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_ SUPREME COURT, STATEOFYtNIIItGTCN DATE 

### AUG 1

### 52013

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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON JARED K. BARTON, a singleman, ) Respondent,

v. STATE OF WASHINGTON, DEPARTMENT OF TRANSPORTATION, Petitioner, ) ) ) ) ) ) ) ) ) ) ) KORRINE C. LINVOG, individually;) THOMAS LINVOG and ) MADONNALINVOG, husband )**md~fu,** 

### ) Respondents. ) ) ) SKAGIT COUNTYDEPARTMENT ) OF PUBLIC WORKS, ) Defendant. ) ) 

## _________________________) No. 86924-3 ENBANC

Filed:

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### ·A_UG_1_5_2_01_3

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FAIRHURST, J.-This case concerns a partial settlement agreement made between a plaintiff and some, but not all, defendants in the aftermath of a

### Barton v. State, No. 86924-3 motorcycle and motor vehicle accident. In the underlying suit, Jared K. Barton sued Korrine C. Linvog, Korrine's 1 

### parents, Thomas and Madonna Linvog (hereinafter the Linvogs), and the State of Washington. Prior to trial, Barton executed an agreement with the Linvogs. In the agreement, the Linvogs agreed to advance Barton $20,000 in exchange for Barton's promise not to execute on a judgment against them above their insurance policy limits. Neither Barton nor the Linvogs initially disclosed the agreement to the court or the State. After a 16 day trial, thejury awarded Barton $3.6 million and the court enteredjudgment against the State, Korrine, and the Linvogs. In the process ofpaying the judgment, the State learned about the agreement. The State moved to vacate thejudgment on the grounds offraud and misrepresentation. The trial court denied the motion to vacate but sanctioned Barton's attorney for failing to disclose the agreement pursuant to discovery requests. We affirm. FACTS AND PROCEDURAL HISTORY Korrine was driving her parents' car when she pulled into an intersection and collided with Barton, who was approaching the intersection on his motorcycle with the right of way. Barton suffered serious injuries, including brain damage. Barton sued Korrine for negligence and sued the Linvogs under the family car

'We referto Korrine byherfirst name for sake ofclarity. No disrespect is intended. 2

### Barton v. State, No. 86924-3 doctrine. Barton also sued the Washington State Department of Transportation underthe theory ofnegligenthighway design and maintenance. William Spencer, attorney for the Linvogs, offered to settle with Barton for the limits ofthe Linvogs' insurance policy-$100,000. Ralph Brindley, Barton's attorney, refused the settlement offer because he wanted to maintainjoint liability between Korrine, the Linvogs, and the State. However, Brindley apparently told Spencer that his normal policy was not to pursue claims against individuals in

excess oftheirinsurance policy limits. Almost two years after the accident occurred, Brindley sought a $20,000 advance from the Linvogs to pay for medical expenses incurred by Barton, who

was uninsured. Spencer, seeing an opportunity to cap the liability ofhis clients in the event of a verdict rendered solely against the Linvogs, drafted a document entitled "Stipulation of Parties Regarding Advanced Payment" (the Stipulation). Clerk's Papers (CP) at 924-25. The Stipulation provided that the Linvogs (through their insurance company Mutual of Enumclaw) would pay Barton $20,000 and such payment would reduce (by $20,000) any future settlement or verdict against the Linvogs. The Stipulation further provided that Barton "would not execute on anyjudgment" he obtained from the Linvogs in excess oftheir liability insurance. CP at 925. The Stipulation concluded that "the advance paymentdoes notrepresent

a settlement ofany claims PlaintiffJared Barton has brought in this matter against
3

### Barton v. State, No. 86924-3 Defendants." !d. Brindley signed the Stipulation but it was not signed by anyone else. Spencer and Brindley did not intend the Stipulation to affect Korrine's liability to Barton or the State's contribution rights against Korrine or the Linvogs. Mutual ofEnumclawtendered a $20,000 checkto Barton, whichhe cashed. Some months earlier, the State had sent discovery requests to Barton and the Linvogs asking whether the parties had entered into any pretrial settlements, releases, or agreements. In their initial responses, both Barton and the Linvogs denied the existence of any such agreement, which was true at the time. After executing the Stipulation, however, neither Brindley nor Spencer thought to supplementtheir answers to the State's requests. After a 16 day trial, the jury returned a $3.6 million verdict in Barton's favor. The jury found Korrine 5 percent at fault ($180,000) and the State 95 percent at fault ($3.42 million). Because the court had earlier granted summary judgment on the issue ofBarton's comparative fault-finding Barton fault freeKorrine, the Linvogs, and the State were jointly and severally liable for Barton's injuries. The court enteredjudgmentagainst Korrine, the Linvogs, and the State. The State appealed the trial court's evidentiary rulings and the court's granting of Barton's motion for summary judgment on the issue of comparative fault. But the Court ofAppeals affirmed and remanded. 

### Barton v. State, noted at 147 Wn. App. 1021, 2008 WL 4838687, 

### review denied, 166 Wn.2d 1012, 210 P.3d 4

### Barton v. State, No. 86924-3 1018 (2009). After remand, Barton sought to collect his judgment from the Linvogs and the State. Mutual of Enumclaw paid Barton the balance of the Linvogs' policy limits-$80,000. Brindley executed a partial satisfaction of judgment in the amount of$100,000. In the course ofdiscussing the payment of the judgment with Spencer and Brindley, the State learned about the Stipulation and obtained a copy ofthe Stipulation from Spencer. Soon after learning about the Stipulation, the State filed a motion to vacate thejudgment ofthe trial court and for newtrial and for sanctions. The State alleged that Barton and the Linvogs' failure to disclose the Stipulation (1) amounted to fraud and misrepresentation, (2) warranted severe discovery sanctions, (3) constituted a "Mary Carter"2 

### agreement that improperly realigned the interests of the parties, and (4) resulted in an unfair trial because (a) the State was unable to cross-examine Korrine to establish bias and (b) the family car doctrine jury instruction inaccurately stated that the parents were liable for Korrine's share of fault. The State deposited its share ofthejudgment ($3.42 million) in the registry ofthe court, requestingthatthe funds be held in trustpendingthe motionto vacate. The trial court denied the State's motion to vacate. In a detailed memorandum decision, the trial court found that the failure to disclose the Stipulation did not prejudice the State and did not affect the outcome ofthe trial.

2See Booth v. Mary CarterPaint Co., 202 So. 2d 8 (Fla. Dist. Ct. App. 1967). 

### 5

### Barton v. State, No. 86924-3 The trial court found discovery sanctions were warranted for Brindley's failure to supplement his interrogatory answers (Spencer was not subject to sanctions). The trial court ordered that Barton would not receive $146,000 in interest that he otherwise would have been entitled to receive (interest that accrued over the nine months between the State's depositing thejudgmentwith the court and the release ofthe funds to Barton). The State appealed, arguing that the trial court erred by denying the State's motion to vacate. In an unpublished decision, the Court of Appeals affirmed the trial court on all grounds. 

### Barton v. State, noted at 164 Wn. App. 1024,2011 WL 5175599. The trial court ordered the State to pay Barton's judgment balance ($80,000). The trial court also enteredjudgment against Korrine and the Linvogs in favor of the State on its claim for contribution in the amount of $92,632.30 ($80,000 plus interest), plus interest at thejudgmentrate. The State filed apetition for review, which we granted. 

