RITTENHOUSE v ERHART JACKSON v BARTON-MALOW COMPANY GAGNON v DRESSER INDUSTRIES, INC
Docket Nos. 72074, 73659, 72596
424 MICH 166
Decided December 30, 1985
Released January 8, 1986
Argued January 10, 1985 (Calendar Nos. 19-21). Rehearings denied in Jackson, post, 1205, and in Gagnon, post, 1206.
REFERENCES FOR POINTS IN HEADNOTES
[1] Am Jur 2d, Negligence § 435. Validity and effect of agreement with one cotortfeasor setting aside his maximum liability and providing for reduction or extinguishment thereof relative to recovery against nonagreeing cotortfeasor. 65 ALR3d 602.
[2] Am Jur 2d, Negligence §§ 447, 448. Effect of plaintiff‘s comparative negligence in reducing punitive damages recoverable. 27 ALR4th 318.
[3, 5] Am Jur 2d, Interest and Usury §§ 87 et seq. Date from which interest on judgment starts running, as affected by modification of amount of judgment on appeal. 4 ALR3d 1221.
[4, 6] Am Jur 2d, Negligence §§ 433-437. Apportionment of punitive or exemplary damages as between joint tortfeasors. 20 ALR3d 666. Propriety and effect of jury‘s apportionment of damages as between tortfeasors jointly and severally liable. 46 ALR3d 801.
Michael Jackson brought an action in the Wayne Circuit Court against the Barton-Malow Company and the Barthel Contracting Company, seeking damages for injuries received while working at a construction site. Prior to trial, the plaintiff reached settlement with Barthel. The court, Thomas J. Foley, J., entered judgment on a jury verdict awarding damages, but finding that the plaintiff was comparatively negligent. The court applied the comparative negligence factor to the jury‘s award and then subtracted the amount of the settlement, which resulted in no liability for Barton-Malow. The Court of Appeals, T. M. BURNS, P.J., and CYNAR, J. (MARUTIAK, J., dissenting), reversed, modifying the judgment by first subtracting the amount of the settlement from the jury‘s award and then applying the comparative negligence factor (Docket No. 66012). The defendant appeals.
Michael Gagnon brought an action in the Wayne Circuit Court against Dresser Industries, Inc., and others, seeking damages for injuries received as a result of an industrial accident. The plaintiff reached settlement with all defendants but Dresser. The court, Harold Hood, J., entered judgment on a jury verdict awarding damages, but finding that the plaintiff had been comparatively negligent. The court subtracted the amount of the settlement from the total damages and then applied the comparative negligence factor. The Court of Appeals, GRIBBS, P.J., and BRONSON and BEASLEY, JJ., affirmed in an opinion per curiam (Docket No. 59910). The defendant appeals.
In opinions by Justice BRICKLEY, joined by Chief Justice WILLIAMS and Justice CAVANAGH, and Justice LEVIN concurring in the settlement-comparative negligence issue only; by Justice RILEY, joined by Justice RYAN and by Justice LEVIN concurring in the prejudgment interest issue only; and by Justice BOYLE, concurring with the result reached by Justice RILEY on the
Where settlement is reached before or during trial with one or more tortfeasors, and a verdict is subsequently obtained against the remaining tortfeasors which must be reduced both by the settlement amount and by applying a comparative negligence factor, a court should first subtract the settlement amount and then apply the comparative negligence factor; any percentage of comparative negligence returned by a finder of fact is applicable only to the parties at trial, and not to the other settling tortfeasors. Thus the percentage of the plaintiff‘s comparative negligence should be subtracted only from the part of the judgment to be paid by the defendant, the only other party to the determination of fault.
Prejudgment interest on any judgment recovered in a civil action commences to accrue and should be calculated from the date of the filing of the complaint upon the defendant against whom the judgment has been entered.
- The form of pure comparative negligence adopted in Michigan does not allow a person who is at fault to recover for damages attributable to that fault because damages are reduced in proportion to the contribution of that person‘s negligence. The wrongdoer does not recover to the extent of personal fault, but only to the extent of the fault of others.
- In trials such as these, the focus normally will be on only the conduct of the parties, and, accordingly, the percentages of comparative negligence returned by a jury will represent findings applicable only to the parties. In these cases, each plaintiff commenced an action against multiple defendants. The plaintiffs reached settlement with some of the defendants and went to trial against others. Once settlement was reached, the total damages were no longer at stake for parties to the trial. Rather, the amount remaining in issue at trial was reduced by the settlement amount. Accordingly, by the time of trial, the “claim” of each plaintiff against the nonsettling tortfeasors was an amount equal to the total damages minus the settlement. The percentages of comparative fault returned by the juries in these cases were determined only in relation to the defendants participating at trial; thus, the percentage of each plaintiff‘s comparative negligence should have been subtracted only from the part of the judgment to be paid by the defendant, who was the only other party to the determination of fault.
- Prejudgment interest commences to accrue and should be calculated from the date of the filing of the complaint upon the defendant against whom the judgment has been entered. The
Rittenhouse, affirmed in part and reversed in part.
Jackson and Gagnon, affirmed.
Justice RILEY, joined by Justice RYAN, dissenting on the issue of a joint tortfeasor‘s substantive right to a credit for amounts received by a plaintiff in settlement with other potentially liable joint tortfeasors for the same injury, stated that, commensurate with the principles of comparative negligence as developed through decisions of the Supreme Court and the long-established rules that a tort victim is entitled to only one satisfaction for an indivisible injury and that defendant in tort is entitled to a credit for amounts received by a plaintiff from another tortfeasor in settlement for the same injury, the setoff provision of
Justice BOYLE, concurring in the result reached by Justice RILEY on the issue of settlement setoff computations, stated that a jury is not and should not be permitted to adjust a plaintiff‘s fault on the basis of the fault of an absent defendant. The jury is to determine the plaintiff‘s fault, expressed as a percentage of damages, in bringing about the injuries. In these cases, the plaintiffs’ conduct which contributed to the damages is exactly the same irrespective of the presence or absence of any defendants. It is a constant, is relevant to the injuries, and is not based on the relative fault of all the potential tortfeasors.
Justice BRICKLEY, joined by Chief Justice WILLIAMS and Justice CAVANAGH, dissenting on the issue of the accrual and calculation of prejudgment interest, stated that under
126 Mich App 674; 337 NW2d 626 (1983) affirmed in part and reversed in part.
130 Mich App 452; 344 NW2d 582 (1983) affirmed.
131 Mich App 719; 346 NW2d 591 (1984) affirmed.
OPINION BY BRICKLEY, J.
1. NEGLIGENCE — COMPARATIVE NEGLIGENCE — JUDGMENTS — SETTLEMENTS. Where settlement is reached before or during trial with one or more tortfeasors, and a verdict is subsequently obtained against the remaining tortfeasors which must be reduced both by the settlement amount and by applying a comparative negligence factor, a court should first subtract the settlement amount and then apply the comparative negligence factor (
2. NEGLIGENCE — COMPARATIVE NEGLIGENCE — JUDGMENTS. The percentage of comparative negligence of which a plaintiff is found to be guilty by a finder of fact normally will be applicable only to the parties to an action, and not to other, settling tortfeasors; thus, the percentage should be subtracted only from the part of the judgment to be paid by the defendant, the only other party to the determination of fault (
3. TORTS — JUDGMENTS — INTEREST. Interest on any judgment recovered in a civil action is to be calculated from the date of the filing of the complaint (
OPINION BY RILEY, J.
