Can I Settle With Just One Defendant?

Settle With One DefendantIf you have sued more than one party in your personal injury case, you’re probably wondering whether you can settle with one of them and still proceed with the lawsuit against the other(s). Such an arrangement could let you have your cake and eat it too — you get money now while still preserving your right to go to trial. The short answer to this question is “yes”, there is no legal impediment to you settling with just one defendant. Of course, this being a legal issue, the short answer doesn’t begin to address the complexities involved in such an arrangement.

There are both practical and strategic reasons why settling with just one defendant may not be possible, or even wise. Both you and the settling defendant will have risks to evaluate before making such a decision, which will depend not only on the relationship between the various defendants, but also the laws affecting damages in your state.

How Apportionment of Damages Affects Your Ability to Settle With Just One Defendant

State laws take one of three forms when it comes to dividing damages among multiple defendants:

  1. Joint and Several Liability – Each defendant is individually responsible for all damages caused by all defendants (but not for any damages caused by your comparative negligence). For example, if you suffered $100,000.00 in damages and there are three defendants, each defendant is liable for up to $100,000.00 regardless of their individual percentage of fault. If you were 20% at fault for your own injuries, each defendant would be liable for up $80,000.00. Note that your total recovery cannot exceed the total amount of damages attributed to all defendants (no double or triple-dipping just because there are multiple defendants). Under joint and several liability, a defendant who is found to be 1% at fault for your injuries may have to pay 80% of your damages because the other defendants may not be capable of paying their share (due to inadequate insurance).
  2. Pure Apportionment – Each defendant is only liable for the amount of your damages equal to its percentage of fault. If your damages equal $100,000.00 and one defendant is found to be 1% at fault, that defendant would only be liable for $1,000.00. A defendant who is 50% at fault would only be liable for $50,000.00, etc.
  3. Hybrid Approach – The hybrid approach is some combination of joint and several liability and pure apportionment. For example, your economic damages (wage loss, medical bills, etc.) may be joint and several, but your non-economic damages (pain and suffering) may be purely apportioned. This approach can get pretty complicated — for example, in Florida (which is now a pure apportionment state) the law used to be a hybrid approach as described above, with the proviso that economic damages were only joint and several among those defendants whose percentage of fault exceeded that of the plaintiff (yeah, it can get really complicated).

Luckily, your lawyer will know what approach to damages is taken in your state, and you generally won’t need to have a thorough understanding of these concepts. I’ve given this brief explanation of how fault can be apportioned because it will affect your ability to settle with one of multiple defendants.

Settlement tip

Settling With One Defendant in “Joint and Several” States

In states that still employ joint and several liability, there is very little risk to you in settling with just one defendant. Because the other defendants will be still be liable for the full amount of your damages, settling with just one will not affect your ability to make a full recovery (assuming the other defendants have adequate insurance).

Unfortunately, defendants in these states may be less likely to settle individually because they may face claims from other defendants for contribution. A contribution claim allows a defendant that pays more than its fair share of damages to collect the overpayment from other defendants that paid less than their fair share. So, while you need not worry about the percentage of fault allocated to each defendant (as they are all responsible for the full amount of your damages) the defendants worry about it because it affects their ability to sue each other should you recover a disproportionate amount from one of them.

Often, even a defendant who settled with you will still be liable to a co-defendant under a contribution claim if that defendant’s settlement amount did not equal or exceed his percentage of liability. So, if one defendant manages to settle with you for less than his fair share of the damages (as later determined by a jury), he may have to pay the remainder of that share to the other defendants. This creates a pretty strong disincentive for an individual defendant to settle, for even if it gets a bargain from you, that bargain may vanish when the other defendants sue it to recover the rest of its share of the damages.

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Settling With One Defendant in “Pure Apportionment” States

In pure apportionment states, defendants will be much more willing to settle individually, as there is no risk of a contribution claim from the other defendants (due to the fact that each defendant is only liable for its own percentage of fault). Naturally, this means that the risk of settling with one defendant shifts entirely to you. If you settle with a defendant for less than its percentage of fault, you will be unable to make a full recovery. Of course, if you settle for more than its fair share of the fault, you get something of a windfall.

