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Contribution
and Indemnity
When a plaintiff is injured by two or more defendants' tortuous
acts that join to cause the injury, each defendant is "jointly
and severally liable" for that injury. This means that the
plaintiff may recover the entire amount of damages from any of the
defendants. The defendants, in turn, may seek contribution or indemnity
from each other.
Contribution
Contribution enables any defendant who is required to pay more than
his share of damages to a plaintiff to recover the excess in a claim
against the other defendants. The rule of contribution requires
that responsibility among all the defendants be apportioned. Most
states allow defendants to seek contribution.
Apportionment by equal shares requires all the defendants to pay
equally regardless of how much at fault they were.
Under the rule of comparative contribution, which applies in some
states, contribution is imposed in proportion to the degree of fault
of each defendant.
If the defendants join to commit an intentional tort, such as assault
and battery, against the plaintiff, contribution among the defendants
is not available.
Indemnity
Indemnity shifts the entire loss to one or more defendants.
Indemnity may arise by contract in which one party agrees to indemnify
another against the consequences of his own negligence.
Indemnity may be sought by a party who was held vicariously liable
for damages caused by another person because of his relationship
to that person (e.g., an employer may seek indemnity for the acts
of an employee).
Suppliers of a defective product that are sued in a strict products
liability action by an injured user of the product may seek indemnity
from the previous suppliers in the distribution chain. The manufacturer,
which is the first supplier, is ultimately liable if the product
was defective when it left its hands.
If there is a considerable difference in degree of fault among the
defendants, some states allow one defendant to recover against another
under the principle of indemnity. Thus, the defendant who is least
at fault may recover indemnity against the defendant who is most
at fault.
Copyright
2005 LexisNexis, a division of Reed Elsevier Inc.
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