### Barton v. State, 174 Wn.2d 1008, 278 P.3d 1112 (2012). ISSUES A. Does an agreement between a plaintiffand some, but not all, defendants, in which the defendants give the plaintiffan advance payment in exchange for plaintiffs promise not to execute on ajudgment in excess of defendants' insurance policy limits, releasethe defendants so thatthey are notjointly and severally liable withnonagreeing defendants?

6

### Barton v. State, No. 86924-3 B. Didthe Stipulationnegate Korrine andthe Linvogs' contribution liability? C. Didthe trial court abuse its discretion in its choice ofsanctions? ANALYSIS A. Does an agreement between a plaintiffand some, but not all, defendants, in which the defendants give the plaintiffan advance payment in exchange for plaintiffs promise not to execute on a judgment in excess of defendants' insurancepolicy limits, release the defendants so thatthey are notjointly and severally liable withnonagreeing defendants? We granted review on the State's question of whether the Stipulation destroyedjoint and several liability between the State, Korrine, and the Linvogs. Ess.entially, the State asks this court to determine whether the Stipulation released the Linvogs within the meaning of RCW 4.22.060 and .070-a question not reached by the trial court or the Court of Appeals. The State argues that the operative legal effect ofthe Stipulation released the Linvogs, thus destroyingjoint and several liability and negating the State's contribution rights. The State argues that the trial court's failure to accord the Stipulation its operative legal effect was reversible legal error. After discussing the standard ofreview and Washington's joint and several liability scheme as it relates to released parties, we turn to the question of whether the Stipulation released the Linvogs. We hold that the Stipulation did not release the Linvogs under RCW 4.22.070; thus, they were jointly and severally liable for Barton's damages.

7

### Barton v. State, No. 86924-3 

### Standardof Review. We generallyreview atrial court's decision on a motion to vacate for abuse ofdiscretion. 

### Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). In this case, however, we granted review to determine whether the Stipulation destroyed joint liability under RCW 4.22.070(1), which requires the court to define the term "release" as used in that statute. We review issues of statutory interpretation and alleged errors oflaw de novo. 

### Jongewardv. BNSFRy., 174 Wn.2d 586, 592, 278 P.3d 157 (2012) (citing 

### State v. Breazeale, 144 Wn.2d 829,837,31 P.3d 1155 (2001)). 1. 

### Under Washington'sjoint and several liability scheme, a "released' defendant is notjointly and severally liable and is not liable for contribution to otherdefendants againstwhomjudgment is entered To understand the issue presented by this case, it is necessary to briefly outline Washington'sjoint and several liability scheme. Generally, when multiple tortfeasors cause a plaintiffs injuries, each tortfeasor is liable only for damages corresponding to its proportionate share offault as determined by the trier offact. RCW 4.22.070(1). However, when multiple tortfeasors are responsible for a plaintiffs injuries, and the plaintiff is zero percent at fault, tortfeasors against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares oftheplaintiffs damages. RCW4.22.070(1)(b). A plaintiff must obtain a judgment against each defendant before multiple defendants arejointly and severally liable. 

### Gerrardv. Craig, 122 Wn.2d 288, 298, 8

### Barton v. State, No. 86924-3 857 P.2d 1033 (1993). "Settling parties, released parties, and immune parties are not parties against whomjudgment is entered and will notbejointly and severally liable under RCW 4.22.070(1)(b)." 

### Kottler v. State, 136 Wn.2d 437, 447, 963 P.2d 834 (1998) (citing 

### Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 294, 840 P.2d 860 (1992);

### Anderson v. City of Seattle, 123 Wn.2d 847, 852, 873 P.2d 489 (1994) (A released party "cannot under any reasonable interpretation of RCW 4.22.070(1)(b) be a defendant against whomjudgmentis entered.")). A joint and severally liable defendant who pays more than his or her proportionate share may seek contribution from another defendant against whom judgment has been entered pursuant to RCW 4.22.040, .050, and .060. RCW 4.22.070(2). Butjointand several liability must existbefore a defendanthas a right to contribution from another defendant. "Contribution is conditioned on the existence ofjoint and several liability because absent such common joint and several liability one party will have no duty to pay another's liability for damages and, thus, no cause for subsequent reimbursement." 

### Kottler, 136 Wn.2d at 442. Since "released" tortfeasors cannotbejointly and severally liable with nonreleased tortfeasors, releasedtortfeasors are notliable for contribution.

9

### Barton v. State, No. 86924-3 2. 

### Aplaintiffwho executes a settlement device listed in RCW4.22.060 with some, but not all, defendants, does not necessarily "release" a defendant underRCW4.22.070 Washington's comparative fault statutes, chapter 4.22 RCW, do not define "release." "Our fundamental purpose in construing statutes is to ascertain and carry outthe intent ofthe legislature."

### In reMarriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011) (citing 

### Lake v. Woodcreek Homeowners Ass 'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010)). "We determine the intent of the legislature primarily from the statutory language."

### Id. (citing 

### Lacey Nursing Ctr. v. Dep't of Revenue, 128 Wn.2d 40, 53, 905 P.2d 338 (1995)). "In the absence ofambiguity,

we will give effect to the plain meaning of the statutory language."

### I d. (citing 

### TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010)). The term "release" is not ambiguous. The plain meaning of"release" is the "surrender ofa claim, which may be given for less than full consideration, or even gratuitously." 

### DeNike v. Mowery, 69 Wn.2d 357, 366, 418 P.2d 1010, 422 P.2d 328 (1966); 

### see also BLACK'S LAW DICTIONARY 1403 (9th ed. 2009) (defining "release" as "[l]iberation from an obligation, duty, or demand; the act ofgiving up
a right or claim to the person against whom it could have been enforced"); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 332 (5th ed. 1984) ("a release is a surrender ofthe cause ofaction, which may be gratuitous, or 10

### Barton v. State, No. 86924-3 given for inadequate consideration"); WARREN FREEDMAN, JOINT AND SEVERAL LIABILITY: ALLOCATION OF RISK AND APPORTIONMENT OF DAMAGES 70 (1987) (a release is "a surrender of the cause of action, gratuitously or for some consideration"). The State advocates for a different interpretation ofRCW 4.22.070(1) and the term "release." The State points out that RCW 4.22.060, the statute governing the effect ofsettlement agreements, also uses the term "release." RCW 4.22.060(1) requires notice and court approval of"arelease, covenant not to sue, covenant not to enforce judgment, or similar agreement." RCW 4.22.060(2) discharges the contribution liability ofone who obtains a "release, covenant not to sue, covenant not to enforce judgment, or similar agreement." The State reads RCW 4.22.060 together with RCW 4.22.070 to conclude that a defendant who is a party to "a covenantnotto sue," "acovenantnotto enforcejudgment," or "similar agreement" is "released" under RCW 4.22.070(1). The State's argument is not without merit. The Court ofAppeals has read RCW 4.22.060 together with RCW 4.22.070 to conclude that when a defendant enters into "a release, covenant not to sue, covenant not to enforcejudgment, or similar agreement," RCW 4.22.060, then the defendant is "released" under RCW 4.22.070(1). 

