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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McLaughlin v. Lougee (06/09/2006) sp-6015

McLaughlin v. Lougee (06/09/2006) sp-6015, 137 P3d 267

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

PAMELA FRANCIS MCLAUGHLIN, )
LORIMAR LANCE MCLAUGHLIN, ) Supreme Court No. S-11423
and LARRY COMPTON, Trustee, )
)
Appellants, )
) Superior Court No.
v. ) 3AN-03-11881 CI
)
KEN LOUGEE; HUGHES, THORSNESS, ) O P I N I O N
GANTZ, POWELL & BRUNDIN; and )
its successor in interest, HUGHES, )
THORSNESS, POWELL, HUDDLESTON )
& BAUMAN, L.L.C., )
)
Appellees. ) [No. 6015 - June 9, 2006]
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Michael  W.  Flanigan,   Chris
          Bataille, Walther & Flanigan, Anchorage,  for
          Appellants.   William M. Bankston,  Chris  D.
          Gronning,  Bankston, Gronning, OHara,  Sedor,
          Mills, Givens & Heaphey, P.C., Anchorage, for
          Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

          The  question  in  this  case is  whether  a  defendant
against whom a judgment in a tort case has been entered can later
file an action against a third person who was not a party to  the
original  action in order to require the third person  to  pay  a
part  of  the  judgment.  The superior court held  that  such  an
action may not be maintained because (1) under the law applicable
when the alleged tortious conduct occurred statutory contribution
had been eliminated and (2) a defendant seeking to allocate fault
to  a  third  party  can do so only in the original  action.   We
disagree  because the applicable law did not preclude common  law
contribution  claims against defendants whose responsibility  was
not considered in an original action, nor did it require that all
claims seeking to allocate fault be brought in a single action.
I.   FACTS AND PROCEEDINGS
          Appellants are Pamela and Lorimar McLaughlin, and Larry
Compton,  the  trustee in bankruptcy of the McLaughlins  bankrupt
estate.   They  sued  attorney Ken Lougee and his  firm,  Hughes,
Thorsness,  Gantz, Powell & Brundin, and its successor  firm,  as
writ  of execution assignees of claims belonging to their  former
attorney Arthur Robson.  In this opinion we collectively refer to
the  appellants  as the McLaughlins and the appellees  as  Hughes
Thorsness.  The superior court stated the underlying facts of the
case as follows:1
               Arthur  Lyle Robson (Robson) represented
          the  McLaughlins between 1990 and 1995  in  a
          series of legal actions concerning a property
          formerly  owned  by  the  McLaughlins.    The
          McLaughlins  lost  title  to  their  property
          through foreclosure due to malpractice on the
          part  of  Robson.   Robson  however  did  not
          disclose  to  the McLaughlins that  they  had
          lost  viable  title.  During the pendancy  of
          that litigation, Robson also represented  the
          McLaughlins  in  their  negotiations  with  a
          foreign   investor,  Okumura,  who   invested
          monies based on Robsons misrepresentations as
          to  the legal status of the property.  Robson
          also   represented  the  McLaughlins   in   a
          subsequent lawsuit brought by Okumura against
          the  McLaughlins  based on misrepresentations
          made  during  the  negotiations  between  the
          parties.    Although  Robson  knew   he   was
          responsible   for   the  liability   of   the
          McLaughlins  based on his misrepresentations,
          Robson   defended  the  McLaughlins   without
          bringing   out   his  culpability   for   the
          misrepresentations.  As a result  of  Robsons
          conduct, the McLaughlins were found liable to
          Okumura in the amount of $1,008,536.05.   The
          McLaughlins then filed for bankruptcy on June
          23,  1993,  and Robson continued to represent
          them.
          
               After   Okumura  obtained   a   judgment
          against the McLaughlins, Okumura then brought
          a  similar  action  against  Robson  alleging
               misrepresentation, which the court in that
          case  found had occurred as a matter of  law.
          In  this  suit,  defendant  law  firm  Hughes
          Thorsness represented Robson.
          
               It   is   during  the  course  of   this
          representation  that the  McLaughlins  allege
          Hughes   Thorsness   committed   acts    that
          constituted  an  illegal  co-conspiracy  with
          Robson  to deprive the McLaughlins  of  their
          legal  rights.  This claim is based at  least
          in   part  on  the  allegation  that   Hughes
          Thorsness, as part of a scheme to defraud the
          McLaughlins,  prepared for Robsons  signature
          (and   without   the   McLaughlins   informed
          consent)   a   pleading  in  the  McLaughlins
          bankruptcy withdrawing the McLaughlins motion
          to   clarify  that  they  still  owned  legal
          malpractice     claims    against     Robson.
          Plaintiffs  allege that Hughes Thorsness  was
          aware  that Robson could not ethically  agree
          on  behalf  of  the McLaughlins  to  withdraw
          their  motion  claiming that they  still  had
          claims  against Robson, yet Hughes  Thorsness
          prepared  documents for Robsons signature  to
          do  just  that.  Plaintiffs allege  that  the
          purpose of Hughes Thorsnesss actions were  to
          further  Robsons fraudulent scheme  to  avoid
          personal liability for his actions.  Although
          the   withdrawal  of  the  motion  was  later
          reversed  and the Bankruptcy Court eventually
          held  that  Robson  could  be  sued  by   the
          McLaughlins   and   the  Bankruptcy   Estate,
          Robsons  malpractice liability insurance  had
          been  exhausted  due  to  the  settlement  of
          Okumuras  claims against Robson as negotiated
          by  Hughes Thorsness.  Plaintiffs claim  that
          as a proximate result of the combined conduct
          of   Robson   and  the  defendants,   Robsons
          liability  insurance, which should have  been
          used  to  obtain a joint release from Okumura
          in favor of both Robson and McLaughlins or to
          pay  Okumuras claims down for the benefit  of
          both  Robson and the McLaughlins,  was  spent
          only  obtaining a release of Robson from  the
          Okumura claims.
          
               The  McLaughlins subsequently  filed  an
          action  against  Robson for  malpractice  and
          fraud  and obtained a judgment against Robson
          in  the amount of $3,571,429.33 on October 2,
          2001,  in case number 4FA-96-2602 Civil.   To
          collect  on  this  judgment, the  McLaughlins
          executed  on  all  claims  that  Robson   had
          against the current defendants, which  claims
          are  alleged by the McLaughlins to have  been
          assigned to them by court order.  Pursuant to
          AS  09.17.080, plaintiffs allege that  Robson
          had  claims  for allocation that  could  have
          been  asserted  against defendants  following
          the  entry  of judgment in 4FA-96-2602  Civil
          and  that  defendants are  liable  for  their
          percentage of fault in causing the harm.
          
