, affirms the trial court decision to grant PacifiCare's non-suit motion.
After the trial court entered judgment against the Martins, PacifiCare timely appealed the trial court's order granting Bright's good faith settlement motion and dismissing PacifiCare's cross-complaint. Bright cross-appealed from an earlier trial court decision denying Bright summary judgment on PacifiCare's cross-complaint.
PacifiCare challenges the trial court's good faith settlement determination on two main grounds. First, PacifiCare argues the trial court lacked authority to make a good faith settlement determination because PacifiCare and Bright did not share joint liability for the Martins' damages. Second, PacifiCare argues the trial court abused its discretion in finding Bright and the Martins settled in good faith because the trial court failed to consider Bright's indemnity liability to PacifiCare for the attorney fees PacifiCare incurred in defending the Martins' claims.
A. The Trial Court Correctly Considered Bright a Joint Tortfeasor Entitled to Seek a Judicial Determination It Settled with the Martins in Good Faith
1. An Alleged Joint Tortfeasor May Seek a Good Faith Settlement Determination
"Any party to an action in which it is alleged that two or more parties are joint tortfeasors . . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors . . . ." (Code Civ. Proc., § 877.6, subd. (a)(1).) "A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor . . . from any further claims against the settling tortfeasor . . . for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (Code Civ. Proc., § 877.6, subd. (c).) A good faith finding also reduces the claims against the non-settling tortfeasors in the amount stipulated by the settlement. (Code Civ. Proc., § 877, subd. (a).)
As used in these statutes, the term "joint tortfeasor" is broadly construed: "In many cases courts have construed the term 'joint tortfeasor,' as used in Code of Civil Procedure sections 877 and 877.6, quite broadly to apply not only to 'those who act in concert in causing an injury' [citation] but generally to 'joint, concurrent and successive tortfeasors' [citations], and even more generally to 'all tortfeasors joined in a single action' whose acts or omissions 'concurred to produce the sum total of the injuries to the plaintiff.' [Citations.]" (Topa Ins. Co. v. Fireman's Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1341; see also Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1272 ["By indicating that the good faith settlement applies to the 'vicariously or derivatively liable tortfeasor' [citation] and to 'multiple tortfeasors' [citation], the Supreme Court suggested that the term joint tortfeasor as used in section 877.6 has a broad meaning"].)
To be a joint tortfeasor, a "party need not be found liable in tort." (Hartford Accident & Indemnity Co. v. Superior Court (1995) 37 Cal.App.4th 1174, 1179 (Hartford).) Because Code of Civil Procedure section 877.6's first sentence uses the word "alleged" to describe the tortfeasors entitled to seek a good faith settlement determination, allegations that two or more parties are joint tortfeasors satisfies that statutory requirement. (Hartford, at p. 1179.)
Any joint tortfeasor who settles with a plaintiff is entitled to have the trial court determine if the settlement is in good faith regardless of "whether the tortfeasors acted in concert to create a single injury, or successively to create distinct and divisible injuries [citations] . . . ." (Bob Parrett Construction, Inc. v. Superior Court (2006) 140 Cal.App.4th 1180, 1188.)
2. The Complaint Alleged Bright and PacifiCare Acted as Joint Tortfeasors
PacifiCare contends section 1371.25 abolishes any joint liability it may have shared with Bright for the delays in Elsie's medical care and therefore renders any liability several only. This argument, however, fails because it is based on an erroneous assumption about the Martins' claims and a misunderstanding regarding section 1371.25's effect.
PacifiCare erroneously assumes it had no direct liability to the Martins for the delays in Elsie's health care. According to PacifiCare, the Martins did not seek to hold PacifiCare liable for any acts or omissions it committed. Rather, PacifiCare argues, the Martins pursued their claims against PacifiCare exclusively on a non-delegable duty theory that PacifiCare was liable for Bright's malfeasance in performing the utilization review. The Martins' non-delegable duty theory against PacifiCare was not the only basis on which they sought to hold PacifiCare liable. The Martins alleged in the operative second amended complaint that, "In addition to its non-delegable duty of good faith and fair dealing, [PacifiCare] assume[d] a heightened duty under the standards promulgated by the National Committee on Quality Assurance [NCQA]," a nonprofit organization that accredits managed care organizations. Under these standards, the Martins alleged PacifiCare agreed to oversee any function it delegated to a third party and to remain accountable for the timely and proper performance of all delegated functions. The second amended complaint alleged that PacifiCare breached the duty of good faith and fair dealing it owed Elsie by "[u]nreasonably implementing a defective utilization review process," "[u]nreasonably designing and implementing a health care plan that fails to offer continuity in the provision of medical treatments and services," and "failing to establish and implement the appropriate structures and mechanisms for the oversight of delegated [Quality Improvement] and [Utilization Management] activities as required by the NCQA standards."
