Join and Several Liability and Contribution Laws
Join and Several Liability and Contribution Laws
Join and Several Liability and Contribution Laws
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the date of the settlement. In this sense, equity plays no role in whether an insurer which has made payments may seek contribution from another
insurer who has no obligation to the insured. Further, an insurer will normally be compelled to contribute no more than the limits fixed in its policy.
Nevertheless, contribution from a concurrent insurer is a claim which is totally independent of the rights of the insured and is very dependent on the
language of the policies involved.
Where a first or third-party co-insurer pays a judgment or settles a claim and seeks reimbursement from another co-insurer for a proportionate share
of the claim, the overpaying carrier can make a claim based on a direct equitable duty of contribution and/or under subrogation principles. While
both legal theories seek the same end – proportionate share payment by the underpaying co-insurer, they are handled quite differently.
Equitable Contribution. Many states recognize a right of equitable contribution between co-insurers based on equitable principles that imply a
contract between the parties to contribute ratably to the discharge of their common obligation. Nat’l Cas. Co. v. Great Southwest Fire Ins. Co., 833
P.2d 741 (Colo. 1992); Royal Globe Ins. Co. v. Aetna Ins. Co., 403 N.E.2d 680 (Ill. App. 1980); Ohio Cas. Ins. Co. v. State Farm Fire & Cas. Co., 546 S.E.2d
421 (Va. 2001). An equitable contribution claim between co-insurers requires that the policies insure a common obligation to the same insured, the
same property, and the same interests in the property. They must cover the same risk and owe insurance payments to the same insured. State Farm
Fire & Cas. Co. v. Monroe Guar. Ins. Co., 111 F.3d 42 (6th Cir. 1997); Reliance Ins. Co. v. Liberty Mut. Fire Ins. Co., 13 F.3d 98 (6th Cir. 1994); Nat’l Cas.
Co. v. Great Southwest Fire Ins. Co., 833 P.2d 741 (Colo. 1992); Royal Globe Ins. Co. v. Aetna Ins. Co., supra; Ind. Ins. Co. v. Sentry Ins. Co., 437 N.E.2d
1381 (Ind. App. 1982). In order for a right of equitable contribution to run between co-insurers, the respective policies must address a common
obligation; that is, it must afford coverage to the same insured, the same property, and the same interests in the property and it must cover the same
risk and owe payments, if any, to the same insured. For example, an insurer providing fire coverage to an owner might not be able to seek equitable
contribution from an insurer providing builders’ risk coverage to a contractor, though there might possibly be a right of contribution where a property
owner has purchased both fire insurance and builder’s risk coverage. Where coinsurance is created by “other insurance” clauses, as opposed to cases
where each insurer is liable for the entire loss, the defense that the insurer paying the whole claim was a “volunteer” might have applicability. This
may be the case where both policies provide for “pro rata” apportionment in the event of overlapping coverage. Mid-Continent Ins. Co. v. Liberty
Mut. Ins. Co., 236 S.W.3d 765 (Tex. 2007); Fid. & Cas. Co. v. Fireman’s Fund Indem. Co., 100 P.2d 364(Cal. App. 1940); Commercial Union Ins. Co. v.
Farmers Mut. Ins. Co., 457 S.W.2d 224 (Mo. 1970); Farm Bureau Mut. Auto. Ins. Co. v. Buckeye Union Cas. Co., 67 N.E.2d 906 (Ohio 1946); INA v. Fire
Ins. Exch., 525 S.W.2d 446 (Tex. App. 1975).
Subrogation. If one of two insurers co-insuring a claim settles the claim or pays a judgment, it might be subrogated to its insured’s rights to coverage
under another applicable policy of insurance. Foremost County Mut. Ins. Co. v. Home Indem. Co., 897 F.2d 754 (5th Cir. 1990); Arrow Exterminators,
Inc. v. Zurich Am. Ins. Co., 136 F.Supp.2d 1340 (N.D. Ga. 2001); Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765 (Tex. 2007); Sharon Steel
Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127 (Utah 1997). Subrogation, in turn, can be “legal” (equitable) or “contractual” in nature. An equitable right
of subrogation may exist if one co-insurer pays a greater proportion of a judgment or settlement than what is warranted under the insurance policies,
because it is only fair to allow the carrier paying the claim to recover from the other carrier the amount the other carrier would have owed. Mid-
Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765 (Tex. 2007). Contractual subrogation is determined from the specific language of the
insurance policy involved.
