2018 New Mexico Statutes
Chapter 41 - Torts
Article 3 - Contribution Among Tortfeasors
Section 41-3-2 - Right of contribution; accrual; pro rata share.

Universal Citation: NM Stat § 41-3-2 (2018)
41-3-2. Right of contribution; accrual; pro rata share.

A. The right of contribution exists among joint tortfeasors.

B. A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.

C. A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.

D. A pro rata share shall be the portion of the total dollar amount awarded as damages to the plaintiff that is equal to the ratio of each joint tortfeasor's percentage of fault to the total percentage of fault attributed to all joint tortfeasors.

History: 1941 Comp., § 21-119, enacted by Laws 1947, ch. 121, § 2; 1953 Comp., § 24-1-12; 1987, ch. 141, § 3.


Effective dates. — Laws 1987, ch. 141 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 19, 1987, 90 days after the adjournment of the legislature.

Cross references. — For right of indemnity not impaired, see 41-3-6 NMSA 1978.

Purpose of statute. — The purpose of this act (41-3-1 to 41-3-8 NMSA 1978) is to provide for a proportionate allocation of the burden among tortfeasors who are liable. Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, 80 N.M. 432, 457 P.2d 364; Alder v. Garcia, 324 F.2d 483 (10th Cir. 1963).

Purpose of section. — The purpose of this section is to prevent the injured person from relieving one joint tortfeasor of the obligation of contribution except where the injured person has also released the other tortfeasors from their pro rata share of the common liability. Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099, 74 N.M. 238, 392 P.2d 580.

Doctrine of contribution is deeply rooted in principles of equity, fair play and justice. Aalco Mfg. Co. v. City of Espanola, 1980-NMSC-088, 95 N.M. 66, 618 P.2d 1230; Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

Limited application. — The Uniform Contribution Among Tortfeasors Act [41-3-1 through 41-3-8 NMSA 1978] no longer has force in this state with respect to contribution among concurrent tortfeasors. Wilson v. Galt, 1983-NMCA-074, 100 N.M. 227, 668 P.2d 1104, cert. quashed, 100 N.M. 192, 668 P.2d 308.

Contribution not available to servant against innocent master under vicarious liability. — If the master may obtain indemnity from a servant, for whose tort the master has responded in damages, it is totally illogical to think the servant may claim a right to contribution or indemnity from the innocent master once the servant has paid liability to the injured plaintiff. Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

The doctrine of vicarious liability was fashioned to provide a remedy to the innocent plaintiff, not to furnish a windfall to a solvent wrongdoer. Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

Liability of joint tortfeasor. — Where pickup truck struck rear end of tractor-trailer unit on highway at night, pickup truck driver was liable to the owner of the trailer for damages to the trailer where drivers of both vehicles were joint tortfeasors under 41-3-1 NMSA 1978 due to their combined negligence and the driver of pickup truck did not carry the burden of showing that relationship between owner and driver of the tractor-trailer unit was more than that of bailor-agent of bailee. The driver of the pickup truck should compensate the trailer owner for the damage to the trailer, subject to the right of contribution under this section. Bailey v. Jeffries-Eaves, Inc., 1966-NMSC-094, 76 N.M. 278, 414 P.2d 503.

Recovery barred when tortfeasors in pari delicto. — One tortfeasor may not be indemnified by another when they are in pari delicto. Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, 80 N.M. 432, 457 P.2d 364.

Indemnity is allowed against the primary wrongdoer and not against a tortfeasor in pari delicto. Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

Assignment of future recovery void. — A person who was injured while moving hay elevator brought an action against the owner of the elevator for personal injuries. Owner's insurer settled the suit by paying plaintiff $40,000 for release of owner and assignment to insurer of one-half of any recovery or settlement, not to exceed $80,000, which plaintiff might later obtain in action against the manufacturer of the elevator. Plaintiff's action against manufacturer was settled by the manufacturer for $40,000. The insurer of the owner of the hay elevator could not enforce assignment against injured person and manufacturer as it was contrary to public policy as expressed in Subsection C and in 41-3-5 NMSA 1978. Alder v. Garcia, 324 F.2d 483 (10th Cir. 1963).

No interspousal tort immunity. — There is no immunity from tort liability between spouses by reason of that relationship. Maestas v. Overton, 1975-NMSC-004, 87 N.M. 213, 531 P.2d 947.

Effect of family relationship on contribution. — The right of contribution is denied if the plaintiff, because of a marital, filial or other family relationship between the injured person and the person against whom contribution is sought, did not have an enforceable right against the latter. Fitzgerald v. Valdez, 1967-NMSC-088, 77 N.M. 769, 427 P.2d 655.

