S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   625

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN  -- Multi-Sponsored by -- M. of A.
  CAHILL, COOK, 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  Section 15-108 of the general obligations law is REPEALED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.
              

                                                           LBD03086-01-1

A. 625                              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. 625                              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.