Amicus Curiae Brief — Dillon v. Potomac Hospital Corp.

85-3 88 if “Sipane toa 0 |

No.

In The

Supreme Court of the United States

October Term, 1985

Josephine A. Dillon, Committee of

Hilda Nadine Amidon, a legally

incompetent person,

Petitioner,

Ws

Potomac Hospital Corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

BRIEF AMICUS CURIAE OF THE

COMMONWEALTH OF VIRGINIA

IN SUPPORT OF THE PETITION

William G. Broaddus

Attorney General,

Commonwealth of Virginia

James T. Moore, III

Deputy Attorney General

Fred R. Kozak

Martha M. Parrish

Calvin F. Tiller

Assistant Attorneys General

101 North 8th Street

Richmond, Va. 23219

(804) 786-5740

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF CITATIONS. . . « « © « « «

INTEREST OF THE AMICUS CURIAE ...

SUMMARY OF ARGUMENT ......e.. -

REASONS FOR GRANTING THE WRIT:

I. THE DECISION BELOW IS AN UN-

PRECEDENTED RESTRICTION OF

THE LEGITIMATE LEGISLATIVE

POWERS OF THE VIRGINIA

GENERAL ASSEMBLY BECAUSE

RETROACTIVE APPLICATION

OF SECTION 8.01-35.1 OF

THE CODE OF VIRGINIA, WHICH

AFFECTS A JOINT TORT-FEASOR'S

RIGHT OF CONTRIBUTION, DOES

NOT CONSTITUTE A DENIAL OF

DUE PROCESS ... +. « « «

A. The decision below is in-

consistent with decisions

of the United States

Supreme Court, which re-

quire only that retro-

active application of

statutes serve a "rational

legislative purpose" to

survive due process

SOTUGARY « 2+ ee te te 8 8

B. The right of contribution

is an inchoate right, not

subject to the constitu~

tional protection afforded

to vested rights .....

13

C. The decision below impro-

perly limits the preroga-

tive of the Virginia

General Assembly ......

II. THE FAILURE TO ENFORCE SECTION

8.01-35.1 OF THE CODE OF

VIRGINIA IS CONTRARY TO PUBLIC

POLICY, WHICH FAVORS THE

SETTLEMENT AND EFFICIENT

RESOLUTION OF LAWSUITS. ... .

III. ASSUMING A DUE PROCESS VIO-

LATION IS FOUND, SECTION

8.01-35.1 OF THE CODE OF

VIRGINIA IS ONLY PARTIALLY

INVALID AND THE REMAINDER OF

ITS PROVISIONS, WHICH PROMOTE

SETTLEMENT OF COMPLEX LITI-

GATION, SHOULD STAND. .... .

A. Striking the portion of

the statute concerning

the retroactive discharge of

contribution does not pre-

vent the statute from

accomplishing its purpose

of encouraging settlement

of lawsuits . . . « « « « -«

B. Failure to allow the remain-

der of the statute to stand

reinstates the common law

rule that the legisla-

ture intended to abrogate .

CONCLUSION. . . . . . . . o . . . . .

Be teens 4

TABLE OF CITATIONS

UNITED STATES SUPREME COURT CASES

Baltimore and P.R. Co. v. Grant,

oo ULB. 396, 25 bi BO. 2351

(1878). 6 2 2 * « 2 o cs o * a e 2 17

Immigration and Naturalization

Service v. Chadha, 462 U.S. 919,

Bye Mawes BPUS CROs) « « 6 6 et te 24,27

National Railroad Passenger Corp.

v. Atchison, “Topeka and Sante Fe

Railway Co., et al. J Sa

105 S.ct. 1441, 84 L.Ed.2d

Q2e 42903) s & « & @ alae se 3 £2

Pension Benefit Guaranty Corp. v.

R. A. Gray & Co., UF a

104 S.Ct. 2709, 81 L.Ed.2a

ee a a ae 2 oe

U.S. v. Locke, v7.8.

105 S.Ct. 1785, 85 L.Ed. 3a

64 (1985) oe o = e < * & » e a 2 ° $,i1

Usery v. Turner Elkhorn Mining

Ca., 4258 U.S. 1, 96 &.Ct.