4. NEGLIGENCE — COMPARATIVE NEGLIGENCE — JUDGMENTS — SETTLEMENTS. In an action involving multiple tortfeasors, a plaintiff‘s comparative negligence should be factored against a gross assessment of
5. TORTS — JUDGMENTS — PREJUDGMENT INTEREST. Prejudgment interest on any judgment recovered in a civil action commences to accrue and should be calculated from the date of the filing of the complaint upon the defendant against whom the judgment has been entered (
OPINION BY BOYLE, J.
6. NEGLIGENCE — COMPARATIVE NEGLIGENCE — MULTIPLE TORTFEASORS. The comparative fault of plaintiffs who brought actions for damages against multiple tortfeasors was exactly the same irrespective of the presence or absence of any defendants at trial; it was a constant, relevant to the damages, and was not based on the relative fault of all the potential tortfeasors.
Zeff, Zeff & Materna (by Michael T. Materna); (Gromek, Bendure & Thomas, by Mark R. Bendure, of counsel) for plaintiff Rittenhouse.
Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw) for plaintiff Jackson.
Kelman, Loria, Downing, Schneider & Simpson (by Nicholas J. Rine) for plaintiff Gagnon.
Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. (by Samuel A. Garzia and James M. Prahler), for defendant North Woodward Mufflers, Inc.
Joselyn, Rowe, Jamieson, Grinnan, Hayes & Feldman, P.C. (by Joseph E. Grinnan), for defendant Barton-Malow Company.
Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by Thomas F. Myers), for defendant Dresser Industries, Inc.
Dickinson, Wright, Moon, Van Dusen & Freeman (by John E. S. Scott and Susan Bieke Neilson) for Michigan Defense Trial Counsel, Inc., and Association of Defense Trial Counsel.
BRICKLEY, J. The common issue in these three consolidated cases is whether, in a tort action in which there is settlement with one or more defendants before trial, and a verdict is subsequently obtained against the remaining defendants which must be reduced both by the settlement amount and a comparative negligence factor, a court should first subtract the settlement amount or the comparative negligence factor. In Rittenhouse, the appellant also contends that the prejudgment interest against it was improperly calculated.
FACTS
The facts leading to this appeal are largely undisputed in each case.
Rittenhouse
Karen Rittenhouse is the daughter of plaintiff Donald Rittenhouse. On the evening of June 14, 1973, Rittenhouse, then a sixteen-year-old high school student, was at home with her boyfriend, seventeen-year-old Kerry Erhart. At approximately 10:00 P.M., they left in Erhart‘s 1969 Chevrolet, saying that they would return soon.
About 7:00 A.M. the following morning, the Erhart family automobile was found parked in a nearby subdivision with the two teenagers inside. The ignition switch was in the “on” position, but the engine was not running. Carbon monoxide poisoning caused the death of Erhart, and Rittenhouse suffered brain injuries from which she has not fully recovered.
Other defendants were also named, but they settled for the combined amount of $395,000 prior to or during trial. At trial the jury found that appellant was negligent and that plaintiff had suffered damages in the amount of $1,500,000. Earl Erhart was not found to have been negligent. The jury also found that plaintiff had been twenty percent comparatively negligent. The trial judge computed prejudgment interest from the date of the filing of the second amended complaint and the amount of judgment in the manner proposed by appellant:
| $1,500,000 | Plaintiff‘s damages |
| - 300,000 | Twenty percent comparative negligence |
| $1,200,000 | |
| - 395,000 | Settlements |
| $ 805,000 | Judgment against appellant |
The Court of Appeals affirmed1 the circuit court‘s judgment, except that it recomputed the amount of the judgment against appellant in the following manner:
| $1,500,000 | Plaintiff‘s damages |
| - 395,000 | Settlements |
| $1,105,000 | |
| - 221,000 | Twenty percent comparative negligence |
| $ 884,000 | Judgment against appellant |
We granted North Woodward‘s application for leave “limited to the following issues: (1) whether the Court of Appeals erred in its method of calculating the judgment amount, and (2) whether the Court of Appeals erred in its determination of the date from which the appellant is to be charged judgment interest.” 418 Mich 955 (1984).
Gagnon
Plaintiff, Michael Gagnon, suffered a broken leg and other complications as a result of an industrial accident on July 26, 1976. Plaintiff filed suit naming several defendants including appellant, Dresser Industries. Settlements totaling $100,000 were made with other defendants, and plaintiff went to trial against Dresser only.
The jury found appellant negligent and that plaintiff had suffered $200,000 worth of damages. It also found, however, that plaintiff was fifty percent comparatively negligent. The trial court entered a judgment on the verdict in the manner proposed by plaintiff:
| $200,000 | Plaintiff‘s damages |
| -100,000 | Settlements |
| $100,000 | |
| - 50,000 | Fifty percent comparative negligence |
| $ 50,000 | Judgment against appellant |
| $200,000 | Plaintiff‘s damages |
| -100,000 | Fifty percent comparative negligence |
| $100,000 | |
| -100,000 | Settlements |
| $ 0 | Judgment against appellant |
In a per curiam opinion, the Court of Appeals affirmed the judgment of the trial court. 131 Mich App 452; 344 NW2d 582 (1983). We, thereafter, granted defendant‘s application for leave to appeal. 419 Mich 917 (1984).
Jackson
Plaintiff, Michael Jackson, was injured while working at a construction site in 1977. He was accidentally struck in the face with a shovel wielded by a coworker. Suit was filed against the general contractor and the appellant, Barton-Malow. After plaintiff and the general contractor settled for $150,000, the case went to trial.
The jury, as in the companion cases, was not informed of the settlement. Plaintiff was found to have suffered $400,000 in damages. The jury found plaintiff seventy-five percent negligent and defendant twenty-five percent negligent.
Defendant successfully urged the trial judge to compute the amount of judgment accordingly:
| $400,000 | Plaintiff‘s damages |
| -300,000 | Seventy-five percent comparative negligence |
| $100,000 | |
| -150,000 | Settlement |
| $ 0 | Judgment against appellant |
Plaintiff appealed, and the Court of Appeals
| $400,000 | Plaintiff‘s damages |
| -150,000 | Settlement |
| $250,000 | |
| -187,500 | Seventy-five percent comparative negligence |
| $ 62,500 | Judgment against appellant |
131 Mich App 719; 346 NW2d 591 (1984).
We granted defendant‘s application for leave to appeal and ordered this case to be argued and submitted with Rittenhouse and Gagnon. 419 Mich 917 (1984).
We affirm the judgment of the Court of Appeals in each case.
I
In 1978, the Legislature decreed that comparative negligence be applied in products liability cases.
(1) In all products liability actions brought to recover damages resulting from death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or the plaintiff‘s legal representatives, but damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
One year later this Court formally2 adopted the doctrine of comparative negligence in Placek v.
Citing Kirby, supra, the Placek Court also noted that one of the virtues of pure comparative negligence is that it does not ” ‘unjustly enrich’ anyone.” Id. Also, the following language from Kirby was approved:
The doctrine of pure comparative negligence does not allow one at fault to recover for one‘s own fault, because damages are reduced in proportion to the contribution of that person‘s negligence, whatever that proportion is. The wrongdoer does not recover to the extent of his fault, but only to the extent of the fault of others. To assume that in most cases the plaintiff is more negligent than the defendant is an argument not based on equity or justice or the facts. What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice. [Id., 661.]
