2018 New Mexico Statutes
Chapter 41 - Torts
Article 3 - Contribution Among Tortfeasors
Section 41-3-5 - Release; effect on right of contribution.

Universal Citation: NM Stat § 41-3-5 (2018)
41-3-5. Release; effect on right of contribution.

A release by the injured person of one joint tortfeasor does not relieve him from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person's damages recoverable against all the other tortfeasors.

History: 1941 Comp., § 21-122, enacted by Laws 1947, ch. 121, § 5; 1953 Comp., § 24-1-15.

ANNOTATIONS

"Claim" and "damages recoverable". — The legislature appears to have interpreted the terms "claim" and "damages recoverable" synonymously. In 41-3-4 NMSA 1978 the release, under certain circumstances, has the effect of reducing the "claim" of the injured person against other tortfeasors, while in this section the same right is spoken of as "damages recoverable." Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099,74 N.M. 238, 392 P.2d 580.

Purpose of act. — One of the purposes of this act [41-3-1 through 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.

Limited applicability of article. — 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.

Limiting release to pro rata share. — Where release provided for reduction of plaintiff's claims for damage to extent of pro rata share of liability of released tortfeasors, it sufficiently complied with this section which establishes conditions under which an injured person's release relieves the joint tortfeasor from liability for contribution. Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099,74 N.M. 238, 392 P.2d 580.

Where settling tortfeasor denied contribution. — Where the language of the release made it clear that the settlement between one tortfeasor and the plaintiffs was for that tortfeasor's benefit alone, and that tortfeasor settled its liability to the plaintiffs, separate and distinct from any liability of second tortfeasor to the plaintiffs, and without attempting to gain any benefit for second tortfeasor, the first tortfeasor was not entitled to contribution from the second. Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, 80 N.M. 432, 457 P.2d 364.

Rights of nonsettling joint tortfeasor. — The right of a nonsettling joint tortfeasor to collect contribution from the one released is protected unless the release provides for a reduction to the extent mentioned in 41-3-4 NMSA 1978 of the damages recoverable from the remaining tortfeasors. Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099,74 N.M. 238, 392 P.2d 580.

All joint tortfeasors not released. — Where release was taken under this section the release of one joint tortfeasor did not release all joint tortfeasors. Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099,74 N.M. 238, 392 P.2d 580.

Settlement for full damages not bar to suit of other joint tortfeasor. — Where an injured person settles with one tortfeasor for an amount equal to or in excess of the amount of damages, the injured person may pursue recovery from each severally liable tortfeasor without reduction. Wilson v. Galt, 1983-NMCA-074, 100 N.M. 227, 668 P.2d 1104, cert. quashed, 100 N.M. 192, 668 P.2d 308.

Assignment of future recovery void. — A person injured while moving hay elevator sued owner of elevator for personal injuries. Owner's insurer settled 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 41-3-2, Subsection C NMSA 1978 and this section. Alder v. Garcia, 324 F.2d 483 (10th Cir. 1963).

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).

Release must be read as a whole and the intent of the parties gathered from the entire instrument, not from separate portions. Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099,74 N.M. 238, 392 P.2d 580.

Law reviews. — For note, "Trends in New Mexico Law: 1995 96: Tort Law Original and Successive Tortfeasors and Release Documents in New Mexico Tort Law: Lujan v. Health South Rehabilitation Corp.," see 27 N.M. L. Rev. 697 (1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 66 Am. Jur. 2d Release §§ 37, 38, 40 to 43.

Tortfeasor's general release of cotortfeasor as affecting former's right of contribution against cotortfeasor, 34 A.L.R.3d 1374.

18 C.J.S. Contribution § 30.

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