joined by RABINOWITZ, Justice, concurring.
My difference with the majority opinion is that it treats this case as though Providence Washington were seeking contribution as a subrogee of Turner, rather than of Turner and Varney. The former is the way Providence Washington initially pled this case. However, McGee, in his motion for judgment on the pleadings, assumed that Providence’s action was derivative of Varney’s rights: “If Mr. Varney cannot sue, they cannot sue.” In response, Providence Washington argued that it was sub-rogated to the claims of Turner and of Varney. In reply, McGee pointed out that only a joint tortfeasor can sue for contribution, and since Turner had not been alleged to have been negligent, he was not a tort-feasor: “Unless and until plaintiff is willing to plead and prove that Mr. Turner is in some manner negligent, there simply is no right of contribution derived from him.” There the matter rested until the eve of trial.
In Providence Washington’s objections to McGee’s proposed jury instructions, Providence Washington stated that Varney was the joint tortfeasor:
This is a complaint for contribution pursuant to AS 09.16.010. By definition, such an action is between joint tort-feasors and the claimant based on common liability. The plaintiff admits and alleges in its initial complaint that the accident was caused by Varney’s and McGee’s negligent operation of their respective vehicles and that the two are liable for damages proximately resulting from the accident as joint and several tortfeasors.
Providence Washington went on to state: “By bringing this complaint, Varney has conceded his negligence and is asserting his right for contribution from a joint tort-feasor, Mr. McGee.”
On appeal, Providence Washington claims subrogation rights both from Var-ney and Turner. McGee’s brief as appellee optimistically states that Providence Washington has abandoned the theory that its contribution rights come from Turner. In reply, Providence Washington does not respond to the claim that it has abandoned its position that it is a subrogee of Turner; however, its primary argument relates to its subrogation rights derivative from Var-ney.
Thus, Providence Washington seems to believe that it is suing as a subrogee of Turner and Varney, and McGee asserts that Providence Washington must be suing only as a subrogee of Varney. Both parties at least agree that Providence Washington claims subrogation rights from Var-ney. Under these circumstances it seems right to consider the complaint amended under Civil Rule 15(b) to state an additional contribution claim derived from Varney. Indus. Indem. Co. v. Wicks Constr. Co., 680 P.2d 1100, 1103 (Alaska 1984); Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984).
Considering the complaint as so amended, I agree with the majority opinion that dismissal was inappropriate for the reasons there expressed.