Toll agreements for counterclaims (including counterclaims and third-party claims) can be a useful tool to avoid taking an overtly unfavourable position against a co-accused while awaiting a product liability case. A toll agreement is usually an amicable agreement between the parties that provides for the limitation period for counterclaims for a certain period of time. Toll agreements are contractual in nature and must therefore be concluded for each individual case. With a toll contract, a company is clearly aware of a claim. Notification of a claim triggers certain obligations to retain evidence in order to avoid an argument of spoliation in the event that efforts to resolve the dispute fail and a lawsuit is filed. Spoliation is defined as “the deliberate destruction, mutilation, alteration or obfuscation of evidence.” Keyes v. Lerman, 191 Md. App. 533, 537, 992 A.2d 519 (2010) (cited in Black`s Law Dictionary, 8th edition (2004) at 1437). Spoliation is a doctrine in Maryland that protects against a situation in which a party to the dispute “supports its claims or defenses with material evidence that it has destroyed to the detriment of its adversary.” Cumberland Ins. Grp.c. Delmarva Power, 226 Md.
App. 691, 698, 130 A.3d 1183 (2016). If the parties agree to enter into a toll contract, the main provisions of the contract govern its scope, including the types of claims you could make against the co-accused. In product liability cases, you may have a contribution request against co-defendants to ensure that your customer does not pay more than their proportionate share of the liability, which is assessed in joint and several liability countries. You may also have an implied claim for compensation against a manufacturer if you are a downstream distributor or seller, or you may be entitled to contractual indemnification if your customer includes a contract with defense and indemnification provisions. . . .