IN A MULTI-PARTY LAWSUIT, IS EVIDENCE OF A FORMER PARTY'S AGREEMENT TO SETTLE WITH PLAINTIFF ADMISSIBLE FOR IMPEACHMENT PURPOSES AT TRIAL?
Andrew D. Stone, Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 1 January 2009
INTRODUCTION
In Saleeby v. Rocky Elson Construction, 33 Fla. L. Weekly S106 (Fla.2009), the Supreme Court of Florida resolved a conflict between the 3rd and 4th DCA's and held that evidence of a settlement agreement between a former party to a lawsuit is inadmissible.
FACTS
In Saleeby, the plaintiff was working on a construction project when a roof truss collapsed. As a result of the accident, the plaintiff was rendered a paraplegic. The plaintiff sued A1 Roof Trusses, Ltd. (“A1”), the truss manufacturer, and Rocky Elson Construction Co. (“Rocky Elson”), his statutory employer (Note: The plaintiff alleged gross negligence in an effort to overcome the worker's compensation immunity defense asserted by Rocky Elson).
During discovery, the plaintiff deposed Mr. Herring, A1's president, who testified that the trusses failed due to Rocky Elson's faulty installation. Plaintiff subsequently settled his case against A1 and proceeded to trial against Rocky Elson.
At trial, the plaintiff called Mr. Herring to testify. Over plaintiff's counsel's objection, on cross-examination, counsel for Rocky Elson elicited impeachment testimony from Mr. Herring regarding the fact that:
- His company was a party to the lawsuit at the time of his deposition;
- A1 agreed to a monetary settlement which included the plaintiff's agreement to dismiss his company from the lawsuit; and
- After the settlement, he agreed to present trial testimony against Rocky Elson.
The jury ultimately found that plaintiff failed to prove that his employer was grossly negligent and they therefore entered a defense verdict. Plaintiff appealed to Florida's 4th DCA, and asserted, among other things, that the trial court erred in allowing introduction of evidence about A1's settlement.
LAW
The following statutory law was cited by plaintiff's counsel in support of his contention that evidence of a settlement by a former party to a lawsuit is inadmissible:
Fla. Stat. §768.041(3):
The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.
Fla. Stat. §90.408:
Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.
4TH DCA DECISION
The 4th DCA acknowledged the language of Fla.Stat. §§ 768.041(3) and 90.408. However, they carved out an exception when such evidence is being used by a party for impeachment purposes. The court relied upon the Florida Supreme Court's decision in Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993) in which the court allowed evidence to be submitted to the jury regarding the fact that a defendant in the lawsuit had entered into a pre-trial agreement to assist the plaintiff at trial (Note: In Dosdourian, the Court also outlawed these agreements which were otherwise known as “Mary Carter” agreements).
The 4th DCA reasoned that witness bias or motivation as a result of a pre-trial settlement is an important factor in a jury's determination regarding the credibility of a witness' testimony. They therefore upheld the trial court's ruling in allowing such evidence to be presented to the jury. In citing a conflict between the 4th DCA's decision in Saleeby and the 3rd DCA's decision in Ellis v. Weisbrot, 550 So.2d 15 (Fla. 3 rd DCA 1989), the plaintiff appealed to The Supreme Court of Florida.
THE SUPREME COURT OF FLORIDA
On appeal, the Court held that the language of Fla.Stat. §§ 768.041(3) and 90.408 was clear and unambiguous and not subject to judicial interpretation. Second, the Court distinguished between the facts of Saleeby and those that were presented in Dosdourian by noting that in Dosdourian, the settling defendant remained a party to the litigation, whereas in Saleeby, after A1 settled, they were dismissed as a party to the lawsuit. The Court therefore held that there was no reason to disclose the fact of the settlement as evidence of bias by A1 against Rocky Elson.
CONCLUSION
The Florida Supreme Court's opinion in Saleeby, resolves the conflict between the 3rd DCA and 4th DCA regarding the admissibility of testimony regarding a former party's settlement agreement as impeachment evidence. The law in Florida has now been made clear that such evidence is inadmissible.
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