In seeking a good faith settlement determination, Bright pointed out the Martins' direct liability theories against PacifiCare. At oral argument on the motion, the Martins acknowledged that a non-delegable duty served as their primary liability theory, but also emphasized that, "separate and apart from that, there is direct liability as well." The trial court also questioned whether PacifiCare's liability was "completely derivative," as PacifiCare argued. PacifiCare repeatedly asserts that its liability was based solely on Bright's acts or omissions, but PacifiCare fails to cite any specific evidence or authority showing the Martins' direct liability theories lacked merit as a matter of law.
We acknowledge our opinion in Martin concludes the Martins failed to establish their direct liability theory against PacifiCare. (Martin, supra, ___ Cal.App.4th at p. ___.) That conclusion, however, is based upon the record as it existed when the trial court granted PacifiCare's non-suit motion -- that is, after the Martins presented their entire case to the jury. In reviewing the trial court's good faith settlement ruling, we are limited to the information available at the time Bright and the Martins reached their settlement. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499 (Tech-Bilt); Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 962.) Here, the Martins and Bright settled before the Martins presented any evidence at trial. Moreover, as explained above, the good faith settlement procedure does not require Bright to prove PacifiCare acted as a joint tortfeasor because allegations to that effect are sufficient. (Code Civ. Proc. § 877.6, subd. (a)(1); Hartford, supra, 37 Cal.App.4th at p. 1179.)
Assuming the Martins clearly "alleged" PacifiCare and Bright acted as "joint tortfeasors," PacifiCare nonetheless contends the good faith settlement statute (Code Civ. Proc., § 877.6) does not apply because section 1371.25 renders any liability by PacifiCare and Bright several only. PacifiCare bases this argument on section 1371.25's first sentence, which states "A plan, any entity contracting with a plan, and providers are each responsible for their own acts or omissions, and are not liable for the acts or omissions of, or the costs of defending, others." (§ 1371.25.)
Our opinion in Martin concludes section 1371.25 bars an action holding PacifiCare vicariously liable for Bright's acts or omissions. PacifiCare would be liable to the Martins only it if directly committed some act or omission contributing to the delays in Elsie's health care. (Martin, supra, ___ Cal.App.4th at p. ___.) In reaching this result, we did not address whether PacifiCare and Bright could be jointly liable if they both committed acts or omissions contributing to the delays in Elsie's health care.
In American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 (American Motorcycle), the Supreme Court explained the nature of joint liability and its relation to vicarious liability: "Under well-established common law principles, a negligent tortfeasor is generally liable for all damage of which his negligence is a proximate cause; stated another way, in order to recover damages sustained as a result of an indivisible injury, a plaintiff is not required to prove that a tortfeasor's conduct was the sole proximate cause of the injury, but only that such negligence was a proximate cause. [Citation.] . . . [¶] In cases involving multiple tortfeasors, the principle that each tortfeasor is personally liable for any indivisible injury of which his negligence is a proximate cause has commonly been expressed in terms of 'joint and several liability.' . . . [¶] . . . [¶] In the concurrent tortfeasor context, however, the 'joint and several liability' label does not express the imposition of any form of vicarious liability, but instead simply embodies the general common law principle, noted above, that a tortfeasor is liable for any injury of which his negligence is a proximate cause. Liability attaches to a concurrent tortfeasor in this situation not because he is responsible for the acts of other independent tortfeasors who may also have caused the injury, but because he is responsible for all damage of which his own negligence was a proximate cause." (Id. at pp. 586-587, original italics.)
With this understanding regarding the nature of joint and several liability, it is clear section 1371.25 does not make PacifiCare and Bright's liability several only. By alleging both PacifiCare and Bright committed acts or omissions contributing to the delays in Elsie's health care, the Martins alleged PacifiCare and Bright were jointly and severally liable for the damages those delays caused. Liability arises from PacifiCare and Bright's own acts or omissions and makes both potentially responsible for the full amount of the Martins' damages.*fn4 Section 1371.25's first sentence does not apply because neither PacifiCare nor Bright would be liable for the other's acts or omissions if the Martins had prevailed on their direct liability theory. Our opinion in Martin explains section 1371.25 prevents PacifiCare from being held vicariously liable for Bright's acts or omissions. (Martin, supra, ___ Cal.App.4th at p. ___.) But section 1371.25 does not prevent PacifiCare from being jointly and severally liable with Bright if they both contributed to the Martins' damages.
