Utah Contribution
"The right that gives one of several persons who are liable on a common debt the ability to recover ratably from each of the others when that one person discharges the debt for the benefit of all." Black's Law Dictionary, 7th Ed.
IN THE CONTEXT OF TORTS:
“Contribution” is a method for tortfeasors forced to pay damages greater than their proportion of fault to recover from other joint tortfeasors in a separate action. See, e.g., Brunyer, 551 P.2d at 522; Restatement (Second) of Torts § 886A (1977); Keeton et al., supra, § 50, at 336-38. However, at common law, contribution suits were barred, thus making tortfeasors potentially liable for all of a plaintiff's damages-through joint and several liability-with no recourse for redistributing their loss among other joint tortfeasors. See, e.g.,Brunyer, 551 P.2d at 522-23 (Ellett, J., dissenting); Keeton et al., supra, § 50, at 336.
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The Act also provides that “[a] defendant is not entitled to contribution from any other person.” Utah Code Ann. § 78b-5-820(2). Thus, the Act's plain language bans contribution suits. This ban comports with the overall statutory scheme which abolishes joint and several liability and renders tortfeasors liable only to the extent of their own proportion of fault. Indeed, with the abrogation of joint and several liability, there remains no need for suits to redistribute loss among joint tortfeasors because no party will in any case be liable for more than its degree of fault in the underlying tort action.
IN THE CONTEXT OF REIMBURSEMENT:
Contribution is the process by which one person obtains reimbursement from another for a proportionate share of an obligation paid by the first person but for which they are both liable. 18 Am.Jur.2d Contribution § 1 (1965). Cf. Utah R.Civ.P. 69(h) (procedure for enforcement of contribution when judgment obtained against multiple defendants but collected from one). “Contribution ... presumes the payment and extinguishment of the debt by one for the benefit of all.” Dillenbeck v. Dygert, 97 N.Y. 303, 309 (1884).
Gardner v. Bean, 677 P.2d 1116, 1118 (Utah 1984)
It is well settled that a co-guarantor cannot bring an action or suit for contribution until he has paid more than his share of the guaranteed debt. Richter v. Henningsan, 110 Cal. 530, 537, 42 P. 1077, 1079 (1895) (cited in Pacific Reporter as Richter v. Blasingame ); Cipra v. Seeger, 215 Kan. 951, 952, 529 P.2d 130, 133 (1974); 4 Pomeroy, Equity Jurisprudence § 1417 (5th ed. 1941); 18 Am.Jur.2d Contribution § 9 (1965). As noted in Restatement of Security § 149 comment a (1941): Since the right to contribution results from the benefit which one cosurety has received as the result of another co-surety's performance, the right to contribution depends upon performance by one of more than his proportionate share. He cannot obtain contribution in advance of his own performance, nor when he has performed no more than his proportionate share. As to installment debts, this rule has been applied to forbid contribution when a co-guarantor has not paid more than his proportionate share of the entire obligation, including the portion not yet due. Tucker v. Bennett, [1927] 2 D.L.R. 42 (Ontario Sup.Ct.). Conversely, a plaintiff has a right to contribution when his installment payments have exceeded his proportionate share of the entire debt. Durbin v. Kuney, 19 Or. 71, 23 P. 661 (1890).
