dissenting:
In my opinion, The George Washington University (GWU) should have been permitted to file its cross-claim. On the merits, I believe that GWU is entitled to contribution from Dr. Bier in the amount of one million dollars. Because the majority holds otherwise, I must respectfully dissent.
I.
The facts have been fully set forth in the majority opinion, and I confine myself to the essentials. Ms. Paul sued GWU and Dr. Bier for medical malpractice. The trial judge found, and all members of the division agree, that the injury alleged to have been inflicted by GWU cannot reasonably be separated from the injury said to have been caused by Dr. Bier. Ms. Paul settled with GWU for two million dollars. Her case against Dr. Bier subsequently went to trial, and the jury awarded her two million dollars. The trial judge held that Dr. Bier was entitled to a pro tanto credit; i.e., a credit of the two million dollars paid by GWU on the judgment against Dr. Bier in the same amount. As explained in the majority opinion, the judge denied GWU leave to cross-claim for contribution against Dr. Bier, who was thus required to pay nothing.
In the trial court, and again on appeal, each of the three parties to the suit has proposed a different resolution of the parties’ respective rights and liabilities. Each party has a million dollars at stake, and unsurprisingly, each has embraced a plan saving her, it, or him a million dollars. In the table that follows, I set forth the practical consequences of each party’s proposal, i.e., how much each party would receive or pay:
TOTAL PROPONENT AMOUNT TO AMOUNT TO AMOUNT TO OP BE PAID TO BE PAID BE PAID BY PLAN MS. PAUL BY GWU DR. BIER
Ms. Paul $3,000,000 $2,000,000 $1,000,000
GWU $2,000,000 $1,000,000 $1,000,000
Dr. Bier $2,000,000 $2,000,000 -0-
The trial judge’s rulings had the effect of approving the plan proposed by Dr. Bier.
Ms. Paul appeals because, if the judge’s order is affirmed, she will receive' only two million dollars rather than the three million to which she claims to be entitled. GWU also appeals, for it hopes ultimately to have to contribute only one million dollars, and not twice that amount as required under the trial judge’s disposition. Discerning no mischief in a resolution that frees him from any liability at all, Dr. Bier urges this court to affirm the judgment.
II.
This case is somewhat unusual in that the issues presented are entirely equitable in nature. There is no statute or rule of court dictating the result. On the questions that I consider most important, there *54is no binding precedent in this jurisdiction. In general, as Chief Justice Burger has written, “[o]ur duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done.” Bifulco v. United States, 447 U.S. 381, 402, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (concurring opinion) (citing The Spirit of Liberty: Papers and Addresses of Learned Hand 306-07 (Dillard ed.1960)). In this case, however, we are free, without any unwise resort to judicial activism, to fashion the most equitable resolution of the issues of law and legal policy that have been presented to us.1
Ms. Paul suffered an undivided injury which the jury assessed at two million dollars. Dr. Bier was found negligent. GWU has now described itself as a joint tortfeasor and thus admits, for present purposes, that it too was negligent. Logically, it seems to me that the most equitable solution is for Ms. Paul to receive two million dollars, with Dr. Bier and GWU paying her one million each. This disposition compensates Ms. Paul fully for her injury, unjustly enriches no one, and divides liability equally between the two negligent defendants.2 In my opinion, the principal question is whether there are overriding reliance interests or reasons in law or policy for rejecting this commonsense result. As I show below, there are no such overriding reasons.
III.
I first address, briefly, Ms. Paul’s claim that she should receive three million dollars rather than two million.
The teaching of Berg v. Footer, 673 A.2d 1244, 1248-49 (D.C.1996), and of the authorities on which the court in Berg relied, is that, for somewhat arcane reasons, a non-settling defendant receives pro rata credit if the settling defendant is a joint tortfeasor, but pro tanto credit if the settling defendant is not a joint tortfeasor. The determination that a party is a joint tortfeasor can be effected by adjudication or by stipulation. Id. at 1251. Moreover,
whenever the plaintiff settles with a joint tortfeasor, the nonsettling defendant shall receive a pro rata credit under Martello [v. Hawley, 112 U.S.App. D.C. 129, 300 F.2d 721 (1962) ], reflecting the defendant’s equitable right to contribution and no more, even when the plaintiffs recovery from all defendants will exceed the amount of the verdict and thus violate the one satisfaction rule.
Id. at 1245.'
