NORTH CAROLINA GENERAL ASSEMBLY

1967 SESSION

 

 

CHAPTER 847

HOUSE BILL 214

 

 

AN ACT TO PROVIDE FOR CONTRIBUTION AMONG JOINT TORTFEASORS AND JOINT OBLIGORS.

 

The General Assembly of North Carolina do enact:

 

Section 1.  A new chapter is hereby inserted in the General Statutes to read as follows:

"CHAPTER 1B

"CONTRIBUTION

"Article 1

"Uniform Contribution Among Tortfeasors Act

"§ 1B-1.  Right to Contribution. (a) Except as otherwise provided in this Article, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

"(b)      The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.

"(c)       There is no right of contribution in favor of any tortfeasor who has intentionally caused or contributed to the injury or wrongful death.

"(d)      A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death has not been extinguished nor in respect to any amount paid in a settlement which is in excess of what was reasonable.

"(e)       A 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, succeeds to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.

"(f)       This Article does not impair any right of indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.

"(g)       This Article shall not apply to breaches of trust or of other fiduciary obligation."

"§ 1B-2.  Pro Rata Shares. In determining the pro rata shares of tortfeasors in the entire liability (a) their relative degree of fault shall not be considered; (b) if equity requires, the collective liability of some as a group shall constitute a single share; and (c) principles of equity applicable to contribution generally shall apply."

"§ 1B-3.  Enforcement. (a) Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.

"(b)      Where a judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced in that action by judgment in favor of one against other judgment defendants by motion upon notice to all parties to the action.

"(c)       If there is a judgment for the injury or wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution must be commenced within one year after the judgment has become final by lapse of time for appeal or after final judgment is entered in the trial court in conformity with the decisions of the appellate court.

"(d)      If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either (1) discharged by payment the common liability within the statute of limitations period applicable to claimant's right of action against him and has commenced his action for contribution within one year after payment, (2) agreed while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution, or (3) while action is pending against him, joined the other tortfeasors as third-party defendants for the purpose of contribution.

"(e)       The recovery of judgment against one tortfeasor for the injury or wrongful death does not of itself discharge the other tortfeasors from liability to the claimant. The satisfaction of the judgment discharges the other tortfeasors from liability to the claimant for the same injury or wrongful death, but does not impair any right of contribution.

"(f)       The judgment of the court in determining the liability of the several defendants to the claimant for the same injury or wrongful death shall be binding as among such defendants in determining their right to contribution."

"§ 1B-4.  Release or Covenant Not to Sue. When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

(1)        It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and,

(2)        It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor."

"§ 1B-5.  Uniformity of Interpretation. This Article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it."

"§ 1B-6.  Short Title. This Article may be cited as the Uniform Contribution Among Tortfeasors Act."

"Article 2

"Judgment Against Joint Obligors or Joint Tortfeasors

"§ 1B-7.  Payment of Judgment by One of Several. (a) In all cases in the courts of this State wherein judgment has been, or may hereafter be, rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tortfeasors, and the same has not been paid by all the judgment debtors by each paying his pro rata share thereof, if one or more of the judgment debtors shall pay the judgment creditor, either before or after execution has been issued, the full amount due on said judgment, and shall have entered on the judgment docket in the manner hereinafter set out a notation of the preservation of the right of contribution, such notation shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his pro rata share thereof to the extent of his liability thereunder in law and equity. Such judgment may be enforced by execution or otherwise in behalf of the judgment debtor or debtors who have so preserved the judgment.

"(b)      The entry on the judgment docket shall be made in the same manner as other cancellations of judgment, and shall recite that the same has been satisfied, released and discharged, together with all costs and interest, as to the paying judgment debtor, naming him, but that the lien of the judgment is preserved as to the other judgment debtors for the purpose of contribution. No entry of cancellation as to such other judgment debtors shall be made upon the judgment docket or judgment index by virtue of such payment.

"(c)       If the judgment debtors disagree as to their pro rata shares of the liability, on the grounds that any judgment debtor is insolvent or is a nonresident of the State and cannot be forced under the execution of the court to contribute to the payment of the judgment, or upon other grounds in law and equity, their shares may be determined upon motion in the cause and notice to all parties to the action. Issues of fact arising therein shall be tried by jury as in other civil actions."

"Article 3

"Cross Claims and Joinder of Third Parties for Contribution

"§ 1B-8.  Cross Claims and Joinder of Third Parties. (a) A joint tortfeasor who is a party to an action may file a cross claim for contribution or indemnity from any other joint tortfeasor who is a party.

"(b)      At any time before judgment is obtained a defendant tortfeasor, as a third-party plaintiff, may upon motion cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim and his counterclaims against the third-party plaintiff and cross claims against other third-party defendants. A third-party defendant may proceed under this subsection against any person not a party to the action who is or may be liable to him as a joint tortfeasor for all or a part of the claim made in the action against the third-party defendant."

Sec. 2.  G. S. 1-240 and all laws and clauses of laws in conflict with this Act are hereby repealed.

Sec. 3.  If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Sec. 3 1/2.  The provisions of this Act shall not apply to litigation pending on the effective date of this Act.

Sec. 4.  This Act shall be in full force and effect from and after January 1, 1968.

In the General Assembly read three times and ratified, this the 21st day of June, 1967.