Understanding State Contribution Laws and Their Effect on the Settlement of Mass Tort Actions

Abstract:     
A common feature of mass tort litigation involves the situation in which some defendants settle with the plaintiff prior to trial, with the plaintiff proceeding to trial and winning a favorable judgment against the nonsettling defendants. In such situations, most states apply a credit, or set-off, of a certain amount against the plaintiff's recovery to account for the prior settlement. Different set-off rules can yield dramatically different results, in terms of both the plaintiff's recovery and the defendants' liabilities, including the right to seek contribution. The approaches that the states take to these matters are fragmented and inconsistent. This article examines the various state approaches to contribution and settlement in this context. This article further explores some of the issues that have caused conflicting state rules, with particular attention to state variations on the rules of joint and several liability. Included is a state-by-state table of state contribution laws and joint and several liability rules. This article offers suggestions for evaluating the existing state rules with the goals of enhancing awareness of the issue and developing a unified approach to these doctrines in the mass tort context.

Keywords: torts, tort law, mass torts, litigation, settlement, set-off, contribution, joint and several liability

JEL Classifications: K13

Accepted Paper Series