On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-000138-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
We granted leave to appeal to review interlocutory rulings of the Law Division (1) precluding plaintiff from recovering wrongful death damages from defendants Kyle Newell and Andrew Swanson (defendants) because she had received full satisfaction from settling and non-settling defendants; and (2) capping plaintiff's economic damages at $800,000. For the following reasons, we reverse the former and affirm the latter.
The facts are recited at length in our previous opinion, Podias v. Mairs, 394 N.J. Super. 338 (App. Div.), certif. denied, 192 N.J. 482 (2007), and need not be repeated at length here. Briefly stated, plaintiff's decedent, Antonios Podias, was struck by a car driven by Michael Mairs, in which Newell and Swanson were passengers. All three left Podias in the middle of the Parkway where he was subsequently struck and killed by a car driven by Patricia Uribe. Plaintiff Sevasti Podias, individually and on behalf of her late husband's estate, brought survival and wrongful death claims against Mairs, Newell, Swanson and Uribe, as well as Thomas, Daniel and Anne Chomko (the Chomko defendants) at whose home Mairs and the two defendants had been drinking alcohol earlier in the evening of the accident. Mairs and the Chomko defendants settled prior to trial in the respective amounts of $l,075,000 and $300,000. Newell and Swanson were granted summary judgment based on the motion judge's finding no legal duty on defendants' part to volunteer emergency assistance. Trial proceeded against the lone remaining defendant, Uribe, after which the jury returned a wrongful death verdict in the amount of $800,000, allocating Uribe 10% fault ($80,000) and Mairs 90% fault.*fn1
In the interim, we granted leave to appeal the grant of summary judgment in favor of Newell and Swanson, and found that, under the circumstances, under the derivative theory of concert liability, a jury could reasonably find that defendants substantially assisted Mairs in his breach of a direct legal duty to decedent. Podias, supra, 394 N.J. Super. at 354-55. Consequently, we reversed and remanded the matter for trial of plaintiff's wrongful death and survival claims against Newell and Swanson. Defendants then moved in limine to limit plaintiff's wrongful death claim to the $800,000 in economic damages awarded at the earlier trial. The trial judge not only agreed to cap plaintiff's wrongful death damages at $800,000 by barring proof on the issue of economic loss, but, in addition, held that because plaintiff had already recovered more than that amount from the settling defendants and Uribe, she was precluded from pursuing a wrongful death claim against Newell and Swanson, effectively limiting plaintiff's recovery exclusively to her survival claim. Plaintiff then moved for leave to appeal from the interlocutory order of March 11, 2008, encompassing both rulings.
As to the former, the trial judge voiced concern that by allowing plaintiff to recover from defendants, she might receive a windfall as a result of settlements with Mairs and the Chomko defendants, as well as the judgment against Uribe. All parties agree, however, that the judge erred, as a matter of law, in barring plaintiff's wrongful death claim against Newell and Swanson, essentially conceding that a jury is duty-bound to consider the percentage share of fault, if any, of these defendants and that plaintiff is entitled to recover wrongful death damages in accordance with any adjudicated allocation.
The law construing the respective obligations of tortfeasors is well-settled. Johnson v. Am. Homestead Mortg. Corp., 306 N.J. Super. 429, 436 (App. Div. 1997). New Jersey "favors the apportionment of fault among responsible parties." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005) (citing Scafidi v. Seiler, 119 N.J. 93, 109-14 (1990) and Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004)). Indeed, the Comparative Negligence Act (Act), N.J.S.A. 2A:15-5.1 to-5.8, mandates the apportionment of fault where "the question of liability is in dispute." N.J.S.A. 2A:15-5.2(a). The Act provides:
a. In all negligence actions and strict liability actions in which the question of liability is in dispute,... the trier of fact shall make the following as findings of fact:
(1) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party's damages.
(2) The extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%.
Thus, the law, enacted in 1973, replaces the "pro rata liability of joint tortfeasors under the Joint Tortfeasors Contribution Law, former N.J.S.A. 2A:53A-1, with the obligation of each tortfeasor to pay damages in accordance with its own adjudicated percentage of fault." Johnson, supra, 306 N.J. Super. at 436 (citing Rogers v. Spady, 147 N.J. Super. 274, 277 (App. Div. 1977)). In fact, even where the apportionment proofs are too imprecise for a jury to make an allocation, the law nevertheless favors apportionment among tortfeasors, Boryszewski, supra, 380 N.J. Super. at 375-76, and allows the judge "to apportion damages equally among the various causative events." Campione v. Soden, 150 N.J. 163, 184 (1997).
On this score, "[i]t is appropriate for juries to apportion fault between defendants who settled before trial and those who did not." Boryszewski, supra, 380 N.J. Super. at 375. Although, on the one hand, settling defendants are not liable to pay more than the settlement amount, Young v. Latta, 123 N.J. 584, 591-96 (1991), on the other hand, plaintiffs may recover the full amount of the adjudicated percentages of fault against the non-settling defendants and retain proceeds from the settling tortfeasors. Johnson, supra, 306 N.J. Super. at 436. In other words, comparative-negligence joint tortfeasors do not reduce "their liability based on a plaintiff's pretrial settlement with a defendant who is never found to be liable at all." Ibid. Simply put, "under the comparative-negligence scheme, a plaintiff is entitled to retain the proceeds of the pretrial settlement as well as the full jury verdict as allocated ...