Alvarez v. New Haven Register, Inc.

735 A.2d 306, 249 Conn. 709, 1999 Conn. LEXIS 260

• Court: Supreme Court of Connecticut
• Decided: July 27, 1999
• Docket: SC 16024
• Status: Published

Opinions

Opinion

KATZ, J.

The sole issue in this appeal is whether, notwithstanding General Statutes § 52-572C,¹ a release executed in favor of an employee operates as a matter of law to release the employer whose sole liability is premised on the doctrine of respondeat superior. We conclude that the employer and employee are not joint tortfeasors pursuant to the statute and that, accordingly, the employer is released from any derivative liability.

The record includes the following undisputed facts. The plaintiff, Reyes Alvarez, brought an action against Grazyna Ziolo² for injuries sustained as a result of a motor vehicle accident that occurred while Ziolo was acting within the scope of her employment with the New Haven Register (Register), the defendant in the present action.³ The accident occurred when the plaintiffs motor vehicle, while stopped at a traffic light, was struck from behind by a motor vehicle operated by Ziolo.

The plaintiff and Ziolo’s insurance carrier, the Progressive Insurance Company (Progressive), agreed to submit the claim to high-low binding arbitration. The arbitrator found damages in excess of the $100,000 policy and the plaintiff agreed to accept $90,000, which award took into consideration collateral source offsets. Although the plaintiffs counsel submitted a satisfaction for payment of the award, Progressive rejected the satisfaction, insisting instead that the plaintiff sign a “full release of all claims and demands.”⁴

After executing the release, the plaintiff commenced the present action against the Register, claiming that the Register is vicariously liable under the doctrine of respondeat superior for the alleged negligent acts of its employee, Ziolo.⁵ The Register filed an amended answer and asserted special defenses alleging, inter alia, that the plaintiffs claim was barred because, in settling with Ziolo, the plaintiff had executed a general release of all potential tortfeasors. The plaintiff denied the allegations made in the special defenses, and the Register thereafter moved for summary judgment claiming that the release, which had been executed by the plaintiff in favor of Ziolo, discharged the Register from any vicarious liability.

In response to the motion, the plaintiff filed an objection and an affidavit stating that, at the time of settlement with Progressive, he had never intended to release the Register from liability by signing the release and that he had fully intended to pursue a claim against the Register. The trial court determined, as a matter of law, that the Register and Ziolo were not joint tortfeasors under the common law, and that, consequently, § 52-572e does not abrogate the common-law principles regarding vicarious liability of a master and servant. Accordingly, the court rendered summary judgment for the Register, concluding that the release executed in favor of Ziolo operated, as a matter of law, to release the Register.

On appeal,⁶ the plaintiff claims that the trial court improperly concluded that, because § 52-572e did not apply to this case, the release of Ziolo, as a matter of law, discharged the liability of the Register as her employer. The plaintiff further claims that, pursuant to Sims v. Honda Motor Co., 225 Conn. 401, 406 n.7, 623 A.2d 995 (1993), whether the release was intended to release the Register from liability for its employee’s alleged negligence is a question of fact to be determined by the fact finder. We conclude that § 52-572e does not embrace the independent actions against an employer and an employee and that, consequently, the trial court properly granted the Register’s motion for summary judgment.⁷

We begin with a brief discussion of the pertinent legal principles. “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384 [now § 17-49]. Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481, 697 A.2d 680 (1997).” (Internal quotation marks omitted.) Nichols v. Lighthouse Restaurant, Inc., 246 Conn. 156, 163, 716 A.2d 71 (1998). Because the sole question presented by this case involves the proper application of § 52-572e to an undisputed factual scenario, our review is plenary. Charles v. Charles, 243 Conn. 255, 258, 701 A.2d 650 (1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089 (1998).

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Id.; Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services, 231 Conn. 355, 362, 650 A.2d 147 (1994); United Illuminating Co. v. Groppo, 220 Conn. 749, 755-56, 601 A.2d 1005 (1992).” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431-32, 692 A.2d 742 (1997).

