Colorado's Contribution Among Tortfeasors Act
| Publication year | 1977 |
| Pages | 1484 |
| Citation | Vol. 6 No. 9 Pg. 1484 |
1977, September, Pg. 1484. Colorado's Contribution Among Tortfeasors Act
Richard W. Laugesen, Denver, is a partner in the firm of DeMoulin, Anderson, Campbell and Laugesen.
Multiple-party tort "events"(fn1) occurring on and after July 1, 1977, are within and potentially affected by Colorado's newly enacted "Uniform Contribution Among Tortfeasors Act."(fn2) Adoption of the Uniform Act brings at least partial solution to a number of interrelated problems plaguing negligence practitioners for many years. Impact on existing practice will be immediate.
The purpose of this analysis is to provide an overview of the Act, describe how it works and examine its effect on other related areas of the law. The complete text of the contribution statute follows this article.(fn3)
The Uniform Act is remedial. It developed because of historical anomalies of the common law and society's changing attitudes toward liability based on relative fault.(fn4)
Before enactment of the new legislation, as in many American jurisdictions, "contribution" was not permitted in Colorado.(fn5) The "common law" rule against contribution had its genesis in the 1799 English case of Merryweather v. Nixon,(fn6) which held that contribution would not be allowed between judgment debtors found jointly liable for trover.(fn7) Later English cases denying contribution to tortfeasors were limited to intentional wrongs as was Merryweather, so that the prohibition did not include acts of mere negligence.(fn8) Regrettably, later American cases extended the no-contribution rule to include all torts---even those arising from simple negligence. It became the majority view that, in the absence of statute, contribution would be denied in all tort cases.(fn9) Only a few jurisdictions reached a contrary position without legislation.(fn10) Over the years, a majority of legal commentators have decried the injustice of the common law rule which permits the entire liability for a jointly caused tortious injury to fall upon one individual.(fn11)
In addition, in recent years there has been a blurring of the definition of "joint tort,"(fn12) i.e., wrongs perpetrated by two or more persons acting in concert, to encompass independent, concurring torts by parties having no prior relationship to each other.(fn13)
The combined effect of the common law "no-contribution" rule and the expansion of the term "joint tort" gave the tort victim the absolute power to determine the subject of final liability. A plaintiff was permitted to place the entire
As a partial remedy to the harsh effects of the no-contribution rule, many courts, including Colorado, circumvented the rule by applying principles of "indemnification."(fn14) In doing so, courts demonstrated an amazing dexterity in manipulating the concept of "indemnity" to allow compensation between tortfeasors in some situations.(fn15) As a result, orthodox principles of indemnity were distorted almost to the point of non-recognition. The recent Court of Appeals decision in Bradfield v. Ringsby Truck Lines, Inc.,(fn16) is an example. Fortunately, the Colorado Supreme Court reversed on certiorari so that the rule is back within reasonable guidelines.(fn17) The new Act, by conclusively establishing a right of contribution, should enable the courts to avoid any further over-expansion of the concept of indemnity. Present distortions may remain, however, since the new Act does not impair any right of indemnity under existing law.(fn18)
Colorado's contribution statute, with one exception,(fn19) is basically patterned after the 1955 draft of the Uniform Contribution Among Tortfeasors Act(fn20) promulgated by the Conference of Commissioners on Uniform State Laws. The first such proposed Uniform Act was drafted in 1939.(fn21) The 1955 revision was designed to provide the uniformity that was lacking in the 1939 version, but created some problem areas that have resulted in criticism.(fn22) Although thirty-four American jurisdictions presently allow some degree of contribution, there is little uniformity in American contribution practices. Courts in eight states and the District of Columbia have established a right to contribution rule by judicial decision.(fn23) Thirty states now have statutes providing for contribution.(fn24) Colorado has blended the best features of the 1939 and 1955 proposed Uniform Acts to arrive at what appears to be a reasonable balancing of conflicting interest considerations.(fn25)
The Colorado Contribution Among Tortfeasors Act has six basic features. The statute: (1) operates to create a right of contribution among jointly and severally liable tortfeasors for non-aggravated, non-intentionally inflicted injuries;(fn26) (2) defines proportionate responsibility as being based on relative fault;(fn27) (3) provides, within specified time and procedural limitations, a judicial means of enforcement of the contribution right;(fn28) (4) encourages even partial settlements by conferring immunity from further contribution exposure where one or more of multiple tortfeasors settles with the injury claimant;(fn29) (5) permits use of partial releases, covenants not to sue or covenants not to enforce judgment to conclude settlement with less than all of the potentially involved tortfeasors;(fn30) and, (6) requires reduction of the amount of the total claim to the extent of any partial settlement.(fn31)
Thus, "contribution," by definition, and under the Colorado Act is a remedy among tortfeasors.(fn32) It is not intended to affect the substantive rights of the injured party.(fn33) The victim retains the right to sue any tortfeasor he wishes and may seek execution from any of the
Generally, an injury claimant's rights are not affected by inability of the tortfeasor to secure contribution. As a result, if a co-tortfeasor is insolvent or cannot be located, the loss falls upon the other tortfeasors.(fn35) The tortfeasors remain jointly and severally liable for the tort, and their right to contribution is against their co-tortfeasors and not against the victim.(fn36)
It is generally agreed that contribution is not a tort action.(fn37) A more appropriate characterization of the concept is one of operation of law to prevent unjust enrichment.(fn38) The rationale is that payment of the joint liability has not relieved the other co-tortfeasors of their share of the burden so that remedy lies to permit an equitable distribution of the loss. In this regard, because contribution is not a tort action, it is generally recognized that the cause of action for contribution does not accrue until actual payment of the obligation has been made.(fn39) As a result, limitations of action incorporated into the new Act run from "events" related to the date of payment rather than from the date of the tort.(fn40)
It is inherent in the Act that there are two requisite elements to a right of action for contribution: (1) the entity seeking contribution and the party against whom contribution is sought must have been jointly liable to the injured party;(fn41) and (2) there must have been a compulsory discharge of a disproportionate share of that common liability.(fn42) While a prerequisite to contribution recovery is that the party seeking it has actually paid more than his share of the joint liability, it would seem that such element should not prevent a court from awarding a declaratory relief or a judgment conditional upon satisfaction of the tort victim's claim.(fn43) If the rule were otherwise, the court could not dispose of an entire case in a single proceeding.
It is desirable, where possible, to resolve injury and contribution issues in one proceeding. But even where all requisite elements are present it is conceivable that there will be situations where prejudicial elements militate against attempting to commingle contribution with the main injury case, and in such instances, resort to request for separate trials under Rule 42 of the Colorado Rules of Civil Procedure would be appropriate.
The Colorado Act specifically denies a right of contribution to the tortfeasor who has "intentionally," "willfully" or "wantonly" caused or contributed to the cause of the injury or death.(fn44) As a result, while conduct other than non-aggravated negligence can bring about joint and several responsibility with other tortfeasors, right of contribution is afforded only to those whose conduct was non-aggravated.(fn45) It is also to be noted that the Colorado Act does not limit the contribution right to matters of negligence only. It would therefore seem that...
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