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					ABEL LAW FIRM
900 N.E. 63 r d Street
Oklahoma City OK 73105
405-239-7046
800-739-ABEL (in OK)
OKLAHOMA BAR ASSOCIATION
November 2007



 THE GRAND FINALE: HOW TO NEGOTIATE AND
              SETTLE A CASE
                                by Ed Abel

      All cases get settled – either voluntarily outside the courtroom

or in the courtroom by a judge or jury. A question to ask a client is:

Who do you want to settle your case?                  An out-of-court settlement

puts the matter in the clients’ own hands.

      All cases are evaluated by what the judge or jury might do if

the case has to be tried. Based on attorneys’ collective experience,

we can determine at least the possibilities for success at trial.

Thorough preparation is the way to convince your opponents they

should settle. In addition, it is important to develop a reputation for

being willing to try cases and win them and a reputation for being

reasonable at the negotiating table.

      Although lawyers and clients have traditionally negotiated

directly   with   adversaries   to       settle   a   lawsuit,   it   is   becoming

increasingly common to mediate disputes.                   The same principles

involved in conventional negotiation are applied in a mediation, but

                                     1
the interaction is not one-on-one, but through an intermediary.

Since the techniques are similar,                the thrust of these written

materials is on how to successfully mediate a case.                Substantially

the same procedure can be used to negotiate one-on-one.                      My

practice is personal injury and insurance, so my comments will

focus on those types of cases, but, again, the underlying principles

of successful negotiations are the same in all kinds of cases.

G E N E R A L C O N S I D E R AT I O N S
         Mediation is becoming a widely used technique to facilitate

settlement of cases and appears to be advantageous for all parties

concerned.           It is particularly helpful in cases involving multiple

plaintiffs or multiple defendants when the traditional negotiating

techniques have not been fruitful.             Mediation, first and foremost, is

usually voluntary.               By agreeing to mediation, the parties have

already made a giant step toward settlement.                It can be effective

very early in a case, especially when liability or damages are clear.

 It might help cut through the remaining disputed issues without the
necessity of prolonged and expensive discovery. It is also effective

after discovery with one of the goals being to save all parties the

unnecessary cost of trial.

         Preparing for mediation is basically preparing a case for trial.

All parties at least have to have a thorough investigation of their

claims or defenses in order to present the case for evaluation.

Mediation forces counsel to concentrate on the important strengths

and weaknesses in their positions.                It is also instructive for the
                                           2
parties or the insurance representatives to hear the issues from all

sides rather than just hear their own attorney's interpretation of

other parties' positions.

        For a very modest fee paid to a mediator, the parties can

make a business decision about the value of a case and avoid the

risk they would be exposed to at trial.                   As with any compromise

settlement, a mediation will likely result in every party's being

relatively unhappy with the result. In a good compromise, a plaintiff

will accept less than he or she wanted to accept and a defendant

will pay more than he ever dreamed of paying.
        Mediation has the advantage of letting the parties maintain

control of their case; they do not surrender their will to that of a

judge, jury, or arbitrator. It is probably because of this real sense of

control     and      the        voluntary   nature   of   mediation   that   it   is   so

successful.        A good mediator does not directly convey his or her

opinion of the value of the case, but forces the parties to come to a

realistic evaluation of their own. However, a good mediator also

pushes parties to a certain extent when he or she detects a sincere
desire to get the case settled.

W H E N M E D I AT I O N   IS   ADVISABLE
        Mediation is advisable when, for whatever reason, settlement

negotiations are not progressing adequately.                  It may be a situation

of a conflict of personalities between counsel.                       It may involve

unreasonable expectations of one or more of the parties.                          It may

involve multiple parties with conflicting interests and expectations.


                                            3
It may be because one or more parties are ill-prepared to know the

essential elements of the case necessary for settlement.

