NY Practice: Third Parties

What are the two views for calculating contribution shares?

1. Equal Shares Formula (minority): the shares are always equal in amount, even if % fault is different 2. Comparative Degrees of Fault (MBE/NY): the contribution amount due is equal to % fault, and no party can be req'd to contribute more than their % share

How does D implead a TPD?

1. Files a summons and 3rd party complaint 2. Serves a copy of the summons and 3rd party complaint on TPD within 120 days of filing Note: P is also entitled to a copy of all papers served on TPD

In what ways can D assert a claim against another tortfeasor for contribution or indemnity?

1. If co-D, can assert cross-claim 2. If not a co-D, can implead as TPD 3. Can sue TPD in separate action

What is "impleader"?

A procedural device used by D to join another party alleged to be liable in whole or in part to D for damages that D may have to pay P.

What is indemnity?

Allows one party to shift 100% of the responsibility to another party

What happens if P settles with one co-D prior to trial?

P can't recover in excess of his actual damages, so P's subsequent judgment against the other co-Ds is reduced by the LARGER of: 1. The amount of the settlement 2. The settling tortfeasor's equitable share of the fault

Can D seek contribution from a TPD even if P has no right of recovery against the TPD?

YES! The right to contribution exists whenever TPD breached a duty which contributed to or aggravated the damages for which D may be held liable to P.

Can P amend her complaint to include TPD as a new D?

Yes, and the amendment does not require judicial permission if done within 20 days after P is served with the 3rd party answer.

Can a D who has settled with P be sued for indemnity?

Yes. A party who settles can sue, and be sued, for indemnity.

What if a jury find a tortfeasor partially liable, but that tortfeasor wasn't a D in the case?

That tortfeasor is not bound by the finding because he was not a party to the action (needs his day in court)

How can indemnity arise?

1. By contract 2. Implied-by-law

What is a "grave injury"?

1. Death 2. Total loss of arm, leg, hand, foot, nose, ear, or index finger 3. Total loss of multiple fingers or toes 4. Parapalegia or quadriplegia 5. Severe facial disfigurement 6. Total deafness or blindness 7. Brain damage causing total disability

What constitutes "non-economic damages"?

1. Pain and suffering 2. Mental anguish 3. Loss of consortium

In what two situations is indemnity implied by law?

1. Products liability (retailer is entitled to indemnity from manufacturer) 2. Vicarious liability (liable party is entitled to indemnity from active tortfeasor)

What type of tortfeasors are EXCLUDED from CPLR Article 16?

1. Tortfeasors acting with intent or reckless disregard for the safety of others 2. Tortfeasors who released a hazardous substance into the environment 3. Drivers and owners of motor vehicles (other than police and fire vehicles)

In successive tort cases (i.e. medical malpractice aggravates injuries), what SoL governs the contribution or indemnity claim?

6 years from date of judgment! Ignore the successive tort's own SoL.

What constitutes "economic damages"?

Any out-of-pocket monetary losses, including lost income and medical expenses.

When can D implead a third party defendant (TPD)?

At any time after D serves the answer to the complaint.

How is the SoL measured with respect to P's new additional claim against TPD?

General Rule: Measured by date P amended complaint to include TPD as D. Exception: Measured by date TPD was impleaded by D, if... 1. P's claim against TPD is based on the same transaction as the impleader claim; AND 2. P's claim against TPD was timely on date of impleader

How does CPLR Article 16 limit a joint tortfeasor's liability?

In a PERSONAL INJURY claim, if a joint tortfeasor is 50% or less at fault, he can only be required to pay his own share of P's NON-ECONOMIC damages. (But still jointly and several liable for the whole judgment with respect to economic damages.)

How does CPLR Article 16 affect a joint tortfeasor's liability when he is 51% or more at fault?

It doesn't. He is still jointly and severally liable for the entire judgment, for both economic and non-economic damages.

Is an intentional tortfeasor entitled to seek contribution?

MBE: No NY: Yes

If P sues a 3rd party (not her employer) for an injury she suffered on the job, can the 3rd party seek contribution or indemnity from P's employer, or is he barred by the Worker's Compensation statute?

MBE: No right of contribution/indemnity from P's employer NY: Same rule, UNLESS P sustained a "grave injury"

Does CPLR Article 16 apply to wrongful death claims or property damage claims?

No, because the damages in these cases are, by law, limited to economic losses.

Can other co-Ds sue a co-D who has settled with P for contribution?

No. A party who settles cannot sue or be sued for contribution.

How long does TPD have to respond to D's summons and 3rd party complaint?

Same time limits as usual, depending on method of service of process.

What is "contribution"?

The sharing of loss among multiple tortfeasors who are all actual participants in the tort. D who actually pays P can seek partial reimbursement from the other tortfeasors.