          The  McLaughlins  sued in September of  2003,  claiming
that Hughes Thorsness was liable to them as Robsons assignees for
some  portion  of their judgment against Robson in proportion  to
Hughes  Thorsnesss  responsibility for Robsons  conduct.   Hughes
Thorsness  promptly  filed  three  separate  motions  to  dismiss
claiming that (1) assignments of legal malpractice claims are not
permitted, (2) the applicable statute of limitations had expired,
and  (3) a defendant such as Robson cannot seek to require others
to  share  fault  and liability except in the initial  action  in
which  he  is sued. Ruling only on the last ground, the  superior
court ordered the complaint dismissed.
          The  superior court reasoned that the McLaughlins  case
is  effectively  one  for contribution and  because  contribution
actions  were  repealed by the 1989 voter initiative establishing
proportionate fault, Alaska Rule of Civil Procedure 12(b)(6) bars
the instant action.  The court determined that the relevant fault
allocation  statute,  AS  09.17.080 (1989),  does  not  create  a
separate  cause  of  action in which a defendant  can  obtain  an
affirmative  recovery  . . . .  All that  [AS  09.17.080  (1989)]
allows  a defendant to do is join other persons who may be liable
to  a  claimant, and to have a factual determination made of  the
percentages  of fault for each responsible person.  Consequently,
the  court held that the McLaughlins as assignees of Robson could
not initiate a post-judgment action against Hughes Thorsness.
II.  STANDARD OF REVIEW
          Decisions  granting motions to dismiss for  failure  to
state  a  claim upon which relief can be granted are reviewed  de
novo  and the allegations contained in the complaint are accepted
as true for purposes of review.2  Such decisions will be affirmed
only  if it appears that the claimants can prove no set of  facts
which would entitle them to relief.3
III. RELEVANT STATUTES
          Because  the  alleged  tortious conduct  in  this  case
occurred  between 1993 and 1995, the 1989 tort reform  initiative
in  effect from 1989 to 1997 governs this case.4  This initiative
enacted a comparative fault-several liability system and repealed
Alaskas   version  of  the  Uniform  Contribution   Among   Joint
Tortfeasors Act (Uniform Contribution Act).  As modified  by  the
1989 initiative, AS 09.17.080 provided:
               (a)  In  all actions involving fault  of
          more  than one party to the action, including
          third-party defendants and persons  who  have
          been  released under AS 09.16.040, the court,
          unless otherwise agreed by all parties, shall
               instruct  the  jury  to  answer  special
          interrogatories  or, if  there  is  no  jury,
          shall  make  findings,  indicating  (1)   the
          amount  of  damages  each claimant  would  be
          entitled to recover if contributory fault  is
          disregarded;  and (2) the percentage  of  the
          total  fault  of all of the parties  to  each
          claim  that  is  allocated to each  claimant,
          defendant, third-party defendant, and  person
          who has been released from liability under AS
          09.16.040.
          
               (b)  In  determining the percentages  of
          fault, the trier of fact shall consider  both
          the  nature of the conduct of each  party  at
          fault,  and the extent of the causal relation
          between  the conduct and the damages claimed.
          The  trier of fact may determine that two  or
          more  persons are to be treated as  a  single
          party  if  their conduct was a cause  of  the
          damages  claimed  and  the  separate  act  or
          omission    of   each   person   cannot    be
          distinguished.
          
               (c)  The court shall determine the award
          of  damages  to  each claimant in  accordance
          with  the  findings, subject to  a  reduction
          under   AS   09.16.040,  and  enter  judgment
          against  each party liable.  The  court  also
          shall  determine  and state in  the  judgment
          each partys equitable share of the obligation
          to  each  claimant  in  accordance  with  the
          respective percentages of fault.
          
               (d)   The  court  shall  enter  judgment
          against  each  party liable on the  basis  of
          several  liability  in accordance  with  that
          partys percentage of fault.
          
Under the initiative, AS 09.17.900 defined fault as follows:
               In  this chapter fault includes acts  or
          omissions  that are in any measure  negligent
          or  reckless toward the person or property of
          the actor or others, or that subject a person
          to  strict  tort liability.   The  term  also
          includes  breach  of  warranty,  unreasonable
          assumption   of  risk  not  constituting   an
          enforceable  express  consent,  misuse  of  a
          product  for  which  the defendant  otherwise
          would be liable, and unreasonable failure  to
          avoid  an  injury  or  to  mitigate  damages.
          Legal  requirements of causal relation  apply
          both to fault as the basis for liability  and
          to contributory fault.[5]
          
          Under Alaskas version of the Uniform Contribution  Act,
          repealed by the 1989 initiative, a tortfeasor that paid more than
its  pro  rata  share  of the common liability  had  a  right  of
contribution  against  other tortfeasors.   Each  tortfeasor  was
liable  for contribution pro rata, that is per capita.   The  act
provided  that  in  determining a  defendants  share  of  damages
relative degrees of fault shall not be considered.6
IV.  ARGUMENTS ON APPEAL
          The McLaughlins argue that the precedents of this court
indicate that a defendant may bring suit against a third party to
allocate fault and liability after a judgment is entered  against
it.   They  note  that such a result was allowed  in  Borg-Warner
Corp. v. Avco Corp.,7 and argue that even though Borg-Warner  was
decided under an earlier, and significantly different, version of
AS  09.17.080,8  essentially  the same  result  was  endorsed  in
Universal Motors, Inc. v. Neary,9 a case arising under  the  1989
initiative.   They  also  contend that  our  decision  in  Alaska
General Alarm, Inc. v. Grinnell10 indicates that while a defendant
has  the  option  of  impleading third-party  defendants  in  the
original  action, a defendant is not required to do  so  and  may
instead bring a separate action.11
          Hughes  Thorsnesss  position is  that  Robson,  as  the
defendant in the McLaughlins case against him for malpractice and
fraud,  had  an obligation to file a third-party action  in  that
case  against  Hughes  Thorsness or be barred  from  subsequently
suing  Hughes  Thorsness.  Robsons decision not to  bring  Hughes
Thorsness  into  McLaughlins initial action for fault  allocation
purposes,   before   final  judgment,  extinguishes   any   fault
allocation rights.  Hughes Thorsness also argues that Borg-Warner
is inapplicable because the claim asserted by Borg-Warner was one
for  contribution, as is the McLaughlins claim, and  contribution
has   been  abolished.   Hughes  Thorsness  distinguishes  Neary,
arguing  that  while  that case allowed a plaintiff  to  bring  a
second  action against defendants not named in the first  action,
that  does  not  mean  a defendant can bring a  separate,  second
action  .  .  .  .  Hughes Thorsness also argues that  there  are
reasons  of  judicial economy for requiring fault  allocation  to
take place in only one action.12
V.   DISCUSSION
     A.   Summary
          We conclude, for the reasons that follow, that the 1989
initiative  does  not  bar  a defendants  post-judgment  separate
action  against a third party that seeks to allocate a  share  of
the  defendants  fault  and liability to the  third  party.   Our
decision  in Neary permitting post-judgment separate  actions  by
plaintiffs  largely  governs  this point.   The  Neary  rationale
cannot  fairly be limited to establishing a right  that  runs  to
plaintiffs, but not defendants.  We agree with Hughes  Thorsnesss
argument that a separate action brought by a defendant against  a
third party is, in essence, a claim for contribution.  We do  not
agree,  however, that all contribution claims were prohibited  by
the  1989  initiative.  The initiative repealed  Alaskas  Uniform
Contribution  Act.   This  was  necessary  because  the   Uniform
Contribution  Acts  system  of  per  capita  loss  sharing  among
defendants  was  inconsistent with the comparative  fault-several
          liability system established by the 1989 initiative.  But the
repeal  merely  meant  that  Alaska no  longer  had  a  statutory
contribution   system.   It  did  not  mean   that   common   law
contribution  that  is  consistent  with  comparative  fault  and
several  liability  would  be  unavailable.   The  need   for   a
contribution remedy has been greatly reduced by Civil Rule 14(c),
which allows defendants to bring third-party claims for equitable
apportionment in the original tort case.  By using this procedure
a  defendant can avoid liability for a disproportionate share  of
the plaintiffs damages by ensuring that the relative fault of all
responsible  actors is determined by the jury.  But sometimes  it
is   not  expedient  or  even  possible  to  implead  third-party
defendants.  In such cases, an action for common law contribution
can  serve to fairly apportion damages according to the  relative
fault  of all responsible persons and thus further the underlying
objective  of a comparative fault-several liability  system.   We
conclude that common law contribution is an appropriate available
remedy  that is consistent with the 1989 initiative.   We  remand
this case for further proceedings in order to determine whether a
common  law contribution claim can be maintained under the  facts
and circumstances of this case.
     B.   AS 09.17.080 Does Not Require That All Claims of Either
          Plaintiffs or Defendants Be Litigated in a Single Case.
          