     When liability is clear, a very early mediation might be

possible.   It is essential, however, that the extent of damages be

appreciated at an early date.       If it is still undetermined whether a

person has suffered a permanent injury or will need future surgery

or care, for example, an early mediation may not be possible. Early

mediation forces everyone to do an early investigation and gather

necessary evidence.     Even an unsuccessful early mediation might

be advantageous in spurring a thorough investigation or in outlining

what will be necessary for effective discovery.
     Obviously, early mediation can save unnecessary litigation

expenses for all concerned.          Insurance companies particularly

benefit from early mediation since they will also save attorney's

fees. For that reason, defense attorneys might tend to be less likely

to encourage early mediation, but insurance companies appear to

be increasingly interested in early mediation if attorney fees have

proved to be a major expense to them.
     We have been involved in cases where mediation took place

after a certain amount of discovery, but before the more-expensive

discovery was scheduled. For example, if discovery has proceeded

with depositions of fact witnesses, the parties will have a pretty

good idea of how a case will play to a jury. Mediation at that point

might save the parties the expense of further expert investigation

and expert testimony.


                                4
        Mediation late in a case will not save the expense of

discovery, but all the cards will be laid out on the table -- including

the testimony of expert witnesses -- and the prime consideration for

settlement at that point will be saving the expense of trial and

reaching a certain compromise rather than taking the risk at trial.

S U G G E S T I N G M E D I AT I O N T O T H E O P P O S I N G PA R T Y
        If an attorney has tried to engage in settlement negotiations in

a case and sees any glimmer of hope, it is probably a good time to

suggest mediation to the opposing parties. This is especially true if

the attorneys have a general consensus regarding the value of the

case, but had been unable to convince their clients.
        Plaintiffs, of course, almost always have a very personal stake

in the outcome of their lawsuit.                     They have been hurt physically,

emotionally, or financially and understandably have a difficult time

looking at "compensation" dispassionately.                           Usually, no amount of

money would be adequate for what they have suffered. A plaintiff's

attorney might talk until he is blue in the face about the realities of

a civil lawsuit and not be able to guide the client into making a
business decision about the outcome.                          Defendants, too, might be

very personally involved, hurt, insulted, indignant, and otherwise

have      personal        feelings        as    strong       as     plaintiffs.   Insurance

companies, on the other hand, do not have the personal involvement

but may almost go to the opposite extreme in considering the purely

economic aspect of the lawsuit.                     In talking to their own attorneys,

they do not have the benefit of actually seeing the plaintiffs and

hearing the personal/emotional part of the case.
                              5
        Therefore,   in   any     situation    where    a   party       is   either   too

personally involved or too detached from the human aspects, a

suggestion for mediation might yield a positive response.

        Prior to the mediation, you should narrow the scope of the

authority that will be required.            The insurance carrier should know

the range of settlement you are demanding.                   It is essential to a

successful mediation to have people in attendance with sufficient

settlement authority.        A good mediator may require a party to

contact someone with more authority if the person present has

limited authority.        Someone participating by phone will not be

concentrating on the mediation, but will undoubtedly be doing other

things.    It is very important to have everyone present to focus on

the case.
        If you are involved in a case where the defendant has an

excess liability carrier, send a demand letter to the primary carrier

and request that they forward the settlement demand letter and

brochure to the excess carrier and to their insured.                     The demand

letter should contain a statement that you will proceed to collect any
excess      judgment      from    any       assets   that   are        available.      A

representative of an excess carrier should also be present at

mediation.

        It is extremely helpful to have any persons with subrogation

interests, such as workers’ compensation carriers, Medicaid, or

State     Employees       Group     Insurance,       present      or     available     to

compromise if necessary.


                                        6
A S K I N G T H E C O U R T T O O R D E R M E D I AT I O N
        Judges are becoming more demanding these days when they

see a case that ought to be settled cropping up on their trial docket.

A judge who is familiar with the claims and defenses in the case,

knows that parties need a shove to get meaningful negotiations

started, and realizes that the case is one which can be settled, may

sua sponte order the case to mediation.                        See,e.g., 85 O.S.§3.10

(workers’ compensation cases); Seventh Judicial District Court Rule

51 (Oklahoma County); Twenty-Fifth Judicial District Court Rule 13

(family disputes). A judge can be very persuasive in this regard and

convey the unmistakable feeling that he or she will be very unhappy

if the court's time is wasted on trying the lawsuit.                    Of course, all

parties know they have a right to a trial, but it is simply the reality of

life that a judge who does not want to try a case can make it very

difficult on anyone involved.                The judge's attitude can be a strong

selling point in convincing a client that a case needs to be settled.

