sue or
enforce
trial,
During
plaintiff gave Gray
a
given
good
in
faith to one of two or more
exchange
pay-
in
covenant not to sue
for a
persons
injury
liable
tort for the same
$35,000.
jury
The
found that the
wrongful
or the same
death:
city
responsible for the
was
accident
51%
(a)
discharge any
It does not
of the
13-21-111,
Gray
and
See section
49%.
other tortfeasors from
(1973
Supp.).
jury
& 1984
The
also
C.R.S.
injury wrongful
or
death unless its terms
imputed Gray’s negligence
plaintiff
provide;
so
but
reduces the claim
plaintiff
because the
owned the car in
against the others to
any
the extent of
passenger.
which she was a
See Moore v.
stipulated by
amount
or
release
Skiles,
(1954).2
130 Colo.
though judgment has city argues The that this conclusion is them. against all or because, incorrect had joined been exists of contribution defendant original favor of tortfeasor who has suit, Gray would have been liable for 49% pro more than his rata share of the $78,048 city. Under liability, recovery common and his total hypothesis, fig- paid by him in is limited ure, if deducted from the excess of his rata share. No city, windfall, would not be a but rather compelled feasor is to make contribution represent share, as a defend- beyond pro rata share of the his own ant, entire urges the following analysis: If Gray had *4 joined defendant, been as a city the and “pro damages assigned The rata share” of Gray jointly would have been severally and equal degree to each tortfeasor is to the $153,000 liable for the full in damages. assigned by fault jury. to the tortfeasor the However, city the still would have been 13-50.5-103.3 The Act’s aim is to ensure § impute to Gray’s negligence able to the compelled that no tortfeasor is more time, At Gray the same would appropriate damages than its share of the not have been able to do so because a degree as measured of fault as- driver impute cannot his own signed jury. it Where a tort- passenger-owner pas- as a defense to the share, pays feasor more than its it is enti- senger’s against negli- claim the driver for tled to contribution from other tortfeasors gence. Price, Sommermeyer v. 198 Colo. payment. to the extent of excess Section 548, 552, (1979). 138-39 13-50.5-105, providing for reduction of the Therefore, contends, city city judgment against entered jointly have been severally and liable with paid the extent of the settlement amount Gray damages only, of the released, by tortfeasors who have been fur- Gray, impute while negli- unable to her by ensuring thers this aim that a tortfeasor gence plaintiff, individually would be who has not settled will not the full bear liable for the remainder of the damages simply burden of because another city Because the thus would have been tortfeasor has settled. See Uniform Con- $78,048, judg- 51% tribution Tortfeasors Act Com- amount, against ment it for the entire ac- Comment, missioners’ 12 U.L.A. 99. cording city, payment would force city’s] pro “more than rata share of [the view, policy equi In our the Act’s liability” the common and entitle it to con- distributing damages tably is best served Gray under section tribution 13-50.5- deducting in this case the amount 102(2). city The concludes that because it judg paid by Gray in settlement from the eligible would be for contribution from against city. city was found joined defendant, had she been as a at fault and was rendered 51% eligible Gray’s here to deduct settlement against plaintiff’s it for of the dam 51% amount from the against it. Deducting Gray’s figure ages. reject We argument. from the rendered It is true that city’s liability 13-50.5-102(2) section city would reduce the below states that a tort- themselves, among provides: each bution 3. Section 13-50.5-103 injured person severally for the liable to the disproportion there is a of fault When tortfeasors, injury law. degrees whole as at common of fault the relative July ch. of the mining tortfeasors shall be used in deter- also Act of pro solely shares for the their rata Colo.Sess.Laws 575. purpose determining rights contri- paid feasor has “pro (1973) (same). who more than his Here, city, tak- liability” rata share of the common may ing advantage negli- recover contributions from the gence law, other tort- 13-21-111, section defended it- feasors for the amount in excess of by imputing self Gray’s negligence to the pro rata share. city’s plaintiff; result, as a damages could not be plaintiff’s injury was divided into two inde- liability” viewed as a “common pendent components: the city’s liability and within the meaning of section plaintiff’s liability. Once the liability 13-50.5-102(2), even under analysis according divided judg- fault and urged by city. The term “common ment rendered for no more liability” interpreted must be in light of the than independent its portion final 13-50.5-102(2): sentence of section plaintiff, predicate for contribu- “No compelled tortfeasor is to make contri- tion—a several for the en- beyond bution his own rata share of tire resulting ” liability. (emphasis entire supplied). injury words, erased. other —was city’s pro rata share of the entire liabil- city escape cannot and several lia- 51%, ity was which was more than bility for the entire here claim- pro rata share of 49% ing that the liability may properly appor- 13-50.5-102(2), under section tioned itself, between the Gray could not have required been to con- at the same time claim indepen- city’s anything towards 51% tribute dent of liability attributable to the *5 discharged, damages she had of once share city a “joint remains and several liability” pay- or direct through either contribution purposes for of contribution. This conclu- her own share of plaintiff, ment to the 49% sion is consonant with very premise the of damages. the entire the equity compels Act—that contribution
