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.

Abuse of Process

It should be obvious that the purpose of the civil justice system is to permit people to obtain justice. Unfortunately, people sometimes try to use the civil justice system for improper purposes, such as revenge. As one would expect, using the civil justice system solely for improper purposes is prohibited by law. The personal injury lawsuit that addresses improper use of the civil justice system, and improper use of the criminal justice system other than malicious prosecution, is known as abuse of process.

Using a Legal Process Just to Harass

People have a general right to not be abused by an unreasonable use of a legal procedure or process, such as the procedure and process of subpoena, whereby a person is commanded to appear and testify in a legal proceeding. People have a general right to not be needlessly brought into a legal proceeding and, perhaps, needlessly incurring the expense of retaining a lawyer.

In most states, the lawsuit of abuse of process is the lawsuit of using criminal or civil procedures or processes solely for an improper ulterior purpose. The essence of the lawsuit is the abuse of the legal system, even if a case terminated in the abuser’s favor.

Notice that abuse of lawsuit applies only where a legal procedure or process is used solely for an improper ulterior purpose. As a practical matter, the law cannot prevent ulterior purposes that are intertwined with legitimate purposes.

The classic example of abuse of process is where the defendant has a subpoena issued to the plaintiff, requiring the plaintiff to appear and testify in a legal proceeding, just to harass the plaintiff.

The Elements of Abuse of Process

The elements of abuse of process are (1) the use or misuse of a legal proceeding or process (2) solely for an improper ulterior purpose (3) causing (4) damages. As a practical matter, special damages and punitive damages, if any, must also be proven.

In addition to the lawsuit of abuse of process, civil procedure rules and statutes, such as Rule 11 of the Federal Rules of Civil Procedure, may also permit a court to penalize litigants and their attorneys who engage in frivolous conduct and other improprieties.

Defenses to Abuse of Process

Defenses to abuse of process include challenging the plaintiff’s case, privilege or immunity, acting in good faith, and acting on the advice of an attorney after making a full disclosure of the relevant facts.

In order to prove an intentional tort, such as assault or battery, a plaintiff must show that a defendant intended to commit the tort. Under the doctrine of transferred intent, a defendant’s intent to commit a tort against one person may be transferred to another person.For example, a defendant swings a baseball bat at his friend, intending to scare him or her. The defendant accidentally hits a bystander with the bat. The defendant intended to commit an assault against the friend but instead committed a battery against the bystander. Under the doctrine of transferred intent, the defendant’s intent to assault the friend is transferred to the bystander, so the defendant’s conduct constitutes a battery against the bystander.

The doctrine of transferred intent applies only to the torts of assault, battery, false imprisonment, trespass to land, and trespass to chattels

A person who is injured in an automobile accident may seek to recover for his injuries against one or more parties, including the driver or the owner of the automobile that caused the accident. This article addresses the parties who are potentially liable for an injured party’s injuries arising from an automobile accident.Driver

A driver of an automobile that is involved in an accident is principally liable for his own negligence. Some courts presume in the absence of contrary evidence that the owner of the automobile was driving the car at the time of the accident.

Owner

An owner generally is not liable for the torts of a person who drives the owner’s automobile. However, there are exceptions to this general rule.

Statutory liability

An owner may be liable for the torts of a driver who drives his automobile because of a statute that provides for such liability. In most jurisdictions, the owner will be liable for the driver’s negligence only if the owner gave his consent for the driver to drive the automobile. Consent may usually be presumed unless the owner proves otherwise, and it may be express or implied. The fact that the owner consented to the driver taking the automobile in the past may support an inference of consent with regard to the taking of the automobile at the time the accident occurred.

Negligent entrustment

An owner who negligently entrusts his car to a driver may be liable if the driver causes an accident. Negligent entrustment occurs when the owner, with knowledge that the driver is not qualified to drive, consents to allowing the driver to drive his automobile. The driver’s lack of qualification could arise if he is incompetent, underage, or intoxicated.

Owner is a passenger

An owner may be liable for the torts of a driver if the owner is a passenger in his own automobile. If the owner has the opportunity to control the driver, he may be liable if he fails to complain to the driver regarding any negligent driving or to take other action to prevent the driver from driving in such a manner. The owner’s liability will be for the torts that proximately flow from his failure to act.

Agency

Liability may be imposed on an owner if his agent drives his automobile and causes an accident. The typical agency liability situation arises when an employee drives an employer’s automobile. The owner will only be liable, however, if the driver had the owner’s permission to drive the automobile.

