S T A T E O F N E W Y O R K
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244
2015-2016 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2015
___________
Introduced by M. of A. WEINSTEIN, ABINANTI, MONTESANO -- Multi-Sponsored
by -- M. of A. GOTTFRIED -- read once and referred to the Committee
on Judiciary
AN ACT to amend the general obligations law, in relation to settlements
in tort actions; and to repeal certain provisions of such law relating
thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 15-108 of the general obligations law is REPEALED
and a new section 15-108 is added to read as follows:
S 15-108. SETTLEMENTS IN TORT ACTIONS. (A) EFFECT OF SETTLEMENT. (1) A
SETTLEMENT REACHED WITH ONE OF TWO OR MORE PERSONS WHO ARE LIABLE OR
CLAIMED TO BE LIABLE IN TORT FOR THE SAME INJURY OR WRONGFUL DEATH DOES
NOT DISCHARGE ANY OTHER TORTFEASOR FROM LIABILITY UNLESS ITS TERMS
EXPRESSLY SO PROVIDE, EXCEPT THAT EACH OF THE REMAINING TORTFEASORS MAY
CHOOSE TO REDUCE HIS OR HER LIABILITY TO THE PLAINTIFF OR CLAIMANT BY
THE STATED SETTLEMENT AMOUNT, THE CONSIDERATION ACTUALLY PAID, OR THE
SETTLING TORTFEASOR'S EQUITABLE SHARE OF THE DAMAGES AS DETERMINED UNDER
ARTICLE FOURTEEN OF THE CIVIL PRACTICE LAW AND RULES.
(2) WHEN MORE THAN ONE PERSON SETTLES WITH A PLAINTIFF OR CLAIMANT,
EACH OF THE REMAINING TORTFEASORS MAY CHOOSE TO REDUCE HIS OR HER
LIABILITY TO THE PLAINTIFF OR CLAIMANT BY THE TOTAL OF ALL STATED
SETTLEMENT AMOUNTS, THE TOTAL CONSIDERATION ACTUALLY PAID FOR ALL OF THE
SETTLEMENTS, OR THE TOTAL OF THE SETTLING TORTFEASORS' EQUITABLE SHARES
OF THE DAMAGES AS DETERMINED UNDER ARTICLE FOURTEEN OF THE CIVIL PRAC-
TICE LAW AND RULES.
(3) THE CHOICE AUTHORIZED BY THIS SUBDIVISION SHALL BE MADE IN OPEN
COURT OR IN A WRITING SUBSCRIBED ON BEHALF OF THE PARTY SEEKING TO LIMIT
LIABILITY, AND SHALL BE MADE PRIOR TO THE FIRST OPENING STATEMENT OF THE
TRIAL UNLESS THE PARTY MAKING THE ELECTION ONLY LATER BECOMES AWARE THAT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00092-01-5
A. 244 2
A SETTLEMENT HAS OCCURRED. IN THE LATTER EVENT, THE ELECTION SHALL BE
MADE AS SOON AS REASONABLY PRACTICABLE AFTER THE PARTY MAKING THE
ELECTION IS APPRISED OF THE SETTLEMENT OR SETTLEMENTS IN ISSUE, AND, IF
FEASIBLE, PRIOR TO THE RETURN OF A VERDICT. IN THE ABSENCE OF SPECIFIC
AND TIMELY ELECTION OTHERWISE, A PARTY LIMITING LIABILITY WILL BE DEEMED
TO HAVE ELECTED REDUCTION IN THE TOTAL AMOUNT OF THE EQUITABLE SHARE OR
SHARES OF ALL SETTLING TORTFEASORS.
(4) FOR PURPOSES OF CALCULATING THE REDUCTION OF LIABILITY UNDER THIS
SUBDIVISION IN A CASE WHERE A REMAINING TORTFEASOR IS SUBJECT TO A PERI-
ODIC PAYMENT JUDGMENT PURSUANT TO ARTICLE FIFTY-A OR ARTICLE FIFTY-B OF
THE CIVIL PRACTICE LAW AND RULES, THE MANNER IN WHICH SUCH REDUCTION IS
EFFECTED SHALL DEPEND ON THE TYPE OF CREDIT CHOSEN BY THE REMAINING
TORTFEASORS.
