Bill Text: NY A02372 | 2019-2020 | General Assembly | Introduced
Bill Title: Provides, in tort cases where one defendant has settled, that remaining defendants must elect, prior to trial, whether to reduce liability by the amount of the settlement or by the amount of the equitable share of damages delegated to the settler in the verdict.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2019-12-20 - VETOED MEMO.282 [A02372 Detail]
Download: New_York-2019-A02372-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2372 2019-2020 Regular Sessions IN ASSEMBLY January 22, 2019 ___________ Introduced by M. of A. DINOWITZ -- read once and referred to the Commit- tee on Judiciary AN ACT to amend the general obligations law, in relation to settlements in tort actions; and to repeal section 15-108 of such law relating to release or covenant not to sue The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 15-108 of the general obligations law is REPEALED 2 and a new section 15-108 is added to read as follows: 3 § 15-108. Settlements in tort actions. (a) Effect of settlement. (1) A 4 settlement reached with one of two or more persons who are liable or 5 claimed to be liable in tort for the same injury or wrongful death does 6 not discharge any other tortfeasor from liability unless its terms 7 expressly so provide, except that each of the remaining tortfeasors may 8 choose to reduce his or her liability to the plaintiff or claimant by 9 the stated settlement amount, the consideration actually paid, or the 10 settling tortfeasor's equitable share of the damages as determined under 11 article fourteen of the civil practice law and rules. 12 (2) When more than one person settles with a plaintiff or claimant, 13 each of the remaining tortfeasors may choose to reduce his or her 14 liability to the plaintiff or claimant by the total of all stated 15 settlement amounts, the total consideration actually paid for all of the 16 settlements, or the total of the settling tortfeasors' equitable shares 17 of the damages as determined under article fourteen of the civil prac- 18 tice law and rules. 19 (3) The choice authorized by this subdivision shall be made in open 20 court or in a writing subscribed on behalf of the party seeking to limit 21 liability, and shall be made prior to the first opening statement of the 22 trial unless the party making the election only later becomes aware that 23 a settlement has occurred. In the latter event, the election shall be 24 made as soon as reasonably practicable after the party making the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01264-01-9A. 2372 2 1 election is apprised of the settlement or settlements in issue, and, if 2 feasible, prior to the return of a verdict. In the absence of specific 3 and timely election otherwise, a party limiting liability will be deemed 4 to have elected reduction in the total amount of the equitable share or 5 shares of all settling tortfeasors. 6 (4) For purposes of calculating the reduction of liability under this 7 subdivision in a case where a remaining tortfeasor is subject to a peri- 8 odic payment judgment pursuant to article fifty-A or article fifty-B of 9 the civil practice law and rules, the manner in which such reduction is 10 effected shall depend on the type of credit chosen by the remaining 11 tortfeasors. 12 (A) In those instances in which the remaining tortfeasor has elected 13 pursuant to paragraph one of this subdivision to receive a credit equiv- 14 alent to the amount or amounts which the plaintiff or claimant received 15 in settlement, the credit provided by this subdivision shall be ratably 16 apportioned between the past damages of the plaintiff and the future 17 damages. This shall be done by determining the ratio between the 18 plaintiff's past damages and the plaintiff's total damages, and then 19 apportioning that same percentage of the settlement towards payment of 20 the plaintiff's past damages. The remainder of the settlement credit 21 would be credited towards, and would thus reduce, the plaintiff's future 22 damages. 23 For purposes of the apportionment of the settlement credit between 24 past and future damages, the ratio between past damages and total 25 damages will be premised upon the amounts of damages awarded by the 26 trier of fact after adjustment has already been made for all other set- 27 offs, credits and reductions otherwise dictated by subdivision (a) of 28 section five thousand thirty-one, or subdivision (a) of section five 29 thousand forty-one of the civil practice law and rules, and before 30 consideration of any of the calculations dictated by subdivision (b), 31 (c), (d) or (e) of such sections. 32 (B) In those instances in which the remaining tortfeasor has elected 33 pursuant to paragraph one of this subdivision to receive an equitable 34 share credit, each of the plaintiff's awards for past damages and for 35 future damages as remain after all other set-offs, credits and 36 reductions otherwise dictated by subdivision (a) of section five thou- 37 sand thirty-one or subdivision (a) of section five thousand forty-one of 38 the civil practice law and rules shall be reduced by the settlor's equi- 39 table share of the total culpability. 40 (b) Liability of settling tortfeasor. Except as otherwise provided in 41 subdivision (f) of this section, a settlement between the plaintiff or 42 claimant and a tortfeasor relieves such tortfeasor from liability to any 43 other person for contribution or indemnification. 44 (c) Waiver of contribution and indemnification. Except as otherwise 45 provided in subdivisions (d) and (f) of this section, a tortfeasor who 46 has settled with the plaintiff or claimant shall not be entitled to 47 contribution or indemnification from any other person. 48 (d) Settling tortfeasor's limited right to contribution or indemnifi- 49 cation. Notwithstanding the provisions of subdivision (c) of this 50 section, a tortfeasor who has entered into a settlement with a plaintiff 51 or claimant may seek contribution or indemnification from any other 52 tortfeasor if, in consideration for such settlement, the plaintiff or 53 claimant has released from liability the person or persons from whom 54 contribution or indemnification is sought. Contribution or indemnifica- 55 tion shall be available pursuant to this subdivision except to the 56 extent that it is established by the party or parties from whom contrib-A. 2372 3 1 ution or indemnification is sought that the amount paid in settlement 2 was not reasonable. 3 (e) Relationship with article sixteen of the civil practice law and 4 rules. If a person seeks to limit liability pursuant to both subdivision 5 (a) of this section and article sixteen of the civil practice law and 6 rules, the limitation shall be made by determining the percentage that 7 the plaintiff's or claimant's non-economic loss bears to such person's 8 total loss, and then applying the same percentage of the settlement 9 credit to the plaintiff's or claimant's non-economic loss. A person 10 whose liability is reduced under this section shall be entitled to an 11 additional reduction of liability pursuant to article sixteen of the 12 civil practice law and rules, but only to the extent that such person's 13 remaining liability for non-economic loss exceeds the limitation of 14 liability, if any, established by such article. 15 (f) Exemptions. Nothing contained in this section shall be construed 16 to affect or impair: 17 (1) any claim for indemnification if, prior to the accident or occur- 18 rence on which the claim is based, the party seeking indemnification and 19 the party from whom indemnification is sought had entered into a written 20 contract in which the latter had expressly agreed to indemnify the 21 former for the type of loss suffered; or 22 (2) a claim for indemnification by a public employee, including indem- 23 nification pursuant to section fifty-k of the general municipal law or 24 section seventeen or section eighteen of the public officers law. 25 (g) Settlements within the scope of this section. An agreement between 26 a plaintiff or claimant and a person who is liable or claimed to be 27 liable in tort shall be deemed a settlement for the purposes of this 28 section only if: 29 (1) the agreement completely or substantially terminates the dispute 30 between those parties; 31 (2) the plaintiff or claimant receives, as part of the agreement, 32 monetary consideration greater than one dollar; and 33 (3) such settlement occurs prior to entry of a judgment. 34 (h) Valuation of structured settlements. Where the monetary consider- 35 ation for a settlement includes one or more payments which are to be 36 made more than one year after the date of the settlement, the value of 37 such future payments shall, for purposes of subdivision (a) of this 38 section, be deemed to be the settling tortfeasor's cost in providing 39 such payments. 40 § 2. This act shall take effect on the thirty-first of January next 41 succeeding the date on which it shall have become a law, and shall be 42 applicable to any action commenced on or after such effective date.
