Compelling Settlement Agreements in Multi-Party Litigation in South Carolina

October 2022 • Source: Laura Paton and Paul Sperry, Copeland, Stair, Valz & Lovell

In South Carolina, most defense counsel in cases with multiple defendants ask for settlement information as a matter of course. The reason? Under the South Carolina Apportionment Statute,^FN1 a defendant found liable is entitled to request a “set-off” of the amount the Plaintiff has already collected from settling defendants prior to trial as long as the Plaintiff is seeking the same damages at trial. This right to a setoff mitigates the fact that settling defendants are excluded from the verdict form. While the non-settling defendants can argue at trial that the settling defendant is the real “bad actor,” the jury may only apportion fault to the Defendants and Plaintiffs on the verdict form and that culpability must equal 100%.   Unfortunately, most Plaintiff’s attorneys object to discovery requesting disclosure of settlement sums.  Typical objections to the discovery of settlement information include: 1) the information isn’t “ripe” until there is an actual verdict; 2) the ADR rules mandate that settlement communications are confidential and protected from disclosure; ^FN2 and 3) production of any settlement agreements marked “confidential” by the parties cannot be produced without violating the agreement.

However, “South Carolina has a long history of maintaining open court proceedings and records . . . .” ^FN3  In order for a settlement to remain confidential or be sealed, the party seeking to enforce the confidentiality provision is required to file a motion to seal that has to address a number of specific factors explaining the need for the settlement to remain private. ^FN4  Prior to ruling on the motion the Judge must consider the following:

1. the public professional significance of the lawsuit;
2. the perceived harm to the parties from disclosure;
3. why alternatives other than sealing the documents are not available to protect legitimate private interests as identified by this Rule; and
4. why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.

^{FN 5}

In addition to the principle that discovery should be broad and rarely limited, Rule 41.1, SCRCP should make it very difficult for settlements to remain confidential in most multi-party lawsuits. Nevertheless, many Plaintiff’s attorneys will essentially ignore Rule 41.1, SCRCP when declaring settlements are confidential. That leads to the burden being place on the non-settling Defendant to file a motion to compel a response to a discovery request for settlement documents. Despite the shifting of the burden on which party should be filing a motion, in order to properly advice both clients and their insurance carriers of verdict exposure, it is important to file a motion to compel any discovery requests related to settlements.

FN1: S.C. Code Ann. § 15-38-15 Liability of defendant responsible for less than fifty per cent of total fault; apportionment of percentages; willful, wanton, or grossly negligent defendant and alcoholic beverage or drug exceptions.

FN2: SC R ADR Rule 8

FN3: Rule 41.1(a), SCRCP

FN4: Rule 41.1(b), SCRCP

FN5: Rule 41.1(c), SCRCP

A Picture is Worth a Thousand Words: Discussion of Strategies to Move for Summary Judgment in a Premises Liability Case in Florida

November 2022 • Source: Frank Canales, Baumann, Gant and Keeley, P.A.

Revised and Edited: Gary Baumann, Brendan Keeley, and Jerry Biondi, Baumann, Gant and Keeley, P.A.

It is never easy to evaluate a case’s exposure where an elderly Plaintiff with prior neck surgeries is re-injured, allegedly as result of my client’s negligence.  The damages and injuries are presumptively in favor of the “eggshell” Plaintiff. Picking up a file with half of the battle lost may be daunting. But, if fault is in your favor, I recommend applying a narrow approach in discovery, writing succinctly, and connecting with the audience to obtain a positive result for your clients. This note will discuss strategies to fight back on the element of fault in a premises liability case.

In Florida, the pure comparative fault standard allows for claims to proceed to trial notwithstanding a plaintiff who is largely at fault. For example, taking a plaintiff as described above, the amount of recovery may be significant even when my defendant client is deemed to be 5% at fault. Thus, prevailing in a summary judgment motion in a premises liability case in Florida is worth analyzing, especially if your motion was only supported by Plaintiff’s own testimony and a picture of the alleged dangerous condition—here, it was a platform built with cinderblocks and wood boards. 

The subject dangerous condition

Narrow Discovery and Succinct Writing Strategy

The facts are simple. Plaintiff went on a boat trip, stepped on the platform built by a tenant at my client’s property, took several steps, and fell to the side. She re-injured her neck. In this eggshell Plaintiff case, I initially sought to obtain records, statements, and depositions of all potential fact witnesses to corroborate the alleged fall. However, after some thought, this strategy would only increase the costs of defense and would be counterproductive for my motion for summary strategy that was early discussed in the case with the adjuster. So, I proceeded to give her the benefit of the doubt that the fall occurred, that my client had knowledge of the dangerous condition, and that it had been in place for many months.

It may be the instinct of many lawyers to bombard a jury with all the favorable evidence. An overkill approach—or gilding the lily--is unwise. The same is true when filing for a motion for summary judgment, surgical precision in the facts is essential. Thus, while a complete and thorough investigation of fault is absolutely necessary to prepare for trial, this strategy only opens up avenues of attack and rebuttal at a motion for summary judgment juncture. Sometimes the best strategy is to use the words of Plaintiff against her.

After completing substantial legal research and receiving several cancellations from the Plaintiff of my client’s deposition and the tenant at my client’s property that built the subject platform, I decided to file for summary judgment with only three pieces of supporting evidence: 1) Plaintiff’s lease agreement with my client, 2) Plaintiff’s deposition, and 3) the picture of the platform. While several witness statements in our favor were obtained, including my client’s words, I deliberately decided to not include them in the motion to foreclose Plaintiff’s opportunity of further rebuttal discovery and to narrow the issues in front of the court to our strongest summary judgment issue. Here, it was Florida’s Open and Obvious Danger Doctrine.

Connecting with Your Audience

While I didn’t emphasize the age of the Plaintiff in my motion, in preparation of the summary judgment hearing, I started to think about railroad cases and attractive nuisance cases as potential arguments against my position. So, at the hearing, I emphasized the age of the Plaintiff and preexisting injuries to show both that the Plaintiff’s age and maturity showed conscious decision making and that she should have taken necessary precautions to avoid getting injured from dangerous activity of stepping and walking on wood boards that were supported by cinderblocks. Of course, the picture of the dangerous condition was compelling, too. The judge agreed at the summary judgment hearing:

“summary judgement has its place. And in this case, this is one of them. There is just no way that any reasonable person -- this -- this thing is so open and obvious that there is no way that any reasonable person would get on there and not wonder if they were in peril…I wasn't sure of the age of [] the plaintiff, but I know at my age, when I look at that thing, I'm thinking there isn't any way I'm going to get on -- step on that thing. Not any way in heck. I will get my shoes muddy before I will walk on that. That's just crazy. That's just crazy. That's silly…

…I mean, to me, what came to mind was, you know, I wonder if this plaintiff would []see a tree fort somewhere 30 feet above the ground and think that was okay too.”

From the bench, the court ruled that Florida’s Open and Obvious Doctrine entitled my client to a full summary judgment in this premises liability case. Obtaining a favorable ruling and saving the client’s thousands of dollars in expert discovery should motivate more defense lawyers to push for early motions for summary judgments and to fight back in cases where the evidence shows that a Plaintiff is significantly at fault—even if the motion is for partial summary judgment.