Family purpose doctrine

In some jurisdictions, the “family purpose” doctrine may impose liability on an owner who allows a family member to drive a family car and subsequently causes an accident. Generally, the owner will only be liable if the automobile involved in the accident was purchased and used as the family car, if the driver lived in the family home, and if the owner consented to the driver’s use of the family car.

Joint and several liability

If an injured party is involved in an accident caused by two or more drivers, the theory of joint and several liability enables the injured party to sue one driver or owner individually or to join all the drivers or owners in one lawsuit.

Overview of Underinsured/Uninsured Motorist Coverage

Because a substantial number of owners and operators of cars and trucks in the United States fail to maintain adequate insurance coverage or operate their vehicles without any insurance coverage at all, many motor vehicle insurance policies contain provisions for underinsured motorist coverage, sometimes abbreviated UIM, or uninsured motorist coverage, sometimes abbreviated UM. The intent of such provisions is to give persons insured under auto insurance policies and innocent third persons some of the insurance protection they would have enjoyed if the underinsured or uninsured motorist with whom they are involved in an accident had maintained adequate insurance coverage on an uninsured or underinsured vehicle.

Underinsured motorist or uninsured motorist provisions in auto insurance policies generally state that an insurer will provide up to a specified amount of coverage for the benefit of an insured or a third party within the class of persons included in the coverage, if such an individual suffers damages as the result of an accident with a vehicle that comes within the definition of an underinsured vehicle or uninsured vehicle for purposes of the policy. Legal issues that can arise from the system of underinsured motorist coverage and uninsured motorist coverage include the mandatory or voluntary nature of the coverage; the permissibility of “stacking” underinsured or uninsured motorist coverages on more than one vehicle or policy to increase coverage that would otherwise be inadequate to fully compensate a party entitled to receive benefits under such coverage; the effect of consent to settle clauses, which prohibit an insured from obtaining a legal judgment against or a settlement from an underinsured or uninsured driver without the consent of the insurer; and the nature and extent of the insurer’s subrogation right, which permits an insurer that has paid out benefits under the underinsured or uninsured motorist provision of a policy to take legal action against the underinsured or uninsured driver in an attempt to recover some or all of the amount it has paid out under the policy.

The business of insurance in the United States, including that of motor vehicle insurance, has traditionally been governed by the individual laws of each state rather than by a single unified body of federal law. As a result, the legal standards governing underinsured motorist coverage and uninsured motorist coverage vary from state to state, and will be found in state statutes regulating the business of insurance, and in the decisions of courts dealing with issues related to insurance law.

Household/Family Members Exclusions in Motorists Insurance

Some motorist insurance policies contain an exclusion of liability and uninsured coverage for members of an insured’s household or family. Where these exclusions are enforceable, they would prohibit, for example, a husband, who was a passenger in a car driven by his wife, from recovering benefits under her insurance policy for injuries he suffered in an auto accident that she caused. One reason given for denying insurance coverage for members of an insured’s household or family is a perceived difficulty of defending a lawsuit brought by an insured’s household or family member against the insured.

Whether household and family exclusions are valid and enforceable in a particular state depends upon the decisions of the state’s courts. Some courts have upheld the validity of these exclusions because they do not violate the state’s public policy or state insurance laws. Other states have ruled that the exclusions are invalid because they do violate public policy and insurance laws. Some states enforce the exclusions as to liability coverage but not uninsured coverage.

Even though a state court finds these exclusions valid, it might conclude that they do not apply to the parties in a particular case. The court must decide whether the injured person is a family or household member of the insured under the motorist insurance policy. In one case, a court would not expand the definition of the term household to include unrelated roommates. In another case, a court found that a college student, who was injured in an auto accident caused by her father, the insured, was not a resident of his household. The student had become a resident of the state in which she attended college and only returned to her father’s house for holidays.

Therefore, exclusions in a motorist insurance policy that deny coverage to members of an insured’s family or household may or may not be valid in a particular case. Further, several factors must be considered before an injured party may be found to be a member of an insured’s family or household. It is best to check current case law before accepting that these exclusions in a motorist insurance policy bar an injured person’s recovery from the insured’s policy.

Auto Insurance Notice Requirements

Because the business of motor vehicle insurance is a complicated one that may necessitate the transmittal of a great deal of information between the parties to an auto insurance policy, issues related to the duties of an insurer and an insured to give notice to one another of matters affecting the status of a policy or the occurrence of events having significance to policy coverage frequently arise. These issues can include such things as modifications to the policy itself, the status of the insured with respect to his or her premium payment obligations, the occurrence of an event triggering coverage under the policy, or cancellation of the policy by the insurer.