In pure apportionment states, defendants who settle before trial will still appear on the verdict form, and a jury will still be able to apportion fault to them. This is what’s known as an “empty chair” — the other defendants get to point to the empty chair where the settling defendant should be and urge the jury to apportion as much fault to that defendant as possible.

As the settled defendant has no interest in defending itself at trial (because you can’t collect anything more from it), your lawyer will have to shift fault not only away from you, but also away from the settled defendant. So, by settling with just one defendant, you in essence lose a potential ally in the courtroom — the settled defendant’s lawyer — who could help place the blame on the other defendants. This could be a wash, however, as he’d likely try to shift some of the fault to you as well, and/or try to minimize your damages.

Settling With One Defendant in “Hybrid” States

In hybrid states, you get the best and worst of both worlds when it comes to settling with one defendant. Each side bears the risks of settlement stated above as to that portion of damages which is joint and several and that which is apportioned. This may make it easier to settle with an individual defendant, as both you and he have “skin in the game” (risk).

Settling With an Individual Defendant When One Defendant is Vicariously Liable for Another

In many cases involving multiple defendants, one of the defendants will be vicariously liable for another. Vicariously liability is a complicated legal concept, but it basically means that one defendant is liable not because of its own actions, but because of the actions of another party. The most common example is an employer being held liable for the negligence of its employee while that employee was “on the job”. The employer need not have been negligent in hiring, training or supervising its employee. It is held liable purely as a matter of public policy.

In cases involving a vicariously liable defendant, both the “active tortfeasor” (e.g., the employee) and the “passive tortfeasor” (e.g., the employer) will be jointly and severally liable for your damages, regardless of your state’s usual approach to damages (it’s impossible to apportion damages between the two, as they are both liable for the exact same conduct). Most often, they will both be covered under the same insurance policy and they will share a defense attorney. This makes settling with just one defendant nearly impossible, as the insurer will not want to settle for only one of its insureds.

Further complicating matters, many states will not allow a plaintiff to proceed with a claim against a vicariously liable defendant if the plaintiff settled with the “active tortfeasor.” So, there is a huge danger in trying to settle with an “active tortfeasor” for less than the full value of your claim. If you succeed, you may find your claim against the passive tortfeasor barred as a matter of law.

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Should You Settle With Just One Defendant?

Now that you know the basic risks involved in settling with just one defendant, should you ever do it? I can’t answer that for you. Any settlement involves the risk that you will not be fully compensated. However, settling with just one defendant and going to trial against the others presents an added complication — you will know whether your settlement was a good idea or not. If you can live with that possibility, it may be worth it to secure some “sure money” early in your lawsuit and lessen your risks at trial.

Hopefully, after reading this article, you will feel more comfortable discussing the various risks of settling with just one defendant with your lawyer. Trust me when I tell you that I have not covered all of those risks, just the most common ones. There are too many possible combinations of “related defendants” and various state laws to give them all a thorough discussion. Your lawyer will have to fill in the details for you. Be warned — it may get pretty complicated.

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24 Responses to Can I Settle With Just One Defendant?

  1. scott says:

    How would you prove you’re claim of consortium or can you claim consortium when married in the State of Fl. Does it matter how long the couple has been married in the State of Florida and if the marriage has had past disagreements between the husband an wife like all marriages. And what is the legal description of consortium that a jury or Judge would see?

    • fl_litig8r says:

      This is the standard Florida Jury Instruction for consortium damages, Instruction 6.2(d):

      d. Spouse’s loss of consortium and services: (Formerly 6.2e)

      On the claim brought by (spouse), you should award (spouse) an amount of money which the greater weight of the evidence shows will fairly and adequately compensate (spouse) for damages caused by the incident in question. You shall consider the following elements of damage:

      Any loss by reason of [his wife’s] [her husband’s] injury, of [his] [her] services, comfort, society and attentions in the past [and in the future].