Section 1371.25's third sentence bolsters our conclusion that the first sentence does not bar joint and several liability. The third sentence states "[n]othing in this section shall preclude a finding of liability on the part of a plan, any entity contracting with a plan, or a provider, based on the doctrines of equitable indemnity, comparative negligence, contribution, or other statutory or common law bases for liability." (§ 1371.25.) As explained in Watanabe, "it is clear that under the third sentence an entity that has committed an act or omission for which it is liable remains liable for that act or omission, even if it shares liability with another entity. All three doctrines enumerated in the third sentence of section 1371.25 -- equitable indemnity, comparative negligence and contribution -- are instances when one or more parties are liable for an act or omission. [Citations.]" (Watanabe, supra, 169 Cal.App.4th at p. 64, original italics.) Section 1371.25's legislative history confirms that joint and several liability is one of the "other statutory or common law bases for liability" preserved by the statute's third sentence. (Sen. Com. on Judiciary com. on Assm. Bill No. 1840 (1995-1996 Reg. Sess.) as amended Aug. 21, 1995, p. 3 [legislative amendment of section 1371.25's third sentence to include statutory and common law bases of liability intended to ensure joint and several liability preserved among plans and providers].)*fn5
Contrary to PacifiCare's contention, the trial court did not lack authority to determine whether the Martins and Bright settled in good faith. Because the Martins alleged both PacifiCare and Bright contributed to the delays in Elsie's health care, PacifiCare and Bright are treated as joint tortfeasors under the good faith settlement statutes.
B. Bright and the Martins Settled in Good Faith
1. Good Faith Settlement Standards
A good faith settlement under Code of Civil Procedure sections 877 and 877.6 must strike a balance between the competing public policies of encouraging settlements and the equitable sharing of liability among parties at fault. (Tech-Bilt, supra, 38 Cal.3d at pp. 498-499.) To determine whether a settlement is in good faith a trial court must inquire "whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries." (Id. at p. 499.) By necessity, this "'reasonable range'" test "leaves substantial latitude to . . . the discretion of the trial court" (id. at p. 500) and the trial court's "decision may be reversed only upon a showing of abuse of discretion" (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 165 (TSI)).
The seminal Tech-Bilt case identified a nonexhaustive list of factors a trial court should consider in applying this "'reasonable range'" test, recognizing these factors may not apply in all cases. The factors the Tech-Bilt court identified are (1) "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability"; (2) "the amount paid in settlement"; (3) "the allocation of settlement proceeds among plaintiffs"; (4) "a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial"; (5) "the financial conditions and insurance policy limits of settling defendants"; and (6) "the existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants." (Tech-Bilt, supra, 38 Cal.3d at p. 499.)
A settlement does not lack good faith solely because the settling tortfeasor pays "less than his or her theoretical proportional or fair share." (Tech-Bilt, supra, 38 Cal.3d at p. 499.) Discounting a settling tortfeasor's proportional share is appropriate because a plaintiff's "'damages are often speculative, and the probability of legal liability therefor is often uncertain or remote. . . .'" (Ibid.) "[P]ractical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement." (Ibid.)
In the end, "[t]he ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settler's liability to be." (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262.) "[A] 'good faith' settlement does not call for perfect or even nearly perfect apportionment of liability. In order to encourage settlement, it is quite proper for a settling defendant to pay less than his proportionate share of the anticipated damages. What is required is simply that the settlement not be grossly disproportionate to the settlor's fair share." (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 874-875.)
The party challenging a settlement's good faith bears the burden to show "the settlement is so far 'out of the ballpark' in relation to [the Tech-Bilt] factors as to be inconsistent with the equitable objectives of the [good faith settlement] statute." (Tech-Bilt, supra, 38 Cal.3d at pp. 499-500; Code Civ. Proc. § 877.6, subd. (d).)
