Academic journal article Defense Counsel Journal

Defending against Contribution Actions: Using the UCATA Bar to Advantage: Although Jurisdictions Vary, Contribution Can Be Escaped If Parties Seeking It Acted "Intentionally," "Willfully" or "Wantonly." but Who Was the Actor?

Academic journal article Defense Counsel Journal

Defending against Contribution Actions: Using the UCATA Bar to Advantage: Although Jurisdictions Vary, Contribution Can Be Escaped If Parties Seeking It Acted "Intentionally," "Willfully" or "Wantonly." but Who Was the Actor?

Article excerpt

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

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

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

A LOOK AT UCATA

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

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

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

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

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

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

"INTENTIONAL TORTFEASORS"

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

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

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