### See Maguire v. Teuber, 120 Wn. App. 393, 396, 85 P.3d 939 (2004) ("Read as a whole, this statute suggests that releases, covenants and similar 11

### Barton v. 

### State, No. 86924-3 agreements all constitute 'releases' for purposes of determining who had been 'released' under RCW 4.22.070." (footnote omitted)); 

### Romero v. W. 

### Valley Sch. Dist., 123 Wn. App. 385, 387, 98 P.3d 96 (2004) (adopting the analysis from 

### Maguire). The 

### Maguire court based its holding, in part, on the opinion ofWashington law review articles that speculated that a "covenant not to sue, covenant not to enforce judgment, or similar agreement," RCW 4.22.060, would release covenanting parties under RCW 4.22.070. 

### See, e.g., J. Michael Philips, 

### Looking out for Mary Carter: Collusive Settlement Agreements in Washington Tort Litigation, 69 WASI-l. L. REv. 255, 273-74 (1994) ("The language ofthe 1986 Tort Reform Act and its interrelationship withthe 'effects ofsettlement' statute suggest that the legislature intended Mary Carter-type agreements to be treated as settlements." (footnote omitted) (citing RCW 4.22.070, .060)); Cornelius J. Peck, 

### Reading Tea Leaves: The Future ofNegotiationsfor Tort Claimants Freefrom Fault, 15 U. PUGET SOUND L. REV. 335, 344 (1991-92) ("a court will treat a contract not to execute as 

### a release or settlement under RCW 4.[22].070"); Gregory C. Sisk, 

### Interpretation of the Statutory Modification of Joint andSeveral Liability: Resisting the Deconstruction ofTort Reform, 16 U. PUGET SOUND L. REV. 1, 50 (1992-93) (citing Peck, 

### supra). The commentators were concerned that

12Barton v. State, 

### No. 86924-3 litigants would use these settlement devices to falsely manufacture joint and several liability. We disagree with the Maguire 

### court's interpretation of RCW 4.22.070 because it does not account for the plain, unambiguous meaning of the term "released." The Maguire 

### court, rather than determining the plain meaning of "released" in RCW 4.22.070, looked solely to "closelyrelated statutes" to ascertain "the underlying legislative purpose" and concluded that all settlement devices listed in RCW 4.22.060 have the effect of "releasing" a defendant under RCW 4.22.070. Maguire, 

### 120 Wn. App. at 396 (citing Gallo v. Dep 't of Labor &Indus., 

### 119 Wn. App. 49, 54, 81 P.3d 869 (2003)); see also 

### David Beninger & 

### Joel Cunningham, SettlementAgreements:AreLions Now Tigers andBears (Oh My)?, 

### TRIAL NEWS, Jan. 2006, at 5 (suggesting that the Maguire 

### court used a "grammatical trick" to equate the types of settlement devices listed in RCW 4.22.060 to the term "released" in RCW 4.22.070). By not considering the plain meaning ofthe term "release," the Maguire 

### court erroneously equated a "covenant not to sue, covenant not to enforce judgment, or similar agreement," RCW 4.22.060, to complete "releases." The Maguire 

### court also thought its interpretation of RCW 4.22.070 was "consistent with case law," specifically Kottler 

### and Shelby v. Keck 

### 85 Wn.2d 911, 541 P.2d 365 (1975). Maguire, 

### 120 Wn. App. at 397. As discussed in the following 13Barton v. State, No. 86924-3 section, we do not find thatthese cases mandate the result reached by theMaguire court. The Maguire court failed to take into account the fact that Washington courts have enforced partial, pretrial settlement devices that do not completely release a covenanting defendant. For instance, Washington courts have found that
3 'd 4 dl

. covenants not to sue, covenants not to execute 

### JU gment, an oan rece1pt agreements5 do not necessarily "release" a defendant.

3Under the common law, the release of one defendant released all other defendants, regardless ifthere was a full satisfaction ofthe claim. Scott I. Anderson, Contribution Among Tort-Feasors in Washington: The 1981 Tort Reform Act, 57 WASH. L. REV. 479, 493 (1982) (citing cases). In order to avoid this harsh common law rule, parties began executing covenants not to sue. "While a release relinquishes all rights to a claim against another party, the covenant not to sue retains those rights and grants a promise not to enforce them." FREEDMAN, supra, at 81; see also 1 SETTLEMENTAGREEMENTS IN COMMERCIALDISPUTES: NEGOTIATING, DRAFTING & ENFORCEMENT § 9.04, at 9-22 (RICHARD A. ROSEN ED., 2008) ("A covenant not to sue does not relinquish any claims, butrather constitutes an agreementnotto initiate litigation against specific parties."). Prior to tort reform, Washington courts consistently distinguished covenants not to sue from releases. See, e.g., Mills v. Inter Island Tel. Co., 68 Wn.2d 820, 829, 416 P.2d 115 (1966) (holding covenant not to sue did notrelease ajointtortfeasor where there is no double recovery); Haney v. Cheatham, 8 Wn.2d 310,322, 111 P.2d 1003 (1941) (under the common law rule, a covenant not to sue releases a covenanting defendant when the defendant reasonably compensates the plaintiff); Richardson v. Pac. Power & Light Co., 11 Wn.2d 288,317, 118 P.2d 985 (1941) (whether an agreement is a release or a covenant not to sue depends on the consideration exchanged, the effect of the agreement, and the circumstances attending its execution); butseeMonjay v. Evergreen Sch. Dist. No. 114, 13 Wn. App. 654, 659, 537 P.2d 825 (1975) ("A covenant not to sue will be treated as a release of all tort-feasors if reasonably compensatory considerationhas beenpaidby one or more tort-feasors to the plaintiff."). 4A covenant not to levy execution or covenant not to execute "is a device that does not interfere with plaintiff securing the judgment, at least in the eyes of all other tortfeasors." FREEDMAN, supra, at 83. In the insurance context, "A covenant not to execute coupled with an assignment and settlement agreement does not release a tortfeasor from liability; it is simply 'an agreement to seekrecovery only from a specific asset-theproceeds ofthe insurance policy and the rights owed by the insurer to the insured.'" Beset v. Viking Ins. Co. ofWis., 146 Wn.2d 730, 737,49 P.3d 887 (2002) (quoting Safeco Ins. Co. of Am. v. Butler, 118 Wn.2d 383, 399, 823 P.2d 499 (1992)). 5 A loan receipt agreement is "a lawful arrangement by which the insurer advances to its insured the amount ofa covered loss as a loan, repayable only and to the extent that the insured 14Barton 

### v. State, 

### No. 86924-3 Despite the State's arguments to the contrary, we find such settlement devices tend to further the underlying policies of the tort reform act of 1981, chapter 4.22 RCW. See Jensen v. Beaird, 

### 40 Wn. App. 1, 10, 696 P.2d 612 (1985) (partial settlement devices "encourage out-of-court settlements, help solve the economic needs of an injured person confronted with the delays in the court system, and

... simplify complex multiparty litigation"). In particular, partial settlement devices encourage tortfeasors "to place a substantial sum ofmoney at [their] victim's disposal, with the possibility ofno recoupment," when "the injured party . . . might otherwise have to wait several years while prolonged and varied court battles are waged." Id. 

