"Although the right to sue a tortfeasor
is a common law right, the Legislature afforded a statutory remedy for injured workers under [G.L.c.
Under the topping-off version of UIM statutes, "if the injured person possessed liability insurance in excess of the liability insurance carried by the tortfeasor
, and if the injured person's loss exceeds the limits of the tortfeasor
's coverage, the injured person's own insurance picks up the difference." (107) In other words, the topping-off version puts the injured person in the position he or she would have been in "if the underinsured motorist had liability insurance with limits of liability equal to those of the applicable underinsured motorist insurance." (108)
principles related to joint tortfeasor
claims reveals that this threat
condition, they are "made whole," and the tortfeasor
Where multiple tortfeasors
are involved in an accident in which an underinsured-motorist policyholder is injured, the policyholder must be placed in the same position as if each tortfeasor
carried the same amount of insurance as the policyholder.
(1) As a rule of evidence, it prohibits the tortfeasor
The Supreme Court ultimately found in Clements that, while the trial judge should not have applied the material contribution to risk test to find causation in that single tortfeasor
case, he erred in his application of the "but for" test.
"Payments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor
's liability, although they cover all or a part of the harm for which the tortfeasor
is liable." Id.
"If this property is damaged by others, the insurance carrier can institute a subrogation action if the property owners submit a claim, or the property owner could file suit against the tortfeasors
directly," says Rogers.
This general idea may be of utmost importance in the field of technological or so-called man-made disasters, where there is an operator (or, in terms of tort law, a tortfeasor
or injurer) who can be held accountable for the consequences of the disaster.
Thus, in some cases, if there is a concern that the tortfeasor
will collapse economically if she must finance the elimination of the nuisance or if she must eliminate it first and only later collect from the victims, it may be reasonable to divide the risk so as not to disincentivize potential injurers from investing.
2) A sued joint tortfeasor
may implead others or may later commence a contribution action against those not joined, as prescribed in the first Contribution among Joint Tortfeasors