2882, (1976). * e . e e se . 4 * e il

OTHER CASES

Bain v. Boykin, 180 Va. 259, 23

Doce Ber CAGE 6s ce oh ew oe 08

City of Portsmouth v. Citizens

Trust Co., 216 Va. 695, 222

Bemtam gees Sao CASTE). «@ «© © 2 2 29

ote

OTHER CASES

Crandell v.

(continued)

mF ’

(4th Cir.

1983)

703 F.2d 74

18

Delardas v. County Court, 217

S.E.2d do (W. Va. 1975) * . s - 27

Eaton v. Davis, 176 Va. 330, 10

5.EB.2a 893 (1940) + . - e . ~ © ° 14

First Virginia Bank-Colonial

v. Baker, 225 Va. 72, 301

S.3.2@ 8 (2903) « «+ © © © «© « «

Hagen v. Hagen, 205 Va. 791,

Lao @so8. 0m Gal Gh065) « » « « « « 14

Hannoboss v. Maryland Casualty

Co., 169 Va. 559 559, 194

S.E.2d 808 (1938) e + « + e e . -

25,27

Hayman v. Patio Products, Inc.,

226 Va. 482, 311 S.E.2d 752

(1984) 2 2 ” a . . > . . ° - > a >

5,19

Spain, 312 F.Supp. 315

1970) + * @ © 7 2 7 . 2 15

Laws v.

(3 ee. ®

King v. County of Arlington,

195 Va. 1084, 81 S.E.2d 587

(1954) e e = e * e © 7 © © ° e e a 25

Mann v. H. K. Porter Co. and

Southern Textile Corp.,

No. 83-477-N CLV. (E.D. Va.

July 8, 1985) . e 2 e e + o oS e e

21

=e

OTHER CASES (continued)

Potomac Hospital v. Dillon, 229

Va. » sa9 Sctcwe 44, (2985) « .s 16358

Reynolds v. Milk Commission,

163 Ve. 957, 179 S.E. 507

(1935) © oF * e . a . 7 2 . 2 > e 7 10

Shiflet v. Eller, 228 Va. 115,

3. Scud fae (29084) 2. « 3 0 ss oe Saeee

Stancil v. United States, 200

F. Supp. 36 (E.D. Va. 1961) ... 14

Town of Danville v. Pace, 66 Va.

[26 GEeett.) & CBTShs « © @ o + * 28

STATUTES

Va. Code §8.01-35.1

(Repl. Vol. 1979) . 2. 2 « © « © « 3e4e5

6,7,9

12,15

17,21

23,24

26

MISCELLANEOUS

1978-79 Ann. Rept. Att'y. Gen.

247 (1979) * s ° * - « = e + e 2 2 18

4A M.J. Compromise & Settlement

$4 (Bupp. E384) 2. 2 6s ts ee ee he UR

-iii-

MISCELLANEOUS (continued)

4A M.J. Constitutional Law §47

(Repl. Voss Zeeet + 4 5 6 « oe *

W. Prosser, Handbook of the Law of

Torts $46 (4th BG. i97sle «0 e@ 2

1A Sutherland Stat. Const.

$23.39 (4GR Bede « 6 6 se 8 w

Uniform Contribution Among Tort-

Feasors Act §4, Commissioners

Comment, 12 U.L.A. 98 (1955)...

Page

14

26

17

19

4 ican laa a i

INTEREST OF THE AMICUS CURIAE

The decision of the Virginia Supreme

Court in Potomac Hospital v. Dillon, 229

Va. __, 329 S.E.2d 41 (1985), would make

settlements impossible in many areas of

complex litigation facing modern courts.

The practical effect of this decision on

asbestos litigation, for example, would be

in the words of Judge McKenzie of the

Eastern District of Virginia ". . . disas-

trous, not only for the plaintiffs, but

for this Court. . . This holding would

result in a tremendous waste of resources

and time for plaintiffs, defendants and

the Court, as all cases would have to be

1

tried to completion.” The Attorney

General of Virginia files this amicus

Mann v. H. K. Porter and Southern

Textile ore No. 83-477-N Civ. (E.D. Va.

July 8, 1985) at p. 10.

Ju

a

brief because this potentially adverse

impact of the decision below on_ the

Commonwealth's court system is unnecessary

and results from an erroneous application

of constitutional principles.