While a right of contribution exists independently of the insured’s right to recover from the co-insurer, the right of subrogation is based upon the
rights of the insured – stepping into the shoes of the insured, so to speak. If a contractor’s general liability carrier pays a claim for property damage at
the project site and the loss may also be covered by a first party builder’s risk policy naming the owner as insured, the contractor may not have direct
rights under the builder’s risk policy, and consequently, the GL carrier will also not have a cause of action for subrogation. Note, however, that in
some jurisdictions, if a co-insurer fully pays the claim of its insured (even if the other co-insurer has notice of the claim and the settlement), its right
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of subrogation may be abolished. Mid-Continent Ins. Co., supra. Moreover, the existence of a subrogation right doesn’t necessarily mean that one co-
insurer is bound by and liable for the settlement decisions made by another co-insurer. There may be a reasonable, good faith standard.
Contribution Law
“Contribution” is a claim brought by one tortfeasor against another tortfeasor to recover some or all the money damages the first tortfeasor owes to
an injured/damaged plaintiff, as a result of a settlement or a judgment in favor of the plaintiff. For example, if a plaintiff sues a general contractor for
injuries resulting from a fall on the job site, the general contractor’s insurer could pursue a claim for contribution against a subcontractor who was
directly responsible for causing the injury. The insurer would seek reimbursement from the subcontractor based on the latter’s proportionate share
of responsibility, liability, or fault assigned to the subcontractor either in the original lawsuit or in a separate lawsuit seeking the contribution.
Understanding contribution law is important for subrogation practitioners because an insurer who settles on behalf of its insured must know whether
the settlement will extinguish its subrogated right of contribution against the other tortfeasors to determine what should be paid in settlement.
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In some cases, contribution claims are brought within the original lawsuit itself, when one defendant files a cross-claim against a co-defendant. In
other cases, a defendant brings (impleads) a completely new party into the lawsuit claiming that it is also responsible for causing the injury or
damages. In many cases – depending on state law – a liability insurance carrier might settle with the plaintiff before or during a pending lawsuit or as
a result of a judgment, and then seek to make an independent claim for contribution against the third-party defendant, seeking to recover some or all
the damages it paid to the plaintiff, based on allegations that the third-party defendant bears a proportionate share of responsibility, based on its
actions.
Contribution (sharing of liability) differs from indemnity in that the latter is a complete shifting of liability based on common law or statute (e.g., a
manufacturer must indemnify an innocent retailer for sale of a defective product) or even contract, such as a construction contract which requires a
subcontractor to indemnify a general contractor for all damages arising out of the subcontractor’s work, etc.
Contribution is subrogation’s cousin. Insurance carriers differ in the way they approach the right of contribution, but like subrogation, the goal of
contribution is to bring back into the insurance company’s coffers, claim dollars that have been paid out. Insurance companies routinely miss
opportunities to seek contribution recovery dollars because they don’t recognize contribution opportunities or because they have internal
procedures and protocols which allow such contribution rights to go unrealized.
In 1939, the National Conference of Commissioners on Uniform State Laws drafted the first Uniform Contribution Among Tortfeasors Act (“UCATA”).
The UCATA was revised in 1955, and by 1988, 17 states had adopted it. The UCATA provides for contribution when two or more persons become
jointly and severally liable in tort for the same injury to person or property, “even though judgment has not been recovered against all or any of
them.” Virtually all tort cases involve potential contribution issues that can arise when one or more tortfeasors enter into settlement agreements.
The same is true for other tort cases in which liability may be shared by multiple defendants or even unnamed tortfeasors. Settlements with joint
tortfeasors raise two major issues. In some jurisdictions, when a joint tortfeasor enters into a settlement, the settling tortfeasor may be entitled to
contribution provided that certain conditions are met. Conversely, a settling tortfeasor may or may not be protected from contribution liability
according to whether other conditions have been satisfied. It is the former scenario that this chart primarily addresses.
Statute of Limitations
Although a state may have a special statute of limitations providing that actions for contribution must be commenced within a specified time after
the cause of action accrues to the injured person (usually the date of the accident or injury) so that the time to file a third-party complaint is
governed by the time the original cause of action accrues and not from the time the right to contribution accrues, the general rule is that the statute
of limitations governing claims for contribution runs from the discharge of the obligation (liability claim payment to the plaintiff by defendant seeking
contribution) and not from the time when the original tort occurred. This means that in many situations, the right of contribution is still viable even
though the plaintiff’s time in which to pursue a defendant has lapsed. For example, Wisconsin’s Wis. Stat. § 893.92 provides:
Wis. Stat. § 893.92. Action for contribution. An action for contribution based on tort, if the right of contribution does not arise out of a prior
judgment allocating the comparative negligence between the parties, shall be commenced within one year after the cause of action accrues or be
barred.
