Contribution and Third Party Practice

Question 1

What is impleader? What are the mechanics?

Answer 1

Impleader is a procedural device used by defendant to join annother party alleged to be liable in whole or in part to the defendant for damages that the 3rd party defendant may have to pay plaintiff. The usual claim in these circumstances is for indemnity or contribution.

Defendant does not need a court order - he or she may implead a 3rd party defendant at any time after the defendant serves the answer to the complaint.

Question 2

Can the plaintiff amend his or her complaint to assert a claim directly against the 3rd party defendant? How should the statute of limitations be applied with respect to the plaintiff’s newly added claim against the 3rd party defendant?

Answer 2

Yes, and therby making the 3rd party defendant an additional defendant in the plaintiff’s action.

General rule for SOL: date of the amendment must be within the SOL for the claim being asserted by the plaintiff against the 3rd party defendant.

Exception: relation back benefit for impleader related claims - for the SOL purposes, plaintiff’s added claim against 3rd party defendants will be deemed interposed on the date the 3rd party defendnant was impleaded (when defendant filed the impleader papers) provided the plaintiff’s claim against the 3rd party defendant is based on same transaction or occurance as the impleader claim, AND plaintiff claim against defendant would have to be timely on the date of impleader.

Question 3

What is indemnity? What is implied in law indemnity?

Answer 3

Indemnity allows one party to shift 100% of the responsibility to another party.

There are two types of implied in law indemnity:

Products liability: retailer held liable for selling defective product is entitled to indemnity from manufacturer.

Vicarious liability situations: for those principals that are liable purely vicariously can be indemnified by the agent.

Question 4

What is contribution? How do you assert claims for contribution?

Answer 4

Contribution involves a sharing of the loss - apportionment - among multiple tortfeasors who are all actual participants in the tort.

There are three ways to assert claims for contribution:

a. If plaintiff originally joined the tortfeasors as co-defendant’s, the can assert cross-claims against each other.
b. If plaintiff omits a torteasor, a defendant can implead the outsider as 3rd party defendant.
c. Tortfeasor may sue 3rd party defendant in a separate action, but collateral estoppel will not apply against 3rd party defendant.

Question 5

What is the rule of contribution when the plaintiff settles with one defendant, but not others?

Answer 5

The law prohibits excess recovery for plaintiff, so any judgment for plaintiff against a non-settling tortfeasor will have to be reduced to take account of the settlement.

The reduction formula: Any judgment for plaintiff against a non-settling tortfeasor must be reduced by either:

1. the amount of the settlement, OR
2. the settling tortfeasor’s equitable share of the fault,
   * whichever is larger*.

The party that settles cannot sue or be sued for contribution.

Question 6

What is NY’s modification to the law of joint and several liability?

Answer 6

In a personal injury claim, when a joint tortfeasor is:

1. 50% or less at fault;
2. If the plaintiff has sustained non-economic damages, then the joint tortfeasor can only be required to pay her own share of the non-economic damages.

Non-economic damages consist of (i) pain and suffering, (ii) mental anguish, and (iii) loss of consortium.

Any defendant liable for 51% or more of the total liability for a personal injury claim is jointly and severally liable for the entire judgment, both economic and non-economic damages.