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Copper Mountain Inc. v. Poma of America Inc.2/6/1995
ttlement with the intent to harm the nonsettling defendant. On the other hand, under the reasonable range test advocated by Copper, a settling defendant would find it much more difficult to predict the ultimate outcome of a challenge to the agreement. Even where the defendant believes he or she has provided fair compensation to the injured party, it is possible that the reviewing court could find bad faith based on the amount of the settlement. See Tech-Bilt, 698 P.2d at 172 (Bird, C.J., Dissenting) (the reasonable range standard "does not promote finality because it is admittedly vague"). Even the Tech-Bilt majority concedes the "speculative" nature of attempting to forecast damages and liability. Id. at 166.
Additionally, even if a defendant is confident that the trial court will ultimately determine that the settlement was "in the ballpark" with regard to his or her proportion of liability, the prospect of being forced to defend against such an action may be sufficient to turn the defendant against settlement. Without question, such a proceeding would be far more complex and time- consuming than a proceeding held under the tortious conduct standard adopted by the court of appeals. Under the reasonable range standard, not only would the trial court be obligated to determine the overall damage and the settling party's proportionate share, the court additionally would have to evaluate "the strengths of the plaintiff's liability claim and defendant's defenses, the seriousness of the injury , the out-of- pocket expenses incurred by the plaintiff as a result of the injury, whether the case will be tried by a Judge or a jury and if by a jury, whether juries from that location are more apt to render high or low verdicts, and a subjective evaluation of the parties, their witnesses and their attorneys." See supra, Roberts at 922, quoted in Tech-Bilt, 698 P.2d at 171 (Bird, C.J., Dissenting). We echo the sentiments of the Massachusetts Court of Appeals in Noyes v. Raymond, 28 Mass. App. Ct. 186, 548 N.E.2d 196 (Mass.App.Ct. 1990):
The goal of encouraging settlements may be achieved only to the extent that motions for discharge based upon settlements are routinely allowed, with extended hearings on the question of good faith the exception. If it were otherwise, a party seeking to avoid trial by settling a claim could rarely achieve that objective; either the issue of good faith would be the subject of a full trial or, as happened in this case, a defendant who settles with a plaintiff may, nevertheless be forced to stand trial on the merits of the tort claim. Faced with such prospects, a defendant would have little incentive to enter into a settlement. Id. at 199.
Nor do we agree with Copper's contention that only partial settlements are encouraged by the noncollusive conduct definition of good faith. Copper contends that the noncollusive standard encourages an early, low settlement with one tortfeasor, which virtually ensures that the other tortfeasor will be forced to trial. This argument implies that upon agreeing to a seemingly low recovery with the first tortfeasor, a plaintiff will make an unreasonably high demand upon the second tortfeasor, which will force the second tortfeasor to go to trial in order to obtain a fair apportionment of liability. Had the Colorado General Assembly not abrogated joint and several liability in 1986, this argument might be valid. See ยง 13-21-111.5(1), 6A C.R.S. (1987) (eliminating joint and several liability in most cases and providing that "no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant"). Under a system of joint and several liab
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