2. The Settlement Between Bright and the Martins
PacifiCare does not contest the settlement's good faith on the ground it undervalues Bright's fair share of liability to the Martins. Indeed, PacifiCare asserts neither Bright nor PacifiCare faces any liability to the Martins. Bright faces no liability, according to PacifiCare, because the Martins never asserted a claim against Bright and the statute of limitation expired on any claim they had well before Bright and the Martins settled. PacifiCare contends it faces no liability to the Martins because it did nothing to contribute to the delays in Elsie's health care and section 1371.25 precludes the Martins from holding it vicariously liable for Bright's delays. Instead, PacifiCare challenges the settlement's good faith by arguing Bright and the Martins settled solely to bar PacifiCare's indemnity claim against Bright for the attorney fees PacifiCare incurred in defending the Martins' claims. According to PacifiCare, the trial court abused its discretion in granting Bright's good faith settlement motion because the trial court failed to consider Bright's indemnity liability for PacifiCare's attorney fees.
When evaluating whether the parties reached a settlement in good faith, a trial court must examine not only the settling tortfeasor's potential liability to the plaintiff, but also the settling tortfeasor's potential liability to all non-settling tortfeasors. (West v. Superior Court (1994) 27 Cal.App.4th 1625, 1636-1637 (West); TSI, supra, 149 Cal.App.4th at p. 166.) In West, the trial court found a good faith settlement for a cost waiver because the statute of limitations barred the plaintiff's claims against the settling defendant. (West, at p. 1629.) The Court of Appeal reversed because the trial court failed to consider indemnity liability, explaining the settling defendant still faced substantial indemnity liability to the non-settling defendants for the portion of the plaintiff's damages the settling defendant caused. (Id. at pp. 1635-1637.)
In TSI, evidence showed a defendant caused the plaintiff approximately $3.4 million in damages, but the plaintiff settled with that defendant for just $50,000 based on a contractual provision limiting the settling defendant's liability to the plaintiff. The Court of Appeal reversed the trial court's good faith settlement determination because it failed to consider the settling defendant's indemnity liability to the non-settling defendants for the substantial damages the settling defendant caused. (TSI, supra, 149 Cal.App.4th at pp. 167-168.) Both West and TSI involved settlements where the true value to the settling defendant lay not in resolving the plaintiff's claims, but in providing a bar to the non-settling defendants' indemnity claims against the settling defendant. Evidence in both cases showed the settling defendants faced substantial indemnity liability, but settled for a nominal amount in comparison to their potential liability. (West, supra, 27 Cal.App.4th at p. 1636; TSI, supra, 149 Cal.App.4th at p. 167.) Neither West nor TSI, however, involved an indemnity claim for attorney fees.
PacifiCare's opposition to Bright's good faith settlement motion included a declaration explaining PacifiCare incurred nearly $1 million in attorney fees at that point, and estimated it would incur an additional $350,000 to $500,000 to conclude the trial. PacifiCare contends Bright's $300,000 settlement is grossly disproportionate to Bright's indemnity liability for these attorney fees and therefore Bright did not settle in good faith. But, unlike West and TSI, PacifiCare failed to present evidence or authority demonstrating its indemnity claim had any viability.
PacifiCare contends it could recover its attorney fees from Bright under the tort of another doctrine or Code of Civil Procedure section 1021.6 because PacifiCare incurred those fees solely to defend claims based on Bright's acts or omissions, rather than anything PacifiCare did or failed to do.*fn6 Assuming the Martins based their claims against PacifiCare solely on Bright's acts or omissions, section 1371.25 bars PacifiCare's indemnity claim for attorney fees against Bright.
Our opinion in Martin explains section 1371.25's first sentence prevents the Martins from holding PacifiCare vicariously liable for Bright's acts or omissions because it states health care service plans and health care providers "are not liable for the acts or omissions of . . . others." (§ 1371.25; Martin, supra, ___ Cal.App.4th at p. ___.) That same sentence also states plans and providers "are not liable for . . . the costs of defending others." (§ 1371.25.) Hence, section 1371.25's first sentence provides PacifiCare with a complete defense to all vicarious liability claims based on its providers' acts or omissions, but also prevents PacifiCare from recovering the attorney fees it incurs in asserting that defense.
PacifiCare argues we should not interpret section 1371.25 to bar its attorney fees claim because section 1371.25's purpose is to ensure health care service plans and health care providers bear responsibility for their own acts or omissions. According to PacifiCare, interpreting the statute to bar its attorney fees claim would force PacifiCare to bear responsibility for Bright's acts or omissions because it was compelled to spend a substantial amount in attorney fees to defend claims based solely on Bright's conduct. But allowing PacifiCare's attorney fee claim would ignore section 1371.25's plain language and render the phrase "the costs of defending" surplusage. PacifiCare provides no explanation how its argument can be reconciled with the statute's plain language.
