ROMERO v. Al Streich, Peter Ansingh, Irene Glesner, Jan Drenguis, Michael Saunders, Jani Stelzer, Kristin Messer and Brian C. Messer, Defendants. (2004)

OPINION PUBLISHED IN PART

This is a damage suit for wrongful death.   The primary issue before us is whether the trial court erred by refusing to treat a “covenant not to execute” as a “release.”   If the agreement effectively released one defendant from further liability, then the remaining defendant, West Valley School District (the District), the appellant here, is liable for only its proportionate share of the jury's damage award (75 percent).   If, on the other hand, that defendant was not released and remained a party to the suit, then liability is joint and several and the District is liable for 100 percent of the damage award.   We agree with both the rationale of and the holding in a recent  decision ¹ from Division One of this court that the practical effect of these covenants not to execute is to release a defendant from any further liability.   And we reverse the trial judge's ruling to the contrary.   We affirm the balance of the judgment in the unpublished portion of this opinion.

FACTS

The Accident

Aaron Romero was a kindergarten student at Summitview Elementary School in Yakima, Washington.   His mother, Carrie Romero, met him at his classroom door at the end of classes on November 2, 1998.   She had parked her car in an area in front of the school reserved for school buses to park and drive through.   The area was, however, routinely used by everyone to load and unload children.

Ms. Romero took Aaron to the rear door of her car and opened the door for him.   She did not wait for Aaron to get in.   Instead she walked to the driver's door.   She had positioned the driver's door against a curb.   Her passenger door faced the drive through.   Aaron did not get in the car.   He instead turned and walked into the drive through.   A pickup driving down the center of the drive through struck and killed him.   The pickup driver did not and could not see Aaron.

There had been numerous, specific complaints of the chaotic intermingling of cars and people in this drive through.   Clerk's Papers (CP) at 1245.

The Suit

Aaron's parents, Michael and Carrie Romero, and Aaron's estate sued the West Valley School District.   The District denied negligence and affirmatively alleged Ms. Romero's negligence was a factor contributing to Aaron's death.   Mr. Romero and Aaron's estate then cross-claimed against Ms. Romero.   The District unsuccessfully objected to  the motion to add Ms. Romero as a cross-claim defendant arguing that she had parental immunity from suit by her son's estate.

The Settlement Agreement

Mr. Romero and Aaron's estate settled with Ms. Romero.   Ms. Romero agreed to pay the limits of her automobile insurance and $5,000.   Mr. Romero and the estate agreed that if they obtained a judgment of more than $30,000 against the District, they would reimburse Ms. Romero $1 for every $2 they collected from the District over the $30,000 amount, up to $5,000.   They also agreed that Ms. Romero would remain in the suit as a defendant.   But Mr. Romero and the estate would not execute on any judgment obtained against her.   The agreement also provided that the attorney hired by Ms. Romero's insurance company to represent her would withdraw.   And plaintiffs' attorney would represent her at trial.   They called their agreement a “Settlement Agreement and Covenant Not to Execute.”   CP at 1049.   The trial judge ultimately concluded that the settlement agreement was reasonable.

The Trial

An accident reconstructionist and pedestrian safety expert testified for the plaintiffs.   He reviewed police reports, videos of the scene, and photographs of Aaron and the pickup.   He concluded that the drive through was dangerous for children.   And its dangerous condition contributed to the accident.

A transportation engineer also testified for the plaintiffs.   He reviewed the facts of the accident and specifically the design and operation of the bus lane and its use for loading and unloading children.   He concluded that the Summitview drive through “was not reasonably safe under the design and operational conditions that existed.”   Report of Proceedings (RP) at 611.   And, it “certainly was a cause,” from an engineering standpoint, of the accident that killed Aaron.    RP at 611.   The expert also suggested improvements to the design and operation of the drive through.

The jury found in favor of the plaintiffs and awarded damages totaling $1.8 million.   By special verdict, it found the District 75 percent responsible for the losses and Ms. Romero 25 percent responsible.

