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Graber v. Westaway3/28/1991
Defendant and third-party plaintiff, Jase P. Graber, appeals the judgment denying his efforts to pursue a third-party complaint against Keith Westaway, third-party defendant. The issue before us is whether a defendant who has settled a personal injury claim is prohibited by § 13-21-111.5, C.R.S. (1990 Cum. Supp.), the proportionate fault statute, from litigating the apportionment of liability and collecting contribution from a non-designated tortfeasor by impleader. Contrary to the trial court, we conclude that the statute does not bar a defendant's right to seek contribution from another tortfeasor, and therefore, we reverse the judgment of the trial court.
In 1988, plaintiff was injured when struck by a pellet from an air rifle fired by Graber and owned by Westaway. Plaintiff filed a personal injury suit in which Graber was named as the sole defendant. The negligence claim was promptly settled and that settlement was approved by the trial court. Plaintiff released Graber and all other persons or entities that might be liable to him. Further, the settlement agreement provided that the underlying action would not be dismissed so as to allow Graber to pursue additional parties for contribution.
Although Graber did not timely designate Westaway as a non-party at fault pursuant to § 13-21-111.5(3)(b), C.R.S. (1990 Cum. Supp.), the trial court permitted him to file a third-party complaint for contribution against Westaway in which a determination of relative fault was requested. However, the trial court subsequently dismissed the pleading concluding that the proportionate fault statute eliminates joint and several liability, thereby prohibiting a tortfeasor from establishing a necessary element of a contribution claim.
Graber then sought the trial court's permission to file an amended third-party complaint to litigate the several liability of the parties pursuant to § 13-21-111.5 and, further, to recover pro rata contribution from all other parties determined to be at fault. The trial court determined that, in light of the abolition of joint liability, Graber's amended third-party complaint would also fail to state a claim. Consequently, Graber's motion to amend was denied.
I.
Graber contends that the trial court erred when it held that the proportionate fault statute precludes a defendant as a matter of law from claiming contribution from any other person who may be severally liable for the same injury . We agree.
When interpreting legislation, we must attempt to harmonize and give effect to all potentially conflicting statutory language. People v. T.O., 696 P.2d 811 (Colo. 1985); Human Services, Inc. v. Woodard, 765 P.2d 1052 (Colo. App. 1988).
Here, because the proportionate fault and contribution statutes can be reconciled to give effect to each, we hold that the abolition of joint and several liability does not extinguish a defendant's right to contribution from other tortfeasors. See Moran v. Carlstrom, 775 P.2d 1176 (Colo. 1989).
The proportionate fault statute abolished the harsh common law doctrine of joint and several liability which could require a defendant to bear a disproportionate share of liability for plaintiff's injuries, regardless of his degree of relative fault. See Williams v. White Mountain Construction Co., Inc., 749 P.2d 423 (Colo. 1988). Section 13-21-111.5 provides that, in tort litigation, the jury shall apportion fault severally among all plaintiffs, defendants, and designated non-parties, and that a defendant is liable
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