ARTICLE 1. Uniform Contribution Among Tort-Feasors Act.

Sec.

§ 1B-1. Right to contribution.

  1. 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.
  2. The right of contribution exists only in favor of a tort-feasor 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 tort-feasor is compelled to make contribution beyond his own pro rata share of the entire liability.
  3. There is no right of contribution in favor of any tort-feasor who has intentionally caused or contributed to the injury or wrongful death.
  4. A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor 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.
  5. A liability insurer, who by payment has discharged in full or in part the liability of a tort-feasor and has thereby discharged in full its obligation as insurer, succeeds to the tort-feasor's right of contribution to the extent of the amount it has paid in excess of the tort-feasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.
  6. This Article does not impair any right of indemnity under existing law. Where one tort-feasor 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.
  7. This Article shall not apply to breaches of trust or of other fiduciary obligation.
  8. The provisions of this Article shall apply to tort claims against the State. However, in such cases, the same rules governing liability and the limits of liability shall apply to the State and its agencies as in cases heard before the Industrial Commission. The State's share in such cases shall not exceed the pro rata share based upon the maximum amount of liability under the Tort Claims Act.
  9. The provisions of this Article shall apply to the injury or death of an employee of any common carrier by rail which is subject to the provisions of Chapter 2 of Title 45 of the United States Code (45 U.S.C. § 51 et seq.) or G.S. 62-242 where such injury or death is caused by the joint or concurring negligence of such common carrier by rail and any other person or persons. In any such instance, the following will apply:
    1. Where liability is imposed or sought to be imposed only on such common carrier by rail, the railroad is entitled to contribution from any other such person or persons;
    2. Where liability is imposed or sought to be imposed only on a person or persons other than a common carrier by rail, such other person or persons are entitled to contribution from the railroad;
    3. Where liability is imposed or sought to be imposed on both a common carrier by rail and any other person or persons, damages shall be determined as provided in Chapter 2 of Title 45 of the United States Code (45 U.S.C. § 51 et seq.) or G.S. 62-242 whichever controls the claim.

History

(1967, c. 847, s. 1; 1975, c. 587, s. 2; 1979, c. 620.)

Legal Periodicals. - For article on permissive joinder of parties and causes, see 34 N.C.L. Rev. 405 (1956).

For note on effect of covenant not to sue, see 35 N.C.L. Rev. 141 (1956).

For note on cross claim for contribution, see 40 N.C.L. Rev. 633 (1962).

For comment on rights of contribution, see 41 N.C.L. Rev. 882 (1963).

For comment on contribution among joint tort-feasors and rights of insurers, see 44 N.C.L. Rev. 142 (1965).

For case law survey as to contribution, indemnity and settlement, see 44 N.C.L. Rev. 1051 (1966).

For comment on this chapter, see 47 N.C.L. Rev. 274 (1968).

For additional comment on this chapter, see 5 Wake Forest Intra. L. Rev. 160 (1969).

For note discussing North Carolina's retention of its partial parent-child immunity doctrine, in light of Lee v. Mowett Sales Co., 316 N.C. 489, 342 S.E.2d 882 (1986), and arguing for its abrogation, see 65 N.C.L. Rev. 1457 (1987).

For note, "The Release Provision of the Uniform Contribution Among Tort-Feasors Act Applies to Vicarious Liability in the Master-Servant Context - Yates v. New South Pizza, Ltd.," see 15 Campbell L. Rev. 55 (1992).

For article, "The Case for Nonmutual Privity in Vicarious Liability Relationships: Pushing the Frontiers of the Law of Claim Preclusion," see 39 Campbell L. Rev. 1 (2017).

For note, "Write This Down: A Model Market-Share Liability Statute," see 68 Duke L.J. 1469 (2019).

For article, "Tort Answers to the Problem of Corporate Criminal Mens Rea," see 97 N.C.L. Rev. 773 (2019).

CASE NOTES

I. IN GENERAL.

Chapter Inapplicable in Contract Actions. - By its terms, this Chapter applies only in tort actions, not contract actions. Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36 (1989).

It is the intent of draftsmen of uniform acts that as much as possible they be given uniform interpretation among those states where they are in force. Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97 (1975), cert. denied, 289 N.C. 613, 223 S.E.2d 391 (1976).

Article Applies Specifically to Liability for Injury or Wrongful Death. - This Article specifically refers to liability for injury or wrongful death. Simmons v. Wilder, 6 N.C. App. 179, 169 S.E.2d 480 (1969).

And Contemplates Encouragement of Settlements. - This Article contemplates that settlements are to be encouraged. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769 (1970).

This statute provides a new right of action wholly distinct from common-law right of indemnity. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

But it does not affect the common-law right of indemnity arising from primary-secondary liability. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

Irrespective of whether this Chapter codifies the right to indemnification as it does the right to contribution, there exists in North Carolina a common law right to indemnification of a passively negligent tort-feasor from an actively negligent tort-feasor. Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982).

The rights of contribution and indemnity are mutually inconsistent; the former assumes joint fault, the latter only derivative fault. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

Person who takes the position that he is free of negligence is not entitled to contribution. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88 (1973).

The right to contribution is statutory and is applicable only between joint tort-feasors. Roseboro Ford, Inc. v. Bass, 77 N.C. App. 363, 335 S.E.2d 214 (1985).

No Right to Contribution from One Not a Joint Tort-Feasor. - Where the party from whom contribution is sought is not a tort-feasor and not jointly liable, there is no right to contribution. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88 (1973).

There is no right to contribution from one who is not a joint tort-feasor. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514 (1987).

The right to contribution does not exist unless two or more parties are joint tort-feasors. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

Since plaintiff general contractor did not allege negligence claims against defendant subcontractors that were not otherwise covered by contractual obligations, there was no tort-feasor, and thus, no statutory right to contribution under G.S. 1B-1; the trial court properly dismissed the claims against the subcontractors under G.S. 1A-1, Rule 12(b)(6). Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 587 S.E.2d 470 (2003), cert. denied, 358 N.C. 235, 595 S.E.2d 152 (2004).

Nor for Claim on Contract. - Under subsection (a) of this section, a defendant is entitled to contribution where he and one or more other persons are jointly or severally liable in tort. By the clear language of the statute, a defendant is not entitled to contribution for a claim against him in contract. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514 (1987).

Claim for relief, based on a breach of implied warranty, gave rise to no right of contribution on the part of third party plaintiff, because it sounded in contract and not in tort. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514 (1987).

Contribution Not Available for Intentional Infliction of Mental Distress. - The language of subsection (c) of this section clearly excludes the possibility of contribution on any claim by plaintiffs for intentional infliction of mental distress. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514 (1987).

No Right of Contribution for Gross Negligence. - Contribution for gross negligence is not prohibited by G.S. 1B-1(c) because the statute prohibits contribution when the tortfeasor intended the injury, not the act. Total Petrochemicals & Ref. USA, Inc. v. RSI Leasing, Inc., - F. Supp. 2d - (W.D.N.C. Nov. 19, 2020).

Liability of State Restricted. - Although under this Article, the State may be sued for contribution as a joint tort-feasor; the rules governing and limiting the liability of the State and its agencies as provided in the Tort Claims Act apply. Guthrie v. North Carolina State Ports Auth., 307 N.C. 522, 299 S.E.2d 618 (1983).

Effect of Release or Covenant Not to Sue under G.S. 1B-4. - The provisions of this section provide for contribution under certain circumstances, but G.S. 1B-4 takes away this right of contribution when the provisions thereof are complied with. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769 (1970).

Releases and covenants not to sue are treated the same under the Uniform Contribution Among Tort-feasors Act, G.S. 1B-1 et seq., and absent other evidence, a release that releases all other persons or entities is valid; an all encompassing release signed by a pedestrian in exchange for a payment from a motorist's insurance company barred the pedestrian's later underinsured motorist claim against his employer's insurer, and summary judgment in favor of the motorist and the insurer was affirmed. Van Keuren v. Little, 165 N.C. App. 244, 598 S.E.2d 168 (2004), cert. denied, 359 N.C. 197, 608 S.E.2d 328 (2004).

The determination of whether a settlement was reached in good faith is within the discretion of the trial court, which will consider the "totality of the circumstances" and may, but is not obligated to, consider any number of factors, such as "a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, . . . a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial[,] . . . the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants." Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 535 S.E.2d 55 (2000).

Primary and secondary liability between defendants exists only when: (1) They are jointly and severally liable to the plaintiff; and (2) Either (a) one has been passively negligent but is exposed to liability through the active negligence of the other, or (b) one alone has done the act which produced the injury, but the other is derivatively liable for the negligence of the former. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

The doctrine of primary-secondary liability is based upon a contract implied in law. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

And is therefore subject to the three-year statute of limitations under G.S. 1-52(1). Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972).