The trial judge denied the District's motion for judgment as a matter of law and/or new trial.

DISCUSSION

Covenant Not to Execute

The District argues that the practical effect of this settlement agreement was to relieve Ms. Romero of any meaningful exposure in this suit.   And no matter what the Romeros and the estate chose to call their agreement, the suit against Ms. Romero was effectively at an end after the agreement.

The Romeros respond first that the covenant not to execute is contemplated by the tort reform act.   Specifically, RCW 4.22.060(2) ² recognizes covenants not to execute.   It provides that a covenant not to enforce a judgment discharges a party from all liability but does not discharge others on the same claim unless it so provides.   The Romeros also point out that Ms. Romero still had an interest in defending the suit.   She had something to lose by admitting fault-she received a jury award that was $250,000 smaller than Mr. Romero's because the jury found her negligent.

The agreement here is a classic “Mary Carter” ³ agreement.   These agreements effectively limit the settling defendant's liability by

plac[ing] a limit on the [settling defendant's] maximum liability ․, and further provid[ing] that such sum will be  reduced or extinguished in the event of a recovery against the nonagreeing cotortfeasor, the amount of reduction depending on the amount recovered.   Further, the plaintiff agrees not to execute on any judgment against the settling defendant, seeking recourse against only the nonagreeing defendants, and the defendant agrees to continue as a party defendant in the trial of the action.

Christopher Vaeth, Annotation, Validity and Effect of “Mary Carter” or Similar Agreement Setting Maximum Liability of One Cotortfeasor and Providing for Reduction or Extinguishment Thereof Relative to Recovery Against Nonagreeing Cotortfeasor, 22 A.L.R.5th 483, at 497 (1994).

The question whether to construe such an agreement as a release of Ms. Romero has important ramifications for the plaintiffs and the remaining defendant, the District.   If the effect of the agreement is to release Ms. Romero, then the District is liable for only its proportionate share of the jury award-75 percent.  RCW 4.22.070(1).   But if Ms. Romero is not “released” by the agreement, and remains a defendant, then the District is jointly and severally liable for the total damage award.   And Mr. Romero and the estate can collect 100 percent of their award from the District.  RCW 4.22.070(1)(b).  The purpose of the agreement here is to avoid the “several” liability scheme directed by the legislature as part of tort reform in 1986.

This same question before us has been recently answered by Division One of this court:  “[t]he central issue in this case is the meaning of ‘release’ as it is used in the [tort reform act].”  Maguire v. Teuber, 120 Wash.App. 393, 395, 85 P.3d 939 (2004).   The court there held that a covenant not to execute on a judgment was the same as a “release,” as that term is used in the tort reform act.  Id. at 396, 85 P.3d 939.   The court concluded that RCW 4.22.070 (the statute imposing joint and several liability) uses the term “release” as a verb, not as a noun.  Id. That is, the statute provides that “[j]udgment shall be entered against each defendant except those who have been released by the claimant.”  RCW 4.22.070(1).   And the court, we think appropriately, focused  on the practical effect of what was being accomplished by the agreement:  “[t]he settlement document in this case has the practical effect of releasing the defendants.”  Maguire, 120 Wash.App. at 397, 85 P.3d 939.   And that is precisely the effect here.

The common law doctrine of joint and several liability served important and appropriate legal and social purposes.  Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 236, 588 P.2d 1308 (1978).   But the legislature saw fit to reject that notion in favor of a legal policy that defendants should only be liable for that portion of the damages they caused.   J. Michael Phillips, Comment, Looking out for Mary Carter:  Collusive Settlement Agreements in Washington Tort Litigation, 69 Wash. L.Rev.. 255, 257 (1994);  Cornelius J. Peck, Reading Tea Leaves:  The Future of Negotiations for Tort Claimants Free from Fault, 15 U.P.S. L.Rev. 335, 343-44 (1992).   That is a proper legislative function.   See Niece v. Elmview Group Home, 131 Wash.2d 39, 58, 929 P.2d 420 (1997).   And so we are not free to read it out of the statutory scheme.   See Ko v. Royal Globe Ins. Co., 20 Wash.App. 735, 740, 583 P.2d 635 (1978).

