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2007 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 8.01-35.1 of the Code of Virginia is amended and reenacted as follows:
§ 8.01-35.1. Effect of release or covenant not to sue in respect to liability and contribution.
A. When a release or a covenant not to sue is given in good
faith to one of two or more persons liable in tort for the same injury,
or the same property damage to a person or property, or the same
wrongful death:
1. It shall not discharge any of the other tort-feasors
person from liability for the injury, property damage or wrongful death
unless its terms so provide; but any amount recovered against the other tort-feasors
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. In determining the amount of consideration given for
a covenant not to sue or release for a settlement which consists in whole or in
part of future payment or payments, the court shall consider expert or other
evidence as to the present value of the settlement consisting in whole or in
part of future payment or payments. A release or covenant not to sue given
pursuant to this section shall not be admitted into evidence in the trial of
the matter but shall be considered by the court in determining the amount for
which judgment shall be entered; and
2. It shall discharge the tort-feasor person to
whom it is given from all liability for contribution to any other tort-feasor
person liable for the same injury to person or property or the same wrongful
death.
B. A tort-feasor person who enters into a
release or covenant not to sue with a claimant is not entitled to recover by
way of contribution from another tort-feasor person whose
liability for the injury, property damage or wrongful death is not extinguished
by the release or covenant not to sue, nor in respect to any amount paid by the
tort-feasor person which is in excess of what was reasonable.
C. For the purposes of this section, a covenant not to sue
shall include any "high-low" agreement whereby a party seeking
damages in tort for injury to a person or property, or for wrongful
death, agrees to accept as full satisfaction for any judgment no more than
one sum certain and the party or parties from whom the damages are sought agree
to pay no less than another sum certain regardless of whether any judgment
rendered at trial is higher or lower than the respective sums certain set forth
in the agreement and whereby such party provides notice to all of the other tort-feasors
parties of the terms of such "high-low" agreement immediately
after such agreement is reached.
D. A release or covenant not to sue given pursuant to this section shall be subject to the provisions of §§ 8.01-55 and 8.01-424.
E. This section shall apply to all such covenants not to sue executed on or after July 1, 1979, and to all releases executed on or after July 1, 1980. This section shall also apply to all oral covenants not to sue and oral releases agreed to on or after July 1, 1989, provided that any cause of action affected thereby accrues on or after July 1, 1989. A release or covenant not to sue need not be in writing where parties to a pending action state in open court that they have agreed to enter into such release or covenant not to sue and have agreed further to subsequently memorialize the same in writing.