Who Are Joint Tort-Feasors. - Two or more parties are joint tort-feasors when their negligent or wrongful acts are united in time or circumstance such that the two acts constitute one transaction or when two separate acts concur in point of time and place to cause a single injury. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

If independent wrongful acts of two or more persons unite in producing a single indivisible injury, the parties are joint tort-feasors within the meaning of the law. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358 (1990).

In a bankruptcy case, there were no facts pled and no cause of action that would have established joint liability as joint tortfeasors to pay any sort of indemnity contractual remedy; even if contribution might have been equitable, equity was not enough without an underlying joint and several liability. There was no joint liability on a note, only one party had obligor liability, and other parties were liable on a conditional guaranty, which condition had not alleged been met. Flanders/Precisionaire Corp. v. Bank of N.Y. Mellon Trust Co., N.A. (In re Amerson), - Bankr. - (Bankr. E.D.N.C. May 16, 2014).

Suit Against One or More Joint Tort-Feasors by Personal Representative. - The personal representative of a person killed by the negligence of two joint tort-feasors may, at his election, sue one or both of the tort-feasors. If he sues both and the jury finds them to be joint tort-feasors, the resulting judgment is joint and several and the party paying more than his pro rata share of the judgment is entitled to contribution from the other. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

Joinder of Other Tort-Feasors by Defendant. - Where plaintiff elects to sue only one of several joint tort-feasors, the original defendant may have others joined as additional or third party defendants. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

Separate Action by Defendant Against Other Tort-Feasor. - Where one of two joint tort-feasors is not made a party to the original action, either by the plaintiff or the original defendant, the original defendant may nevertheless, by separate action, seek contribution from the other tort-feasor. In such a case he must establish, not only that a judgment has been entered against him, but that the other party is in fact a joint tort-feasor, that is, that the other party is liable jointly with the original defendant to the plaintiff for damages. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

The burden is on the tort-feasor seeking contribution to show that the right exists, and to allege facts which show liability to the injured party as well as a right to contribution. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

Collateral Estoppel Not Available to Show Joint and Several Liability of One Not Made Defendant in Action. - Where, after wrongful death action in which mother was neither named as a defendant nor named as a third party defendant, and in which insured was found to have caused the death of child in a car accident, insurer sought contribution from mother for half of the money paid to the child's estate, the doctrine of collateral estoppel was not available to the insurer to show mother's joint and several liability to the estate of the child; since mother was not a party to the wrongful death claim and was not made a third party defendant for the purpose of contribution, neither her liability to the estate of child nor her liability to insurer as a joint tort-feasor was established by the judgment in the original action. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

To permit an original defendant against whom a judgment is entered in a claim for the wrongful death of a child to collect one-half of the judgment from the parent, based solely on determination of parent's negligence for the purpose of assessing damages against defendant, would effectively remove any need to make the parent a third party defendant. The practical effect of such a holding would be to prevent the parent's insurer from having an opportunity to defend a claim against the parent. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

Plaintiff's suit for contribution from a joint tortfeasors was not precluded by res judicata or collateral estoppel where an earlier settlement case between the defendants/tortfeasors and decedent's estate dealt only with issues of (1) good faith and (2) best interests of the estate and where the issue of the effect of the order approving the settlement on the respective rights of the joint tortfeasors to contribution was not ripe for determination until the plaintiff, as insurer for one of the joint tortfeasors, paid more than its share of the judgment. Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 529 S.E.2d 697 (2000), aff'd, 353 N.C. 352, 543 S.E.2d 478 (2001).

Third-party plaintiff had an affirmative burden to show that he met the requirements of subsection (d) of this section, and he failed to meet this burden where he did not introduce evidence of a release that he claimed he obtained from the injured party, nor show that third-party defendant's liability to the injured party had been extinguished. King v. Humphrey, 88 N.C. App. 143, 362 S.E.2d 614 (1987).

Trial court erred in not applying G.S. 1B-4 where, in their complaint, plaintiffs treated defendants as joint tort-feasors and sought relief from flood damage caused by mud and silt runoff from all defendants' properties, and evidence at trial revealed only a single indivisible injury, the flooding of plaintiffs' property, and until appeal plaintiffs did not attempt to allocate their injury among defendants. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358 (1990).

For defendant to be entitled to verdict reduction in the amount of a pretrial settlement between plaintiffs and two other defendants, it must not only appear that the three defendants are tort-feasors, but also that the negligence of all three defendants caused an indivisible injury. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358 (1990).

Church was not entitled to contribution from the YMCA where the church paid nothing of its own in settlement; therefore, it did not pay more than its pro rata share and was not entitled to contribution. Jones v. Shoji, 336 N.C. 581, 444 S.E.2d 203 (1994).

Although it appears that the legislature intended the phrase in subsection (f) of this section to mean "where one tort-feasor is entitled to indemnity from another tort-feasor," the language of the statute is simply "where one tort-feasor is entitled to indemnity from another." Since the term "another" as used in the statute is ambiguous, by applying principles of statutory construction to ascertain the legislative will, and the title of the Act makes clear that the statute applies to "tort-feasors"; the context of the legislation indicates that it is concerned only with the apportionment of loss as between tort-feasors, and the Act should not be read to speak to apportionment of loss by contract between a tort-feasor and a third party. Yates v. New S. Pizza, Ltd., 102 N.C. App. 66, 401 S.E.2d 380 (1991), rev'd on other grounds, 330 N.C. 790, 412 S.E.2d 666, reh'g denied, 331 N.C. 292, 417 S.E.2d 73 (1992).

Underinsured insurance carrier cannot assert a claim of contribution because the carrier is not a tortfeasor; however, the carrier can bring a direct action against one of the defendants even though that defendant executed a release in favor of the other defendants. Johnson v. Hudson, 122 N.C. App. 188, 468 S.E.2d 64 (1996).

If a negligent insurance broker was found to be an insurer's agent, the insurer could be liable for the broker's negligence, under the Uniform Contribution Among Tort-feasors Act, even though the broker settled with the insured who sued the insurer and the broker, G.S. 1B-1(a), the insurer was liable to the negligent broker for contribution to the amount for which the broker settled, because the broker's settlement with and release by the insured did not release the insurer, and the insurer's lack of direct negligence was immaterial. Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159 N.C. App. 43, 582 S.E.2d 701 (2003), review dismissed sub nom. Jefferson Pilot Fin. Ins. Co. v. Marsh United States, Inc., 357 N.C. 658, 590 S.E.2d 266 (2003), review denied, 357 N.C. 658, 590 S.E.2d 267 (2003).

A Negligent Insurance Broker, Who Was an Agent of Insurer, Was Not Prohibited From Pursuing Contribution Against Insurer. - Under the Uniform Contribution Among Tort-feasors Act, G.S. 1B-1(d), a negligent insurance broker, who was an agent of an insurer, was not prohibited from pursuing contribution against the insurer because the agent extinguished its tort cross-claims against the insurer. Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159 N.C. App. 43, 582 S.E.2d 701 (2003), review dismissed sub nom. Jefferson Pilot Fin. Ins. Co. v. Marsh United States, Inc., 357 N.C. 658, 590 S.E.2d 266 (2003), review denied, 357 N.C. 658, 590 S.E.2d 267 (2003).

Pre-Judgment Interest. - Although an underlying wrongful death judgment awarded compensatory damages, apportionment of that judgment did not; therefore, prejudgment interest under G.S. 24-5(b) was properly denied since the contribution action under this article was derivative and based upon the codification of equitable principles. Medical Mut. Ins. Co. v. Mauldin, 157 N.C. App. 136, 577 S.E.2d 680 (2003).

Claim Sufficient to Survive Summary Judgment. - City's claim for contribution under the North Carolina Uniform Contribution Among Tortfeasors Act would survive summary judgment where facts could lead a rational jury to conclude that the driver was negligent in leaving her car with the keys inside, and that her negligence proximately caused plaintiff to be injured when her car was struck by driver's vehicle, being driven by another and being pursued by law enforcement officers. D'Alessandro v. Westall, 972 F. Supp. 965 (W.D.N.C. 1997).

No Standing To Recover Contribution. - Trial court did not err in finding that plaintiffs did not have standing to recover contribution from defendants for the amounts plaintiffs paid to patients pursuant to a settlement agreement because plaintiffs were judicially estopped from asserting that the corporate veil had to be pierced between defendants; in the patients' underlying medical negligence case, plaintiffs denied allegations that one of them owned, operated, managed, and controlled the other as a wholly owned subsidiary that it operated as a mere instrumentality, but in their complaint against defendants, plaintiffs alleged that one of them owned, operated, managed, and controlled the other. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513 (2011).

Trial court did not err in finding that plaintiff did not have standing to recover contribution from defendants for the amounts plaintiff paid to patients pursuant to a settlement agreement because plaintiff failed to show that it paid its pro rata share of the settlement payment to the patients. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513 (2011).