In Alder v. Garcia, a New Mexico case, the court analyzed a Mary Carter agreement using New Mexico's version of tort reform law.  Alder v. Garcia, 324 F.2d 483 (10th Cir.1963).   There, the court held that an agreement similar to that made by the Romeros was contrary to the public policy expressed in New Mexico's Contribution Among Joint Tortfeasors Act. Id. at 485.   The claimant there had settled with one tortfeasor.   He agreed to assign to that tortfeasor's insurer one-half of the claimant's recovery from the remaining tortfeasor, up to $80,000.   But a New Mexico statute prohibited a settling tortfeasor from recovering contribution from another joint tortfeasor, one whose liability was not extinguished by the settlement.  Id. In Alder, the assignment allowed the insurer to recoup from the remaining tortfeasor up to one-half of its settlement.   The court concluded that the result was contrary to the policy expressed by the New Mexico law that settling tortfeasors have no right of contribution against nonsettling tortfeasors.   Id.

 Here, this “Settlement Agreement and Covenant Not to Execute” effectively released Ms. Romero.   It allowed Mr. Romero and the estate to collect 100 percent of any judgment from the District.   And, like the result in Alder, the intended result here is contrary to the letter and spirit of the tort reform act.   We hold then that the District is liable for only its proportionate share of the jury's award of damages-75 percent.

We reverse the judgment to the extent it provides the District is jointly and severally liable for the portion of Mr. Romero's and the estate's damages that the jury attributed to Ms. Romero's negligence. The District is not jointly liable for Ms. Romero's negligence.   We need not address the District's arguments that Ms. Romero had parental immunity from suit by Aaron's estate and that RCW 4.24.010, which provides for a single cause of action by the parents for a child's death, prevented Mr. Romero from suing both the District and Ms. Romero.

The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.  RCW 2.06.040.

Judgment As a Matter of Law

The District argues that there is no proof that this drive through was unsafe for children attended by an adult.   And here Aaron was attended by his mother.   The District couches the issue as whether its duty to supervise Aaron ended when Ms. Romero picked up Aaron from his classroom.   And even if some duty did devolve upon the District, it argues there is no showing the District's breach caused the accident.   After all, the driver did not even see Aaron.   And, therefore, a crosswalk (experts opined there should be one) would not have prevented the accident.

Whether the superior court erred in denying the District's motion for judgment as a matter of law turns on two questions:  Did the District owe a duty to Aaron and did it breach that duty and thereby cause the plaintiffs' damages?   The first question-the existence of a duty-is a question of law.   Rasmussen v. Bendotti, 107 Wash.App. 947, 955, 29 P.3d 56 (2001).   The second question-the existence of a breach and causation-is for the jury based on the evidence.  Fuentes v. Port of Seattle, 119 Wash.App. 864, 868, 82 P.3d 1175 (2003).

As to the first question, whether the District owed a duty to Aaron, instruction 23 is a correct statement of the law:  “[T]he West Valley School District ․ had a duty to exercise reasonable care in the operation of the loading area at Summitview Elementary School․” CP at 394.

The District contends that instruction 27 was based on an alleged duty of the District to supervise Aaron even when he was in his mother's physical custody.   That instruction does not, however, state a separate duty of supervision apart from the District's duty, as the owner of property, to protect people invited onto the property from known dangers.   It reads:

A School District has a duty to anticipate dangers, which may reasonably be anticipated, and to then take precautions to protect its[ ] pupils from such dangers.

The intervening act of a third party does not relieve a defendant of its negligence where the actual harm fell within a field of danger, which should have been anticipated.

CP at 398.

The District's duty did not end when Ms. Romero picked up Aaron from his classroom.   The District had a duty to make these premises reasonably safe for the intended users.  Fuentes, 119 Wash.App. at 869, 82 P.3d 1175.   And instruction 27 properly instructed that the duty to make the premises reasonably safe included a duty to anticipate dangers and to take precautions to protect the intended users here-its pupils.   See Restatement (Second) of Torts § 343A cmt. f (1965);  Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 54-55, 914 P.2d 728 (1996);  Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 140-41, 875 P.2d 621 (1994).