With these general principles in mind, we now turn to the issue in the cases at bar.
Appellants contend that the amounts of plaintiffs’ total damages in these cases must be reduced by the percentages of comparative negligence returned by the juries before subtractions of the settlements. They assert that the percentages of comparative negligence assigned to each plaintiff are factual findings of the proportion of responsibility on each plaintiff‘s part in bringing about the injury. Each plaintiff‘s total damages should thus,
The fundamental flaw in this argument is that there is no indication that the juries in these cases determined the plaintiffs’ percentages of negligence by comparing their actions to all the possible tortfeasors. Rather, the juries only weighed the responsibility of the plaintiffs as to the defendants at trial. It would thus be inaccurate to reduce plaintiffs’ total damages by a percentage which only applies to the trial parties and not all tortfeasors.3
In analyzing appellants’ contention, it is essen-
| $ 167 | Judgment against nonsettling tortfeasor |
| + 333 | Settlement |
| $ 500 | Plaintiff‘s net recovery |
As can be seen, appellants’ calculation, in effect, treats plaintiff as if he were fifty percent comparatively negligent when he was actually thirty-three percent negligent. Also, the appellants’ version has the effect of reducing the settlement amount by the comparative negligence percentage. We believe it is more accurate to assume that any possible comparative negligence on plaintiff‘s part has already been taken into account in the settlement process.
B. Plaintiff suffers $1000 worth of damages and is again thirty-three percent comparatively negligent. There are two tortfeasors who are also each one-third responsible for the injuries. Ideally, each tortfeasor is liable for $333 worth of damages, but one settles for $200 while the other goes to trial. As in the first hypothetical, the jury will find each trial party fifty percent comparatively negligent, as they are equally at fault and the negligence of the settlor may not be considered. Mayhew.
Again, plaintiff‘s ideal net recovery is $666.66. Since he received $200 in settlement, the optimal judgment against the trial defendant is $466.66.
Appellees’ version:
| $1000 | Plaintiff‘s damages |
| - 200 | Settlement |
| $ 800 | |
| - 400 | Fifty percent comparative negligence |
| $ 400 | Judgment against nonsettling tortfeasor |
| + 200 | Settlement |
| $ 600 | Plaintiff‘s net recovery |
Appellants’ version:
| $1000 | Plaintiff‘s damages |
| - 500 | Fifty percent comparative negligence |
| $ 500 | |
| - 200 | Settlement |
| $ 300 | Judgment against nonsettling tortfeasor |
| + 200 | Settlement |
| $ 500 | Plaintiff‘s net recovery |
Due to low settlement, each method results in plaintiff receiving less than the ideal amount. However, appellee‘s version has the virtue of making plaintiff closer to being whole.
C. A final possible solution is where the settling tortfeasor settles for an amount greater than that for which it is actually liable. If plaintiff and two tortfeasors are each equally at fault for $1000 worth of damages, defendants are liable for $333 each. If one tortfeasor settles for $500, the ideal recovery against the nonsettlor will be $166.66, making plaintiff‘s total net recovery $666.66.
Appellees’ version:
| $1000 | Plaintiff‘s damages |
| - 500 | Settlement |
| $ 500 | |
| - 250 | Fifty percent comparative negligence |
| $ 250 | Judgment against nonsettling tortfeasor |
| + 500 | Settlement |
| $ 750 | Plaintiff‘s net recovery |
Appellants’ version:
| $1000 | Plaintiff‘s damages |
| - 500 | Fifty percent comparative negligence |
| $ 500 | |
| - 500 | Settlement |
| $ -0- | Judgment against nonsettling tortfeasor |
| + 500 | Settlement |
| $ 500 | Plaintiff‘s net recovery |
Due to the inaccurately high settlement, appellees’ version results in a recovery greater than is ideal, while appellants’ computation still achieves a recovery below the optimal result. However, appellees’ approach, as in the first two examples, is closer to the ideal. We believe that in the vast majority of cases the settlement process will insure that the settlement is not likely to exceed the tortfeasor‘s liability. Even if this does not always occur, the higher accuracy of the approach adopted by the Court of Appeals is evident under the first hypothetical. A calculation that allows plaintiff to recover only to the extent of the fault of others is mandated by comparative negligence principles. In the ideal situation where a tortfeasor has settled for the exact amount of its actual liability, appellees’ version correctly distributes the liability among the remaining parties while appellants’ method assigns plaintiff an artificially high percentage of comparative negligence. When the settlement amount is below an accurate amount, and in many cases where it is above the ideal figure, the appellees’ computation will result in a net recovery closer to the optimal amount.
When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
*
*
*
(b) It reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater. [Emphasis added.]
Accordingly, by the time of trial, the “claim” of each plaintiff against the nonsettling tortfeasors was an amount equal to the total damages minus the settlements. Mayhew v Berrien Co Road Comm, 414 Mich 399, 410; 326 NW2d 366 (1982).5
Contrary to the assertion of the dissent, our position is not that the “plaintiff‘s ‘claim’ [against the nonsettling defendants] includ[es] the percentage of damages attributable to the plaintiff[‘s]” own negligence. Rather, we hold that a plaintiff‘s percentage of fault in these trials was determined only in relation to the defendants participating at trial. Therefore, a plaintiff‘s comparative negligence should only be deducted from that part of the judgment to be paid by the defendant who was the only other party to a determination of fault.6
In Scott v Cascade Structures, 100 Wash 2d 537; 673 P2d 179 (1983), the majority, en banc, adopted the rule advocated by appellants here. We find, however, the reasoning of the dissent more convincing:
The comparative fault of [plaintiffs was] calculated not as a percentage of total fault, but as a percentage of the fault of the parties remaining in the action. Logically, this limited comparative fault figure should be applied not to total damages but to only those damages attributable to the parties remaining in the action. [Id., 546 (Utter, J., dissenting).]
Also, the dissent noted:
[A]ll allocation of fault at trial [is] among only those parties still remaining in the case. Logically, such fault apportionment figures should be applied to a correspondingly limited damages figure, i.e., only those damages attributable to the remaining parties. This limited damages figure is to be created by the deduction from total damages of the
court approved settlement, since that settlement should approximate the damages attributable to the settling defendants. [Id., 548. Citations omitted.]
The limited nature of these trials was also succinctly analyzed by the Court of Appeals in Gagnon in the context of the facts of that case:
[P]laintiff‘s entire claim for injuries [is] the amount of total damages which the jury has found, in the present case, $200,000. . . . [T]his “claim” should be reduced by the amount of settlement, $100,000 here, recognizing that the settlement represented satisfaction of the third party‘s liability, thus removing the issue of the third party‘s fault from subsequent litigation between plaintiff and the nonsettling tortfeasor, Mayhew, supra. Applying this analysis, the trial [is] then confined to the issue of how to apportion fault as between the plaintiff and nonsettling tortfeasor for the remaining $100,000 in damages. The jury would not have to face the problem of determining the liability of non-parties; its sole duty would be to allocate fault among the parties who were represented at trial, plaintiff and the nonsettling tortfeasor. [130 Mich App 458-459.]
We concur in this reasoning, as it correctly delineates the limited scope of the trials in each of these suits and recognizes that the percentages of comparative negligence returned by the juries are applicable only to the parties at trial and not to all possible wrongdoers.
