delivered the Opinion of the Court.
Honorable Jack D. Shanstrom, United States Magistrate, United States District Court for the District of Montana has certified for our decision under Rule 44, Montana Rules of Appellate Procedure, a question of law as follows:
“Plaintiff commences a negligence action against defendant #1. Defendant #1 in turn joins defendant #2 seeking contribution. Prior to trial, defendant #1 settles with thе plaintiff in return for a general release of all claims, including claims against defendant number 2. Can defendant #1 continue its action for contribution against defendant #2 under Montana lаw?”
In connection with the certified question, agreed facts, stipulated to by the parties and approved by the Magistrate have been submitted. They are as follows:
“Plaintiff, Jonathаn B. Sprinkle, was injured while in the course and scope of his employment with the defendant, Burlington Northern Railroad Company (BN). He commenced this action against BN pursuant to the Federal Employers’ Liability Act (FELA) 45 U.S.C. §§ 51, et seq., alleging negligence on the part of BN. BN subsequently joined Tire Guys, d/b/a Tire-Rama, as a third party defendant alleging negligence and seeking contribution pursuаnt to § 27-1-703, MCA.
“Before trial, BN settled with Sprinkle and received a general release of all claims, including claims, if any, against Tire Guys. BN is pursuing its claim for contribution against Tire Guys. Tire Guys has moved for summary judgment contending that BN no longer has a cause of action against it.”
We determine in this case that under Montana law as it existed and is pertinent to these facts, BN has no right of contribution against Tire Guys. The answer to the certified question therefor is, “no.”
All parties agree, including amici curiae, that there was no right of contribution between joint tortfeasors at сommon law, and that in Montana, a right to contribution, if any exists, must be found in statutory law.
Consolidated Freightways Corporation of Delaware v. Osier
(1979),
“Section 27-1-703. Multiple defendants jointly and severally liable — right of contribution (1) Whenever the negligence of any party in any action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.
“(2) On motion оf any party against whom a claim is asserted for negligence resulting in death or injury to person or property, any other person whose negligence may have contributed аs a proximate cause to the injury complained of may be joined as an additional party to the action. Whenever more than one person is found to have contributed as a proximate cause to the injury complained of, the trier of fact shall apportion the degree of fault among such persons. Contribution shall be proportional to the negligence of the parties against whom recovery is allowed. Nothing contained in this section shall make any party indispensable pursuant to Rule 19, M.R.Civ.P.
“(3) If for any reаson all or part of the contribution from a party liable for contribution cannot be obtained, each of the other parties against whom recovery is allowed is liable to contribute a proportional part of the unpaid portion of the noncontributing party’s share and may obtain judgment in a pending or subsequent action for contribution from the noncontributing party. (Emphasis added.)”
The foregoing statute was interpreted by us in
State ex rel. Deere and Company v. District Court
(1986), [
*386 Wade’s Backhoe filed a third рarty complaint against Deere seeking indemnity and contribution. Subsequently Deere filed a motion for summary judgment relying on the release signed by Campbell. The District Court denied Deere’s mоtion for summary judgment. Deere then sought and was granted a writ of supervisory control before this Court.
In resolving the contribution issue in favor of Deere we explained as follows;
“In Montana, there is but one statute on the subject, the amended § 27-1-703, MCA, and from it we determine that a joint tortfeasor who settles with a claimant before judgment on the claim is entered in a district court is not subject to claims for contribution or indemnity from the nonsettling joint tortfeasors against whom judgment may be rendered. Even though the amended section does give a sued joint tortfeasor the right tо bring in other joint tortfeasors as defendants in order to insure contribution, and even though the section states that the trier of fact is to determine the degree of negligence among each of the joint tortfeasors, the right of contribution under the amended statute is “proportional to the negligence of the parties against whom recovery is allowed.” Clearly that statutory language excludes a party against whom recovery is not allowed, e.g., a tortfeasor who has previously settled.
“Consequently, under amended § 27-1-703, there is no right of contributiоn under Montana law in favor of a joint tortfeasor or tortfeasors against whom judgment for the plaintiff is entered from other joint tortfeasors who have settled with the plaintiff prior tо judgment. (Emphasis added.)”
In Deere, the nonsettling joint tortfeasor, against whom the tort action remained, sought contribution from a settling tortfeasor before entry of judgment. (In using the term “joint tortfeasor” wе intend to include the term “concurrent tortfeasor”). In this case the settling tortfeasor has taken a full release from the plaintiff which completely settles plaintiff’s claim agаinst all tortfeasors, but seeks contribution for the settlement before judgment from the nonsettling tortfeasor. Regardless of the change in positions here as between the joint tortfeasors, the principle announced in Deere remains the same. The plaintiff’s case has ended and the nonsettling tortfeasor is not one “against whom recovery is allowed.” As we said in Deere, supra, that statutory language excludes from any duty of contribution a party against whom recovery is not allowed.
*387
We have been consistent in following the principle set out in
Deere.
In
North v. Bunday
(1987), [226] Mont. [247],
In
Sevalstad v. Glaus
(1987), [227] Mont. [117],
“In Deere, we held that ‘a joint tortfeasor who settles with a claimant before judgment on the claim is entered in a district court is not subject to claims for contribution or indemnity from the nonsettling joint tortfeasors against whom judgment may be rendered. (Citations omitted.)’ Deere is controlling, not withstanding § 27-1-703, MCA, which gives a joint tortfeаsor the right to bring in other tortfeasors in order to insure contribution.
“Accordingly, Glaus has no right of contribution against Neifert, since Neifert was dismissed with prejudice from the action brought by Sevalstаd.”
BN contends that the legislature, in adopting § 27-1-703, MCA, intended to provide a right of contribution that would be consonant with the Uniform Contribution Among Tortfeasors Act (UCATA), although Montana has never adоpted that act. The provisions of UCATA are not helpful however to BN. For one thing § 2(a) of UCATA provides that the “relative degrees of fault cannot be considered.” In other words, under UCATA, the fault of the respective defendants is not compared, but the right of contribution is based upon per capita rather than pro rata fault. UCATA was first proposed before the general adoption by the several states of comparative negligence law in tort cases. As a result those states that adopted UCATA have had to amend their statutes to account for the problems that arise out of comparative negligence. The usual result is that the states have abandoned UCATA as having no effect when comparative negligence is the rule. See, e.g.,
Bartlett v. New Mexico Welding Supply Inc.
(App.1982),
We therefore hold that since, under the facts submitted, a recovery by the plaintiff against Tire Guys is not possible, a right of contribution for BN under § 27-1-703, MCA, does not exist. We therefore answer the certified question “No.”