In jurisdictions where the practice permits a party seeking contribution to base its contribution action upon the principal obligation or a judgment as
assignee or subrogee of the creditor, the ordinary rule in simple actions for contribution that the statute of limitations begins to run on payment may
not apply to an action brought on this theory, and the statute of limitations may begin to run from the date the principal obligation becomes due or
from the date of the judgment. While the statute of limitations differs from state to state, the majority rule is that in states which allow such
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contribution actions, the statute of limitations for the party seeking contribution runs from the date of its original liability claim payment to the
plaintiff.
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Pure Several Liability Arizona adopted a pure comparative fault tort system as part of its
Generally, defendants are held enactment of the Uniform Contribution Among Tortfeasor’s Act
(“UCATA”), A.R.S. § 12-2501, et seq. Since 1988, the doctrine of
severally liable, except when
joint and several liability has been abolished making contribution
tortfeasors are acting in concert or
actions rare under the statute. Bill Alexander Ford v. Casa Ford, 931
there is an issue of vicarious liability.
A.R.S. § 12-2506; Yslava v. Hughes P.2d 1126 (Ariz. App. 1996). No right of contribution when a single
Aircraft Co., 936 P.2d 1274 (Ariz. tortfeasor settles a plaintiff’s claim against him. Three (3) years from date of
ARIZONA 1997). Unless acting in concert or hazard wastes involved. No right of payment or judgment. A.R.S. § 12-
contribution where a settling defendant’s liability is several only. 541.
Contribution allowed only in rare instances where joint and several
liability. PAM Transp. v. Freightliner Corp., 893 P.2d 1295 (Ariz.
1995).
Equitable contribution (arising without regard to contribution
statute) is still viable. Mut. Ins. Co. v. Am. Cas. Co., 938 P.2d 71
(Ariz. 1996).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
California allows for contribution by statute. Cal. Civ. Proc. Code §
875 states:
• Where judgment rendered jointly against two or more
defendants there is right of contribution.
• Contribution allowed only after one tortfeasor has discharged
joint judgment or has paid over his pro-rata share.
Modified Joint and Several Liability Contribution limited to the excess paid over pro rata share of
contribution plaintiff and no contribution defendant owes
Joint and several liability for economic contribution beyond his pro-rata share of entire judgment.
damages on negligence claims, • No contribution if intentional act. One (1) year from date the
otherwise several liability for non- • A liability carrier who has discharged or extinguished the settlement is paid. Smith v. Parks
CALIFORNIA economic damages. Cal. Civ. Code liability of a tortfeasor judgment debtor is subrogated to his
Manor, 243 Cal. Rptr. 256 (Cal. App.
Ann. § 1431. right of contribution.
• No contribution if there is indemnity right. 1987).
Exceptions: Strict liability claims. Daly
v. General Motors Corp., 575 P.2d Is called “partial equitable indemnity.” Good faith settlement
1162 (Cal. 1978). finding bars contribution against settling tortfeasor and provides
offset in the amount of the settlement to subsequent liability of
non-settlors. A settling defendant can recover equitable indemnity
from a non-settling defendant to the extent the settling defendant
has discharged a liability the non-settling defendant should be
responsible to pay. The right of contribution can be enforced in a
separate lawsuit. Caterpillar Tractor Co. v. Teledyne Indus., Inc., 53
Cal. App.3d 693, 126 Cal. Rptr. 455 (Cal. Ct. App. 1975).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Pure Joint and Several Liability A settling contribution plaintiff is not entitled to contribution from
Separate contribution actions are
Plaintiff can recover entire amount of a tortfeasor whose liability was not extinguished by the settlement.
rarely allowed. Usually, they must be
DELAWARE damages from any defendant. 10 Del. No contribution in a separate action if it can be enforced by cross-
filed in the underlying third-party
C. § 6301; Blackshear v. Clark, 391 claim in the original action. 10 Del. C. § 6302; Am. Ins. Co. v.
action.
A.2d 747 (Del. 1978). Material Transit, Inc., 446 A.2d 1101, 1104 (Del. Super. 1982).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
In T&S Enterprises Handicap Accessibility, Inc. v. Wink Indus.
