Presented by: Attorney Laurence W. Getman

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? DeBenedetto• Employers? DeBenedetto• Immune parties? DeBenedetto

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 indemnitee’s own negligence.–Must be very clearly expressed.–Construed narrowly.

RSA 338-A:2

Limits the breadth of the subcontractor’s duty to indemnify the general contractor.

Indemnity by Operation of Law

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

Implied Indemnity

– Extremely Limited.

– One seeking indemnity must be free from fault.

Implied Indemnity

The rationale for finding an implied indemnitee’s agreement to indemnify is based on the fault of the indemnitor as the source of indemnitee’s liability and conversely the indemnitee’s freedom from fault in bringing about the dangerous condition.

Cases

• Wentworth vs. Gray (painter/owner)

• Sears, Roebuck vs. Phillip (slippery floors)

• Jaswell Drill Corp. vs. Gill (defective component part)

But see...• Field vs. Nuroco (consumer to manufacturer)

• Collectramatic vs. Kentucky Fried Chicken

Effect of Settlement by Indemnitee• An indemnitor who has been notified to

appear and defend may be bound by the judgment rendered against indemnitee.

• If the indemnitee fails to give the indemnitor an opportunity to approve the settlement or defend in the underlying action, then it will have burden of showing actual liability to original plaintiff plus the indemnitee must establish the reasonableness of the settlement.

Indemnitor’s Obligation to Pay Costs and Attorney’s Fee

Unless provided for per agreement of the parties, generally each party must bear its own costs associated with the litigation.

Time of Filing Indemnification Action

• Breech of contract – runs from date indemnitee actually suffers a loss– 3 years from settlement /judgment

• Premature filing

Insurance Issues

• Additional Insured Status– Only with respect to named insured’s

“ongoing operations”• Contract Provisions re: Insurance• Other Insurance Clause

The End