Complex civil litigation more often

than not involves multiple defendants in

protracted and costly discovery and

pre-trial procedures. The General Assem-

bly of Virginia recognized the realities

of contemporary litigation when it enacted

legislation that changed the common law

rule regarding the effect of releasing a

joint tort-feasor. By providing that a

release of one tort-feasor does not

discharge those remaining from liability,

the General Assembly facilitated prompt

settlements. The decision below inhibits

settlements and forces all parties to

proceed to trial because plaintiffs cannot

release willing defendants if the effect

will be te absolve other nonsettling

tort-feasors from liability. It is in the

interest of both protecting the exercise

of proper legislative aut ority and

avoiding the over-burdening »f the court

system with unnecessary litigation that

the Commonwealth advances her arguments in

favor of this Court granting a writ of

certiorari to review Potomac Hospital v.

Dillon.

SUMMARY OF ARGUMENT

At common law, the release of one

joint tort-feasor released all defendants

from liability. Section 8.01-35.1 of the

Code of Virginia provides that release of

one person does not discharge other

persons unless the release so provides.

The statute also provides that the set-

tling tort-feasor is discharged from

liability for contribution to other

tort-feasors.

«3a

=) Se eres

» — 7 .f .* 3 = > i J ‘iar a — an nan” | a 7 © - y 7 = “| @ Ve . a

The right of contribution did not

exist at common law and is created in

Virginia only by this statute. Ze 6 648

inchoate, and does not vest until a joint

tort-feasor has paid a claim for which the

other joint tort-feasor is liable. First

Virginia Bank-Colionial v. Baker, 225 Va.

72, @h, 303, 8.8.24 6, 13 (1963). A

statute such as §8.01-35.1 may be applied

retroactively when the legislature mani-

fests this intent and it affects no

contractual or vested rights. Such

retroactive application does not offend

due process rights guaranteed by the

Constitution.

The Virginia Supreme Court's decision

in Potomac Hospital v. Dillon, is contrary

to well established constitutional princi-

ples. The court held that as a "substan-

tive" right, contribution is included with

vested rights as having constitutional due

process protection from the application of

lil

retroactive legislation. However, §8.01l-

35.1 has a rational basis in regard to its

legislative purpose, to encourage settle-

ments. Hayman v. Patio Products, Inc.,

226 Va. 482, 311 S.E.2d 752 (1984). As

enunciated by the United States Supreme

Cour1, this is the sole requirement

regarding substantive rights in due

process cases. U.S. v. Locke, U.S.

__, 105 S.Ct. 1975, 85 L.Ed.2d 64 (1985).

The decision below improperly limits the

power of the Virginia Legislature to

passing retroactive legislation affecting

procedural matters only.

The public policy of the Virginia

statute, which is to encourage settlements

and the efficient resolution of lawsuits,

also is frustrated by the Potomac Hospital

decision. Without the protection from

subsequent liability for contribution,

ae a tort-feasors are much less likely to

seek settlements. Most importantly,

ofa

plaintiffs will not agree to settle claims

if the result of their settlement is to

abolish their causes of action against

non-settling defendants. Even if the

provision in §8.01-35.1 discharging a

settling tort-feasor from liability for

contribution is struck, the remainder of

the statute providing that release of one

joint tort-feasor does not release all

should be upheld.

ARGUMENT

I. THE DECISION BELOW IS AN _ UNPRECE-

DENTED RESTRICTION OF THE LEGITIMATE

LEGISLATIVE POWERS OF THE VIRGINIA

GENERAL ASSEMBLY, BECAUSE RETROACTIVE

APPLICATION OF CODE OF VIRGINIA

SECTION 8.01-35.1, WHICH AFFECTS A

JOINT TORT-FEASOR'S RIGHT OF CONTRI-

BUTION, DOES NOT CONSTITUTE A DENIAL

OF DUE PROCESS.

A. The decision below is inconsis-

tent with decisions of the

United States Supreme Court,

which require only that retroac-

tive application of statutes

serve a “rational legislative

purpose" to survive due process

scrutiny.

The central issue presented is

whether the retroactive application of §

8.01-35.1 results in an unconstitutional

denial of a joint tort-feasor's right to

contribution. The Act was passed in 1979

and subsection D, concerning the retroac-

tive effect, was added in 1982. The

-rhe Code of Virginia, §8.01-35.1,

reads as follows: Effect of release or

(Footnote Continued)

effect of the statute is to abrogate the

(Footnote Continued)

covenant not to sue in = respect’ to

liability and contribution.