Maintenance & Repair, Inc., 11 So.3d 411 (Fla. App. 2009), the
court held that the abolition of joint and several liability acts to
defeat all third-party causes of action for contribution. Because
Pure Several Liability judgment is now entered purely on a pro rata finding of fault, there
Removed joint and several liability in is no longer a need to seek recovery from a non-party joint
tortfeasor. A defendant who intends to place fault on a non-party
2006. Now a system of pure
joint tortfeasor is required to plead such as an affirmative defense
comparative fault - does not apply to and prove the fault of that non-party as a Fabre Defendant (non-
certain actions, including intentional party defendant whom a party defendant asserts is wholly or
torts. F.S.A. § 768.81; T&S Enterprises partially responsible for the negligence alleged by plaintiff
Handicap Accessibility, Inc. v. Wink pursuant to § 768.81(3). To allocate fault to a “Fabre defendant”, it
Indus. Maint. & Repair, Inc., 11 So.3d must (a) plead the fault of the non-party and identify the non-party
411 (Fla. App. 2009). in an affirmative defense, and, (b) prove at trial by a
preponderance of evidence the fault of the non-party (the Fabre
Contribution is the legal doctrine that defendant) causing plaintiff’s injuries in order to get that non-party
allows a tortfeasor to collect from on the verdict form for purposes of having the jury allocate One (1) year after judgment. F.S.A. §
others responsible for the same tort damages to the non-party. 768.31(d)(2). If no judgment, must
after the tortfeasor has paid more discharge liability within underlying
When a release is given in good faith to one of two or more
than his or her pro rata share, persons liable in tort for the same injury, it does not discharge any SOL period and file contribution
wherein the shares represent the of the other tortfeasors from liability for the injury or wrongful action within one (1) year after
FLORIDA percentage of fault attributable to death unless it so provides. It does reduce the claim against the payment. F.S.A. § 768.31(d)(1).
each of the tortfeasors. others to the extent of the amount of the settlement and It
discharges the tortfeasor to whom it is given from all liability for
Section 768.31 states that a party can contribution to any other tortfeasor. F.S.A. § 768.31. Boca Raton For contribution against state or local
only seek contribution when a Transp., Inc. v. Zaldivar, 648 So.2d 812, 813 (Fla. App. 1995). government, six (6) months after
tortfeasor has paid more than his “pro Section 768.31(5) requires that the settling parties act in good faith settlement for contribution claims.
rata share of the common liability, with respect to the non-settling ones. Am. States Ins. Co. v. F.S.A. § 768.28(14).
and the tortfeasor’s total recovery is Kransco, 641 So.2d 175, 177 (Fla. Dist. Ct. App. 1994). “Individuals
limited to the amount paid by her or not participating in the settlement are barred from seeking
him in excess of her or his pro rata contribution only if the settling parties acted in good faith with
share.” Therefore, § 768.31 and respect to them.” International Action Sports, Inc. v. Sabellico, 573
So.2d 928, 930 (Fla. App. 1991). Good faith “consists of a good
Florida’s Comparative Fault Statute, § faith determination of relative liabilities.” Am. States Ins. Co., 641
768.81 are somewhat in conflict So.2d at 177. Factors that are considered in determining good faith
because the latter restricts a are the amount of settlement, the depositions of settling parties,
tortfeasor’s contribution beyond his and any evidence of collusion or bad faith. See Seaboard System
own pro rata share of the entire R.R., Inc. v. Goforth, 545 So.2d 482, 483 (Fla. App. 1989).
liability. Equitable subrogation can be used to allow an initial tortfeasor
held liable for the entirety of a personal injury plaintiff’s damages
to recover from a subsequent tortfeasor whose negligence (e.g.,
medical malpractice) exacerbated plaintiff’s injuries. Underwriters
at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla. 1980).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Modified Joint and Several LiabilityContribution plaintiff is entitled to contribution from a tortfeasor 3 Years
Joint and several only for vicarious whose liability was extinguished by the settlement, either in main Idaho Code § 6-803; Porter v.
IDAHO
liability and defendants acting in action or separate action. Idaho Code § 6-803 (1971); Horner v. Farmers Ins. Co. of Idaho, 627 P.2d
concert. Idaho Code § 6-803. Sani-Top, Inc., 141 P.3d 1099 (Idaho 2006). 311 (Idaho 1981).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
The “one-action rule” requires that all parties must have their fault
determined in a single trial. All liable parties are joined in one
Pure Several Liability action. No party is liable for the fault of others, so “the equitable
Each defendant only liable for its need for contribution vanished,” and the Kansas Supreme Court
percentage of damages awarded. abolished it. Teepak, Inc. v. Learned, 699 P.2d 35 (Kan. 1985). N/A
KANSAS
K.S.A. § 60-258a; Albertson v. Defendant in comparative negligence action cannot settle claim on
Volkswagenwerk Aktiengesellschaft, behalf of party or parties against whom plaintiff has not sought
634 P.2d 1127 (Kan. 1981). recovery and then seek contribution from those parties in
proportion to percentage of causal negligence attributable to
them. Ellis v. Union Pac. R. Co., 643 P.2d 158 (Kan. 1982).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Defendant not liable for more than his percentage of fault and not
jointly liable with any other person for damages not attributable to
Joint and Divisible Liability him, unless he conspires to commit intentional, tortious act. Non-
Generally, several liability, unless intentional tortuous acts are now considered joint and divisible,
defendants commit an intentional and each joint tortfeasor is liable only for the degree of fault
tort; they are then jointly and attributed to his actions. La. C.C. arts. 2323 and 2324.
