A Capehart Scatchard Blog

Court Rules that Settling Co-Defendant Charge Not Appropriate When Defendant Settles Before Trial

By on October 28, 2016 in Settlements with 0 Comments

In the recent published Law Division decision, Hernandez v. Chekenian, 2016 N.J. Super. LEXIS 133 (Law Div. July 15, 2016), the trial court ruled that when a defendant settles with the plaintiff before the commencement of trial, the remaining defendants are not entitled to the “Settling Defendant charge.” In Hernandez, the judge considered whether it was appropriate to tell the jury that a defendant settled, when the jury has never seen the party.

The Hernandez case involved a three car accident in which the plaintiff Luiz Hernandez was injured. Plaintiff was a passenger in the middle car driven by Oswaldo Flores-Escobar. Plaintiff sued the owner and driver of the first car, Amy and Bruce Oliver, Oswaldo Flores-Escobar and Rosa Quijano (owner of the middle car), and Dennis Chekenian, the driver of the third car. Before trial, Quijano and the Olivers were dismissed.

Prior to the trial, Flores-Escobar settled for his policy limits of $15,000. That settlement and the prior dismissals left Chekenian as the only defendant at the trial. The defendant Chekenian asked the court to give the jury the settling co-defendant charge, which request was opposed by the plaintiff. The court denied the defendant’s request.

Ultimately, the case settled after opening statements and the plaintiff’s testimony. However, the court thereafter formalized its oral decision through this written opinion.

The remaining defendant had requested the “Settling Defendants” charge, Model Jury Charge 1.11G, which the judge would give at the beginning of the case to alert the jury that the plaintiff had claimed that a defendant was a cause of the accident. The charge advises the jury that the plaintiff had settled with that defendant and, for that reason, that defendant would not be involved in the trial. The charge states that the jury was not to speculate about it. They would be given more instruction at the end of the trial.

The second charge that the defendant requested was “Instructions to Jury in Cases in Which One or More Defendants Have Settled with the Plaintiff,” Model Jury Charge 1.17, which is given at the end of the case. In that charge, the judge would explain to the jury that, if the jury finds the remaining defendant negligent and that negligence was the proximate cause of the accident, the jury would next need to consider the conduct of the settling defendant and whether the settling defendant was negligent.

Defendants at trial would welcome the settling defendant charge at the beginning of the case because it conveys to the jury that someone else was at least partially responsible for the accident. The plaintiff, however, would consider the charge prejudicial for that same reason.

As the judge in Hernandez explained, even if a defendant settles before trial, if the remaining defendants establish a prima facie case against that defendant, the settling party will appear on the verdict sheet for the jury’s consideration of their negligence. However, the judge in Hernandez found that this analysis did not require the jury to be told that the settling party paid money to the plaintiff.

Hence, the trial judge found that, if the defendant settles during trial, it makes sense that the jury should be told something about why that party is no longer participating in the case. Otherwise, it makes no sense for the jury to be told that other defendants were in the case but they settled before the trial started. This information would not be relevant and would be highly prejudicial to the plaintiff. It was for these reasons that the judge denied the defendant’s request to give the Settling Defendant charge to the jury before the commencement of the case.

The judge also critiqued the language of the second charge, given at the end of the case. However, because the case settled after the plaintiff’s testimony, the court did not have to determine how, if at all, the language in that charge should modified.


About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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