dissenting in part: While I question the majority’s inference that we have never approved the active-passive negligence doctrine as a basis for indemnity, see Morrissette v. Sears, Roebuck & Co., 114 N.H. 384, 387, 322 A.2d 7, 9 (1974); Wentworth Hotel v. Gray, Inc., 110 N.H. 458, 461, 272 A.2d 583, 585 (1970), I agree-that the doctrine should have no effect under our law in the future. In conjunction with this ruling, however, I would permit contribution on a comparative basis among non-settling joint tortfeasors.
The current rule prohibiting contribution among joint tortfeasors is grossly inequitable because it permits a joint tortfeasor to avoid liability if he is not sued, while it forces the tortfeasor who is sued to bear the entire burden of a loss, even if he was only marginally at fault. Numerous jurisdictions have recognized this inequity and have adopted contribution either by court decision or by statute. See W. Prosser, Handbook of the Law of Torts § 50, at 306-07 (4th ed. 1971).
I cannot agree with the majority that the adoption of contribution among joint tortfeasors should be left to the legislature. The current no-contribution rule was adopted through the judicial process and may be modified or abolished by that process. See, e.g., Best v. Yerkes, 247 Iowa 800, 810, 77 N.W.2d 23, 29 (1956); Hobbs v. Hurley, 117 Me. 449, 451-53, 104 A. 815, 816-17 (1918); Ellis v. Chicago & N.W. R. Co., 167 Wis. 392, 409-10, 167 N.W. 1048, 1053-54 (1918). Furthermore, the enactment of the comparative negligence statute, RSA 507:7-a (Supp. 1979), has signaled a legislative preference for proportionate allocation of fault, and comparative contribution would foster the legislative policy.
The limitation of contribution to non-settling parties would insure that a settling party who in good faith obtained a covenant not to sue would be relieved of any further involvement or liability after the execution of the settlement agreement. See Uniform Contribution Among Tortfeasors Act, 9 U.L.A. § 4(b) and accompanying commissioner’s comment, at 98-100 (1955 rev. act). If several non-settling parties remained, then their liability could be determined on a relative or comparative basis after opportunity for impleader. It must be noted, however, that the current versions of RSA 507:7-b (Supp. 1979) and RSA 507:7-c (Supp. 1979) would pose a practical barrier to the proportionate allocation of fault when, as a result of prior settlements, only one party remained in the litigation.
In cases not involving settlement agreements, a defendant could easily be permitted to implead other tortfeasors, subject to the trial *263judge’s discretion to sever the underlying action from the contribution suits. This process would protect the underlying plaintiff’s interests, guarantee the proportionate allocation of fault, and promote judicial economy.
Because Emhart has settled in the underlying suit, I would agree that it should not be liable to CUES in indemnity or contribution. Nevertheless, I would permit CUES to seek contribution against any non-settling parties.