"'In interpreting this statute, our goal is to determine the intent of the Legislature and thereby effectuate the purpose of the law. [Citation.] To do so, we apply certain fundamental rules of statutory interpretation. "'Our first step [in determining the Legislature's intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]'" [Citations.]' [Citation.] We reject an interpretation that would render particular terms mere surplusage, and instead seek to give significance to every word. [Citation.] 'When the language of a statute is clear, we need go no further. . . .' [Citation.]" (Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 453-454.) Section 1371.25 plainly states neither plans nor providers are liable for the costs of defending others.
PacifiCare contends section 1371.25's third sentence preserves its right to recover attorney fees as part of its indemnity claim by stating the section shall not preclude liability "based on the doctrines of equitable indemnity, comparative negligence, contribution, or other statutory or common law bases for liability." (§ 1371.25.) Our opinion in Martin explains this sentence preserves claims seeking to allocate responsibility for paying damages when more than one party is at fault. (Martin, supra, ___ Cal.App.4th at p. ___.) Indeed, all three doctrines identified in the third sentence -- equitable indemnity, comparative negligence, and contribution -- apply to allocate responsibility for the payment of damages when multiple parties are at fault. (American Motorcycle, supra, 20 Cal.3d at pp. 582, 591, 598; Code Civ. Proc., § 875.) PacifiCare, however, bases its attorney fees claim on the theory it never faced any liability as a matter of law and any liability that existed fell solely on Bright. PacifiCare's sole liability theory is inconsistent with the joint liability theories section 1371.25's third sentence preserves. To preserve its attorney fees claim, PacifiCare would have to concede it and Bright are jointly liable for the Martin's damages. Of course, PacifiCare makes no such concession.
If PacifiCare shared joint liability because its own acts or omissions contributed to the delays in Elsie's health care, as the Martins alleged, PacifiCare's attorney fees claim still would fail. The authority PacifiCare relies on for its right to recover attorney fees -- the tort of another doctrine and Code of Civil Procedure section 1021.6 -- apply only when the party seeking the fees bears no fault. (See Heckert v. MacDonald (1989) 208 Cal.App.3d 832, 838 [party succeeding on indemnity claim may recover attorney fees for defending underlying action if the party obtains complete indemnity]; Watson v. Department of Transportation (1998) 68 Cal.App.4th 885, 891 [to recover attorney fees under Code of Civil Procedure section 1021.6 a party must be free from fault].) Consequently, if PacifiCare is jointly liable with Bright, PacifiCare has no claim for attorney fees under the tort of another doctrine or Code of Civil Procedure section 1021.6.
In short, PacifiCare fails to establish a viable attorney fees claim against Bright. If the Martins sued PacifiCare based on Bright's acts or omission only, then section 1371.25 bars PacifiCare's attorney fees claim. If the Martins sued PacifiCare based on Bright's acts or omissions and PacifiCare's acts or omissions, then the authorities PacifiCare relies on for its attorney fees claim do not apply. Without a viable theory for its attorney fees claim, PacifiCare cannot show the trial court abused its discretion by failing to consider that claim when determining Bright and the Martins settled in good faith. The record establishes no abuse of discretion and we conclude the trial court properly granted Bright's good faith settlement motion.*fn7
The order granting Bright's good faith settlement motion and dismissing PacifiCare's cross-complaint is affirmed. Bright's cross-appeal from the order denying its summary judgment motion is dismissed as moot. Bright shall recover its costs on appeal.
Trial proceeded on the Martins' claims against PacifiCare. After the Martins completed their case-in-chief, the trial court granted PacifiCare's non-suit motion, finding the Martins' evidence supported recovery only on a theory of vicarious liability, but Health and Safety Code section 1371.25 (section 1371.25) barred recovery. The trial court based its ruling on Watanabe, supra, 169 Cal.App.4th 56, which holds section 1371.25 bars holding a health care service plan vicariously liable for its health care provider's acts or omissions. (Watanabe, at pp. 63-64.) Our opinion in Martin v. PacifiCare of California (August 31, 2011, G041732) ___ Cal.App.4th ___ (Martin)
WE CONCUR: FYBEL, J. IKOLA, J.