First the judge and then the mediator will convey the idea that the

case is one which can be settled and that someone must have

unreasonable expectations if they can't settle it. The judge and the

mediator and all the attorneys can be wrong, of course, but any

settlement is based on the collective knowledge and experience of

the attorneys and parties involved.                          No judge or mediator or

attorney can predict exactly what a jury will do, but depending on

their experience, judges, mediators, and attorneys can make a

pretty good guess as to what will happen.
                              7
        Sometimes attorneys for the parties reach a consensus on

what ought to be recommended to their respective clients in regard

to settlement.         However, for whatever reason, they are unable to

convince the clients that they are making a sound recommendation.

Attorneys can formally or informally ask the court to order them to

mediation in such a situation.          This takes away the wonderful

advantage of having a voluntary mediation, but puts extra pressure

on the parties to be reasonable in light of the judge's order.

C H O O S I N G A M E D I ATO R
        As stated in the Preamble to the Code of Professional Conduct

for Mediators,

        1. A mediator is an impartial third party certified
        according to the provisions of the Act who enters a
        dispute with the consent of the parties, to aid and assist
        them in reaching a mutually satisfactory settlement to
        the issues in dispute.
        2. Mediation is an informal process of resolving a
        dispute with the assistance of a mediator. Mediation
        carries ethical responsibilities and duties. Those who act
        as mediators must be dedicated to the principle that all
        disputants have a right to negotiate and attempt to
        determine the outcomes of their own conflicts. In
        addition, mediators are bound by the ethical guidelines
        of this code, which specify their duties and obligations to
        parties who engage their services, to the mediation
        process, to other mediators, to the agencies which
        administer programs of mediation, and to the general
        public.
        3. This is a personal code for the conduct of the
        individual mediator and is intended to establish minimum
        principles applicable to all mediators.

Dispute Resolution App. A, 12 O. S. A. Ch. 37.



                                    8
     Increasing numbers of mediators are entering the field, each

with different personalities and different levels of experience.    We

have had excellent experiences with various mediators and will

suggest those names to defendants in our cases. Many times

defendants suggest the same group of names. Then it is a matter of

finding an acceptable day and time.

     If opposing counsel are not familiar with the mediators we

have used in the past, we suggest they contact other defense

counsel who have participated in the mediations or have even

suggested the names of those mediators to us in the past. Defense

counsel will feel more comfortable if they know other defense

attorneys have used and liked a particular mediator.
     Most mediators are excellent at remaining neutral.       Rather

than give their personal opinion, they are able to point out

weaknesses in a position by asking very pointed questions.         They

can also convey the opinions of opposing parties and get someone

to realize how those opinions might sell to a jury.

     All mediators we have encountered are very careful to keep
matters confidential, unless a party requests something be revealed.

It seems to be an essential element to a good mediation that a

party can be relatively open to the mediator and acknowledge some

of his weaknesses without fear that the mediator will convey that to

the other side.   Sometimes a matter will start out being strictly

confidential and, in the course of the mediation, will become

something that a party wants to have revealed to the other side.

Mediators we know have always been very careful in that regard.
                            9
         Personality will undoubtedly be a factor affecting everyone's

evaluation of the effectiveness of a mediator. Interestingly, we have

felt that a mediator was being harsh or "pushy" with our client only

to find out later the other parties had exactly the same impression.

Such mediators appear to be very even-handed in their treatment of

the parties.

         Some mediators are more aggressive than others.               Some

make it clear that a mediation should take only a certain amount of

time and are very efficient at moving it along.             Others are more

willing to spend whatever time it takes.                (We have purposely

scheduled mediations for the afternoon with the hope that if a

settlement can be reached, it can be reached in the hours between

1:00 p.m. and 5:00 p.m. just as effectively as if it were scheduled

for 8:00 in the morning and lasted until 5:00 in the afternoon.)
         Personalities are probably the major reasons attorneys like or

dislike a particular mediator.           It is probably best, however, not to

over-use a particular mediator and risk giving the impression that he

or she is not really neutral but has become your ally. You should be
open to suggestions about other mediators, always keeping in mind

that in a voluntary mediation you have nothing but an afternoon or a

few hours to lose. If the mediator is ineffective or you don't like him

or her, you will probably not be any worse off in regard to the

settlement negotiations than you were before the mediation.