Appellants also assert that the form jury instructions led the jurors to believe that the amount of total damages awarded would be reduced by the plaintiffs’ percentages of comparative negligence. Specifically, appellants point to SJI2d 66.01, which was given in each case here. Under
the instructions, it was initially established that defendants were negligent and that this negligence was a proximate cause of plaintiffs’ injuries. The juries then found plaintiffs’ “total amount of damages.” Each jury also determined that plaintiffs were negligent and that their negligence was also a proximate cause of the injuries. In Jackson and Gagnon, the following instruction was given:
Using 100 percent of the total combined negligence [which proximately caused the injury to plaintiff], what percentage of such negligence is attributable to the plaintiff?
A similar instruction was given in Rittenhouse.9
In Jackson and Gagnon the forms also stated:
Please note that the Court will reduce the total amount of plaintiff‘s damages [entered] by the percentage of negligence attributable to plaintiff, if any, [found]. The remainder will be the amount which plaintiff is entitled to recover.10
The emphasized portion belies appellant Dresser Industries implicit argument that the calculations were actually carried out by the jury during deliberations. It is better to assume, as we must, that the jury followed the instructions and did nothing “beyond answering [the] questions” on the verdict form. There is also no showing in Jackson and Rittenhouse that the juries carried out the mathematics necessary to have in mind a net recovery for plaintiffs.
We agree that the instructions given could have this effect and that to that extent they are misleading. However, we do not agree that the jury‘s possible intent in a limited trial between only the parties that have not settled should be determinative as to the total recovery against all tortfeasors. The juries were never told that it was their responsibility to fix the final figure to be received by the plaintiffs. To the contrary, it was made clear to them that their responsibility was to answer specific questions about damages and comparative fault. The most these instructions meant to the jurors was that the plaintiffs would be entitled to a
It is our conclusion that a more accurate and just verdict, consistent with the principles enunciated in Placek can be best arrived at by reducing the plaintiff‘s comparative negligence vis-à-vis the nonsettling tortfeasor by deducting it from the “claim” against that same nonsettling tortfeasor rather than from the total damages. That “claim” under the statute as interpreted in Mayhew is “the total liability of the joint tortfeasors minus the amount of the settlement. . . .” 414 Mich 410.
The judgment of the Court of Appeals on this issue in each case is affirmed, with costs awarded to the appellees.
II
Karen Rittenhouse suffered her injuries on June 14-15, 1973. On December 20, 1974, the plaintiff filed his original complaint naming only Earl Erhart (the father of the deceased) as a defendant. Appellant North Woodward Mufflers first entered the case when a second amended complaint naming it as defendant was filed on October 12, 1976. The trial court ordered that plaintiff was entitled to prejudgment interest from appellant from the date the second amended complaint was filed. The Court of Appeals held that plaintiff was allowed interest from the date of the original complaint. Appellant contends that it should only be liable for interest from the date of the second amended complaint, when it was first made a party to the action. Since the jury returned a verdict of no
(1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section.
(2) For complaints filed before June 1, 1980, . . . the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980 at the rate of 6% per year and on and after June 1, 1980 to the date of satisfaction of the judgment at the rate of 12% per year compounded annually. [Emphasis added.]
When this action arose
Interest shall be allowed on any money judgment recovered in a civil action, such interest [is] to be calculated from the date of filing the complaint at the rate of 6% per year . . . . [Emphasis added.]
Because we agree with the appellee that this language is a clear expression of the legislative intent and that no interpretation is required, we decline to join in Justice RILEY‘S “interpretation” of the statute.
Even an examination of the rules of statutory interpretation still compels us to conclude that the Court of Appeals reached the correct result.
The evolution of
Execution may be levied for interest on any money judgment recovered in a civil action, such interest to be calculated from the date of judgment at the rate of 5% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year. [1961 PA 236. Emphasis added.]
1965 PA 24014 amended
1980 PA 134 rewrote
The history shows that the purpose of
We would affirm the judgment of the Court of Appeals on this issue.
WILLIAMS, C.J., and CAVANAGH, J., concurred with BRICKLEY, J.
LEVIN, J., concurred with BRICKLEY, J., in part I only.
RILEY, J. The computation issue presented by these appeals concerns a joint tortfeasor‘s substantive right to a credit for amounts received by a plaintiff in settlement with other potentially liable joint tortfeasors for the same injury. Because the principles of joint and several liability have not been displaced by the adoption of comparative negligence, the computation approach approved by the majority today may result in double recovery in direct contravention of the long-established rule that a tort victim is entitled to only one satisfaction for an indivisible injury sustained, and that a defendant is entitled to a setoff for amounts received by the plaintiff in a prior settlement. Larabell v. Schuknecht, 308 Mich 419; 14 NW2d 50 (1944).1
The majority‘s decision in this regard is without
By misconstruing this Court‘s decision in Mayhew v. Berrien Co Road Comm, 414 Mich 399; 326 NW2d 366 (1982), the majority assumes that in determining the amount of a plaintiff‘s contributory negligence the factfinder is prohibited from considering all of the factual circumstances surrounding the plaintiff‘s injury, and may only consider the trial defendants’ negligence in this regard. The issue decided in Mayhew, however, was not even related to this issue and the consistent reference to Mayhew in the majority opinion, as holding that the plaintiff‘s amount of contributory negligence must be determined by comparing the plaintiff‘s negligence with the negligence of the trial defendants only, is simply unfounded.4
Although its decision is entirely premised upon this speculation and unwarranted interpretation of Mayhew, the majority further expressly states: “[W]e hold that a plaintiff‘s percentage of fault [is to be] determined only in relation to the defendants participating at trial.” Ante, p 182. First, it
In Placek v. Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), this Court held that a plaintiff found to have been contributorily negligent in causing his own injury is still entitled to recover to the full extent that his injury was caused by the tortious conduct of others. A plaintiff‘s recovery in such cases has not heretofore been limited by the percentage of fault attributable to the trial defendants; it is the plaintiff‘s percentage of negligence that determines the total amount of his recoverable damages. The implications of the majority‘s express, if incidental, holding in this regard may adversely affect plaintiffs in such cases, and, in any event, will result in inaccurate findings of fact concerning a plaintiff‘s percentage of contributory negligence.6
I. CONTRIBUTION STATUTE
The computation issue presented by these cases concerns the appropriate application of the setoff provision incorporated within the statutory scheme embodied in the contribution statutes,
When a release . . . is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide.
(b) It reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release . . . or to the extent of the amount of the consideration paid for it, whichever amount is the greater.
(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor. [Emphasis added.]
This statute allows a plaintiff to settle with less than all of the alleged tortfeasors, without discharging his claim against the remaining tortfeasors. It also allows the settling tortfeasor to escape liability for contribution, whatever the settlement amount or degree of fault.7 The plaintiff‘s “claim against the [remaining] tort-feasors,” however, is reduced by the amount of the settlement.