Nor does the intervening act of a third party relieve the District of its duty so long as the actual harm falls within a field of danger to be anticipated.   Riojas v. Grant County Pub. Util. Dist., 117 Wash.App. 694, 697, 72 P.3d 1093 (2003), review denied, 151 Wash.2d 1006, 87 P.3d 1184 (2004).   Here, the operation of this drive through posed a risk of injury or death to students or others using it.   The District then had a duty to take precautions to protect them.   The negligence of Ms. Romero was precisely the type of event (loading and unloading children at an elementary school properly and improperly) that the District had a duty to foresee.   Her negligence then did not relieve the District of its duty as owner of the premises.   Ms. Romero's negligence was not a superseding cause that broke the chain of causation so that the District's negligence could not be said to be a proximate cause of the injury.  Id.

As to the second question-breach and causation-the District argues that rules restricting cars to the south side of the drive through and requiring curbside loading only, as the plaintiffs' expert recommended, would not have prevented this accident.   It relies on the fact that the driver of the pickup that hit Aaron testified he could not see Aaron in front of his pickup because Aaron was not tall enough.   The District cites Flowers v. K-Mart Corp. for the proposition that the failure to provide a crosswalk is not the proximate cause of an accident if the driver could not see the pedestrian.  Flowers v. K-Mart Corp., 126 Ariz. 495, 616 P.2d 955 (1980).

K-Mart is not helpful.   The plaintiffs there argued that K-Mart was negligent by not providing a pedestrian crossing area for the driveway in front of its store.   The court granted the defendant's motion for summary judgment because there was no showing that the at-fault driver would have seen the plaintiffs had they been in a crosswalk.  Id. at 498-99, 616 P.2d 955.   The plaintiffs' showing here was that Aaron would not have been in the drive through at all if the school had prohibited parking on the north side of the drive through and enforced that rule.   In any event, use of a monitor to stop traffic and usher children across the drive through (again as plaintiffs' experts suggested) would have given the driver of the pickup notice, at least, to expect the presence of children crossing at a particular place.

The District also argues that it cannot be liable for 75 percent of the plaintiffs' damages because “it was almost 100% certain that if Carrie Romero had buckled [Aaron] in and shut the door the accident would not have happened.”   Appellant's Br. at 33.   That is a plausible factual argument.   But it is also just that-a factual argument.   The jury's allocation of fault was within the range of the evidence.   See Pepper v. J.J. Welcome Constr.   Co., 73 Wash.App. 523, 545, 871 P.2d 601 (1994).

The evidence amply supports the jury's verdict.

District's Motions for New Trial and Mistrial

Duty Instructions

The District next complains about the number of instructions given by the court on the duty it owed the plaintiff.   It argues the instructions were multiple statements of the same duty-to maintain its property in a reasonably safe condition for the public.   The plaintiffs respond that the District did not propose any instruction on their various theories of liability including failures of design, maintenance, and operation of a bus/student loading zone.   And, more importantly, the court's instructions allowed the District to argue its theory of the case to the jury.

The court instructed that the owner of premises owes to a public invitee a duty to exercise ordinary care for his or her safety;  that a school district owes to its school children a duty to exercise ordinary care for their safety;  that the West Valley School District, acting through its employees, had a duty to exercise reasonable care in the operation of the loading area at Summitview Elementary School;  that a school district has a duty to exercise reasonable care in the inspection of its premises in order to maintain them in a reasonably safe condition;  that a school district has a duty to eliminate a hazardous condition on its property, if one exists, and its existence is known, or should have been known, to the school district in the exercise of ordinary care;  and that a school district has a duty to anticipate dangers which may reasonably be anticipated.

