Apportionment of Damages

When more than one defendant causes damages to the same plaintiff, it used to be that every defendant was jointly and severally liable, meaning the plaintiff could recover the full amount of damages from any defendant, even if they only caused a small amount of the total harm.  Seattle-First Nat’l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 235-36, 588 P.2d 1308 (1978).  That defendant then had to sue the other defendants for contribution of their fair share of the damages.  Id. at 236.  This was fair to the plaintiff, who could recover full damages even if one defendant could not pay their share.  However, it was not fair to defendants who had to pay someone else’s share of damages, so the rule was changed.

Under the Tort Reform Act, the general rule is that each defendant only has proportionate liability for their share of the harm caused.  RCW 4.22.070(1).  If a defendant is unable to pay their share, the plaintiff cannot recover that share from another defendant.  There are exceptions.

First, sometimes a plaintiff is partially at fault for their own injury.  The plaintiff might also have been somewhat negligent, or failed to mitigate their damages.  If not, an entirely blameless plaintiff can recover their full damages from any defendant, regardless of that defendant’s share of fault.  RCW 4.22.070(1)(b).

Second, if multiple defendants were acting in concert, or one defendant was acting as an agent or employee of another, the plaintiff may recover one defendant’s share from the other defendant.  RCW 4.22.070(1)(a).

In many cases involving product liability or hazardous wastes, the proportionate liability rule does not apply.  RCW 4.22.070(3)(a) & (c).  Oddly, the proportionate liability rule also does not apply to claims for tortious interference with contracts or business relations.  RCW 4.22.070(3)(b).

Finally, if one defendant settles before a judgment is reached, special rules apply.  RCW 4.22.070(2).  The court has to determine if the settlement was reasonable.  If so, the settlement amount is deducted from the amount the plaintiff can recover against other defendants.  RCW 4.22.060(2).  If not, the court will determine what a reasonable settlement would have been, and will deduct only that amount from what the plaintiff can recover from other defendants.  Id.  However, the settlement agreement remains in effect, and the settling defendant is not required to pay a different amount to the plaintiff.  RCW 4.22.060(3).