The inevitability of disputes over the occurrence or sufficiency of the notice given by an insurer or insured has resulted in the inclusion in motor vehicle insurance policies of detailed provisions dealing with the giving of such notice. In addition, because of the mandatory nature of motor vehicle insurance coverage and the consequences to insurers, insureds, and third parties affected by the existence or non-existence of policy coverage in a particular case, state insurance laws often contain detailed requirements concerning the subjects on which the parties to an auto insurance policy are obligated to give notice to one another, and in some cases to state insurance officials, and the manner in which such notice is to be given.

The business of insurance in the United States, including motor vehicle insurance, has traditionally been governed by the laws of the individual states rather than by a single system of federal law. As a result, legal requirements concerning the giving of notice by parties to auto insurance policies will vary from state to state.

Expert Witnesses in Automotive Products Liability Cases

A plaintiff in a products liability action against the manufacturer or seller of a motor vehicle is generally required to prove that the vehicle as sold contained a defect that created an unreasonable risk of death, personal injury, or property damage when the vehicle was put to its intended use and that the defect caused the loss for which the plaintiff is seeking to recover damages. The types of alleged vehicle defects that may be made the subject of an automotive products liability action include shortcomings in the design of the vehicle, mistakes made in the manufacture of its parts or in their assembly into a completed car or truck, and failure to warn the purchaser or operator of the vehicle about dangers inherent in its use and operation. Because products liability actions involve complex technical issues of science and engineering, expert witnesses are normally made use of by both sides in trying to either prove a case of liability or establish a defense.

The rules of evidence employed by the courts set out the qualifications for expert witnesses, which can in a general way be said to consist of some special degree of education, training, or experience that creates a level of knowledge in a scientific or technical area beyond that of persons who are not so educated, trained, or experienced. Unlike most witnesses, expert witnesses are allowed not merely to give testimony covering facts known to them, but are permitted, based on the factual evidence that has been brought forth in the case, to express their opinions on the technical issues involved. Such opinion testimony may be crucial in establishing the existence or non-existence of a product defect, the manner in which an alleged defect caused or did not cause the accident that resulted in the litigation, and numerous other necessary matters of proof. The courts have traditionally taken a liberal attitude toward the admission of expert testimony, but recently, following several decisions by the Supreme Court of the United States that authorized stricter scrutiny of the foundations of an expert witness’s opinions, courts have been exercising tighter control over the admission of expert testimony that lacks the underpinnings of a recognized scientific or technical method.

The law of products liability in the United States, including automotive products liability law, has evolved over the course of more than half a century out of developments in the legal systems of the individual states rather than out of a single unified system of federal law. (The National Highway Traffic Safety Administration, popularly known as NHTSA, has enacted a body of Federal Motor Vehicle Safety Standards, or FMVSS, with which every new motor vehicle sold in the United States has to comply, and these regulatory standards may play a role in automotive products liability cases.) While the principles of products liability law in the different states contain many similarities, the legal standards governing the admission and use of the testimony of expert witnesses in automotive products liability cases will vary from state to state.

Per-Occurrence Liability for Auto Insurance

An automobile insurance policy can limit liability to a certain dollar amount for each accident or occurrence of loss suffered by an insured. Generally, per accident and per occurrence mean the same thing. One occurrence is a single, uninterrupted cause that can result in one or a number of bodily injuries or property damage. For example, if an insured’s vehicle hits a car and that collision breaks the steering gear on the insured’s vehicle causing it to hit another car, then only one accident occurred within the meaning of the insurance policy limitation. Therefore, there can be multiple claims of injuries and damages that arise from one accident.

If a cause is interrupted or replaced by another cause, then the chain of causation is broken and more than one accident has taken place. For instance, if an insured driver sideswipes one vehicle, then the driver travels down the road, crosses the center line, and collides head-on with a car coming from the other direction while trying to avoid a deer in the road, then two accidents have happened.

Whether one or more than one occurrence has happened is very important to those injured by the insured and to the insurance company that issued the insured’s policy. If an insured’s van strikes three motorcycles carrying five persons and the insurance policy limits coverage to $10,000 per occurrence, one occurrence will make the company liable for not more than the $10,000 policy limit. If three accidents occurred, then the insurance company could have to pay out $30,000.