### The Maguire 

### court's interpretation ofRCW 4.22.070 ignores precedent distinguishing partial settlement devices from releases and interferes with aplaintiff's ability to settle his orher claims. We hold the execution of a "covenant not to sue, covenant not to enforce judgment, or similar agreement," RCW 4.22.060, does not necessarily "release" a defendant under RCW 4.22.070. We find the Maguire 

### court's analysis flawed because the Court of Appeals ignored the plain meaning of "release," failed to distinguish between releases and otherpartial settlement agreements, and reached a

obtains a net recovery from others also liable." US. Oil &Ref Co. v. Lee &Eastes Tank Lines, Inc., 104 Wn. App. 823, 832, 16 P.3d 1278 (2001); DAVID K. DEWOLF & KELLERW. ALLEN, 16 WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 12.49 (2012). This type ofagreement "has been upheld in almost all the cases." Monjay, 13 Wn. App. at 660 n.3 (citing Claw v. Nat'l Indem. Co., 54 Wn.2d 198, 339 P.2d 82 (1959)); see also Jensen v. Beaird, 40 Wn. App. 1, 10, 696 P.2d 612 (1985); Bolton v. Zeigler, 111 F. Supp. 516 (N.D. Iowa 1953). 

### 15

### Barton v. State, No. 86924-3 result that interferes with a plaintiffs ability to settle his or her claims. To the extent that the Court of Appeals analyzed RCW 4.22.070 together with .060 in 

### Maguire and 

### Romero, those cases are overruled. However, as discussed in the following section, the holdings of 

### Maguire and 

### Romero remain intact because reading RCW 4.22.070 together with .060 was not necessary to the outcome of those cases. In summary, we reject the State's argument that the Stipulation-essentially

a covenantnotto executejudgment-hadthe operative legal effect ofreleasing the Linvogs. We are mindful that partial settlement devices executed between plaintiffs and some, but not all, defendants pose the risk of collusion between parties. But we find that the requirements of disclosure and reasonableness hearings sufficiently address these concerns. Furthermore, we find that partial settlement devices do not undermine the tort reform act because they encourage out-of-court settlements and speedy compensation to injured victims. In the following section, we apply traditional principles of contract interpretation to determine whetherthe Stipulation "released" the Linvogs underRCW4.22.070. 3. 

### Pretrial, partial settlement agreements should be interpreted under traditionalprinciples of contract interpretation Barton and the Linvogs argue that the Stipulation should be given the effect that the parties intended. We agree. We hold that the Stipulation did notrelease the Linvogs because Barton and the Linvogs did not intend the Stipulation to release 16

### Barton v. State, No. 86924-3 the Linvogs. Likethe trial court and the Court ofAppeals, we do not analyze issues of contract formation or defenses to enforcement (i.e., impossibility, mutual mistake, contraryto public policy) becausetheparties do not address these issues. "A release is a contract and its construction is governed by contract principles subject to judicial interpretation in light of the language used." 

### Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d 178, 187, 840 P.2d 851 (1992); 

### see also Del Rosario v. Del Rosario, 152 Wn.2d 375, 382, 97 P.3d 11 (2004) ("This courthas consistently held that personal injury releases are contracts governed by contract principles."); 1 SETTLEMENT AGREEMENTS IN COMMERCIAL DISPUTES: NEGOTIATING, DRAFTING & ENFORCEMENT § 9.01 [B], at 9-3 (RICHARD A. RoSEN ED., 2008) ("Because releases are contracts, contract law governs the formation and interpretation ofreleases.") (hereinafter SETTLEMENTAGREEMENTS). "A court's primary task in interpreting a written contractis to determine the intent ofthe parties." 

### UnitedStates Life CreditIns. Co. v. Williams, 129 Wn.2d 565, 569, 919 P.2d 594 (1996); 

### see also Mills v. Inter Island Tel. Co., 68 Wn.2d 820, 829, 416 P.2d 115 (1966) ("[T]he distinction between a covenant not to sue and a release will be preserved accordingto the intention oftheparties."); 1 SETTLEMENT AGREEMENTS, 

### supra, 

### § 9.03[A], at 9-19 (ifa release is ambiguous, "the court will proceed to consider the intent ofthe parties"). In determining whether the partial

17Barton v. State, 

### No. 86924-3 settlement agreement releases a covenanting defendant, Washington courts have explicitly, or implicitly, lookedto the intent ofthe parties to resolve ambiguity. In Shelby, 

### Gary Keck accidently shot and killed Verna Shelby in a tavern, and Shelby's estate sued Keck and the restaurant that had served alcohol to Keck prior to the shooting. 85 Wn.2d at 912. Keck reached an agreement with Shelby's estate where Keck's insurance company paid the estate $25,000-Keck's insurance policy limits-andthe estate agreed notto execute on ajudgment against Keck. 

### Id. The trial court granted the restaurant's motion to dismiss Keck from the lawsuit. 

### Id. at 912-13. This court affirmed Keck's dismissal. 

### Id. at 917. We noted the parties intended the agreement to be a "binding settlement" that left "no justiciable issue to be resolved between [the] parties." Id. 

### at 918. In other words,

we found that the estate intended to completely release Keck in exchange for his payment of$25,000. In Maguire, 

### John Maguire sued Steven Teuber after Teuber rear-ended Maguire's car. 120 Wn. App. at 394. Maguire also sued the State-for faulty highway design-andthe owner ofthe car, William Hadsall. 

### I d. Maguire executed

an agreement with Teuber and Hadsall where they agreed to pay Maguire $100,000-their insurance policies limits-andMaguire promised not to execute a judgment against either Teuber or Hadsall. 

### Id. After disclosure ofthe agreement,

18Barton v. State, 

### No. 86924-3 the State moved to dismiss Teuber and Hadsall butthe trial court denied the State's motion. The Court of Appeals reversed, holding (1) the covenant not to execute "released" Teuber and Hadsall under RCW 4.22.070, (2) the trial court erred in entering judgment against Teuber and Hadsall, and (3) the trial court erred in dismissing Teuber and Hadsall. Maguire, 

### 120 Wn. App. at 399. In holding that the agreement released Teuber and Hadsall, the Court of Appeals reasoned that the agreement was "'intendedto constitute a complete resolution 

### ofall claims."' I

### d. at 397-98, 399 (quoting covenant not to execute). Above, we held that the Maguire 

### court erred by analyzing RCW 4.22.070 together with .060 to conclude that the covenant not to execute "released" Teuber and Hadsall. Nevertheless, the Maguire 

### court properly held that the agreement released Teuber and Maguire because the parties intended the agreement to be a "complete resolution 

### of all claims." 

### ld. at 397-98, 399. In Romero, 

### Michael and Carrie Romero sued the West Valley School District for negligence after a vehicle struck and killed the Romeros' young child in the school load and unload zone. 123 Wn. App. at 387. Mr. Romero and the child's estate cross-claimed against Ms. Romero, who had been responsible for picking the child up from school. 

### ld. Mr. Romero and the child's estate executed

an agreement withMs. Romero with the following terms: 19

### Barton v. State, No. 86924-3 Ms. Romero agreed to pay the limits ofher automobile insurance and $5,000. Mr. Romero and the estate agreed that if they obtained a judgment of more than $30,000 against the District, they would reimburse Ms. Romero $1 for every $2 they collected from the District over the $30,000 amount, up to $5,000. They also agreed that Ms. Romero wouldremain in the suit as a defendant. ButMr. Romero and the estate would not execute on any judgment obtained against her. 

