dissenting.
I have no disagreement with the majority’s analysis of the development of the law respecting the effects of covenants not to sue. In 1979, the General Assembly clearly intended to abrogate the common-law rule that a covenant not to sue one joint tortfeasor, accompanied by an accord and satisfaction, operated to release all other tortfeasors. Shortt v. Hudson Supply, etc., Co., 191 Va. 306, 60 S.E.2d 900 (1950). See also Wright v. Orlowski, 218 Va. 115, 120, 235 S.E.2d 349, 353 (1977).
As the majority opinion notes, however, the original 1979 form of the statute, which governs this case, affects only covenants not to sue. The statute was not broadened to include releases until 1980. A 1982 amendment made clear the legislative intent to affect only those releases executed after July 1, 1980. It is therefore crucial to the outcome of this case to determine whether the instrument before us, which was executed in October 1979, is actually a covenant not to sue. If it is, the statute saves it from the operation of the common-law rule; if it is not, the statute has no effect and the common-law rule operates to release all other *489tortfeasors, regardless of the attempt by the parties to provide otherwise in the instrument. Wright, id. at 120, 235 S.E.2d at 353. The majority opinion fails to address this issue.
“[A] release is an immediate relinquishment or discharge of the covenantor’s right of action, whereas a covenant not to sue is merely a promise not to prosecute a suit against the covenantee, and is enforceable only by the latter.” Shortt, 191 Va. at 310, 60 S.E.2d at 903.
With the enactment of the 1979 covenant law [Code § 8.01-35.1], Virginia was the only state to limit its settlements to covenants not to sue. Because of the past conservative tenor of the Virginia courts, it is safe to assume that any form of release signed between July 1, 1979 and June 30, 1980 will be interpreted as a release of all tortfeasors. The distinction between the two instruments rests on whether the phraseology indicates an abandonment of a claim or merely an agreement [not] to enforce an existing cause of action.
Comment, The Covenant Not to Sue: Virginia’s Effort to Bury the Common Law Rule Regarding the Release of JointTortfeasors. 14 U. Rich. L. Rev. 809, 815-16 (1980). The author of the foregoing comment also pointed out that the title of the instrument was not significant in determining its true nature. Accord Perdue v. Sears, Roebuck & Co., 694 F.2d 66 (4th Cir. 1982).
When the instrument before us is examined in light of this distinction, it becomes apparent that it contains no language, other than its title, expressing a promise not to enforce the plaintiffs existing cause of action against the signatory defendants in the courts. Yet as we have seen, such a promise is the sine qua non of a covenant not to sue. Rather, the instrument expressly provides that upon payment of $43,500.00 “said payments shall discharge the said [defendants] from all liability to the plaintiff.” Such a discharge of liability is the hallmark of a release, and the trial court correctly so construed the instrument before us.
Counsel in case 1683 clearly intended to bring the instrument within Code § 8.01-35.1 and were acting in good faith to avoid the application of the common-law rule. As we observed in Wright, that rule “sometimes works harsh results,” but is “of ancient origin, honored without exception in this Commonwealth, and fully *490familiar to bench and bar.” 218 Va. at 122-23, 235 S.E.2d at 354. It was incumbent on the parties seeking the benefit of Code § 8.01-35.1 to draft the instrument so as to bring it within the terms of the statute. Being in derogation of the common law, the statute should be strictly construed and not enlarged in its operation beyond its express terms. C. & O. Railway v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965). In my view, these parties joined the good company of counsel in a line of cases extending through Shortt and Wright back to Ruble v. Turner, 12 Va. (2 Hen. & M.) 38 (1808), who made similar unavailing efforts to release one defendant without releasing the others.
The majority has construed a release as a covenant not to sue, thus reaching the wrong result in this case. I therefore dissent and would affirm the judgment of the trial court.
COMPTON and THOMAS, JJ., join in dissent.