Shiflet v. Eller

• Decision Date: 07 September 1984
• Docket Number: No. 812254,812254
• Citation: 319 S.E.2d 750,228 Va. 115
• Parties: Harvey H. SHIFLET, III, et al. v. Murray L. ELLER, Jr. Record
• Court: Virginia Supreme Court

Page 750

319 S.E.2d 750

228 Va. 115

Harvey H. SHIFLET, III, et al. v. Murray L. ELLER, Jr.

Record No. 812254.

Supreme Court of Virginia.

Sept. 7, 1984.

Wayne Lustig, Virginia Beach (Guy, Cromwell, Betz & Lustig, P.C., Virginia Beach, on brief), for appellants.

John S. Norris, Jr., Norfolk (Williams, Worrell, Kelly & Greer, P.C., Norfolk, on brief), for appellee.

Present: All the Justices.

COMPTON, Justice.

This is the appeal of two negligence cases. In each case a joint tort-feasor had been released by the plaintiffs. Subsequently, the trial court refused to apply the 1979 covenant-not-to-sue statute and ruled that the other joint wrongdoer also had been released. The sole question is whether the statute affects substantive rights of joint tort-feasors or merely impacts procedural aspects of their remedy.

In October of 1977, a motor vehicle operated by appellant Mary W. Shiflet, in which appellant Harvey W. Shiflet, III was a passenger, was in collision with two other motor vehicles in the City of Virginia Beach. The other vehicles were operated by Everette F. Horton and appellee Murray L. Eller. In separate damage suits filed in 1979, the Shiflets sued Horton and Eller seeking judgments against the defendants jointly and severally. The plaintiffs asserted the defendants were guilty of simple negligence that proximately caused their injuries.

Effective July 1, 1979, the General Assembly enacted Code § 8.01-35.1, the statute in question. Acts 1979, ch. 697. ¹

In May of 1981, the Shiflets settled their respective claims with defendant Horton, executing separate documents labelled "Release or Covenant Not To Sue Agreement Pursuant to Virginia Code Section 8.01-35.1, As Amended." These documents discharged Horton from further liability to the Shiflets and purported to reserve all claims or rights that the Shiflets had against Eller. Thereafter, the trial court sustained pleas of release filed by Eller and dismissed with prejudice the plaintiffs' suits against him. We awarded the plaintiffs appeals from the September 1981 final orders and consolidated the cases; for clarity, we will treat them as one.

The plaintiff contends the trial court's ruling that the release of one joint tort-feasor released both ignored the provisions of the statute in question and the terms of the release document, which was drawn in strict compliance with the statute. The court below erred, the plaintiff argues, in refusing to apply the 1979 statute to the 1981 release document, even though the plaintiff's cause of action for damages arose in 1977.

The plaintiff admits that prior to the 1979 enactment of Code § 8.01-35.1, the release of one joint wrongdoer released all joint tort-feasors. Wright v. Orlowski, 218 Va. 115, 120, 235 S.E.2d 349, 352 (1977). Additionally, the plaintiff notes there may be contribution among wrongdoers when the wrong results from negligence and involves no moral turpitude. Code § 8.01-34. The plaintiff also points to the settled rule of construction that statutes are usually presumed to be prospective and not retrospective in their operation, recognizing that legislative enactments may not impair contractual rights nor may vested property interests be destroyed. Duffy v. Hartsock, 187 Va. 406, 417, 46 S.E.2d 570, 574-75 (1948). Nevertheless, the plaintiff notes, an enactment may operate retroactively if it relates solely to matters of remedy. Id., 46 S.E.2d at 575. Continuing, the plaintiff says "vested right" has been defined as "a right, so fixed that it is not dependent on any future act, contingency or decision to make it more secure." Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 45, 124 S.E. 482, 484 (1924).

The plaintiff contends that when the foregoing principles are applied to the present case, application of the 1979 covenant-not-to-sue statute to the 1981 transaction does not "disturb Eller's so-called vested right of discharge." According to the plaintiff, until such time as payment or settlement by a joint tort-feasor has been made, the discharge of Eller remains a mere possibility, contingent on a future event, and therefore cannot be considered vested.