only where a tortfeasor is held liable for
more than its fair share
of
Uni-
Moreover,
in
language
other
the
form
Among
Contribution
Act,
Tortfeasors
propor
Act
us that a tortfeasor’s
convinces
Note,
Commissioners’ Prefatory
12 U.L.A.
liability
tionate share of
cannot be con
liability” where,
sidered a “common
as
here,
that share of
has
sev
been
addition,
not deducting the settlement
liability arising
ered from the entire
from amount
from the
here comports
plaintiff’s injury.
liability”
the
A “common
goals
of the Act other than
eq
giving
right
rise to a
of contribution exists uitable distribution
damages
of
among tort-
only
“jointly
when tortfeasors are
or sever
First,
Act,
feasors.
under the
ally
injury.”
tort for the same
retained;
several liability is
each tortfeasor
13-50.5-102(1).
phrase
This latter
de
§
damages
remains liable for all
incurred
notes a
each
situation which
tortfeasor
plaintiff
to the extent that other tort-
damages
held
be
liable for
feasors are insolvent or judgment-proof.
arising
single injury.
from a
Miller v.
13-50.5-103;
Union,
National
§
Farmers
112,
(1955);
Singer, 131
reduced sue, by an covenant not to
the release or settlement, light policies, in the whichever stated Act’s we amount settling 13-50.5-105. Combined hold that a greater. nonsettling and a tort- joint and several liabili- the retention feasor are inju “liable in tort for the same rule, means that nonset- ty provision ry” within the meaning of section 13-50.5- may tling be forced to bear when is rendered attribut- more than the nonsettling for an degree relative of fault. able to their greater proportionate amount than its share of as measured its de Despite potential inequitable for an gree of fault. Where a tortfeasor is found result, currently 13-50.5-105 as it section for an propor amount excess of its encourage exists formulated to damages, tionate share deduct According ments. to the Commissioners’ paid by the settlement amount another 4 of the Comment section liability up tortfeasor from its judg unwilling proved had to settle ment proportionate amount excess of its they under the 1939 Act because had no share of judg where way knowing in advance the exact ment is rendered a tortfeasor for “pro they rata share” were proportionate no more than its giving up. 12 99. At the U.L.A. at same .liability, eligible it is not for deduction of time, reluctant to settle if tortfeasors were the settlement judgment. amount from the provided the reduction the release of Therefore, appeals the court of erred in amount, they the claim in a fixed for then deducting paid by Gray the amount in set exposed remained under the 1939 Act to judgment against tlement from the contribution in an uncertain city. amount. deeming Id. the en- couragement of settlements to be a more Judgment reversed and case remanded to important public policy equitable than the court of with directions to rein- distribution of among tortfeasors, losses judgment. the district court state the Commissioners amended the Act into 100; its current form. Id. at Sobik’s Sand NEIGHBORS, J., concurs, specially Davis, Shops,
wich Inc. v. 371 So.2d ERICKSON, J., joins special concur- 711-12 (Fla.App.1979); Klein, Bishop v. *7 rence. 285, 380 1365, Mass. 402 N.E.2d 137 1 (1980); see also Davis v. Flatiron Materi KIRSHBAUM, J., participate. does not Co., 65, 71, 28, als 182 Colo. 511 P.2d 32 (1973)(Colorado public policy favors settle Justice, NEIGHBORS, specially concur- provided they reached). ments are fairly ring: deducting
Not
the settlement amount
I
of the court.
concur
city pro-
judgment against
the
separately
express my
I
write
goal
encouraging
regarding
applicability
motes the Act’s
the
views
If
knew that
set-
ments.
Uniform Contribution
(Act),
-106,
deducted from Act
13-50.5-101 to
6
tlement reached would be
sections
(1984
proportionate
plain-
Supp.),
to this case and Perl
share owed
C.R.S.
tortfeasor,
(Colo.
Blessing,
mutter v.
by
tiff
another
783
Co.,
Marine Casualty Insurance
658 P.2d
(Colo.1983);
863
Baker,
Price v.
143 Colo.
premise
that
begins
My analysis
264,
(1959)
352
(common
P.2d 90
law rule
permit
is to
of the Act
purpose
that release of
all).
one
Third,
releases
of a claimant’s
equitable apportionment
Act codifies the Colorado principle that mo-
among
joint
nies
received
the claimant from joint
to cause
combined
those
whose conduct
tortfeasor in return for a covenant not to
(1984
13-50-105, 6 C.R.S.
§
sue or execute against that tortfeasor must
Mix,
v.