          With  the  advent  of  comparative  fault  and  several
liability some courts have held that all claims must be tried  in
one action.13  But this court has declined to adopt this rule.  In
Neary the appellant advocated the adoption of the so-called  one-
action rule that was developed by the Supreme Court of Kansas and
had  been  adopted  by some other jurisdictions.   In  Neary  the
plaintiff was struck by a vehicle driven by a young motorist  who
was  both  unlicensed  and uninsured.   The  plaintiff  sued  the
motorists  parents  for  negligent entrustment.   This  suit  was
dismissed  on  summary  judgment.  Then  the  plaintiff  filed  a
separate  suit against Universal Motors, claiming that  Universal
had  negligently sold the vehicle involved in the accident to the
unlicensed  motorist.  Universal moved to dismiss, claiming  that
Alaska  should adopt a one-action rule under which the  fault  of
all  potentially responsible parties must be tried  in  a  single
case.14
          We  held, in language that is broad enough to apply  to
separate  actions  brought by defendants as well  as  plaintiffs,
that  AS  09.17.080  does not mandate a single  action  for  each
injury  or accident.15  Our primary rationale was that the  model
act  on  which AS 09.17.080 is based contemplated the possibility
of  subsequent  litigation against other potential tortfeasors.16
This rationale was also expressed in terms applicable to separate
actions brought either by plaintiffs or defendants:
          Subsection  (a) of the statute  derives  from
          Section 2(a) of the Uniform Comparative Fault
          Act  of 1977.  The comment pertaining to  the
          latter  indicates that the  drafters  of  the
          Uniform  Act contemplated the possibility  of
          subsequent  suits  against  other   potential
          tortfeasors:
          
               The limitation to parties
               to   the   action   means
               ignoring  other   persons
               who  may  have  been   at
               fault with regard to  the
               particular injury but who
               have  not been joined  as
               parties.    This   is   a
               deliberate decision.   It
               cannot   be   told   with
               certainty  whether   that
               person  was  actually  at
               fault  or what amount  of
               fault      should      be
               attributed  to  him,   or
               whether  he will ever  be
               sued,   or  whether   the
               statute   of  limitations
               will run on him, etc.  An
               attempt  to settle  these
               matters  in  a  suit   to
               which  he is not a  party
               would  not be binding  on
               him.
               
               In  construing statutes taken from model
          acts  we  generally regard the commentary  to
          the  model  act as a reliable  guide  to  the
          statutes   meaning.    We   so   regard   the
          commentary quoted above and conclude that our
          statute was not intended to preclude separate
          actions against different tortfeasors.[17]
          
          The  leading  case propounding the one-action  rule  is
Albertson  v.  Volkswagenwerk  Aktiengesellschaft.18   The  court
outlined  the  rule in terms highlighting one of  its  drawbacks:
Under  the  doctrine  of  comparative fault  all  parties  to  an
occurrence  must have their fault determined in one action,  even
though  some  parties cannot be formally joined or  held  legally
responsible.  Those not joined as parties or for determination of
fault  escape  liability.19  Albertson involved a  second  action
brought  by  a plaintiff, but the one-action rule has  also  been
applied to separate actions brought by defendants.20
          In  Benner  v.  Wichman we held that  fault  should  be
assessed in an action under AS 09.17.080 only against parties  to
an  action, including third-party defendants and settling parties
and  not  against other persons who might be responsible for  the
accident.21   By contrast, in Kansas the fault of all potentially
responsible  persons   sometimes referred to in Kansas  cases  as
phantom  parties   is assessed.22  This feature is  an  important
reason for the one-action rule.  By assessing the fault of absent
responsible  persons as well as the parties to  the  action,  the
jury has assessed all the fault of all the actors responsible for
          the accident.  The proportionate fault attributable to phantom
parties  reduces  the  amount  of  damages  attributable  to  the
defendants in an action, in a sense indemnifying those defendants
for the damages caused by the phantoms.  The statute assures that
each  defendant  will bear only his proportionate  share  of  the
loss.23  In Alaska there is no reduction attributable to the fault
of non-parties.24  In cases where non-parties may be at fault, it
cannot   be  said  that  each  defendant  will  bear   only   his
proportionate share of the loss.  Thus, this reason for  applying
the one-action rule does not apply to Alaska.
          An  A.L.R. annotation has noted the importance of  this
distinction.25  Referring to jurisdictions that attribute fault to
phantom parties the annotation states:
               Courts that have expressed the view that
          all  fault  is allocated in one action  under
          the  doctrine of comparative negligence  have
          held   that   prior  explicit   or   implicit
          determinations   of  fault   in   comparative
          negligence  proceedings  served  to  preclude
          later actions arising from the same incidents
          against  defendants not named  in  the  prior
          proceedings . . . .[26]
          
