Allocation of liability among multiple defendants…. Joint Tortfeasers

1. Allocation of liability among multiple defendants…. Joint Tortfeasers • joint & several liability • contribution & indemnity • satisfaction & discharge • releases • apportionment • Relationship to comparative fault

2. Joint & Several Liability Issue addressed is who is liable for what to ∏? • General rule of Joint & Several Liability? • Each D is jointly liable with all other Ds for all damages and each D is also individually liable for full amount: P can get compensation from any one or all as group(rule favoring P’s full compensation) • Basis for joint liability (when does it apply) • 1stDs act in concert to create “joint risk” (see note 5, p. 363) • 2nd Note 7: Failure to perform common or shared duty • e.g. elevator falls (landlord/ tenant/ repair co.)…may include vicarious liability relationships (e.g., partners) • 3rd Note 8: Independentacts of negligence combine to create indivisible injury (not capable of apportionment) distinguish from procedural “joinder” of parties and claims (see note 3, p. 362)

3. Case Illustration • Bierczynskiv. Rogers Basis for Joint & Several Liability? • Assume: $100,000 in damages  in this case means….what? If Race has no $? If ∏ hates Rodgers and is best bud with Race? • Contrast: from “apportionment” acting independently D1 breaks P’s leg, D2 breaks P’s nose… • The evidence shows which D caused what damage…that is, the damages can reasonably be apportioned between them NB: the D’s act independently…if they act in concert?

4. Joint & Several Liability Under Comparative Negligence • Comparative fault  accounting for contributory negligence of P by reducing damages by percentage of fault • If Jury must assess relative fault of P why not also for other defendants? • D1: 60% fault, D2: 30% fault, P: 10% fault • Any effect on J & S liability? • Arguments for and against eliminating J & S • Key policy problem: Risk of missing or impecunious D • Florida? figure it out based on statute

5. Satisfaction & Discharge • General Rule? • Recovery from any or all- but only one satisfaction of claim • Bundt v. Embro • What is the “one satisfaction” mean? • Settlement? • Multiple judgments? • Partial Satisfaction- Note #4 -must credit other ∆’s • Collateral Sources- Note # 4

6. Settlements & Release of Joint Tortfeasors • Common law rule: • Release one of J.T. releases all • What is a “release”? • Legal effect? Surrenders ∏’s claim • Distinct from “satisfaction”? • How is “covenant not to sue” different? • K’tual promise not to sue which does not technically release claim against D • Modern approach • Mary Carter Agreements

7. Contribution • Common Law Rules on Contribution • Ds may seek contribution from other Ds who paid less than their share…which is? • Traditional Rule for dividing damages among joint ∆’s: if there are 4 ∆s & 100,000 judgments? • pro rata apportionment b/w Ds • J & S  who pays what to P versus Contribution how D’s divide up…between Ds • What if a state eliminates J & S? Effect on contribution?

8. Contribution & settlement What if ∆1 settles for $1000 but later Judgment against ∆2 for $100,000? Can ∆2 seek contribution from ∆1? If so, why would ∆1 settle?  What if D1 settles for $100,000? Can he seek contributions for other non-settling Ds? • Knell v. Feltman: when can D seek contribution…? • what if P doesn’t sue D2? • C/L rule against Contribution among joint tortfeasors…intentional torts • Under Fla. Law?768.31 (2)(d) and (5)(b)? • Yellow Cab (immune D)

9. Indemnity • Distinct from Contribution in that entire liability of D …is shifted to actual tortfeasor (or by K’tual promise) • Why? • Liability imposed by law/relationship e.g. vicarious, dangerous instrumentally, innocent partner