concurring.
I agree with the court’s holding that Criterion has a right to contribution from Lai-tala, but disagree with its analysis.
AS 09.16.010(d) provides that a “tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury ... is not extinguished by the settlement ...” The court asserts that under this provision Laitala “would not be obligated to contribute” if the 1978 agreement between the Shoatses and Criterion’ “did not discharge other tortfeasors from liability.” If the majority’s construction of AS 09.16.010(d) is correct, I cannot see how Criterion is entitled to any contribution from Laitala. The statute of limitations ran on the Shoatses’ claim against Laitala in 1977. Therefore, the 1978 agreement, regardless of whether it is construed as a satisfaction, could not and did not discharge Laitala’s liability to the Shoatses. Its failure to do so should, under the court’s construction of AS 09.16.010(d), bar any contribution action by Criterion against Laitala.1
I think that the court has misconstrued AS 09.16.010(d). That provision was designed to accommodate an agreement between a tortfeasor and the injured party in which the injured party, in exchange for a payment less than the entire liability, discharged the settling tortfeasor’s liability without discharging the liability of other tortfeasors.2 The liability discharge requirement found in AS 09.16.010(d) was intended to protect a non-discharged tort-feasor in this situation from being sued by both the settling tortfeasor and the injured person.3 In my view, AS 09.16.010(d) has no application in a case where at the time the settling tortfeasor entered into the agreement with the injured person, the other tortfeasor was protected by the statute of limitations. Therefore, Criterion, which has paid more than its pro rata share of the Shoatses’ damages, should be allowed to recover contribution from Laitala, despite the fact that its agreement with the Shoats-es did not discharge Laitala’s liability.
I agree with all other aspects of the court’s opinion.
.The court avoids the conflict between its construction of AS 09.16.010(d) and the facts of the present case by failing to discuss whether the 1978 agreement could, in any meaningful sense, be said to have extinguished Laitala’s liability to the Shoatses. It seems more reasonable to conclude that since Laitala was protected by the statute of limitations in 1978, the Shoatses and Criterion probably did not consider him in reaching their agreement.
. Uniform Contribution Among Tortfeasors Act § 1(d) commissioners’ comment d, 12 U.L.A. 65 (1975); Uniform Contribution Among Tort-feasors Act § 2(3) commissioners’ note 3, 9 U.L.A. 236 (1957) (1939 version of Act, revised 1955).
. Without this requirement, it is conceivable that a tortfeasor could settle for far less than the total damages the injured person was seeking and then obtain contribution from the non-discharged tortfeasor who would still be liable for the remainder of the injured person’s damages in a later lawsuit. AS 09.16.040(2) would protect the first tortfeasor from a contribution action by the second.