By  contrast, as to jurisdictions such as Alaska, the  annotation
states:
          In jurisdictions in which the one-action rule
          has  not been applied, some courts have  held
          that   prior  determinations  of   fault   in
          comparative  negligence proceedings  did  not
          serve to preclude later actions arising  from
          the  same  incidents against  defendants  not
          named  in the prior proceedings. . .  .   The
          courts emphasized that the comparative  fault
          with  respect to the nonnamed defendants  had
          never    been   determined   in   the   prior
          proceedings.[27]
          
          Hughes  Thorsnesss  argument that reasons  of  judicial
economy should preclude defendants from bringing separate actions
is  not  substantially different from the argument that was  made
and  rejected in Neary.  Nearys rationale concerning the judicial
economy argument also applies here:
               From  a judicial economy standpoint,  it
          is   generally   true  that  one   trial   is
          preferable to multiple trials.  But  existing
          parties already possess a strong incentive to
          name   all  potential  tortfeasors.   As   we
          observed in Benner:
          
               Both    plaintiff     and
               defendants   will    have
               significant incentive for
               joining         available
               defendants  who  may   be
               liable.  The more parties
               joined    whose     fault
               contributed    to     the
               injury,  the smaller  the
               percentage    of    fault
               allocated to each of  the
               other   parties,  whether
               plaintiff or defendant.
               
          Further, one drawback of the one-action  rule
          is that it may result in the needless joinder
          of  parties  whose fault is remote.   Whether
          the benefit from the additional incentive for
          joining   all   potentially   liable   actors
          supplied by the one-action rule is outweighed
          by   the   detriment   resulting   from   the
          complications of multi-party litigation is  a
          policy    question   best   left    to    the
          legislature.[28]
          
          Our observation in Neary that there are drawbacks to  a
one-action  rule bears further comment.  Adding numerous  parties
to a lawsuit obviously has a strong potential to delay litigation
and  make it more expensive.  Relatedly, the liability issues  in
the   case  against  an  unjoined  defendant  may  be  completely
different  from  those in the original action. In  addition,  the
fault  of  a  responsible  entity  may  not  be  discovered,   or
understood,  in time to join it as a defendant, or a  third-party
defendant,  in the original action.29  Moreover, some third-party
claims  are,  practically speaking, inconsistent  with  a  partys
position  in  the original action and may serve to undermine  it.
Other  third-party  claims may needlessly and unfairly  stress  a
valuable relationship.30
            Hughes  Thorsness also argues that if defendants  are
allowed to bring separate actions the third-party defendant would
be  entitled  to bring in all responsible parties, including  the
original  plaintiff,  and  that  collateral  estoppel  would  not
prevent  the third-party defendant from relitigating  any  issue.
Hughes  Thorsness  is not correct that other  defendants  or  the
plaintiff in the original action would need to become parties  in
the second action.31  Prior judgments and settlements would not be
disturbed by the second action.32
          But   Hughes  Thorsness  is  correct  that  third-party
defendants will not ordinarily be barred from relitigating  prior
fault  allocations or damages.  While such relitigation will  not
affect the finality of the prior judgment or settlements, it  may
influence what the third-party defendant is required to pay.  The
third-party defendants objective in relitigating fault  would  be
to  show it was either not responsible at all or only responsible
for   a  relatively  low  percentage  of  the  total  fault  that
contributed  to  the loss.  A reassessment of the  fault  of  the
other responsible parties is relevant to this determination.  The
third-party defendant can also minimize its damages by attempting
to  prove  that the plaintiffs damages are lower than the  amount
assessed in the first suit.
          Hughes  Thorsnesss  observation  that  the  third-party
defendant  will be arguing against empty chairs in attempting  to
minimize  its  responsibility by ascribing fault to absent  prior
parties is also correct.  But this is not a disadvantage  to  the
third-party defendant.  Allocating fault to absent parties is  an
easier task than allocating fault to parties who are present  and
defending  their conduct.  The empty chair burden thus  falls  on
the  defendant who initiates the separate action.   This  is  not
generally  unfair  because this burden  is  the  product  of  the
defendants  choice not to join the third-party defendant  in  the
original action.
          In  sum, the 1989 initiative does not require that  the
fault  of all parties be tried in a single case.  We so  held  in
Neary.   The  reasons  supporting that  conclusion    legislative
intent,   the  complexity,  expense,  and  delay  of  multi-party
litigation,  and  the  fact that the second litigation  will  not
involuntarily involve others who have settled or whose claims  or
defenses have been adjudicated  apply to separate claims  brought
by defendants as well as plaintiffs.
     C.   Common Law Contribution Is Available.
          
          The superior court held that the McLaughlins action  as
the  assignees of claims held by Robson against Hughes  Thorsness
was  effectively  one  for contribution and because  contribution
actions  were  repealed by the 1989 voter initiative establishing
proportionate fault . . . the action could not be maintained.  We
agree  that  the  action  can  fairly  be  described  as  seeking
contribution.   Robsons assignees seek to  allocate  a  share  of
Robsons fault to Hughes Thorsness which is alleged to have  acted
concurrently with Robson in causing harm to the McLaughlins.  The
assignees claim that Robson has been held one hundred percent  at
fault   for  their  loss,  whereas  another  tortfeasor,   Hughes
Thorsness,  was  also  responsible and should  reimburse  Robson.
Although this remedy could be given any number of names,33 it  is
effectively contribution.
          We  do not agree, however, that the 1989 initiative was
intended  to bar common law contribution.  As already noted,  the
initiative  repealed Alaskas version of the Uniform  Contribution
Act.   This  repeal  was necessary because  the  act  called  for
contribution  on  a  per capita rather than a  fault-proportional
basis.  The  Uniform Contribution Act was therefore  inconsistent
with  the comparative fault-several liability system of the  1989
initiative.
          The  injustice of retaining the per capita contribution
system is readily illustrated by reference to the facts of Ehredt
v. DeHavilland Aircraft Co. of Canada, Ltd.34  In Ehredt the jury
found  that  the  plaintiff was ten percent at  fault,  defendant
Ehredt  fifteen  percent  at  fault,  and  defendant  DeHavilland
seventy-five percent at fault.35  DeHavilland paid the  plaintiff
roughly  $2  million for the release of the whole amount  of  the
defendants  joint and several liability and then sought  half  of
that  sum  from Ehredt in a claim for contribution.36   We  held,
based   on  the  per  capita  measure  mandated  in  the  Uniform
Contribution Act, that DeHavilland was entitled to a  full  fifty
          percent of the sum it paid even though Ehredt was only fifteen
percent  responsible.37  Under a proportional fault  contribution
system Ehredt would have been liable for only about $333,333 (the
product of 15/90 x 2,000,000) rather than the $1,000,000  it  had
to  pay  using  the  Uniform Contribution Acts pro-rata  measure.
This  example, from a case that was decided not long  before  the
initiative was proposed, illustrates how the pro-rata measure  of
contribution liability contained in the Uniform Contribution  Act
would  have  undermined  the comparative fault-several  liability
system enacted by the 1989 initiative.
          But  the  repeal of the Uniform Contribution Act  meant
only  that Alaskas pro-rata statutory contribution system was  no
longer  in  effect.  The repeal does not imply rejection  of  the
principle  of  contribution  based  on  proportional  fault.   We
recognized this in Alaska General Alarm, Inc. v. Grinnell.38   We
held there that a tort defendants third-party claim for equitable
apportionment under Civil Rule 14(c), filed after the statute  of
limitations  governing the original action had expired,  was  not
time-barred.39   We recognized that such claims were  similar  to
contribution actions:  At its root each claim is a mechanism  for
spreading  damage.40  To illustrate this similarity  we  observed
that   the   draft   Restatement  (Third)  of   Torts   preserved
contribution  as  a remedy under systems like  Alaskas  in  cases
where fewer than all those responsible had been joined:
               Indeed, the draft Restatement (Third) of
          Torts  recognizes that even under apportioned
          liability  a defendant sued in an  action  in
          which  fewer  than  all the relevant  persons
          have  been  joined might be liable  for  more
          than  its percentage of fault and thus  might
          be  entitled  to contribution.  See  Proposed
          Final Draft, Restatement (Third) of Torts  33
          cmt. f (1999).[41]
          
