1 Cal. App. 4th 83
1 Cal. Rptr. 2d 813

Laura MILLS, Plaintiff and Respondent,
MMM Carpets, Inc., Defendant and Appellant

No. H007554

Court of Appeal of California, Sixth Appellate District

November 22, 1991

Gassett, Perry & Frank and Robin Y. Trembath for Defendant and Appellant.

Alexander & Bohn, Mark P. Rapazzini and Richard Alexander for Plaintiff and Respondent.

Opinion by Agliano, P. J., with Cottle and Elia, JJ., concurring.


Adopted by initiative as Proposition 51, the Fair Responsibility Act of 1986 (Civ. Code, § 1431- 1431.5) "modified the traditional, common law 'joint and several liability' doctrine, limiting an individual tortfeasor's liability for noneconomic damages to a proportion of such damages equal to the tortfeasor's own percentage of fault." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1192 [246 Cal.Rptr. 629, 753 P.2d 585].)

In this case, we consider whether a defendant tortfeasor's percentage of fault is calculated by comparison with the fault of other named defendants only or with the fault of all other tortfeasors, including a negligent employer who may not be subject to suit for damages.

For the reasons expressed below, we hold that apportionment of liability for purposes of Civil Code section 1431.21  must take into account the fault of all tortfeasors, whether or not they are named as defendants, subject to liability for damages, or capable of responding in damages.

Factual Background

On December 5, 1986, plaintiff Laura Mills injured her back while at work on the premises of her employer, California Commerce Bank. The injury occurred when the heel of her shoe punctured a section of carpeting that had been laid over an uncovered utility hole. Plaintiff sued the building manager, Community Development & Management Co., Inc.; the carpet installer, MMM Carpets; and the building owners, the Boccardo Corp. and James Boccardo. Industrial Indemnity Company intervened in the action seeking indemnity for workers' compensation benefits it paid to plaintiff on behalf of the employer, its insured.

Defendants answered that plaintiff's employer was itself negligent and that its negligence had contributed to plaintiff's injury so as to reduce its insurer's right to reimbursement. (Witt v. Jackson (1961) 57 Cal.2d 57, 72 [17 Cal.Rptr. 369, 366 P.2d 641].) Defendants also contended that the contributive fault of the employer, like that of any other tortfeasor, was to be considered in determining the proportionate share of each defendant's liability for noneconomic damages under section 1431.2, subdivision (a).

The trial court ruled in limine that the question of the employer's fault for plaintiff's injuries would be submitted to the jury for the limited purpose of determining whether and to what extent the employer was entitled to indemnity, but that the employer's fault would not be considered in apportioning among the defendants any noneconomic loss suffered by plaintiff.

Following trial, the jury returned a special verdict awarding plaintiff $210,516 in economic damages and $200,000 in noneconomic damages. Further, asked to assume that "100 represents the sum of the negligence, if any, . . . of the plaintiff's employers, . . . and . . . of the defendants whose negligence proximately contributed to plaintiff's injury," the jury apportioned fault, 60 percent to plaintiff's employer, 30 percent to MMM Carpets, and 10 percent to Community Development.

In entering judgment, however, the trial court, in accordance with its prior ruling, excluded the employer's fault in apportioning liability for noneconomic damages.2  The court instead reallocated the jury's findings of fault, assigning 75 percent to defendant MMM Carpets and 25 percent to defendant Community Development. As a consequence, the judgment imposed liability for plaintiff's noneconomic damages against MMM Carpets in the sum of $150,000 and against Community Development in the sum of $50,000.

MMM Carpets appeals, contending that exclusion of the employer's percentage of fault from the apportionment equation resulted in an erroneous assessment of MMM's fault contrary to the requirements of the Fair Resposibility Act.


