2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 50.5 - Uniform Contribution Among Tortfeasors
§ 13-50.5-102. Right to Contribution - Contract or Agreement Provision to Indemnify or Hold Harmless Void Against Public Policy

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 tortfeasor 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 tortfeasor 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 tortfeasor who has intentionally, willfully, or wantonly caused or contributed to the injury or wrongful death.
4. A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement 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 tortfeasor and has thereby discharged in full its obligation as insurer, is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor'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 tortfeasor 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. 1. Any public contract or agreement for architectural, engineering, or surveying services; design; construction; alteration; repair; or maintenance of any building, structure, highway, bridge, viaduct, water, sewer, or gas distribution system, or other works dealing with construction, or any moving, demolition, or excavation connected with such construction that contains a covenant, promise, agreement, or combination thereof to defend, indemnify, or hold harmless any public entity is enforceable only to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the indemnity obligor or the indemnity obligor's agents, representatives, subcontractors, or suppliers. Any such covenant, promise, agreement, or combination thereof requiring an indemnity obligor to defend, indemnify, or hold harmless any public entity from that public entity's own negligence is void as against public policy and wholly unenforceable.
   2. This subsection (8) shall not apply to construction bonds, contracts of insurance, or insurance policies that provide for the defense, indemnification, or holding harmless of public entities or contract clauses regarding insurance. This subsection (8) is intended only to affect the contractual relationship between the parties relating to the defense, indemnification, or holding harmless of public entities, and nothing in this subsection (8) shall affect any other rights or remedies of public entities or contracting parties.
   3. If the indemnity obligor is a person or entity providing architectural, engineering, surveying, or other design services, then the extent of an indemnity obligor's obligation to defend, indemnify, or hold harmless an indemnity obligee may be determined only after the indemnity obligor's liability or fault has been determined by adjudication, alternative dispute resolution, or otherwise resolved by mutual agreement between the indemnity obligor and obligee.

History. Source: L. 77: Entire article added, p. 808, § 1, effective July 1. L. 87: (6) amended, p. 1577, § 18, effective July 10. L. 88: (8) added, p. 404, § 2, effective May 17. L. 89: (8) amended, p. 760, § 1, effective March 15. L. 2015: (8) amended,(HB 15-1197), ch. 93, p. 265, § 1, effective September 1.

Law reviews. For article, “Immunity to Direct Action: Is it a Defense to a Contribution Claim?”, see 52 U. Colo. L. Rev. 151 (1980). For article, “The Harm in Hold Harmless Clauses”, see 19 Colo. Law. 1081 (1990). For article, “Application of the Pro Rata Liability, Comparative Negligence and Contribution Statutes”, see 23 Colo. Law. 1717 (1994). For article, “S.B. 07-087 and the Enforceability of Indemnification Provisions in Colorado Construction Contracts”, see 36 Colo. Law. 59 (Sept. 2007). For article, “Application of the Pro Rata Liability Statute to ‘Tort Claims in a Contractual Wrapper'”, see 45 Colo. Law. 37 (June 2016).

Doctrine of indemnity abolished. The doctrine of indemnity, insofar as it requires one of two joint tortfeasors to reimburse the other for the entire amount paid by the other as damages to a party injured as the result of the negligence of both joint tortfeasors, is no longer viable, and is hereby abolished. Brochner v. W. Ins. Co., 724 P.2d 1293 (Colo. 1986).

A tortfeasor no longer may unfairly be forced to pay all or a disproportionate share of damages suffered by an injured party as the result of negligent conduct by two or more joint tortfeasors. Brochner v. W. Ins. Co., 724 P.2d 1293 (Colo. 1986).

Joint tortfeasors are now subject to contribution among themselves based upon their relative degrees of fault. That principal is at odds with the essential characteristic of our present rule of indemnity that, without regard to apportionment of fault, a single tortfeasor may ultimately pay the expenses of all injuries sustained by a third party as a result of negligent conduct by two or more tortfeasors. There can be no mistake concerning the intent of the general assembly to establish the policy of responsibility related to proportionate fault in the context of personal injury litigation. Brochner v. W. Ins. Co., 724 P.2d 1293 (Colo. 1986).

Right of contribution is statutory. The right of contribution in Colorado is in all respects a creature of statutory origin. Greer v. Intercole Automation, Inc., 553 F. Supp. 275 (D. Colo. 1982 ).

Contribution is right of recovery by one joint tortfeasor from a co-tortfeasor and has nothing to do with the rights of the injured party to recover from the tortfeasors. Greenemeier By Redington v. Spencer, 694 P.2d 850 (Colo. App. 1984), aff'd, 719 P.2d 710 (Colo. 1986).

Joint or several liability required for contribution. To recover contribution against a person, that person must be found as a party jointly or severally liable with the ones seeking contribution. Nat'l Farmers Union Prop. & Cas. Co. v. Frackelton, 645 P.2d 1321 (Colo. App. 1981); Nat'l Farmers Union Prop. & Cas. Co. v. Frackelton, 650 P.2d 571 (Colo. App. 1981), aff'd, 662 P.2d 1056 (Colo. 1983); Tex-Ark Joist Co. v. Derr & Gruenewald Const., 719 P.2d 384 (Colo. App. 1986), aff'd, 749 P.2d 431 (Colo. 1988).

The right of contribution “vests” only upon the existence of a common liability. Greer v. Intercole Automation, Inc., 553 F. Supp. 275 (D. Colo. 1982 ).

The uniform act is clear and unequivocal in its requirement that joint or common liability in tort exist as a precondition to the right of contribution. Greer v. Intercole Automation, Inc., 553 F. Supp. 275 (D. Colo. 1982 ).