      As you can see, it is a pretty broad and vague instruction, but that can be a good thing as it allows juries to consider any type of damages to the spouse that can fairly be attributed to the accident. The prior “happiness” of the marriage is relevant to this claim, just as a pre-existing medical condition is relevant to a physical injury claim. Of course, consortium includes not only sex and relationship injuries, but also any duties which the non-injured spouse needed to assume to make up for the injured spouse’s inability to perform them. So, if the couple used to share household and child care duties before the accident, but now only the non-injured spouse bears these burdens, that spouse would be entitled to the monetary value of the injured spouse’s former share of the work.

  2. Isabella says:

    I am coming to the end in preparing my pro se complaint against my Town, Officials and Police Department.

    My Town is a small Charter Town in Florida- in fact it is only 5/8th of a mile long. It has been run by the good old boys club for decades and they literally do whatever they want and will answer to nobody.

    For years they have violated multiple provision in are Charter without a referendum – I am suing them for robbing me of my right to vote. After all the Town Charter is considered the “Constitution” of our Town; I have pointed these violations out to the Town for years but they did nothing.

    Whist running the Town against our Charter they have also violated Florida Statute 166.21() and Statute 166. 31 when it come to appointive boards – my question is can I use U.S. Title 42 regarding my been denied to vote to change our Charter
    I cannot find a definitive answer on the webb if I can sue a Municipality for denying my right to vote

    • fl_litig8r says:

      Sorry, but I’m not going to get involved in researching whether you can sue for such a claim. To be honest, I wouldn’t take on such a case if you were paying me, so I really don’t want to do it on an unpaid basis. The cases I have brought under 42 U.S.C. 1983 were mainly police and jail abuse cases, so I have no knowledge off the top of my head as to whether it can be applied to state election laws (I would think that this would be highly problematic, even under a theoretical Due Process claim). You might want to try researching caselaw regarding writs of mandamus and/or prohibition (this would be state law, not federal) if you feel that your local government is violating mandatory requirements of state statutes.

      • Isabella says:

        Thank you I appreciate your answer but you seem very angry with me and I cannot understand why

        a) My case has absolutely nothing to do with State Elections
        b)My case is about a council who changed our towns government by ordinance without a referendum thereby robbing myself and 1200 residents the right to vote on any changes to our charter and form of government- they have done it six years – I discovered a year ago. I have informed the Council about the multiple violations of our Charter and they just laugh at me.
        c) I believe that I mentioned that they were in violation of 2 Florida Statutes
        d) I was really only looking to see if the robbing the residents of our Town of the right vote on the changes maybe a Civil Rights Violation
        e)I am also suing for malicious prosecution
        and a second threat of arrest without probable cause.

        All I have left is to take it to court on my own.
        Thank you for help.

        • fl_litig8r says:

          I’m not angry at all. I think you inferred an angry tone where it was not intended. I was merely setting some firm boundaries so you don’t get the idea that I’m going to research this relatively obscure area of law for you.

          The suggestion in my last post regarding researching writs of prohibition and mandamus still applies if you believe that the council is required to hold a referendum to change your charter. Violation of state statutes will rarely form the basis of a Constitutional claim, except perhaps based on Due Process (which is still nearly impossible in the 11th Circuit — our circuit — thanks to its horribly decided McKinney V. Pate decision, which essentially requires you to sue and lose in state court before it believes you’ve been denied due process, even if that claim is against a municipality). Certorari review by a circuit court may be a possible remedy for the past ordinances passed.

  3. Isabella says:

    Wow you removed my reply to you – that’s sad

    • fl_litig8r says:

      I didn’t remove your reply. The way that comment moderation works on WordPress sites such as mine is that while a comment is held in moderation, it can only be viewed by the computer and browser from which is was originally posted. It sets a cookie in that browser to let the site know that it is you so you can see your comment while it is pending moderation.

      So, if you check back from a different computer or different browser than the one used to post the comment, or if something went wrong with the cookie, you won’t be able to see the pending comment (just like all other users until I approve it). I don’t delete (or refuse to approve) comments unless they are spam or are just abusive and/or unrelated to the law (I even let the insulting ones through if I think that the person is trying to make a legitimate point).

