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Doe Parents No. 1 v. State11/27/2002
iability" in Black's Law Dictionary is that " he person who has been harmed can sue and recover from both wrongdoers or from either one of the wrongdoers (if he [or she] goes after both of them, he [or she] does not, however, receive double compensation)." Black's Law Dictionary at 914 (emphasis added). The correct definition of joint and several liability then, as used in Black's, indicates that two parties may be considered joint tortfeasors even if recovery can be obtained from only one of them. Accordingly, I would distinguish Ozaki II to the extent that it suggests that a party is a joint tortfeasor only if a plaintiff can sue and recover from it.
VIII.
Under the foregoing analysis, the DOE and Norton were joint tortfeasors. Norton was originally "subject to suit or liable in a court of law or equity[,]" although he was later dismissed as the result of a bankruptcy court stay. Accordingly, "subject to suit or liable in a court of law or equity" in HRS § 663-11 may designate a party as a joint tortfeasor if the party was subject to suit, even if subsequent events may ultimately preclude recovery from that party. Here, the court found that the DOE was forty-nine percent liable and Norton was fifty-one percent liable. This court has held that a court in its discretion may treat a non-party to the suit as a party for purposes of apportioning damages. See Gump II, 93 Hawaii at 423, 5 P.3d at 413. Plainly, the court did that in this case.
Under joint and several liability, each defendant is "completely and fully liable toward the injured person" for the full amount of damages. Ozaki v. Association of Apt. Owners of Discovery Bay, 87 Hawaii 273, 284, 954 P.2d 652, 663 (App.), overruled in part by, Ozaki II, 87 Hawaii 265, 954 P.2d 644 (1998) [hereinafter "Ozaki I"]. Accordingly, both the DOE and Norton may be treated as joint tortfeasors pursuant to HRS § 663-11. If Norton was incapable of paying his apportioned percentage of damages, as was apparently the case, then the DOE became liable for all the Plaintiffs' damages. This is not because of Norton's dismissal at trial, as apparently the majority concludes, but because the DOE was severally liable for the injuries suffered by the Plaintiffs. See Ozaki I, 87 Hawaii at 284, 954 P.2d at 663 (referring to the UCATA and stating that the section "would permit apportionment of pro rata shares of liability of the joint tortfeasors as among themselves. . . . [However,] each tortfeasor is still completely and fully liable toward the injured person." (citation omitted)); see also Dobbs, The Law of Torts § 170, at 413 (2000) (several liability means that "the plaintiff may obtain a judgment against both tortfeasors and enforce it against both; but . . . the plaintiff may not actually collect more than one compensation").
IX.
HRS § 663-10.9, which generally repealed joint and several liability, would not bar recovery in this case. Inasmuch as DOE's negligence made it a joint tortfeasor in an action "involving" an intentional tort, this case comes within the intentional tort exception to the general repeal contained in HRS § 663-10.9. See Ozaki I, 87 Hawaii at 285-86, 954 P.2d at 664-65. In Ozaki I, the ICA reasoned that joint and several liability is not abolished in an action, as HRS § 663-10.9(2)(A) states, "involving . . . intentional torts[.]"
As set forth in HRS § 663-10.9(2)(A), joint and several liability was not "abolished" for recovery of both economic and non-economic damages against "joint tortfeasors involving: (A) Intentional torts[.]" (Emphasis added.) "Involving" is the participle form of the "involve." The word "involve" means, among other things, "to have within or as part of itself: INCL
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