In Evangelatos v. Superior Court, supra, 44 Cal.3d at pages 1196-1198, our Supreme Court held Proposition 51 constitutional and effective prospectively. The court recounted the evolution of proportionate liability: "Prior to the adoption of comparative negligence principles in California in the mid-1970's, the jury, in assessing liability or awarding damages in an ordinary tort action, generally did not determine the relative degree or proportion of fault attributable either to the plaintiff, to an individual defendant or defendants, or to any nonparties to the action. Under the then-prevailing tort doctrines, the absence of any inquiry into relative culpability had potentially harsh consequences for both plaintiffs and defendants. On the one hand, if a plaintiff was found to be at all negligent, no matter how slight, under the contributory negligence rule he was generally precluded from obtaining any recovery whatsoever. [Citation.] On the other hand, if a defendant was found to be at all negligent, regardless of how minimally, under the joint and several liability rule he could be held responsible for the full damages sustained by the plaintiff, even if other concurrent tortfeasors had also been partially, or even primarily, responsible for the injury. [Citation.] Moreover, the governing rules at that time gave the plaintiff unilateral authority to decide which defendant or defendants were to be sued [citation]; a defendant who had been singled out for suit by the plaintiff generally had no right to bring other tortfeasors into the action, even if the other tortfeasors were equally or more responsible for the plaintiff's injury [citation].

"In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] [the Supreme Court] took an initial step in modifying this traditional common law structure, ameliorating the hardship to the plaintiff by abrogating the all-or-nothing contributory negligence doctrine and adopting in its place a rule of comparative negligence. Li held that 'the contributory negligence of the person injured . . . shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.' [Citation.]

"In American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182 [578 P.2d 899] [the Supreme Court] took the next step in modifying the traditional structure, this time altering the preexisting common law doctrines to diminish the hardship to defendants. Although the American Motorcycle court concluded that the traditional common law joint and several liability doctrine should be retained—relying, in part, on the fact that at that time the 'overwhelming majority' of jurisdictions that had adopted comparative negligence had also retained the joint and several liability rule [citation]—at the same time the American Motorcycle court held (1) that plaintiffs should no longer have the unilateral right to determine which defendant or defendants should be included in an action and that defendants who were sued could bring other tortfeasors who were allegedly responsible for the plaintiff's injury into the action through cross-complaints [citation], and (2) that any defendant could obtain equitable indemnity, on a comparative fault basis, from other defendants, thus permitting a fair apportionment of damages among tortfeasors [citation]. . . .

Although these various developments served to reduce much of the harshness of the original all-or-nothing common law rules, the retention of the common law joint and several liablity [sic] doctrine produced some situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff's damages if other more culpable tortfeasors were insolvent.

"The initiative measure in question in this case was addressed to this remaining issue. While recognizing the potential inequity in a rule which would require an injured plaintiff who may have sustained considerable medical expenses and other damages as a result of an accident to bear the full brunt of the loss if one of a number of tortfeasors should prove insolvent, the drafters of the initiative at the same time concluded that it was unfair in such a situation to require a tortfeasor who might only be minimally culpable to bear all of the plaintiff's damages. As a result, the drafters crafted a compromise solution: Proposition 51 retains the traditional joint and several liability doctrine with respect to a plaintiff's economic damages, but adopts a rule of several liability for noneconomic damages, providing that each defendant is liable for only that portion of the plaintiff's noneconomic damages which is commensurate with that defendant's degree of fault for the injury." (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1196-1198, italics added, fn. omitted.)

We restate the provisions of section 1431.2 in question: "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non- economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount."

Courts are bound to give effect to statutes according to the usual ordinary import of the language used. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal.Rptr. 817, 621 P.2d 856].) "Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.] 'If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' [Citations.]" (Ibid.)

Examined in context, the import of the phrase "defendant's percentage of fault" in section 1431.2, subdivision (a), does not vary according to the presence or absence as parties of other tortfeasors in a given case. The word "fault" is neither qualified nor limited so as to mean something less than the entirety of factors contributing to the injury. The word "percentage" means "a part of a whole expressed in hundreds." (Webster's Third New Internat. Dict. (3d ed. 1981) p. 1675.) "[D]efendant's percentage of fault" would not constitute "a part of a whole" if it were quantified in comparison with the fault of fewer than all culpable persons. The interpretation urged by plaintiff and adopted by the trial court would rewrite the statute to provide that the defendant's percentage of fault was to be measured in relation to the fault of only other defendants in the action. The statutory language does not invoke such a limited comparison. It instead most readily suggests comparison with the fault of the entire field of tortfeasors. (Cf. American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 589, fn. 2 [146 Cal.Rptr. 182, 578 P.2d 899] [in determining what degree of fault is ascribed to a plaintiff, it is logically essential that the plaintiff's negligence be proportioned to the combined negligence of the plaintiff and of all tortfeasors whether or not joined as parties].)