Analogizing to Walke v. Dallas, Inc., 209 Va. 32, 161 S.E.2d 722 (1968), in which we applied the long-arm statutes retroactively and said they create no new cause of action and take away no existing right or remedy, the plaintiff argues that the statute in question likewise creates no new cause of action and does not take away existing rights. Instead, the plaintiff urges, the statute merely creates for a plaintiff a new means by which a plaintiff may pursue its claim. The plaintiff argues: "Like the long arm statutes, Section 8.01-35.1 only operates in the furtherance of the remedy of rights already existing, and thus the statute does not affect the claim itself, but merely affects those consequences which a subsequent, collateral event has upon a claim." See Hurdle v. Prinz, 218 Va. 134, 235 S.E.2d 354 (1977).

The defendant Eller contends that the plaintiff erroneously dwells on the existence of a "vested" right instead of properly focusing on the presence of a "substantive" right. He argues that the proper analysis is simply to determine whether or not a right of contribution, regardless of when it ripens, involves substantive or procedural rights. Eller argues that if any substantive right is involved, "then any statute affecting that right cannot be applied retroactively to a cause of action which accrued prior to enactment of" the statute in question. He contends the trial court properly decided, in the court's language, "that the substantive rights of the participants were determined in 1977, when this cause of action arose." Thus, Eller concludes, the trial court correctly applied the 1977 law to the 1977 cause of action and decided that the release of one joint wrongdoer released the other. We agree with Eller.

Preliminarily, we observe that "substantive" rights, as well as "vested" rights, are included within those interests protected from retroactive application of statutes. The concept of protection of substantive rights was incorporated by the General Assembly into Virginia civil procedure with the enactment of Title 8.01, effective October 1, 1977. Specifically, § 8.01-1 provides for retroactive application of all provisions of the Title, unless a particular provision "may materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy) ...." Substantive rights, which are not necessarily synonymous with vested rights, are included within that part of the law dealing with creation of duties, rights, and obligations, as opposed to procedural or remedial law, which prescribes methods of obtaining redress or enforcement of rights. Black's Law Dictionary 1281 (5th ed. 1979). "While all vested rights may be considered substantive ... it does not necessarily follow that the only subject matter that is considered to be substantive is that which relates to vested rights." Joseph v. Lowery, 261 Or. 545, 550, 495 P.2d 273, 276 (1972).

Next, we must determine the nature of the right of contribution and when it comes into existence, keeping in mind the difference between a cause of action and a right of action. A right of action is a remedial right to presently enforce a cause of action; operative facts giving rise to a right of action comprise a cause of action. First Virginia Bank-Colonial v. Baker, 225 Va. 72, 81, 301 S.E.2d 8, 13 (1983). "While a cause of action and a right of action may accrue simultaneously, they do not necessarily do so." Id., 301 S.E.2d at 13.

In the case of contribution, the cause of action and the right of action do not arise at the same time. "[T]here is a valid distinction between the accrual of the equitable, inchoate right to contribution that arises at the time of jointly negligent acts and the maturation of the right to recover contribution that arises only after payment of an unequally large share of the common obligation." Nationwide Mutual Insurance Co. v. Minnifield, 213 Va. 797, 799, 196 S.E.2d 75, 77 (1973). Stated differently, the right to recover contribution "arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable," Bartlett v. Roberts Recapping, Inc., 207 Va. 789, 793, 153 S.E.2d 193, 196 (1967), while the cause of action for contribution arises at the time of the jointly negligent acts. "Once in being, although contingent, subordinate, or inchoate, [the cause of action] has an existence in contemplation of law until it is no longer needed as a resource to which the joint tortfeasor may look for relief from an inequitable burden placed upon him by reason of the refusal of another to perform such other's duty by paying his honest share of the common obligation." Distefano v. Lamborn, 46 Del. 195, 203-04, 81 A.2d 675, 679 (Del.Super.Ct.1951). This cause of action is a substantive right manifested by the ability of one tort-feasor to seek contribution from another wrongdoer jointly liable and by the ability of a joint wrongdoer to defend successfully a suit by the plaintiff after the plaintiff has released another joint tort-feasor.

Because the cause of action for contribution accruing to Eller, a joint tort-feasor, arose at the time of the jointly negligent acts in October of 1977, it necessarily follows that the 1979 statute in question, which adversely affects that substantive right, cannot be applied retroactively to impair that right. Carickhoff v. Badger-Northland, Inc., 562 F.Supp. 160, 164 (W.D.Va.1983). Such a retroactive application of the enactment would violate Eller's due process rights and would be invalid. Duffy v. Hartsock, 187 Va. at 416, 46 S.E.2d at 575. See Strickland v. Simpkins, 221 Va. 730, 734, 273 S.E.2d 539, 541 (1981).

The plaintiff has referred us to ca...