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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Diggins v. Jackson (08/10/2007) sp-6144

Diggins v. Jackson (08/10/2007) sp-6144, 164 P3d 647

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


d/b/a/ DIGGINS CONCRETE, ) Supreme Court No. S- 11141
Appellants, ) Superior Court No. 3AN-01-9418 CI
v. )
) O P I N I O N
) No. 6144 August 10, 2007
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,  Philip   R.
          Volland, Judge.

          Appearances:   Rod R. Sisson  and  Craig  Wm.
          Black, Sisson & Knutson, P.C., Anchorage, for
          Appellants.  Marion C. Kelly, Wade,  Kelly  &
          Sullivan, Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          PER CURIAM.
          MATTHEWS,   Justice,  with   whom   EASTAUGH,
          Justice, joins, concurring.

          On  August  22,  1999,  Lance Jackson  was  riding  his
bicycle on a bike path in Anchorage.  Because of ongoing repairs,
a  section of the bike paths pavement had been removed.   Jackson
rode into the gap, flipped his bike, and fractured his neck.
          Jackson  sued three contractors involved in the  repair
work:  Moseley Enterprises, Inc., Warning Lites of Alaska,  Inc.,
and  Diggins Concrete.  He settled with Moseley and Warning Lites
before  trial, receiving a total of $106,190.60 ($91,190.60  from
Moseley  and  $15,000 from Warning Lites).  Jackson proceeded  to
trial  against  Diggins.  The jurys verdict found  that  Jacksons
damages  totaled $94,943.40, that Diggins, Moseley,  and  Jackson
had  acted negligently in causing those damages, but that Warning
Lites   was  not  responsible  for  the  accident.   The  verdict
allocated ten percent of the liability to Diggins, twenty percent
to  Moseley,  seventy  percent to Jackson, and  none  to  Warning
          This  nominally  left  Diggins liable  to  Jackson  for
$9,494.34   ten percent of Jacksons total damages.   But  Diggins
asked the trial court, Superior Court Judge Philip R. Volland, to
offset  Jacksons damages by the amounts already paid  to  him  in
settlement  by  Moseley  and Warning Lites;  since  the  pretrial
settlement payments exceeded Jacksons total damages as awarded by
the  jury,  the  offset would have left no  further  damages  for
Diggins to pay.  The court denied Digginss request and entered  a
judgment   requiring  Diggins  to  pay  Jackson  $9,494.34   plus
interest, fees, and costs.
          Diggins  filed  this appeal, challenging  the  superior
courts  order declining to offset the prior settlement  payments.
After  hearing  oral argument, we stayed Digginss appeal  pending
our  ruling  in  an already submitted appeal involving  analogous
facts  and  a  similar  issue, Petrolane Inc.  v.  Robles.2   Our
opinion in Petrolane has now decided the point.
          In  Petrolane  we  asked,  Is a non-settling  defendant
tortfeasor  entitled  to  offset against  his  liability  to  the
plaintiff the amount of a settlement between the plaintiff and  a
settling  defendant?3 After considering our prior  case  law  and
reviewing the history of Alaskas several-liability regime adopted
almost  two decades ago, we observed that, since the pure several
liability  regime  enacted by initiative  in  1988  repealed  the
express  availability  of full offsets and because  a  defendants
liability  under  the 1988 law was limited by comparative  fault,
there  is no reason to allow a non-settling defendant full offset
under  the 1988 law.4  We thus join[ed] the United States Supreme
Court,  the  majority of other jurisdictions and the  Restatement
(Third)  of  Torts  in  adopting the proportionate  share  rule,5
summarizing  that  rule  as  follows: Under  this  approach  non-
settling defendants are entitled to offset the plaintiffs damages
in  proportion to settling parties comparative fault.6  We  found
no  inconsistency between this approach and our prior case  law.7
And  we  rejected  a  separate argument that a  full  offset  was
required  before 1997 because, until AS 09.17.080(c) was repealed
by  the  legislature  that year, it included  language  directing
courts  to  enter  judgment  subject  to  a  reduction  under  AS
09.16.040  a provision otherwise repealed by the 1988 initiative.8
          The  only  salient difference between the situation  in
the  case  now  before  us  and the  circumstances  at  issue  in
Petrolane is that AS 09.17.080(c)s subject to reduction  language
was  still  in  effect  in 1993, when the accident  in  Petrolane
occurred,  whereas  the language had been repealed  by  the  time
Jacksons   injury  occurred  in  1999.   But  as  we   implicitly
recognized in Petrolane, the proportionate-share rule we  adopted