A statute must also be construed in accordance with the legislative purpose and design, and the court should recognize both the policy expressed in its terms and the object implicit in its history. (In re Schaefer (1981) 116 Cal.App.3d 588, 597 [172 Cal.Rptr. 335].) The object that a statute seeks to achieve is a prime consideration in its interpretation. (Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 860-861, fn. 12 [171 Cal.Rptr. 619, 623 P.2d 180])

The Fair Responsibility Act's purpose stated in section 1431.1 is:

"(a) The legal doctrine of joint and several liability, also known as 'the deep pocket rule,' has resulted in a system of inequity and injustice that has threatened financial bankruptcy of local governments, other public agencies, private individuals and business and has resulted in higher prices for goods and services to the public and in higher taxes to the taxpayers.

(b) Some governmental and private defendants are perceived to have substantial financial resources or insurance coverage and have thus been included in lawsuits even though there was little or no basis for finding them at fault. Under joint and several liability, if they are found to share even a fraction of the fault, they often are held financially liable for all the damage. The People—taxpayers and consumers alike—ultimately pay for these lawsuits in the form of higher taxes, higher prices and higher insurance premiums.

(c) Local governments have been forced to curtail some essential police, fire and other protections because of the soaring costs of lawsuits and insurance premiums.

Therefore, the People of the State of California declare that to remedy these inequities, defendants in tort actions shall be held financially liable in closer proportion to their degree of fault. To treat them differently is unfair and inequitable . . .."

Thus, while the statute seeks to limit accountability by the degree of personal fault, the judgment here enhances it with the fault of another. The result is a form of joint liability which the statute is meant to avoid. Such an interpretation is contrary to the law's purpose.

We acknowledge that under this construction of the measure a major portion of plaintiff's noneconomic damages will remain unpaid. Our Supreme Court anticipated, yet did not reject, that possible consequence in Evangelatos where the court observed that because the liability of a minimally culpable defendant was limited to the degree of his own fault, an injured plaintiff might not, in a given case, recover all of her noneconomic loss. (Evangelatos, supra, at p. 1198; accord Brown v. Keill (1978) 224 Kan. 195 [580 P.2d 867, 873-874] [where Legislature intends to equate recovery and duty to pay with degree of fault, if by reason of competing social policy the plaintiff cannot receive payment there is no compelling social policy which requires a defendant to pay more than his or her fair share]; Scales v. St. Louis-S.F. Ry. Co. (1978) 2 Kan.App.2d 491 [582 P.2d 300] [it is proper to make an employer a "phantom party" for purposes of comparison only].)

The Fair Responsibility Act does not conflict with the rights and liabilities of employees and employers under the workers' compensation law. (Lab. Code, § 3200 et seq.) It is true, as plaintiff points out, that an employer is generally not liable to an injured employee in an action at law for damages, but solely for the compensation specified in the workers' compensation law. (Lab. Code, § 3602.) An employer is thus said to be "generally immune from tort liability." (Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 506 [145 Cal.Rptr. 608].) Section 1431.2 does not alter that framework.

We also note that the Fair Responsibility Act is not "intended, in any way, to alter the law of immunity." (§ 1431.3.) Consistent therewith, the negligent employer's fault in a case like this one is measured, not in order to impose tort liability on it, but to determine the comparative fault and commensurate liability of a defendant in the action.

For the foregoing reasons, the judgment is reversed with direction that the trial court modify the apportionment of noneconomic damages as against defendant MMM Carpets in a manner consistent with this opinion. MMM Carpets shall recover its costs on appeal.

Cottle, J., and Elia, J., concurred.


1. Civil Code section 1431.2, subdivision (a), provides: "In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount."

All further statutory references are to the Civil Code unless otherwise specified. [Back]

2. Based on the jury's finding as to the employer's contributory fault, the court reduced the economic damage portion of the verdict by the sum of $28,077 and thereby denied the lien claimed by Industrial Indemnity to reimburse it for workers' compensation benefits paid to plaintiff. [Back]