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Joint & Several Liability For Punitive Damages
By Bruce Nye
One of the more peculiar features of California tort law is the interplay between several liability and joint and several liability. Under California's Proposition 51 (Civil Code section 1431.2), when there is more than one tortfeasor, a defendant's liability for "economic damages" -- e.g., earnings loss, medical bills, etc. -- is "joint and several,
meaning that a single judgment for those amounts is entered against all liable defendants, and the plaintiff can enforce the entire amount against any of them without need for apportionment. A defendant's liability for compensation for pain and suffering and other "non-economic damages," on the other hand, is several. The defendant is only liable for these amounts based on his percentage of fault.
This tort reform measure from 1986 has all kinds of ramifications for settlements, set-offs, and enforcement of judgments, all of which will make for an excellent white paper one of these days if CBL or one of his partners ever gets around to writing and posting it. But here's today's question: what about a punitive damage award? Joint and several, or several?
Let's think about this. Under Civil Code section 3294(a), punitive damages are to be set at an amount sufficient to punish a defendant's conduct and make an example of him. And under California law, a plaintiff seeking punitive damages has to prove the financial condition of the defendant, since whether and to what extent the defendant will be punished depends on the relationship between the award and how much money the defendant has and/or earns. Adams v. Murakami (1991) 54 Cal.3d 105
Well, yesterday, the Court of Appeal for the Second District decided Jackson v. Yarbray (November 10,2009) ___Cal.App.4th___ (B204321). Acknowledging that "there is no published decision expressly authorizing a joint and several award of punitive damages," (Slip Op. at 36) the court nonetheless interpreted 1928 Supreme Court dicta in Thomson v. Catalina (1928) 205 Cal. 402, 407-408 (too old for a link) as "plainly suggest[ing] such an award is permissible in appropriate circumstances." According to the Court of Appeal, Thomson "certainly implies that punitive damages do not have to be apportioned when the finder of fact determines the defendants acted jointly to commit a single wrong and each acted with essentially the same degree of culpability."
One of the defendants did raise the question of whether the total amount of punitive damages "when considered as to a single defendant who is jointly and severally liable for that sum, is excessive, either in relation to the compensatory damages awarded or his or her financial condition." (Slip Op. at 37.) However, the Court of Appeal dodged the question, noting that (a) this defendant did not raise compensatory / punitive proportionality on appeal, and (b) under the substantial evidence rule, there was sufficient evidence of that defendant's financial condition to support the entire amount as to him.
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