In the present case, there has been no ruling by the court that GWU was a joint tortfeasor, and there has likewise been no formal stipulation to that effect. Ms. Paul has, however, alleged that GWU was a joint tortfeasor. Notwithstanding its prior denials of malpractice, GWU now asserts, for purposes of its cross-claim, that it should be treated as a tortfeasor. Ms. Paul having suffered a single indivisible injury, it follows that if GWU was a tort-feasor at all, then it was a joint tortfeasor. Under these circumstances, I believe that we have here the substantial equivalent of a stipulation of joint tortfeasorship. If both affected parties assert the same proposition to be true, the fact that this assertion is not contained in a formal stipulation seems irrelevant; to hold otherwise would exalt form over substance to an unacceptable degree.3 I therefore conclude that un*55der Berg, as between Ms. Paul and Dr. Bier, Ms. Paul should prevail. Berg, as applied to this case, holds that a million dollar windfall for Ms. Paul, the injured party, is preferable to a similar windfall for Dr. Bier, who has been adjudicated to have been negligent, and who, remarkably, is asking that he be excused from paying anything at all.
But Berg did not decide whether, if someone in Dr. Bier’s position is required to contribute a million dollars as his pro rata share, the beneficiary should be the plaintiff or the settling defendant. Indeed, that case did not involve any claim by the settling defendant. Berg authorizes a narrow departure from the “one satisfaction rule” to ensure that the non-settling tort-feasor does not receive an undeserved windfall. Berg should not be read as making any greater inroad than that on the “one satisfaction rule.”
In my opinion, the reasons in Berg for providing the plaintiff with compensation in excess of his or her damages do not apply here. I know of no basis in law or policy for awarding Ms. Paul an extra million dollars just to ensure that GWU pays the entire amount for which it settled. Accordingly, I would apply the “one satisfaction” principle and limit Ms. Paul’s recovery to two million dollars, which is the amount at which the jury fixed the com-pensable value of her injury. .
IV.
There appear to be two possible theories upon which GWU might be denied recovery vis-a-vis Dr. Bier. The first is that a settling defendant has no right to seek contribution from a non-settling defendant. The second is that, even if the settling defendant has such a right, GWU waived it in this case by seeking relief too late. My colleagues in the majority deny relief on the basis of the second theory. In her concurring opinion, Judge Ruiz urges that this court also adopt the first theory. I disagree with both of these theories.
A. The settling defendant’s right to contribution.
“Most jurisdictions bar the settling defendant from seeking contribution if it settles for more than its proportionate share of the damages.” Berg, supra, 673 A.2d at 1253 n. 17 (citing McDermott, Inc. v. Am-Clyde and River Don Castings, Ltd., 511 U.S. 202, 211 n. 13, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994)). There is no disposi-tive case law in this jurisdiction, however, and the question remains an open one. Id. at 1254 & n. 17. Judge (later Justice) Rutledge, writing for the court in McKenna v. Austin, 77 U.S.App.D.C. 228, 234, 134 F.2d 659, 665 (1943), was of the opinion that
[b]y settling with the injured person [a defendant] does not surrender his [or her] right of eontribution[,] and the settlement should not give the other wrongdoer an advantage. Consequently he [or she] should recover from the latter the amount necessary to equalize the payments.
Accord, Early Settlers Ins. Co. v. Schweid, 221 A.2d 920, 922 (D.C.1966) (permitting settling defendant to sue for contribution or indemnification); Taylor v. Tellez, 610 A.2d 252, 253-55 (D.C.1992) (same); but cf. Rose v. Associated Anesthesiologists, 163 U.S.App.D.C. 246, 250, 501 F.2d 806, 810 (1974) (Leventhal, J.) (rejecting McKenna and stating that settling defendants “cannot equitably insist on a continuing involvement in the litigation for the purpose of invoking contribution to lessen their payment when they have no exposure to an increase in payment if contribution should be sought from them”).4
An issue that finds distinguished jurists like Justice Rutledge and Judge Leventhal *56taking opposing positions is obviously a difficult one, and may warrant consideration by the en banc court. Pending such consideration, however, I believe that GWU has the better of the argument.
“Voluntary settlement of civil controversies is in high judicial favor.” Antera v. Robinson, 136 U.S.App.D.C. 216, 218, 419 F.2d 1197, 1199 (1969); see also McDermott, supra, 511 U.S. at 211, 114 S.Ct. 1461. I agree with GWU’s contention that a rule permitting the settling defendant to seek contribution would promote the policy favoring voluntary settlement. In the absence of a right to contribution, a defendant is likely to be reluctant to be the first to settle for fear that, if he does so, he will ultimately have to pay a disproportionate share (or, as in this case, the entirety) of the judgment. Moreover, once one defendant has settled with the plaintiff, the remaining defendants will have less incentive to negotiate, for they will know that they can expect a free ride (by virtue of their pro tanto credit) to the extent that the verdict does not exceed the amount paid by the settling defendant.
Contrary to the court in Rose, 163 U.S.App.D.C. at 250, 501 F.2d at 810, I do not believe that a party in GWU’s position should be denied contribution because it has “no exposure to an increase in payment if contribution should be sought from [it].” GWU’s argument on this point is persuasive, and I quote from it at some length:
.... [A]ny settlement [by the settling defendant] for more than half of an eventual verdict will unjustly enrich the defendant who stubbornly went to trial and was found liable. Equity dictates that a settling defendant be permitted to sue for contribution in order to equalize the burden on all defendants.