Trial court did not err in finding that plaintiff did not have standing to recover contribution from defendants for the amounts plaintiff paid to patients pursuant to a settlement agreement because plaintiff was operating an insurance program in North Carolina without a license pursuant to G.S. 58-28-15. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513 (2011).

Insurer's contribution claim against providers for allegedly serving alcohol to a driver and allowing the driver to drive and injure the insurer's insureds was properly dismissed because (1) the insurer had no right to assert such a claim, under G.S. 1B-1(b), which governed over the more general G.S. 20-279.21, and only allowed joint tort-feasors to assert the claim, and (2) neither the insurer nor the insurer's insureds were joint tort-feasors. Nationwide Prop. & Cas. Ins. Co. v. Smith, 256 N.C. App. 492, 808 S.E.2d 172 (2017).

No Right of Contribution for Willful Conduct, Which Requires Intentional Act. - In his order awarding attorney fees on the misappropriation of trade secrets claim, the district court judge concluded that the claimant's conduct was willful and malicious based on the jury instructions and the jury's subsequent award of punitive damages. Given that willful conduct requires an intentional act, at the least, the claimant had no right of contribution for his purported overpayment per North Carolina law; on this basis alone, his request for an allowed claim in this bankruptcy should be denied. In re Red F Mktg., LLC, 547 B.R. 168 (Bankr. W.D.N.C. 2016).

Applied in Mann v. Virginia Dare Transp. Co., 283 N.C. 734, 198 S.E.2d 558 (1973); United States v. Ward, 618 F. Supp. 884 (E.D.N.C. 1985); Yates v. New S. Pizza, Ltd., 330 N.C. 790, 412 S.E.2d 666 (1992); Potter v. Hilemn Labs., Inc., 150 N.C. App. 326, 564 S.E.2d 259 (2002).

Cited in Waden v. McGhee, 274 N.C. 174, 161 S.E.2d 542 (1968); Robertson v. Bankers & Tel. Employers Ins. Co., 1 N.C. App. 122, 160 S.E.2d 115 (1968); Payseur v. Rudisill, 15 N.C. App. 57, 189 S.E.2d 562 (1972); Iowa Nat'l Mut. Ins. Co. v. Surratt, 19 N.C. App. 745, 200 S.E.2d 220 (1973); Wilson v. Bob Robinson's Auto Serv., Inc., 20 N.C. App. 47, 200 S.E.2d 393 (1973); Security Ins. Group v. Parker, 289 N.C. 391, 222 S.E.2d 437 (1976); Green v. Duke Power Co., 50 N.C. App. 646, 274 S.E.2d 889 (1981); Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982); Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643 (1988); Selective Ins. Co. v. NCNB Nat'l Bank, 324 N.C. 560, 380 S.E.2d 521 (1989); Sorrells v. M.Y.B. Hospitality Ventures, 108 N.C. App. 668, 424 S.E.2d 676 (1993); Broussad v. Meineke Disct. Muffler Shops, Inc., 958 F. Supp. 1087 (W.D.N.C. 1997); Bowman v. Alan Vester Ford Lincoln Mercury, 151 N.C. App. 603, 566 S.E.2d 818 (2002); Green v. Kearney, 203 N.C. App. 260, 690 S.E.2d 755 (2010).

II. DECISIONS UNDER PRIOR LAW.

Editor's Note. - The cases cited below were decided under former G.S. 1-240.

Common Law. - At common law there was no right of contribution as between joint tort-feasors. Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 256 (1967).

Under the rules of the common law the right of one joint tort-feasor to compel contribution from another did not exist. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

Prior to enactment of former G.S. 1-240 one tort-feasor was, as a rule, not entitled to contribution from another. Pearsall v. Duke Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963).

Legislative Intent. - It is safe to assume that the General Assembly was moved to enact former G.S. 1-240 by the reason underlying the entire law of contribution, namely, that where one person has been compelled to pay money which others were equally bound to pay, each of the latter in good conscience should contribute the proportion which he ought to pay of the amount expended to discharge the common burden or obligation. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768 (1953).

Right to Contribution Among Joint Tort-Feasors Is Statutory. - At common law no right of action for contribution existed between or among joint tort-feasors who were in pari delicto; thus such right is statutory, and its use necessarily depends upon the terms of the statute. Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736 (1943); Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792 (1954); Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833 (1958); Greene v. Charlotte Chem. Labs., 254 N.C. 680, 120 S.E.2d 82 (1961).

The enactment of former G.S. 1-240 created as to parties jointly and severally liable a new right and ready means for the enforcement of that right. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773 (1957).

Common-law rule that there is no right of contribution between joint tort-feasors has been modified in this State so as to provide for enforcement of contribution as between joint tort-feasors in the manner and to the extent provided by statute. Herring v. Jackson, 255 N.C. 537, 122 S.E.2d 366 (1961).

In this jurisdiction, the common-law rule has been modified by statute so as to provide for enforcement of contribution as between joint tort-feasors in accordance with its provisions. Shaw v. Baxley, 270 N.C. 740, 155 S.E.2d 256 (1967).

Former G.S. 1-240 seemed to abrogate the well-settled rule, that, subject to some exceptions (see Gregg v. City of Wilmington, 155 N.C. 18, 70 S.E. 1070 (1911), there can be no contribution between joint tort-feasors. Raulf v. Elizabeth City Light & Power Co., 176 N.C. 691, 97 S.E. 236 (1918); Lineberger v. Gastonia, 196 N.C. 445, 146 S.E. 79 (1929); Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792 (1954).

And Must Be Enforced According to Statute. - The right to contribution comes from the statute, and it is to be enforced according to the form of the statute. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269 (1949); Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780 (1955).

Former G.S. 1-240 created a new right and provided an exclusive remedy, and substantial compliance with its terms was necessary to make it available. Hoft v. Mohn, 215 N.C. 397, 2 S.E.2d 23 (1939); Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780 (1955).

Contribution is made the rule and not the exception by statute. Pearsall v. Duke Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963).

Enforcement of Contribution Authorized. - In substance former G.S. 1-240 provided that where two or more persons were liable for their joint tort and judgment had been rendered against some, but not all, those who had paid could enforce contribution against the others who were jointly liable. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

Joint tort-feasors and joint judgment debtors are given the right to contribution. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

And there can be no contribution unless the parties are joint tort-feasors. Pearsall v. Duke Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963).

Liability for contribution under the statute cannot be invoked except among joint tort-feasors. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953); Wise v. Vincent, 265 N.C. 647, 144 S.E.2d 877 (1965).

An original defendant may not invoke the statutory right of contribution against another party in a tort action unless both parties are liable as joint tort-feasors to the plaintiff in the action. Clemmons v. King, 265 N.C. 199, 143 S.E.2d 83 (1965).

A defendant who has been sued for tort may bring into the action for the purpose of enforcing contribution only a joint tort-feasor whom plaintiff could have sued originally in the same action. Petrea v. Ryder Tank Lines, 264 N.C. 230, 141 S.E.2d 278 (1965).

Where insureds are adjudged to be joint tort-feasors and judgments are rendered against them, they are within the specific provisions of the statute. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

The right of contribution is a personal right. Pittman v. Snedeker, 264 N.C. 55, 140 S.E.2d 740 (1965).

And Cannot Be Assigned or Transferred. - The right of contribution is not one that can be assigned or transferred by operation of law under the doctrine of subrogation. Pittman v. Snedeker, 264 N.C. 55, 140 S.E.2d 740 (1965).

Right to Contribution Is Not Dependent on Plaintiff 's Continued Right to Sue. - The right of one joint tort-feasor to enforce contribution against another is said to spring from the plaintiff 's suit. This right of contribution, however, projects itself beyond the plaintiff 's suit, and is not dependent upon the plaintiff 's continued right to sue both or all the joint tort-feasors. Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183 (1943).

As it is the joint tort and common liability to suit which gives rise to the right to enforce contribution. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269 (1949); White v. Keller, 242 N.C. 97, 86 S.E.2d 795 (1955).

And Permission of Original Plaintiff Is Not Required. - When one joint tort-feasor is sued alone, he may join other joint tort-feasors for contribution without permission from the original plaintiff. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773 (1957); McBryde v. Coggins-McIntosh Lumber Co., 246 N.C. 415, 98 S.E.2d 663 (1957).

How Right of Contribution May Be Enforced. - The right of the party sued to have contribution from all responsible for the damage may be enforced in either of two ways. The party sued may wait until a judgment has been obtained against him, whereupon he may maintain an action against the other tort-feasors; or he may, in the action against him, have the other tort-feasors made parties. In either event the party called on to compensate the injured party is a plaintiff in the action against his alleged joint tort-feasors. Pearsall v. Duke Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963).

