Tegman Update: The History of Joint and Several Liability leading up to Tegman
Tuesday, August 17, 2021
by: Jade Park & Joanne Blackburn, Gillaspy & Rhode PLLC

Section: Summer 2021

Jade Park
Jade enjoys litigating in the Construction Defect and Personal Injury arena. She worked for Honorable Douglas North and Honorable Veronica Galvan in the King County Superior Court before entering into the private practice. She likes to immerse herself in poetry and gallery hopping, especially at SAM and SAAM.

Joanne Blackburn
Joanne Blackburn has been litigating for over 34 years in Alaska, Washington, and California courts. She specializes in Construction, Product Liability, and all types of civil litigation. Her last trial was right before COVID hit, in San Francisco for an allegedly defective product installed in several apartment buildings. When she is not busy in Court, she is crabbing, shrimping, or fishing around Lopez Island.
A brief history behind the Tegman ruling explains how the courts took their rigid application of strict liability and realized it needed an escape valve for defendants that truly were not responsible for another defendant’s actions. The Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) case is the perfect example of how defendants must position themselves when they are in a joint and several liability situations in order to avoid exposure to those damages they did not proximately cause.
In Summers, the plaintiff sued two defendants for an injury to his eye after both defendants shot into the air while hunting birds. Here, there was no evidence as to which defendant’s bullet was the ultimate “cause” of plaintiff’s injuries. As a result, the court held that when two or more defendants are found independent tortfeasors, and there is no way to prove who caused the harm, the plaintiff should not be deprived of redress. Instead, the longstanding rule was established that defendants had the burden of proof for apportioning should always be on the defendant apportion fault. The court reasoned that it would be an unjust result for the plaintiff’s to not be made whole.  The court based this upon the holding that there was no evidence proving which defendant caused the actual injury. The Court held that the burden of proof must be shifted to the defendant in order to provide redress to the injured party regardless of whether proximate cause could be established.  This case obliterated the long-established rule for actionable negligence which required the Plaintiff to prove all the elements necessary for such a claim, including proximate cause.
The courts created the presumption that the defendant carries the burden of segregating harm, which is often impossible to prove, specially where there is an invisible harm. This invisible harm usually involves a harm that does not arise from one obvious act, but rather, a plethora of independent acts.
The Problem:  RCW 4.22 and the Tort Reform Act of 1986
The legislative intent of the tort reform act was to “enact further reforms in order to create a more equitable distribution of the cost and risk of an injury and increase the availability and affordability of insurance.” Laws of 1986, ch. 305, § 100. RCW 4.22.070, enacted as part of the tort reform act of 1986, is “the centerpiece of the 1986 amendatory package.” Kottler v. State, 136 Wash. 2d 437, 443, 963 P.2d 834, 838 (1998). Since then, cases like Welch[1], Rollins[2], and Tegman[3], have cited this principal in support of their various interpretations of RCW 4.22.070.
RCW 4.22.070 created the general rule of   comparative fault amongst defendants and a plaintiff that also had fault for an incident. The rule established that  Defendants would be held severally negligent, unless one of the following scenarios were present: the plaintiff is not fault free, the person with fault is acting as an agent of the defendant, or the case falls within one of the three exceptions to the statute. 
The cases leading up to Tegman concern Plaintiffs who are fault free. In such instances, RCW 4.22.070(1)(b) is the section of the statute that applies. RCW 4.22.070(1)(b) requires  that defendants are jointly and severally liable for their proportionate share of the sum of the plaintiff’s damages given that judgment is entered against them. Tegman carved out an exception to this rule.
Welch v. Southland Corporation
The Court in  Welch v. Southland Corp. set the ground work for the Tegman instruction.  A brief look at the Welch case is necessary to under the Tegman instruction. In Welch the court,[4] restricted the application of the RCWs governing joint and several liability and whether fault can be apportioned to a non-party intentional tortfeasor. The Welch Court held that under RCW 4.22.070, a small grocery store could not apportion liability to a non-party patron who directly caused the harm. This restricted application made it more difficult to apply RCW 4.22.070 to cases which had contorted facts behind the actual tort which Plaintiffs alleged against several defendants.
