S T A T E   O F   N E W   Y O R K
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                                   1415
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 12, 2017
                                ___________
 
 Introduced  by  M.  of  A.  WEINSTEIN,  ABINANTI, BRINDISI, 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 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:
 
   Section 1. Section 15-108 of the general obligations law  is  REPEALED
 and a new section 15-108 is added to read as follows:
   § 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
 A  SETTLEMENT  HAS  OCCURRED. IN THE LATTER EVENT, THE ELECTION SHALL BE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02831-01-7

 A. 1415                             2
 
 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-
 TION SHALL BE AVAILABLE PURSUANT  TO  THIS  SUBDIVISION  EXCEPT  TO  THE

 A. 1415                             3
 
 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.
   § 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.