Trial Tip 87

Roy’s Trial Law “TIPS”——Tip # 87
by Roy D. Wasson
Board Certified in Appellate Practice
Fellow of the Academy of Florida Trial Lawyers

A. Introduction:

Have you ever settled with an initial tortfeasor, such as a negligent driver in a motor vehicle collision case, and then had a different tortfeasor, such as a medical malpractice defendant, raise as a defense the release your client gave to the first tortfeasor? It is a frightening proposition to learn that you may have committed legal malpractice in failing to tailor the release to avoid such a problem, but do not jump out the window when you receive the second defendant’s motion to amend its answer to plead the affirmative defense of release. There is a way out: reformation of the release to reflect the parties’ intent that only the first tortfeasor would be released.

B. Procedure to Reform Releases:

The first thing you need to do when you receive the news that a second tortfeasor is raising the defense of release is call the attorney who defended the settling tortfeasor and offer to take him out to his favorite restaurant for a meal on your tab. At this point in the process, kick yourself in the butt for any rudeness or failure to cooperate that you may have demonstrated to opposing counsel in the prior litigation, and hope that the prospect of a free meal will help him or her forget.

Seriously, the first thing you should do is ask your former opponent to cooperate by agreeing that the release should be reformed to reflect that the parties only intended to release the settling party and any others vicariously liable for that party’s negligence, not an unrelated entity insured by another company. If you can get a new release signed which makes that intent clear, do it immediately, but that is not all you need to do, because that first release is still in existence, and will be offered as a defense by the second defendant.

Reformation is an equitable process that requires court action. Where a release is raised as a defense to a claim, the party opposing the effect of the release may avoid the defense by amending his or her pleadings to seek reformation of that release. See Abernathy v. National Union Fire Ins. Co., 717 So. 2d 196 (Fla. 5th DCA 1998); Saucy v. Casper, 658 So. 2d 1017 (Fla. 4 DCA th 1995). You need a court order declaring the release reformed, and you need it in a case where the second tortfeasor is a party. Therefore, if you are in suit against the second tortfeasor (either in the same case in which you settled with the first defendant or another case), you need to amend the complaint to bring (or bring back) the first defendant into the case on a single count for reformation.

If you are not in suit against the second tortfeasor, you need to file suit and also join the settling party. This may make the first tortfeasor’s attorney nervous, so make sure that your count for reformation says something like “the settling Defendant never did anything wrong and just settled out of the goodness of his hear.” You get the idea. But a court order in a case where both defendants are parties is required, so you can enjoy the res judicata effect of the reformation order on the settlement defense.