NANCY A. ROBERTSON & another vs. RICHARD F. MCCARTE & another.

HALE, C.J. A Superior Court judge allowed the defendants' motion for dismissal pursuant to Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), in an action in which the plaintiffs sought contribution for sums paid by them in settlement of claims arising from an automobile accident. The single issue presented is whether one of two or more joint tortfeasors who enters into a settlement with a claimant which releases all tortfeasors may recover contribution from the other wrongdoer(s) under G. L. c. 231B.

The complaint alleges that the plaintiff Jerome L. Robertson was driving an automobile which struck a three year old boy, Mark Shapiro; that the other plaintiff and owner of the automobile, Nancy A. Robertson, was riding in the car at the time; that Mark was under the supervision of the defendant Karen L. McCarte and playing at the home of Karen and Richard F. McCarte when he darted from their driveway into the path of the automobile; and that the accident

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was caused by Karen's negligent failure adequately to supervise the boy and by Karen and Richard's negligence in allowing shrubbery to grow on their property in such a manner as to obscure Jerome's vision so that he could not see the boy run into the street.

The complaint further alleges that an investigation was conducted on behalf of the plaintiffs from which it appeared that, as a result of the accident, Mark had sustained injuries and hospital expenses which could be the basis for a substantial recovery. A settlement was entered into for $75,000, and a release was given by Mark's parents for themselves and on his behalf which ran in favor of both Robertsons and both McCartes. The Robertsons (or their insurer) paid [Note 1] the full amount of the settlement, pursuant to G. L. c. 231B. The motion to dismiss was grounded on G. L. c. 231B, Section 4(b), which states that a release given to one of two or more joint tortfeasors in good faith discharges that tortfeasor from liability for contribution to any other tortfeasor. We reverse the judgment of dismissal.

The text of G. L. c. 231B, Section 4, as set out in the margin, [Note 2] cannot be read in isolation but must be read in context with the other sections of that chapter and "`considered in connection with the cause of its enactment, the mischief . . . to be remedied and the main object to be accomplished, to the

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end that the purpose of its framers may be effectuated.' [citations omitted]." Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975). It has been recognized as "plain that the evil to be remedied [by c. 231B] was the unfairness of allowing a disproportionate share of the plaintiff's recovery to be borne by one of several joint tortfeasors, and the object to be accomplished was a more equitable distribution of that burden among those liable in tort for the same injury." Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648 (1978).

Section 1(a) of c. 231B establishes a right of contribution even though no judgment has been entered against the tortfeasors, a situation which can arise only when a payment has been made under a settlement agreement. Section 1(c) contemplates that a tortfeasor who settles with a claimant is entitled to contribution only to the extent that the settlement entered into was reasonable. Furthermore, Section 3(d), which prescribes the statute of limitations in contribution actions, expressly establishes that a right to contribution exists only for a tortfeasor who has settled with the claimant and discharged by payment the common liability, as happened in this case. [Note 3] As the Commissioners' Comment to the Uniform Contribution Among Tortfeasors Act, 12 U.L.A. 63 (Master ed. 1975), states, "[I]t is only fair to give [one who discharges the entire obligation through a general release] contribution from those whose liability he has discharged." [Note 4] Id. at 65.

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The effect of Section 4 is to provide in subsection (a) that a release or covenant not to sue given in good faith to one of a number of joint tortfeasors does not release those not named in the release or covenant. (Under the common law a release to only one tortfeasor would discharge all other tortfeasors from liability. Matheson v. O'Kane, 211 Mass. 91, 93 [1912].) Subsection (b) provides only that such a release discharges those to whom it is given from liability for contribution to those not covered under it. Section 4 does not apply to the situation in this case, where both parties were named in the same release. This interpretation will "advance rather than defeat the purpose[s] of the statute," Hayon v. Coca Cola Bottling Co., 375 Mass. at 648-649, which are to encourage settlements by providing that one who buys his peace will not be subject to further liability for contribution to a joint tortfeasor who litigates and subjects himself to a large money judgment, and to allow one who buys the peace of all to be reimbursed from those whom he has benefited. See Bishop v. Klein, 380 Mass. 285, 293-294 (1980); Commissioners' Comments to Sections 1(d) and 4(b), Uniform Contribution Among Joint Tortfeasors Act, supra at 65, 100. This interpretation has also been recognized in other jurisdictions. See, e.g., O'Keefe v. Baltimore Transit Co., 201 Md. 345 (1953); Swartz v. Sunderland, 403 Pa. 222 (1961); Zarrella v. Miller, 100 R.I. 545 (1966).

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As the parties do not raise the sufficiency of the pleadings in any other respect, [Note 5] we reverse the judgment and remand the case for further proceedings.

So ordered.