Welch was shot by another patron at a 7-11 store owned by Southland Corporation. Welch brought a case against Southland, alleging that Southland had failed to maintain a safe premise for its business invitees. The assailant had not been apprehended, nor joined in Welch’s case against Southland.
The trial court ruled that Southland could apportion fault to an independent tortfeasor, despite his absence as a party in the lawsuit., but  the Court of Appeals reversed the trial court’s ruling. The Appellate Court ruled that it was reversible error and held that intentional acts are included in the statutory definition of “fault” in the contributory and comparative fault statutes. Under Welch, a negligent defendant could not apportion liability to an intentional tort-feasor who was not a party to the lawsuit.
This holding created chaos in the business, insurance and legal world.  The cases that followed Welch were left to interpret this new standard and conflicting applications of this new standard occurred which formed the basis for the Tegman ruling that followed.
Tegman v. AMI [5]
In Tegman, the Washington Supreme Court attempted to clear up the confusion caused by the Welch decision and held that damages from intentional acts can be segregated from those resulting from negligence.
Tegman involved a plaintiff that alleged negligence against several defendants for their representation of plaintiff in an auto-claim, where they misappropriated plaintiff’s funds and fraudulently settled her case without her authorization. Plaintiff retained Accident Medical Investigations, Inc. (AMI) to represent her in a personal injury lawsuit.. AMI was run by Richard McClellan, a person that did not have a license to practice law. McClellan settled plaintiff’s case without her knowledge or consent, forged her signature, and placed the settlement funds into his general bank account. Other defendants in the lawsuit were, Camille Jescavage and Lorinda Noble, both licensed attorneys working for AMI. Both attorneys knew that Mr. McClellan was not licensed to practice law, and knew that all settlement proceeds from cases at  AMI were put into Mr. McClellan’s personal bank account. Dolares Mullen, a paralegal at AMI was also a named defendant. Plaintiff sued AMI, and also, McClellan, Jescavage, Noble, and Mullen. The court granted summary judgment against AMI and McClellan finding them guilt of negligence, the unauthorized practice of law, breach of fiduciary relationship, misrepresentation, conversion, breach of contract, violation of the CPA, and criminal profiteering. Following a six-day bench trial, the court held Jescavage, Noble, and Mullen liable for negligence and malpractice.
On appeal, Noble argued that the trial court erred in holding her jointly and severally liable for Plaintiff’s compensatory damages for both negligent and intentional torts, rather than imposing joint and several liability only as to the negligent torts. The Supreme Court agreed.
“We hold that under RCW 4.22.070, the damages resulting from negligence must be segregated from those resulting from intentional acts, and the negligent defendants are jointly and severally liable for the damages resulting from their negligence. They are not jointly and severally liable for damages caused by the intentional acts of others.” Id. at 105.
Thus, the Tegman Court interpreted RCW 4.22.070(1)(b) to hold, that even when a plaintiff is fault free, a negligent tortfeasor is individually liable under RCW 4.22.070, and only jointly aseverally liable for damages caused by their negligence. The Court in Tegman changed the narrow interpretation of joint and several liability created under Welch. The Court held, “intentional torts are part of a wholly different legal realm and are inapposite to the determination of fault pursuant to RCW 4.22.070(1),” because “no ‘fault as defined by RCW 4.22.015, is involved.” Id. at 110.
Tegman illustrated, “[even] as to fault based damages where there is a fault free plaintiff, RCW 4.22.070(1)(b) does not set forth a rule of full joint and several liability as known at common law… Instead, the statute states a modified form of joint and several liability.” Id. at 113. At fault defendants may be jointly and severally liable, but even so, any damages for intentional acts must be segregated before that determination is made.
