Tort Law

Contribution

This page within Virginia Tort Law is an explanation of the concept of contribution and a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of contribution and the related topic of personal injury.  For more information on contribution issues see the page on Wikipedia.

Contribution is a common law concept that springs from equitable principles.  Where one wrongdoer has been sued and has been made to pay a certain amount of money to the party injured, then that wrongdoer may sue other persons who are also conceivably liable to the injured party in order to recover some of the money paid.

A classic example of that would be where two (2) motorists cause a collision at an intersection that results in injury to a pedestrian.  The pedestrian is the injured party.  The pedestrian however may choose to sue only one motorist.  That motorist who is sued may then assert a contribution claim against the other motorist who is also theoretically liable for the injury.

In a 2007 case the Virginia Supreme Court dealt with a circumstance where a physician settled a medical malpractice claim and then sought contribution from the pharmacist who also contributed to the patient’s injury.  The pharmacist was arguably negligent in dispensing certain medications.  Where separate and independent acts of two parties directly cause a single injury, then either of those wrongdoers is responsible for the entire injury.  In this particular case, the jury was allowed to apportion damages based upon relative degrees of negligence.  That generally is not allowed under Virginia law as negligence is not parsed out in that way but rather is either joint and several or simply is nonexistent.

In this reported case, the pharmacist then was liable for the entire injury to the patient.  In this case however the patient is not the one who was suing the pharmacist; rather it was the settling physician who then could recover his payment made to the patient.

In some instances contribution claims can run into difficulty where the plaintiff has settled with one potential defendant and thereby dismissed all potential claims.  In dismissing all potential claims the plaintiff is thereby giving up any claim that it might have against some other non-settling party and thereby destroys any right of contribution that the settling defendant may have against any other parties that do not settle.

The concept of contribution is normally based upon negligence.  That is both the settling defendant and the non-settling defendant must be guilty of some degree of negligence in tort.  If the party that is being sued for contribution is simply liable to the plaintiff for some contractual obligation, then typically that cannot be the basis for a contribution claim.  Any payments made by that party who is contractually liable may serve as a credit.

For more information on the concept of contribution see Brien Roche’s book Law 101

Contribution-Statutes

See Va. Code § 8.01-34 indicating that contribution among wrongdoers may be enforced when wrong results from negligence and involves no moral turpitude.

See Va. Code § 8.01-35.1.

See Va. Code § 8.01-249 stating that cause of action for contribution or indemnification accrues upon payment or discharge of obligation. Third-party claim may be asserted before such cause of action is deemed to accrue hereunder.

Contribution-Cases

2010—City of Alexandria v. J-W Enterprises, Inc., 279 Va. 711, 691 S.E.2d 769.

Police officer, while working for a restaurant, follows patrons out of restaurant when they did not pay. Patrons then enter car and drive car towards officer who believes that they have then committed a misdemeanor and fires at the vehicle. City, in attempting to seek contribution from restaurant for actions of police officer acting as a restaurant employee is barred from contribution because the officer in shooting was performing a police function and therefore doing so on behalf of the city.

2007 Sullivan v. Robertson Drug Co., 273 Va. 84, 639 S.E.2d 250.

Physician settled medical malpractice claim and then sought contribution from pharmacist and pharmacist’s employer. The trial court erred in giving jury instructions suggesting that the pharmacist could not be found liable for the entire injury caused by the medications he had dispensed. This permitted the jury to apportion damages based on relative degrees of negligence. If separate and independent acts of negligence of two parties directly cause a single injury, then either or both wrongdoers are responsible for the whole injury. In this case, the cumulative effect of the doses of prescription medication given to the patient caused an indivisible injury. As such, if the pharmacist’s action breached the standard of care, he was liable for the whole injury to the patient.

2003 Pulte Home Corp. v. Parex, Inc., 265 Va. 518, 579 S.E.2d 188.

Homeowner sues Pulte and Parex for defective stucco. Parex is manufacturer of product. Pulte cross-claims seeking contribution. Contribution is not allowable in this instance because all of the claims asserted by homeowner against Parex had been dismissed and therefore, Parex cannot be deemed to be a joint tortfeasor.

1995 Allstate Ins. v. United Servs. Auto. Ass’n, 249 Va. 9, 452 S.E.2d 859.

Wrongful death action where both carriers had overlapping excess coverage. USAA had primary coverage plus excess. USAA settled by paying their primary limits plus a portion of excess and then demanded fifty percent contribution from Allstate as to excess. Allstate defended by saying its obligation to pay was triggered by its agreement or final judgment. Neither was obtained in this instance and as such there was no obligation on their part to contribute. Although insurer may have good faith obligation to settle action within the policy limits, that obligation does not appear to extend to other carrier.

