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Yates v. New South Pizza1/31/1992
FRYE, Justice.
On 5 September 1985, plaintiff was a passenger in an automobile owned by Franklin Hobert Simmons and operated by Lisa Dawn Simmons. Donald Lee Powell, a delivery person for defendant, New South Pizza, Ltd., d/b/a Domino's Pizza, ran a stop sign and collided with the Simmons car. As a result of the collision, plaintiff suffered injuries to his head and right wrist, and permanent damage to his left hip. On 26 August 1987, plaintiff executed a covenant not to sue Powell or his insurer in exchange for $25,000 consideration, the amount of coverage under Powell's insurance policy. The covenant expressly reserved all rights to proceed against defendant, Powell's employer, and reads in relevant part:
It is understood that [plaintiff] contends there are joint tortfeasors in this matter; to wit, Donald Lee Powell and Domino's Pizza, Inc., said joint tortfeasor relationship arising out of the servant-master relationships and [plaintiff] expressly reserves and maintains his right to pursue any and all claims against Domino's Pizza, Inc. arising out of the incident and that [plaintiff] agrees only not to sue Donald Lee Powell and INA/Action, his vehicular insurance carrier.
The issue before this Court is whether an injured plaintiff is entitled to proceed against an employer on the theory of respondeat superior after having executed, for valuable consideration, a covenant not to sue the negligent employee or his insurer. We hold that such a plaintiff may proceed.
At trial, the employer (defendant) admitted that the employee (Powell) was acting within the scope of his employment when the collision occurred but denied that Powell was negligent in causing the collision. Defendant also moved for summary judgment, arguing that the settlement between plaintiff and Powell operated to release defendant from liability as a matter of law. The trial court granted the motion. The Court of Appeals affirmed the trial court, concluding
that the covenant not to sue released any claim against defendant under the doctrine of respondeat superior. The court further held that when there is a right of indemnity from another tort-feasor, the Uniform Contribution Among Tort-feasors Act, N.C.G.S. ยง 1B-1, et seq. (the Act), does not apply. Plaintiff's petition for discretionary review of the unanimous decision of the Court of Appeals was allowed by this Court on 12 June 1991. Yates v. New South Pizza, Ltd., 329 N.C. 276, 407 S.E.2d 855 (1991). We now reverse.
Plaintiff contends that the Court of Appeals erred in holding that the Act does not apply to the present case. Plaintiff argues that the plain language of the Act includes employer-employee liability, and thus a covenant not to sue the employee does not release the employer pursuant to section 1B-4 of the Act. Defendant contends that the Act is irrelevant to the Disposition of this case because, inter alia, an employer is not a tort-feasor within the meaning of the Act.
We agree with plaintiff that section 1B-4 of the Act controls the Disposition of this case. Section 1B-4 of the Act provides:
When a release or a covenant not to sue or not to enforce judgment is given in good faith to one 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,
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