      As I said in my last post, I’m not mad at you. Sometimes it takes me 24 hours or more to approve a comment, though I strive to reply within 24 hours.

  4. MikeinGa says:

    I’m the passive tortfeasor being sued as an employer. MVA was 2.5 years ago. I have since sold the store to pursue diff career path. Plaintiff is also sueing me personally in an effort to lift corporate veil (as the business has no assets). My concern is that plaintiff will settle with active tortfeasor but then continue to sue me personally. Your saying that in situations of respondeat superior, it’s impossible to settle with just the active tortfeasor. And, if Plaintiff settles with active tortfeasor, wouldn’t that mean he’d have to settle with the corporation, as they are both equally liable? And if they settle with the corporation, then, I’m assuming they can’t pierce the veil b/c they’ve already settled with the business. Just trying to understand the concept of settling with just one defendant. My business and personal insurance have rejected coverage (I’m the guy with the DJA action against me) so I have a personal exposure, and cost of litigation is adding up. My other question is in regards to piercing the corporate veil; In your opinion, is failure to keep corporate minutes enough to lift veil? I’ve read of many factors that need to happen but I can’t seem to figure out if just one of the requirements needs to be met in order to pierce, or if multiple requirements need to be me (like commingling funds AND lack of corporate formalities). What’s the threshold to peirce….?
    Thanks, MikeinGA

    • fl_litig8r says:

      To be clear, I said that many (not all) states do not allow a person to sue the passive tortfeasor if he releases the active tortfeasor in a respondeat superior case. Georgia used to follow this doctrine, but in 1999 the Georgia Supreme Court specifically ruled that “We conclude that the execution of either a covenant not to sue or a release in favor of an employee does not discharge an employer who is alleged to be vicariously liable for the tortious acts or omissions of that employee, unless the instrument names the employer.” (Miller v. Grand Union Company). Therefore, you can be sued even if the employee settles and gives the plaintiff a release. Settling with the employee does not automatically mean settling with the corporation any more (even prior to the 1999 Miller case, the corporation could still have theoretically been sued under theories other than respondeat superior, such as negligent hiring/retention/supervision, which relied on the corporation’s own negligent acts).

      As to piercing the corporate veil, as you’ve found in your own research, there are no hard and fast rules and each cases will be decided based on its specific facts. I can’t say that the sole act of not keeping corporate minutes definitely won’t be enough, though I would expect more to be required. As you’ve noted, commingling of funds is often a major issue, and I would expect that this factor in and of itself would be more likely to pierce the veil than just not keeping minutes — it goes more to the heart of whether the corporation was treated as a separate entity, or just an alter-ego for the owner. Unfortunately for you, piercing the corporate veil is decided on a sliding scale approach in most cases, requiring an examination of many factors, each one being given different weight, with no black and white answers.

      • MikeinGa says:

        Ok, all that makes perfect sense. I anticipate the active tortfeasor’s attorney to tender policy limits (min cov) once a demand letter is presented. I’m trying to determine how much effort plaintiff’s attorney will have to exert to attach liability to me personally. From my understanding, assuming he settles with active tortfeasor and continues to pursue me, in order to obtain a judgment against me, he would have to:
        1. Take the corporation to trial
        2. Prove liability
        3. Prove Damages
        4. Prove causation of those damages.
        5. Attach a judgement to the corporation
        6. Pierce the veil to attach that judgement to me personally.
        Just trying to understand all the hoops that he would need to jump through to attach liability to me. Thank you for all your help, your very generous with your time and answers.
        -MikeinGA

        • fl_litig8r says:

          While the manner you suggest is certainly one way of doing it, unless Georgia has specific caselaw against it, you could just be sued as the alter-ego in the original lawsuit. In such cases, the issue of whether the veil is pierced is decided in the same action as the injury claim. Because courts typically view piercing the corporate veil as an equitable remedy, this issue is usually decided by the judge, even in cases where a jury trial is requested. It is usually dealt with rather early in the litigation.

