The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
This case arises from an automobile accident that occurred while the Plaintiff was on duty during his railroad employment. See Mancini v. CSX Transp., Inc., 2010 WL 1268021 (N.D.N.Y. April 01, 2010). Familiarity with the background facts of the case, set forth in the April 2, 2010 Decision and Order, is presumed. Id. For purposes of the instant motion it is sufficient to understand that Plaintiff Lawrence A. Mancini ("Plaintiff"*fn1 ) has sued: (1) his employer, CSX Transportation, Inc. ("CSX"), pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. alleging that the employer failed to provide a safe place to work (i.e. failed to provide a safe vehicle to transport him); (2) the driver & owner of the vehicle in which Plaintiff was riding, co-worker Richard T. Ketterer ("Ketterer"), pursuant to state common law alleging that Ketterer was negligent in operating his vehicle; and (3) the driver of the vehicle that struck Ketterer's vehicle from the rear, Carol Ann Ashwood ("Ashwood"), pursuant to state common law alleging that Ashwood was negligent in operating her vehicle. Defendant CSX has also brought cross-claims against Ketterer and Ashwood seeking contribution and/or indemnity in the event a judgment is rendered against it.
According to the parties, at a settlement conference with the Hon. Andrew T. Baxter, United States Magistrate Judge, Plaintiffs and Ashwood and Ketterer indicated an intention to settle their claims. However, counsel for CSX announced that if Plaintiff obtained a judgment against CSX on the FELA claim, CSX would pursue its claims for contribution and/or indemnification against the settling defendants. The announcement stalled the settlement discussions. The parties then submitted briefing to the Court addressing the impact that N.Y. Gen. Oblig. Law § 15-108*fn2 and the FELA will have on the settlement of the claims between Plaintiff and Ashwood and Ketterer. Thereafter, Plaintiffs and Ashwood and Ketterer entered a Stipulation of Settlement which conditionally settled their claims, see Stip. Settlement [dkt. # 101], and Ashwood and Ketterer filed a joint motion to dismiss CSX's cross-claims against them. See Joint Mot. [dkt. #102]. The conditions of the settlement are: (1) that CSX's cross-claims are dismissed, and (2) the Court uses a pro tonto approach to calculate the set-off against Plaintiff's settlements in the event he recovers against CSX. See Stip. Settlement. CSX has objected to the Court considering the joint-motion, arguing (1) that the conditional settlement is in violation of N.Y. Gen. Oblig. Law § 15-108(d) because no money has exchanged hands,*fn3 and (2) that the motion asks for an advisory opinion.
a. Justicible Case or Controversy
New York state law applies to CSX's contribution and indemnification claims in this action. See Geraty v. Northeast Illinois Regional, Commuter Corp., 2010 WL 1292414, at * 3 (N. D. Ill. March 29, 2010)("In a FELA case, the right to contribution among multiple tortfeasors is governed by state law."); see also Fuller v. CSX Transp., Inc., 2009 WL 36903, at * 2 (N.D.N.Y. Jan. 06, 2009)(applying New York state law to contribution and indemnification third-party claims in a FELA case). Under New York law, contribution and indemnification claims may be asserted in the same action for which the underlying obligation potentially arises. See N.Y. Practice, Torts § 10:30 ("While technically an action for indemnification does not arise until a party has been forced to pay damages that were caused by someone else, New York law permits the party seeking indemnification to commence an action prematurely, so that all claims can be tried and resolved in a single proceeding."). Plaintiff and Defendants Ashwood and Ketterer ask for a judicial ruling on the legal viability of CSX's contribution and indemnification claims, and an indication as to how the Court will calculate a set-off if Plaintiff settles with Ashwood and Ketterer and receives a judgment against CSX. CSX argues that the motion asks for an advisory opinion.
A federal court may only resolve actual cases or controversies and lacks the power to render advisory opinions on hypothetical or academic disputes. U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 446 (1993); see Broadview Chem. Corp. v. Lucite Corp., 417 F.2d 998, 1000 (2d Cir.1969) ("[T]his is not a hypothetical or academic dispute or a request in the abstract for an advisory opinion, but a definite, concrete controversy of sufficient immediacy to warrant the issuance of a declaratory judgment."). "The real value of the judicial pronouncement - what makes it a proper judicial resolution of a 'case or controversy' rather than an advisory opinion - is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff." Hewitt v. Helms, 482 U.S. 755, 761 (1987)(emphasis in original).
The Court will address the joint motion to the extent that it seeks a ruling on concrete controversies of sufficient immediacy such that the settling of the disputes will affect the behaviors of Ashwood and Ketterer toward Plaintiff. The Court will treat the joint motion as if brought pursuant to Rule 12.
The starting point on this motion is CSX's obligation under the FELA. Pursuant to 45 U.S.C. § 51, the railroad is liable for damages if Plaintiff's "injury... result[ed] in whole or in part from [the railroad's] negligence." Joint and several liability applies in FELA cases, thereby making the employer responsible for the entirety of the damages caused by it and any other defendants or non-parties that contributed to the injuries. Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 160-163 (2003); Schadel v. Iowa Interstate R.R., Ltd., 381 F.3d 671, 675-676 (7th Cir. 2004). Under 45 U.S.C. § 53, that amount is reduced only by the plaintiff's comparative negligence. See Waisonovitz v. Metro-North Commuter R.R., 462 F. Supp.2d 292, 293-94 (D. Conn. 2006)("In furtherance of FELA's humanitarian purposes, Congress abolished the fellow-servant rule, rejected contributory negligence in favor of comparative negligence, and abolished the assumption of risk defense."). "While the railroad may sue third parties for indemnification and contribution, the railroad's own responsibility is affected only by the plaintiff's comparative negligence." Krueger v. Soo Line R.R., 2005 WL 2234610, at * 1 (E. D. Wis., Sep 12, 2005)(citing Schadel, 381 F.3d at 676; see also Ayers, 538 U.S. at 141, 162).
c. Contribution and Indemnification Claims Generally
In Rosado v. Proctor & Schwartz, Inc., 66 N.Y.2d 21, 24 (1985), the New York State Court of Appeals explained the "important substantive distinctions between contribution [as referenced in § 15-108] and indemnity" as follows:
Basically, in contribution the loss is distributed among tort-feasors, by requiring joint tort-feasors to pay a proportionate share of the loss to one who has discharged their joint liability, while in indemnity the party held legally liable shifts the entire loss to another. Contribution arises automatically when certain factors are present and does not require any kind of agreement between or among the wrongdoers. Indemnity, on the other hand, arises out of a contract which may be express or may be implied in law "to prevent a result which is regarded as unjust or unsatisfactory." Implied indemnity is frequently employed in favor of one who is vicariously liable for the tort of another, but the principle is not so limited and has been invoked in other contexts as well. Nonetheless, ...