severally (solidarily) liable. La. C.C. Art. Contribution permits a tortfeasor who has paid more than his
1815, et seq.; Ross v. Conoco, Inc., 828 share of a solidary obligation (joint liability) to seek reimbursement
So.2d 546 (La. 2002). from the other tortfeasors for their respective shares of the
The Louisiana Legislature amended judgment, but only if actions are intentional and/or willful. One (1) year SOL applies but runs
Art. 2324 in 1996, transforming Hamway v. Braud, 838 So.2d 803 (La. App. 2002). from date of payment. La. Civ. Code
LOUISIANA solidary liability into a complex “joint When a plaintiff settles with and releases one of several joint Art. 3492, 3595; Cole v. Celotex
and divisible” obligation. It is tortfeasors, he deprives the remaining tortfeasors (obligors) of Corp., 599 So.2d 1058 (La. 1992).
described as “comparative fault.” A their right of contribution and reduces the recovery against the
defendant’s liability is proportionate remaining obligor by the percentage of fault of the released
to his percentage of fault. Notre tortfeasor. Taylor v. U.S.F.& G., 630 So.2d 237 (La. 1993).
Dame, LLC v. Kolbe & Kolbe Mill Work Non-parties who are found at fault may also be assigned a
Co., 151 F. Supp.3d 715 (E.D. La. percentage of fault, reducing the defendant’s liability to the
2015). plaintiff.
Plaintiff responsible for his own A cause of action for indemnity does not arise until the lawsuit is
percentage of fault. La. C.C. Art. 2323. concluded and the party seeking indemnity has made payment to
plaintiff or sustained any loss (such as payment of defense costs).
Suire v. Lafayette City Parish Consol. Gov’t, 907 So.2d 37 (La. 2005).
Modified Joint and Several Liability
Joint tortfeasors have a right to contribution which may be
Defendants are jointly and severally Contribution action brought within a
enforced through a separate action. It is an equitable right,
liable for total amount of judgment to reasonable period of time not
MAINE founded on the principles of natural justice, as opposed to a
plaintiff. 14 M.R.S.A. § 156-A; Peerless subject to affirmative defense of
statutory right. Otis Elevator Co. v. F.W. Cunningham & Sons, 454
Div. v. U.S. Special Hydraulic Cylinders laches.
A.2d 335 (Me. 1983).
Corp., 742 A.2d 906 (Me. 1999).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Tortfeasor has action for contribution against joint tortfeasor who
signs release and agrees he’s a joint tortfeasor or who is so
determined by a court. A joint tortfeasor who paid more than his
Pure Joint and Several Liability pro-rata share of judgment may enforce right of contribution by Three (3) years from date of
making a post-trial motion for Judgment of Contribution or
Joint and Several Liability; each Recovery Over pursuant to Md. Rule 2-614 even if he did not file a payment or judgment. Md. Cts. &
MARYLAND defendant may be liable for full cross-claim against his joint tortfeasors. Lerman v. Heemann, 701 Jud. Proc. § 5-101 (1998); Tadjer v.
amount of damages. Md. Code § 3- A.2d 426 (Md. 1997). Montgomery County, 487 A.2d 658
1401. A contractual waiver of subrogation does not bar contribution (Md. 1985).
under the Maryland Uniform Contribution Among Joint Tortfeasors
Act (“UCATA”). Gables Construction, Inc. v. Red Coats, Inc., 2019
WL 2067348 (Md. App. 2019).
Pure Joint and Several Liability Contribution plaintiff entitled to recover from joint tortfeasor the One (1) year after judgment.
Joint and several liability with amount of a reasonable settlement which is in excess of his pro- M.G.L.A. 231B § 1(c). If no judgment,
defendant’s liability being divided rata share of liability, in third-party action or separate action. Ann. must discharge liability within SOL
MASSACHUSETTS equally regardless of percentage of
L. Mass. Ch. 231B, § 1 (1962); Shantigar Foundation v. Bear Mt. period and file contribution action
fault. Ann L. Mass. Ch. 231B, § 1;
Zeller v. Cantu, 478 N.E.2d 930 (Mass. Builders, 804 N.E.2d 324 (Mass. 2004); Ace Am. Ins. Co. v. Riley within one (1) year after payment.
1985). Bros., Inc., 2013 WL 4029087 (Mass. Super. 2013). M.G.L.A. 231B, § 1(d).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Modified Joint and Several Liability The six (6) year SOL for the
Generally several liability, unless contribution/ indemnity action does
Contribution in proportion to percentage of fault is allowed. A
particular defendant is more than 50% not begin to run until contribution
contribution plaintiff may sue for contribution in the underlying
MINNESOTA at fault, or if defendants act in plaintiff has paid. M.S.A. §
action or in a separate action. Anderson v. Gabrielson, 126 N.W.2d
concert. M.S.A. § 604.02; Staab v. 541.05(1)(5); Blomgren v. Marshall
239 (Minn. 1964).
