Joint and Several Liability and Indemnity

Terms:

Joint and Several Liability:
Liability under which the plaintiff can collect his damage award from any one of a group of joint tortfeasors if he so chooses.

Indemnity:
Where a defendant, who is secondarily liable for a plaintiff’s injuries but is forced to pay damages to the plaintiff, can recover whatever he had to pay the plaintiff from the person who was primarily responsible for the plaintiff’s injuries.

Joint and Several Liability

In certain situations where several tortfeasors have caused damages to a plaintiff, courts can hold all of the tortfeasors jointly and severally liable for plaintiff’s injuries. This allows the plaintiff to collect his damage award from any one of the joint tortfeasors if he so chooses. For example:

Flounder, Otter and Hoover are all involved in a car accident with Dean Wermer. In a cause of action against Flounder, Otter and Hoover, Dean Wermer is awarded $100,000 in damages and the jury determines that Flounder, Otter and Hoover are jointly and severally liable for the damages. Therefore, Dean Wermer can collect any amount of the $100,000 from any of the tortfeasors he chooses to. He can collect all $100,000 from Flounder and nothing from Otter or Hoover or he can collect different amounts from each tortfeasor as long as it does not exceed $100,000.

Joint and several liability protects a plaintiff from a situation where he will lose out on a part of his recovery if one of the tortfeasors has no assets and is judgment-proof. Thus, if Flounder has no money and cannot pay Dean Wermer anything, Dean Wermer can still demand that Otter pay both his share and Flounder’s share as well.

Once joint and several liability has been established, the tortfeasors themselves can ask the jury to apportion liability and, once the jury apportions liability, any tortfeasor that has to pay more than his share of the damages can move against the other tortfeasors. See Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363 (2d Cir. 1988). For example:

Flounder, Otter and Hoover are all involved in a car accident with Dean Wermer. In a cause of action against Flounder, Otter and Hoover, Dean Wermer is awarded $100,000 in damages and the jury determines that Flounder, Otter and Hoover are jointly and severally liable for the damages. Flounder, Otter and Hoover ask the jury to apportion liability and the jury determines that Flounder was 20% liable, Otter was 40% liable and Hoover was 40% liable. Dean Wermer, as he is entitled to do, collects the full judgment of $100,000 from Flounder. In this situation, now that the jury has apportioned liability, Flounder can move against Otter and Hoover for their share of the liability ($40,000 each).

Indemnity

The rules of indemnity allow a defendant, who is secondarily liable for a plaintiff’s injuries but is forced to pay damages to the plaintiff, to recover whatever he had to pay plaintiff from the person who was primarily responsible for plaintiff’s injuries. See White v. Quechee Lakes Landowners’ Association, 742 A.2d 734 (Vt. 1999).

Indemnity typically arises in cases where someone is held vicariously liable for the actions of another, like, for example, in respondeat superior cases. For example:

Jared is a delivery boy for a local pizza shop. While driving to a delivery, Jared pulls into a local sandwich shop to buy lunch. While pulling into the parking lot, Jared loses control of his car and injures Clay. Jared’s stop at the sandwich shop will most likely be considered within the scope of his employment and Clay will be able to sue Jared’s employer for negligence. However, because the employer is only vicariously liable and Jared himself is primarily liable for plaintiff’s injuries, the employer can bring an action for indemnity against Jared. If the employer wins this action, Jared will have to repay his employer whatever the employer had to pay Clay in the original action.

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