The flaw in this characterization of the plaintiff‘s “claim” is that it does not distinguish the plaintiff‘s negligence in causing his own injury from the negligence of the defendant-tortfeasors. A plaintiff‘s negligence in this regard relates to a failure to use due care for his own protection. Unlike the defendant‘s negligence which relates to the lack of due care for the safety of others, the plaintiff‘s negligence is not tortious. A plaintiff found to have been contributorily negligent in causing his own injury, therefore, cannot be characterized as a “tort-feasor” with regard to his own injury. Recognizing this distinction in American Motorcycle Ass‘n v. Superior Court, 20 Cal 3d 578, 589-590; 146 Cal Rptr 182; 578 P2d 899 (1978), the California Supreme Court noted:
Moreover, even when a plaintiff is partially at fault for his own injury, a plaintiff‘s culpability is not equivalent to that of a defendant. In this setting, a plaintiff‘s negligence relates only to a failure to use due care for his own protection, while a defendant‘s negligence relates to a lack of due care for the safety of others. Although we
recognized in Li [v. Yellow Cab Co of California, 13 Cal 3d 804; 119 Cal Rptr 858; 532 P2d 1226 (1975)] that a plaintiff‘s self-directed negligence would justify reducing his recovery in proportion to his degree of fault for the accident, the fact remains that insofar as the plaintiff‘s conduct creates only a risk of self-injury, such conduct, unlike that of a negligent defendant, is not tortious. (See Prosser, Law of Torts [4th ed] § 65, p 418.) [Cited in Lemos v. Eichel, 83 Cal App 3d 110, 117; 147 Cal Rptr 603 (1978).]
The conclusion that the proportion of damages attributable to the plaintiff‘s own negligence is to be included as part of the plaintiff‘s “claim” against the nonsettling defendants is inapposite. The determination concerning whether and to what extent a plaintiff‘s own negligence contributed to his injury is necessary, specifically, to determine whether and to what extent a claim exists. The language of the statutory setoff provision here in question does not lend itself to the majority‘s characterization of the plaintiff‘s “claim.” That the Legislature intended to confer a substantive right upon plaintiffs to deduct settlement amounts from the proportion of the plaintiff‘s damages found to have been self-inflicted is questionable. To quote Judge MARUTIAK‘S dissenting opinion in Jackson v. Barton Malow Co, 131 Mich App 719, 727; 346 NW2d 591 (1984): “The statute clearly anticipates that plaintiff‘s negligence will be factored against the gross assessment of damages before the settlement amount is to be subtracted.”
Unless
II. COMPARATIVE NEGLIGENCE DOCTRINE
In Placek, supra, this Court abrogated the contributory negligence doctrine and replaced it with the doctrine of comparative negligence. “Comparative negligence” is a term of art which distinguishes contributory negligence as a partial bar to recovery from contributory negligence as a total bar. The Court explained:
As a matter of terminology we replace the doctrine of contributory negligence. In actuality, however, it is contributory negligence as a total bar to recovery which is replaced. The effect of this action is to establish contributory negligence as a partial bar to recovery by insuring that any recovery of damages by a plaintiff be reduced to the extent of his or her own negligent contribution to the injury. [Emphasis in original. Placek, supra, 650, n 1.]
In adopting the pure form of comparative negligence, the Court in Placek, 660-661, stated:
The “pure” form does not “unjustly enrich” anyone. For example, if an accident is wholly the fault of one party, then that party would not, of course, recover damages. If an injured plaintiff was 51% to blame, then there still remains 49% of the fault which was not plaintiff‘s, and for which therefore the person who caused that much of the injury should be liable.
The doctrine of pure comparative negligence does not allow one at fault to recover for one‘s own fault, because damages are reduced in proportion to the contribution of that person‘s negligence, whatever that proportion is. The wrongdoer does not recover to the extent of his fault, but only to the extent of the fault of others. . . . What pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice.
Thus, in cases in which the negligence of the plaintiff is at issue, a specific determination concerning the extent to which the plaintiff‘s negligence contributed to his injury is necessary in order to determine the total amount of recoverable damages. It should be noted that this determination is not made in relation to each defendant. The relative degrees of fault attributable to the defendants in such cases is not an issue relevant to the plaintiff.9 It is relevant only as between the tort-
In each of the present cases the juries were instructed and directed that if they found negligence on the part of the defendants they would then proceed to assess the total amount of the plaintiff‘s damages and determine whether the plaintiff was negligent. If he was, they were then to go on to express that negligence in the form of a percentage which would be used to reduce the total amount of the plaintiff‘s damages. In each case, the matter was submitted to the jury in special verdict form per Placek, and in each case the plaintiffs were found to have negligently contributed to their injuries. For example, in Jackson and Gagnon, the matter was submitted to the jury in the form of special questions as set forth in SJI2d 66.01. Question number three of SJI2d 66.01 is as follows:
ANSWER: $__________
Question number six of SJI2d 66.01 poses the following:
QUESTION NUMBER 6: Using 100 percent as the total combined negligence which proximately caused the injury or damage to the plaintiff, what percentage of such negligence is attributable to the plaintiff?
ANSWER: __________ percent.
Please note that the Court will reduce the total amount of plaintiff‘s damages entered in Question No. 3 by the percentage of negligence attributable to plaintiff, if any, entered in Question No. 6. The remainder will be the amount which plaintiff is entitled to recover.
Thus, the juries in each case were asked to determine, using one hundred percent as the total combined negligence which caused the plaintiff‘s injury, what percentage was attributable to the plaintiff. In Jackson, the jury determined that the plaintiff‘s total damages were $400,000 and assessed the plaintiff‘s negligence at seventy-five percent. In Gagnon, the jury determined that the total damages were $200,000 and that the plaintiff‘s negligence was fifty percent responsible. In Rittenhouse, the jury assessed the plaintiff‘s total damages at $1,500,000 and found the plaintiff to be twenty percent at fault.
Applying the computation method approved by the majority (i.e., deducting the settlement amount before applying the plaintiff‘s percentage of negligence), reduces the plaintiff‘s fault percentage below that found by the jury. Applying the method approved by the majority to the present cases has
This approach results, in every instance, in the modification of the jury‘s determination concerning the percentage of damages attributable to the plaintiff. In fact, the greater the proportion of fault attributed to the plaintiff toward one hundred percent, the greater such a modification occurs.10
The California Court of Appeals addressed this precise calculation issue in Lemos v Eichel, 83 Cal App 3d 110; 147 Cal Rptr 603 (1978). The court rejected the approach approved by the majority in
| Comparative Fault at Various Percentages | Plaintiff‘s Calculation | Defendant‘s Calculation | Variance |
|---|---|---|---|
| 20 | $80,000 | $60,000 | $20,000 |
| 40 | 60,000 | 20,000 | 40,000 |
| *50 | 50,000 | -0- | 50,000 |
| 75 | 25,000 | (50,000) | 75,000 |
| 90 | 10,000 | (80,000) | 90,000 |
* Actual Jury Determination
The Washington Supreme Court rejected the approach approved by the majority in the present cases in Scott v Cascade Structures, 100 Wash 2d 537; 673 P2d 179 (1983). Applying the Washington contribution-release statute,
The purpose of the contribution statute is to ensure that a plaintiff receives that to which he or she is entitled. Accordingly, we conclude the proper method of calculation is to reduce the jury award by the percentage of fault attributable to
the plaintiff before deducting the settlement award. [Id., 545.]
The Washington court also noted that under the gross damages approach (deducting settlement amounts from total damages), the percentage of fault attributable to the plaintiff would fall below the actual percentage determined by the jury. Id.
I agree with the analyses of the California Court of Appeals and the Washington Supreme Court and conclude that the reasoning advanced by the majority in supporting its decision affirming the Court of Appeals decisions in the instant cases is erroneous.
