Jerry and Patricia A. Dixon, et al - Page 227




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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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