Only Pro Rata Share Required of Additional Defendants. - The statute does not contemplate that one brought in as an additional defendant shall pay more than a pro rata part of any verdict rendered against the original defendants. Jordan v. Blackwelder, 250 N.C. 189, 108 S.E.2d 429 (1959).

Plaintiff himself may sue any one or all of the tort-feasors. Clemmons v. King, 265 N.C. 199, 143 S.E.2d 83 (1965).

Plaintiff Cannot Be Compelled to Sue Joint Tort-Feasors. - Insofar as plaintiff is concerned, when he has elected to sue only one of several joint tort-feasors, the others are not necessary parties and plaintiff cannot be compelled to pursue them; nor can the original defendant compel plaintiff to join issue with a defendant he has elected not to sue. Moreover, the original defendant cannot rely on the liability to the original plaintiff of the party brought in, but must recover, if at all, upon the liability of such party to him. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126 (1943); Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792 (1954); Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833 (1958); Greene v. Charlotte Chem. Labs., 254 N.C. 680, 120 S.E.2d 82 (1961).

A defendant sued in tort cannot compel plaintiff to sue all those responsible for the damage, but may have contribution from all responsible for the damage. Pearsall v. Duke Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963).

But Defendant May Bring Them In. - When the aggrieved party elects to sue less than all the tort-feasors, the original defendant or defendants may have the others made additional defendants for the purpose of enforcing contribution in the event the plaintiff recovers. Phillips v. Hassett Mining Co., 244 N.C. 17, 92 S.E.2d 429 (1956).

When a person has been injured through the concurring negligence of two or more persons, he may sue one or all of the joint tort-feasors, at his option. Insofar as he is concerned, the others are not necessary parties and he may not be compelled to bring them in. They may, however, be brought in by the original defendant on a cross complaint in which he alleges joint tort-feasorship and his right to contribution in the event plaintiff recovers judgment against him. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792 (1954).

When a defendant in a negligent injury action files answer denying negligence but alleging that if it were negligent a third party was also guilty of negligence which concurred in causing the injury in suit, and demands affirmative relief against such third person, he is entitled to have such third person joined as a codefendant. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434 (1939); Lackey v. Southern Ry., 219 N.C. 195, 13 S.E.2d 234 (1941). See also, Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648 (1941); Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673 (1956); Denny v. Coleman, 245 N.C. 90, 95 S.E.2d 352 (1956); Wise v. Vincent, 265 N.C. 647, 144 S.E.2d 877 (1965).

A party is given the right to bring in joint obligors for contribution. Overton v. Tarkington, 249 N.C. 340, 106 S.E.2d 717 (1959).

Applicability of G.S. 1-166 to Cross Action Against Unknown Joint Tort-Feasor. - The obvious purpose of G.S. 1-166 is to provide plaintiff a means to toll the statute of limitations when he does not yet know the proper designation of the defendant. No comparable necessity exists when a defendant desires to pursue a cross action for contribution against an unknown joint tort-feasor, since the statute does not begin to run on the claim for contribution until judgment has been recovered against the first tort-feasor. Wall Funeral Home v. Stafford, 3 N.C. App. 578, 165 S.E.2d 532 (1969).

Judicial Admission of Negligence Need Not Be Made in Order to Interplead Third Party. - To interplead a third party for contribution the law does not require a defendant in a personal injury suit to make a judicial admission that his negligence was one of the proximate causes of the injury for which plaintiff sues. He may deny negligence and allege, conditionally or alternatively, that if he was negligent, the third party's negligence concurred with his as a proximate cause of plaintiff 's injuries. Clemmons v. King, 265 N.C. 199, 143 S.E.2d 83 (1965).

The party brought in may assert any defense appropriate to the cause of action asserted against him. He may plead estoppel by settlement or a judgment binding the parties. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773 (1957).

Additional Party Under No Obligation to Answer Allegations in Original Complaint. - An additional party defendant has no cause of action stated against him except that asserted in the cross action and set out in the cross complaint. Hence, the additional party defendant is under no obligation to answer any allegations in the original complaint, but only those alleged against him in the cross complaint. Greene v. Charlotte Chem. Labs., 254 N.C. 680, 120 S.E.2d 82 (1961).

Too Late to Bring in Other Joint Tort-Feasors After Entry of Default Judgment. - When joint tort-feasors who have been sued in an action fail to file an answer to a complaint that states a good cause of action, and plaintiffs obtain a judgment by default and inquiry, which is regular in all respects, a motion, lodged thereafter, to bring in other joint tort-feasors so as to determine liability for contribution as between themselves comes too late. Denny v. Coleman, 245 N.C. 90, 95 S.E.2d 352 (1956).

Allegations in Cross Action for Contribution. - In order to maintain a cross action against another for contribution, the original defendant must allege facts sufficient to show that both of them are liable to the plaintiff as joint tort-feasors. Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780 (1955).

In order for one defendant to join another as a third-party defendant for the purpose of contribution, he must allege facts sufficient to show joint tort-feasorship and his right to contribution in the event plaintiff recovers against him. Clemmons v. King, 265 N.C. 199, 143 S.E.2d 83 (1965); Wise v. Vincent, 265 N.C. 647, 144 S.E.2d 877 (1965).

In order for one defendant to join another as an additional defendant for the purpose of contribution, he must show by his allegations facts sufficient to make them both liable to plaintiff as joint tort-feasors, and allegations showing only a cause of action which would entitle the plaintiff to recover of such additional party are not sufficient. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792 (1954); Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673 (1956).

In order to show joint tort-feasorship, it is necessary that the facts alleged in the cross complaint are sufficient to make the third party liable to the plaintiff along with the cross-complaining defendant in the event of a recovery by the plaintiff against him. Clemmons v. King, 265 N.C. 199, 143 S.E.2d 83 (1965); Wise v. Vincent, 265 N.C. 647, 144 S.E.2d 877 (1965).

The allegations of the cross complaint must be so related to the subject matter declared on in the plaintiff 's complaint as to disclose that the plaintiff, had he desired to do so, could have joined the third party as a defendant in the action. Wise v. Vincent, 265 N.C. 647, 144 S.E.2d 877 (1965).

To entitle the original defendant in a tort action to have some third party made an additional party defendant to enforce contribution, it must be made to appear from the facts alleged in the cross action that the defendant and such third person are tort-feasors in respect to the subject of controversy, jointly liable to the plaintiff for the particular wrong alleged in the complaint. The facts must be such that the plaintiff, had he desired so to do, could have joined such third party as defendant in the action. Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413 (1954). See also, Hobbs v. Goodman, 241 N.C. 297, 84 S.E.2d 904 (1954); Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673 (1956); Johnson v. Catlett, 246 N.C. 341, 98 S.E.2d 458 (1957); Jones v. Douglas Aircraft Co., 253 N.C. 482, 117 S.E.2d 496 (1960).

The pleading filed by the original defendant must state facts which are sufficient to show that the original defendant is entitled to contribution from the additional defendant. If the facts alleged do not suffice to establish a right to contribution, the party or parties brought in as additional defendants are unnecessary parties and may on motion have the allegations stricken and the action dismissed as to them. Etheridge v. Carolina Power & Light Co., 249 N.C. 367, 106 S.E.2d 560 (1959).

When an alleged joint tort-feasor was brought into a case as an additional party defendant, and it turned out that no cause of action was stated against him, either in the main action or in a cross action pleaded by another defendant, he was an unnecessary party to the action and, on motion, could have his name stricken from the record as mere surplusage. Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673 (1956).

For allegations sufficient to state a cause of action against joint tort-feasor for contribution, see Read v. Young Roofing Co., 234 N.C. 273, 66 S.E.2d 821 (1951).

Original Defendant Becomes a Plaintiff as to Additional Defendant. - Where plaintiff does not bring his action against all joint tort-feasors, and an original defendant sets up a cross action against a third party and has him brought in as an additional party defendant for contribution, such original defendant makes himself a plaintiff as to the additional party defendant. Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833 (1959); Cox v. E.I. DuPont Chem. Labs., 254 N.C. 680, 120 S.E.2d 82 (1961).

When an injured party elects to sue some but not all of the tort-feasors responsible for his injuries, those sued have a right to bring the other wrongdoers in for contribution. The original defendant then becomes a plaintiff as to the tort-feasors not originally sued. Etheridge v. Carolina Power & Light Co., 249 N.C. 367, 106 S.E.2d 560 (1959).

Additional Defendant May File Counterclaim Against Original Defendant. - Where the original defendant has another joined as additional defendant for contribution on the ground of their concurring negligence in producing plaintiff 's injury, the additional defendant may file a counterclaim against the original defendant for damages to the additional defendant's property allegedly resulting from the negligence of the original defendant, and such counterclaim is improperly stricken upon motion of the original defendant. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773 (1957).

