Indemnification permitted either by contract by operation of law under strict

Indemnification permitted either by contract by

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Indemnification permitted either by -contract -by operation of law -under strict liability for a defective product -where substantial difference in degree of fault -there is an active-passive relationship Joint and several as to certain types of damages; or II. Several Liability (1) Each D is only responsible for the % of fault assigned to that D, P cant recover more than % *Florida applies several liability in most cases, recently abolished J&S in most cases III. Hybrid Approach If D is found less liable then P, P can only be held to several liability Divisible v. Indivisible Harm Divisible: where P suffers multiple injuries but a specific D is the cause in fact of a particular one
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Indivisible: where P suffers single or multiple injuries but more than one D is a substantial factor in causing all of the harm Absent and Immune Defendants Many states now allow the conduct of absent or immune tortfeasors to be considered along with originally named parties -Reasons for absence: unknown, unable to join, immune, prior settlement -Immune D however will not be liable in contribution regardless of finding of fault Note: in fl, to allocate fault to a nonparty, D must affirmatively plead fault, identify or describe nonparty if feasible, and at trial, prove nonparty’s fault by preponderance of evidence. Indemnification based on contractual provision, vicarious liability (Respondeat Superior) Contribution is based on joint and several liability Settlement and Release Settlement/release A surrender of the right to sue or to continue to sue a party - does not discharge other D’s unless terms so provided -In joint and Several state, claim is generally reduced by -amount other Ds paid for release OR -extinguishes the proportionate share of the settling party in its entirety so that P bears burden of bad settlement *the court has to accept the settlement e.g. P sues D1 and D2 P settles with D1 for 3,000 Jury awards 10,000 P 10% fault, D1 40% fault, D2 50% several liability D2 has to pay 5,000 P1 has to eat 2,000 Joint and several liability D2 has to pay 6,000 - unfair to D2 P has to eat 1,000 Right to contribution and settlement A settlement in good faith operates as a discharge for contribution by any tortfeasor, including settling party, unless the settlement completely extinguishes the right of P to sue other tortfeasors. Satisfaction Once P has recovered full payment from one or more Defendants, either by settlement or by payment of a judgment -P cannot recover any more from any other D. -P must file a Satisfaction of Judgment *D still may have a right to contribution/indemnification from other D’s. Comparative fault and intentional conduct Negligent P v. Intentional D: in a comparative negligence, majority will still consider P’s conduct so as to reduce intentional D’s liability Negligent D v. Intentional D:
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Where joint and several liability applies, an intentional tortfeasor generally may not recover in contribution (for any excess paid) Orphan Shares Several liability P may not be able to recover from insolvent, unidentifiable, or otherwise unreachable D’s.
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  • Fall '07
  • Hoener
  • assumption of risk, Personal injury, comparative negligence

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