Joint Tortfeasors: Using Joint & Several Liability and Contribution to your Advantage

Written by Delia DeBlass, Esq.

Edited by Bill Pfund, Esq.

There are certain considerations when dealing with a case that has joint tortfeasors as co-defendants. Joint tortfeasors are two or more persons whose negligence in a single accident or event causes damages to another person. Often such a situation occurs when a plaintiff injured in a multi-vehicle car accident where there is a disagreement as to the cause of the accident.

While not mandatory, a plaintiff does have the option of suing all joint tortfeasors in a single action, as co-defendants. If, however, a plaintiff only files against one joint tortfeasor, that named joint tortfeasor then has the option of bringing into the suit any and all additional tortfeasors as third-party defendants.

Regardless of how plaintiff choses to bring suit, joint tortfeasors are held jointly and severally liable for damages. This means that each tortfeasor could be responsible for the entire amount of the judgment against all joint tortfeasors. Because joint tortfeasors are held jointly and severally liable, there is also a right to contribution among tortfeasors. Contribution is a common law concept that has roots in equitable principles. In this context, it means that if one joint tortfeasor has been sued and has been made to pay a certain sum to plaintiff, then that tortfeasor may sue other tortfeasors who may also be liable to the plaintiff in order to recover some of the money paid.

For example, if a plaintiff were to bring suit against only one tortfeasor, Tortfeasor #1, and Tortfeasor #1 is found to be liable to the plaintiff, Tortfeasor #1 can then bring suit against the other tortfeasors, who were not named in Plaintiff’s suit, for a portion or all of the judgment entered against Tortfeasor #1.

However, a joint tortfeasor can be granted protection from contribution in certain instances. A well-worded release agreement can protect the settling tortfeasor from such a contribution action. As stated in Code Section 8.01-35.1 (A)(2): “When a release… is given.. [i]t shall discharge the person to whom it is given from all liability for contribution to any other person liable for the same injury to person or property or same wrongful death.”

Another consideration with joint tortfeasors is that because of joint and several liability, a settlement by one joint tortfeasor can affect the judgment amounts of the remaining tortfeasor. VA Code Section 8.01 -35.1 (A)(1) states: “[w]hen a release or a covenant not to sue is given in good faith to one of two or more persons liable for the same injury to a person or property, or the same wrongful death: 1. It shall not discharge any other person from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other person or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater.”

So, if one joint tortfeasor settles with the plaintiff prior to trial, and the remaining joint tortfeasors have a judgment entered against them, those remaining joint tortfeasors will get a credit in the amount of the settlement. Therefore, if you become aware that one joint tortfeasor has settled prior to trial, it is important to seek that settlement information from the plaintiff as it affects the remaining tortfeasors in the suit. The plaintiff might not want to be forthcoming in this information, but VA Code Section 8.01-35.1(A) can be employed by a defendant to obtain this information.

Lastly, joint tortfeasors are able to settle the matter with the plaintiff with their combined funds. Typically, they split the agreed-upon settlement amount evenly. This is another consideration, as it decreases the amount of money that will be paid of the joint tortfeasors individually.

Understanding joint and several liability among tortfeasors and the rules related to contribution can be used as an advantage to a defendant in litigation and to foster an early resolution of a suit.

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