M E D I AT I O N S U M M A R I E S
         Mediators will usually give you an idea of what kinds of

summaries they require.              In a case mediated by our firm, the case
                                         10
was already set for arbitration, so the parties merely sent copies of

their arbitration statements to the mediator.                 A general description

such as would be included in an arbitration statement for federal

court      is    probably         sufficient   for   mediation.      Plaintiffs   should

humanize the facts but include information giving a business basis

for determining damages in the case.                     Defendants should outline

their major defenses on liability and damages to show that what

plaintiffs think is a wonderful case is de-valued because of certain

factors.

E X H I B I T S F O R M E D I AT I O N
         The mediator needs to get a thorough idea of the issues in the

case, both factual and legal.                    He or she should therefore be

exposed to key exhibits to be used at trial.                      These might include

accident reports, photographs, diagrams, the machine or defective

part in a products liability case, summaries of economic loss, or

whatever else might help the mediator get a good understanding of

what happened, how plaintiff was damaged, and why the defendants

feel they are not liable, only partially liable, or should pay only a
limited amount.

         Exhibits, like the demonstrative evidence at trial, are often

more memorable than long speeches.                      They are meant not only to

impress the mediator, but to show the parties with the ultimate

settlement authority what will be shown to the jury. If a photograph

affects an insurance adjustor, it will certainly affect a juror.                      If

defense evidence makes a plaintiff realize his or her claim is shaky,

that defense evidence will certainly have that affect on a juror.
                            11
Exhibits help concretize the case in a way that letters, memos, and

speeches cannot do.

      We prepare each case as if it were going to trial. That means

being ready to prove all the elements of liability and damages.       In

so doing, we are also better preparing the case for settlement. We

provide the defense attorney and/or the insurance adjustor with all

the information they need to evaluate the case. If it hasn't been

done before mediation, it should certainly be done at mediation.
      You should know what an adjustor needs to settle a case and

what things are important to him or her.       Whether you are dealing

with a liability insurance claim or an uninsured-motorist (UM) claim,

much of the information necessary to settle the claim is the same.

However, the way the company treats the party should be different

when there is a UM claim.       Insurance companies should be well

aware of the duty to treat their insured in good faith.

      You   need    to   make    sure   that    you've    given   proper

documentation to the defense attorney/insurance adjustor to justify

any settlement that he may recommend or pay.          The adjustor will
probably already have the accident report, but it doesn't hurt to

send it to them as soon as you obtain it.           Medical bills and

records, including prescription receipts, should be accumulated

and sent after initial treatment is completed and then updated as

treatment continues.     We put a cover sheet on the medical bills

entitled "Summary of Specials" which lists and totals the medical

bills. We check the bills carefully to be sure they are for treatment

related to the injuries suffered in the collision or other incident.
                              12
Often, clients have other procedures performed which have nothing

to do with their claim and which must be eliminated from the list.

Likewise, they often are taking prescription medicine which is

unrelated to their injuries and which must be deleted from the

prescription list. Our office writes to doctors and other medical care

providers for the medical bills and records, but the client usually

has to provide the prescription receipts or computer printout from

their pharmacy.
     Some proof of lost wages or lost time at work will be

needed.      The easiest thing is to obtain a statement from an

employer that the plaintiff missed so many days of work at a certain

pay scale.    It becomes more difficult if the plaintiff works on a

commission or bonus basis, and certainly more difficult if the

plaintiff is self-employed.   For example, what is good business

practice to take legitimate business deductions in order to show a

small business profit or even a loss on the tax returns will not be to

the plaintiff's advantage in trying to show how his or her injury

affected earnings.
     An incentive for adjustors to settle is a closed claim review,

where closed files are pulled at random and reviewed.      This is an

internal review done by the insurance board where reserves are

compared with the amount of payment.      If there is an overpayment

in an under-reserved file, the insurance commissioner may require

the reserves of an insurance company to be increased. A three

percent increase for a major insurance company could cost the

insurance company millions of dollars.       Therefore, the adjustor
                           13
handling the file wants to make sure at the file is documented and

the amount of the settlement is justified. Insurance companies do

not want to be under-reserved.