Interjection of Action Which Is Not Germane Not Contemplated. - The cross action for contribution between defendants charged with tort may not be used to interject into the litigation another action not germane to the plaintiff 's action. White v. Keller, 242 N.C. 97, 86 S.E.2d 795 (1955).

Burden Is on Original Defendant to Prove Cross Action. - Where plaintiff does not demand any relief against a codefendant joined by the original defendant as a joint tort-feasor, the burden is on the original defendant to prove his cross action for contribution, and upon motion of the codefendant for nonsuit on the cross action the evidence must be considered in the light most favorable to the original defendant upon that cause. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534 (1948); Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345 (1953).

Where one joint tort-feasor has others joined for contribution, he is, as to the new defendants, a plaintiff and must establish his right of action, and such additional defendants may assert any appropriate defense to the cross action without regard to relevancy to the claim of plaintiff. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773 (1957).

As to procedure for contribution between defendants, see Whiteman v. Seashore Transp. Co., 231 N.C. 701, 58 S.E.2d 752 (1950); Byerly v. Shell, 312 F.2d 141 (4th Cir. 1962).

Original Defendant's Right to Contribution Not Affected by Payment of Judgment by Insurer. - Where insurer of original defendant pays plaintiff 's judgment against its insured and plaintiff 's judgment is marked paid and satisfied, the original defendant's right to contribution from another defendant is not affected and the insurer is entitled to enforce his claim. Pittman v. Snedeker, 264 N.C. 55, 140 S.E.2d 740 (1965).

Assertion of Right Against Another Tort-Feasor Not Barred by Failure to Perfect Appeal. - Where plaintiff has established one tort-feasor's duty to compensate her, that tort-feasor, by its failure to perfect its appeal from the adjudication of its liability to plaintiff and the discharge thereof, is not thereby barred from asserting its right against another tort-feasor. Pearsall v. Duke Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963).

Dismissal of Codefendants. - Where plaintiff elected to sue both joint tort-feasors and alleged active negligence on the part of both which concurred in producing the injury, each was entitled to contribution from the other if there was a judgment of joint and several liability against them, but during the course of the trial each was a defendant as to the plaintiff only, and neither could preclude dismissal of the action against the other if plaintiff failed to make out a prima facie case against the other; moreover, allegations and prayer for contribution contained in the answer of one were properly stricken on motion. Greene v. Charlotte Chem. Labs., 254 N.C. 680, 120 S.E.2d 82 (1961).

Where the plaintiff made out a prima facie case against both defendants, dismissal of other defendants was improper, since this prevented codefendants from pressing their claim for contribution. Byerly v. Shell, 312 F.2d 141 (4th Cir. 1962).

Additional Defendant Held Entitled to Motion for Nonsuit. - For the failure of original defendant to allege and offer any evidence tending to show that joint and concurring negligence on the part of herself and additional defendant proximately caused injury to plaintiff, additional defendant's motion for judgment of nonsuit should have been sustained. Clemmons v. King, 265 N.C. 199, 143 S.E.2d 83 (1965).

Effect of Settlement with Regard to Injured Party Not Involved Therein. - While passengers, by making settlement with one joint tort-feasor, waived any right they might have possessed to seek compensation from the other, the tort-feasor making settlement with them waived no right it possessed to assert its claim to contribution against the other alleged joint tort-feasor in an action by a passenger with whom no settlement has been made. Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805 (1952).

Res Judicata in Subsequent Action Between Joint Tort-Feasors. - Where initial action is instituted by the passenger in one vehicle against the driver of the other vehicle, and the passenger's driver is joined for contribution, adjudication that the passenger's driver was not guilty of negligence constituting a proximate cause of the accident, is res judicata in a subsequent action between the drivers. It is equally true in such a factual situation, where the plaintiff recovers judgment against the original defendant and the jury finds the additional defendant guilty of negligence and that such negligence concurred in jointly and proximately causing plaintiff 's injuries, and gives the original defendant a verdict for contribution, that such judgment is res judicata in a subsequent action between such drivers, based on the same facts litigated in the cross action in the former trial. Hill v. Edwards, 255 N.C. 615, 122 S.E.2d 383 (1961); Sisk v. Perkins, 264 N.C. 43, 140 S.E.2d 753 (1965).

Defendant may not exculpate himself from liability for his negligence by showing that codefendant was also negligent. Byerly v. Shell, 312 F.2d 141 (4th Cir. 1962).

Allegation by plaintiff that defendants jointly and concurrently proximately caused injuries is a conclusion of the pleader and is not admitted by demurrer. Anderson v. Robinson, 275 N.C. 132, 165 S.E.2d 502 (1969).

Joint and Several Judgments in Favor of Plaintiff Held Error. - Where plaintiffs sought no affirmative relief against a codefendant joined by the original defendant for the purpose of enforcing contribution against it as a joint tort-feasor, it was error for the court to enter joint and several judgments in favor of plaintiffs against both defendants upon the jury's finding that both were guilty of actionable negligence, since the liability of the codefendant was solely to the original defendant on its claim for contribution. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534 (1948); Shaw v. Eaves, 262 N.C. 656, 138 S.E.2d 520 (1964).

As to the binding effect of a consent judgment in a foreign action, see Carolina Coach Co. v. Cox, 337 F.2d 101 (4th Cir. 1964).

In an action against a third party tort-feasor by an employee subject to the Worker's Compensation Act, the defendant was not entitled to join the employer or the insurance carrier for contribution or to set up the defense that its liability was secondary and that of the employer was primary. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886 (1953); Johnson v. Catlett, 246 N.C. 341, 98 S.E.2d 458 (1957).

Where a third party tort-feasor is sued for the wrongful death of an employee, he is not entitled to have the employer joined as a joint tort-feasor nor as a necessary party to the determination of the action when the original defendant does not rely upon the doctrine of primary and secondary liability. Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252 (1958); Jones v. Douglas Aircraft Co., 253 N.C. 482, 117 S.E.2d 496 (1960).

Where the personal representative of a deceased employee sued a third party tort-feasor in an action instituted in this State, and defendant had the employer and a fellow employee of the deceased employee joined for contribution, motions of the additional defendants to strike the cross action were properly allowed where it appeared that the deceased was employed in another state, that the injury came within the purview of the compensation act of such state, and that an award had been entered therein adjudicating the liabilities of the additional defendants for the death. Johnson v. Catlett, 246 N.C. 341, 98 S.E.2d 458 (1957).

In an action by property owner to recover damages from mining company due to dumping of silt in river in its mining operations, defendant company could file a cross complaint for contribution against two other mining companies committing the same injurious acts in their operations. Phillips v. Hassett Mining Co., 244 N.C. 17, 92 S.E.2d 429 (1956).

Where plaintiff sued a newspaper for alleged libel, the newspaper, upon allegations that an individual composed the libelous matter and had it published as a paid advertisement, was entitled to have such individual joined as a joint tort-feasor for the purpose of contribution, and such individual's demurrer to the cross action of the newspaper against him was properly overruled. Taylor v. Kinston Free Press Co., 237 N.C. 551, 75 S.E.2d 528 (1953).

Joinder of Injured or Deceased Child's Parents Held Improper. - In an action for wrongful death instituted by the administrator of a deceased unemancipated child against the driver of the car inflicting the fatal injury, defendant was not entitled to have the child's mother joined as a party defendant for the purpose of contribution or indemnity upon allegations that the child's mother was negligent in permitting the child to enter upon the highway unattended, since the mother could not be liable to the plaintiff as a joint tort-feasor, and the statutory right of contribution and the right to indemnity on the ground of primary and secondary liability are both based upon the liability of a joint tort-feasor. Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55, 89 S.E.2d 788 (1955).

In an action on behalf of an unemancipated child to recover for negligent injury, the defendants could not file a cross action against the plaintiff 's parents for contribution, because such cross action would indirectly hold the unemancipated minor's parents liable to him for the injury. Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154 (1967).

Subrogation was not included within the framework of former G.S. 1-240. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

The right permitted to be enforced under former G.S. 1-240 was one of contribution and not one of subrogation. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

And Therefore Former G.S. 1-240 Was Inapplicable to Subrogation by Insurers. - Since the liability of insurance carriers of tort-feasors is contractual and not founded on tort, where no judgment was recovered against such a carrier by any of the parties to an action, former G.S. 1-240 was inapplicable, as by its express terms it applied only to joint tort-feasors and to joint judgment debtors. Gaffney v. Lumbermen's Mut. Cas. Co., 209 N.C. 515, 184 S.E. 46 (1936); Lumbermen's Mut. Cas. Co. v. United States Fid. & Guar. Co., 211 N.C. 13, 188 S.E. 634 (1936); Squires v. Sorahan, 252 N.C. 589, 114 S.E.2d 277 (1960).

