What Happens If You Don’t Settle With All Defendants in a Florida Personal Injury Case?

metal-570770-m.jpgSometimes settlement with one defendant in a case is appropriate while settlement with another defendant cannot be reached. In those cases, a plaintiff can proceed to trial against one of the defendants while settling with the other and dismissing him or her. One concern a plaintiff may have in such a case is whether the remaining defendant can blame the other defendant when the case goes to trial.

In a recent case, the Florida District Court of Appeal considered the issue of whether a defendant could introduce evidence that one of the witnesses had previously been a defendant in the case, too. The case arose out of a three-car crash at an intersection.

An injured driver sued the other drivers and the owners of the vehicles they had ben driving. Before trial, the injured plaintiff settled her claim against one driver and the owner of the car he had been driving. She proceeded to trial against the other defendants. The plaintiff filed a motion before trial trying to prevent the introduction of any evidence regarding the dismissed driver’s earlier appearance in the suit and the settlement.


The defendants argued they should be able to show the jury that the dismissed defendant had previously been sued by the plaintiff and had given testimony as a defendant, not a disinterested party. They argued that it went to her credibility. The defendants wanted to argue that the other driver’s negligence caused the accident.

The trial court would not prohibit evidence that the plaintiff had sued the other driver. It agreed that her status as a former defendant was relevant to her credibility. However, the court did prevent the parties from mentioning evidence of the settlement with the former defendant.

At trial, the plaintiff’s attorney claimed that the defendant was wrongly trying to blame the plaintiff and the former defendant for the accident. The defense attorney, during the opening statement, stated that the plaintiff’s own client sued and blamed the other driver. The plaintiff objected and moved for a mistrial. The trial court remembered that she had ruled the former defendant’s involvement in the trial was relevant to the issue of bias and overruled the objection.

The defense attorney went back to discussing how the plaintiff had blamed the former defendant for the accident in discovery responses (which are under oath.) The plaintiff again asked for a mistrial, but this time on the basis of case law.

The plaintiff testified at trial and confirmed the former defendant’s deposition testimony that they had a green arrow when making a left turn. The defense attorney questioned her on her discover responses that claimed the former defendant had been negligent.

The plaintiff claimed during closing arguments that the defendant blamed the other driver, whereas the defense attorney claimed that the plaintiff had sued the other driver for causing the accident. The other driver’s name was also on the verdict form. The jury found in favor of the plaintiff, but decided she was 60% negligent, the defendants were 10% negligent and the other driver was 30% negligent. The defendants only had to pay the plaintiff $67.679.

The plaintiff appealed. She argued that a new trial was appropriate because the trial court had erred in allowing the defendant to bring in evidence that the former defendant had originally been sued. She argued the jury had been led to believe that a settlement had occurred, leading to dismissal of the other driver.

Florida Statutes Section 768.041(3) prohibits the court from letting the jury learn of a release or covenant not to sue a former defendant in a lawsuit. Public policy favors settlement, and therefore, this evidence is not permitted at trial. The appellate court explained that the defendants’ arguments that suggested the other driver was a former defendant who had settled were improper. Accordingly, the case was remanded to the lower court for a new trial.

If you are seriously hurt because of another driver’s negligence or recklessness, contact the knowledgeable Florida automobile accident attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.

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