3rd Party Practice, Contribution, and Indemnification

Question 1

Impleader def and how it works?

Answer 1

D files summons and 3rd P complaint seeking indemnity or contribution and w/in 120 days of so filing, D serves summons and complaint on 3rd P defendant.

Question 2

For 3rd P defendant, do you still have to meet jurisdictional and service of process requirements?

Answer 2

Yes

Question 3

3rd P gets 3rd P complaint. What’s timing for file answer?

Answer 3

Same time limit as ordinary defendant: 20 days (if personally served or acknowledged) or 30 days after service was complete (otherwise).

Question 4

After 3rd P D is joined, can P bring additional claims against 3rd P D?

Answer 4

Yes, P can amend complaint to include 3rd P D.

Question 5

How does Stat of Lim work for P amending complaint as against new 3rd-P D? General rule for complying with Stat of Lim for claim in Am. Compl is that you go with date of amendment. HOWEVER…

Answer 5

RELATION-BACK BENEFIT TO DATE OF IMPLEADER. For S/L purps, P’s added claim against 3rd-P D will be DEEMED INTERPOSED on the day D filed in the impleader papers PROVIDED THAT (1) P’S CLAIM IS BASED ON SAME FACTS as impleader claim, and (2) claim WOULD’VE BEEN TIMELY on date of impleader.

Question 6

Indemnity types (3)

Answer 6

1. K indemnity claims
2. Indemnity implied in law (A. retailer selling some defective product; B. vicarious liability - owner of loaned car can sue driver)

Question 7

1. Contribution def? 2. Joint & several tort liability def? 3. Relation b/t contribution and joint & several liability?

Answer 7

1. apportionment of loss among multiple tortfeasors.
2. each D is liable for whole amount to P (no matter % fault for each).
3. P can collect whole amount from any D, but any D can seek partial reimbursement from other tortfeasors through CONTRIBUTION.

Question 8

Is international tortfeasor entitled to seek contribution? Multistate v. NY

Answer 8

1. Multistate has NO CONTRIBUTION for intentional torts.

2. NY allows contribution even for intentional torts

Question 9

Procedurally, how to you assert contribution (3 ways)?

Answer 9

1. If P originally joined them as co-defendants, they have crossclaims.
2. If not sued as co-Ds, D can add extra D’s through impleader.
3. D can wait until end of case and bring separate action against 3rd P D, but res judicata and collateral estoppel won’t apply against 3rd P D; so findings of fact in first case can’t be used in second case (shitty option).

Question 10

S/L for indemnity and contribution?

Answer 10

6 years from the date of the judgment for which they’re seeking indemnity/contribution.

Question 11

What’s the math for contribution? 2 possible ways to do the math (Majority/minority) –> NY is majority

Answer 11

1. MINORITY: Equal shares formula = all D’s divide amount equally
2. MAJORITY (and NY): Contribution is based on comparative degrees of fault –> contribution D is due is amount D paid above his equitable share.

Question 12

1 D pays and seeks contribution from 2 others who are responsible for 20% each. If one of 2 contributors is insolvent, can D collect from other contributor?

Answer 12

NO. Can only collect from contributor their equitable shares.

Question 13

Can you be liable for contribution even where P couldn’t bring case against would-be contributor? What’s the standard for claim of contribution?

Answer 13

Contributor may have no liability to P, but it may still owe contribution if they exacerbated P’s CoA against D.

Question 14

Employee injured on the job generally gets $ from insurer, can’t sue employer. Employee can sue 3rd P if 3rd P is partially at fault for injury. Can 3rd P seek contribution/indemnity from employer? Multistate v NY?

Answer 14

1. Multistate: 3rd P can’t seek indemnity from employer.
2. NY: 3rd P has no right of contribution or indemnity, UNLESS P SUSTAINED GRAVE INJURY (death, loss of limb, down to index finger, multiple fingers, nose, paralysis, total blindness – DOESN’T COUNT: thumb, 3 finger tips, 1-eye blindness)

Question 15

Contribution from Dr. for malpractice after D hurts P and P sues D – timing required to implead Dr?

Answer 15

D seeking contribution isn’t limited to 2.5 years for medical malpractice for patient. Rather, S/L is 6 years for contribution.

Question 16

Settlements when there are multiple tortfeasors (NY law only): 1. Partial settlement with multiple tortfeasors: discharges any other D’s? 2. How to reduce amount due when there’s a verdict after a settlement?

Answer 16

1. Settlement w/ 1 does not discharge claims against other tortfeasors.
2. Any judgment for P must be reduced by the LARGER OF (a) settlement amount, or (b) settlor’s equitable share of total due.

Question 17

1. What effect does a settlement have on contribution claims?
2. What’s the effect of settlement on indemnity claim?

Answer 17

1. SETTLEMENT ENDS CONTRIBUTION CLAIMS. A party who settles cannot sue or be sued for contribution.
2. SETTLEMENT DOESN’T AFFECT INDEMNITY CLAIMS. Settling party can sue and be sued for indemnity.

Question 18

NY CPLR Art. 16: Cuts down joint and several liability for multiple tortfeasors?

Answer 18

Generally, when joint tortfeasor is 1. less than 50% at fault and 2. P has suffered non-economic damages (e.g., pain & suffering), tortfeasor can only be made to pay the non-economic damages. If you’re over 50% liable, you gotta pay all if needed.
Econ damages are not exculpated by Art 16. Joint and several still applies w/r/t all econ damages.

Question 19

Three types of tortfeasors are subject to full joint and several liability and don’t get benefits of CPLR Art 16?

Answer 19

1. Tortfeasor acting w/ intent or reckless disregard for others
2. Hazardous substance-releasing tortfeasor
3. Drivers and owners of cars (other than police & fire vehicles)