Finally, “[w]hen a statute is in derogation of common law ... it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. ... In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed. . . . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated. The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law. 3 J. Sutherland, Statutory Construction (5th Ed. Singer 1992 Rev.) § 61.01, pp. 172-73.” (Citations omitted; internal quotation marks omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90, 627 A.2d 1288 (1993).

Both parties recognize that, in the absence of a specific statute, where the liability of a principal for a tort committed by his agent is predicated solely upon the doctrine of respondeat superior, a valid release of either operates to release the other. Therefore, the issue before us is whether the legislature, in enacting § 52-572e, intended to abrogate the common law in this regard. On the basis of the language of § 52-572e, its legislative history and the circumstances surrounding its enactment, the policy it was designed to implement, and its relationship to other legislation governing the same subject matter, we conclude that, pursuant to § 52-572e, the release of Ziolo did, as a matter of law, release the Register.

We first examine the language of § 52-572e to determine whether it clearly reflects the legislature’s intent to include situations involving vicarious liability. “A release by the injured person, or his legal representative, of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.” General Statutes § 52-572e (b). “Joint tortfeasors” are defined as “two or more persons jointly or severally hable in tort for the same injury to person or property whether or not a judgment has been recovered against all or any of them.” General Statutes § 52-572e (a). The plaintiff contends that although Ziolo and the Register were not jointly liable, they were nevertheless severally liable, and thereby embraced by § 52-572e.

Although the plaintiff could have brought an action against either Ziolo or the Register or both; see Chase v. New Haven Waste Material Corp., 111 Conn. 377, 380-81, 150 A. 107 (1930); that factor in and of itself does not resolve the matter. Joint liability is based upon the concept that all tortfeasors are independently at fault for their own wrongful acts. Caviote v. Shea, 116 Conn. 569, 575, 165 A. 788 (1933). Their liability is direct because they actually contributed to the injury. At common law, an individual injured by the negligence of one or more tortfeasors could proceed against any one of the tortfeasors for payment of damages. This was permitted to ensure that the plaintiff would be made whole. The terms “joint and several liability” and “joint or several liability” essentially meant the same thing — that an injured party could look to either or both of the tortfeasors and that either one would be liable for the full amount of the plaintiffs damages. Sparrow v. Bromage, 83 Conn. 27, 28-29, 74 A. 1070 (1910).

We recently had the opportunity to explain this principle. “Prior to October 1, 1986, this state adhered to the rules of joint and several liability with no contribution among joint tortfeasors. This doctrine can be stated succinctly. If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other; or the plaintiff might have sued either alone, and of course in the event of a recovery, that one would have been compelled to pay the entire amount of damages. Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66 (1934).

“In accordance with the common law of joint and several liability, therefore, even a defendant whose degree of fault was comparatively small could be held responsible for the entire amount of damages, as long as his negligence was a proximate cause of the plaintiffs injuries. Thus, the plaintiff could collect the entire amount of his judgment from the richest defendant, or from the defendant with the deepest pocket. G. Royster, ‘Joint and Several Liability and Collateral Sources Under the 1987 Tort Reform Act,’ 62 Conn. B.J. 257 (1988).” (Internal quotation marks omitted.) Donner v. Kearse, 234 Conn. 660, 666-67, 662 A.2d 1269 (1995).

Therefore, the inclusion of the term “severally liable” does not appreciably illuminate the parameters of § 52-572e. Nor is there other language in § 52-572e to indicate an unequivocal intent on the part of the legislature to abrogate the common-law principles pertaining to an employer’s liability under the doctrine of respondeat superior. Accordingly, we turn next to the legislative history of § 52-572e.

