Historical Overview• Two or more persons engaged in unlawful

enterprise are jointly and severally liable.• No apportionment allowed unless factual

basis for doing so: examples–Successive injuries to different body

parts.–Second injury as direct consequence of

first injury.

Comparative Fault RSA 507:7-d

• Reduced by percentage attributable to plaintiff up to 50%.

• Fault of defendants is aggregated.

• Plaintiff is barred recovery if 51% at fault.

Apportionment of Damages

• If “party” is less than 50% at fault, then liability is several NOT joint. RSA 507:7-e I(b)

• Purpose: Protection of minimally at fault defendants.

• “Party” refers to defendants, not plaintiff.

However:

• Knowingly and actively pursue a common plan or design then joint and several liability.

• Pollution containment and cleanup- joint and several liability.

Contribution 507:7-f; 7-g; 7-h

• Right of contribution exists between two or more persons who are jointly and severally liable for some indivisible harm.

• No contribution available to person who settles a claim unless settlement extinguishes the liability of person from whom contribution is sought. – Only to extent amount paid was reasonable.

No right of contribution exists against:

• At fault plaintiff• Person immune from liability

Enforcement of Contribution

• On motion in the same action.• By separate action.• No judgment needs to rendered

against party seeking contribution.

Contribution S.O.L.

• Judgment rendered:–1 year from final judgment

• Judgment not rendered:–1 year from settlement (settlement

must be within underlying statute of limitations)

Effect of Release

• Common law – presumption that settled entire case, all defendants.

• RSA 507:7-b – release for one tortfeasor not presumed to release all tortfeasors.

• Release or covenant not to sue given to a defendant in GOOD FAITH (reasonable payment) discharges that party from contribution action.

Judicial Procedure

• Usually special verdict.• Court calculates proportionate

shares.• If joint and severally liable, subject to

reduction for amount paid by codefendant’s settlement.

• 60 days – reapportionment – 50/50 only.

Resolution of Claims for Contribution

• AAA by agreement.• Court of competent

jurisdiction.• Plaintiff’s veto.

The Nilsson Case• Nilsson vs. Bierman

–Facts– Issues - To which “parties” does

apportionment apply?• Settling party? Yes.• Parties not sued?• Employers?• Immune parties?

How does the credit apply?

• Pro tanto credit only given to defendants who are jointly and severally liable.

Indemnification

• Contribution vs. Indemnity–Contribution – pay proportionate

share.–Indemnity – looking for full

reimbursement.

Indemnity by Contract

• NH allows contracts which indemnify losses arising out of the indemnities' own negligence.–Must be very clearly expressed.–Construed narrowly.

Indemnity by Operation of Law

A. Where one without fault on his part has been compelled by a legal obligation to pay an injured party for damages caused by fault of another.

• Example:– Respondent superior– Owner/independent pays for neglect of others– Manufacturer/supplier/component manufacturer

B. Extremely Limited.

C.One seeking indemnity must be free from fault.

The End