there does not hinge on subsection .080(c)s repeal; indeed, as  a
practical matter, the fact that the provision was repealed before
          Jacksons accident can only favor the conclusion that Petrolane
must also apply here.9
          Diggins cites no authority and raises no arguments that
we  did not consider in Petrolane; accordingly, we adhere to  the
approach we adopted there and reiterate the basis for our ruling:
Proportionate  share  offsets are logical  incidents  of  several
liability,  and  in  recognizing them we simply  adopt  the  most
efficient and well-accepted solution.10
           Because  Petrolane applies here and precludes Digginss
request  for  a  full  offset,  we  AFFIRM  the  superior  courts
MATTHEWS,   Justice,   with   whom  EASTAUGH,   Justice,   joins,
          In  this  case  the plaintiff settled claims  with  two
defendants  for  $106,000.1  The subsequent verdict  against  the
remaining  defendant determined that plaintiffs total recoverable
loss  was  $28,500.   Because  of the settlements  plaintiff  has
already  received over three times more than what he is  entitled
to.   The  question  in this case is whether  he  may  obtain  an
additional $9,500 from the remaining defendant.
          Todays   opinion   answers   this   question   in   the
affirmative.   It  relies  on  the  recently  decided   case   of
Petrolane,  Inc. v. Robles.2  Petrolane held that AS 09.17.080(d)
(effective in 1989) precluded offsetting prior settlements from a
judgment  where  an offset is needed to avoid a double  recovery.
Justice Eastaugh wrote a dissent in Petrolane in which I joined.3
The  dissent took the position that the courts opinion was  wrong
as a matter of statutory construction, precedent, and policy.
          Petrolane now stands as a decision of this court and as
such  it  has  precedential effect.  Todays opinion is  right  in
holding that it controls the outcome of this case.  Based on  the
principle  of  stare  decisis I join in the  result  that  todays
opinion reaches even though I remain convinced that Petrolane was
wrongly decided.4
          As   matters   now   stand  the  long-standing   policy
prohibiting  double  recoveries has been eliminated.   Plaintiffs
who have received all that they should receive as determined by a
jury  can  receive  duplicate  (and  triplicate)  payments.   The
reasons cited in support of this policy  that plaintiffs bear the
risk  of  settling  for  too little and  that  permitting  double
recovery  facilitates  settlement  seem insubstantial.   Settling
for too little has always been a risk for plaintiffs.  They might
lose in the trial against the remaining defendant, or a favorable
judgment  might  prove  to be uncollectable.   Settlements  occur
because of risk-reward calculations that remain complex, with  or
without  the possibility of a double recovery.  Neither of  these
reasons  approaches  in  force the reason underlying  the  policy
against double recoveries:  the coercive force of the law  should
not require a party to pay for a loss for which full compensation
has already been paid.
          I  believe  that permitting double recoveries continues
to  be bad public policy and that the fact that double recoveries
are now permitted is an unintended consequence of the tort reform
movement.   Nonetheless, this is where Petrolane leaves  us.   If
there  is  to  be a change, it must come through the  legislative
     1    Under this verdict, because Jackson was responsible for
seventy  percent of his own damages, the amount he could  recover
from  the  two  other responsible parties, Diggins  and  Moseley,
totaled $28,483.02  thirty percent of $94,943.40.

     2    Petrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).

     3    Id. at 1016.

     4    Id. at 1020.

     5     Id.  at 1020-21 (footnotes omitted) (citing McDermott,
Inc.  v. AmClyde, 511 U.S. 202, 208-17 (1994)).

     6    Id. at 1021.

     7    Id. at 1020 & n.21, 1022-23.

     8    Id. at 1023.

     9     Id. at 1024 (rejecting the notion that the subject  to
provision  of  subsection .080(c) repealed by the legislature  in
1997  was  critical language compelling a full offset until  that
provisions repeal).

     10    Id.

     1    In round numbers.

     2    154 P.3d 1014 (Alaska 2007).

     3    Id. at 1028.

     4     Stare  decisis is at its strongest in cases  involving
the  interpretation  of  statutes.  Unlike  cases  involving  the
constitution, the legislature may override an incorrect statutory
interpretation.  There is thus less justification in  such  cases
for  a  court to overturn its own rulings.  See William Eskridge,
Overruling Statutory Precedents, 76 Geo. L.J. 1361 (1988).

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