Third-Party Practice

Question 1

What are the broad mechanics of impleader?

Answer 1

1. Join the TPD
2. TPD must serve answer on D, P, and all other parties under same time-period for ordinary Ds
3. P may amend complaint to make TPD within 20 days or by motion with court permission

Question 2

What are the steps for joining a TPD through impleader? (usually indemnity or contribution)

Answer 2

1. File
2. Serve summons and complaint on TPD and other parties within 120 days of filing (need basis of PJ and proper service)

Question 3

What is the rule for compliance with the SoL for TPD claims in amended complaint?

Answer 3

1. Generally, date of amendment must be within SoL for the claim being asserted by P against TPD
2. UNLESS relation back benefit available

Question 4

When is the relation back benefit available?

Answer 4

SoL claim deemed interposed on date TPD was impleaded if:

1. P’s claim based on same transaction or occurrence as impleader claim AND
2. P’s claim would have been timely on the date of the impleader

Question 5

What are the two ways that indemnity can be available (for impleader claims)?

Answer 5

1. By contract
2. Implied-in-law indemnity

Question 6

What constitutes implied-in-law indemnity?

Answer 6

1. Products liability (retailer entitled to indemnity from manufacturer)
2. Vicarious liability situations (owner entitled to indemnity from driver with permission)

Question 7

When is an intentional tortfeasor entitled to seek contribution? (MBE) (NY)

Answer 7

Multistate: Contribution unavailable for intentional torts

NY Rule: Contribution allowed in all tort cases

Question 8

What are the three ways to assert claims for contribution/ indemnity?

Answer 8

1. If originally joined, Ds may crossclaim
2. D may implead other tortfeasors
3. May assert separate suit (though collateral estoppel won’t apply)

Question 9

What is the SoL for contribution/indemnity?

Answer 9

6 years from the date of payment of the judgment

Question 10

What is the equal shares formula for contribution (minority rule)?

Answer 10

Contribution shares are always equal amounts (percentages irrelevant)

Question 11

What is the comparative degrees of fault rule for contribution (NY/majority)

Answer 11

1. Contribution amount is the amount of overpayment above his percentage of responsibility, AND
2. A party cannot be required to pay more than her equitable share, AND
3. Contribution rules do not affect P’s ability to impose joint and several liability (collect from the deep pockets)

Question 12

What is the substantive law rule for contribution?

Answer 12

Contribution available regardless of whether P has right of recovery against D IF D’s tortious actions caused or aggravated the harm

Question 13

What is the limitation on contribution in Workers’ comp cases? (MBE) (NY)

Answer 13

Multistate: 3d parties have no right of contribution against P’s employer

NY Rule: 3d party has no right of contribution against P’s employer UNLESS employee sustained a grave injury

Question 14

What is the contribution rule in cases involving successive tortfeasors?

Answer 14

???