          Beware, though, that if the plaintiff sues the corporation alone, in the manner that you suggest, and you allow a default judgment to be entered (because the corporation has no assets), you risk having that default judgment applied to you in a subsequent action to pierce the corporate veil. This is a somewhat tricky area of law, because often whether the judgment can be attached to the alter-ego depends on whether the alter-ego participated in the defense of the claim against the corporation. Whether allowing a default judgment to be entered is considered “participating” is often an open question. So, if you defend the corporation, your risk of the court finding that you “participated” in the litigation is greater. If you don’t defend the corporation, you risk a much larger judgment being entered, but you may not have eliminated the “participation” argument. This is something that a Georgia lawyer would need to research specifically (and there may not even be a clear answer).

          • MikeinGa says:

            You rock. Its incredible how thorough you are with your answers. It is greatly appreciated during this stressful situation. I’ve learned more about law than I ever wanted to know. The one good thing going for me, is that I have no assets (and I don’t have a significant income). Lost it all in the business. So, while not a defense, having no money will hopefully deter plaintiffs council from continuing to pursue me after settling with employee. Fingers crossed! Thank you.
            -MikeinGA

  5. MikeinGa says:

    Without being longwinded, I’m the guy thats being sued as an individual (corp veil piercing). Plaintiff has settled with employee, and wants to settle with me and the business to wrap this up. I have no problem settling, but they are pursuing their own UIM policy. I’m concerned that I’ll be sued later on by the UIM policy. Is that a possibility? I presume that no one can guarantee me a global release if they continue to pursue the UIM policy.

    • fl_litig8r says:

      Georgia has some peculiarly bad law regarding the preservation of a UM insurer’s right to sue after what’s known as a “limited liability release” is executed against the tortfeasor and his insurer. This article covers it pretty well. So, there seems to be absolutely no benefit to you settling if they only offer a limited liability release, as that would leave you exposed to the UM insurer’s subrogation claim.

      From what I can gather, it may theoretically be possible for the plaintiff to obtain permission from her UM insurer to settle with you in exchange for a full release. This would preserve the plaintiff’s UM claim, but shield you from the exposure a limited liability release creates. Unless this can be worked out, I wouldn’t enter into any settlement that didn’t also resolve the UM carrier’s subrogation claim.

      This is a pretty weird situation, because technically his UM carrier would be first in line to collect money from you, not him. If his UM benefits, added to the money already recovered by the plaintiff, provide him with full compensation, he wouldn’t even have a claim to bring against you — only his UM carrier would.

      I really can’t see you resolving this without the express permission of the UM carrier to grant you a full release. Given the UM carrier’s potential priority to recover from you before the plaintiff can, I’m not sure that it has much incentive to agree to that.

  6. Isabella says:

    Hi,

    I put in a complaint against my Town, Council Members and Town employees including Police officers.
    I sued them all in their official and individual status and I served them all the Town Hall – I am indigent and the Sheriff served the papers.

    I have found out that this is not correct – do I have to serve the individuals at their own home address and not the Town Hall?

    How about at the regular monthly Town Hall Meeting?

    Thanking you in advance for any help that you can give me

    • fl_litig8r says:

      You can serve an individual anywhere you find him or her, as long as the process is served directly on that person, as it states in Fla.Stat. 48.031(1)(a). I see no problem with serving the individual capacity defendants at home, work, or anywhere else your process server finds them. If their office staff is intercepting the service (making it invalid — as the sheriff should know), you might be better off trying them at their homes.

      Serving the defendants in their official capacity, which is equivalent to suing the government agency they work for, is done pursuant to Fla.Stat. 48.111 and Fla.Stat. 768.28(7) (which requires service on the Florida Department of Financial Services, as well as the local government agency, except when that agency is a municipality). Compliance with Fla.Stat. 768.28 is only required for state law claims, not federal.

  7. Isabella says:

    Hi,

    I have already put in one amended complaint can I ask the court to put in another amended complaint before defendants have answered first amended complaint.

