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Settling Defendant Charge? Not for Pre-Trial Settlement. (NJ)

November 23, 2016

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When a party settles before trial, remaining defendants often seek a settling co-defendant charge while plaintiffs object on the grounds the charge is prejudicial to their case.  In a reported trial court opinion, Judge Rea explains why the charge is inappropriate when the jury has never seen the settling defendant.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/11/Hernandez-v.-Chekenian.pdf">Hernandez v. Chekenian</a></em>, a passenger in the second car of a multi-vehicle accident sued all three drivers for personal injuries.  All agreed that the driver of the first car in the line-up had no liability and was dismissed before trial. The insurer for the driver of the second car in which plaintiff was a passenger settled before trial for the full policy limit of $15,000 because the insured driver could not be located.  Whereupon, counsel for the defendant driver of the third car requested the Settling Defendant Model Jury Charge.
Judge Rea first acknowledged the well-established rule that neither judges nor lawyers are witnesses.  He then posited that, “When a judge gives a jury a settling defendant charge that judge is essentially testifying.”  Such a statement could be more heavily weighted by a jury who would not be given full disclosure on the terms of the settlement. This could be prejudicial to a plaintiff.
The purpose of the settling defendant charge is essentially to explain the absence of a defendant who has begun a trial but settled during it.  In such a case, the jury is entitled to some explanation of what happened with that defendant.  However, if the jury never sees the party, there is “no legitimate reason that a jury needs to be told that there was another defendant(s) who settled their dispute(s) by paying an amount of money.”
While the judge determined that a jury should not be advised of a pre-trial settlement, this does not mean that a settling tortfeasor’s negligence may not be apportioned by a jury.  If a defendant at trial establishes a <em>prima facie</em> case of negligence against a settling co-defendant, that settling defendant is included on the verdict sheet to allow the jury to apportion fault among the parties.  The jury then determines the percentage of fault for each party, including any comparative negligence attributed to the plaintiff.  However, Judge Rea commented, “Nothing about this analysis even remotely suggests that the jury should be told that the settling party paid money to the plaintiff.”
In dicta, Judge Rea opined, “… perhaps it would be more prudent to simply tell the jury that the particular defendant is no longer part of this case and that they (the jury) should not be concerned with nor speculate about the reasons that is so.”  Although this decision is not binding on other trial judges, as a reported decision, we can anticipate this argument will be persuasive to other trial judges.
Thanks to Ann Marie Murzin for her contribution.
For more information contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com"><u>dricci@wcmlaw.com</u></a>.

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