### Id. at 388. The parties submitted the agreement to the trial court, which found the agreement reasonable. 

### Id. After trial, thejury found the school district 75 percent responsible for the Romeros' damages and Ms. Romero 25 percentresponsible. 

### I d. at 389. The trial court entered judgment against the school district and Ms. Romero. The Court of Appeals-relying on 

### Maguire-held that the agreement "released" Ms. Romero. The Court ofAppeals reversed the judgment so that the school district was notjointly and severally liable for Ms. Romero's share offault. 

### Id. at 392. The Court ofAppeals found that the agreement was a "classic 'Mary Carter' agreement" that was made for the purpose of "avoid[ing] the 'several' liability scheme." 

### Id. at 389-90. The Court of Appeals concluded "the intended result [ofthe agreement] is contrary to the letter and spirit ofthe tort reform act." 

### Id. at 392. In the present case, the Stipulation did not have the effect ofreleasing the Linvogs because the parties did not intend the Stipulation to release the Linvogs. Barton has consistently argued that he did not intend to release either Korrine or 20

### Barton v. State, No. 86924-3 Linvogs. The Linvogs have consistently taken the position that they believed they remained liable for Korrine's proportionate share of fault above the Linvogs' insurance policy limits. Neither Barton nor the Linvogs intended the Stipulationto negate the State's right to seek contribution from the Linvogs. The trial court found, "Plaintiffs counsel and Linvogs' counsel believed the agreement was valid and enforceable onthese terms." CP at 9. Shelby, Maguire, and Romero each involved a settlement agreement that releasedthe covenanting defendant or defendants. These cases canbe distinguished from the case atbar. Unlike the parties in Shelby, Barton and the Linvogs did not intend to make

a "binding settlement" that left "nojusticiable issue to be resolved between [the] parties." 85 Wn.2d at 918. The Stipulation expressly stated that it "[did] not represent a settlement ofany claims" between Barton and any defendants. CP at 925. Also, despite the execution of the Stipulation, justiciable issues remained concerning the Linvogs' liability to Barton. The State could still seek contribution from the Linvogs and the Linvogs' liability to Barton could have been anywhere from $20,000 to $100,000. Shelby is distinguishable from the case atbar. In Maguire, the Court of Appeals found that the agreement between Maguire, Teuber, and Hadsall constituted a "complete resolution of all claims." 120 Wn. App. at 397-98. In this case, the parties did not intend to make a complete 21Barton v. State, No. 86924-3 resolution of Barton's claims against the Linvogs. The Maguire agreement contained "releaselanguage."Id. at 398. The Stipulationinthis case does not. Romero can be distinguished by the fact that it involved a "classic 'Mary Carter' agreement" that sought to avoid Washington's several liability scheme in contrast to the "letter and spirit ofthe tort reform act." 123 Wn. App. at 392. The Stipulation is not a Mary Carter agreement.6 In fact, it is more like a high-low agreement, a type ofpartial settlement agreement that has been approved in other jurisdictions.7 We agree with the trial court that the Stipulation did not realign the interests of the parties or attempt to artificially manufacture joint and several liability between an individual and- a deep pocket institutional defendant. The

6 A Mary Carter agreement is a settlement device that generally contains three basic provisions: (1) "the settling defendant guarantees the plaintiffaminimumpayment, regardless of the court'sjudgment;" (2) "the plaintiffagrees not to enforce the court'sjudgment against the settling defendant;" and (3) "the settling defendant remains a party in the trial, but his exposure is reduced in proportion to any increase in the liability of his codefendants over an agreed amount." John E. Benedict, It's a Mistake To Tolerate the Mary CarterAgreement, Note, 87 COLUM. L. REV. 368, 369-70 (1987). Some agreements might also require that "the agreementbe kept secret between the settling parties."Id. at 370. The name "Mary Carter agreement" is taken from the first case to analyze these types ofsettlement devices, Booth v. Mary CarterPaint Co. The Stipulation is not a Mary Carter agreement because the third element is not met. Since this case does not involve aMary Carter agreement, we will waituntil this issue is squarelypresented to rule onthe validityofsuch agreements inWashington. 7In a high-low agreement, the covenanting defendant promises to pay plaintiff a minimum amount, regardless ofthe verdict, but defendant's liability is capped at an agreed upon maximum amount. See, e.g., Ziegler v. Wendel Poultry Servs., Inc., 67 Ohio St. 3d 10, 615 N.E.2d 1022, 1029-30 (1993) (high-low settlement agreement was valid because the settling defendant still had an incentive to keep the amount of damages down), overruled on other grounds by Fidelholtz v. Peller, 1998-0hio-462, 81 Ohio St. 3d 197, 690 N.E.2d 502, 505; Hodesh v. Korelitz, 2009-0hio-4220, 123 Ohio St. 3d 72, 914 N.E.2d 186, 190 (relying on Ziegler). 22Barton v. State, No. 86924-3 State'srightto seekcontributionwas not affected. In short, the Stipulation does not presentthe same concerns as the agreementinRomero. In conclusion, the Stipulation did not release the Linvogs; therefore, they

were jointly and severally liable with the State for Barton's damages. The trial court and Court ofAppeals denied the State's motionto vacate onthe grounds that the State was not prejudiced by the Stipulation. At the State's request, we granted review onthe question ofwhetherthe Stipulationreleased the Linvogs underRCW 4.22.070. We holdthat it didnot. B. Didthe Stipulationnegate Korrine andthe Linvogs' contribution liability? In its petition for review, the State argues, "RCW 4.22.060(2) mandates that

a covenant not to execute negates contribution liability." Pet. for Review at 4. The State further asks, "Can a covenant not to execute be written in a way so that it does not negate contribution liability?" 

### ld. Above, we held that the Stipulation did not release the Linvogs because the parties did not intend to completely release them. The Linvogs were jointly and severally liable with the State for Barton's damages. Accordingly, judgment was entered against the Linvogs. It follows that the State's right to seek contribution from the Linvogs was preserved. Without accepting the State's invitation to rule on whether a covenant not to execute will always negate contribution rights, we hold that the Stipulation in this case did not negate the State's contributionrights. 23

### Barton v. State, No. 86924-3 Ajoint and severally liable defendant who pays more than his proportionate share may seek contribution from another defendant against whomjudgment has been entered pursuantto RCW4.22.040, .050, and .060. RCW 4.22.070(2). "[I]t is well to observe that it is not easy to find a procedural mechanism whereby a settling defendant could be certain that claims of contribution and/or indemnity would be cut offas part ofthe settlement with the plaintiff." FREEDMAN, 

### supra, at 73. In this case, the State, Korrine, and the Linvogs werejointly and severally liable for Barton's injuries. The trial court enteredjudgmentagainstthe defendants. The State paid more than its proportionate share ofBarton's damages and obtained

a contribution judgment against the Linvogs. RCW 4.22.060(2) seeks to protect released or covenanting defendants from contribution claims brought by other defendants who did not settle with the plaintiff. The Linvogs did not seek to hide behind the protections ofRCW 4.22.060(2) but instead recognized their obligation to pay the State's contribution claim. After collecting contribution from the Linvogs, the State will have onlypaid its share offault as assignedbythejury. The Stipulation didnotnegate the State'srightto contribution againstthe Linvogs. C. Didthetrial court abuse its discretion in its choice ofsanctions? The State argues that Barton and the Linvogs' failure to disclose the Stipulation pursuant to discovery rules and RCW 4.22.060, merits serious 24Barton v. State, 

### No. 86924-3 sanctions such as a new trial. We disagree and hold that the trial court did not abuse its discretion in sanctioning Barton. Standard of review. 