A. When a release or a covenant not

to sue is given in good faith to one of

two or more persons liable in tort for the

same injury, or the same property damage

or the same wrongful death:

1. It shall not discharge any of

the other tort-feasors from liability for

the injury, property damage or wrongful

death unless its terms so provide; but any

amount recovered against the other

tort-feasors or any one of them shall be

reduced by any amount stipulated by the

covenant or the release, or in the amount

of the consideration paid for it,

whichever is the greater. A release or

covenant not to sue given pursuant to this

section shall not be admitted into

evidence in the trial of the matter but

shall be considered by the court in

determining the amount for which judgment

shall be entered; and

26 at shall discharge the

tort-feasor to whom it is given from all

liability for contribution to any other

tort-feasor.

B. A tort-feasor who enters into a

release or covenant not to sue with a

claimant is not entitled to recover by way

of contribution from another tort-feasor

whose liability for the injury, property

damage or wrongful death is not

extinguished by the release or covenant

not to sue, nor in respect to any amount

paid by the tort-feasor which is in excess

(Footnote Continued)

ideas m

common law rule that the release of one

tort-feasor operated as a release of all

tort-feasors. In the decision below,

Potomac Hospital Corp. v. Dillon, 229 Va.

__, 329 S.E.2d 41 (1985), the Virginia

Supreme Court held that the statute could

not be applied retroactively to adversely

affect the hospital's right of contribu-

tion. The Court framed its analysis

broadly by determining whether the pro-

vision "violates constitutional due

process."

Although the decision below is not

explicit on whether it relies on the

(Footnote Continued)

of what was reasonable.

C. A release or covenant not to sue

given pursuant to this section shall be

subject to the provisions of §§8.01-55 and

8.01-424.

D. This section shall apply to all

such covenants not to sue executed on or

about July 1, 1979, and to all releases

executed on or after July 1, 1980,

regardless of the date the causes of

action affected thereby accrued.

Federal or State Constitution, all indica-

tions are that the decision rests upon the

due process clause of the Fourteenth

Amendment to the United States Constitu-

tion. None of the courts below discusses

or mentions the State Constitution. All

cases cited in the decision below that

deal with the due process issue are

grounded in the Federal Constitution. In

addition, the Virginia Supreme Court has

held that if an act does not violate the

Federal Constitution, it will not offend

the Virginia Constitution, and vice versa.

Reynolds v. Milk Commission, 163 Va. 957,

963, 179 &.E. 507 (1935). Due process

violations under the Virginia Constitution

are subject to the same standards as under

the United States Constitution. See Town

of Danville v. Pace, 66 Va. (26 Gratt.) 1

(1874). Therefore, when the decision

below speaks in terms of constitutional-

ity, constitutional questions and due

-10<

process rights, it is referring to these

terms as interpreted under the Federal

Constitution.

The Virginia Court's expansion of the

constitutional prohibition to include

inchoate substantive rights as well as

vested rights is inconsistent with recent

statements by this Court. When faced with

a due process challenge to the retroactive

application of a statute in Pension

Benefit Guaranty Corp. v. R. A. Gray &

Comp. , U.S. , 104 S.Ct. 2709, 81

L.Ed2d 601 (1984), the Supreme Court ruled

that Congress could enact a statute that

retroactively affected the right to

pension plan benefits because the statute

served a rational legislative purpose.

Pension Benefit, supra 104 S.Ct. 2709, at

2712. The right affected in the Pension

case was Clearly substantive as opposed to

procedural. This "rational basis" analy-

sis was also applied in U.S. v. Locke,

at f=

CoE EE

U.S. , 105 §.Ct. 1785 85 L.Ed.2d

64 (1985) and in National Railroad Passen-

ger Corp. v. Atchison, Topeka and Sante Fe

Railway Cco., et al., U.s. » &05

S.Ct. 1441, 84 L.Ed.2d 432 (1985). In the

latter case, the United States Supreme

Court reiterated this rule: "The party

asserting a Fifth Amendment due process

violation must overcome a presumption of

constitutionality." Further, Justice

Marshall, writing for the majority, quoted

Pension and Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1, 96 S.Ct. 2882 (1976),

emphasizing that the person attacking the

retroactive statute must show that "the

legislature has acted in an arbitrary and

irrational way." National Railroad

Passenger Corp., supra 105 S.Cc. 1441, at

1455.

