Lamson, Dugan and Murray, LLP, Attorneys at Law

Economic Damages and Joint and Several Liability, Part II

Posted in In-House Counsel

In Part I of this series, we addressed the general rule for joint and several liability.  This week we will take our first step in addressing joint and several liability when a claimant settles with a person liable or a co-defendant before the matter is submitted to a jury.

Before Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007), practitioners generally believed Neb.Rev.Stat. § 25-21,18.10 continued to control the situation and a jury would apportion liability.  At first blush, this seemed like a reasonable conclusion as § 25-21,185.10 directly addresses apportionment and no other statutory provision explicitly alters the application of 25-21,185.10 when a person liable (co-defendant) settles with a claimant.  This general belief, however, overlooked Neb.Rev.Stat. § 25-21,185.11, which provides:

(1) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable shall discharge that person from all liability to the claimant but shall not discharge any other persons liable upon the same claim unless it so provides. The claim of the claimant against other persons shall be reduced by the amount of the released person’s share of the obligation as determined by the trier of fact.

(2) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable shall preclude that person from being made a party or, if an action is pending, shall be a basis for that person’s dismissal, but the person’s negligence, if any, shall be considered in accordance with section 25-21,185.09.

As noted, the Nebraska Supreme Court issued its first and only decision on the application of Nebraska’s Comparative Fault Act and the treatment of a settling co-defendant, Tadros v. City of Omaha.  Next week we will examine how the Nebraska Supreme Court interpreted the interplay between the above sections and the effect a settlement has on the joint and several liability of the remaining liable parties.

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