Chapter 18-6 Contribution and Indemnity

• Jurisdiction: United States

18-6 Contribution and Indemnity

18-6:1 Right of Contribution for Jointly and Severally Liable Defendants

A right of contribution arises under Chapter 33 where a jointly and severally liable defendant pays a percentage of damages greater than the percentage of responsibility apportioned by the jury to that jointly and severally liable defendant.⁶³ For example, a jointly and severally liable defendant who was apportioned 60% of responsibility and who has paid the full $1 million judgment has a $400,000 right of contribution.

The jointly and severally liable defendant has this right of contribution against each of the other defendants found liable by the jury.⁶⁴ However, the jointly and severally liable defendant has this right of contribution against the other liable defendants only to the extent that the other liable defendants have not paid the percentage of damages apportioned to them by the jury.⁶⁵

If, in the example above, two other defendants had been assigned 20% responsibility each, and defendant 1 had already paid $200,000 of the damages, the jointly and severally liable defendant would have no right of contribution against defendant 1. If, on the other hand, defendant 2 had only paid $100,000 in damages, the jointly and severally liable defendant could recover $100,000 in contribution from defendant 2.

No defendant has a right of contribution against a settling person, irrespective of any responsibility assigned to that settling person by the jury.⁶⁶

18-6:2 Right of Contribution for Other Liable Defendants; Claim Against Contribution Defendant

All liable defendants, including those who are not jointly and severally liable, may have a right of contribution under Chapter 33. A liable defendant (any defendant against whom a judgment can be entered for at least a portion of the damages awarded to the claimant⁶⁷) may assert this right against a "contribution defendant" and may do so in the claimant's action (e.g., the plaintiff's action).⁶⁸

A "contribution defendant" is a defendant, counter-defendant or third-party defendant from whom any party seeks contribution but from whom the claimant seeks no relief at the time of submission.⁶⁹ A contribution defendant, therefore, would include a third-party defendant from whom the third-party plaintiff seeks contribution and against whom the plaintiff asserts no claim. It would also include a co-defendant the plaintiff nonsuited but against whom a claim for contribution had already been made by crossclaim.

In a...