### We review a trial court's order ofsanctions for abuse of discretion. Rivers v. Wash. State Conference ofMason Contractors, 

### 145 Wn.2d 674, 684, 41 P.3d 1175 (2002). '"[D]iscretionary determination should not be disturbed on appeal except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."' 

### I d. at 684-85 (alteration in original) (internal quotation marks omitted) (quoting Burnet v. Spokane Ambulance, 

### 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)). "The abuse ofdiscretion standard

... recognizes that deference is owed to thejudicial actor who is 'betterpositionedthan another to decide the issue in question."' Wash. State Physicians Ins. Exchange & Ass'n v. Fisons Corp., 

### 122 Wn.2d 299, 339, 858 P.2d 1054 (1993) (internal quotation marks omitted) (quoting Cooter & Gell v. Hartmarx Corp., 

### 496 U.S. 384, 403, 110 S. Ct. 2447, 110 L. 

### Ed. 2d 359 (1990). We give wide latitude to a trial court in fashioning an appropriate sanction for discovery abuse. 

### Id. at 339. Analysis. 

### Generally, "the court may impose only the least severe sanction that will be adequate to serve its purpose in issuing a sanction." Teter v. Deck, 

### 174 Wn.2d 207, 216, 274 P.3d 336 (2012). To support imposition ofone ofthe greater sanctions-such as a new trial-the record must clearly show (1) one party 25

### Barton v. State, 

### No. 86924-3 willfully or deliberately violated the discovery rules and orders, (2) the opposing party was substantially prejudiced in its ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would have sufficed. Magana

v. Hyundai MotorAm., 

### 167 Wn.2d 570, 584, 220 P.3d 191 (2009) (citing Burnet, 

### 131 Wn.2d at 494). The purposes of sanctions are to deter, punish, compensate, educate, and ensure thatthe wrongdoer does notprofit from the wrong. Fisons, 

### 122 Wn.2d at 356. The State is correct in arguing that Barton and the Linvogs' failure to disclose the Stipulation violated RCW 4.22.060(1) and CR 26(e)(2). RCW 4.22.060(1) requires that a party, "prior to entering into a release, covenant not to sue, covenant not to enforcejudgment, or similar agreement," shall give notice of the settlement to the court and other parties and the court shall hold a hearing to determine whether the settlement was reasonable. The statute does not set forth any consequences for failing to disclose. CR 26(e)(2) requires parties to "seasonably" amend or supplement discovery requests. Under CR 26(e)(4), failure to comply with CR 26(e)(2) "will subject the party to such terms and conditions as the trial court may deem appropriate." CR 37 "sets forth the rules regarding sanctions when a party fails to make discovery." Magana, 

### 167 Wn.2d at 583-84. "CR 37(d) authorizes a court to impose the sanctions in CR 37(b)(2), which range

26

### Barton v. State, No. 86924-3 from exclusion of evidence to granting default judgment when a party fails to respond to interrogatories andrequests for production." 

### !d. at 584. Barton and the Linvogs concede that they failed to comply with the disclosure requirements ofRCW 4.22.060 and failed to supplementtheir responses to the State's discovery requests. Butthe trial court found thatthe parties' failure to disclose the Stipulation was not willful or deliberate and the State's ability to prepare for trial was not substantially prejudiced. The trial court sanctioned Barton and Brindley by not requiring the State to pay $146,000 in interest the State otherwise would have owed to Barton. This is a significant sanction. The State has not made any showing that the severe sanctions it has requested arejustified. We hold that the trial court did not abuse its discretion in sanctioning Barton and Brindley. CONCLUSION We hold that the Stipulation did not release the Linvogs under RCW 4.22.070. The Linvogs werejointly and severally liable with the State for Barton's damages. The Stipulation did not affect the State's right to contribution againstthe Linvogs. The trial court did not abuse its discretion in sanctioning Brindley and Barton. We affirmthe Court ofAppeals.

27

### Barton v. State, No. 86924-3

WE CONCUR:

28Barton v. State, Dep 'tofTransp., etal.

No. 86924-3 MADSEN, C.J. (concurring/dissenting)-Themajority's analysis is based on an incorrect assumption aboutthe nature ofthe "Stipulation" (hereafter "agreement") betweenplaintiffJared Barton and Thomas and MadonnaLinvog (the Linvogs), the parents ofKorrine Linvog (Korrine). The majority incorrectly assumes thatthe agreement falls withinthe scope ofRCW4.22.060. In addition, the majority seemsto acceptthe State's contentionthat ifthe agreement released the Linvogs,jointand several liability was destroyed and the State should have been only severally liable for damages due to its own fault. However, Korrine was not aparty to the agreement and she remained liable for damages attributedto her fault. Regardless ofwhether the Linvogs

were released,jointand several liability remained because Korrine wasjointly and severally liable for 100 percent ofthe damages suffered. Parties can enter agreements that partially settle some claims without invoking RCW4.22.060, and that is what occurredhere. Since the agreement did not eliminate the Linvogs' liability for contribution, it was notthe type ofagreementthat falls withinRCW 4.22.060.No. 86924-3 Madsen, C.J. (concurring/dissenting)
Sincethis agreement is not a covenantnotto enforcejudgmentas that term is used inRCW4.22.060, it is notnecessary in this case to decide whether a documentthat does fall within this statute is a release that also acts to release theparty fromjointand several liability underRCW 4.22.070. But ifan agreement does fall withinthe scope ofRCW 4.22.060 and settles the claims betweenthe parties, the court shouldholdthat it acts as a release for purposes ofRCW4.22.070. This conclusion follows from theplain language ofRCW4.22.060 andthe interrelationship betweenRCW 4.22.060 and .070. Finally, sinceRCW 4.22.060 is not applicable, the trial court abused its discretion in awarding sanctions for violation ofthe notice requirementin the statute. It follows that the State'srequest for more severe sanctions underthe statute shouldbe denied. Discussion Nature of the Linvogs'andKorrine 's Liability It is importantto understandthe nature ofthe defendants' potential liability inthis

case. Underthe family car doctrine, Thomas andMadonnaLinvogwere exposedto liability for their daughter Korrine's negligence in causingthe injuries sufferedby the plaintiff, Jared Barton. The Linvogs1potential liability arose "based on agency principles; that is, members ofthe family who are permittedto drive the automobile are agents ofthe owners." 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAWAND PRACTICE§ 3.23, at 139 (3d ed. 2012); see Coffman v. McFadden, 68 Wn.2d 954, 958, 416 P.2d 99 (1966) ("[a] parentis not liable for the torts

1For clarity, I referto Thomas and MadonnaLinvog as "the Linvogs," and to Korrine Linvog as "Korrine." 2No. 86924-3 Madsen, C.J. (concurring/dissenting)
ofhis child solely because oftherelationship

