Section 32 Setoff for Amounts Paid in Settlement

• Library: Damages 2012

In Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003) (Norman I), the Supreme Court confirmed that the right to setoff for a prior settlement must be pleaded as an affirmative defense. Although the Court agreed that the defendant would have been entitled to a credit for the amount of the settlement, the defendant failed to plead it as an affirmative defense. Id. at 785. The doctor attempted to rely on Julien v. St. Louis University,
10 S.W.3d 150, 152 (Mo. App. E.D. 1999), because Julien held that a reduction for the settlement amount “may be filed, considered and ruled at any time after the entry of judgment.” The Court rejected this argument and held that, to the extent the holding in Julien is inconsistent, it should no longer be followed.

Section 537.060, RSMo 2000, provides that the releasing party’s “claim” is to be reduced by the stipulated amount of the agreement or the amount of consideration paid, whichever is greater. Thus, the amount of any good faith settlement actually paid is deducted from the judgment against nonsettling tortfeasors, and the jury does not apportion fault to the settling parties.

The statute does not specify whether...