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S06081 Summary:

S06081 Actions:

S06081 Committee Votes:

S06081 Floor Votes:

S06081 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6081
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                      May 16, 2019
                                       ___________
 
        Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
          printed to be committed 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:
 
     1    Section  1.  Section 15-108 of the general obligations law is REPEALED
     2  and a new section 15-108 is added to read as follows:
     3    § 15-108. Settlements in tort actions. (a) Effect of settlement. (1) A
     4  settlement reached with one of two or more persons  who  are  liable  or
     5  claimed  to be liable in tort for the same injury or wrongful death does
     6  not discharge any other  tortfeasor  from  liability  unless  its  terms
     7  expressly  so provide, except that each of the remaining tortfeasors may
     8  choose to reduce his or her liability to the plaintiff  or  claimant  by
     9  the  stated  settlement  amount, the consideration actually paid, or the
    10  settling tortfeasor's equitable share of the damages as determined under
    11  article fourteen of the civil practice law and rules.
    12    (2) When more than one person settles with a  plaintiff  or  claimant,
    13  each  of  the  remaining  tortfeasors  may  choose  to reduce his or her
    14  liability to the plaintiff or  claimant  by  the  total  of  all  stated
    15  settlement amounts, the total consideration actually paid for all of the
    16  settlements,  or the total of the settling tortfeasors' equitable shares
    17  of the damages as determined under article fourteen of the  civil  prac-
    18  tice law and rules.
    19    (3)  The  choice  authorized by this subdivision shall be made in open
    20  court or in a writing subscribed on behalf of the party seeking to limit
    21  liability, and shall be made prior to the first opening statement of the
    22  trial unless the party making the election only later becomes aware that
    23  a settlement has occurred. In the latter event, the  election  shall  be
    24  made  as  soon  as  reasonably  practicable  after  the party making the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01264-01-9
        S. 6081                             2
 
     1  election is apprised of the settlement or settlements in issue, and,  if
     2  feasible,  prior  to the return of a verdict. In the absence of specific
     3  and timely election otherwise, a party limiting liability will be deemed
     4  to  have elected reduction in the total amount of the equitable share or
     5  shares of all settling tortfeasors.
     6    (4) For purposes of calculating the reduction of liability under  this
     7  subdivision in a case where a remaining tortfeasor is subject to a peri-
     8  odic  payment judgment pursuant to article fifty-A or article fifty-B of
     9  the civil practice law and rules, the manner in which such reduction  is
    10  effected  shall  depend  on  the  type of credit chosen by the remaining
    11  tortfeasors.
    12    (A) In those instances in which the remaining tortfeasor  has  elected
    13  pursuant to paragraph one of this subdivision to receive a credit equiv-
    14  alent  to the amount or amounts which the plaintiff or claimant received
    15  in settlement, the credit provided by this subdivision shall be  ratably
    16  apportioned  between  the  past  damages of the plaintiff and the future
    17  damages. This shall  be  done  by  determining  the  ratio  between  the
    18  plaintiff's  past  damages  and  the plaintiff's total damages, and then
    19  apportioning that same percentage of the settlement towards  payment  of
    20  the  plaintiff's  past  damages.  The remainder of the settlement credit
    21  would be credited towards, and would thus reduce, the plaintiff's future
    22  damages.
    23    For purposes of the apportionment of  the  settlement  credit  between
    24  past  and  future  damages,  the  ratio  between  past damages and total
    25  damages will be premised upon the amounts  of  damages  awarded  by  the
    26  trier  of fact after adjustment has already been made for all other set-
    27  offs, credits and reductions otherwise dictated by  subdivision  (a)  of
    28  section  five  thousand  thirty-one,  or subdivision (a) of section five
    29  thousand forty-one of the civil  practice  law  and  rules,  and  before
    30  consideration  of  any  of the calculations dictated by subdivision (b),
    31  (c), (d) or (e) of such sections.
    32    (B) In those instances in which the remaining tortfeasor  has  elected
    33  pursuant  to  paragraph  one of this subdivision to receive an equitable
    34  share credit, each of the plaintiff's awards for past  damages  and  for
    35  future   damages  as  remain  after  all  other  set-offs,  credits  and
    36  reductions otherwise dictated by subdivision (a) of section  five  thou-
    37  sand thirty-one or subdivision (a) of section five thousand forty-one of
    38  the civil practice law and rules shall be reduced by the settlor's equi-
    39  table share of the total culpability.
    40    (b)  Liability of settling tortfeasor. Except as otherwise provided in
    41  subdivision (f) of this section, a settlement between the  plaintiff  or
    42  claimant and a tortfeasor relieves such tortfeasor from liability to any
    43  other person for contribution or indemnification.
    44    (c)  Waiver  of  contribution and indemnification. Except as otherwise
    45  provided in subdivisions (d) and (f) of this section, a  tortfeasor  who
    46  has  settled  with  the  plaintiff  or claimant shall not be entitled to
    47  contribution or indemnification from any other person.
    48    (d) Settling tortfeasor's limited right to contribution or  indemnifi-
    49  cation.  Notwithstanding  the  provisions  of  subdivision  (c)  of this
    50  section, a tortfeasor who has entered into a settlement with a plaintiff
    51  or claimant may seek contribution  or  indemnification  from  any  other
    52  tortfeasor  if,  in  consideration for such settlement, the plaintiff or
    53  claimant has released from liability the person  or  persons  from  whom
    54  contribution  or indemnification is sought. Contribution or indemnifica-
    55  tion shall be available pursuant  to  this  subdivision  except  to  the
    56  extent that it is established by the party or parties from whom contrib-
        S. 6081                             3
 