... liability, ifany exists, mustrest upon the relation ofagency or service"). It does not arise whentheparents ofthe driver neither

ownnor control the vehicle. 16 DEWOLF & ALLEN, supra,§ 3.23, at 139. This type ofliability comes within RCW 4.22.070(1)(a), whichprovides that "[t]heliability ofeach defendant shall be several only and shall notbejointexcept ... [a] party shall be responsible for the fault ofanother person or for payment ofthe proportionate share ofanotherparty ... when apersonwas acting as an agent or servant oftheparty." Bythereferences to "party,"this subsection contemplates thatKorrine's parents hadto beparties to the suit for this liability to arise. Thatis, unless the Linvogs remained as parties inthe action, they wouldnotbe liable to theplaintifffor damages arising from Korrine's negligence. Korrine's potential liability, on the other hand, falls withinRCW 4.22.070(1)(b), whichprovides forjointand several liability whentheplaintiffis fault free? Theparties'agreement didnot "destroy"jointandseveral liability The agreement says thattheparties agreed and stipulatedthatthe Linvogs' insurer hadpaid $20,000 to Barton as an advancepayment against any future settlement or verdict obtained againstthe "Defendants Korinne Linvog [and] herparents, Thomas and

2RCW4.22.070 provides: (1)

... The liability ofeach defendant shall be several only and shall not bejoint except: (b) Ifthe trier offact determines thatthe claimant orparty sufferingbodily injury or incurring property damages was not at fault, the defendants against whomjudgmentis entered shall bejointly and severally liable for the sum oftheir proportionate shares ofthe claimants [claimant's] total damages. 3No. 86924-3 Madsen, C.J. (concurring/dissenting)
MadonnaLinvog." Clerk'sPapers (CP) at 924. Itsays this advance payment is to be an offset against "anyjudgment, verdict, arbitration award, or settlement obtainedby PlaintiffJared Barton against Defendants Korrine Linvog and/or Defendants Thomas and Madonna Linvog." !d. at 924-25. In return for the advance payment, Barton agreed not to execute on anyjudgmenthe obtained againstthe Linvogs in excess ofthe liability insurance available to the Linvogs throughtheir insurer. He would, however, be able to execute on anyjudgment againstthe Linvogs up to the amount ofthe insurance limits available. Finally, the agreement states thatthe advance payment does not represent a settlement ofBarton's claims "againstDefendants." Id. at 925. The State maintains thatthe plaintiffand the Linvogs "achievedthe imposition of improperjointliability againstthe State because the covenant not to execute was kept hidden. By doing so, they circumventedthe abolition of jointliability that is at the core of'the tort reform act. Suppl. Br. ofthe State ofWashington, Dep't ofTransp. at 17. The State argues thatthe Court ofAppeals improperly permittedthe parties to determine the operative legal effect ofarelease and thereby override statutory mandates. The State says that the outcome ofa statutory analysis cannot vary based on the litigants' "financial whims." !d. at 12. ButBarton did not agree notto execute on ajudgment against Korrine. Moreover, the agreement accurately states that it is not a settlement against "Defendants," who are identified inthe document as both the Linvogs and Korrine. Because ithad no effect on

4No. 86924-3 Madsen, C.J. (concurring/dissenting) Korrine or her liability, the agreementplainly did not act as a settlementwith regard to her. The "fault" on which liability is based for both the Linvogs and Korrine is that of Korrine; the Linvogs' liability is vicarious. With or withoutthe agreement, Korrine's fault was beforethejury; the agreement did notremove Korrine's share offault from the scope ofRCW4.22.070's apportionment scheme. Thejury's apportionment offault between Korrine and the State meantthatthese two defendants werejointly and severally liable. Therefore, the agreement did not eliminatejoint and several liability. In addition, the parties to the agreement intended that it would affect only Barton's abilityto execute on thejudgment againstthe Linvogs. The trial court's unchallenged finding offact is thatthe parties to the agreementbelieved and intended thatthe Linvogs

were in fact still liable afterthey enteredthe agreement because the agreementhad no effect on contributionrights. CP at 9. Nothing in the agreement itselfpurports to excuse the Linvogs from any liability for contribution. This is in marked contrastto the agreement at issue inMaguire v. Teuber, 120 Wn. App. 393, 397-98, 85 P.3d 939 (2004), where a covenant notto execute expressly stated that it was intended to '"completely"' resolve "'all claims by theplaintiffs againstthe defendants"' who were parties to the agreement and "'any and all contribution claims againstthose defendants will be extinguishedby this settlement."' (Quoting agreement.)

5No. 86924-3 Madsen, C.J. (concurring/dissenting)
The agreementwas nota "covenant not to enforcejudgment" within the meaningof RCW4.22. 060 Because Korrine's fault was still before thejury, and because any contribution rights againstthe Linvogs based on vicarious liability were not affected by the agreement, it was not an agreementthat extinguished contribution rights and was not an "agreement" under RCW 4.22.060(2) "similar to" a "release" or a "covenantnot to sue" that would "discharge[]"the Linvogs "from all liability for contribution." Irecognize thatthe part ofthe agreement where Barton agreed not to execute on anyjudgment againstthe Linvogs on any amount in excess ofthe insurance limits raises the obvious question whether it is a covenantnotto enforcejudgment for purposes of RCW4.22.060. But as the majority states, contract law has aplace here, and we should look to the entire documentto see whether it is the kind ofagreement "similar" to a "release" as RCW4.22.060 states. Whatthe parties call an agreement is not controlling. Even ifBarton and the Linvogs had calledtheir agreement a "covenantnot to enforcejudgment,"this would not control as to whether it fell withinthe scope ofRCW4.22.060 as equivalentto a "release." In a similarvein, the parties' statementthatthe agreementwas not a settlement, in and ofitself, does not determine how it shouldbe treated, either. Rather, the operative effect ofthe agreement controls and this mustbe determined with regard to all that the documentprovides. I would hold thatthe agreement does not come within RCW4.22.060, thus ending the case. 6No. 86924-3 Madsen, C.J. (concurring/dissenting)
The majority errs in deciding that an agreement thatfalls within RCW4.22.060 does notrelease theparty forpurposes ofRCW4.22.070 's determination ofjointandseveral liability It follows thatthis case does notrequire us to decide whether a covenant not to enforcejudgmentunder RCW4.22.060 is necessarily a release underRCW 4.22.070. Butwhile it is unnecessary to construethe term "release" as used inRCW4.22.070, since the majority has done so, I turn to that issue next. The majority improperly declines to construe the term "release" in the statutory context in which it appears and insteadrelies on dictionary and other definitions to conclude that an agreementthat comes within RCW 4.22.060 does notnecessarily release theparty for purposes ofRCW4.22.070. Butthe majority's resortto these definitions does not follow ourwell-developed approachto discerningthe meaning oflanguage in statutes. The goal when construing a statute is to ascertain and give effectto the legislature's intended meaning. We determine legislative intent from the meaning ofthe words at issue, the context ofthe statute in whichthe provision at issue is found, related provisions and statutes thatbear onthe meaning ofthe language at issue, andthe statutory scheme as a whole. Manary v. Anderson, 176 Wn.2d 342, 352, 292 P.3d 96 (2012); Lowry v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012); Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). Rather than deliberating ignoringthe related statutoryprovisions as the majority does, we should examinethem as the bestindicator oflegislative intent. 7No. 86924-3 Madsen, C.J. (concurring/dissenting)
BothRCW4.22.060 and .070 use the word "release." In RCW 4.22.060, the legislature listed several types ofsettlement agreements, expressly equating them within the statute to a "release" ("[a] release, covenantnotto sue, covenantnotto enforce judgment, or similar agreement" (emphasis added)). This statutoryprovision itselfshows that an agreement that comes within the statute is to be regarded as arelease. See Cornelius J. Peck, Reading Tea Leaves: The Future of Negotiationsfor Tort Claimants Freefrom Fault, 15 U. PUGET SOUND L. REV. 335, 344 (1992) ("RCW4.22.060 refers to 'arelease, covenantnot to sue, covenant notto enforcejudgment, or similar agreement'