Diocese of St. Cloud, 813 N.W.2d 68 Mgmt. Services, Inc., 483 N.W.2d 504
(Minn. 2012). (Minn. App. 1992).
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Joint tortfeasors have a right to contribution. The contribution
plaintiff must extinguish the liability of the joint tortfeasor from
whom contribution is sought. The right to contribution becomes
enforceable when one tortfeasor discharges more than his
proportionate share of the judgment. Royal Indem. Co. v. Aetna
Cas. & Surety Co., 229 N.W.2d 183 (Neb. 1975). Before
contribution plaintiff can recover against contribution defendant,
Modified Joint and Several Liability contribution plaintiff must prove by the greater weight of the
evidence each and all of the following: Four (4) years from date of
Joint and several liability for economic settlement or payment of judgment.
(1) Both that plaintiff and defendant had a common liability to the
damages (or defendants acting in third party, and the amount of that common liability; Neb. Rev. Stat. § 25-206 (1995);
NEBRASKA
concert), several liability for non- (2) Both that plaintiff paid more than its pro-rata share of the Cepel v. Smallcomb, 628 N.W.2d 654
economic damages. Neb. Rev. Stat. §§ common liability, and the amount of money that it paid over and (Neb. 2001).
25-21, 185.10. above its pro-rata share;
(3) The part of the common liability that is owed by defendant, and
(4) That plaintiff has extinguished defendant’s liability to third
party.
If liability of contribution defendant was extinguished by
settlement, then instead of No. 3 above, you must show that
amount paid in settlement by contribution plaintiff was
reasonable.
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
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STATE JOINT AND SEVERAL LIABILTY CONTRIBUTION LAW STATUTE OF LIMITATIONS
Joint tortfeasors have right to contribution, provided they have
discharged the common liability of joint tortfeasors by payment or
have paid over their pro-rata share. Settlement or order must
satisfy “all claims” arising out of incident. A settling defendant who
has obtained a general release from plaintiff is free from any claim
of contribution by non-settling defendants under § 15-108. That
Modified Joint and Several Liability defendant will be dropped from the action. Furthermore, settling
Joint and several liability, except when defendant forfeits any claim that he/she may have for contribution
it is a personal injury defendant less against other non-settling defendants; he/she does not, however,
forfeit the right to indemnification. Two (2) years from date of payment.
than 50% liable - then several liability Berlin & Jones, Inc. v. State, 381
NEW YORK
and only for non-economic damages. Contribution may be sought in underlying action or a separate
N.Y.S.2d 778 (N.Y. Ct. Cl. 1976).
N.Y. C.P.L.R. § 1601; Cooney v. Osgood action. A joint tortfeasor who settles with tortfeasor relieves that
Machinery, 612 N.E.2d 277 (N.Y. tortfeasor of any potential contribution liability to any other
1993). person. N.Y. C.P.L.R. § 1401; Sommer v. Fed. Signal Corp., 593
N.E.2d 1365 (N.Y. 1992). Settlement is “voluntary” if before
judgment, but not after judgment. Makeun v. New York, 471
N.Y.S.2d 293, 298 (N.Y. App. Div. 1984). Settling tortfeasor cannot
seek contribution from non-settling defendant even if he pays over
his share, because he’s a “volunteer.” Orsini v. Kugel, 9 F.3d 1042
(2nd Cir. 1993).
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Contribution plaintiff for years were entitled to recover from joint
tortfeasor the amount of a reasonable settlement which is in
excess of his pro-rata share of liability in a third-party action or as a
separate action. N.C.G.S.A. § 1B-2; Chamock v. Taylor, 26 S.E.2d
911 (N.C. 1943). There was a common law right to contribution, or
equitable contribution, pursuant to which one person can obtain
reimbursement for a portion of the judgment or liability against
him. The extent to which common law contribution is still available
is not entirely clear following passage of the Uniform Right to
Contribution Among Joint Tortfeasors Act (“UJTA”). One case One (1) year after judgment or
argues that there is no longer any common law contribution. payment. Three (3) years after
Pure Joint and Several Liability Holland v. Edgerton, 355 S.E.2d 514 (N.C. App. 1987) (“The right to voluntary dismissal of pending
NORTH
Joint and Several Liability. N.C.G.S.A. § contribution is statutory; therefore, it must be enforced according contribution claim. Safety Mut. Cas.
CAROLINA to the terms of the statute”). North Carolina has passed the UJTA. Corp. v. Spears, Barnes, Baker,
1B-2.
