Late last month, the California Supreme Court raised the stakes for defense counsel negotiating settlements in multiple defendant cases, abolishing the common-law “release rule” in Leung v. Verdugo Hills Hospital [pdf]. Leung has gotten a good bit of attention in the news and the blogs, including stories in The Wall Street Journal, Findlaw, Plaintiff Magazine [pdf] and Law360.
According to the “release rule,” a plaintiff’s settlement and release of one joint tortfeasor releases all nonsettling tortfeasors from any liability for the plaintiff’s economic damages. The traditional rationale for the rule has been that since defendant can receive only one compensation for the joint wrong, and each joint tortfeasor is responsible for the entire liability, any payment must necessarily satisfy the claim.
California law has developed two “work-arounds,” one statutory and one judge-made.
In 1957, the legislature enacted C.C.P. Section 877, which establishes a system of “good faith settlements.” Where the trial court determines the settlement to be in good faith – meaning in the reasonable ballpark of the settling defendant’s liability, taking into account that the defendant should pay less in settlement than after trial – the settlement reduces joint tortfeasors’ potential liability, but does not automatically release them. Once a good faith determination is made, nonsettling defendants are barred from later suing the settling defendant for contribution on the grounds that the settling defendant paid too little.
The judge-made work-around was even simpler: courts held that as long as the settlement agreement was phrased as a “covenant not to sue” rather than a “release” (a distinction the courts ultimately admitted was largely without a difference), non-settling joint tortfeasors would not be released.
Leung involved an infant who sustained severe brain damage from kernicterus, a condition in which excessive bilirubin builds up in a newborn’s body and migrates to the brain. Before trial, the plaintiffs settled with the pediatrician for $1 million – his policy limits. The pediatrician agreed to participate in the trial, and in return, the plaintiffs gave him a release. The pediatrician’s petition for a good faith determination under Section 877 was denied, but the parties went ahead with the settlement anyway. At trial, the jury returned a verdict against both the pediatrician and the hospital, awarding over $95 million in future medical expenses and lost future earnings. The trial court entered judgment against the hospital for 95% of all economic damages – the share of liability for the pediatrician and hospital – subject only to the $1 million settlement as a setoff. On appeal, the Court of Appeal applied the release rule and reversed the judgment with respect to economic damages, holding that the release of the pediatrician released the hospital as a matter of law.
The Supreme Court reversed the Court of Appeal: “In light of the unjust and inequitable results the common law release rule can bring about, as shown in this case, we hold that the rule is no longer to be followed in California." After considering various alternatives for a new rule, the Court held that a settlement by a joint tortfeasor, absent a finding of good faith, operates as a setoff against the ultimate judgment, but that the nonsettling tortfeasors retain the right to pursue the settling defendant for contribution.
What all this means as a practical matter is that Section 877 good faith hearings will likely be harder-fought than ever. Settling defendants will litigate the matter aggressively, since a good faith determination cuts off future satellite lawsuits for contribution. Counsel for settling defendants should give careful consideration to including in the settlement agreement a provision allowing the parties to abrogate the settlement if a good faith determination is denied. Nonsettling defendants will have every incentive to scrutinize the settlement carefully and challenge anything not in the Section 877 “ballpark.”
