April 21st Notes

Complex Litigation
April 21, 2010

NEWS
Tribal Court Public Defense
Paralegal Volunteer: Opportunity open
16 hrs/week for 10 weeks
Brenda Williams
Tribal Court Public Defense Clinic
UW School of Law
William H. Gates Hall, Suite 265
Box 85110
Seattle, WA 981450-1110

brenda3 at uwashington.edu
206-685-3917

1. Letter of interest
2. Resume
3. Two letters of recommendation
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Liability is a responsibility

Joint and Several Liability
Joint Liability
-holds everyone liable
-pure joint liability is a minority view
-each negligent actor is fully liable for the entire judgment not just his/her %

Several Liability
-Proportionate to culpability, each negligent actor is liable only for his/her % assigned by judge/jury

Vicarious v. Direct Liability (party is held responsible for their actions)
Vicarious Liability
-liability based on public policy, not culpability
-shift loss to a party better able to insure against it, spread cost of it, prevent its occurrence, or who made money from the activity that caused it
-held responsible for the act of another

Direct Liability
-Solo (1 negligent actor)
-Concurrent/Joint (2 tort feasons acting together) (not necessarily "coordinated")
-Derivative (your negligence enables the negligent act which is committed by another)

Washington
-had pure joint liability until 1986
-tort reform act says no longer have joint liability except under 4 circumstances
1. Agency: someone doing your bidding and it creates a harm (agent & principal) --- joint
2. Employer/employee---- joint
3. Defendants acting in concert (drag racing)---- joint
4. a. Plaintiff is fault free
    b. against defendants who are named in the judgment
    -not settled
    -not unnamed and unserved

a. 10%
b. 10%
c. 5%
d. 75%

Only c has assets, then they must pay full amount, the joint percentage

Plaintiff  sues A and B
settles A for $2000
B is found 10% liable at fault for $20,000

Can B drag A in?

States have different approaches
1. Can not bring back in a party that settles out, contribution can only be in joint.  Still in the pot, contribution.  Once out, they are out.  And the since 50% of the claim is release, the remaining party must pay 50% at most. Those percentages can change. 

2. Good faith hearing.  Early in the case, court hearing if anyone wants to settle.  Other defendants can appear and have their say.  The Judge will make a judgment about who can settle and what the percentages are.

3. You can settle out without contribution.  For the amount that defendant pays, the other defendants can deduct that amount settled for from the judgment.

4. Why is contribution not a problem under WA joint system?
    -there is no joint liability if they were never named in a lawsuit
    -so A was never in a the lawsuit or settled out
    -meaning no contribution, so B is liable

Booth v. Mary Carter Paint Company (1967) 202 So2nd 8
-Mary Carter agreements

indemnification
    -companion concept to contribution
    -shifts all the liability to another defendant, they pay it all
Contracts:
    -contractor will but an indemnification provision for subcontractors
Law:
    -Principals and Agents
    -principal must indemnification the agent for the agency
Contract Remedies/Commercial Litigation
2 types
1. Legal
    -money
   
2. Equitable
    -reformation: typo in contract
    -injunctions: stop from doing something
    -rescission: get out of contract completely
    -restitution: get back what I gave to the other side
    -specific performance: not the money, want something specific
    -constructive trust: court order for object to be frozen until a remedy is found
    -quiet title: action lets court decide who the lawfully owner is
    -declaratory relief: court orders what the rights of the parties are

Equitable remedies are there when money does not do the trick.  You can ask for both. 
    -use different theories and causes of action