Rather than attempt to improve upon our lengthy discussion in Sims v. Honda Motor Co., supra, 225 Conn. 401, we rely on that exegesis for its analysis. “The traditional rationale given for [the common-law rule that a release of one joint tortfeasor operated as a release of all joint tortfeasors] was that where two or more tortfeasors acted in concert to cause an injury, the act of one became the act of all and a single cause of action, with each participant being liable for the entire loss sustained by the plaintiff. . . . This common law rule was widely criticized by courts and commentators as unjust because it served as a trap for unknowing plaintiffs, barring them from suing additional tortfeasors and, in some cases, from obtaining full relief for their injuries.” (Citation omitted; internal quotation marks omitted.) Id., 406-407.

Intending to abolish “the common law rule that produced an involuntary discharge of joint tortfeasors”; (internal quotation marks omitted) id., 407; the legislature enacted § 52-572e, which reflects its “preference for preserving an unknowing injured party’s opportunity to seek relief from responsible tortfeasors and a policy against enforcing an injured party’s involuntary discharge of responsible tortfeasors.” Id., 408. On the basis of this intent, we rejected the “flat bar” approach⁸ in favor of the “intent rule,” specifically, because the flat bar approach “perpetuates the inequities of the common law rule and contravenes the legislative preference, expressed in § 52-572e, for preserving the opportunity of an unknowing injured party to seek relief. By presuming that the actual intent of parties was fully incorporated into the release, the ‘flat bar’ rule precludes an injured party from seeking further relief from a nonsettling joint tortfeasor.” Id., 409-10.

In Sims, we concluded that “the ‘intent’ rule best implements the goals of § 52-572e. By abrogating the common-law rule that a release of one tortfeasor discharges, by operation of law, all joint tortfeasors, § 52-572e preserves the right of the injured party to choose to release one or all joint tortfeasors in accordance with the intent of the negotiations between the injured party and the settling tortfeasor. Under § 52-572e, therefore, the contracting parties’ intent, not the operation of a legal rule, determines the scope of a release. See McInnis v. Harley-Davidson Motor Co., [625 F. Sup. 943, 949 (D.R.I. 1986)] (‘intent’ rule court noting importance of ascertaining parties’ intent); Hasselrode v. Gnagey, [404 Pa. 549, 552, 172 A.2d 764 (1961)] (‘flat bar’ rule court noting that intent of the parties, as expressed within four corners of release, governs scope of release); Bjork v. Chrysler Corporation, [702 P.2d 146, 161 (Wyo. 1985)] (‘specific designation’ rule court noting the importance of ascertaining parties’ intent).” Sims v. Honda Motor Co., supra, 225 Conn. 413.

Therefore, the intent of the legislature in enacting § 52-572e was to enable an injured party to secure payment of damages from one tortfeasor while maintaining the right to proceed against other tortfeasors who remain independently at fault for their own wrongful acts that contributed to the injury. This statute, in essence, allows the injured party’s loss to be distributed among joint tortfeasors.

In deciding whether a master and a servant should be treated as a single tortfeasor or as joint torfeasors for the purpose of distributing the loss by contribution, we recognize that they are both undoubtedly tortfeasors, and that the injured plaintiff may look for reparation from either the agent or the principal. “The rules of vicarious liability [however] respond to a specific need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal. If the agent is available or has means to pay, invocation of the doctrine is unnecessary because the injured party has a fund from which to recover.” (Emphasis added.) Mamalis v. Atlas Van Lines, Inc., 364 Pa. Super. 360, 365, 528 A.2d 198 (1987), aff'd, 522 Pa. 214, 222, 560 A.2d 1380 (1989).

