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Historical Overview

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.

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Historical Overview

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  1. 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.

  2. 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.

  3. 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.

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

  5. 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.

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

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

  8. 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)

  9. 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.

  10. 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.

  11. Resolution of Claims for Contribution • AAA by agreement. • Court of competent jurisdiction. • Plaintiff’s veto.

  12. The Nilsson Case • Nilsson vs. Bierman • Facts • Issues - To which “parties” does apportionment apply? • Settling party? Yes. • Parties not sued? • Employers? • Immune parties?

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

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

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

  16. 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

  17. Extremely Limited. • One seeking indemnity must be free from fault.

  18. The End

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