        If the case is not properly documented and the plaintiff obtains

a large verdict, the insurance company, when reviewing the file may

write the verdict off as a "runaway jury." A runaway verdict is not as

bad as a voluntary excessive payment when the file is being

reviewed by the insurance reserve setting board.
        A settlement brochure demonstrates your trial preparation

and lets the opposing party know that you are prepared to go to

trial. It also helps you to become prepared for trial. Things that you

may      want      to    include       in    the     settlement   packet   are   medical

illustrations and selected parts of depositions, including those of

medical doctors.              If your settlement brochure includes a video

settlement portion it should be no more than 25-30 minutes long

since people are used to watching television in 30-minute segments.

P R E PA R I N G T H E C L I E N T F O R M E D I AT I O N
        Preparing the client for mediation is essentially identical to
talking to a client about the realities of the case and why it should

be settled. The client always has the choice of going to trial. The

client is always in control of the settlement. It is very important for

the client's ego -- if nothing else -- to stress that the client is in

control.      Telling some clients that they are in charge and that you

will do what they tell you to do is sometimes the most difficult thing

an attorney has to say. There are times when any of us have clients

who want to run the show, tell us what to do, and/or are completely
                              14
irrational about their case.    I have found, however, that even in

those situations, if the client understands that I am ready to go to

trial and not afraid to go to trial, it will give them more confidence in

me and will make them more likely to listen to my recommendations.

        Insurance companies are well aware that they are the ones

with the ultimate power in the case.           The question probably

becomes whether the insurance company has sufficient confidence

in their attorney -- usually based on past experience -- to take the

attorney's recommendations. Insurance companies should be aware

of the attorney's unique perspective in knowing the judge, knowing

the types of people on the prospective jury, knowing the other

attorneys' trial skills and other factors which would make identical

cases result in different outcomes in Oklahoma as opposed to

Chicago.
        As noted earlier, settlements are based upon the collective

experience of the attorneys and the parties in regard to similar

cases which have either been settled or determined by juries in the

past.      A settlement is a business decision.     The bottom line in
making the decision is deciding what a jury might do.

        In order to prepare your client for mediation, you should talk

about the probable range of jury verdicts that might be expected in

the case.     From the plaintiff's perspective, for example, the client

might draw an unsympathetic jury which would pay medical bills and

nothing more, or, if all went well, the jury could award a million

dollars.     The client should have a realistic approximation of how

many times the medical-bill jury might appear and a realistic
                           15
evaluation of how many times the million-dollar jury might appear.

If the case could be lost in front of a jury (and what case couldn't be

lost?), the client needs your best evaluation of how many times that

might occur in a given number of trials.

      Based on the possible verdict ranges, you should make it clear

to your client what you would recommend.        It is probably best to

give them a range of figures you would recommend from a

not-so-perfect to a more-perfect situation. You and your client may

both learn something new at the mediation which would influence

your recommendation.       Therefore, recommendations you make

before mediation are always subject to revision as the mediation

progresses -- just as they are subject to modification as settlement

negotiations normally progress.
      Some mediators ask direct questions of the clients in both the

group meeting of all parties and in the individual meetings with each

party. You should anticipate what the mediator might ask the client

directly and should probably agree with the client that if there is a

doubt about how they should respond, they should ask to speak to
you confidentially. They should never feel that they have been put

on the spot and have to answer a question they don't want to

answer.   They should always have the opportunity to confer with

their attorney before committing themselves to anything.

      General preparation of a client for mediation is much like

preparing a client for a deposition or for trial. The client should tell

the truth but should not necessarily volunteer any information. The

client should convey the same type of image he or she would want
                             16
to convey to a jury, which includes the restraint he or she would

exercise in a court room in not getting visibly angry or upset with

what other parties might say.

         Many mediators remind parties they may not like to hear what

they are going to hear. If nothing else, a mediation helps prepare a

client to hear the things he will later hear at trial.