     1  ution  or  indemnification  is sought that the amount paid in settlement
     2  was not reasonable.
     3    (e)  Relationship  with  article sixteen of the civil practice law and
     4  rules. If a person seeks to limit liability pursuant to both subdivision
     5  (a) of this section and article sixteen of the civil  practice  law  and
     6  rules,  the  limitation shall be made by determining the percentage that
     7  the plaintiff's or claimant's non-economic loss bears to  such  person's
     8  total  loss,  and  then  applying  the same percentage of the settlement
     9  credit to the plaintiff's or  claimant's  non-economic  loss.  A  person
    10  whose  liability  is  reduced under this section shall be entitled to an
    11  additional reduction of liability pursuant to  article  sixteen  of  the
    12  civil  practice law and rules, but only to the extent that such person's
    13  remaining liability for non-economic  loss  exceeds  the  limitation  of
    14  liability, if any, established by such article.
    15    (f)  Exemptions.  Nothing contained in this section shall be construed
    16  to affect or impair:
    17    (1) any claim for indemnification if, prior to the accident or  occur-
    18  rence on which the claim is based, the party seeking indemnification and
    19  the party from whom indemnification is sought had entered into a written
    20  contract  in  which  the  latter  had  expressly agreed to indemnify the
    21  former for the type of loss suffered; or
    22    (2) a claim for indemnification by a public employee, including indem-
    23  nification pursuant to section fifty-k of the general municipal  law  or
    24  section seventeen or section eighteen of the public officers law.
    25    (g) Settlements within the scope of this section. An agreement between
    26  a  plaintiff  or  claimant  and  a person who is liable or claimed to be
    27  liable in tort shall be deemed a settlement for  the  purposes  of  this
    28  section only if:
    29    (1)  the  agreement completely or substantially terminates the dispute
    30  between those parties;
    31    (2) the plaintiff or claimant receives,  as  part  of  the  agreement,
    32  monetary consideration greater than one dollar; and
    33    (3) such settlement occurs prior to entry of a judgment.
    34    (h)  Valuation of structured settlements. Where the monetary consider-
    35  ation for a settlement includes one or more payments  which  are  to  be
    36  made  more  than one year after the date of the settlement, the value of
    37  such future payments shall, for purposes  of  subdivision  (a)  of  this
    38  section,  be  deemed  to  be the settling tortfeasor's cost in providing
    39  such payments.
    40    § 2. This act shall take effect on the thirty-first  of  January  next
    41  succeeding  the  date  on which it shall have become a law, and shall be
    42  applicable to any action commenced on or after such effective date.