- 297 - 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).Page: Previous 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 Next
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