The term “common liability” must be interpreted in light of the final sentence of subsection (2) that “No tort feasor is compelled to make contribution beyond his own pro rata share of the entire liability.” Kussman v. City & County of Denver, 706 P.2d 776 (Colo. 1985).

Common liability exists only when tortfeasors are “jointly or severally liable” in tort for the same injury. Kussman v. City & County of Denver, 706 P.2d 776 (Colo. 1985).

Joint and several liability means each tortfeasor may be held liable for the entire damages arising from a single injury. Kussman v. City & County of Denver, 706 P.2d 776 (Colo. 1985).

Employee and employer not joint tortfeasors within the meaning of the Uniform Contribution Among Tortfeasors Act where the initial complaint alleged that employee was negligent but that employer was liable based only on a theory of respondeat superior, not negligence. Since employee and employer were not joint tortfeasors with the meaning of the act, the act does not bar employee's indemnity action against employer. Serna v. Kingston Enters., 72 P.3d 376 (Colo. App. 2002).

Individual tortfeasor not entitled to right of contribution. Where judgment is rendered against a tortfeasor for no more than its proportionate share of liability, it is not eligible for deduction of a settling tortfeasor's settlement amount from the judgment. Kussman v. City & County of Denver, 706 P.2d 776 (Colo. 1985).

One immune from liability for injury cannot be liable for contribution. An employer who is immune from common-law liability for an injury cannot become “jointly or severally liable in tort” so as to trigger a right of contribution under this section. Greer v. Intercole Automation, Inc., 553 F. Supp. 275 (D. Colo. 1982 ).

Contribution provision does not apply where jury finds one of the tortfeasors not negligent. Wesley v. United Servs. Auto Ass'n, 694 P.2d 855 (Colo. App. 1984).

Contribution from nonparty permitted. An insurer of a tortfeasor found liable in a prior action can recover contribution from a nonparty to that prior action. Nat'l Farmers Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056 (Colo. 1983).

The language “liable in tort” in subsection (1) refers to a person's exposure to a civil action and not to the existence of final judgment in tort. This section only requires that a person become “liable in tort” before the right of contribution arises. The right to collect contribution, of course, depends on a binding and final determination of fault among joint tortfeasors, obtained either in the initial lawsuit by asserting a claim of contribution or in a separate action. Nat'l Farmers Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056 (Colo. 1983); Cachne Nat'l Bank v. Hinman, 626 F. Supp. 1341 (D. Colo. 1986 ); Patten v. Knutzen, 646 F. Supp. 427 (D. Colo. 1986 ).

Since the Workmen's Compensation Act is intended to be the exclusive forum for determining employer liability for job-related injuries, a third-party claim for contribution under this section is denied. Williams v. White Mtn. Const. Co., 749 P.2d 423 (Colo. 1988); Tex-Ark Joist Co. v. Derr & Gruenewald, Const., 749 P.2d 431 (Colo. 1988).

Subsection (2) does not bar recovery by corporation for claims it owes third-parties even though those claims have not yet been, and may never be, paid. In re Stat-Tech Sec. Litigation, 905 F. Supp. 1416 (D. Colo. 1995 ).

Nonparty not bound by determination of relative fault. A nonparty to a suit cannot be conclusively bound by the jury's determination of relative fault in a subsequent declaratory judgment action for contribution. Nat'l Farmers Union Prop. & Cas. Co. v. Frackelton, 662 P.2d 1056 (Colo. 1983).

An employer who complies with the workmen's compensation act cannot be subject to a third-party action for contribution. Borroel v. Lakeshore, Inc., 618 F. Supp. 354 (D. Colo. 1985 ).

Accrual of joint tortfeasor's action. No cause of action accrues to a joint tortfeasor until there has been a judgment against him or a settlement of the claim, since a claim for contribution is an action separate and distinct from the underlying tort, and the rights and obligations of the tortfeasors flow, not from the tort, but from the judgment or settlement. Coniaris v. Vail Assocs., 196 Colo. 392 , 586 P.2d 224 (1978); Kelly v. Mid-Century Ins. Co., 695 P.2d 752 (Colo. App. 1984).

Effective date of section. This section applies to a satisfaction of a judgment or a settlement made or entered into on and after July 1, 1977, when the settled case arose as a result of an injury-causing act or omission which occurred before June 30, 1977 (the effective date of the act). Coniaris v. Vail Assocs., 196 Colo. 392 , 586 P.2d 224 (1978).

Section 13-21-111.5 is not exclusive remedy for contribution. Nothing in the language of § 13-21-111.5 indicates it is intended to be the exclusive mechanism for litigating the relative fault of all joint tortfeasors. A claim for contribution may be made under this section when a party has not been formally designated in the action under § 13-21-111.5. Watters v. Pelican Intern., Inc., 706 F. Supp. 1452 (D. Colo. 1989 ).

The abolition of joint and several liability by § 13-21-111.5 does not extinguish a defendant's right to contribution from joint tortfeasors. The language of subsection (1) does not evince an intention by the general assembly to require a defendant to establish both joint liability and several liability as a prerequisite to the defendant's right of contribution. A defendant is permitted to establish the several liability of one or more parties as a cause of the same injury to the plaintiff. Graber v. Westaway, 809 P.2d 1126 (Colo. App. 1991).

Applied in Pub. Serv. Co. v. District Court, 638 P.2d 772 (Colo. 1981); McCall v. Roper, 685 P.2d 230 (Colo. App. 1984); D.R. Horton, Inc. v. D&S Landscaping, LLC, 215 P.3d 1163 (Colo. App. 2008).