Under former G.S. 1-240, the insurance carrier who paid a joint tort-feasor's obligations to the injured party could not force contribution from other tort-feasors, as the statute could not be stretched to include subrogation, which arises by reason of contract, into contribution, which arises by reason of participation in the tort. Squires v. Sorahan, 252 N.C. 589, 114 S.E.2d 277 (1960).

Under former G.S. 1-240, an insurer paying the judgment obtained by the injured party against one tort-feasor had no right of action to enforce contribution against the other tort-feasor, and could not acquire such right of action by the device of a "loan" to the injured party payable only in the event and to the extent of any recovery which the injured party might obtain against the other tort-feasor; and in an action for contribution in the name of the injured party, maintained solely in the interest of the insurer, the injured party was not a real party in interest. Herring v. Jackson, 255 N.C. 537, 122 S.E.2d 366 (1961).

An automobile insurer of one joint tort-feasor, after discharging in full a judgment obtained by an injured party against its insured, could not maintain in its own name an action for contribution under former G.S. 1-240 against a second joint tort-feasor whose negligence proximately caused and contributed to the injury for which the judgment was obtained, where the second tort-feasor was not made a party to the original suit, as the plaintiff 's rights as insurer arose by contract of subrogation under its policy and not as a result of its joint liability as a tort-feasor who had paid the judgment and was entitled to force contribution. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289, 148 S.E.2d 114 (1966).

Primary and secondary liability between defendants exists only when: (1) They are jointly and severally liable to the plaintiff; and (2) Either (a) one has been passively negligent but is exposed to liability through the active negligence of the other, or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former. Anderson v. Robinson, 275 N.C. 132, 165 S.E.2d 502 (1969).

In order for one defendant to establish a right to indemnity from a second defendant, he must allege and prove (1) That the second defendant is liable to plaintiff, and (2) That the first defendant's liability to plaintiff is derivative, that is, based on tortious conduct of the second defendant, or that the first defendant is only passively negligent but is exposed to liability through the active negligence of the second defendant. Anderson v. Robinson, 275 N.C. 132, 165 S.E.2d 502 (1969).

Tort-feasor whose liability is secondary, upon payment by him of the injured party's recovery, is entitled to indemnity against the primary wrongdoer. Ingram v. Nationwide Mut. Ins. Co., 258 N.C. 632, 129 S.E.2d 222 (1963).

Where two persons are jointly liable in respect to a tort, one being liable because he is the actual wrongdoer, and the other by reason of constructive or technical fault imposed by law, the latter, if blameless as between himself and his co-tort-feasor, ordinarily will be allowed to recover full indemnity over against the actual wrongdoer. Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362 (1968).

Where liability has been imposed on the master because of the negligence of his servant, and the master did not participate in the wrong and incurs liability solely under the doctrine of respondeat superior, the master, having discharged the liability, may recover full indemnity from the servant. Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362 (1968).

A defendant secondarily liable, when sued alone, may have the person primarily liable brought in to respond to the original defendant's cross action. Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362 (1968).

The law permits an adjudication in one action of primary and secondary liability between joint tort-feasors who are not in pari delicto. A defendant secondarily liable, when sued alone, may have the tort-feasor primarily liable brought into the action by alleging a cross action for indemnification against him. Edwards v. Hamill, 262 N.C. 528, 138 S.E.2d 151 (1964).

Where two alleged tort-feasors are sued by the injured party, one may set up a cross action against the other for indemnity, under the doctrine of primary-secondary liability, and have the matter adjudicated in that action. Steele v. Moore-Flesher Hauling Co., 260 N.C. 486, 133 S.E.2d 197 (1963); Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362 (1968).

Lessees Held Not Entitled to Join Lessor on Principle of Primary and Secondary Liability. - Where plaintiff sued to recover for injuries sustained when a sign erected by lessees over a sidewalk fell and struck her, lessees were not entitled to join the lessor as a party defendant on the principle of primary and secondary liability, since upon the cause as set out in the complaint, lessees' active negligence created the situation which caused the injury, and therefore lessees were primarily liable. Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413 (1954).


§ 1B-2. Pro rata shares.

In determining the pro rata shares of tort-feasors in the entire liability

  1. Their relative degree of fault shall not be considered;
  2. If equity requires, the collective liability of some as a group shall constitute a single share; and
  3. Principles of equity applicable to contribution generally shall apply.

History

(1967, c. 847, s. 1.)

CASE NOTES

Computing Share of Judgment - In an insured's action against an insurer and a broker, where the insured settled with the broker, who admitted negligence, when it was established that the broker was the insurer's agent, the insurer was liable for half of the amount of the settlement, under the Uniform Contribution Among Tort-feasors G.S. 1B-2, even though it did not participate in the broker's settlement with the insured, because the total damage award was divided by the number of jointly and severally liable tortfeasors, without considering a tortfeasor's relative degree of fault, and the trial court's judgment in determining the liability of the broker and insurer to the insured for the same injury was binding among them in determining their right to contribution, under G.S. 1B-3(f). Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159 N.C. App. 43, 582 S.E.2d 701 (2003), review dismissed sub nom. Jefferson Pilot Fin. Ins. Co. v. Marsh United States, Inc., 357 N.C. 658, 590 S.E.2d 266 (2003), review denied, 357 N.C. 658, 590 S.E.2d 267 (2003).

Cited in Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 529 S.E.2d 697 (2000), aff'd, 353 N.C. 352, 543 S.E.2d 478 (2001).


§ 1B-3. Enforcement.

  1. Whether or not judgment has been entered in an action against two or more tort-feasors for the same injury or wrongful death, contribution may be enforced by separate action.
  2. Where a judgment has been entered in an action against two or more tort-feasors 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.
  3. If there is a judgment for the injury or wrongful death against the tort-feasor 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.
  4. If there is no judgment for the injury or wrongful death against the tort-feasor 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 tort-feasors as third-party defendants for the purpose of contribution.
  5. The recovery of judgment against one tort-feasor for the injury or wrongful death does not of itself discharge the other tort-feasors from liability to the claimant. The satisfaction of the judgment discharges the other tort-feasors from liability to the claimant for the same injury or wrongful death, but does not impair any right of contribution. Provided, however, that a consent judgment in a civil action brought on behalf of a minor, or other person under disability, for the sole purpose of obtaining court approval of a settlement between the injured minor or other person under disability and one of two or more tort-feasors, shall not be deemed to be a judgment as that term is used herein, but shall be treated as a release or covenant not to sue as those terms are used in G.S. 1B-4 unless the judgment shall specifically provide otherwise.
  6. 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.

History

(1967, c. 847, s. 1; 1973, c. 465, s. 1; 1975, c. 866, s. 5.)

CASE NOTES

Subsection (e) codifies the common-law rule applicable to joint tort-feasors. Ipock v. Gilmore, 73 N.C. App. 182, 326 S.E.2d 271, cert. denied, 314 N.C. 116, 332 S.E.2d 481 (1985), aff'd, 85 N.C. App. 70, 354 S.E.2d 315 (1987).

Party Entitled to One Satisfaction. - Although an injured party may pursue and obtain judgments against all joint tort-feasors for a single injury, he may have only one satisfaction. Ipock v. Gilmore, 73 N.C. App. 182, 326 S.E.2d 271, cert. denied, 314 N.C. 116, 332 S.E.2d 481 (1985), aff'd, 85 N.C. App. 70, 354 S.E.2d 315 (1987).

Statute of Limitations. - Subdivision (d)(3) must be read to provide for a three-year statute of limitations for refiling contribution claims. Safety Mut. Cas. Corp. v. Spears, 104 N.C. App. 467, 409 S.E.2d 736 (1991), cert. granted, 331 N.C. 118, 415 S.E.2d 200 (1992), petition withdrawn, 333 N.C. 346, 429 S.E.2d 552 (1993).

The legislature has failed to fix a time in subdivision (d)(3) for refiling contribution claims in the situation where a party brings a claim for contribution that is voluntarily dismissed after settlement of the underlying claim. However, the legislature has provided that a three-year statute of limitations applies upon a liability created by statute, either state or federal, unless some other time is mentioned in the statute creating it. Safety Mut. Cas. Corp. v. Spears, 104 N.C. App. 467, 409 S.E.2d 736 (1991), cert. granted, 331 N.C. 118, 415 S.E.2d 200 (1992), petition withdrawn, 333 N.C. 346, 429 S.E.2d 552 (1993).

Claims Between Insurance Companies. - Claim for contribution by insurance company against another insurance company was sufficiently analogous to claim for subrogation to warrant application of three year statute of limitations of G.S. 1-52(1); this section, which applies to actions among joint tortfeasors, did not apply to claims between insurance companies who both provide coverage to the same tortfeasor. Nationwide Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 122 N.C. App. 449, 470 S.E.2d 556 (1996).

