CASUALTY TERMS & CONCEPTS · 6 MIN READ

Multiple Tortfeasors, Settlements, and Damages Limits

When several tortfeasors injure one plaintiff, the first question is how liability is shared. Joint and several liability lets the plaintiff collect the entire judgment from any one defendant, who then seeks contribution; several-only (proportionate) liability limits each defendant to its own comparative share, which forces the plaintiff to absorb the share of any insolvent or absent phantom defendant. Contribution under the modern Restatement approach is measured by comparative shares of responsibility — a defendant who paid more than its share recovers the excess from co-tortfeasors up to their shares — replacing the old equal pro-rata split. Indemnification is different in kind: it shifts the entire loss to the party who should bear it, as when a vicariously liable principal recovers from the actively negligent agent. Settlement mechanics follow. Under the proportionate-share rule adopted by the Restatement and by the Supreme Court for admiralty in McDermott v. AmClyde, a settling tortfeasor's departure reduces the remaining defendants' exposure by the settlor's percentage of fault as found at trial — not by the settlement dollars — and the settlor is immune from contribution. This replaced the pro-tanto dollar-for-dollar credit that invited collusive undersettlement. Mary Carter agreements — secret deals in which a settling defendant stays in the case with exposure that shrinks as the verdict against co-defendants grows — are disfavored because they secretly align the settlor with the plaintiff; most courts require disclosure and some void them. The collateral source rule, meanwhile, keeps a defendant from reducing damages by payments the plaintiff received from independent sources like health insurance. Damages themselves face limits. Punitive damages are constitutionally reviewed under the three BMW v. Gore guideposts — reprehensibility of the conduct, the ratio of punitive to compensatory damages, and comparable civil or criminal penalties — with State Farm v. Campbell adding that few awards exceeding a single-digit ratio satisfy due process, and Honda v. Oberg requiring judicial review procedures. Timing rules cap claims too: a statute of limitations runs from accrual of the claim (injury or discovery) and can be tolled, while a statute of repose runs from a fixed event like completion of construction or first sale and generally cannot be tolled. Finally, death cases split into wrongful-death actions (the survivors' own losses) and survival actions (the decedent's claim continuing for the estate), and suits against the United States proceed only under the Federal Tort Claims Act — applying the law of the place of the act, requiring an administrative claim first, allowing no jury and no punitive damages, and carving out discretionary functions.