Mobile
Inc.
Supp.).
Mountain
See
be credited against the damages assessed
(the
(Colo.1983)
888,
P.2d
Gifford, 660
889
non-settling
tortfeasors.1
equitable apportion
“provides
Act
13-50.5-105,
6 C.R.S.
§
ac
damages among ment of
also
v.
Cox
Pearl
Investment
fault”), and
degrees of
cording to relative
67,
Colo.
(1969).
n
784 which the Gray’s negligence negligent
der the Act after was claimant herself imputed having party’s negli to the The other side of rather than a third gence imputed the coin is whether Kussman can assume I to her. know of no au the status of a tortfeasor after the thority adopts which the rule that a claim imputed negligence doctrine of was in- ant can be characterized aas tort- City. voked concerning feasor with others the claim logical ant’s extensión of only against the brought suit Kussman holding permit a such a claimant to turn, third-party filed a City, in City. The sue himself or herself. This extension alleged Gray which complaint against contrary generally accept would be to the imputed negligence should be that plaintiff’s ed negligence notion that a .re Hence, chose when Kussman. lates ato failure to use reasonable concerning the issues to submit to protection, care for his or her own while a imputation Gray’s negligence negligence defendant’s relates to a lack of Kussman, it elected negligence safety such care for the of others. Ameri circumstances, a remedy. In these Motorcycle Superior can Association v. advantage of a take may either Court, Cal.Rptr. 20 Cal.3d imputation or theory of legal and factual (1978)(“[I]nsofar as the 578 P.2d for the settlement claim a credit tiff’s conduct creates a risk of self-in 13-50.5-105, 6 C.R.S. section conduct, jury, negli such unlike that aof negli- path, the Having the former chosen defendant, gent tortious.”). Id., is not to Kussman. imputed gence Prosser, P.2d at 906. W. The Law Torts (4th ed.1971). pre- principle While the has never been court, cisely it is articulated this clear recognized At least one court has that a can never comparative negligence involving issue im- regard feasor with own puted negligence. Morgan, Laubach v. Frackelton, damage claim. 662 P.2d (Okla.1978), court noted: (“It only necessary at 1063 that ‘two or persons jointly severally more become or problems We do not deal here with such injury person the same liable in tort for liability, or vicarious where ”) added); property.’ (emphasis or Moun- negligence of or more tortfeasors is two (“Histori- at 889 tain Mobile unit, treated as a so that so far as the lia- cally, the doctrine comparative negligence doctrine is con- obligation dam- bility places the full cerned, it is the same as if only one every ages on each defendant.... defendant is involved. rule.”) (em- retain this opted to [The Act] added); Singer, Miller v. Colo. phasis Id. 1074 n. 13 (emphasis added). Thus, (“[A]ll P.2d negligence in an imputed man- actively participate those who negligence relationship ought to be treated jointly of a tort are ner in the commission unit, as a they whether therefor_”). severally defendants, purposes
negligence. This view is consistent with imputing Gray’s negligence The effect of negligence combined of defendants rule apportion percent contributory neg- is to adopted by this court in Mountain Mobile ligence percent negli- to Kussman and 51 Mix, 660 (Colo.1983). P.2d 883 The obser- tortfeasor, gence City. vation of the court Laubach leads me to Any interpretation other of the facts and conclude that the Act has application no compara- the law the doctrine of confuses because, this case as a result of the “unit” tive rule, with that of contribution. only one Here, defendant is involved. The net result is no different than case instead of imputation doctrine applying *9 defendants, City elected to majority’s between conclusion that the amount third-party application between a seek its of the settlement should be deducted from the trial and the When defendant total negligence Kuss- imputed Gray’s
court
man, Gray’s negligence
blush,
became that of
At first
the result in Perlmutter
appears
case,
Kussman.
to be unfair. Such is not the
judgment against Harmony
however. The
money
much
Kuss-
dispute
over how
$67,037.
amount, $44,-
Homes was
Of that
pay
man is entitled to receive and who shall
in damages
joint
were assessed as the
simply. The
percentage
what
is answered
liability against
joint
and several
all of the
inquiry
is resolved
a consideration of
Accordingly,
tortfeasors.
the claimants
negligence.
principles
of
pursued
could have
efforts to collect the
percent
Kussman is deemed 49
at fault.
$44,427judgment
just
joint
one of the
may only
up
she
receive
to 51 tortfeasors.
If one of those tortfeasors
fixed
percent of the
joint
judgment,
recog-
City,
defendant
remedy
tortfeasor would have no
negligence.
imputation
nized after
The against his fellow tortfeasors absent the
than 51
City cannot be forced to
more
Act. Mountain Mobile
660 P.2d at
damages;
percent of the total
not because 889; Frackelton,
Here,
In contrast I believe the applies agree Perlmutter and I