936 F.2d 579
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Julius RITTER, Irene Ritter, Surviving Parents of Elizabeth
Ritter, Rosemary Daven, as personal representative
of Estate of Harold Daven, Plaintiffs-Appellees,
YORK INTERNATIONAL CORPORATION, a Delaware corporation, Defendant.
UNITED STATES of America, Defendant-Appellant,
FRASER & JOHNSTON CORPORATION, a foreign corporation,
Fraser-Johnston Sales Company, a foreign
corporation, Westinghouse Electric
Corporation, a foreign
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 13, 1991.
Decided June 27, 1991.
Before GOODWIN, BEEZER and NOONAN, Circuit Judges.
Julius and Irene Ritter and Rosemary Dazen brought a wrongful death suit against Fraser & Johnston Corporation, Fraser-Johnston Sales Company, and Westinghouse Electric Corporation (collectively referred to as "Westinghouse"), and the United States of America. Westinghouse and the plaintiffs entered into a sliding scale settlement agreement to which the United States was not a party. The settlement releases Westinghouse from future claims in exchange for a $300,000 "loan" which may be forgiven or recouped in part or in full depending on the outcome of the litigation against the government. Arizona law shields a settling defendant against all liability for contribution if the agreement was in good faith. A.R.S. Sec. 12-2504. The settling parties filed a motion for good faith settlement determination; an objection was filed by the government. It argued the settlement was not in good faith because the government may bear most of the financial liability in the event of an adverse verdict under the doctrine of joint and several liability.1 After hearing argument, the district court noted the "facts tend to suggest that Westinghouse may not be liable at all, or at least minimally liable." The court found the settlement agreement was in good faith under the "reasonable range" test enunciated in Tech-Bilt, Inc. v. Woodward-Clyde & Assoc., 38 Cal.3d 488, 213 Cal.Rptr. 256, 698 P.2d 159, 166-67 (1985). On appeal the government contends the court erred in determining the settlement was in good faith.
The government argues its appeal is limited to the district court's application of state law. We reject the government's characterization of the issues presented and rule on the merits of the settlement agreement. Arizona law does not require a present value be placed on the settlement as part of the good faith determination. The government complains that without such a valuation the amount of set off cannot be calculated. A.R.S. Sec. 12-2504(1) provides for a reduction of the plaintiffs' claim against the government "in the amount of consideration paid" for the settlement by Westinghouse. That the government, assuming an adverse verdict, is entitled to some amount of set off does not mean such a figure must be etched in stone as part of the good faith determination. No Arizona court has construed the provision to require such a valuation prior to a trial on the merits and we decline to do so in the present case. We affirm the good faith determination of the district court. Our decision does not reach much less resolve any question regarding the amount of set off to be deducted from the verdict in the plaintiffs' claim against the government; rather that issue is expressly reserved for future proceedings in the district court.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
The doctrine of joint and several liability applies to all lawsuits filed in Arizona before December 31, 1987; the plaintiffs filed their suit on December 29, 1987