2. Presented by: Attorney Laurence W. Getman

3. 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.

4. 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.

6. 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.

7. However: Knowingly and actively pursue a common plan or design then joint and several liability. Pollution containment and cleanup- joint and several liability.

8. 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.

9. No right of contribution exists against: At fault plaintiff Person immune from liability

11. Enforcement of Contribution On motion in the same action. By separate action. No judgment needs to rendered against party seeking contribution.

12. 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)

13. 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.

15. Judicial Procedure Usually special verdict. Court calculates proportionate shares. If joint and severally liable, subject to reduction for amount paid by codefendants settlement. 60 days – reapportionment – 50/50 only.

16. Resolution of Claims for Contribution AAA by agreement. Court of competent jurisdiction. Plaintiffs veto.

18. 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

19. How does the credit apply? Pro tanto credit only given to defendants who are jointly and severally liable.

21. Indemnification Contribution vs. Indemnity –Contribution – pay proportionate share. –Indemnity – looking for full reimbursement.

22. Indemnity by Contract NH allows contracts which indemnify losses arising out of the indemnitees own negligence. –Must be very clearly expressed. –Construed narrowly.

23. RSA 338-A:2 Limits the breadth of the subcontractors duty to indemnify the general contractor.

25. 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

26. Implied Indemnity –Extremely Limited. –One seeking indemnity must be free from fault.

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

28. 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

29. 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.

30. Indemnitors Obligation to Pay Costs and Attorneys Fee Unless provided for per agreement of the parties, generally each party must bear its own costs associated with the litigation.

31. Time of Filing Indemnification Action Breech of contract – runs from date indemnitee actually suffers a loss –3 years from settlement /judgment Premature filing

32. Insurance Issues Additional Insured Status –Only with respect to named insureds ongoing operations Contract Provisions re: Insurance Other Insurance Clause

33. The End