S T R AT E G Y AT T H E M E D I AT I O N
         Your basic negotiation techniques will come into play at a

mediation, with the added advantage that you are conveying your

demands or offers through a neutral mediator.              Mediators often

reveal their feelings for whether or not a party is willing to move up

or down on the demand or offer.            They will inevitably come to the

point at which they are sure the defendant will pay no more or the

plaintiff will take no less and will see if they can sell that demand or

offer.
         Very rarely do negotiators reveal their final position right

away.     There is a basic feeling among negotiators that if your first

offer is accepted, then you probably paid too much; conversely, if
your first demand is accepted, you probably asked too little. No one

likes to get a positive response to their first suggestion.

         In cases involving multiple defendants, mediators often meet

with the defendants as a group and then separate them for more

effective negotiations. Separating the defendants makes them look

at their own exposure without the support of the group. Sometimes

in joint-tortfeasor situations, one defendant might be happy to make

an offer to get out of the case but is unwilling to make the kind of
                              17
joint offer with his or her co-defendants that would settle the case.

If the plaintiff is willing to settle with one defendant, either because

it's a decent offer, or it would eliminate double or triple attacks on

the plaintiff's case, separating the defendants can go a long way

toward getting the whole case settled.      A defendant who knows it

might be left alone to defend a case might find added incentive for

settling.

        Sometimes it is effective to have the attorneys meet directly to

discuss sticking points in the negotiations.      Based on their prior

relationship and ability to work together, they may be able to solve

difficult problems and, as long as they have influence with their

clients, may be able to accomplish something a mediator could not.
        All parties have the option of letting the mediator know in

confidence what their bottom line is.       Even though the mediator

does not communicate that figure to other parties, it can help him or

her in knowing whether that goal can be achieved.         The mediator

can officially convey a high demand but work the defendant up to

the point of making an offer he knows the plaintiff will accept.

SETTLING WITH ONE OR MORE DEFENDANTS
        Early settlement of cases is encouraged both by Oklahoma

caselaw and procedure in the court system.         Settlement with one

joint tortfeasor is allowed according to the provisions of 12 O.S.

§832.       It will merely operate as a set-off against a judgment

obtained against the other tortfeasors.     There may be situations in

which you can settle with and release the tortfeasor ’s insurance

carrier, but preserve your claim against the tortfeasor individually.
                               18
     However, there are some pitfalls to be aware of.        Settlement

with a joint tortfeasor gives the other defendants the opportunity to

point to an empty chair during trial – which may not be good from a

tactical standpoint. Release of, or a covenant not to sue, an

employee acting within the scope of his/her employment will release

the employer from liability under respondeat superior. See, Land v.

United States, 342 F.2d 785 (10 t h Cir. 1965); Scoggin v. United

States, 444 F.2d 74 (10 t h Cir. 1971).        Not suing the individual

employee or dismissal without prejudice of the employee are ways

to focus on the employer without destroying your case. However, if

you take the affirmative action of suing the employee and then let

him out of the case without the option of bringing him back in, you

will release the employer.   See, Sisk v. J.B. Hunt Transport, Inc.,
2003 OK 69, 81 P.3d 55, 59.           Release of a conspirator who is

primarily negligent releases the other conspirators.          Taylor v.

Gilmartin, 686 F.2d 1346 (10 t h Cir. 1982).    Release of an employer

does not release the employee for his own negligence.             See,

Hatcher v. Traczyk, 2004 OK CIV APP 77, 99 P.3d 707.
     It is worthwhile to analyze Kirkpatrick v. Chrysler Corp.,1996
OK 136, 920 P.2d 122, which changed the law in regard to the effect

of satisfaction of a judgment:

