In March of 2012, Tom Costello was able to obtain a dismissal of a complaint that attempted to state a cause of action for contribution in the form of a claim for breach of contract.
03/10/2012In March of 2012, Tom Costello was able to obtain a dismissal of a complaint that attempted to state a cause of action for contribution in the form of a claim for breach of contract.
The parties seeking contribution had initially been denied leave to file a third-party complaint in a high damages personal injury suit filed in 2005. They then filed a separate action under the guise of a breach of contract, but praying for contribution type damages, which Tom was able to get dismissed with prejudice in March of 2011. Then, a number of months later, the parties seeking contribution amended a declaratory judgment action that they had filed in a separate court to add a count asking for damages in the form of emotional distress arising out of the exposure they faced in the 2005 suit, and for the increased insurance premiums that they had to pay as a result of the settlement paid by their insurer in the 2005 suit. We filed a motion to dismiss, arguing that this was a third bite at the apple, and even the newly plead damages were contribution damages that were barred by the statute of limitations, res judicata and judicial estoppel. The court agreed and dismissed the contribution claim, a third time, with prejudice.