Slide 1

Report
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

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