Insurer Liable For Half of The Amount of A Settlement Entered Into by His Agent - In an insured's action against an insurer and a broker, where the insured settled with the broker, who admitted negligence, when it was established that the broker was the insurer's agent, the insurer was liable for half of the amount of the settlement, under the Uniform Contribution Among Tort-feasors Act, G.S. 1B-2, even though it did not participate in the broker's settlement with the insured, because the total damage award was divided by the number of jointly and severally liable tortfeasors, without considering a tortfeasor's relative degree of fault, and the trial court's judgment in determining the liability of the broker and insurer to the insured for the same injury was binding among them in determining their right to contribution, under G.S. 1B-3(f). Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159 N.C. App. 43, 582 S.E.2d 701 (2003), review dismissed sub nom. Jefferson Pilot Fin. Ins. Co. v. Marsh United States, Inc., 357 N.C. 658, 590 S.E.2d 266 (2003), review denied, 357 N.C. 658, 590 S.E.2d 267 (2003).

Collateral Estoppel Not Available to Show Joint and Several Liability of One Not Made Defendant in Action. - Where, after wrongful death action in which mother was neither named as a defendant nor named as a third party defendant, and in which insured was found to have caused the death of child in a car accident, insurer sought contribution from mother for half of the money paid to the child's estate, the doctrine of collateral estoppel was not available to the insurer to show mother's joint and several liability to the estate of the child; since mother was not a party to the wrongful death claim and was not made a third party defendant for the purpose of contribution, neither her liability to the estate of child nor her liability to insurer as a joint tort-feasor was established by the judgment in the original action. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466, 380 S.E.2d 100 (1989).

G.S. 1B-4 Not Applicable Where Requirements of Subsection (e) Not Met. - Where plaintiff did not bring previous wrongful death action for death of his son on behalf of an injured minor or minor plaintiff as required by subsection (e) of this section, and consent judgment entered therein between himself and his wife, the defendant, did not specify that it was anything other than a judgment, G.S. 1B-4 did not apply to the case which he subsequently brought against motorcycle dealer, manufacturer and credit company. Therefore, under subsection (e), the judgment entered therein was fully satisfied by the insurance company of plaintiff's wife, discharging defendants in the subsequent case from liability for the same injury or wrongful death. Severance v. Ford Motor Co., 98 N.C. App. 330, 390 S.E.2d 704 (1990).

This section controls the liability of joint tortfeasors after a judgment establishing their joint and several liability has been entered; consequently, G.S. 1B-4 does not permit one of multiple tortfeasors to avoid liability for contribution to other joint tortfeasors by a settlement, after judgment, for less than his pro rata share of the judgment. Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 529 S.E.2d 697 (2000), aff'd, 353 N.C. 352, 543 S.E.2d 478 (2001).

Where prior judgment is invalid, there can be no effective satisfaction of it within the meaning of subsection (e). Ballard v. Hunter, 12 N.C. App. 613, 184 S.E.2d 423 (1971), cert. denied, 280 N.C. 180, 185 S.E.2d 704 (1972).

Settlement of Minor's Claim Is Not Recovery and Satisfaction. - The settlement of a minor's tort claim which becomes effective and binding upon him only upon judicial examination and adjudication does not constitute a recovery and satisfaction of judgment within the meaning of subsection (e). Payseur v. Rudisill, 15 N.C. App. 57, 189 S.E.2d 562, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972), decided prior to 1973 and 1975 amendments.

Satisfaction of Offer of Judgment Discharged Defendant From Liability. - In an action filed by a patient and wife to recover for a doctor's negligence, a trial court erred in entering judgment against a hospital upon the verdict of a jury and by denying the hospital's motion for a judgment notwithstanding the verdict because the satisfaction of a G.S. 1A-1, N.C. R. Civ. P. 68, judgment discharged the hospital from liability when the patient and wife accepted an offer of judgment, and a judgment was entered in their favor in a prior action against the doctor for the same injury at issue in their action against the hospital; under the language of G.S. 1A-1, N.C. R. Civ. P. 68, and G.S. 1B-3(e), entry and satisfaction of a judgment pursuant to Rule 68(a) discharges all other tort-feasors from liability to the claimant for the same injury pursuant to G.S. 1B-3(e). Akins v. Mission St. Joseph's Health Sys., 193 N.C. App. 214, 667 S.E.2d 255 (2008), review denied, 363 N.C. 122, 672 S.E.2d 682 (2009), review dismissed, as moot, 363 N.C. 122, 672 S.E.2d 681 (2009).

In an action filed by a patient and wife to recover for a doctor's negligence, a trial court erred in entering judgment against a hospital upon the verdict of a jury and by denying the hospital's motion for a judgment notwithstanding the verdict because the satisfaction of a G.S. 1A-1, N.C. R. Civ. P. 68, judgment discharged the hospital from liability when the patient and wife accepted an offer of judgment, and a judgment was entered in their favor in a prior action against the doctor for the same injury at issue in their action against the hospital; upon the jury's verdict that the doctor was acting as an apparent agent of the hospital, the doctor and hospital became joint tort-feasors for purposes of G.S. 1B-3(e), and the claims against hospital were extinguished. Akins v. Mission St. Joseph's Health Sys., 193 N.C. App. 214, 667 S.E.2d 255 (2008), review denied, 363 N.C. 122, 672 S.E.2d 682 (2009), review dismissed, as moot, 363 N.C. 122, 672 S.E.2d 681 (2009).

Trial court properly granted motion to enforce Texas judgment as a North Carolina judgment where the Texas judgment was well within the time limitation for enforcement of foreign judgments and the Texas judgment merely apportioned damages between parties and was not a separate action for contribution. In re Aerial Devices, Inc., 126 N.C. App. 709, 486 S.E.2d 463 (1997).

Applied in Mann v. Virginia Dare Transp. Co., 283 N.C. 734, 198 S.E.2d 558 (1973).

Cited in Wall Funeral Home v. Stafford, 3 N.C. App. 578, 165 S.E.2d 532 (1969).


§ 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 tort-feasors 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 tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.

History

(1967, c. 847, s. 1.)

Legal Periodicals. - For note on avoidance of releases in personal injury cases in North Carolina, see 5 Wake Forest Intra. L. Rev. 359 (1969).

CASE NOTES

Chapter Inapplicable in Contract Actions. - By its terms, this Chapter applies only in tort actions, not contract actions. Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36 (1989).

Construction with G.S. 1B-3(f) - This section does not permit one of multiple tortfeasors to avoid liability for contribution to other joint tortfeasors by a settlement, after judgment, for less than his pro rata share of the judgment; G.S. 1B-3(f) controls the liability of joint tortfeasors after a judgment establishing their joint and several liability has been entered. Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 529 S.E.2d 697 (2000), aff'd, 353 N.C. 352, 543 S.E.2d 478 (2001).

Section Not Applicable Where Requirements of G.S. 1B-3(e) Not Met. - Where plaintiff did not bring previous wrongful death action for death of his son on behalf of an injured minor or minor plaintiff as required by subsection (e) of this section, and consent judgment entered therein between himself and his wife, the defendant, did not specify that it was anything other than a judgment, G.S. 1B-4 did not apply to the case which he subsequently brought against motorcycle dealer, manufacturer and credit company. Therefore, under subsection (e), the judgment entered therein was fully satisfied by the insurance company of plaintiff's wife, discharging defendants in the subsequent case from liability for the same injury or wrongful death. Severance v. Ford Motor Co., 98 N.C. App. 330, 390 S.E.2d 704 (1990).

This section permits a tort-feasor to enter into a good faith settlement and release with an injured party and relieve himself of further liability to remaining joint tort-feasors for contribution. Menard ex rel. Menard v. Johnson, 105 N.C. App. 70, 411 S.E.2d 825 (1992).

This section abolishes the distinction which had existed between a release and a covenant not to sue. Ottinger v. Chronister, 13 N.C. App. 91, 185 S.E.2d 292 (1971).

One Recovery for Each Injury. - North Carolina recognizes the common law principle of "one recovery" for each injury, even where the legislature has authorized damages that are punitive in character. Ferris v. Haymore, 967 F.2d 946 (4th Cir. 1992).

In an action which an investor filed against an accountant who worked for the investor's former wife's corporation, alleging that the accountant led him to believe the corporation was profitable so he would sign personal guarantees in favor of a bank that loaned the corporation money, the appellate court reversed the trial court's judgment in favor of the accountant because there were questions of fact about whether a settlement the investor negotiated in a separate action against his former wife fully compensated the investor for his losses, such that he was no longer entitled to recover damages from the accountant. Kogut v. Rosenfeld, 157 N.C. App. 487, 579 S.E.2d 400, cert. granted, 357 N.C. 461, 585 S.E.2d 762 (2003).