“ ‘Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously hable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.’ ” Theophelis v. Lansing General Hospital, 430 Mich. 473, 483, 424 N.W.2d 478 (1988), quoting Dessauer v. Memorial General Hospital, 96 N.M. 92, 108, 628 P.2d 337 (1981). Thus, a principal whose liability rests solely upon the doctrine of respondeat superior and not upon any independent act of the principal is not a joint tortfeasor with the agent from whose conduct the principal’s liability is derived. Stulginski v. Cizauskas, 125 Conn. 293, 296, 5 A.2d 10 (1939). Essentially, aside from the relationship between the parties creating the doctrine of vicarious liability, the principal is not a tortfeasor in the true sense of the word because he is not independently liable based upon his own independent actionable fault. Elias v. Unisys Corp., 410 Mass. 479, 481, 573 N.E.2d 946 (1991); Theophelis v. Lansing General Hospital, supra, 488-89. Consequently, there is no right of contribution, only indemnification. Stulginski v. Cizauskas, supra, 296; Smith v. Foran, 43 Conn. 244, 250 (1875).

The system of contribution among joint tortfeasors, of which our apportionment rules — General Statutes §§ 52-102b and 52-572h — are a key component, meets the problem of how to compensate an injury inflicted by the acts of more than one tortfeasor. Specifically, in enacting Tort Reform I and Tort Reform II to allow a tortfeasor to be responsible solely for his own percentage of negligence, the legislature effectively allowed for contribution among joint tortfeasors and removed the onus of the deep pocket theory. Donner v. Kearse, supra, 234 Conn. 666-69. The liability of the joint tortfeasor is direct because the tortfeasor actually contributed to the plaintiffs injury, and is divisible because the conduct of at least one other also contributed to the injury. Contribution and indemnification, however, are based on fundamentally different principles. Although both indemnification and contribution are based on equitable principles; Lockwood v. Nagy Bros., Inc., 150 Conn. 691, 692, 186 A.2d 82 (1962); “indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest, while contribution involves a claim for reimbursement of a share of a payment necessarily made by the claimant which equitably should have been paid in part by others.” Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965); Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 701, 535 A.2d 357 (1988).

Therefore, for this court to agree with the plaintiff that, in derogation of the common law, the legislature intended that a release of the agent would not discharge the principal from liability, we would have to ignore these basic but significant differences between vicarious and joint liability. In the absence of a compelling reason to depart radically from established policy, we are reluctant to modify the common-law rule that a principal and agent are not joint tortfeasors in order to fall within § 52-572e. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 379-80, 698 A.2d 859 (1997).

Additionally, to.hold as the plaintiff urges, we would have to ignore the well settled principle that “when a plaintiff brings a claim against a principal based solely upon the tortious conduct of the agent, the plaintiff cannot recover any more compensatory damages from the principal than it could from the agent. 1 Restatement (Second), Agency § 217 B (2) (1958), and [2 Restatement (Second), supra] § 359 C (2); W. Seavey, Agency (1964) § 95 (D), p. 170. This is so because ‘there is a logical inconsistency in a small judgment against the agent and a large judgment against the principal, in cases in which the fault is wholly that of the agent.’ 1 Restatement (Second), supra, § 217 B, comment (c). Indeed, in such cases, it is error for the trier of fact to return a verdict for compensatory damages in a greater amount against the principal than against the agent. Id., § 217 B, comment (e).’ ” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 503, 656 A.2d 1009 (1995).

The legislature is presumed to be aware of this court’s decisions and, therefore, the common-law limitations on the principal’s liability already in place. Against this background, were § 52-572e to apply to this case, its protections would make little sense. As previously expressed herein, § 52-572e was intended to enable an injured party to secure payment of damages from one tortfeasor while maintaining the right to proceed against other tortfeasors who remain independently at fault for their own wrongful acts that contributed to the injury. Because a plaintiff who brings a claim against a principal based solely upon the tortious conduct of the agent and not on any independent wrongdoing on the part of the principal cannot recover any more compensatory damages from the principal than it could from the agent, § 52-572e, if applicable to the present case, could not accomplish its intended purpose.⁹