     Our law as to the effect of a satisfaction of a judgment
     has been as follows: “[w]here liability is joint and
     several, the injured party may institute several suits
     against multiple tortfeasors, but satisfaction of a
     judgment against one of the tortfeasors bars a judgment
     against the other tortfeasors.” … A long line of cases
     have applied the rule. …
                                 19
…[O]ur cases have applied the one satisfaction rule
quite mechanically in all those situations where
judgment was actually entered against one party and in
favor of another, ignoring the fact, or evidence that
would lead one to conclude, the judgment was in reality
merely meant to memorialize or be a part of a
compromise and settlement-as long as judgment was
entered the rule applied. …
In our view, assuming this rationale at one time had
some validity, we believe it no longer does and we reject
what we believe was an unnecessary mechanistic
application of the one satisfaction rule …
Thus, our cases have long held a plaintiff can settle with
one of two or more joint or concurrent tortfeasors for a
specified amount of money without releasing or
discharging others, as long as a judgment followed by a
satisfaction of that judgment is not filed of record in the
case. …
When the issue of the amount of damages has been the
subject of actual adjudication on the merits by either
judge or jury, or the parties actually agree via a consent
or agreed judgment that the amount settled for should
actually represent full compensation for a plaintiff ’s
injuries, and the plaintiff is paid such amount, it makes
perfect sense and comports with simple justice to
preclude a plaintiff from proceeding against other
tortfeasors. In the former situation, the issue of the
amount of damages has actually been determined on the
merits through the judicial process and, in the latter it
can be conclusively presumed full compensation is
reflected by the agreed settlement amount. In such
cases, a plaintiff should not be allowed to proceed
against others because it can be confidently said that
full compensation has already once been recovered for
injuries suffered. Allowing additional opportunities to
recover from other potential tortfeasors after a plaintiff
has already had one full opportunity to prove the full
amount of his damages, an amount which has then been
paid, or where the plaintiff has agreed he has been paid
full compensation, would also breed inefficiency and
thwart the beneficial goal of bringing finality to litigation.
However, when the agreed or consent judgment is
merely part of a settlement of the case never intended to
discharge absent tortfeasors and never intended to
                          20
represent full compensation we believe a different result
should obtain. …
                            ***
…We, thus, conclude, that in the absence of actual
adjudication on the merits of the issue of the amount of
damages, satisfaction of an agreed or consent judgment
will generally be treated like a release, covenant not to
sue or similar agreement.

Recently, we interpreted 12 O.S.1991, § 832(H)(1), a
part of the Uniform Contribution Among Tortfeasors Act
(UCATA), in regard to when a release given to one
tortfeasor will be considered to act as a discharge of
other potential tortfeasors liable to an injured party for
the same injury or wrongful death. We held in Moss v.
City of Oklahoma City, 897 P.2d 280 (Okla.1995), that
such a release will discharge other potential tortfeasors
only if they are named or otherwise specifically identified
in the release as persons to be discharged. We believe
the same general rule should be applied where
satisfaction of an agreed or consent judgment is
involved, i.e where there is no actual adjudication on the
merits of the issue of the amount of damages.FN8 …
[W]e realize the parties to the settlement may intend that
the amount of the settlement embodied in a consent or
agreed judgment is to represent full compensation for a
plaintiff ’s injuries. In such a situation, we see no reason
why a plaintiff should not be precluded from further
litigation against other potential tortfeasors.

      FN8. Our ruling in this case will not disturb
      cases such as Brigance v. Velvet Dove
      Restaurant, 756 P.2d 1232 (Okla.1988),
      where we precluded suit against concurrent
      tortfeasors-servers of alcohol to driver
      involved in auto accident-when the plaintiff
      had actually litigated his damages in a
      federal court case against the driver and won
      a jury verdict, and appeared to be free of
      negligence, upon which judgment was
      entered and paid. 756 P.2d at 1233.

The bottom line here is that when it is clear a judgment
has been entered merely as a reflection of a compromise
                        21
     settlement between a victim and one tortfeasor, never
     intended to act as a discharge of other potentially liable
     tortfeasors, or to reflect full compensation for injuries
     suffered, there is no good reason to apply a rigid or
     strict rule of law that other tortfeasors are discharged or
     that the cause of action has been extinguished. …
                                     ***
     Therefore, we hold that where an agreed or consent
     judgment is entered against a tortfeasor based on a
     compromise and settlement, i.e. a judgment entered
     without actual adjudication on the merits of the issue of
     the amount of damages, a satisfaction of that judgment
     will not discharge, or bar a subsequent suit against,
     other potential tortfeasors who might be liable for the
     same harm, unless the other potential tortfeasors are
     named or otherwise specifically identified in the
     satisfaction of judgment (or some other pertinent
     document) as persons to be discharged, or unless it is
     somehow otherwise shown the parties to the compromise
     and settlement intended the amount settled for to
     represent full compensation for all injuries. …

           FN9. We finally note that compensation
           received as a result of the settlement must,
           of course, be deducted from any judgment
           that might eventually be entered against
           Chrysler. To rule otherwise would sanction
           the potentiality for double recovery.