Effect of This Section on Right of Contribution. - The provisions of G.S. 1B-1 provide for contribution under certain circumstances, but this section takes away this right of contribution when the provisions thereof are complied with. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769 (1970).

Burden of showing a lack of good faith is upon the party asserting it. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769 (1970).

Settlement Between Injured Party and Tort-Feasor Insufficient to Show Lack of Good Faith. - The mere showing that there has been a settlement between an injured party and a tort-feasor is insufficient to show that there has been a lack of good faith in the settlement. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769 (1970).

Execution of Release by Minor with Court Approval. - Infant plaintiff, having obtained the court's approval of his release agreement, is entitled to the same status as an adult executing a release under the provisions of this section. Payseur v. Rudisill, 15 N.C. App. 57, 189 S.E.2d 562, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972).

Settlement of Minor's Claim Not Recovery and Satisfaction. - The settlement of a minor's tort claim which becomes effective and binding upon him only upon judicial examination and adjudication does not constitute a recovery and satisfaction of judgment within the meaning of G.S. 1B-3, subsection (e). Payseur v. Rudisill, 15 N.C. App. 57, 189 S.E.2d 562, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972), decided prior to 1973 and 1975 amendments to G.S. 1B-3.

Good Faith Settlement. - Defendant's motion for summary judgment on a contribution claim was premature and unsupported; a hearing would generally be required to determine if an injured party's release was given to defendant in good faith pursuant to G.S. 1B-4(2). Steelcase, Inc. v. M.B. Haynes Corp., - F. Supp. 2d - (W.D.N.C. Aug. 6, 2010).

Judgment Against One Tort-Feasor Reduced by Amount of Settlement with Another. - Where a passenger injured in an automobile accident settled with one tort-feasor for $3,750, the other tort-feasor, who went to trial, was entitled to have judgment of $10,000 rendered against him reduced by $3,750, but he was not entitled to have judgment reduced to $3,750. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769 (1970).

In a wrongful death action based on the medical specialist's malpractice, the trial court did not err in requiring the specialist to pay all pre-judgment interest and costs because the medical specialist failed to make any objection on the record as to the imposition of costs and pre-judgment interest or the apportionment thereof as required by G.S. 1A-1, Rule 10(b)(1, and the trial court properly determined costs and interest before entitling the specialist to set-off for the settlement amount involving the other treating doctor, a former codefendant. Boykin v. Kim, 174 N.C. App. 278, 620 S.E.2d 707 (2005).

Trial court erred in not applying this section where, in their complaint, plaintiffs treated defendants as joint tort-feasors and sought relief from flood damage caused by mud and silt runoff from all defendants' properties, and evidence at trial revealed only single indivisible injury, the flooding of plaintiffs' property, and until appeal plaintiffs did not attempt to allocate their injury among defendants. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358 (1990).

A defendant who settles with a plaintiff and invokes this section to bar a cross claim for contribution from a co-defendant does not lose his rights to pursue his own cross claim or counterclaim against the same co-defendant for damages (personal and property) allegedly inflicted upon him by the co-defendant. Menard ex rel. Menard v. Johnson, 105 N.C. App. 70, 411 S.E.2d 825 (1992).

Reduction of a claim because of a settlement with one defendant is not limited to cases where the defendant is a joint tortfeasor, but applies to all cases where a plaintiff is seeking recovery from several defendants for single, indivisible injury. Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 134, 468 S.E.2d 69 (1996).

Claims for Injury or Damage Not Addressed. - The plain language of this section does not address cross claims or counterclaims for personal injury or property damage; this section only addresses the statutory right to contribution. Menard ex rel. Menard v. Johnson, 105 N.C. App. 70, 411 S.E.2d 825 (1992).

For defendant to be entitled to verdict reduction in the amount of a pretrial settlement between plaintiffs and two other defendants, it must not only appear that the three defendants are tort-feasors, but also that the negligence of all three defendants caused an indivisible injury. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358 (1990).

Trial court did not err in awarding attorney's fees to a passenger pursuant to G.S. 6-21.1 in her action for personal injuries sustained in an automobile collision because she obtained a judgment against defendant for damages and was the prevailing party, notwithstanding the subsequent reduction of her judgment pursuant to G.S. 1B-4 by the amount of her settlement with a third-party defendant. Reinhold v. Lucas, 167 N.C. App. 735, 606 S.E.2d 412 (2005).

Trial court did not err in declining to award costs to defendant pursuant to G.S. 1A-1, N.C. R. Civ. P. 68 in a passenger's action for personal injuries sustained in an automobile collision because the total amount of the judgment obtained by the passenger, including the amount of damages, attorney's fees, and costs, exceeded defendant's offer for judgment, even after the amount of damages was reduced by the passenger's settlement with a third-party defendant pursuant to G.S. 1B-4. Reinhold v. Lucas, 167 N.C. App. 735, 606 S.E.2d 412 (2005).

Appellate Review Limited. - The trial court's determination of whether a settlement was made in good faith pursuant to this section may be reversed only if the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 535 S.E.2d 55 (2000).

Passenger's appeal of the reduction of her judgment against defendant in an action for personal injuries sustained in an automobile collision by the amount of her settlement with a third-party defendant, pursuant to G.S. 1B-4, on the ground that she sustained two distinct injuries rather than a single indivisible injury, was dismissed because the passenger did not separate the injuries in the trial court, thus failing to preserve the issue for appeal pursuant to N.C. R. App. P. 10(b)(1). Reinhold v. Lucas, 167 N.C. App. 735, 606 S.E.2d 412 (2005).

Applied in Simmons v. Wilder, 6 N.C. App. 179, 169 S.E.2d 480 (1969); McArver v. Pound & Moore, Inc., 17 N.C. App. 87, 193 S.E.2d 360 (1972); Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97 (1975); Ryder v. Benfield, 43 N.C. App. 278, 258 S.E.2d 849 (1979); Macklin v. Dowler, 53 N.C. App. 488, 281 S.E.2d 164 (1981); Warren v. Canal Indus., Inc., 61 N.C. App. 211, 300 S.E.2d 557 (1983).

Cited in Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281 (4th Cir. 1979); Sullivan v. Smith, 56 N.C. App. 525, 289 S.E.2d 870 (1982); Akins v. Mission St. Joseph's Health Sys., 193 N.C. App. 214, 667 S.E.2d 255 (2008), review denied, 363 N.C. 122, 672 S.E.2d 682 (2009), review dismissed, as moot, 363 N.C. 122, 672 S.E.2d 681 (2009).


§ 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.

History

(1967, c. 847, s. 1.)

CASE NOTES

Cited in Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 529 S.E.2d 697 (2000), aff'd, 353 N.C. 352, 543 S.E.2d 478 (2001).


§ 1B-6. Short title.

This Article may be cited as the Uniform Contribution among Tort-Feasors Act.

History

(1967, c. 847, s. 1.)

CASE NOTES

Cited in Waden v. McGhee, 274 N.C. 174, 161 S.E.2d 542 (1968); Payseur v. Rudisill, 15 N.C. App. 57, 189 S.E.2d 562 (1972).


ARTICLE 2. Judgment Against Joint Obligors or Joint Tort-Feasors.

Sec.

§ 1B-7. Payment of judgment by one of several.

  1. 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 tort-feasors, 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.
  2. 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.
  3. 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.

History

(1967, c. 847, s. 1.)

Legal Periodicals. - For comment on this Chapter, see 5 Wake Forest Intra. L. Rev. 160 (1969).

CASE NOTES

Equitable Contribution. - Nothing on the face of this section, or in its history, indicates that the General Assembly intended to eliminate the right to seek equitable contribution. Holcomb v. Holcomb, 70 N.C. App. 471, 320 S.E.2d 12 (1984).

At no point did any prior version of the contribution statute, nor does the modern version, expressly or impliedly eliminate the equitable contribution action. Rather, equitable contribution has continued as an independent action, separate from the summary proceedings set out in statute for preserving the judgment. Holcomb v. Holcomb, 70 N.C. App. 471, 320 S.E.2d 12 (1984).

Cited in Broussad v. Meineke Disct. Muffler Shops, Inc., 958 F. Supp. 1087 (W.D.N.C. 1997).

Opinions of Attorney General

Satisfaction of Judgment by Joint Tort-Feasor May Not Satisfy Judgment for Other Tort-Feasor for Driver License Suspension Purposes. - See opinion of Attorney General to Mr. Freeman, Department of Motor Vehicles, 41 N.C.A.G. 99 (1970).

ARTICLE 3. Cross Claims and Joinder of Third Parties for Contribution.

§ 1B-8: Repealed by Session Laws 1969, c. 895, s. 19.

Cross References. - For provisions of Rules of Civil Procedure as to crossclaims, see G.S. 1A-1, Rule 13.

For provisions similar to those of subsection (b) of repealed G.S. 1B-8, see G.S. 1A-1, Rule 14.