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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.
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.
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.
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)
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.
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.
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
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
WORKERS' COMPENSATION CASES
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
WORKERS' COMPENSATION CASES
What qualifies as a "Grave" injury?
- 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
SETTLEMENT OF CASES INVOLVING MULTIPLE TORTFEASORS
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
- a) amount of the settlement, OR
- b) the SETTLING tortfeasor's share of fault
claims cannot asserted by or against a settling tortfeasor
claims MAY be asserted by or against a settling tortfeasor
Joint and Several Liability in Personal Injury Claims Under CPLR ARTICLE 16
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)