The Court of Appeals in Rittenhouse, 126 Mich App 674, 683-684; 337 NW2d 626 (1983), relied entirely upon DeMaris v Brown, 27 Wash App 932; 621 P2d 201 (1980), in deciding this issue. The Washington Court of Appeals decision in DeMaris, however, was directly reversed by the Washington Supreme Court in Scott, supra.
The Court of Appeals in Gagnon, supra, 458-459, based its decision upon an incorrect extension of this Court‘s decision in Mayhew, supra, and a strained construction of the language of
In Jackson, supra, 722-723, the Court of Appeals decision was based upon the prior decisions in Gagnon, and Rittenhouse. The majority in Jackson also cited Mayhew, DeMaris, supra, and the policy of encouraging settlements in support of its decision.
The majority states:
[T]here is no indication that the juries in these cases determined the plaintiffs’ percentages of negligence by comparing their actions to all the possible tortfeasors.
[P]laintiff‘s percentage of fault . . . was determined only in relation to the defendants participating at trial. [Ante, pp 178, 182.]
The majority asserts that in determining the extent of a plaintiff‘s contributory fault a jury‘s “‘sole duty [is] to allocate fault among the . . . plaintiff and the nonsettling tortfeasor.‘” Ante, p 185 (quoting Gagnon, supra, 458-459).
These statements are less than accurate and thus misleading. The juries in these cases did not determine the defendants’ percentages of relative fault in relation to the plaintiff‘s contributory fault at all.13
In determining the plaintiffs’ comparative negligence the juries in each of these cases were only required to assign percentages to the plaintiffs’ contributory fault. These necessary determinations were not made “only in relation to the defendants participating at trial.”
Pursuant to the fundamental principles of the comparative negligence doctrine, factual determinations concerning what percentage of a plaintiff‘s injury, if any, was caused by that plaintiff‘s contributory fault are necessary to determine the total amount of that plaintiff‘s recoverable damages. Because plaintiffs in such cases are entitled to recover to the full extent of the fault of others, this necessary determination is not to be made “only in relation to the defendants participating at trial.” Rather, this determination should reflect the percentage of the plaintiff‘s injury that was proximately caused by the negligence of others, including those who have settled and been released from liability, and others who, for a variety
Nothing in the past decisions of this Court precludes a plaintiff, defending against an assertion of comparative negligence, from presenting all of the factual circumstances surrounding the injury, including the conduct of settling parties or other parties that for some reason are not present at trial.
That factual determinations concerning a plaintiff‘s contributory fault are to be made only in relation to nonsettling tortfeasors and that a settling tortfeasor‘s relative fault is somehow attributed to plaintiffs in such cases was refuted by this Court‘s analysis in Mayhew, supra. In Mayhew, this Court ruled that the statutory setoff provision incorporated within the contribution statute has survived the judicial adoption of comparative negligence, and rejected the assertion that the plaintiff‘s recovery against nonsettling defendants should be reduced by the percentage of fault attributable to the settling defendants rather than the amount of the settlements. The defendants in Mayhew argued that to comply with principles of pure comparative fault, the nonsettling defendants’ liability should be reduced by the settling defendants’ percentage of fault because the nonsettling defendants’ liability should be limited to their proportion of fault. See
The issue decided in Mayhew did not concern the method by which a jury is to determine the plaintiff‘s percentage of comparative negligence. However, the arguments of the defendants and the plaintiff in Mayhew, as well as the Court‘s analysis and decision, were based on the legally and factually correct premise that a settling defendant‘s relative percentage of fault is assumed by the nonsettling defendants and not equally attributed to the plaintiff.
In Brewer v Payless Stations, Inc, 412 Mich 673; 316 NW2d 702 (1982), the parties were in agreement concerning the amount of settlement and the calculation method for the deduction. This Court‘s decision in Brewer was limited to the following issue:
Does the judge or the jury deduct the amount of the settlement . . . under the facts of this case in which evidence of the amount has no bearing on a material issue of fact? [Id., 675.]
The Court noted, quoting
[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible. [Id., 675, n 1.]
The defendant in Brewer argued that the jury should be fully informed of settlement amounts “if it is to deliver a considered judgment.” Id., 677. The plaintiff argued that informing the jury of settlement amounts may be prejudicial to a plain-
When there is no genuine dispute regarding either the existence of a release or a settlement between plaintiff and a codefendant or the amount to be deducted, the jury shall not be informed of the existence of a settlement or the amount paid, unless the parties stipulate otherwise. [Id., 679.]
In reaching its decision in Brewer, the Court noted that the issue in that case could cut both ways; some of the plaintiff‘s arguments could be used by a defendant, and vice versa. Id., 678.
The cases considered today stand as examples of the Brewer Court‘s observation concerning the double-edged nature of the arguments for and against allowing the jury to make the settlement deductions. In the instant cases the plaintiffs argue that if the juries had been informed of the settlement amounts, and had been required to make the deductions, their determinations may have been different, resulting in more favorable judgments for the plaintiffs. Likewise, the plaintiffs argue that if the juries had been required to determine the percentages of fault attributable to the settling defendants, their determinations concerning the plaintiffs’ percentage of contributory fault may have been lower.14 Therefore, the plaintiffs argue, and the majority agrees, the settlement amounts should be deducted from the total damages before the reduction for the plaintiff‘s comparative negligence is applied.
It should be noted that none of the plaintiffs in
The problems with this analysis are many. First, it has no basis in fact; both arguments are premised on speculation. Second, as the Court noted in Brewer, these arguments cut both ways. The plaintiff in Brewer successfully argued that allowing the jury to make the settlement deduction would prejudice the plaintiff. Third, and most importantly, this calculation approach is contradictory to the fundamental principles of the comparative negligence doctrine and is not supported by the language of the applicable statutory setoff provision.
Since Placek, the jury instructions used by the trial courts of this state have been modeled after the suggested jury instructions set forth in the appendix to that reported decision.15 None of the
None of the applicable Standard Jury Instructions indicate that, in determining what percentage of a plaintiff‘s damages is attributable
For the foregoing reasons, I am in respectful dissent. I would reverse the decisions of the Court of Appeals and reinstate the judgments of the trial courts in Rittenhouse and Jackson, and I would reverse the Court of Appeals decision in Gagnon and remand that case to the trial court for entry of judgment consistent with this opinion.
III. PREJUDGMENT INTEREST
With regard to the prejudgment interest issue in Rittenhouse, this Court construes “the complaint” within the meaning of the prejudgment interest statute,
We are persuaded that the purposes of the prejudgment interest statute are not furthered by the dissent‘s argument with respect to this issue, and the relation back of amendments to complaints for other purposes is not analogous. That the Legislature intended plaintiffs to be compensated for periods during which no disputed claim even existed against the judgment debtor strains credulity. Likewise, the laudable purpose of encouraging settlements is not applicable to periods during which no claim existed against the defendant. A statute must be construed in the light of the purpose sought to be accomplished thereby. Lakehead Pipe Line Co v Dehn, 340 Mich 25, 34; 64 NW2d 903 (1954).
Thus, we reverse the decision of the Court of Appeals in Rittenhouse as to the calculation of prejudgment interest issue.
We assess no costs on this issue, neither party having prevailed in full.
RYAN, J., concurred with RILEY, J.
LEVIN, J., concurred with RILEY, J., in part III only.