And so certainly these are multiple statements of the District's duty.   But the number and wording of instructions is a decision we leave to the sound discretion of the trial judge.  Douglas v. Freeman, 117 Wash.2d 242, 256, 814 P.2d 1160 (1991).   The District relies on Worthington v. Caldwell for the proposition that the number of these instructions on duty affected the size of the damage awards.  Worthington v. Caldwell, 65 Wash.2d 269, 276-77, 396 P.2d 797 (1964).   But in Worthington the court ultimately affirmed a trial court's decision to grant a new trial because “where liability has been established as a matter of law, keeping it in issue under the whole instructional spectrum ․ quite probably affected the jury's view on quantum of damages.”  Id. at 277, 396 P.2d 797.   Here, there was disputed evidence of a breach of duty that required the submission of the question of liability to the jury.   And so the holding in Worthington simply does not apply:  “where one party is entitled to a verdict under the law, the giving of numerous instructions, under which the jury may weigh all of the evidentiary minutiae from which liability or exoneration derives, probably affects the jury in deciding the distinctly separate issue of damages.”  Id. at 276-77, 396 P.2d 797.

We find no abuse of the judge's exercise of discretion.   These instructions did not “so repetitiously cover a point of law ․ as to grossly outweigh their total effect on one side and thereby generate an extreme emphasis in favor of one party to the explicit detriment of the other party.”   Samuelson v. Freeman, 75 Wash.2d 894, 897, 454 P.2d 406 (1969).

Motion for Mistrial-Post Accident Remedial Measures

The court prohibited evidence at trial of remedial measures the District took after the accident.

Nonetheless, a witness, a school bus driver, referred to those measures:

Q Were changes ever made at Summitview?

A Not until after.

RP at 319.

A Nothing was done until after the accident.

RP at 327.   The District objected.   The court sustained the objection and then told the jury to disregard the answer.   The District moved for a mistrial.   The court denied the motion.

The trial court had allowed the jurors to submit written questions to the witnesses.   Juror 12 asked:  “what changed after the accident?”   RP at 379.   The court talked to Juror 12.   It asked her why she asked that question, and referred to its order to disregard the bus driver's answer about subsequent changes.   The juror remembered the court instructing the jury but did not remember that the instruction to disregard referred to the bus driver's reference to subsequent changes.   The juror assured the court that she could disregard the answer.

The court then asked counsel whether the juror should be excused.   The District responded with a concern that if Juror 12 was wondering about subsequent changes, then other jurors were also wondering.   The court did not dismiss Juror 12:

The manner in which she answered the questions ․ was very candid and very open and just from her expressions and reflection and the way she answered, that she says she didn't hear me say to disregard․ [A]nd she said, she sure will, and it won't [a]ffect her in any way whatsoever.   I believe her.   I think she's not trying to hide anything.

RP at 382-83.   And the court again denied a motion for mistrial.

We review the court's refusal to grant a mistrial for abuse of discretion.   State v. Rodriguez, 146 Wash.2d 260, 269, 45 P.3d 541 (2002);  Rich v. Starczewski, 29 Wash.App. 244, 247, 628 P.2d 831 (1981).   And the standard appears to be even more rigorous for denial of a motion for mistrial.   A decision denying a new trial will be overturned only in circumstances in which a substantial likelihood exists that the error prompting the motion for mistrial affected the jury's verdict.  Rodriguez, 146 Wash.2d at 269-70, 45 P.3d 541.   And the trial court does not abuse its discretion by denying a mistrial when the testimony is inadvertent and neither the witness nor the attorney willfully or collusively injected the evidence into the proceedings.   Lyster v. Metzger, 68 Wash.2d 216, 224, 412 P.2d 340 (1966).   We defer to the trial judge because he was in the best position to pass on the effect on the jury, if any, of such violations of its orders in limine.  Church v. West, 75 Wash.2d 502, 506, 452 P.2d 265 (1969).

The school bus driver's testimony here was ambiguous.   She did not specify the nature of the changes.   The court did not abuse its discretion.

