S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9028
 
                           I N  A S S E M B L Y
 
                             January 12, 2018
                                ___________
 
 Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
   tee 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 Section 15-108 of the general obligations law  is  REPEALED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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02831-01-7

 A. 9028                             2
 
 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
 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.

 A. 9028                             3

   (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.