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In order to avoid this result and encourage partial settlements
of cases, a number of legal devices were developed to circumvent
the common law rule. One of these devices is known as the Mary
Carter agreement (MCA),122 taking its name from Booth v. Mary
Carter Paint Co., 202 So. 2d 8 (Fla. Dist. Ct. App. 1967),
overruled by Ward v. Ochoa, 284 So. 2d 385 (Fla. 1973).
As in Mary Carter Paint Co., MCA's typically consist of four
elements: (1) The plaintiff enters into an agreement with some
but not all the defendants not to enforce the court's judgment
against the settling defendants; (2) the settling defendants
agree to pay the plaintiff a guaranteed minimum payment, thereby
placing a limit on their liability to the plaintiff; (3) the
settling defendants agree to remain parties to the action until a
verdict has been rendered or until they have been released by the
court or the plaintiff; and (4) the parties agree to keep the
agreement secret from the court and the nonsettling defendants.
Usually, the defendant's guaranteed minimum payment is reduced or
extinguished if the plaintiff recovers against the nonsettling
defendants in an amount greater than the guaranteed minimum
payment (hereinafter the Sliding Scale Clause), thereby giving
122 But see Note, "It's a Mistake to Tolerate the Mary
Carter Agreement", 87 Colum. L. Rev. 368, 379 (1987), arguing
that MCA's actually encourage litigation, rather than promote
settlement of disputes, because the agreement requires continued
litigation against the nonsettling defendants. The Supreme
Courts of Texas and Florida, in declaring MCA's void as against
public policy, have done so for a variety of reasons, one of them
being that MCA's, rather than encouraging settlements, actually
promote litigation. See Dosdurian v. Carsten, 624 So. 2d 241
(Fla. 1993); Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992).
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