1989 Sacks v. Tavss, 237 Va. 13, 375 S.E.2d 719.

In order to be entitled to contribution, one party must pay more than his proportionate share of total amount owed creditor or pay less than his proportionate amount and obtain release for co-obligor. In this instance, Tavss paid less than his proportionate share but did not obtain release for co-obligor. Therefore not entitled to contribution.

1987 Gemco-Ware, Inc. v. Rongene Mold & Plastics, 234 Va. 54, 360 S.E.2d 342.

Three-year statute of limitations for contribution. Statute begins to run upon payment or discharge of obligation.

1985 Pierce v. Martin, 230 Va. 94, 334 S.E.2d 576.

Contribution plaintiff cannot recover from contribution defendant unless injured party could have recovered against contribution defendant.

1984 Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750.

Plaintiff injured in automobile accident in 1977. Suit filed in 1979. On July 1, 1979, Va. Code § 8.01-35.1 became effective. In May 1981, plaintiffs settled their claim with one defendant, executing document entitled release or covenant not to sue, reserving their rights against other defendant. Trial court properly sustained pleas of release filed by that co-defendant and dismissed actions against him with prejudice. Substantive and vested rights are protected from retroactive application of statutes. Substantive rights are included within that part of law dealing with creation of duties, rights and obligations as opposed to procedural law. Although all vested rights are substantive, not all subject matter considered to be substantive relates to vested rights. Right to contribution arises when one tortfeasor has paid or settled claim. Cause of action for contribution arises at time of negligent acts. Cause of action for contribution is substantive right which in this case arose at time of accident in 1977. Virginia Code § 8.01-35.1, enacted in 1979, by which release of one joint tortfeasor does not release other, adversely affected substantive right of contribution which arose in 1977 and as such cannot be applied retroactively.

1981 VEPCO v. Wilson, 221 Va. 979, 277 S.E.2d 149.

Before contribution will be allowed, right of action must exist on behalf of plaintiff as to joint tortfeasor from whom contribution is sought. Plaintiff filed suit against VEPCO and Wilson. Wilson dismissed on worker’s compensation immunity, therefore, VEPCO has no basis for contribution claim.

1980 Richards v. Musselman, 221 Va. 181, 267 S.E.2d 164.

Contribution action not barred by unclean hands defense in this case.

1978 United Servs. v. Nationwide Mut. Ins. Co., 218 Va. 861, 241 S.E.2d 784.

Right of contribution lies between joint tortfeasors although no judgment obtained determining issues of primary and contributory negligence. Likewise, right of contribution between co-sureties arises, at time of payment by one from implied promise of other to pay.

1977 Allied Prod., Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774.

Right of contribution arises only when one tortfeasor has paid or settled claim for which other wrongdoers are also liable.

1976 Midwest Mut. v. Aetna Cas., 216 Va. 926, 223 S.E.2d 901.

Contribution permitted as result of settlement before judgment. Claimant covered by two UM carriers. Claimant settled with Midwest without suit being filed. Midwest sued Aetna for contribution. No right of contribution arose because no judgment, obtained after valid service on Aetna, had fixed legal entitlement of claimant.

1973 Nationwide Mut. Ins. v. Minnifield, 213 Va. 797, 196 S.E.2d 75.

Right of contribution arises when one tortfeasor has paid claims for which other wrongdoer is also liable. Insurer making settlement of claim against its insured is subrogated to his right of contribution.

1971 Harris v. Purity Baking Co., 212 Va. 10, 181 S.E.2d 486.

Suit for contribution. Jury verdict for party seeking contribution was upheld.

1967 Bartlett v. Roberts Recapping, Inc., 207 Va. 789, 153 S.E.2d 193.

Before contribution may be had, there must be cause of action by injured person against alleged joint tortfeasor from whom contribution is sought. This right arises only when one tortfeasor has paid or settled claim for which other wrongdoers are also liable.

1964 Hudgins v. Jones, 205 Va. 495, 138 S.E.2d 16.

Contribution action properly transferred to law side.

1961 Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527, 118 S.E.2d 646.

In contribution action, statute of limitations begins to run upon payment or discharge of obligation. Statute that applies is same as for implied contracts. Right to contribution may be enforced when wrong is mere act of negligence and involves no moral turpitude. Right of action for contribution will lie though no previous judgment.

1956 Van Winckel v. Carter, 198 Va. 550, 95 S.E.2d 148.

Right to contribution is based on broad principle of equity that where two or more persons are subject to common burden, it should be borne equally. Right to contribution becomes enforceable upon payment or discharge of common obligation and statute begins to run on that date.

1955 Wiley N. Jackson Co. v. City of Norfolk, 197 Va. 62, 87 S.E.2d 781.

Action is based on broad principle of equity which implies contract between parties. Payment must be made before cause of action arises.

1950 McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S.E.2d 121.

Cause of action as to party seeking contribution does not arise until payment has been made to original plaintiff. Statute that applies is for implied promise to pay.

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Contribution

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