    I want to replace a 43 cause of action and make it a state cause of action

    • fl_litig8r says:

      Because you’ve already amended once, there are only two ways to amend the complaint. The first, which you mention, is to file a motion for leave to file an amended complaint. The second is to get the defendants to stipulate to allowing you to file an amended complaint. The defendants will have the opportunity to oppose your motion, so you need to serve them with a copy (it may be worthwhile to wait for them to answer so you can just serve their attorneys by mail with the motion). Usually, this early in a case, the court will allow amendments pretty liberally. However, if the defendants challenge the proposed amendment on the grounds of “futility” (that your proposed new count would be subject to dismissal), you would basically have to argue whether the count would survive a motion to dismiss just to have the amendment allowed.

      I’m not suggesting that you have to make such an argument pre-emptively in your initial motion to amend. You can do a basic motion to amend for now. I’m just warning you that a futility argument may be the response from the defendants, and you may have to prepare an additional memorandum in support of your motion if such an argument is made.

      • Isabella says:

        Thank you for you answer,

        My problem is I put a cause of action for malicious prosecution under 43 but I know the statute of limitations is over it will be dismissed- I meant to put in in as a State Claim which gave me 4 years and I have plenty of time left – that why I do not want to wait – but what do I know!

  8. KH says:

    Our attorney named both the insurance company & the builder as Defendants. We we asked him right away “why he did this?” (When each seemed to have different alleged liabilities). His answer “one can sue the other when it’s settled for a portion of what they feel is not theirs”. He never explained what “2 Defendants” listed meant, and here’s the kicker – our attorney called about 3 years into the case and said our insurance offered a settlement (CAN ONE OF THE DEFENDANTS NAMED OFFER TO SETTLE?). We asked him to counter as their offer, minimally, didn’t even cover our contents. He told us “they won’t go higher, and we can lose the right to settle with them if we counter”. He, also, NEVER explained what, if any, repercussions or effects this could have with our Insurance being named as one of two Defendants on our lawsuit against them. We didn’t know what naming 2 Defendants “Really” meant nor the possibility of repercussions on our lawsuit. Can one Defendant offer to settle? (If we had known the whats, ifs, and hows we wouldn’t have even considered settlement (which was handled incorrectly per our contract, too! – probably a different category)

    • fl_litig8r says:

      I’m going to need to know a little more about this case. Because you mention a builder, I assume this isn’t personal injury. I need to know the basis of the claim (in general — no need to go into detail) and what type of insurance you’re dealing with — I assume this is your own insurer from your comment. Without that information, I can’t say whether it’s safe to settle with just one defendant, why your lawyer sued both or what possible repercussions your lawyer may have been alluding to.

      Know that it is pretty common to sue two defendants for a single amount of damages attributable to both, even if their liability stems from two different acts or arises under two different legal theories. For example, you could sue both a doctor for medical malpractice and a medical device manufacturer for product liability if your doctor installed a faulty device inside you and also committed malpractice while doing so (say he nicked an artery or something). In automobile accident cases, one could (and often does) sue a negligent driver and one’s own UM insurer in the same lawsuit. There is always the possibility that you could win against one and lose against the other defendant, which would obviously have certain repercussions, but I’m not sure if that’s what your lawyer was talking about.

  9. Dan says:

    Do you have any idea why a mva client who signed an attorney agreement would be required to execute a new contract with the attorney co-counsel when the main attorney said that the co-counsel attorney was getting paid out of the main attorneys fees?
    re-mva the insurance that hit me agrees to pay but my underinsured does not agree to pay so the main attorney wants cocounsel to deal with my uim insurance. any thoughts are much appreciated-thanks.

    • fl_litig8r says:

      Whenever a new attorney (from a different firm) becomes involved in a case, he’ll need to have his own fee contract. This is required so that he can be paid (in my state of Florida, it’s also required under the ethics rules to have a written fee contract in contingency fee cases). It’s normal. I would expect that the new contract will contain the same fee percentages as the your current contract, but that it will identify the split of this fee between the attorneys involved. So, you will be paying the same fee as under the old contract, but now you and the lawyers involved have it in writing how that fee will be divided. Just be sure to read the new contract and ask the lawyers to explain anything you might not understand.

      I’m not sure what you’re asking with your “any thoughts” request. As long as you’re paying the same fee as before, I see no problem with bringing on an additional lawyer who may have more specialized experienced in a needed area.

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