Significantly, such a suit would not disadvantage the non-settling defendant in any cognizable way. Under no circumstances would the non-settling defendant be required to pay any more than the amount for which he was adjudged fully liable at trial. In fact, as in this case, when the verdict it less than twice the amount of the settlement, an award of contribution would require the non-settling defendant to pay no more than half of any trial verdict. A defendant who has lost a[t] trial should have no cause to complain about this result.
In sum, a regime that seeks to promote settlements is fundamentally flawed if it denies contribution to a settling defendant. Instead, under a well-designed system, every defendant should know that if he settles he will be protected against the risk of owing more than the settlement amount, and he can recover some of the settlement amount in contribution if his co-defendant insists on going to trial and loses (and if the verdict is less than twice the settlement). Such a regime would create a salutary incentive to settle, rather than the incentive to delay settlement that the Superior Court’s rule engenders.
(Emphasis in original.)
B. Waiver.
The majority holds that “even if GWU is a joint tortfeasor with a right to contribution, the trial court did not abuse its discretion in disallowing the cross-claim on the ground that GWU’s failure to timely assert its right to contribution was prejudicial to Dr. Bier.... ” In other words, my colleagues are of the opinion that GWU waived its right to a determination, on the merits, regarding whether it should contribute one million dollars or two million as compensation for Ms. Paul. If the majority is right, then this was a remarkably expensive waiver. In any event, I do not agree with the majority’s analysis.
A contribution claim accrues only upon the “disproportionate discharge of the common obligation by one of the common obligors.” Bair v. Bryant, 96 A.2d 508, 510 (D.C.1953). GWU argues that its claim against Dr. Bier “did not accrue until the. Superior Court awarded Dr. Bier a credit against the jury’s verdict, thus ren*57dering GWU’s payment disproportionate.” I agree.
In this jurisdiction, cross-claims between defendants are governed by Civ. R. 13(g), which permits the filing of a cross-claim against a co-party who “is or may be liable to the- cross-claimant.” Rule 13(g), like its federal counterpart, see Fogel v. United Gas Improvement Co., 32 F.R.D. 202, 203 (E.D.Pa.1963), imposes no limitation on the time when a cross-claim must be filed. “The decision whether to allow a cross-claim that meets the test of subdivision (g) is a matter of judicial discretion.” 6 Chaeles AlaN Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1431, at 242 (1990) (hereinafter Wright, Miller & Kane). “[I]n the absence of a showing of injustice to some one or a delay of the trial, no arbitrary time limitation without an express rule of court will be imposed.” Id. (quoting Fogel, supra, 32 F.R.D. at 203).
According to the majority, GWU’s “right of contribution, assuming that settling defendants have such a right, would have become enforceable at the time, while the litigation against Dr. Bier was still in progress, when it entered into the settlement agreement to pay [Ms.] Paul.” But at the time that GWU settled with the plaintiff, it could have had no idea what the result of Ms. Paul’s suit against Dr. Bier would be. If the verdict had been for, say, ten million dollars, then GWU obviously would have had no basis for seeking contribution. Thus, at the time the court says GWU was obliged to file its cross-claim, GWU’s right to recovery would have been completely speculative. In my opinion, it is contrary to common sense to require a party to file a cross-claim when that party knows that, depending on future developments, the cross-claim will have no merit whatsoever.5
Moreover, on the facts here presented, the consequences imposed by the majority are quite draconian. There was no law in this jurisdiction, and the majority has cited none, declaring unequivocally (or at all) that such a cross-claim must be filed in advance of a party’s ascertainment of the extent of the other defendant’s liability. “Equity abhors forfeitures ... [and] so, indeed, does the law.” Association of Am. R.Rs. v. Connerton, 723 A.2d 858, 862 (D.C.1999) (citations omitted). It strikes me as quite unreasonable to hold that, by failing to file a pleading at a time when the sine qua non of a right to recovery had not yet been established, GWU effected an involuntary forfeiture of its right to a merits determination of such a significant claim.
