Defending against contribution actions: using the UCATA bar to advantage: although jurisdictions vary, contribution can be escaped if parties seeking it acted "intentionally," "willfully" or "wantonly." But who was the actor?

• Author: Dunn, Richard M.

MOST jurisdictions in the United States provide for some form of contribution among tortfeasors. Contribution claims, be they third-party claims or separate actions for contribution, are based on the premise that the contribution plaintiff is entitled to recoup some portion of the money it has paid out or will be obligated to pay to an injured claimant because the contribution defendant's conduct also contributed to the claimant' s injury.

In jurisdictions in which the revised Uniform Contribution among Tortfeasors Act of 1955 (UCATA) has been adopted, however, intentional, willful or wanton tortfeasors are prohibited from seeking contribution.

Alleging and proving this bar can be a powerful tool for the defense lawyer. The exact contours of the type of conduct that will trigger the UCATA contribution bar vary from jurisdiction to jurisdiction. The law is not clear in the corporate setting as to exactly whose conduct will trigger application of the contribution bar--that is, must a corporate managing agent act willfully, wantonly or intentionally, or will the conduct of any corporate employee acting within the scope of employment suffice.

A LOOK AT UCATA

UCATA is a product of the National Conference of Commissioners on Uniform State Laws.

Section 1 of the act, "Right to Contribution," lays out the cornerstone principle that joint or several tortfeasors have a right to contribution to the extent that they have paid more than their pro rata share of common liability. (1) Section 1 also deals with the bar to contribution for intentional misconduct, the effect of settlement by less than all tortfeasors, and the liability insurer's extra-contractual right to subrogation on its insured's contribution claim as a joint tortfeasor, if any. It also distinguishes between indemnity and contribution and indicates that the act does not apply to breaches of trust or other "fiduciary obligations."

Section 2 dictates that the pro rata shares of liability for each joint tortfeasor should not be based on their own relative degrees of fault, and that where "equity requires," the collective liability of certain related tortfeasors should be assessed as a single share. The comments to Section 2 include common liability arising from vicarious relationships as one of the classes of related tortfeasors.

Section 3 describes the procedural circumstances and terms under which eligible tortfeasors may seek to enforce their rights to contribution. For instance, contribution can be enforced by a separate action or, where judgment has been entered against joint tortfeasors as co-defendants, by motion on notice.

Section 4, "Release or Covenant Not to Sue," explains the effect of obtaining a release or covenant not to sue or enforce judgment by less than all the joint tortfeasors. The tortfeasor obtaining absolution is discharged from liability for contribution to all other tortfeasors. The remaining tortfeasors, on the other hand, will be discharged only if the terms of the agreement so provide. Nonetheless, the claim is reduced against the remaining tortfeasors by the amount stipulated to or the consideration paid for the release or covenant, whichever is greater.

Section 5 simply states that the act should be construed to effect uniformity. Section 6 gives the act's official citation. Section 7 is a severability provision.

"INTENTIONAL TORTFEASORS"

The prefatory note to UCATA opens with this statement of purpose: "This uniform act establishes the right of a person liable for damages for an unintentional wrong to compel others, who are liable with him for the same damages, to share in discharging the common liability." By using the term "unintentional," the drafters clearly are drawing attention to the impact a tortfeasor's degree of misconduct has on that tortfeasor's right to contribution.

Having heralded this distinction in the prefatory note, the drafters specifically addressed the issue in Section 1(c): "There is no right of contribution in favor of any tortfeasor who has intentionally [willfully or wantonly] caused or contributed to the injury or wrongful death."

In the comments, the drafters explain that the intentional acts exclusion is based on the same policy underlying the original common law rule against contribution among tortfeasors--that tortfeasors evincing moral turpitude should not be aided by the courts in the cause of their wrongdoing. However, by placing the bracketed phrase "willfully or wantonly" after "intentionally," the drafters appear to be indicating that acts of sufficient moral turpitude involve a class of conduct somewhat broader than what in criminal legal parlance is commonly known as "specific intent." The question is: How broad a range of conduct is entailed in the bar?

The drafters attempt to answer this question in the comments by detailing their reasons for including "willful or wanton" acts among the purely intentional wrongs excluded by Section 1(c). They first indicate that, as with intentional acts, willful or wanton conduct implies a sufficient degree of moral turpitude warranting exclusion. They were aware that some American states do not recognize various forms of negligence by degrees. So they included the "willfully or wantonly" language to ensure that Section 1(c) would apply to analogous states of heightened misfeasance involving moral turpitude that otherwise might be labeled "simple negligence" by jurisdictions that did not differentiate between degrees of negligence.

As a further illustration of their point, the drafters cited to states where the phrase "gross and wanton negligence," as used in now-defunct guest statutes, was interpreted to mean willful and wanton conduct. From today's perspective, when "gross negligence" is used in a variety of contexts resulting in a multiplicity of meanings, the drafters' analogy appears to cast a fairly broad net. The comments, however, specifically cite a Kansas Supreme Court case, Srajer v. Schwartzman, (2) to demonstrate their intention to limit the phrase "willfully and wantonly" to include only truly quasi-intentional conduct.

A brief discussion of Srajer is instructive. Typical of many guest statute cases, it involved an injured plaintiff seeking to avoid the statute's bar against drivers being held liable for negligently injuring their gratuitous passengers. Under the Kansas statute, the driver could be held liable if the injury was caused by the driver's "gross and wanton negligence."

The Srajer plaintiff therefore labored to persuade the court that the defendant's driving at excessive speeds while intoxicated constituted gross and wanton negligence.

The Srajer court began its analysis by stating that the legislature's choice in selecting the words "gross and wanton negligence" was unfortunate because Kansas state law did not classify negligence into the degrees of slight, ordinary and gross. The court therefore felt constrained to interpret "gross and wanton negligence" not to mean "mere gross negligence" but to constitute conduct that denotes "conscious or intentional misconduct from which injury to someone is likely to result and done with a reckless disregard of such consequences." (3) This sort of conduct, the court explained, differed from negligence not merely in quantity but also in quality.

The UCATA drafters intended the exclusion in Section 1(c) to apply to a range of conduct, however broad or narrow. Indeed, the second reason given for including the "willfully and wantonly" language, according to the comments, was to eliminate any consideration of allocating shares of liability for contribution based on the tortfeasor's relative degree of fault. The implicit acknowledgment is that the conduct to be excluded can vary somewhat by degree between the truly intentional and the quasi-intentional.

The drafters further explain that the placement of "willfully or wantonly" is...