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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
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ROBERT & DONALD DIGGINS, | ) |
| 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 | |
| LANCE JACKSON, | ) |
| ) 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
Lites.1
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
judgment.
MATTHEWS, Justice, with whom EASTAUGH, Justice, joins,
concurring.
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
process.
_______________________________
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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