Contribution and Indemnity

When a plaintiff is injured by two or more defendants' tortuous acts that join to cause the injury, each defendant is "jointly and severally liable" for that injury. This means that the plaintiff may recover the entire amount of damages from any of the defendants. The defendants, in turn, may seek contribution or indemnity from each other.

Contribution

Contribution enables any defendant who is required to pay more than his share of damages to a plaintiff to recover the excess in a claim against the other defendants. The rule of contribution requires that responsibility among all the defendants be apportioned. Most states allow defendants to seek contribution.

Apportionment by equal shares requires all the defendants to pay equally regardless of how much at fault they were.

Under the rule of comparative contribution, which applies in some states, contribution is imposed in proportion to the degree of fault of each defendant.

If the defendants join to commit an intentional tort, such as assault and battery, against the plaintiff, contribution among the defendants is not available.

Indemnity

Indemnity shifts the entire loss to one or more defendants.

Indemnity may arise by contract in which one party agrees to indemnify another against the consequences of his own negligence.

Indemnity may be sought by a party who was held vicariously liable for damages caused by another person because of his relationship to that person (e.g., an employer may seek indemnity for the acts of an employee).

Suppliers of a defective product that are sued in a strict products liability action by an injured user of the product may seek indemnity from the previous suppliers in the distribution chain. The manufacturer, which is the first supplier, is ultimately liable if the product was defective when it left its hands.

If there is a considerable difference in degree of fault among the defendants, some states allow one defendant to recover against another under the principle of indemnity. Thus, the defendant who is least at fault may recover indemnity against the defendant who is most at fault.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.