The General Assembly of Virginia has

acted rationally in enacting §8.01-35.1,

which does not abolish contribution, but

o}%-

ranean oie at tae nalts

in effect merely revises the method for

its computation. Although the _ settling

defendant is released from further liabil-

ity, the effect of the statute is to

reduce the judgment by the amount the

plaintiff has already received. In

addition, the major thrust of the statute

is to allow plaintiffs to release one

tort-feasor, without losing the right to

proceed against those who choose not to

settle. It is clear that the legislature

sought to replace the impractical common

law approach with a more rational method.

B. The right of contribution is an

inchoate right, not subject to

the constitutional protection

afforded to vested rights.

r

In arriving at its decision, the

Court below determined that the right to

contribution is a substantive right.

Potomac Hospital, supra 329 S.E.2d 41

(quoting Shiflet v. Eller, 228 Va. 115,

=23-

121, 319 S.E.2d 750, 754 (1984). The

Commonwealth does not contest this desig-

nation, but respectfully submits that the

Court's holding is based on an erroneous

statement of the appropriate rule. As

previously held by the Honorable Walter E.

Hoffman, United States District Judge for

the Eastern District of Virginia, a

retroactive statute cannot interfere with

or divest vested rights. Stancil v.

United States, 200 F. Supp. 36, 44 (E.D.

Va. 1961). When the legislature manifests

its express intent to make ae statute

retroactive, however, and such application

does not affect a contractual or a vested

right, then it is permissible. Eaton v.

Davis, 176 Va. 330, 10 S.E.2d 893 (1940);

Bain v. Boykin, 180 Va. 259, 23 S.E.2d 127

(1942); Hagen v. Hagen, 205 Va. 791, 139

S.E.2d 821 (1965); 4A M.J. Constitutional

Law §47 (Repl. Vol. 1983).

o14é-

The right to contribution, while

substantive, is clearly not vested until a

disproportionate settlement or judgment is

reached. First Virginia Bank - Colonial

v. Baker, 225 Va. 72, 81, 301 S.E.2d 8, 13

(1983). In Laws v. Spain, 312 F.Supp 315,

318 (E.D. Va. 1970), Judge Kellam held

that "the right to contribution arises

when one joint tort-feasor has paid a

claim for which the other joint tort-

feasor is liable." In Potomac Hospital,

the “cause of action" for contribution

arose in 1977 at the time of the jointly

negligent acts. Although derivative from

the cause of action, the right of contri-

bution did not become a vested "right of

action" until the release was signed in

July 1983. The vesting of the right to

contribution thus did not occur until

after the passage of §8.01-35.1 Subsection

D, which became effective in 1982.

Therefore, in the case of Potomac Hospital

=1$-=

there was no retroactive effect on a

vested right.

C. The decision below improperly

limits the prerogative of the

Virginia General Assembly.

If this Court allows the Potomac

Hospital decision to stand, it will

Significantly infringe upon the Virginia

General Assembly's legitimate exercise of

its legislative powers. Although the

General Assembly infrequently passes laws

retroactively affecting substantive

rights, this body has always had the power

to enact such legislation within long-

observed constitutional guidelines. The

Court's decision in Potomac’ Hospital

reduces this legislative prerogative and

in effect, restricts the General Assem-

bly's ability to pass laws with retroac-

tive application to matters only affecting

strictly procedural rights.

-16-

a oe

The Potomac Hospital decision indi-

cates that not only may the legislature

not retroactively affect substantive

rights by express intent, but that it

cannot do so even with regard to a statu-

tory right that does not exist except by

the will of the legislature. This re-

striction is again contrary to the great

weight of authority. See for example, the

discussion in 1A Sutherland Stat. Const.

§23.35 (4th Ed.), citing Baltimore and P.

R. Co. v. Grant, 98 U.S. 398, 25 L.Ed 231

(1878).

Before §8.01-35.1 went into effect on

July 1, 1979, a member of the General

Assembly requested an opinion from the

Attorney General of Virginia as to whether

or not the statute would be applicable to

claims that arose prior to the enactment

of the statute. The Attorney General of

Virginia concluded that the new statute

would be applicable ". . . since such an

-17=

application would disturb no vested right

and would be in accord with the rules of

statutory construction." 1978-1979 Report

of the Attorney General at 247.