Courts in other states are split on the question of whether the release of the primarily hable employee also releases the employer who is vicariously liable. Some hold that their respective versions of the Uniform Contribution Among Tortfeasors Act (uniform act); 12 U.L.A. § 1 etseq. (1996); include vicariously liable defendants so that a principal is not released by the release of the agent. See, e.g., Harris v. Aluminum Co. of America, 550 F. Sup. 1024, 1030 (W.D. Va. 1982); Harris v. Miller, 335 N.C. 379, 398, 438 S.E.2d 731 (1994). Other courts faced with this issue, however, have concluded that their versions of the uniform act do not include vicariously liable defendants and that consequently, a valid release of the agent operates to discharge the employer. See Bacon v. United States, 321 F.2d 880, 884 (8th Cir. 1963); Simpson v. Townsley, 283 F.2d 743, 748 (10th Cir. 1960); Bristow v. Griffitts Construction Co., 140 Ill. App. 3d 191, 195, 488 N.E.2d 332 (1986); Anne Arundel Medical Center, Inc. v. Condon, 102 Md. App. 408, 414, 649 A.2d 1189 (1994); Kelly v. Avon Tape, Inc., 417 Mass. 587, 590, 631 N.E.2d 1013 (1994); Elias v. Unisys Corp., supra, 410 Mass. 482; Theophelis v. Lansing General Hospital, supra, 430 Mich. 491; Dickey v. Estate of Meier, 188 Neb. 420, 424, 187 N.W.2d 385 (1972); Horejsi v. Anderson, 353 N.W.2d 316, 320 (N.D. 1984); Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 221, 560 A.2d 1380 (1989); Craven v. Lawson, 534 S.W.2d (Tenn. 1976). We find the reasoning of those courts faced with statutes identical to § 52-572e and holding that the plaintiffs release of an agent’s liability extinguishes the principal’s vicarious liability to be the more persuasive. See, e.g., Anne Arundel Medical Center, Inc. v. Condon, supra, 416 (defining “joint-tortfeasors” as “ ‘two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them’ ”); Mamalis v. Atlas Van Lines, Inc., supra, 522 Pa. 219 (same).

Finally, we recognize the public policy established by the uniform act to encourage settlements. The plaintiff contends that an injured party will be reluctant to settle with and release the agent if to do so means that he simultaneously extinguishes his cause of action against the principal. The agent, however, even after settlement with the injured party, would remain liable for indemnification to the principal. Stulginski v. Cizauskas, supra, 125 Conn. 296. Therefore, contrary to the plaintiffs assertion, the reality is that, by reading § 52-572e to permit an injured party to maintain an action under the doctrine of respondeat superior against the principal, despite his release of the agent, the court would be discouraging settlements because the agent, who would remain hable to indemnify the principal, would be disinclined to reach a settlement with the injured party. This scenario would be wholly abortive of the intended purpose of the release if it went no further than to protect the employee against a direct action by the injured party but afforded no protection against an action over by his employer. Simpson v. Townsley, supra, 283 F.2d 748. Only if protected from further Lability would the agent be likely to settle. Furthermore, we do not believe that the legislature intended such a circuitous procedure. The result of our interpretation of § 52-572e avoids the indemnity cycle and ensures the released tortfeasor that he has “ ‘bought his peace.’ ” Horejsi v. Anderson, supra, 353 N.W.2d 320. By holding that § 52-572e does not apply to vicariously liable defendants, the release of the agent removes the only basis for imputing liability to the principal.¹⁰

The judgment is affirmed.

In this opinion NORCOTT, PALMER and PETERS, Js., concurred.

1 General Statutes § 52-572e provides: “Release of joint tortfeasor, (a) For the purposes of this section the term ‘joint tortfeasors’ means two or more persons jointly or severally liable in tort for the same injury to person or property whether or not a judgment has been recovered against ail or any of them.

“(b) A release by the injured person, or his legal representative, of one joint tortfeasor does not discharge the other tortfeasors unless, and only to the extent, the release so provides.”

2 The plaintiff also asserted claims against Jan Ziolo, the owner of the vehicle, and the Ziolos’ insurance carrier, Progressive Insurance Companies. Hereinafter, references to Ziolo are to Grazyna Ziolo only.

