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the settling defendant a direct financial stake in the outcome of
the case that is adverse to that of the nonsettling defendants.
MCA's that include a Sliding Scale Clause generally are
considered invalid or void because such agreements leave the
finder of fact with the false impression that there is adversity
between the plaintiff and all of the defendants while in reality
there is adversity between the settling defendants and
nonsettling defendants. See Dosdourian v. Cartsen, 624 So. 2d
241 (Fla. 1993); Fullenkamp v. Newcomer, 508 N.E.2d 37 (Ind. Ct.
App. 1987); General Motors Corp. v. Lahocki, 410 A.2d 1039 (Md.
1980); Lum v. Stinnett, 488 P.2d 347 (Nev. 1971); Cox v. Kelsey-
Hayes Co., 594 P.2d 354 (Okla. 1978).123 However, some courts
have declined to invalidate such agreements, depending upon the
particular facts and circumstances of the case. See Hoops v.
Watermelon City Trucking, Inc., 846 F.2d 637 (10th Cir. 1988);
d'Hedouville v. Pioneer Hotel Co., 552 F.2d 886 (9th Cir. 1977);
Slusher v. Ospital, 777 P.2d 437 (Utah 1989).
123 See Note, "It's a Mistake to Tolerate the Mary Carter
Agreement", 87 Colum. L. Rev. 368, 370 (1987); see also Cox v.
Kelsey-Hayes Co., 594 P.2d 354, 359 (Okla. 1978), where the court
stated:
Courts and commentators, recognizing the
substantial prejudice to the non-agreeing defendants,
are nearly unanimous in their belief the agreements
must be disclosed prior to trial and if the agreeing
defendant's maximum liability will be reduced by
increasing the liability of his codefendant, the jury
must be informed of the contents of the agreement
* * *.
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