BOYLE, J. I concur in the result reached by
Notes
“This construction of the act parallels the common-law rule that where a negligence action is brought against joint tortfeasors, and one alleged tortfeasor agrees to settle his potential liability by paying a lump sum in exchange for a release, and a judgment is subsequently entered against the non-settling tortfeasor, the judgment is reduced pro tanto by the settlement amount.” Thick, supra, 348, n 1.
The majority‘s attempt to reconcile its holding that settlement amounts are to be deducted from total damages before applying the plaintiff‘s contributory fault percentage with the language of the applicable statute is perplexing. Was the Court incorrect in Mayhew v. Berrien Co Road Comm, 414 Mich 399, 402-403; 326 NW2d 366 (1982), when it stated: “the law does not contemplate judicial abrogation of constitutional legislative enactments because not reasonably related to a judicial decision“?
A. Plaintiff suffers $1000 worth of damages and names two tortfeasors in an action. Each of the parties is one-third responsible (negligent) in bringing about the injuries, and one tortfeasor settles for $333. The case then proceeds to trial between plaintiff and one tortfeasor. Since the trial parties are equally negligent and the juries will only assess the fault of the trial parties (Mayhew), each one will be considered fifty percent negligent. The amount of damages plaintiff is found to have suffered should not change because of the settlements.
The plaintiff ideally should receive a total recovery of $666.00, because the plaintiff is thirty-three percent comparatively negligent as to all responsible parties for $1000 worth of damages.
Also, ideally, both tortfeasors should be liable for $333 as they are each one-third responsible for the injuries.
Appellees’ proposed version:
| $1000 | Plaintiff‘s damages |
| - 333 | Settlement |
| $ 666 | |
| - 333 | Fifty percent comparative negligence |
| $ 333 | Judgment against nonsettling tortfeasor |
| + 333 | Settlement |
| $ 666 | Plaintiff‘s net recovery |
Appellants’ proposed version:
| $1000 | Plaintiff‘s damages |
| - 500 | Fifty percent comparative negligence |
| $ 500 | |
| - 333 | Settlement |
“If you find that each party was negligent and that the negligence of each party was a proximate cause of the plaintiff‘s injuries, then you must determine the degree of such negligence expressed as a percentage attributable to the plaintiff.” (Emphasis added.)
The instruction speaks only of the negligence of each party and not of that of the settlers or others whose negligence may have caused the damages. We must assume that the juries followed these instructions and determined the “degree” of negligence of each “party” expressed as a percentage attributable to the plaintiff and did not assign a percentage to plaintiff applicable to nonparties.
The issue decided in Mayhew was whether the settling defendants’ proportionate fault was to be used to reduce the nonsettling defendants’ liability, rather than the amount of the settlements as required by the applicable provision of the contribution statute.” ‘The combined negligence of the plaintiff, the deceaseds, the defendants and of other persons whose negligence proximately contributed to the injury being 100%, what proportion of such combined negligence is attributable to the plaintiff, what proportion of such combined negligence is attributable to each of the deceased, what proportion is attributable to each of the defendants, and what proportion is attributable to each of the other persons?’ ” (Emphasis added.)
The jury returned a verdict listing the proportion of negligence among the plaintiff, defendants, and two settling tortfeasors. Obviously there is no question in Lemos that the jury was apportioning the plaintiff‘s fault vis-à-vis all of the negligent actors. Had the jury in these cases been asked to apportion fault among all those whose negligence proximately caused the damages our method of calculation should perforce be the same as in Lemos. The majority‘s holding in this regard will adversely affect plaintiffs in situations in which the amount received in settlement is less than equal to the proportionate fault of the settling defendants.Conversely, in situations in which the amount received by a plaintiff in settlement exceeds the amount of the plaintiff‘s recoverable damages attributable to the fault of the settling defendants (as subsequently determined by a jury), a plaintiff would recover amounts in excess of that to which he was entitled.
Under the majority‘s holding in this regard, the only situation that will result in a plaintiff recovering that amount to which he is entitled, no more and no less, is when the amount received in settlement is exactly commensurate to the settling defendants’ per-
In Rittenhouse the appellant‘s version is as follows:
| $1,500,000 | Total damages to plaintiff |
| - 395,000 | Settlements |
| $1,105,000 | |
| - 221,000 | Plaintiff‘s twenty percent comparative negligence |
| $ 884,000 | |
| - 79,000 | Deduction of twenty percent of $395,000 settlement |
| $ 805,000 | Net liability of appellant |
In Gagnon:
| $ 200,000 | Total damages to plaintiff |
| - 100,000 | Settlements |
| $ 100,000 | |
| - 50,000 | Plaintiff‘s fifty percent comparative negligence |
| $ 50,000 | |
| - 50,000 | Deduction of fifty percent of $100,000 settlement |
| $ 0 | Net liability of appellant |
In Jackson:
| $ 400,000 | Total damages to plaintiff |
| - 150,000 | Settlement |
| $ 250,000 | |
| - 187,500 | Plaintiff‘s seventy-five percent comparative negligence |
| $ 62,500 | |
| - 112,500 | Deduction of seventy-five percent of $150,000 settlement |
| $ 0 | Net liability of appellant. |
This double deduction for comparative negligence is unwarranted because, as noted in footnote 7, the settlement negotiations have already factored in the possible comparative negligence defense. The plaintiffs should not receive a disincentive to settle by having the jury‘s finding of comparative negligence apply to the settlement amounts already received. After the settlements were made, the
appellants were open to liability only in the amount of plaintiffs’ total damages minus the settlement amounts. The Court of Appeals has correctly held that appellants were not entitled to further reduce their liability by using the juries’ findings on comparative negligence, applicable only to them, to in effect make an additional deduction beyond the actual settlement amounts. A settling tortfeasor may also recover contribution if the requirements of“In all products liability actions brought to recover damages resulting from death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or the plaintiff‘s legal representatives, but damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”
“SJI2d 41.04 Damages Not to Be Allocated among Joint Tort-Feasors
“If your verdict is for the plaintiff against [both defendants/more than two defendants], you may not divide the damages [between/among] them, but you shall return a verdict in one single sum against [both defendants/those defendants whom you find to be liable].” (Emphasis in original.)
Thus, the relative degrees of fault attributable to joint tortfeasors is never an issue relevant to the plaintiff. Rather, it is relevant only in an action for contribution which is never initiated by the plaintiff or litigated in the same proceeding with the plaintiff‘s claim unless the defendants so agree. For the applicable jury instructions to be used in contribution actions see SJI2d 43.01A, 43.01B, and the corresponding form of verdict reflected in SJI2d 72.01A and 72.01B.
“Now, you do not worry about doing any subtractions, additions, arithmetic or anything beyond answering these questions and, please, note that the Court will reduce the total amount of Plaintiff‘s damages entered in question number five by the percentage of negligence attributable to Michael Gagnon if any entered in question eight and the remainder would be the amount that the Plaintiff is entitled to recover. That is something done by the Court. Do not try to do it, okay, if you get to that point.”
