Section 5.12 Effect of § 537.060, RSMo

• Library: Civil Trial Practice 2015 Supp

3. (§5.12) Effect of § 537.060, RSMo

In considering the forum and method of settlement, counsel must be familiar with § 537.060, RSMo 2000. Section 537.060 provides that, when one of two or more persons liable for the same injury or wrongful death settle with the claimant and take a release or covenant not to sue in good faith, not only is the claimant barred from any further or additional action against that person, but that person is also protected from any claims for indemnification or noncontractual indemnity. Ellis v. Reisenbichler, 712 S.W.2d 468 (Mo. App. E.D. 1986); State ex rel. Simmerock v. Brackmann, 714 S.W.2d 938 (Mo. App. E.D. 1986).

Both the settling claimant and the nonsettling tortfeasors are affected by a settlement under § 537.060 to the extent of the consideration paid or the amount stipulated in the settlement documents, whichever is greater. The remaining tortfeasors are allowed a credit against any subsequent judgment obtained by the claimant to the extent of the settlement proceeds. If the dispute goes to judgment, the amount of the total judgment for which the remaining tortfeasors will be obligated will be reduced by the consideration paid.

If there is fault assessed to the claimant as part of that judgment, the claimant’s total damages, as determined by the fact-finder, will be reduced in an amount equal to the prejudgment settlement amount. This figure is further reduced by an amount equal to the percentage of fault assessed to the claimant multiplied by the reduced damage figure. The remaining tortfeasors are then liable according to their assessed percentage of fault, Jensen v. ARA Servs., Inc., 719 S.W.2d 121 (Mo. App. S.D. 1986), affirmed, 736 S.W.2d 374 (Mo. banc 1987), subject to § 537.060 and joint and several liability. If the ultimate judgment obtained against the remaining tortfeasors is equal to or less than the amount received from the settling tortfeasor, any judgment against the nonsettling tortfeasors is satisfied. Hampton v. Safeway Sanitation Servs., Inc., 725 S.W.2d 605 (Mo. App. E.D. 1987).

Section 537.060 has some practical applications in settlement evaluation and necessitates care in the drafting of the settlement documents. First, except in cases against health care providers covered by § 538.230, RSMo 2000, there will be no allocation of fault to the settling tortfeasor. This is a factor that must be considered by the claimant in evaluating settlement with the single tortfeasor. This factor, coupled with the credit applied to any ultimate judgment, will have a significant effect on the value to be given to the separate claims against the remaining tortfeasors.

Counsel should...