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Saranillio v. Silva2/7/1995
, by definition, there is no possibility that an unreleased tortfeasor could have a claim for indemnification against the settling released tortfeasor. This is the case because, by virtue of the contractual and proportionate reduction of the plaintiff's claim, an unreleased tortfeasor can never be liable to the plaintiff for any damages apportionable to the released tortfeasor. Obviously, a potentially settling tortfeasor always has the option of insisting on the full protections of HRS ยง 663-14. Whether a defendant-tortfeasor will choose to negotiate for these protections is a matter of his or her own cost-benefit analysis, although it is probably the rare defendant-tortfeasor who will not.
I recognize that, in the context of a vicariously liable employer -- whose liability is of necessity coextensive with that of its tortfeasor-employee -- a UCATA release that reduces the plaintiff's claims against all unreleased tortfeasors by the greater of the consideration paid by the released tortfeasor (i.e., the settling employee) or the released tortfeasor's proportionate responsibility for the plaintiff's total claims will effectively eliminate any exposure to the plaintiff on the employer's part. But such would be the case under either the Hawai'i UCATA or the common law release rule.
Steven H. Levinson
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