The greater the proportionate fault of the plaintiff toward one hundred percent, the greater the disproportionate difference between the two methods of computation. Defendant-appellant Dresser Industries, Inc., provides the following evaluation which illustrates the effect of the majority‘s calculation approach with the only variable being the percentage of the plaintiff‘s contributory fault.Rittenhouse
| Gross Jury Verdict | $1,500,000 |
| Setoff from settling tortfeasors | 395,000 |
| Comparative Fault at Various Percentages | Plaintiff‘s Calculation | Defendant‘s Calculation | Variance |
|---|---|---|---|
| *20 | $884,000 | $805,000 | $ 79,000 |
| 40 | 663,000 | 505,000 | 158,000 |
| 50 | 552,500 | 355,000 | 197,500 |
| 75 | 276,250 | (20,000) | 296,250 |
| 90 | 110,500 | (245,000) | 355,500 |
* Actual Jury Determination
Gagnon
| Gross Jury Verdict | $200,000 |
| Setoff from settling tortfeasors | 100,000 |
“[N]umerous difficulties would be presented if we were to allow the jury to apportion damages among all tortfeasors, including a settling non-party. It would mean that the settling tortfeasor‘s liability would be assessed without anyone adequately representing that interest. It would put the plaintiff in a unique trial situation. The plaintiff would not only have to advocate that he was not at fault, he would have to convince the jury that the non-party was only minimally at fault. Otherwise, there might be too great a percentage of fault attributed to the non-party, thus reducing the plaintiff‘s recovery.” 414 Mich 412.
If as we said in Mayhew, it would be difficult for the plaintiff to try to defend against the relative fault of a nonparty defendant, how, indeed can we expect the plaintiff in this situation to defend against his contributory negligence vis-à-vis nonparty defendants. If the instructional reference to “total combined negligence” was interpreted to include the negligence of nonparty tortfeasors, it would be left to the plaintiff and defendant to argue the relative negligence of the nonparty tortfeasors, notwithstanding the “numerous difficulties” alluded to in Mayhew.
California‘s“Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort—
“(a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is greater; and
“(b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasor.”
Similarly, Washington‘s statutory setoff provision,
“A release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable.”
“[The] matters between those two defendants . . . and the plaintiff, have been resolved and they are no longer in this case and you‘re not to consider them in anything that happens from here on with respect to this particular case.”
In Gagnon and Jackson the juries knew that plaintiffs were injured during their employment, but due to the exclusive remedies provided in the
“Defendant contends that it was the owner‘s responsibility [the owner is one of the settling defendants] for maintaining the crane, that it was his improper maintenance which was the proximate cause of the Plaintiff‘s accident.”
In Jackson, the person who wielded the shovel which struck plaintiff was not named as a defendant, and the jury was not able to assess his degree of responsibility, if any. It is short sighted to presume that the juries believed their findings on damages and comparative negligence would be the only basis upon which plaintiffs’ ultimate net recovery would be calculated. Each jury knew of facts which could have made it aware that its findings were not determinative as to plaintiffs’ net recovery.
See n 11.“Execution may be levied for interest on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 5% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed. In no case shall the rate exceed 7% per year after the date judgment is entered. In the discretion of the judge, if a bona fide written offer of settlement in a civil action based on tort is made by the party against whom the judgment is subsequently rendered and the offer of settlement is substantially identical or substantially more favorable to the prevailing party than the judgment, then no interest shall be allowed beyond the date the written offer of settlement is made.”
The plaintiffs-appellees in the present cases concede that this argument is speculative, and do not argue that an exact effect can be ascertained. They assert, however, that the contention that the jury‘s findings of fact concerning a plaintiff‘s comparative negligence is not affected by the absence of a settling defendant is also speculative.“Plaintiff‘s negligence, if any, does not bar a recovery by the plaintiff against the defendant, but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduced by the percentage that plaintiff‘s negligence contributed as a proximate cause to [his/her] [injury/property damage].
“This is known as comparative negligence.” (Emphasis in original.)
The note to SJI2d 11.01 states that, when comparative negligence is an issue, the verdict form reflected in SJI2d 66.01 is to be used:
“SJI2d 66.01 Form of Verdict:
Comparative Negligence
“We, the jury, make the following answers to the questions submitted by the Court:
“QUESTION No. 1: Was the defendant negligent?
“If your answer is ‘no,’ do not answer any further questions.
“QUESTION No. 2: Was the defendant‘s negligence a proximate cause of the injury or damage to the plaintiff?
“ANSWER: _____ (yes or no)
“If your answer is ‘no,’ do not answer any further questions.
“QUESTION No. 3: What is the total amount of plaintiff‘s damages?
“ANSWER: $_____
“QUESTION No. 4: Was the plaintiff negligent?
“ANSWER: _____ (yes or no)
“If your answer is ‘no,’ do not answer any further questions.
“QUESTION No. 5: Was the plaintiff‘s negligence a proximate cause of the injury or damage to the plaintiff?
“ANSWER: _____ (yes or no)
“If your answer is ‘no,’ do not answer any further questions.
“QUESTION No. 6: Using 100 percent as the total combined negligence which proximately caused the injury or damage to the plaintiff, what percentage of such negligence is attributable to the plaintiff?
“ANSWER: _____ percent
“Please note that the Court will reduce the total amount of plaintiff‘s damages entered in Question No. 3 by the percentage of negligence attributable to plaintiff, if any, entered in Question No. 6. The remainder will be the amount which plaintiff is entitled to recover.”
For cases involving products liability in which the plaintiff‘s negligence is an issue, the following jury instruction is provided, SJI2d 25.41:
“SJI2d 25.41 Comparative Negligence—
Burden of Proof
“The defendant has the burden of proof on [his/her] claim that the plaintiff was negligent in one or more of the ways claimed by the defendant as stated to you in these instructions, and that such negligence was a proximate contributing cause of the [injuries/damages] to the plaintiff.
“If you find that the plaintiff was negligent, and that such negligence was a proximate contributing cause of the plaintiff‘s [injuries/damages], then using 100 percent as the total combined negligence and/or breach of warranty which proximately caused the plaintiff‘s [injuries/damages], you must determine what percentage was due to the plaintiff‘s negligence. Negligence on the part of the plaintiff does not bar recovery by the plaintiff against the defendant. However, the percentage of negligence attributable to the plaintiff will be used by the Court to reduce the amount of damages which you find to have been sustained by the plaintiff.
“The Court will furnish a Special Verdict Form to assist you in your duties. Your answers to the questions in the Special Verdict Form will provide the basis on which this case will be resolved.” (Emphasis in original.)
The Mayhew Court concluded (correctly, I believe) that if it were to adopt the defendants’ argument in that case (i.e., that the nonsettling defendants’ liability should be reduced by the settling defendants’ percentage of fault rather than the amount of the settlements), plaintiffs would be put in a “unique trial situation” because they would be forced to defend the settling defendants’ relative fault. Because a plaintiff‘s recovery against nonsettling defendants would be reduced by the relative fault of settling defendants, a plaintiff would not only have to defend his own conduct but also the relative fault of a settling defendant.
Unlike the situation referred to in Mayhew, a plaintiff defending against an assertion of comparative negligence generally, relative to the total combined negligence that caused the indivisible injury and to the total number of possible tortfeasors whether present at trial or not, would only be required to defend his own contributing negligence. The relative fault of the settling defendants would be attributed to the nonsettling defendants and not used to reduce the plaintiff‘s recovery. Therefore, the concern expressed with regard to the issue in Mayhew is inapplicable within the present context.
Finally, it should be noted that the current jury instructions will have to be modified, in any event, to reflect the majority‘s express holding that “a plaintiff‘s percentage of fault [is to be] determined only in relation to the defendants participating at trial,” which in my opinion is a serious error.