N.C.G.S.A. § 1B-1(a). It contains several specific statutory Wainio, Brown & Whaley, 409 S.E.2d
provisions regarding the right to contribution, including the 736 (N.C. App. 1991).
recognition of the right. G.S. § 1B-1(a). However, a general
contractor usually does not have a contribution claim against a
subcontractor, because they are not tortfeasors toward the owner.
A settling tortfeasor has a right of contribution only if he
extinguishes liability of the other tortfeasor. A tortfeasor which
settles with a claimant is not entitled to recover contribution from
another tortfeasor whose liability for the injury or wrongful death
hasn’t been extinguished nor in respect to any amount paid in a
settlement that is in excess of what was reasonable. G.S. § 1B-1(d).
Modified Joint and Several Liability Contribution allowed in underlying or separate action where
Must be brought by motion in
tortfeasor pays more than his share of common liability.
Several liability, unless defendants are Contribution plaintiff only entitled to contribution if liability of pending suit or within one (1) year of
NORTH
acting in concert. N.D.C.C. § 32-03.2- contribution defendant was extinguished by a reasonable judgment. If settlement, must be
DAKOTA
02; Pierce v. Shannon, 607 N.W.2d 878 settlement. N.D.C.C. § 32-03.2-02 (1987); Pierce v. Shannon, 607 brought within one (1) year of
(N.D. 2000). payment.
N.W.2d 878 (N.D. 2000).
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Where two or more persons are jointly or severally liable in tort for
the same injury to person or property, joint tortfeasors have right
of contribution, unless intentional. Right of contribution exists only
in favor of tortfeasor who paid more than the proportionate share
of shared liability between two or more tortfeasors for the same
injury or wrongful death, in accordance with the procedure set out
in § 29-11-104, and tortfeasor’s total recovery is limited to amount
paid by tortfeasor in excess of this proportionate share.
Contribution action can be brought in original action or in a
separate action. T.C.A. § 29-11-102; Velsicol Chem. Corp. v. Rowe,
Pure Several Liability 543 S.W.2d 337, 340 (Tenn. 1976). A tortfeasor who enters into
Generally, several liability, except settlement with a claimant isn’t entitled to recover contribution One (1) year after payment
when defendants act in concert or for from another tortfeasor whose liability for the injury or wrongful (judgment or settlement). Security
TENNESSEE death isn’t extinguished by settlement nor in respect to any Fire Protection v. City of Ripley, 608
products liability cases. Banks v. Elks
Club Pride of Tenn., 1102, 301 S.W.3d amount paid in a settlement which is over what was reasonable. A S.W.2d 874 (Tenn. App. 1980).
214 (Tenn. 2010). liability insurer, who by payment has discharged in full or in part
the liability of a tortfeasor and has thereby discharged in full its
obligation as insurer, may be subrogated to tortfeasor’s right of
contribution to the extent of the amount it paid in excess of the
tortfeasor’s proportionate share of shared liability between two or
more tortfeasors for the same injury or wrongful death, in
accordance with the procedure set out in § 29-11-103. This
provision does not limit or impair right of subrogation or
assignment arising from any other relationship and causes of
action for contribution or indemnity are fully assignable and
transferable. T.C.A. § 29-11-102(d)(e).
Each joint and several tortfeasor paying more than its proportion
of damages has a right to contribution from other jointly and
severally liable defendants up to the other defendants’ unpaid
Modified Joint and Several Liability share of damages. No defendant has a right of contribution against Two (2) years from date judgment or
Joint and several liability for any settling person and a settling defendant has no contribution settlement imposes liability on
TEXAS defendants more than 50% at fault, or rights against non-settling defendants. Contribution claims contribution plaintiff. Beaumont
defendants who act intentionally. Tex. between named defendants must be determined in the primary Coca Cola Bottling Co. v. Cain, 628
Civ. Prac. § 33.013. suit or they are waived unless right of contribution exists because a S.W.2d 99 (Tex. App. 1981).
third-party was not party of the primary suit and has made no
settlement with plaintiff. Tex. Civ. Prac. § 33.015; C & H Nationwide
v. Thompson, 903 S.W.2d 315 (Tex. 1994).
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Pure Several Liability
Utah has no joint and several liability. Therefore, a defendant in a
Several Liability - if some parties are
tort case is not entitled to contribution. A defendant may join
immune from suit, their share can be Four (4) years for personal injuries.
UTAH other responsible parties as defendants in the original action and
allocated to other defendants if their U.C.A. § 78-12-25(3).
may identify non-parties whom the trier of fact should consider
fault is less than 40%. U.C.A. § 78B-5-
when allocating fault. U.C.A. § 78B-5-820.
818.
Pure Several Liability
Several liability where plaintiff is also Vermont does not afford joint tortfeasors a right to contribution.
