settling co-defendant must be liable in tort before set-off allowed for damages against non-settling defendant
How later courts described this case
- settling co-defendant must be liable in tort before set-off allowed for damages against non-settling defendant
- interpreting Ohio’s Contribution Among Tortfeasors Act
- “Defendants settle for many reasons, such as the avoidance of bad publicity and litigation costs, the possibility of an adverse verdict, and the maintenance of favorable commercial relationships.”
- rejecting the majority approach
Written by the judges who cited it.
Later courts went against this
Declined to follow by Smith v. Ruben, Unpublished Decision (8-16-2001) (2001)
Fidelholtz, supra, does not mention anything about third-party beneficiaries, and we decline to adopt plaintiff's suggestion that an agreement between a plaintiff and a settling defendant must appear to have been entered into directly or primarily for the non-settling defendant's benefit in order for the non-settling defendant to enforce language contained therein.
Distinguished
Distinguished by Fultz v. Ring, Unpublished Decision (2-20-2002) (2002)
He similarly contends that Fidelholtz is inapplicable where co-defendants are allied, as the concern that a set-off would "subsidize tortious conduct" is inapplicable.
The opinion
Lundberg Stratton, J.,
dissenting. I join in Justice Cook’s dissent but write separately to voice a stronger concern. A plaintiff, and a lawyer filing on the plaintiffs behalf, should sue only when they have a good faith belief that the defendant is or may be liable for damages incurred. While a defendant may settle for many different reasons other than actual liability, such as litigation costs, public relations control, or missing evidence or witnesses, a plaintiff should *207 settle only if the plaintiff still has a good faith belief that the defendant is liable. It is unethical and immoral for a plaintiff to take money from a defendant who the plaintiff no longer believes is liable. The plaintiff cannot take a defendant’s money to save litigation costs or control bad public relations, or because of missing key evidence or witnesses unless the plaintiff and the plaintiffs attorney also still have a good faith Civ.R. 11 belief that the defendant is still liable. To take money under any other conditions, when the plaintiff and the plaintiffs attorney know or have- uncovered evidence to show that the defendant is no longer liable, is a gross abuse of our justice system.
If the plaintiff settles, the plaintiff is conceding by settlement that the plaintiff still considers the defendant liable. That is all that should be needed to invoke R.C. 2307.32(F). If the plaintiff did not believe that the defendant continued to be liable, the plaintiff should have returned the settling defendant’s money. The plaintiff in this case seeks to have it both ways and obtain a double recovery. R.C. 2307.32(F) was designed to prevent such unjust results. Therefore, I also respectfully dissent.