This is particularly true since, in my judgment, Dr. Bier has failed to make even a colorable showing of detrimental rebanee or prejudice. According to the majority, Dr. Bier was prejudiced because “[t]he manner of defense and trial strategy may be different ... in light of a claim for contribution by an alleged joint tortfea-sor.” But in the preceding sentence, the majority “recognize[s] that a nonsettbng defendant does not need the spur of a claim for contribution to defend itself against a plaintiffs claim of hability.” Moreover, the majority’s analysis assumes its conclusion, for at the time Dr. Bier was preparing his case, there was no authority in this jurisdiction (or, so far as I am aware, in any other) holding that a cross-claim could not be filed after the determination of the nonsettling defendant’s liability. Dr. Bier and his attorneys therefore could not have relied, to their detriment or *58otherwise, on any such authority, nor could they reasonably have assumed that no cross-claim would be filed at a later date. See also discussion at p. 46, infra.6
In fact, the only prejudice Dr. Bier claims that he would suffer if GWU were allowed to file its proposed cross-claim is the denial of a reward for his attorney’s alleged “strategic decision” regarding how he should proceed in the case Dr. Bier asserts in his brief that after GWU settled with Ms. Paul, he made a risky tactical choice, presumably through counsel, not to file a cross-claim against GWU because he believed that the verdict against him would not exceed twice the settlement. According to Dr. Bier, he was “betting” that he would be awarded a pro tanto credit, and that this credit would be more advantageous to him than the pro rata credit that he would have received if he had filed a cross-claim and secured an adjudication that GWU was a joint tortfeasor. At oral argument, Dr. Bier’s attorney stated that “we bet [the verdict] wouldn’t be more than two million dollars.”
GWU describes Dr. Bier’s argument as “deeply misguided.” I agree. First, this kind of “strategic prejudice” and “betting” ought to have no place in the contribution inquiry. Contribution is not a “game of chance” in which the sawiest prognosticator gets off free. “The principal purposes of contribution are fairness to joint tortfea-sors (by distributing the plaintiffs losses equitably among all wrongdoers) and deterrence (by ensuring that all parties responsible for the injuries will share in the cost of the offending conduct).” Hall v. George A. Fuller Co., 621 A.2d 848, 850 n. 3 (D.C.1993) (citing Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 111, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974)). A tortfeasor has no right to force an in equitable outcome because he “cleverly”- devised a strategy which reduced his liability to zero. Dr. Bier asserts, in effect, that his interest in reaping the rewards of a purported “bet” on the result of this litigation should prevail over the equitable and just apportionment of liability for the plaintiffs losses. In my opinion, such a contention — a sort of extreme application of the “sporting contest” theory of litigation — is insupportable and unjust and ought not to be adopted by this court.
Moreover, Dr. Bier’s argument depends on a false premise. It is predicated upon his alleged reliance on the proposition that GWU, as a settling defendant, could not recover contribution against him.7 But this proposition was not settled law at the time, and is not settled law today. Indeed, the question whether a settling defendant may obtain contribution against a non-settling defendant was explicitly left open in Berg, supra, 673 A.2d at 1254 n. 17. Accordingly, an award of contribution would not upset any reasonable expectation on Dr. Bier’s part based on existing law, and it therefore would not prejudice Dr. Bier’s asserted right to be rewarded for his attorney’s “strategic” decision-making.
V.
For the foregoing reasons, I respectfully dissent
.In my opinion, these issues are basically legal in nature, and we should review the trial judge’s rulings de novo. Dr. Bier’s claim that he relied to his detriment on certain authorities, see Part IV B, infra, could theoretically raise issues of fact. I believe, however, for reasons stated below, that this claim fails as a matter of law.
. The District of Columbia is not a comparative negligence jurisdiction. If it is decided that both GWU and Dr. Bier must contribute to making Ms. Paul whole, there is no reason to require one of the defendants to pay more than the other must pay.
. I see no relevance to the fact that Dr. Bier has not stipulated to anything.
. The precise question presented here does not appear to have been squarely raised in either Early Settlers or Taylor. The statement on the issue in McKenna was not a part of the holding. Rose was decided after M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), and is not binding on this court. See Berg, supra, 673 A.2d at 1253 n. 17.
. To be sure, "a cross-claim need not be mature at the time the cross-claim is originally asserted.” Glaziers and Glassworkers Union Local 252 Annuity Fund v. Newbridge Secs., Inc., 823 F.Supp. 1188, 1190 (E.D.Pa.1993) (citing 6 Wright, Miller & Kane, supra, § 1431). Glaziers arguably stands for the proposition that GWU had the right to file a cross-claim before the disposition of Ms. Paul’s claim against Dr. Bier, because Dr. Bier was then a party who "may be liable to GWU,” as specified in Rule 13(g). That GWU had the right to act earlier, however, does not mean that its filing of a cross-claim after Dr. Bier’s liability to Ms. Paul was adjudicated was untimely. As noted in Wright, Miller & Kane, supra, no time limit is set forth in Rule 13(g), and equitable principles control.
. During oral argument, Dr. Bier's attorney was questioned intensively as to what authorities he claimed to have relied upon for this proposition and other related ones. Counsel was unable to provide a meaningful response to these questions simply because there were no such authorities.
. As we have noted, see p. 45, supra, Dr. Bier’s position also assumed, without basis in authority, that GWU would not be permitted to file a cross-claim after the completion of the trial between Ms. Paul and Dr. Bier.