3d Party Practice Flashcards
How can ∆ assert a claim of contribution OR indemnity?
1) If tortfeasors already co-∆s → CROSSCLAIMS
2) If some tortfeasors are NOT part of suit → the ∆ can:
(i) IMPLEAD the 3P∆;OR
(ii) sue in a separate action
NOTE: Impleader is better. If ∆ sues outside tortfeasors in a separate action, the findings of liability (i.e. % of fault) in the 1st action are not binding on 2d action (problematic) b/c you CANNOT assert collateral estoppel (“issue preclusion”) against a party who has not had her day in ct; THUS, you’d have to re-prove all the fact finding
3) SOL: Contribution AND indemnity = 6-yr from date of pmt of the judgment for which contribution/indemnity is sought
What is indemnity AND how can it be asserted?
Allows ∆ to shift 100% of the responsibility or damages to another party
Proof:
(i) by K (e.g. sub-contractor)
(ii) if implied-in-law
(iii) Products Liability – mnfr must indemnify retailer for selling defective product
(iv) Vicarious liability – e.g., driver indemnifies owner of car
NOTE: Settlement does NOT extinguish claims for indemnity BY or AGAINST a settling tortfeasor
What is contribution AND its purpose?
Sharing of loss (apportionment) among multiple tortfeasors (who are ACTUALLY part of the tort OR aggravated the damages); allowed in ALL tort cases in NY (contrast MBE)
EXCEPTIONS:
(i) CPLR Article 16
(ii) ON MBE – NOT AVAILABLE when liability is based on an intentional tort
Purpose = mitigate the harshness of joint & several liability (i.e. EA. tortfeasor is liable to π for FULL amt of π’s damages nws ind. tortfeasor’s % fault)
NOTE: ∆ may seek contribution from TP∆ EVEN IF the injured π has NO RIGHT of recover against TP∆
Ex: Mnfr of smoke alarm, fire protection service. Fire protection service not liable to π b/c of clause in K but mnfr-∆ can STILL implead him for aggravating the damages ➩ So contribution can be broader than liability
After a 3P∆ is impleaded, how can π join 3P∆ in action (i.e. make it a ∆)?
(1) Amend her complaint to assert complaints directly against TP∆…
Time - (i) W/in 20 DAYS w/o judicial permission or (ii) after 20 DAYS w/ judicial permission
NOTE: π’s claim against 3P∆ generally MUST occur w/in SOL
EXCEPTION: New claims by π “relate back” to date ∆ filed impleader papersAS LONG AS
(i) based on same TRXN or OCCURRENCE as ∆’s impleader claim; AND
(ii) π’s claim against 3P∆ WOULD HAVE BEEN TIMELY on the date of impleader
How does a ∆implead a 3d party?
1) ∆ files Summons & 3d Party Complaint
2) W/in 120 DAYS of filing, ∆ (3Pπ) serves a copy of summons & 3d party complaint on 3P∆ AND P make SURE there is basis for pjx & proper service for 3rd parties
3) TP∆ must serve a 3d party answer on ∆ (3Pπ), π & all other parties
TP∆’s time ltd = SAME that would apply to an ordinary ∆ (20 or 30 days)
What is impleader?
Procedural device used by ∆ to join ANOTHER party alleged to be liable in whole or in part to ∆ for damages that ∆ may have to pay π
General forms: (i) indemnity; OR (ii) contribution
If ∆ joins a 3d party ∆, then ∆ BECOMES 3d party π
NOTE: ∆ may implead 3d party any time AFTER ∆ serves the Answer
What isjoint and several liablity?
Each tortfeasor is liable to π for the WHOLE AMT of damages regardless of the individual tortfeasor’s percentage of fault
NOTE: This is the default rule in NY (except CPLR Art. 16 matters)
What isComparative Degrees of Fault contribution?
MAJORITY APPROACH (MBE) and ONLY RULE IN NY
1) Each tortfeasor is ULTIMATELY liable for his actual fault (any excess paid is the amt of contribution)
2) Each ∆ CANNOT be compelled to pay more than his own equitable share to another tortfeasor
NOTE: π can force any ONE tortfeasor to pay the ENTIRE amt of damages if the others are insolvent
What is theEqual Shares Formula of Contribution?
MINORITY VIEW
All liable tortfeasors pay an equal share of the damages
NOTE: ONLY on MBE – will say “in an equal share jurisdiction” (otherwise assume comparative degree)
How does workers’ compensation ltd contribution and indemnity?
With Workers’ Compensation → π may not sue employer if you are injured on the job Injured π MAY (nevertheless) sue other 3d party tortfeasor (such as manufacturer of machine used, etc.) for ANY injury
On MBE: 3P∆ may NEVER implead employer for contribution/indemnity
In NY: 3P∆ may not implead the employer for contribution/indemnityUNLESS it was a “grave injury” (strictly construed), which is… (i) Death
(ii) Total loss of arm, leg, hand, foot, ear, nose, OR index finger (NOT a thumb)
(iii) Total loss of multiple fingers OR toes (NOT loss of finger tips)
(iv) Paraplegia, quadraplegia
(v) Total blindness or deafness (NOT blindness in one eye)
(vi) Severe facial disfigurement (vii) Brain damage causing total disability
What is the rule for contribution in cases involving successive tortfeasors?
Tortfeasor is liable to π for all injuries that proximately flow from the accident BUThe may claim contribution from a successive tortfeasor who aggravates the injury
E.g. Subsequent malpractice by a doctor who negligently treats π can be sued by accident-causing ∆
REMEMBER: Assuming a doctor was impleaded w/in 2.5 yr SOL, the relevant SOL for contribution is 6 YRS FROM PMT
What is the rule re: π settlement with ONE tortfeasor and contribution?
1) π’s pretrial settlement w/ 1 tortfeasor in partial satisfaction of the claim does NOT discharge π’s claim against other tortfeasors
2) Law prohibits excessive recovery so π can only collect up to total amount of damages
THE REDUCTION FORMULA:Any judgment for π against a non-settling tortfeasor MUST be reduced by the LARGER of:
(i) the amount of settlement; OR (ii) settling tortfeasor’s equitable share of fault
E.g.: πsettles w/ A for $30k. π wins $100k in trial. Ct. says A 10% liable & B 90%. B only owes $70k.
3) A party who settles CANNOT sue or BE sued for contribution (this is NOT the case w/ indemnity)
Policy: Encouraging settlement b/c the settling party is assured that he cannot thereafter be sued for contribution; BUT the settling party ALSO forfeits his own contribution rights
How does CPLR Art. 16 modify joint and several liability in NY?
1) In a personal injury claim a joint tortfeasor whose fault is found to be 50% or lessCANNOT be required to pay the π more than his equitable share of the π’s noneconomic damages
Noneconomic damages= paint & suffering, mental anguish, loss of consortium, loss of companionship (but NOT wrongful death or property damage)
2) BUT for economic damages, ALLtortfeasors are J&S liable for full judgment
E.g. medical expenses, lost income
Ex:π sues A & B for pain and suffering. A = 60% liable & B = 40% liable. $100k award. A is J&S liable for ALL of the damages but B is only liable up to $40k
What are the exclusions fromCPLR Art. 16?
1) Tortfeasors who acted w/intentional tortfeasors or w/ reckless disregard
If multiple tortfeasors - only intentional ones are J&S liable (i.e. the merely negl. tortfeasors ARE eligible for Art. 16)
2) Tortfeasors who release hazardous substance into the environment.
3) Drivers & owners of CARSEXCEPT police or fire cars
NOTE: police officers/firemen, passengers and auto mnfrs ALL get benefit of Art. 16