Settlement with one tortfeasor. — In personal injury action arising from gas explosion, gas company's settlement with injured party and resulting release did not operate to release landowner since landowner was not notified of settlement and release did not purport to release any other claims of injured party; therefore, gas company was not entitled to contribution by landowner. Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, 80 N.M. 432, 457 P.2d 364.

Where joint tortfeasor's potential liability to injured plaintiff is not legally extinguished by settlement proceedings, settling joint tortfeasor cannot claim contribution. United States v. Reilly, 385 F.2d 225 (10th Cir. 1967).

Release must be by name. — A joint tortfeasor must be released by name in order for the settling joint tortfeasor to recover contribution, and this notwithstanding language in the settlement or order of approval purporting to satisfy "all claims" arising out of the incident. United States v. Reilly, 385 F.2d 225 (10th Cir. 1967).

No right of contribution where verdict rendered on single defendant's liability. — No right of offset or contribution can arise with respect to a verdict rendered on the basis of one defendant's liability only. Kirby v. N.M. State Hwy. Dep't, 1982-NMCA-014, 97 N.M. 692, 643 P.2d 256, cert. denied, 98 N.M. 51, 644 P.2d 1040.

Indemnity not abrogated. — The right to indemnity at common law in New Mexico was not abrogated by the enactment of the Uniform Contribution Among Tortfeasors Act [41-3-1 through 41-3-8 NMSA 1978]. Thomas v. Malco Refineries, Inc., 214 F.2d 884 (10th Cir. 1954).

Indemnity not impaired. — Section 41-3-6 NMSA 1978 does not impair any right of indemnity under existing law. Morris v. Uhl & Lopez Eng'rs, Inc., 442 F.2d 1247 (10th Cir. 1971).

Right of contribution among joint § 1983 defendants is federal common-law issue. — Where the plaintiff's cause of action is solely for violation of civil rights under 42 U.S.C. § 1983, the question of whether a right of contribution exists among joint § 1983 defendants is one of federal common law, not one governed by reference to the law of the forum state. Valdez v. City of Farmington, 580 F. Supp. 19 (D.N.M. 1984).

Rights of indemnity and contribution distinguished. — Although the state recognizes common-law right of indemnity in favor of a tortfeasor who has been guilty of only passive or secondary negligence against another who has been guilty of active or primary negligence, such right of indemnity is to be distinguished from right to contribution under this act. Morris v. Uhl & Lopez Eng'rs, Inc., 442 F.2d 1247 (10th Cir. 1971).

The difference between indemnity and contribution is that with indemnity the right enforces a duty on the primary wrongdoer to respond for all damages; while with contribution, an obligation is imposed by law upon one joint tortfeasor to contribute that tortfeasor's share to the discharge of the common liability. Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

Law reviews. — For article, "Judicial Adoption of Comparative Fault in New Mexico: The Time Is at Hand," see 10 N.M.L. Rev. 3 (1979-80).

For note, "Torts - Negligence - Judicial Adoption of Comparative Negligence in New Mexico," see 11 N.M.L. Rev. 487 (1981).

For article, "Statutory Adoption of Several Liability in New Mexico: A Commentary and Quasi-Legislative History," see 18 N.M.L. Rev. 483 (1988).

For comment, "Bartlett Revisted: New Mexico Tort Law Twenty Years After the Abolition of Joint and Several Liability - Part One," see 33 N.M. L. Rev. 1 (2003).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 18 Am. Jur. 2d Contribution §§ 31 to 46; 74 Am. Jur. 2d Torts §§ 78, 85.

Statute providing for contribution between joint tortfeasors as applicable where liability of respective tortfeasors rests upon different legal foundations, 156 A.L.R. 931.

Right of indemnitor of one joint tortfeasor to contribution by other joint tortfeasor or indemnity of the latter, 171 A.L.R. 271.

Contribution between joint tortfeasors as affected by settlement with one or both by person injured or damaged, 8 A.L.R.2d 196.

Legal malpractice: defendant's right to contribution or indemnity from original tortfeasors, 20 A.L.R.4th 338.

Tort immunity of nongovernmental charities - modern status, 25 A.L.R.4th 517.

Right of tortfeasor to contribution from joint tortfeasor who is spouse or otherwise in close familial relationship to injured party, 25 A.L.R.4th 1120.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.

Right to contribution or indemnity on behalf of owner, operator, maintainer, repairer, or installer of automatic passenger elevator in action by elevator user, 100 A.L.R.5th 409.

18 C.J.S. Contribution §§ 12 to 15.

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