(A) IN THOSE INSTANCES IN WHICH THE REMAINING TORTFEASOR HAS ELECTED
PURSUANT TO PARAGRAPH ONE OF THIS SUBDIVISION TO RECEIVE A CREDIT EQUIV-
ALENT TO THE AMOUNT OR AMOUNTS WHICH THE PLAINTIFF OR CLAIMANT RECEIVED
IN SETTLEMENT, THE CREDIT PROVIDED BY THIS SUBDIVISION SHALL BE RATABLY
APPORTIONED BETWEEN THE PAST DAMAGES OF THE PLAINTIFF AND THE FUTURE
DAMAGES. THIS SHALL BE DONE BY DETERMINING THE RATIO BETWEEN THE
PLAINTIFF'S PAST DAMAGES AND THE PLAINTIFF'S TOTAL DAMAGES, AND THEN
APPORTIONING THAT SAME PERCENTAGE OF THE SETTLEMENT TOWARDS PAYMENT OF
THE PLAINTIFF'S PAST DAMAGES. THE REMAINDER OF THE SETTLEMENT CREDIT
WOULD BE CREDITED TOWARDS, AND WOULD THUS REDUCE, THE PLAINTIFF'S FUTURE
DAMAGES.
FOR PURPOSES OF THE APPORTIONMENT OF THE SETTLEMENT CREDIT BETWEEN
PAST AND FUTURE DAMAGES, THE RATIO BETWEEN PAST DAMAGES AND TOTAL
DAMAGES WILL BE PREMISED UPON THE AMOUNTS OF DAMAGES AWARDED BY THE
TRIER OF FACT AFTER ADJUSTMENT HAS ALREADY BEEN MADE FOR ALL OTHER SET-
OFFS, CREDITS AND REDUCTIONS OTHERWISE DICTATED BY SUBDIVISION (A) OF
SECTION FIVE THOUSAND THIRTY-ONE, OR SUBDIVISION (A) OF SECTION FIVE
THOUSAND FORTY-ONE OF THE CIVIL PRACTICE LAW AND RULES, AND BEFORE
CONSIDERATION OF ANY OF THE CALCULATIONS DICTATED BY SUBDIVISION (B),
(C), (D) OR (E) OF SUCH SECTIONS.
(B) IN THOSE INSTANCES IN WHICH THE REMAINING TORTFEASOR HAS ELECTED
PURSUANT TO PARAGRAPH ONE OF THIS SUBDIVISION TO RECEIVE AN EQUITABLE
SHARE CREDIT, EACH OF THE PLAINTIFF'S AWARDS FOR PAST DAMAGES AND FOR
FUTURE DAMAGES AS REMAIN AFTER ALL OTHER SET-OFFS, CREDITS AND
REDUCTIONS OTHERWISE DICTATED BY SUBDIVISION (A) OF SECTION FIVE THOU-
SAND THIRTY-ONE OR SUBDIVISION (A) OF SECTION FIVE THOUSAND FORTY-ONE OF
THE CIVIL PRACTICE LAW AND RULES SHALL BE REDUCED BY THE SETTLOR'S EQUI-
TABLE SHARE OF THE TOTAL CULPABILITY.
(B) LIABILITY OF SETTLING TORTFEASOR. EXCEPT AS OTHERWISE PROVIDED IN
SUBDIVISION (F) OF THIS SECTION, A SETTLEMENT BETWEEN THE PLAINTIFF OR
CLAIMANT AND A TORTFEASOR RELIEVES SUCH TORTFEASOR FROM LIABILITY TO ANY
OTHER PERSON FOR CONTRIBUTION OR INDEMNIFICATION.
(C) WAIVER OF CONTRIBUTION AND INDEMNIFICATION. EXCEPT AS OTHERWISE
PROVIDED IN SUBDIVISIONS (D) AND (F) OF THIS SECTION, A TORTFEASOR WHO
HAS SETTLED WITH THE PLAINTIFF OR CLAIMANT SHALL NOT BE ENTITLED TO
CONTRIBUTION OR INDEMNIFICATION FROM ANY OTHER PERSON.
(D) SETTLING TORTFEASOR'S LIMITED RIGHT TO CONTRIBUTION OR INDEMNIFI-
CATION. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (C) OF THIS
SECTION, A TORTFEASOR WHO HAS ENTERED INTO A SETTLEMENT WITH A PLAINTIFF
OR CLAIMANT MAY SEEK CONTRIBUTION OR INDEMNIFICATION FROM ANY OTHER
TORTFEASOR IF, IN CONSIDERATION FOR SUCH SETTLEMENT, THE PLAINTIFF OR
CLAIMANT HAS RELEASED FROM LIABILITY THE PERSON OR PERSONS FROM WHOM
CONTRIBUTION OR INDEMNIFICATION IS SOUGHT. CONTRIBUTION OR INDEMNIFICA-
A. 244 3
TION SHALL BE AVAILABLE PURSUANT TO THIS SUBDIVISION EXCEPT TO THE
EXTENT THAT IT IS ESTABLISHED BY THE PARTY OR PARTIES FROM WHOM CONTRIB-
UTION OR INDEMNIFICATION IS SOUGHT THAT THE AMOUNT PAID IN SETTLEMENT
WAS NOT REASONABLE.