Instruction re:  Duty of Care Owed by Driver of Truck

The District asked the court to instruct the jury that “[i]f a driver has reason to anticipate that a child might be near his automobile, it is his duty to see that the way is clear before starting the vehicle into motion, but, if he has no reason to anticipate the presence of children near his car, negligence cannot be predicated on the mere fact that he started his machine, injuring the child.”   CP at 454.   The instruction was approved in Rose v. Nevitt.4  But here the court instructed the jury generally that:  “Every person has a duty to see what would be seen by a person exercising ordinary care.”   CP at 389.   This instruction allowed the District to argue that the driver of the pickup should have anticipated that children could be in front of his pickup and to proceed accordingly.   The court did not err in refusing to give the District's proposed instruction.

The Special Verdict Form

The special verdict form the court submitted to the jury asked the jury to decide whether the District, Ms. Romero, or the pickup driver was negligent, their percentage of fault, and the amount of damages, if any, to be awarded to the estate, Michael Romero, and Carrie Romero.   CP at 366-68.   The District contends that the effect of the separate entries for Mr. Romero and Ms. Romero on the special verdict form was to allow the plaintiffs to double-dip.   In its view, RCW 4.24.010 does not provide for separate awards to married parents.   Under the statute, such a splitting of damages is only appropriate if the parents are not married or if they are separated.

The District argues that the legislature, in specifying that it was creating only one cause of action, determined that the negligence of one of the parents, if married, would diminish the claim.   And, therefore, RCW 4.22.020, which bars imputation of negligence of one spouse to the other, does not apply. 5  Further, because RCW 4.22.020 was in existence when the legislature enacted RCW 4.24.010, the legislature must have intended to override RCW 4.22.020 in an action for death of a child.

“In mandating one cause of action, we presume the Legislature sought to eliminate piecemeal litigation and the potential for double recovery.”   Wrenn v. Spinnaker Bay Homeowners Ass'n, 60 Wash.App. 400, 406, 804 P.2d 645 (1991).   Mr. Romero's cross-claim is consistent with this legislative purpose-the claim was resolved in the same litigation as the claim against the District.   And, it posed no potential for double recovery because the same trier of fact awarded damages on the claim against the District and the claim against Ms. Romero.

The fact that the “no imputation provision” of RCW 4.22.020 was in effect when the legislature re-enacted RCW 4.24.010 leads us to the conclusion that the legislature intended the no-imputation provision to apply.   It is likely the legislature deemed it unnecessary to incorporate by reference the “no imputation” provision of RCW 4.22.020 because it is not inconsistent with the “one action” provision of RCW 4.24.010.

Failure to Instruct on Joint Liability/Mary Carter Agreement

The District assigns error to the trial court's refusal to instruct the jury on the effect of this Mary Carter agreement as to joint and several liability.   But given our holding that the Mary Carter agreement effectively removed Ms. Romero as a defendant, there is no joint and several liability.   Accordingly, the issue here respecting the jury instructions is moot.   That is, such instructions have “no practical significance” after Ms. Romero is removed as a defendant.   See Black's Law Dictionary 1029 (8th ed.2004).

HOLDING

We reverse the judgment against the District for the full sum of damages imposed by the jury and remand for entry of a judgment for only its percentage share (75 percent) of the damage award.   We affirm the balance of the court's decisions.

FOOTNOTES

1.   Maguire v. Teuber, 120 Wash.App. 393, 85 P.3d 939 (2004).

2.   The statute provides, in part, that “[a] ․ covenant not to enforce judgment ․ discharges that person from all liability for contribution.”

3.   “Mary Carter” comes from the agreement considered in Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.Dist.Ct.App.1967).

4.   Rose v. Nevitt, 56 Wash.2d 882, 886, 355 P.2d 776 (1960).

5.   RCW 4.22.020 provides that “[t]he contributory fault of one spouse shall not be imputed to the other spouse or the minor child of the spouse to diminish recovery in an action by the other spouse or the minor child of the spouse, or his or her legal representative, to recover damages caused by fault resulting in death or in injury to the person or property, whether separate or community, of the spouse.”

SWEENEY, A.C.J.