Diggins v. Jackson

164 P.3d 647, 2007 Alas. LEXIS 84, 2007 WL 2285443

• Court: Alaska Supreme Court
• Decided: August 10, 2007
• Docket: S-11141
• Status: Published

Opinions

OPINION

PER CURIAM.

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 path's 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 jury's verdict found that Jackson's damages totaled $94,948.40, 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 Dig-gins, twenty percent to Moseley, seventy percent to Jackson, and none to Warning Lites.¹

This nominally left Diggins Hable to Jackson for $9,494.34-ten percent of Jackson's total damages. But Diggins asked the trial court, Superior Court Judge Philip R. Vol-land, to offset Jackson's damages by the amounts already paid to him in settlement by Moseley and Warning Lites; since the pretrial settlement payments exceeded Jackson's total damages as awarded by the jury, the offset would have left no further damages for Diggins to pay. The court denied Diggins's 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 court's order declining to offset the prior settlement payments. After hearing oral argument, we stayed Diggins's appeal pending our ruling in an already submitted appeal involving analogous facts and a similar issue, Petrolane Inc. v. Robles² 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 Alaska's 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almost two decades ago, we observed that, "since the pure several liability regime enacted by initiative in 1988 repealed the express availability of full offsets and because a defendant's liability under the 1988 law was limited by comparative fault, there is no reason to allow a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 plaintiff's 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 cireumstances 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 Jackson's 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 Jackson's accident can only favor the conclusion that Petro-lame must also apply here.⁹

Diggins cites no authority and raises no arguments that we did not consider in Petro-lame; 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 Diggins's request for a full offset, we AFFIRM the superior court's judgment.

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 $28,483.00-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, 114 S.Ct. 1461, 128 L.Ed.2d 148 (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 provision's repeal).

10 . Id.