Contribution and third party practice

Question 1

What is Impleader?

Answer 1

Procedural device used by D to join another party alleged to be liable to D for damages D may have to pay P

Question 2

What are the steps for joining a third party defendant?

Answer 2

1. File summons and TP complaint with county clerk
2. Serve summons and TP complaint and all prior pleadings on TPD within 120 days of filing
3. Then TPD must file answer as if normal D, ie the 20, 20, 30 rule depending on method of service.

Question 3

What is the S/L for claims added by amendment of complaint against TPD?

Answer 3

P’s added claim against TPD relates back to date TPD impleaded as long as P’s claim against TPD based on same transaction or occurrence as impleader claim

Question 4

What is indemnity?

Answer 4

Allows one party to shift 100% of responsibility to another party, either by contract or vicarious liability

Question 5

What is contribution?

Answer 5

Sharing of loss among multiple tortfeasors who are all actual participants in the tort

NY: contribution allowed in ALL tort cases
MS: contribution not available in intentional torts

Question 6

Why do we like contribution if we are a defendant?

Answer 6

It mitigates the harshness of joint/several liability.

Question 7

What is the S/L for a contribution claim?

Answer 7

6 years from actual payment of Judgment

Question 8

What is the NY contribution formula?

Answer 8

Amount of contribution to which tortfeasor entitled is excess actually paid by him over his equitable share of judgment

Question 9

When does the right to contribution exist?

Answer 9

Whenever TPD breached a duty in tort which contributed to or aggravated the damages for which D may be held liable to P

EXCEPT: employer immune from contribution/indemnity claim by third-party unless P suffered a “grave injury”

Question 10

What if one of many tortfeasors settles prior to case?

Answer 10

Does not discharge other tortfeasors’ liability

Question 11

How much is there a reduction if one of the D’s has settlement

Answer 11

REDUCTION: judgment for P against non-settling tortfeasor reduced by LARGER OF (a) amount of settlement, or (b) settling tortfeasor’s equitable share of fault

Question 12

Can you claim after a settling tortfeasor?

Answer 12

Claims for contribution cannot be asserted by or against a settling tortfeasor

Question 13

Does settlement extinguish indemnity claims?

Answer 13

NO!

Question 14

What is the CPLR article 16 NY JSL tort liability rule?

Answer 14

In a personal injury claim, when joint tortfeasor is 50% or less at fault AND P has sustained non-economic damages, can only be required to pay own share of non-economic damages

EXCEPT: (a) acted with intent or reckless disregard; (b) released hazardous substance into environment; or (c) drivers/owners of non-police/fire vehicles

Question 15

What is the purpose of CPLR article 16 NY JSL tort liability rule?

Answer 15

Modifies law of JSL to give break to deep pocket defendants with small % of liability.

Question 16

With respect to CPLR 16, what are the non-economic damages?

Answer 16

Pain, suffering, mental anguish, loss of consortium. Cannot get rule for economic, property, damage excluded.