dissenting in part:
I agree with Part III of the majority opinion reversing the award of attorneys fees. I respectfully dissent to Part I of the opinion which abolishes the common law doctrine of indemnity.
The majority opinion initially recognizes that contribution and indemnity are analytically quite distinct concepts. Slip op. at 1295. Contribution and indemnity are mutually exclusive remedies. Restatement (Second) of Torts § 886A(4) (1979). They are universally distinguished. Neither contribution nor indemnity are tort actions, but the right to contribution arises from payment by one joint tortfeasor of more than his proportionate share of loss, see, e.g., Coniaris v. Vail Associates, Inc., 196 Colo. 392, 586 P.2d 224 (1978), whereas indemnity arises out of the existence of a pre-tort duty. See Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977); see generally Restatement (Second) of Torts § 886B (1979). Contribution comes into play after a judgment has been entered against joint tortfeasors in favor of an injured party, and requires that each of the culpable tortfeasors contribute to the total amount of damages that portion which relates to each tortfeasor’s proportionate share of the responsibility. On the other hand, indemnity arises from a duty of care which one tortfeasor owes to the other tortfeasor, and that duty is unrelated to any duty of care owed by the tortfeasors to the injured party. While both concepts share the common result of apportioning the responsibility to pay damages to an injured party among parties who may have each been negligent, each concept is based upon different theoretical bases.
Contribution produces more equitable results because the proportionate share of responsibility for damages is directly related to each tortfeasor’s proportionate fault in causing the injury. Indemnity, on the other hand, results in an “all or nothing” determination whereby the party who is the “primary” cause of the injured party’s damages may be required to carry the burden of the entire loss. Jacobson v. Dahlberg, 171 Colo. 42, 464 P.2d 298 (1970). Thus, an indemnity analysis fails to take into account the comparative fault of the joint tortfeasors.
*1301While recognizing the distinction between the concepts of contribution and indemnity, and also the sometimes inequitable results of the application of indemnity principles, the majority then concludes that the doctrine of contribution can serve the same purpose as the doctrine of indemnity and, based on that premise, proceeds to abolish the common law doctrine of indemnity between joint tortfeasors, except possibly in cases involving vicarious liability. I disagree with this conclusion.
The General Assembly, by its adoption of the Uniform Contribution Among Tort-feasors Act, section 13-50.5-101 to -106, 6 C.R.S. (1985 Supp.), obviously did not intend the result reached by the majority opinion. The Act specifically preserved rights of indemnity in section 13-50.5-102(6).1 I do not agree that the court should do away with the right of indemnity when the General Assembly, by the plain language of the statute, recognized that the Act was not intended to impair any right of indemnity under existing law.
The question of whether indemnity or contribution exists as a remedy is governed by the facts of the case. In the matter at hand, the trial court found the right to indemnity arose out of a pre-existing duty owed by Broehner to the hospital. The record reflects that the hospital’s executive committee required Broehner to obtain consultations before performing craniotomies if the relevant radiographic evidence did not clearly establish pathology. The evidence shows that the hospital was aware of Brochner’s performance of needless cranio-tomies over a period of at least three years. As a result, the hospital required Broehner to consult before performing this surgical procedure. No such consultation took place in this case. Having agreed to do so, a duty existed between Broehner and the hospital to follow the required procedure. Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977); Nai-man v. Flickinger, 43 Colo.App. 279, 605 P.2d 63 (1980). I would conclude that under the facts of this case, the prerequisites for the application of indemnity principles existed. The trial court’s conclusion that Brochner’s negligence was active while the hospital’s negligence was passive or an error of omission in failing to supervise a staff physician supports the award of damages in favor of the hospital and against Broehner. Requiring the physician to bear the full extent of the loss highlights the result which may occur in application of indemnity principles as established by our common law.
Furthermore, I disagree with the majority’s conclusion that the adoption of the Uniform Contribution Among Tortfeasors Act requires a reconsideration of the doctrine of indemnity. The majority recognizes the difference between the two concepts, but then concludes that because contribution acts more equitably in its treatment of the apportionment of fault, the doctrine of indemnity should be abolished. Such a result denies the hospital a remedy to which it is properly entitled. I would conclude that the doctrine of indemnity is still a viable concept and should be retained.
The majority, by considering the provisions of section 13-50.5-105(l)(b), which releases a settling tortfeasor from any liability for contribution to another tortfeasor, applies rules pertaining to contribution to a situation where the doctrine of indemnity applies. By the plain language of this statute, it only applies to liability for contribution. However, this is a case involving indemnity. Application of a contribution analysis at this stage of the proceedings is inequitable. While I do not feel the hospital should be held totally free from fault in this situation, in the absence of legislation by the General Assembly which would apply a comparative fault treatment to indem-*1302mty actions, the physician must carry the burden of the entire loss.
In light of the plain language of the statutes retaining the right of indemnity, and only allowing the discharge of a settling tortfeasor in contribution situations, I cannot agree with the majority’s conclusion that the doctrine of indemnity need be abrogated.
I would affirm in part and reverse in part.
I am authorized to state that ROVIRA, J., joins in this partial dissent.
. The statute, 13-50.5-102(6), 6 C.R.S. (1985 Supp.), provides:
This article does not impair any right or [sic] indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.