BOSTICK v. FLEX EQUIPMENT COMPANY, INC.,

Filed 1/29/07

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

STORY CONTINUED FROM PART IV………

i.          This Analysis Is Consistent with the Result But Not the
                                    Reasoning of Some of the Precedents

            In Espinoza, supra, 9  Cal.App.4th at page 270, the jury found that the settling defendant was 45  percent at fault, the nonsettling defendant was 45  percent at fault, and the plaintiff was 10  percent at fault.  The settling defendant's apportioned share of the $15,000 noneconomic damages award therefore was $6,750, and the nonsettling defendant's apportioned share of noneconomic damages was an equal amount.  Espinoza determined that the economic portion of the $5,000 settlement was $1,467.77 (and the noneconomic portion was $3,532.23) by multiplying the total settlement amount by the ratio of economic damages to the total damages awarded by the jury ($21,242.94).  (Id. at p.  273.)  The court reduced by means of a setoff the economic damages award against the nonsettling defendant by that amount.  (Ibid.)  The court, however, declined to reduce the apportioned noneconomic damages award against the nonsettling defendant for the reasons discussed above.  I would reach exactly the same conclusion with respect to noneconomic damages, but for a different reason:  The nonsettling defendant was not entitled to any reduction in the apportioned award of noneconomic damages because the settling defendant had paid less than its apportioned share of noneconomic damages.  Thus, no reduction in the noneconomic damages award against the nonsettling defendant was necessary in order to avoid a double recovery.  Specifically, no reduction was necessary because the plaintiff's total noneconomic loss reduced in proportion to the plaintiff's share of fault, minus the noneconomic portion of the settlement, was greater than the nonsettling defendant's apportioned share of noneconomic damages.

            This conclusion is therefore consistent with the result, but not the reasoning, of Espinoza, supra, 9  Cal.App.4th 268.  The same is true of Greathouse v. Amcord, Inc., supra, 35 Cal.App.4th at pages 837-838, in which the denial of a setoff for noneconomic damages did not result in a double recovery of noneconomic damages because the settling defendants had paid less than their apportioned share of noneconomic damages.  The same cannot be said, however, of other opinions applying the rule from Espinoza that allowed the plaintiff's total recovery of noneconomic damages to exceed the plaintiff's noneconomic losses reduced in proportion to the plaintiff's share of fault.  (See e.g.,  McComber v. Wells, supra, 72  Cal.App.4th at pp.  516, 523 [the plaintiff's total recovery of noneconomic damages from good faith settlements and an award against a nonsettling defendant was $138,677.27, while the plaintiff's noneconomic loss reduced in proportion to the plaintiff's share of fault was only $83,250]; Hoch, supra, 24  Cal.App.4th at p.  62 [the plaintiff's total recovery of noneconomic damages from good faith settlements and an award against a nonsettling defendant was $557,500, while the plaintiff's noneconomic loss reduced by the decedent's share of fault was only $400,000].)

                        j.          This Analysis Is Not Precluded by the Principles of Stare Decisis

            I do not suggest a departure from 14 years of precedent lightly.  The California Supreme Court has stated:  â€