NYP 6.txt

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NYP 6.txt
2010-07-13 00:13:50
TPP Contribution Indemnification

TPP, Contribution & Indemnification
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  1. Third-Party Practice (TPP) (Impleader) : What is it?
    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.
  2. How does ∆ implead a third party?
    • 1) File: Summons & TP complaint with the county clerk (and pay fee for index number)
    • 2) Serve: Summons & TP complaint and all prior pleadings on the TP∆ within 120 days of the Filing.
  3. How long does TP∆ have to respond after being served?
    TP∆'s time limit for ANSWERING is the same that would apply to an ordinary. Thus—

    • 20 Days: If TP∆ was served personally, he would have 20 days to serve his answer.
    • 30 Days: If TP∆ was served with any other means, he would have 30 days to serve his answer.
  4. On whom must the TP∆ serve his Answer?
    TP∆ must serve his Answer on ∆, π, and all other parties who have appeared in the action (e.g., other TP∆s, if any)
  5. Statute of Limitations Considerations for TP∆
    For SoL purposes, π's added claim against the TP∆ is treated as interposed on the date the TP∆ was impleaded. (i.e., when ∆ Filed the impleader papers with the county clerk) provided thatπ's claim against TP∆ is based on the same transaction or occurrence as ∆'s impleader claim.
  6. Can π assert a claim directly against a TP∆?
    • YES: Once the TP∆ is joined, π may amend her complaint to assert a claim directly against the TP∆
    • As of right: π may amend as of right if she does so within 20 days after π was served with the TP Answer.
    • Court's discretion: After 20 days, π may amend her complaint to assert a claim directly against the TP∆, but to do so she must make a motion with the court, which motion must be granted.
  7. Indemnity: What is it, and when is it available?
    • Indemnity allows one party to shift 100% of its liability to another party. It is available in the following situations—
    • By contract: Such as were a subcontractor agrees to indemnify its general contractor against any losses
    • Products liability: Such as when a retailer held liable for sale of defective product can seek indemnity from manufacturer
    • Vicarious liability: E.g., owner of a car against the negligently driving owner

    1) What is it?
    2) When does a right of contribution exist?
    • 1) Sharing of loss among multiple tortfeasors who were all actual participants to a tort
    • 2) Whenever a TP∆ breached a duty in tort which contributed to or aggravated the damages for which ∆ may be held liable to π

    Is contribution allowed for intentional torts?
    • MS RULE: Contribution is not available where nature of conduct is intentional wrongdoing
    • NY RULE: Contribution allowed in all tort cases—including intentional torts

    How can ∆ assert claim for Contribution (or indemnity)?
    • CROSS-CLAIMS, if π joined all tortfeasors
    • IMPLEAD TP∆s if π omitted a tortfeasor
    • SEPARATELY sue***

    ***Separate suit is the LEAST DESIRABLE, because findings of fact and apportionment of fault are NOT BINDING in separate suit
  11. CONTRIBUTION. Comparative Degrees of Fault

    1) Can ∆ require joint tortfeasors to contribute more than their share of the judgment?
    2) Can π require a tortfeasor to pay an amount in excess of his share of the judgment?
    • 1) NO: the party from whom contribution is sought can't be required BY ∆ to pay more than his/her share of fault
    • 2) YES: under joint and several liability, the π can make ANY liable ∆ pay the full amount of the judgment

    Can a TP seek contribution or indemnity from a π's employer?
    • MS: TP NEVER has a right to contribution or indemnity against π's employer
    • NY: ONLY IF π sustained a GRAVE INJURY

    What qualifies as a "Grave" injury?
    • Death
    • Total loss of an arm, leg, hand, foot, nose, ear or index finger (but NOT a thumb)
    • Total loss of multiple fingers or toes
    • Total deafness or blindness
    • Paraplegia or quadriplegia
    • Severe facial disfigurement
    • Brain damage causing total disability

    1) What is the reduction formula?
    2) What is the impact on ∆'s right to contribution?
    3) What is the impact on ∆'s right to indemnity?
    (1) REDUCTION FORMULA—any judgment for π against a non-settling tortfeasor must be reduced by the LARGER of

    • a) amount of the settlement, OR
    • b) the SETTLING tortfeasor's share of fault

    (2) CONTRIBUTION claims cannot asserted by or against a settling tortfeasor

    (3) INDEMNITY claims MAY be asserted by or against a settling tortfeasor
  15. Joint and Several Liability in Personal Injury Claims Under CPLR ARTICLE 16
    (1) RULE: In a personal injury case, a joint tortfeasor can be required to pay only his share of NON-ECONOMIC damages if his percentage of fault is ≤ 50 %

    tortfeasors will be jointly and severally responsible for ALL damages (including non-economic) EVEN IF their share of fault is ≤ 50% if they–

    • a) acted with intent or reckless disregard OR
    • b) released a hazardous substance into the environment OR
    • c) were the driver or owner of a motor vehicle (other than police and fire-fighter vehicles)