Appeal from Superior Court, Pierce (93-2-06301-1) County; Honorable Rosanne Buckner, Judge. Judgment Date: 8-9-95.
Durham, C.j., Dolliver, Smith, Guy, Johnson, Madsen, Alexander, Talmadge, Sanders, J.j., concurring.
DURHAM, C.J. -- Representatives of Hartford M. Edgar (Edgar) seek review of a trial court decision which held that the 1993 amendments to RCW 4.22.070(1) violated the right of the City of Tacoma (City) to a jury trial under Const. art. I, § 21. The trial court ruled that the City had the right to ask the jury to assign a percentage of fault to Edgar's immune employer, and reinstated the 1986 version of RCW 4.22.070(1). We reverse. Under the 1993 version of RCW 4.22.070(1), the percentage of fault attributable to an immune employer is not a relevant issue of fact because it has no legal effect on the respective liability of the parties. Consequently, the 1993 amendments to the contributory fault system do not remove any relevant factual issue from the jury's consideration and, therefore, do not violate the right to jury trial.
Edgar was killed in a construction accident at a dam owned by the City. He was an employee of the general contractor, Ledcor Construction, Inc. Edgar brought this action against the City, alleging that the City negligently failed to enforce safety regulations. Edgar could not sue Ledcor due to its immunity under the Industrial Insurance Act, RCW Title 51.*fn1
The City contends the accident was caused by the fault of either Ledcor, Edgar, or both. Under the 1993 version of RCW 4.22.070(1), the jury would be permitted to assign fault to only the City and Edgar. The City seeks to have the jury assign a percentage of fault to Ledcor, thereby reducing its own proportionate liability for Edgar's damages. However, the 1993 amendments to the contributory fault system removed immune employers from the list of entities to whom fault may be assigned..
[EDIT ] IS OVERSTRUCK IN THE SOURCE]
In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages(([O>,includingexcept entities immune from liability to the claimant under Title 51 RCW, The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent. The entities whose fault shall be determined include the claimant or person suffering personal injury or incurring property damage, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant and entities immune from liability to the claimant (([O>and entities with any other individual defense against the claimantbut shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages. The liability of each defendant shall be several only and shall not be joint except. . . .
Laws of 1993, ch. 496, § 1, p. 2235; RCW 4.22.070(1).*fn2
The City, therefore, sought a trial court ruling that the 1993 amendments are unconstitutional. The trial court held that the 1993 amendments are unconstitutional under Const. art. I, § 21 and Geschwind v. Flanagan, 121 Wash. 2d 833, 854 P.2d 1061 (1993) "because they impose arbitrary limits on the jury's ability to determine the comparative fault of entities immune from liability under Title 51 RCW." Clerk's Papers at 331. The trial court reinstated the 1986 versions of RCW 4.22.070(1) and RCW 51.24.060, permitting the jury to assign fault to Ledcor.
Sofie v. Fibreboard Corp.
The Washington constitution provides that "the right of trial by jury shall remain inviolate. . . ." Const. art. I, § 21. This court's basic rule for interpreting the right to jury trial is to examine the right as it existed at the time of the adoption of our constitution in 1889. Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711, 780 P.2d 260 (1989).*fn3
In Sofie, this court invalidated a controversial part of the 1986 tort reform act (TRA) which placed a limit on non-economic damages in personal injury and wrongful death actions. RCW 4.56.250 limited non-economic damages using a formula based on the age of the plaintiff. If the jury awarded non-economic damages which exceeded the limit, the trial court simply reduced the award by applying the formula. A divided court held that the statute violated Const. art. I, § 21 by interfering with the jury's traditional function to determine damages. Sofie, 112 Wash. 2d at 638.
This court considered two issues in deciding whether the right to jury trial applied: (1) the scope of the jury trial right, and (2) the causes of action to which it applies. On the scope issue, we observed that the determination of damages, particularly an injured plaintiff's non-economic damages, was historically an issue of fact for the jury. Sofie, 112 Wash. 2d at 645-48. On the second issue, this court rejected the suggestion that the right to jury trial attaches only to causes of action which existed at common law in 1889. We noted that this analysis would result in a right to jury trial which diminished over time and that it was more appropriate to apply recent ...