This Court should grant the Petition

for a Writ of Certiorari in order to

review the decision below in light of (1)

long-standing constitutional authorities

to the contrary, and (2) the detrimental

impact that the decision places on the

weli-founded legislative authority custom-

arily and legitimately entrusted to the

hands of the General Assembly of Virginia

and other legislative bodies.

II. THE FAILURE TO ENFORCE SECTION §8.01-

35.1 OF THE CODE OF VIRGINIA IS

CONTRARY TO PUBLIC POLICY, WHICH

FAVORS THE SETTLEMENT AND EFFICIENT

RESOLUTION OF LAWSUITS.

Public policy in Virginia favors

settlements of lawsuits. Crandell v.

U.S., 703 F.2d 74, 75 (4th Cir. 1983), 4A

M.J. Compromise & Settlement, 64 (Supp.

Ps ~ 5

1984). Section 8.01-35.1 favors’ and

encourages settlement by joint tort-

feasors who are willing to settle out of

court. See Hayman v. Patio Products,

Inc., 226 Va. 482, 311 S.E.2d 752 (1984).

Thus, plaintiffs are able to settle with

willing defendants without fear of thereby

releasing other recalcitrant or culpable

defendants from liability. This encour-

ages settlement of lawsuits and judicial

economy, especially in increasing areas of

complex litigation involving multiple

parties.

The intent of the drafters of the law

on which the Virginia statute is based was

to encourage settlements. Uniform Contri-

bution Among Tort-Feasors Act §4, Commis-

sioner's Comment, 12 U.L.A. 98-99 (1955).

This also was the intent of the Virginia

General Assembly since passage of the

statute abrogated the common law rule that

release of one tort-feasor is a release of

-19-

all. The statute provides a benefit to

the plaintiff by enabling him to continue

his efforts against non-settling tort-

feasors. The settling tort-feasor is

benefited in that he is immune from

further contribution.

The common law governing federal

cases regarding the release of joint

tort-feasors is in line with Virginia's

statute. The well-established approach

was applied in a recent case in the United

States District Court for the Eastern

District of Va., Mann v. H. K. Porter and

Southern Textile Corp., No. 83-477-N Civ.

(E.D. Va. July 8, 1985). The Court ruled

that under federal common law, release of

one defendant does not release all. Mann,

supra at p. 10. In addition, the Court

took the opportunity to discuss’ the

Virginia statute in light of Shiflet and

Dillon, by noting that the right of

contribution, although derivative from a

=20-

ert ea eel ene tek Se a Rr

cause of action, iS an inchoate right.

Further, the opinion contains’ strong

language concerning the public. policy

behind the federal common law rule:

- « »« [T]he practical effect of

adopting defendants’ argument

[supporting the release of

remaining tort-feasors after

release of one] would be disas-

trous, not only for plaintiffs,

but for this Court. In addition

to the obvious inequity of

requiring dismissal of all

current cases when a plaintiff

had settled with at least one

defendant, despite such result

being exactly contrary to all

parties’ intentions, a holding

such as the defendants suggest

would make settlements in future

asbestos cases impossible...

This holding would result in a

tremendous waste of resources

and time for plaintiffs, defen-

dants and this Court, as all

cases would have to be tried to

completion.

Mann, supra at 13.

The failure to enforce §8.01-35.1 is

clearly at odds with public policy in

Virginia as enunciated by the legislature

and, in addition, is contrary to the

approach favored by the federal courts in

=2i-

the Fourth Circuit. Many complex claims

in the area of antitrust, asbestos and

other toxic torts or environmental areas

arose prior to the enactment of Section

8.01-35.1. The inability to reach reason-

able settlements with individual defen-

dants in these cases will force unneces-

sarily expensive, protracted and burden-

some trials on the courts of this Common-

wealth. This result is not intended or

required by the sound and well-established

principles of constitutional law.

=29=

III. ASSUMING A DUE PROCESS VIOLATION IS

FOUND, SECTION 8.01-35.1 OF THE CODE

OF VIRGINIA IS ONLY PARTIALLY INVALID

AND THE REMAINDER OF ITS PROVISIONS,

WHICH PROMOTE SETTLEMENT OF COMPLEX

LITIGATION, SHOULD STAND.

A. Striking the portion of the

statute concerning the retroac-

tive discharge of contribution

does not prevent the _ statute

from accomplishing its purpose

of encouraging settlement of

lawsuits.