          We  concluded that a defendants equitable apportionment
claim, like contribution, did not accrue when the underlying tort
was  committed,  but upon settlement or judgment  concerning  the
underlying  claim.42   This was true even  though  the  equitable
apportionment  claim  could be joined  for  litigation  with  the
underlying   claim   before   it  technically   accrued.43    One
complication was that with the repeal of the Uniform Contribution
Act  the  separate contribution statute of limitations  was  also
repealed.  But we held that this repeal did not imply a rejection
of  third-party procedures well established in this state and the
common law.44  The scant legislative history demonstrates that the
initiatives  supporters  were concerned almost  exclusively  with
ensuring that defendants would be liable only for their share  of
fault.45
          Most  other states have contribution systems.  In  many
states contribution is statutory.  But in a substantial number of
states contribution has been developed as a matter of common law.46
          One of the leading cases is American Motorcycle Assn v.
Superior Court of Los Angeles County.47  American Motorcycle  was
decided   three  years  after  California  by  judicial  decision
          abolished the all-or-nothing rule of contributory negligence in
favor   of   a  comparative  negligence  system.48   In  American
Motorcycle  the court adopted a rule of comparative contribution,
termed  partial equitable indemnity, under which liability  among
multiple   tortfeasors  may  be  apportioned  on  a   comparative
negligence  basis.49  This rule was found necessary in  order  to
further the objective of the newly adopted comparative negligence
system  under which liability for damage will be borne  by  those
whose   negligence  caused  it  in  direct  proportion  to  their
respective fault.50  The court further observed that its  holding
represented  an  evolutionary  development  of  the  common   law
equitable   indemnity  doctrine  that  furthered   an   equitable
distribution of loss among multiple tortfeasors.51
          American Motorcycle adopted a contribution remedy  even
though  California  had  an existing contribution  statute.   The
statute  was applicable only to joint judgment debtors and,  like
Alaskas  repealed  statute, called for  contribution  per  capita
rather  than  proportional to fault.52  The  American  Motorcycle
court  observed that the contribution statute merely  represented
an  effort to lessen the harshness of the early common  law  rule
that prohibited contribution.53  The statute was not intended  to
preempt  the  field or to foreclose future judicial  developments
which  further  the  acts principal purpose of  ameliorating  the
harshness and inequity of the old no contribution rule.54
          The  courts of New York and Missouri have also  adopted
common  law  contribution  under  similar  circumstances  as   in
California,  even  though  those  states  also  had  contribution
statutes  which  provided  for a limited  contribution  remedy.55
Contribution  in these states, as in most other  states,  may  be
asserted in the original tort action or in a separate action.56
          Common  law  contribution  is  also  permitted  by  the
Restatement of Torts.57  The current Restatement makes  it  clear
that   contribution  has  a  viable  role  in  several  liability
jurisdictions  where  the contribution defendants  responsibility
was not considered in the original action.58  Comment f to section
23 of the current Restatement59 states:
               If  a  person  is otherwise entitled  to
          recover contribution, contribution is limited
          to   the  amount  that  person  pays  to  the
          plaintiff  above that persons  percentage  of
          responsibility.   In a jurisdiction  where  a
          defendant is only severally liable . . . ,  a
          defendant normally would pay no more than its
          own   percentage  share  and  would  not   be
          entitled   to  contribution.    Even   in   a
          jurisdiction  that  does not  use  joint  and
          several   liability,  however,  a   severally
          liable defendant might be sued with less than
          all of the relevant persons and be liable for
          more    than    its   own   percentages    of
          responsibility, and therefore be entitled  to
          contribution.  See Comment c and Illustration
          4.
          
Comment  c  states  in part:  Normally, liability  for  the  same
indivisible  injury will result from joint and several  liability
. . . but a severally liable person might sometimes be liable for
the  same  indivisible injury caused by another severally  liable
person.    Such   a  person  may  be  entitled  to  contribution.
Illustration 4 following this comment gives the following example
pertaining to contribution in a severally liable jurisdiction:
               A  is injured jointly by B, C, and D and
          sues  B  and C.  In a jurisdiction  that  has
          rejected joint and several liability, B and C
          are each held severally liable for As damages
          without    any    consideration     of     Ds
          responsibility.   B  and  C  have  been  held
          liable  for the same indivisible harm  caused
          by D and may be entitled to contribution from
          D.
          