Prior to the Tegman ruling a Plaintiff would intentionally not name an intentional tortfeasor in a lawsuit to have the court enforce full joint and several liability from the named defendants. However, under Tegman, if an intentional tortfeasor is not joined, the negligent tortfeasor may be able to reduce their liability by apportioning fault to the intentional tortfeasor as an “empty chair” defendant. This has become known as the Tegman instruction, as it is applied in a jury instruction to the jury. As a jury instruction, the jury would be direction to segregate damages caused solely by an intentional act, before apportioning fault amongst negligent, joint and severally liable defendants.
Rollins v. Metro[6]
The subsequent court ruling in Rollins v. King County Metro Transit, restricted the application of the Tegman instruction. In Rollins, unknown, non-party assailants injured the plaintiffs on a King County Metro bus. Plaintiffs sued Metro Transit for negligence. The trial court denied Metro Transit’s request for a Tegman instruction, and instead, the jury was instructed to determine if they could find Metro Transit’s actions were the proximate cause of Plaintiff’s injuries. The Rollins court noted that Metro Transit’s request for a Tegman instruction, “illustrates the considerable confusion that surrounds application of the tort reform act of 1986, chapter 4.22 RCW, and subsequent case law.”
Although the harm in Rollins was attributable to an intentional tort-feasor, the question for the jury became whether Metro Transit’s negligence and failure to protect or prevent the harm was a proximate cause of Plaintiff’s injuries. The court distinguished Rollins from Tegman, stating that this case was more akin to the holding in Welch. The court stated that the damages sought in Rollins were not for those caused by intentional acts, but rather those proximately caused byMetro Transit. The court also instructed the jury about calculating damages:
“In calculating a damage award, you must not include any damages that were caused by acts of the unknown assailants and not proximately caused by negligence of the defendant. Any damages caused solely by the unknown assailants and not proximately caused by negligence of defendant King County must be segregated from and not made a part of any damage award against King County.” Id. at 379.
The proximate cause of Plaintiff’s injuries was effectively extended beyond intentional acts, and only considered for Metro Transit’s failure to protect and secure the Plaintiff from being assaulted.
Rollins has posed difficulties for defendants seeking a Tegman instruction, especially in instances where there is a harm that is invisible, or there are arguably, multiple proximate causes. Rollins, however, should not dissuade defendants from seeking a Tegman instruction. The court in Rollins focused the jury’s attention on whether the plaintiff could prove what damages were caused by Metro Transit’s negligence. However, the court did not directly address whether an intentional tortfeasor’s absence from a case necessarily obviates the need to segregate those damages from those caused solely by another defendant’s negligence.
The main difference between, Welch and Tegman is that both Rollins and Welch did not involve more than one defendant. Thus, the current status of the Tegman instruction in a multiple defendant case is left unanswered., i.e. the application of joint and several liability in a case where the intentional tortfeasor is absent.  Will the courts allow defendants a Tegman instruction to have a jury segregate the damages caused by the missing intentional tortfeasor from the other defendant’s negligence? This open question is compounded by the fact that Plaintiffs intentionally choose to not sue an intentional tortfeasor so that they can get damages caused by an absent intentional tortfeasor from the other defendants that acted negligently.  This is a hot bed for defendants in the area of assault cases which are currently being litigated in our court system.  It will be interesting to see how the Appellate Court and, ultimately, the Supreme Court determine to apply the Tegman instruction.

[1] Welch v. Southland Corp., 134 Wash. 2d 629, 952 P.2d 162 (1998)
[2] Rollins v. King Cty. Metro Transit, 148 Wash. App. 370, 199 P.3d 499 (2009)
[3] Tegman, supra.
[4] Welch, supra.
[5] Tegman, supra.
[6] Rollins v. King County Metro Transit, 148 Wn. App. 370, 199 P.3d 499 (2009)