The major concern of the Court in the

decision below was its conclusion that the

retroactive application of §8.01-35.1 was

unconstitutional to the extent that the

rights of joint tort-feasors to contribu-

tion from the settling tort-feasor would

be abridged. This "abridgement" results

from the interaction of Code §8.01-

35.1.A(2), which discharges the settling

tort-feasor from "all liability for

contribution to any other tort-feasor",

and §8.01-35.1.D which gives this section

its retroactive effect.

Assuming that the retroactive appli-

-23<

cation of that portion of the _ statute

which abridges other tort-feasors' rights

of contribution is unconstitutional, this

portion may be struck while the remainder

of §8.01-35.1, which provides that the

release of one does not release all,

remains in effect. The United States

Supreme Court has recognized that a

Statutory provision is presumed severable

if what remains after severance is fully

Operative as law. Immigration and Natu-

ralization Service v. Chadha, 462 U.S.

919, 103 S.Ct. 2764, 2775 (1983).

If the invalid provision is severable

from the remainder of the statute, it may

be ignored as long as the remaining

portions are sufficient to accomplish

their purpose in accordance with the

legislative interest. It is only when the

void portion is the inducement to the

passage of the act or is so interwoven in

its texture as to prevent the statute from

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iP able ’

rt

BS PE eR Sea BK WANA “ a

SO CEI Baas ene i NN Sag UR Slates ARES A aoe

becoming operative in accordance with the

will of the legislature that the entire

statute is invalid. King v. County of

Arlington, 195 Va. 1084, 81 S.E.2d 587

(1954), Hannoboss v. Maryland Casualty

Co., 169 Va. 559, 194 S.E.2d 808 (1938).

B. Failure to allow the remainder

of the statute to stand

reinstates the common law rule

that the legislature intended to

abrogate.

In the absence of a_ severability

provision in the statute, the burden of

proving severability devolves upon the

supporter of the legislation. Neverthe-

less, even in the absence of a severabil-

ity clause, "the test of severability is

whether the legislature would be satisfied

with what remains after the invalid part

has been eliminated." City of Portsmouth

v. Citizens Trust Co., 216 Va. 695, 698,

222 S.E.2d 532, 535 (1976). The Common-

wealth asserts that the legislature is

=-25-=

more satisfied with the remaining pro-

visions previously mentioned than the

harsh common law rule where "there is an

obvious lack of sense and justice in a

rule which permits the entire burden of a

loss for which two defendants were equal-

ly, unintentionally responsible, to be

shouldered onto one alone according to the

plaintiff's whim". W. PROSSER, Handbook

of The Law of Torts §46, at 291 (4th Ed.

1971).

By ruling invalid the provision which

discharges the tort-feasor's liability

from contribution, §8.01-35.1.A(2), the

benefit provided the plaintiff remains.

The plaintiff can still proceed against

other tort-feasors. Therefore, the

Statute continues to encourage settle-

ments.

The central provision regarding

release should not fall victim to the

Court's decision that secondary aspects of

~-26-

iin ii eimai

the statute are invalid. A statute may

contain constitutional and unconstitution-

al provisions that may be perfectly

distinct and separable so that some may

stand and others may fall; and if, when

the unconstitutional portion of the

statute is rejected, the remaining portion

reflects the legislative will, is complete

in itself, is capable of being executed.

independently of the rejected portion, and

in all other respects is valid, such

remaining portion will be upheld and

sustained. Delardas v. County Court, 217

S.E.2d 75 (W.Va. 1975), see also,

Immigration and Naturalization Service v.

Chadha, 462 U.S. 919, 103 S.Ct. 2764, 2775

(1983). Whether a statute contains a

saving provision or not, the test of its

separability is the interest of the law-

makers. Hannoboss, supra at 571. The

intent of the lawmakers, in reversing the

harsh common law rule, was to allow for

~~

settlement without extinguishing a plain-

tiff's rights against other tort-feasors.

This is still provided by the remainder of

§8.01-35.1, and accordingly, it should be

upheld.

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CONCLUSION

It is on the basis of these arguments

that the Commonwealth joins the petitioner

in requesting that a writ of certiorari be

issued to review the judgment and opinion

of the Virginia Supreme Court.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA

William G. Broaddus

Attorney General

James 1. Moore, III

Deputy Attorney General

Fred R. Kozak

Martha M. Parrish

Calvin F. Tiller

Assistant Attorneys General

101 North 8th Street

Richmond, Va. 23219

804/786-5740

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