     UM coverage:     Settlement with a tortfeasor without obtaining

waiver of subrogation rights from your UM carrier will destroy your
case against the UM carrier.        36 O.S. §3636; Porter v. MFA
Insurance Company, 643 P.2d 302 (Okla. 1982). A "Porter release"

specifically preserving the UM carrier's subrogation rights would be

acceptable--if a liability carrier is willing to do it.   Executing a

covenant not to sue a tortfeasor likewise destroys the UM carrier's

subrogation rights and your UM claim. Frey v. Independence Fire &

Casualty Insurance Company, 1985 ok 25, 698 P.2d 17.

                               22
     The uninsured-motorist statute, 36 O.S. §3636, has provided a

means to settle for the amount of the tortfeasor's policy limits

without destroying subrogation rights:

     F. In the event of payment to any person under the
     coverage required by this section and subject to the
     terms and conditions of such coverage, the insurer
     making such payment shall, to the extent thereof, be
     entitled to the proceeds of any settlement or judgment
     resulting from the exercise of any rights of recovery of
     such person against any person or organization legally
     responsible for the bodily injury for which such payment
     is made, including the proceeds recoverable from the
     assets of the insolvent insurer. Provided, however, with
     respect to payments made by reason of the coverage
     described in subsection C of this section, the insurer
     making such payment shall not be entitled to any right of
     recovery against such tort-feasor in excess of the
     proceeds recovered from the assets of the insolvent
     insurer of said tort-feasor. Provided further, that any
     payment made by the insured tort-feasor shall not
     reduce or be a credit against the total liability limits as
     provided in the insured's own uninsured motorist
     coverage. Provided further, that if a tentative agreement
     to settle for liability limits has been reached with an
     insured tort-feasor, written notice shall be given by
     certified mail to the uninsured motorist coverage insurer
     by its insured. Such written notice shall include:

     1. Written documentation of pecuniary losses incurred,
     including copies of all medical bills; and

     2. Written authorization or a court order to obtain reports
     from all employers and medical providers. Within sixty
     (60) days of receipt of this written notice, the uninsured
     motorist coverage insurer may substitute its payment to
     the insured for the tentative settlement amount. The
     uninsured motorist coverage insurer shall then be
     entitled to the insured's right of recovery to the extent of
     such payment and any settlement under the uninsured
     motorist coverage. If the uninsured motorist coverage
     insurer fails to pay the insured the amount of the
                              23
     tentative tort settlement within sixty (60) days, the
     uninsured motorist coverage insurer has no right to the
     proceeds of any settlement or judgment, as provided
     herein, for any amount paid under the uninsured motorist
     coverage.

36 O.S. §3636(F).

CONCLUSION
     The mediator is often the first one to know when to quit.

However, any party has the option of halting the proceedings by

refusing to negotiate further.       In cases with multiple parties, the

refusal of one party to negotiate further does not necessarily abort

the mediation for the others.        Interestingly, in a recent mediation

involving our firm, one of three defendants agreed to the mediation

but indicated up front that he had no authority from the client and

little hope of convincing the client to pay anything.         Although that

position   angered   the    other    defendants   when   it   persisted   at

mediation, the stubborn defendant ultimately had a part in getting

the case settled.    The defendant had facilitated the meeting of the

other parties who were willing to negotiate and who succeeded in

settling the case.    The non-paying party was also kind enough to

pay the mediator's fee.

     Statements      or    conduct    during   settlement     negotiations,

including mediations, are not admissible in evidence.              12 O.S.

§2408.     Therefore, it is an opportunity to make concessions, if

necessary, to get the case settled.        The concessions should not

come back to haunt you.

     Mediations aren't always successful, but if parties are willing

to try it, they have already made a commitment which puts them that
                               24
much further ahead.        Unless someone has revealed a secret

strategy to the other parties at mediation, even an unsuccessful

mediation should be advantageous to all concerned. It may lay the

groundwork for further negotiation or at least educate the parties

about what they will face at trial.

                                  ###




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