          In  our  view  contribution should be  available  as  a
common law remedy because it furthers the goal of apportioning of
tort   losses   in  accordance  with  each  responsible   persons
percentage  of  fault.   Adopting this remedy  for  Alaska  is  a
logical concomitant of two aspects of our law.  The first is  the
holding of Benner v. Wichman.60  Since the fault of non-parties is
not  assessed in the original trial, some defendants may be  made
to  bear  more  than what their share of fault would  be  if  the
responsibility of all those at fault were considered.  The second
is  the rule of Universal Motors, Inc. v. Neary.61  Our rejection
of  a  one-action  rule  leaves  little  reason  to  insist  that
defendants  seeking  to  spread their damages  must  bring  their
claims under Civil Rule 14(c) rather than independently.62
     D.   Issues on Remand
          Although  we  have decided that common law contribution
is available in appropriate cases, it is not clear that this is a
case  to which the remedy applies.  The McLaughlins did not style
their  complaint explicitly as stating a claim for  contribution.
But  they  did  allege that Robson had claims for allocation  and
cited in their complaint as a part of this allegation Borg-Warner
v.  Avco  Corp.63   The claim in Borg-Warner was  a  contribution
claim.  This allegation plus the citation of the case gave Hughes
Thorsness  fair notice of the nature of their claim.  Common  law
contribution  requires  a  discharge  of  the  liability  of  the
contribution defendant and payment by the contribution  plaintiff
in  excess  of the contribution plaintiffs comparative  share  of
responsibility.64  The complaint does not allege either discharge
or  payment  by  Robson.  But we must ask under the  standard  by
which motions to dismiss are reviewed whether the McLaughlins can
prove  no  set  of facts which would entitle them to  maintain  a
contribution claim.65  On the record before us we cannot give  an
affirmative answer to this question.  It is conceivable that  the
McLaughlins  have  successfully  executed  on  Robsons   personal
assets.  Further, whether the discharge requirement may be met by
the running of a statute of limitations may be an open question.66
          Hughes  Thorsness also argues that contribution  cannot
be  available  in  this  case  because  there  can  be  no  fault
allocation between intentional tortfeasors.  Given that under the
          initiative fault is defined in terms of negligent or reckless
conduct without mentioning intentionality, there may be merit  to
this  argument.67  On the other hand, we have indicated  that  an
expansive interpretation of intentional is inconsistent with  the
comparative negligence principles contained in AS 09.17.080.68  In
Borg-Warner  we  stated that AS 09.17.900 clearly contemplates  a
relative   allocation   of   fault  between   all   unintentional
tortfeasors, whether negligent, grossly negligent or willful  and
wanton  and  excluded only tortfeasors who act with the  specific
intent to cause the resultant harm.69  Reviewing the complaint in
light  of  the  applicable  standard of  review  for  motions  to
dismiss, we cannot say that the conduct complained of on the part
of  Robson  and  Hughes Thorsness necessarily  meets  the  narrow
standard  of intentionality that goes beyond comparability  under
AS 09.17.900.
          The parties also seek rulings on the motions to dismiss
that   the  superior  court  did  not  decide  relating  to   the
assignability  of  legal malpractice claims and  the  statute  of
limitations.  We decline the invitation to rule on these  matters
and  believe  that  both  subjects  would  benefit  from  further
briefing  and development in the superior court.  The McLaughlins
have  also  challenged as excessive the award of fees and  costs.
Our  reversal  of the grant of the motion to dismiss  moots  this
issue.
VI.  CONCLUSION
          For  the  above reasons, the judgment is  REVERSED  and
this case is REMANDED for further proceedings.
_______________________________
     1     Elements  of  the current case are also  discussed  in
Compton  v.  Chatanika  Gold Camp Props., 988  P.2d  598  (Alaska
1999).

     2     Valdez  Fisheries Dev. Assn, Inc. v. Alyeska  Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).

     3    Id.

     4     We  refer  to  the initiative as the  1989  initiative
because  it became effective in 1989, although it was  passed  in
1988.  Initiative 87TOR2, Relating to Civil Liability, was passed
on  November 8, 1988.  It remained in effect until 1997 when  the
legislature substantially amended AS 09.17.080.  Our  holding  in
this  case is limited to cases controlled by the 1989 initiative;
we  intimate  no  view  as to its application  to  the  post-1997
system.

     5     This definition was amended in 1997, when the words or
intentional were inserted after reckless.  Ch. 26,  15, SLA 1997.

     6     Former  AS 09.16.020(1).  These features were codified
in  Former  AS  09.16.010(a) & (b) and  Former  AS  09.16.020(1).
Former AS 09.16.010(a) & (b) provided:

               (a) Except as otherwise provided in this
          chapter,  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.
          
               (b)  The  right  of contribution  exists
          only  in  favor of a tortfeasor who has  paid
          more than that tortfeasors pro rata share  of
          the  common liability, and the total recovery
          of  that tortfeasor is limited to the  amount
          paid  in  excess of the pro rata  share.   No
          tortfeasor  is compelled to make contribution
          beyond the tortfeasors pro rata share of  the
          entire liability.
          
          Former  AS 09.16.020(1) provided:  In determining  pro-
rata  shares  of  tortfeasors in the entire liability  (1)  their
relative degrees of fault shall not be considered[.]

     7    850 P.2d 628 (Alaska 1993).

     8    Before the 1989 initiative became effective, subsection
.080(d)  provided  for modified joint and several  liability.   A
party  allocated less than fifty percent of the total  fault  was
liable  for no more than twice the total fault allocated to  that
party.   The  initiative  changed  subsection  (d)  by  mandating
several  liability  according to a partys  percentage  of  fault.
Subsections (a)-(c) of .080 were not changed, except for  changes
in statutory citations necessitated by a recodification.

     9    984 P.2d 515 (Alaska 1999).

     10    1 P.3d 98 (Alaska 2000).

     11    The McLaughlins also argue that this suit is not barred
by  the  statute  of  limitations or by a  rule  prohibiting  the
assignability  of  legal malpractice claims.  They  also  contend
that the award of fees and costs in this case were excessive.  We
do not reach these claims for reasons explained below.  See infra
page 30.

     12    Hughes Thorsness also argues that the underlying torts
for  which  allocation  is  sought,  fraud  and  conspiracy,  are
intentional torts for which there can be no fault allocation.  We
briefly  address  this claim below at page 29.  Hughes  Thorsness
additionally asserts that for policy reasons Robsons claim should
not  be  assignable.   We  do not reach this  claim  for  reasons
asserted on page 30 infra.

     13     See  generally  David Polin, Annotation,  Comparative
Negligence:   Judgment Allocating Fault in  Action  Against  Less
Than  all  Potential Defendants as Precluding  Subsequent  Action
Against  Parties not Sued in Original Action, 4  A.L.R.  5th  753
(1992).

     14    Neary, 984 P.2d at 516.

     15    Id.

     16    Id. at 517.

     17    Id. at 516-17 (citations omitted) (emphasis added).

     18    634 P.2d 1127 (Kan. 1981).