3 The accident occurred while Ziolo was showing the plaintiff, an independent contractor responsible for stocking newspaper vending machines owned by the Register, the delivery route he was to follow.

4 The release provides as follows:

“FULL RELEASE OF ALL CLAIMS AND DEMANDS

Date: April 11, 1997

Know All By These Presents, that I, Reyes Alvarez, a married individual for and in consideration of Ninety Thousand Dollars and 00/100 ($90,000.00), the receipt whereof is hereby acknowledged, does (do) hereby for my (our) heirs, executors, administrators, successors and assigns and any and all other persons, firms, employers, corporations, associations or partnerships release, acquit and forever discharge Grazyna Ziolo, Jan Ziolo and Progressive Insurance Companies of and from any and all claims, actions, causes of actions, demands, interest, costs, property damage, loss of wages, expenses, hospital medical and nursing expenses, accrued or unaccrued claims for loss of consortium, loss of support of affection, loss of society and companionship on account of or in any way growing out of any all known and unknown personal injuries and damages resulting from an automobile accident which occurred on or about August 2, 1995, at or near Boston Post Road, Milford, CT.

It is understood and agreed that this settlement is in full compromise of a doubtful and disputed claim as to both questions of liability and as to the nature and extent of the injuries and damages, and that neither this release, nor the payment pursuant thereto shall be construed as an admission of liability, such being denied.

It is further understood and agreed that the undersigned relies wholly upon the undersigned’s judgment, belief and knowledge of the nature, extent, effect, and duration of said injuries and liability therefore and is made without reliance upon any statement or representation of the party or parties hereby released or their representative.

I have read this release and understand it.

Signed: /s/ Reyes Alvarez

Witnesses

Affidavit no. 2115:

Before me this 11 day of April, 1997, came REYES ALVAREZ, known to me to be the individual who executed this release, and acknowledged that she fully understands the contents and freely executed same for the sole consideration therein expressed.

Attorney or Notary Public /s/ Elmer Martinez Rivera”

5 The plaintiff does not raise any issue of collateral estoppel in this appeal. That is, he does not claim that the Register is precluded from litigating the issue of Ziolo’s negligence or his damages as a result of the arbitration award and the ensuing release. See Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 818, 695 A.2d 1010 (1997).

6 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

7 The plaintiff argues that, in accordance with this court’s interpretation of § 52-572e; see Sims v. Honda Motor Co., supra, 225 Conn. 409-10; the trial court improperly failed to consider extrinsic evidence of his intent regarding the scope of the release. In Sims, the parties agreed that the defendants were joint tortfeasors within the meaning of § 52-572e. Id., 408 n.9. Because, as we conclude herein, that Ziolo and the Register were not joint tortfeasors within the meaning of the statute, and in the absence of any other basis upon which to abrogate the common law, the trial court correctly relied on the common law to conclude that the release of Ziolo served to discharge the Register.

8 A flat bar rule holds that, “as a matter of law, a release provides for the discharge of all potential joint tortfeasors if it purports to discharge not only the named tortfeasors, but also any and all other parties.” (Internal quotation marks omitted.) Sims v. Honda Motor Co., supra, 225 Conn. 408.

9 This is so unless, of course, the legislature also intended to abrogate the common law in this regard as well. There is no indication, nor has the plaintiff argued, that the legislature, in enacting § 52-572e, had intended to effect such a change.

10 Although at common law a release of one joint tortfeasor released the other tortfeasors, a covenant not to sue did not. Bonczkiewicz v. Merberg Wrecking Carp., 148 Conn. 573, 581, 172 A.2d 917 (1961); Bridgeport-City Trust Co. v. Hirsch, 119 Conn. 586, 589, 178 A. 423 (1935); Dwy v. Connecticut Co., 89 Conn. 74, 79, 86, 92 A. 883 (1915). Because the present case did not involve a covenant not to sue, this opinion does not have any impact on the viability of that mechanism as a means by which an injured party may seek full recovery against the employer after collecting a portion of his damages from the employee.