as being interchangeable for thepurpose ofdetermining the effect ofa settlement agreement"). In addition to equating the listed agreements with arelease, RCW 4.22.060 provides thatthese agreements operate to extinguish contribution obligations, as noted. When considered in connection with RCW 4.22.070, this part ofRCW4.22.060 supports the conclusionthat an agreement falling within RCW4.22.060 operates as arelease for purposes ofRCW4.22.070. RCW4.22.070(1) states inpartthat "entities whose fault shall be determined include

... entities releasedby the claimant" and "UJudgment shallbe entered against defendant exceptthose who havebeenreleased bythe claimant." RCW 4.22.070(2) says that ajointly and severally liable defendant's rights to contribution against anotherjointly and severally defendant and the effect ofa settlementby either is determined underRCW 4.22.040, .050, and .060. Thus, therightto contribution mentioned in RCW4.22.070 that 8No. 86924-3 Madsen, C.J. (concurring/dissenting) is determined under RCW4.22.040, .050, and .060 is a rightthat arises amongjointly and severally liable defendants, but it cannot not arise underthe agreements listed in RCW 4.22.060. This interrelationship ofthe statutes, too, shows thatthe agreements listed in RCW 4.22.060 do operate to release an entity for purposes of joint and several liability under RCW 4.22.070. And in fact, this is the construction favored by a leading authority on the 1986 tort reform laws. Peck, supra, at 335, 343-44. Unlike the majority, I wouldholdthat an agreementthat comes within RCW 4.22.060, and which is equivalentto a "release" as expressly providedby the statute, acts to release the party for purposes ofthe apportionment ofliability under RCW4.22.070. Next, I disagree with the majority's overruling ofthe analysis in Maguire regarding the issue whether the agreements in those cases released the defendants who

were party to them. The agreement at issue in Maguire was a covenantnotto enforce judgmentwithin the scope ofRCW4.22.060. The Court ofAppeals appropriately concluded that it operated to release the defendants who were apartyto it and therefore these defendants should have been dismissed from the case. The covenant stated thatthe parties were settling '"forthe purpose ofavoidance ofthe uncertainties, inconvenience, and expenses ofthe pending lawsuit'" and that the covenant "'is intended to constitute a complete resolution ofall claims by theplaintiffs against defendants Teuber and Hadsall underRCW 4.22.060 suchthat any and all contribution claims againstthose defendants

9No. 86924-3 Madsen, C.J. (concurring/dissenting) will be extinguishedby this settlement."' Maguire, 120 Wn. App. at 397-98 (quoting covenant). Because it was an agreement coming within RCW4.22.060, it released the two defendants for purposes ofRCW4.22.070, as explained above. The court's analysis in the case is well-reasoned and consonantwiththe relevant statutes. As withMaguire, I disagree withthe majority's partial overruling ofRomero v. West Valley SchoolDistrict, 123 Wn. App. 385, 98 P.3d 96 (2004). Romero involves a classic "Mary Carter" agreement. Itprovidedthatthe defendant who was party to the agreement wouldpay the limits ofinsurance andthe plaintiffs agreed that ifthey recovered more than the insurance limits from the remaining defendant, the defendantpartyto the agreementwould be reimbursed by the plaintiffs $1 for every $2 the plaintiffs recovered in excess ofthe insurance. Theparties agreedthe settling defendantwould remain in the suit as a defendant. In such circumstances, there is a strong incentive on the part ofthe settling defendant and the plaintiffto skewthe trial againstthe remaining defendant. The Court ofAppeals, relying onMaguire, concluded in Romero thatthe agreementreleased the settling defendant and heldthattheremaining defendantwas severally liable only for the portion ofthe damages due to its own fault. When an agreement manipulatesjoint and several liability as the agreement did in Romero, and aligns the plaintiffs and all but one ofthepotentially liable defendants against the remaining defendant, a court should conclude thatjointand several liability has been destroyed. Forthis reason, at the least, such an agreement shouldbeheldto 10No. 86924-3 Madsen, C.J. (concurring/dissenting) release the settling defendants. Otherwise, theirpresence at trial and in thejury's calculations canresult in unfairjoint and several liability on the part ofthe nonsettling defendant. Sanctions The State maintains that a more severe sanction should be imposed for failure to notify it ofthe "secret'' agreement between Barton and the Linvogs. The majority concludes thatthe failure to disclose the parties' agreement violated CR26(e)(2) as a failure to seasonably amend or supplement discovery requests and violates RCW 4.22.060(1), which requires that "priorto entering into a release, covenantnotto sue, covenant notto enforcejudgment, or similar agreementwith a claimant" aparty must "give five days' written notice ofsuch intentto all otherparties andthe court." The majority therefore holds that the trial court did not err in exercising its discretion to impose the sanctions. The majority denies, however, the State's request for more severe sanctions. Althoughthe majority states that Barton and the Linvogs concedethey failed to comply with the notice requirement ofRCW4.22.060, majority at 26, this does not appear to be the case. Rather, Barton concedes some sanctionwas appropriate under the civil rule, butnot a greater sanction as urgedby the State. The Linvogs do not concede the propriety ofsanctions underthe statute, either. Becausethe court should holdthatthe agreement is not a "covenantnotto enforce judgment" as contemplatedunder RCW4.22.060(2), it should similarly hold the 11No. 86924-3 Madsen, C.J. (concurring/dissenting) agreement does not come withinRCW 4.22.060(1). The statutory noticeprovision does not apply and sanctions are not appropriate on this basis. I would concludethatthe trial court abused its discretion in awarding sanctions underthe statute and agree thatthe State'srequest for additional (more severe) sanctions underthe statute shouldbe denied.3 Conclusion I wouldholdthatthe agreementbetweenBarton andthe Linvogs is not a covenant notto enforcejudgmentas this term is used in RCW4.22.060. Korrine and the State both remained as defendants attrial, neitherwas a party to the agreement, and together they were responsible for 100 percent offault, onceBarton was determinedto be a faultfree plaintiff. They werejointly and severally liable. No settlement occurredthat reduced liability for total damages because Korrineremained exposedto direct liability andthe Linvogs remained, undertheparties' agreement, exposedto liability for contribution. Inthese circumstances there was no prejudiceto the State and no additional sanctions are appropriate.

3 My disagreement extends to the award ofsanctions only insofar as itis based onRCW 4.22.060. I do not disagree thatthe award maybe appropriate under CR26. 12No. 86924-3 Madsen, C.J. (concurring/dissenting)

13