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Kentucky

: Kentucky Law Blog

PENDING: House Bill 643 (Expand ability of certain plaintiffs to sue )

By Michael Stevens

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Introduced by Rep. John Tilley on February 26, 2008, to remove the statute of limitations for actions of certain third parties in civil actions involving comparative fault.
http://www.kentuckyvotes.org/Legislation.aspx?ID=60302

NOTE:  This has been called the "lazy plaintiff's bill" or the "sneaky defendant's" bill depending on who writes your checks for legal fees.  In either case, no plaintiff should be allowed to sleep on their claims, and no defendant should be permitted to "lie" in wait on a potential claim.  Thus you have two choices, permit the extension of the statute of limitations following a third party apportionment claim so that the plaintiff may amend his/her complaint OR apply a theory of estoppel or waiver on the defendant for asserting an untimely claim after they have already answered.

Of course, no one ever really addresses the fiction created by the appellate courts of allowing a third party complaint for indemnity in a world that no longer recognizes joint and several liabiity such that the claim for indemnity is not a claim as such but rather a claim for apportionment which is not a legal cognizable cause of action.  It is all a smoke and mirrors to permit apportionment.  Which is all fine and dandy except when the the so called indemnity claim is intentionally raised after it is too late for the plaintiff to amend his/her complaint. 

If the courts would consider apportionment against an unnamed party via a third party complaint as an affirmative defense which is waived by an untimely filing then the lazy plaintiff rule would not be needed since the sneaky defendant rule would not be permitted.

Full post as published by Kentucky Law Blog on March 03, 2008 (boomark / email).

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