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Practice Tip: Common-Law Indemnification

By Alan D. Kaplan and Marisa A. Leto

You represent the manufacturer of machine parts. Your client recently learned it has been named as a defendant in a lawsuit initiated by a consumer class for injuries allegedly sustained during use of a machine that was manufactured with your client's parts. The manufacturer of separate but interrelated parts used in the machine has also been named as a defendant. Fast-forward one month and your client has been served with cross-claims by the manufacturer of the interrelated parts, seeking both common-law indemnification and contribution against your client for the manufacture of allegedly defective parts. Your client seeks an initial assessment of the third-party claims. New York law applies.

This article provides an in-depth discussion of the concept of common-law indemnification, using New York State to illustrate how the law has evolved in that state, from the inception of contribution as an available remedy through the present day interpretation by the courts. Although this concept by definition derives from the “common law,” practitioners should be aware that many states have their own peculiarities that must be identified at the outset of any litigation so that an appropriate strategy can be devised.

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