VERMONT N/A
at fault in some manner. 12 Vt. Stat. Murray v. J & B Int’l Trucks, Inc., 508 A.2d 1351 (Vt. 1986).
Ann. § 1036.
Joint tortfeasors have a right to contribution in cases of negligence
with no moral turpitude. A joint tortfeasor who settles isn’t subject
to contribution from others and isn’t entitled to contribution
unless settlement specifically discharges or extinguishes all joint
Three (3) years from date of
tortfeasors from liability. Va. St. § 8.01-34; Va. St. § 8.01-35.1;
Pure Joint and Several Liability payment of judgment or settlement.
Sullivan v. Robertson Drug Co., 639 S.E.2d 250 (Va. 2007).
Joint and several liability for all Right of contribution arises when one tortfeasor has paid claims Va. St. § 8.01-246(4) (Implied
VIRGINIA Contract); Gemco-Ware, Inc. v.
tortfeasors. Va. St. § 8.01-443; Cox v. that another wrongdoer is also liable. Insurer making settlement of
Geary, 624 S.E.2d 16 (Va. 2006). claim against its insured is subrogated to his right of contribution. Rongene Mold, 360 S.E.2d 342 (Va.
Nationwide Mutual Ins. Co. v. Minnifield, 196 S.E.2d 75 (Va. 1973). 1987).
Insurance company that has subrogation and contribution rights
arising out of same accident may assert these rights separately.
Nationwide Mut. v. Jewel Tea Co., 202 Va. 527, 118 S.E.2d 646.
Right of contribution exists between or among two or more
persons who are jointly and severally liable for same loss, whether One (1) year from date of judgment.
judgment has been recovered against all or any of them. It may be If no judgment has been rendered,
enforced in original action or by a separate action. Contribution is the contribution plaintiff must have
available to a person who settles only (a) if liability of the person (a) discharged by payment the
against whom contribution is sought has been extinguished by common liability within the period of
Modified Joint and Several Liability the statute of limitations applicable
settlement and (b) to extent that the amount paid in settlement
Joint and several liability where was reasonable at time of settlement. R.C.W.A. § 4.22.040. to the claimant’s right of action
plaintiff is not at fault, cases of against him or her and commenced
WASHINGTON If the comparative fault of the parties to a claim for contribution the action for contribution within
vicarious liability, and where has been established previously by the court in the original action,
defendants act in concert - otherwise one (1) year after payment, or (b)
a party paying over that party’s equitable share of the obligation, agreed while the action was pending
several liability. R.C.W.A. § 4.22.070. upon motion, may recover judgment for contribution. If it hasn’t to discharge the common liability
been established in the original action, contribution may be and, within one (1) year after the
enforced in a separate action, whether a judgment has been agreement, have paid the liability
rendered against the person seeking contribution or person from and commenced an action for
whom contribution is being sought. R.C.W.A. § 4.22.050; Mazon v. contribution. R.C.W.A. § 4.22.050.
Krafchick, 144 P.3d 1168 (Wash. 2006).
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A joint tortfeasor who pays more than his share of the damages
can seek contribution against the other tortfeasors. State Farm
Mut. Auto. Ins. Co. v. Schara, 201 N.W.2d 758 (Wis. 1972). A
Modified Joint and Several Liability settlement by one tortfeasor does not alter the right to
Joint and several liability for contribution. Id. Each party’s degree of fault is allocated by the
defendants who are 51% or more at jury. Wis. Stat. § 895.045; Pachowitz v. Milwaukee Suburban One (1) year from payment. Wis.
fault and all acted in concert to cause Transport Corp., 202 N.W.2d 268 (Wis. 1972). The issue of Stat. § 893.92. Payment, not
WISCONSIN plaintiff’s damages. Wis. Stat. § contribution may be decided in the original litigation. Johnson v. determination of proportional
895.045; Richards v. Badger Mut. Ins., Heintz, 243 N.W.2d 815 (Wis. 1974). responsibilities, starts the one (1)
749 N.W.2d 581 (Wis. 2008). Several The right to contribution arises when one party has paid more year SOL period running.
liability for cases involving strict (judgment or settlement) than its just proportion of a joint liability.
products liability. The right of contribution cannot arise out of a prior judgment
allocating the comparative negligence between the two parties.
General Accident Ins. Co. v. Schoendorf & Sorgi, 549 N.W.2d 429
(Wis. 1996).
These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have
questions regarding the current applicability of any topics contained in this publication or any publications distributed by Matthiesen, Wickert & Lehrer, S.C., please
contact Gary Wickert at [email protected]. This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should
not be construed as legal advice concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C.
on specific facts disclosed within the attorney\client relationship. These materials should not be used in lieu thereof in anyway.
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