3d Party Practice Flashcards

1
Q

How can ∆ assert a claim of contribution OR indemnity?

A

1) If tortfeasors already co-∆s → they can assert CROSSCLAIMSagainst ea other

2) If some tortfeasors are NOT part of suit → the ∆ can:
IMPLEAD the TP∆;OR

3) If some tortfeasors are NOT part of suit → the ∆ can:
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 2nd 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) ∆ must meetSOL: contribution AND indemnity has a 6-yr SOL that runs from the DATE OF PAYMENTof the judgment for which contribution/indemnity is sought

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2
Q

INDEMNITY

What is indemnity AND how can it be asserted?

A

Indemnity: Allows ∆ to shift 100% of the responsibility or damages to another party

Can be accomplished…
(i) by K (e.g. sub-contractor)

(ii) if implied-in-law E.g. Products Liability – mnfr must indemnify retailer for selling defective product
E.g. Vicarious liability – IN NY, an owner is vicariously liable for the acts of a driver BUT an owner is entitled to indemnity from the driver

NOTE: A Settlement btwn ∆ and a π does NOT extinguish claims for indemnity BY or AGAINST a settling tortfeasor

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3
Q

CONTRIBUTION

What is contribution AND its purpose?

A

Contribution =the 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: CPLR Article 16

NOTE: 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 a clause in K only allowing liability for gross negligence BUT the mnfr-∆ can STILL implead him for aggravating the damages ➩ So contribution can be broader than liability

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4
Q

IMPLEADER: π v. TP∆

After a TP∆ is impleaded, how can π join TP∆ in action (i.e. make TP∆ an additional ∆ in π’s action)?

A

HOW:
After TP∆ is joined, π can amend her complaint to assert complaints directly against TP∆… EITHER
(i) w/in 20 DAYS w/o obtaining judicial permission; OR
(ii) after 20 DAYS w/ judicial permission if π waited longer than the 20 days after TPD was joined (π will need to make a motion to get the ct’s permission)

SoL:
π’s claim against TP∆ generally MUST occur w/in SoL

EXCEPTION: New claims by π “relate back” to date ∆ filed impleader papersAS LONG AS:

(i) π’s claim against TP∆based on same TRXN or OCCURANCE as ∆’s impleader claim; AND
(ii) the π’s claim against the TP∆ WOULD HAVE BEEN TIMELY on the date of impleader

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5
Q

IMPLEADER: THE MECHANICS

How does a ∆implead a 3d party?

A

1) ∆ files a Summons & 3rd Party Complaint w/the Ct.
2) w/in 120 DAYS of filing, ∆ (the now 3Pπ) serves a copy of summons & 3rd party complaint on 3P∆ AND π (π is also entitled to a copy of all papers served on TPD)

NOTE: make SURE there is basis for pjx & proper service for 3rd parties

3) TP∆ must serve a 3rd party answer on ∆ (3Pπ), π & all other parties

TP∆’s time ltd for answering is the SAME that would apply to an ordinary ∆ (REVIEW!) — Either 20 or 30 days DEPENDING on where/how the 3P∆ was served w/ process

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6
Q

IMPLEADER: WHAT IT IS

What is impleader?

A

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 arising from the same T/O as π’s CoA

Two general forms:

(i) indemnity; OR
(ii) contribution

If ∆ joins a 3d party ∆, then ∆ BECOMES 3d party π

Note: ∆ DOES NOT need a Ct. order (i.e. no need to make a motion)

NOTE: ∆ may implead 3d party any time AFTER ∆ serves the Answer

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7
Q

JOINT AND SEVERAL LIABILITY

What isjoint and several liability?

A

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)

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8
Q

COMPARATIVE DEGREES OF FAULT CONTRIBUTION

What isComparative Degrees of Fault contribution?

A

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

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9
Q

EQUAL SHARES FORMULA FOR CONTRIBUTION (MINORITY VIEW)

What is theEqual Shares Formula of Contribution?

A

Equal Shares Formula (MINORITY VIEW) = All liable tortfeasors pay an equal share of the damages

NOTE: this is ONLY on MBE – will say “in an equal share jurisdiction” (otherwise assume comparative degree)

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10
Q

Workers Comp and Indemnity/Contribution

How does workers’ compensation limit contribution and indemnity?

NOTE: MBE vs. NY DIFFERRENCE

A

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: TP∆ may NEVER implead employer for contribution/indemnity

***In NY: TP∆ 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 just blindness in
one eye)
(vi) Severe facial disfigurement
(vii) Brain damage causing total disability

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11
Q

RULE OF CONTRIBUTION W/SUCCESSIVE TORTFEASORS

What is the rule for contribution in cases involving successive tortfeasors?

A

Rule: tortfeasor is liable to π for all injuries that proximately flow from the accident BUThe may claim contribution from a successive tortfeasor who aggrevates the injury

E.g. subsequent malpractice by a doctor who negligently treats π can be sued by the accident-causing ∆

REMEMBER: the relevant SOL for contribution is 6 YRS FROM PMT so if claim is for contribution (even if it is contribution b/c of the malpractice, SoL will be 6yrs and NOT 2.5 yrs)

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12
Q

RULE FOR CONTRIBUTION WHEN THERE IS SETTLEMENT

What is the rule re: π settlement with ONE tortfeasor and contribution?

A

1) Rule: 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) the 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

4) A party who settles CAN sue or BE sued for INDEMNITY

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13
Q

CPLR ART. 16

How does CPLR Art. 16 modify joint and several liability in NY?

A

1) Rule =
(i) in a PERSONAL INJURYclaim;
When a joint tortfeasor is:
(ii) 50% or lessAT FAULT; and
(iii) π has sustained non-economic damages

Then THIS joint tortfeasor CANNOT be required to pay the π more than his equitable share of the π’s noneconomic damages

Noneconomic damages= pain & 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

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14
Q

CPLR ART. 16

What are the exclusions fromCPLR Art. 16?

A

Exceptions from Art. 16 (i.e. these tortfeasors ALWAYS liable for J&S liability):

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

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