     19    Id. at 1132.

     20     E.g.,  St. Francis Regl Med. Ctr., Inc.  v.  Critical
Care,  Inc.,  997  F.  Supp.  1413 (D.  Kan.  1997)  (recognizing
applicability  of Kansass one-action rule to settling  defendants
attempt to sue third party to recoup settlement); Teepak, Inc. v.
Learned,  699  P.2d 35 (Kan. 1985) (when a defendant participates
in  a settlement which operates as a full release of any and  all
claims  the plaintiff may have had, the defendant may not  compel
successive tortfeasors against whom the plaintiff filed no claims
to  contribute to the settlement); Travelers Ins. Cos. v. Jackson
Commcns  Corp., 573 F. Supp. 1139 (D. Kan.1983) (applying  Kansas
law  to prevent defendant insurer that settled claim from seeking
indemnification from third party not sued by plaintiff); Ellis v.
Union  Pac. R. R. Co., 643 P.2d 158 (Kan. 1982) (defendant  in  a
comparative negligence action cannot settle a claim on behalf  of
a  party and then seek contribution from that party in proportion
to  the  percentage  of  causal negligence attributable  to  that
party);  Eurich  v. Alkire, 579 P.2d 1207 (Kan. 1978)  (defendant
who  failed  to make a claim against his co-defendant or  against
plaintiff was thereafter barred from asserting claim against  co-
defendant in subsequent action).

     21    874 P.2d 949, 958 (Alaska 1994).

     22     See,  e.g., Baird v. Phillips Petroleum Co.,  535  F.
Supp.  1371, 1378 (D. Kan. 1982); Brown v. Keill, 580  P.2d  867,
876 (Kan. 1978).

     23    Travelers Ins., 573 F. Supp. at 1141.

     24    Benner, 874 P.2d at 958.

     25    Polin, supra note 13.

     26    Id. at 759.

     27    Id. at 760.

     28    Neary, 984 P.2d at 517 (footnotes omitted).

     29     A case demonstrating these drawbacks is discussed  in
Olds  v.  Donnelly, 696 A.2d 633, 657-58 (N.J. 1997) (Stein,  J.,
concurring)  (discussing  Rapuano v. Altongy,  No.  A-003854-95T2
(N.J. Sup. Ct. App. Div., April 18, 1997), cert. denied, 697 A.2d
549  (N.J.  1997)).   The plaintiff in Rapuano  was  injured  and
required  surgery as a result of a motor vehicle  collision.   He
sued  both  drivers.  Sixty days before the suit was  settled  he
received  a  report indicating that malpractice was committed  in
the surgery.  He brought a separate suit against the surgeon, but
this was dismissed based on New Jerseys version of the one-action
rule,  called  the  entire  controversy  doctrine.   Noting  that
equitable  consideration  suggests  that  the  sixty-day   window
between receipt of the experts report and the settlement  of  the
automobile accident litigation is too short a time to justify the
extreme  remedy of dismissal of the malpractice claim for failure
to  join  it  in  the  original action and the entirely  distinct
nature of the liability issues, the concurring justice cited this
case  as  one  example  in  support of his  conclusion  that  the
judicial adoption of the one-action rule had been a mistake.

     30    The continuous representation rule applied to statutes
of limitations in some jurisdictions reflects the desirability of
deferring  litigation  against  a potentially  responsible  party
where  there is an ongoing relationship.  See Wettanen v. Cowper,
749  P.2d 362, 365 & n.1 (Alaska 1988); Beesley v. Van Doren, 873
P.2d 1280, 1283 n.4 (Alaska 1994).  The court in Olds v. Donnelly
decided  that New Jerseys version of the one-action  rule  should
not  be  applied to lawyer malpractice cases.  In  reaching  this
conclusion  the court relied on some reasons that are  unique  to
the    lawyer/client   relationship,   such    as    jeopardizing
lawyer/client confidences.  But the court also relied on  reasons
that  are  strategic  and  common to many  ongoing  relationships
between defendants and potential third-party defendants:

          Because the first attorney is now a potential
          witness, that attorneys own interests are  no
          longer  aligned  with those  of  the  client.
          Although  we  do not suggest that potentially
          negligent attorneys would misrepresent facts,
          an  attorney  charged with malpractice,  like
          any  other  litigant, would have an incentive
          to  testify guardedly when sued by  a  former
          client.   Thus,  clients  are  put   in   the
          untenable position of either pursuing a claim
          against their attorney, whose negligence  may
          never  result in an unfavorable  outcome,  or
          forever foregoing a legal-malpractice action.
          Clients   who   are  satisfied   with   their
          attorneys  and want to maintain an  otherwise
          satisfactory  relationship may  for[e]go  the
          right  to sue.  That result does not  provide
          the  fairness  that  the  entire  controversy
          doctrine is designed to encourage.
          
696 A.2d at 642.

     31     Hughes  Thorsness appears to concede  as  much  in  a
footnote in its brief:  Because the judgment between the original
plaintiff  and  defendant could not be altered by  case  two,  it
would seem likely that plaintiff would not bother to contest case
two,  leaving  the original defendants to assert  the  plaintiffs
claim, and the new defendant to argue the empty chair.

     32    See, e.g., Neary, 984 P.2d at 518 (inconsistent results
will not result from failure to adopt one-action rule); Durden v.
Hydro Flame Corp., 983 P.2d 943, 949 (Mont. 1999) (settlement  by
tortfeasor  precludes claims for contribution  against  it);  see
also  Restatement (Third) of Torts: Apportionment of Liab.  23(a)
(2000)  (prior  settlement by defendant a bar  to  liability  for
contribution in subsequent action).

     33     In  California it is called partial  indemnity.   See
American  Motorcycle Assn v. Superior Court, 578 P.2d  899  (Cal.
1978).    As  the  Restatement  notes,  this  is  effectively   a
contribution   remedy.   See  Restatement   (Third)   of   Torts:
Apportionment  of Liab.  23, reporters note to cmt.  (a)  (2000).
See  also  18  Am.  Jur. 2d Contribution  2 (2004)  (noting  that
California uses the term comparative indemnity to refer  to  what
most  jurisdictions call contribution).  Wyoming  refers  to  the
same  remedy  as  comparative  indemnity  for  equitable  implied
indemnity  actions.  Schneider Natl, Inc. v. Holland  Hitch  Co.,
843 P.2d 561, 580 (Wyo. 1992).

     34    705 P.2d 913, 917 (Alaska 1985).

     35    Id. at 917 n.9.

     36    Id. at 915.

     37    Id. at 917.

     38    1 P.3d 98 (Alaska 2000).