(E) RELATIONSHIP WITH ARTICLE SIXTEEN OF THE CIVIL PRACTICE LAW AND
RULES. IF A PERSON SEEKS TO LIMIT LIABILITY PURSUANT TO BOTH SUBDIVISION
(A) OF THIS SECTION AND ARTICLE SIXTEEN OF THE CIVIL PRACTICE LAW AND
RULES, THE LIMITATION SHALL BE MADE BY DETERMINING THE PERCENTAGE THAT
THE PLAINTIFF'S OR CLAIMANT'S NON-ECONOMIC LOSS BEARS TO SUCH PERSON'S
TOTAL LOSS, AND THEN APPLYING THE SAME PERCENTAGE OF THE SETTLEMENT
CREDIT TO THE PLAINTIFF'S OR CLAIMANT'S NON-ECONOMIC LOSS. A PERSON
WHOSE LIABILITY IS REDUCED UNDER THIS SECTION SHALL BE ENTITLED TO AN
ADDITIONAL REDUCTION OF LIABILITY PURSUANT TO ARTICLE SIXTEEN OF THE
CIVIL PRACTICE LAW AND RULES, BUT ONLY TO THE EXTENT THAT SUCH PERSON'S
REMAINING LIABILITY FOR NON-ECONOMIC LOSS EXCEEDS THE LIMITATION OF
LIABILITY, IF ANY, ESTABLISHED BY SUCH ARTICLE.
(F) EXEMPTIONS. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED
TO AFFECT OR IMPAIR:
(1) ANY CLAIM FOR INDEMNIFICATION IF, PRIOR TO THE ACCIDENT OR OCCUR-
RENCE ON WHICH THE CLAIM IS BASED, THE PARTY SEEKING INDEMNIFICATION AND
THE PARTY FROM WHOM INDEMNIFICATION IS SOUGHT HAD ENTERED INTO A WRITTEN
CONTRACT IN WHICH THE LATTER HAD EXPRESSLY AGREED TO INDEMNIFY THE
FORMER FOR THE TYPE OF LOSS SUFFERED; OR
(2) A CLAIM FOR INDEMNIFICATION BY A PUBLIC EMPLOYEE, INCLUDING INDEM-
NIFICATION PURSUANT TO SECTION FIFTY-K OF THE GENERAL MUNICIPAL LAW OR
SECTION SEVENTEEN OR SECTION EIGHTEEN OF THE PUBLIC OFFICERS LAW.
(G) SETTLEMENTS WITHIN THE SCOPE OF THIS SECTION. AN AGREEMENT BETWEEN
A PLAINTIFF OR CLAIMANT AND A PERSON WHO IS LIABLE OR CLAIMED TO BE
LIABLE IN TORT SHALL BE DEEMED A SETTLEMENT FOR THE PURPOSES OF THIS
SECTION ONLY IF:
(1) THE AGREEMENT COMPLETELY OR SUBSTANTIALLY TERMINATES THE DISPUTE
BETWEEN THOSE PARTIES;
(2) THE PLAINTIFF OR CLAIMANT RECEIVES, AS PART OF THE AGREEMENT,
MONETARY CONSIDERATION GREATER THAN ONE DOLLAR; AND
(3) SUCH SETTLEMENT OCCURS PRIOR TO ENTRY OF A JUDGMENT.
(H) VALUATION OF STRUCTURED SETTLEMENTS. WHERE THE MONETARY CONSIDER-
ATION FOR A SETTLEMENT INCLUDES ONE OR MORE PAYMENTS WHICH ARE TO BE
MADE MORE THAN ONE YEAR AFTER THE DATE OF THE SETTLEMENT, THE VALUE OF
SUCH FUTURE PAYMENTS SHALL, FOR PURPOSES OF SUBDIVISION (A) OF THIS
SECTION, BE DEEMED TO BE THE SETTLING TORTFEASOR'S COST IN PROVIDING
SUCH PAYMENTS.
S 2. This act shall take effect on the thirty-first of January next
succeeding the date on which it shall have become a law, and shall be
applicable to any action commenced on or after such effective date.