     39    Id. at 101-02.

     40    Id. at 105.

     41     Id.  at  105 n.40.  Section 33 of the Proposed  Final
Draft is now  23 of the Restatement.

     42    Id. at 105.

     43    Id.

     44    Id.

     45     Id.  at  106.  In Grinnell we also observed  that  it
appears  that  voters  repealed  these  provisions  [the  Uniform
Contribution   Act   including  the   contribution   statute   of
limitations]  as  superfluous  because a pure  comparative  fault
regime  rendered it theoretically unnecessary for  defendants  to
seek  post-judgment  reimbursement, particularly  given  existing
civil  rules  that generally permit liberal joinder  of  parties.
Id.   This  observation did not take into account  that  the  per
capita   basis  for  contribution  liability  under  the  Uniform
Contribution  Act  was inconsistent with the  comparative  fault-
several liability system of the 1989 initiative.  The observation
was  dictum and does not appear to be supported by the initiative
history set out in Grinnell.  In any case, the Grinnell court did
not  conclude  that the superfluous rationale  meant  that  post-
judgment actions were barred.  Rather, in contemplation  of  such
actions, the court stated that what statute of limitations  would
apply to such actions remained an open question:

               In  the present case, Grinnell filed its
          third-party  complaint for  apportionment  of
          damages  prior  to judgment.  Because  third-
          party  actions of this kind are traditionally
          deemed  to accrue upon judgment or settlement
          our  conclusion  that  Grinnells  action   is
          distinct from McIntires underlying action  in
          tort  makes  it  unnecessary to  decide  what
          period  of  limitation  might  apply  to   an
          apportionment action filed after judgment  or
          settlement.
          
Id. (emphasis added).

     46     See  Georges Radio, Inc. v. Capital Transit Co.,  126
F.2d  219  (D.C. Cir.1942); American Motorcycle Assn v.  Superior
Court of Los Angeles County, 578 P.2d 899 (Cal. 1978); Skinner v.
Reed-Prentice Div. Package Mach. Co., 374 N.E.2d 437 (Ill. 1977);
Best v. Yerkes, 77 N.W.2d 23 (Iowa 1956); Quatray v. Wicker,  151
So.  208  (La. 1933); Roberts v. American Chain & Cable Co.,  259
A.2d 43 (Me. 1969); Underwriters at Lloyds v. Smith, 208 N.W.  13
(Minn. 1926); Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d
727 (Mo. 1982); Royal Indemnity Co. v. Aetna Cas. & Sur. Co., 229
N.W.2d  183  (Neb. 1975); Dole v. Dow Chem. Co., 282  N.E.2d  288
(N.Y.  1972); Goldman v. Mitchell-Fletcher Co., 141 A.  231  (Pa.
1928);  Davis  v. Broad St. Garage, 232 S.W.2d 355 (Tenn.  1950);
Sitzes  v.  Anchor  Motor Freight, Inc., 289  S.E.2d  679  (W.Va.
1982);  Bielski v. Schulze, 114 N.W.2d 105 (Wis. 1962); Schneider
Natl, Inc. v. Holland Hitch Co., 843 P.2d 561 (Wyo. 1992).

          Some   of  these  decisions  were  later  legislatively
codified.  E.g., Illinois Joint Tortfeasor Contribution Act,  740
Ill.  Comp.  Stat. 100/0.01 to 100/5; Uniform Contribution  Among
Tort-feasors   Act,  42  Pa.  Cons.  Stat.   8321-8327;   Uniform
Contribution  Among Tort-feasors Act, Tenn. Code Ann.   29-11-101
to 29-11-106.

     47    578 P.2d 899 (Cal. 1978).

     48    Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975).

     49    578 P.2d at 902.

     50    Id. (quoting Li, 532 P.2d at 1232).

     51    Id.

     52    Id. at 913.

     53    Id. at 908.

     54    Id. at 914.

     55    Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727
(Mo. 1982); Dole, 282 N.E.2d at 288.

     56     Gem Developers v. Hallcraft Homes of San Diego, Inc.,
261  Cal.  Rptr.  626,  631 (Cal. App.  1989)  (As  part  of  the
comparative equitable indemnity doctrine, a defendant who is sued
has  a  right  to  bring in other tortfeasors who  are  allegedly
responsible for plaintiffs action through a cross-complaint or by
a  separate  complaint  for equitable indemnification.);  Safeway
Stores,  633 S.W.2d at 731-32 & n.6; Schneider, 843 P.2d  at  579
(additional proceedings permitted).

     57     See  Restatement  (Second)  of  Torts   886A  (1977),
supplanted  by  Restatement (Third) of Torts:   Apportionment  of
Liab.  23 (2000).

     58     Restatement (Third) of Torts:  Apportionment of Liab.
23, comment f, c & illustration 4 (2000).

     59     This  is  the comment referred to by  this  court  in
Grinnell,  1  P.3d  at 105 n.40, as part of  what  was  then  the
proposed final draft to the since-renumbered section 33.

     60     See supra page 14.  Benner held that fault should  be
assessed  only against parties (including third-party  defendants
and   settling   parties),  not  other  persons  who   might   be
responsible.   We  also  observed  in  Benner  that  the   [1989]
initiative  did  away with one category of claims   contribution.
874  P.2d  at  956.   This was a reference to the  statutory  per
capita  contribution system that was repealed by the  initiative,
not to common law contribution.

     61    See supra pages 11-13, 15-17.

     62    Under the federal rules on which our Civil Rules 14(a)
and  (b)  are  based  impleader  is  always  permissive  and  not
compulsory.  As Moore states: The impleader rule provides that  a
defending party may implead, not that it shall or must and  if  a
defending party fails to use impleader . . . that defending party
remains free to sue the third-party separately to assert a  right
of  indemnity or contribution. 3 James Wm. Moore Et  Al.,  Moores
Federal  Practice  14.03[3] (3d ed. 1997) (emphasis in original).
Although  Civil  Rule 14(c) is unique to Alaska  it  is,  by  its
terms,  permissive and it bears no indication that claims  coming
within its purview, unlike other claims covered by Civil Rule 14,
are to be regarded as compulsory.

     63    850 P.2d 628 (Alaska 1993).

     64     See  Restatement (Third) of Torts:  Apportionment  of
Liab.  23(a) and (b) (2000):

               (a)  When two or more persons are or may
          be  liable for the same harm and one of  them
          discharges   the  liability  of  another   by
          settlement  or  discharge  of  judgment,  the
          person  discharging the liability is entitled
          to   recover  contribution  from  the  other,
          unless  the  other  previously  had  a  valid
          settlement and release from the plaintiff.
          
               (b)   A   person  entitled  to   recover
          contribution  may recover no  more  than  the
          amount paid to the plaintiff in excess of the
          persons comparative share of responsibility.
          
     65     Valdez Fisheries Dev. Assn, Inc. v. Alyeska  Pipeline
Serv. Co., 45 P.3d 657, 664 (Alaska 2002).

     66     See Criterion Ins. Co. v. Laitala, 658 P.2d 112,  118
(Alaska 1983) (Rabinowitz, J., concurring).

     67     AS  09.17.900.  In 1997 AS 09.17.900 was  amended  to
include intentional acts or omissions.

     68    See Borg-Warner, 850 P.2d at 633-34.

     69    Id. at 633.

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