The Unsettling Effect of Maine Law on Settlement in Cases Involving Multiple Tortfeasors

When more than one person or entity causes injury to another, the multiple tortfeasors are jointly and severally liable to the injured party under Maine law. Maine has also provided since 1965 for comparison of the negligence of plaintiffs and defendants so that a plaintiff may not recover if his causative negligence is found to have equaled or exceeded that of the defendant. In addition, title 14, section 156 of the Maine Revised Statutes gives to each defendant the right to request that the jury allocate percentages of fault “contributed by each defendant.” Finally, title 14, section 163 of the Maine Revised Statutes has provided, since 1969, that the amount paid in settlement before conclusion of trial by “one or more persons causing the injury” shall be deducted from the jury\u27s damage award. Two dissenting members of the Maine Supreme Judicial Court, sitting as the Law Court, referred to this provision as a statutory embodiment of the “one recovery rule” in Thurston v. 3K Kamper Ko., Inc. In 1982, a Comment published in the Maine Law Review pointed out potential conflicts between sections 156 and 163 of title 14 of the Maine Revised Statutes and proposed statutory reform. No such reform has been forthcoming, and with its decision in Hewitt v. Bahmueller the Law Court has exacerbated the problem. The policy favoring settlement has received strong support in Maine common law. The considerations supporting this policy are apparently so basic that the Law Court has not felt the need to express them. The considerations include bringing an end to litigation, with a saving of time and expense for the parties and the courts; avoiding uncertainty; fostering peaceful relationships between parties; and improving judicial administration. Indeed, the Law Court has recently implemented a trial program of mandatory alternative dispute resolution for civil actions in four Maine counties to encourage resolution of disputes short of trial. However, Maine law as it now stands discourages settlement and places undue power in the hands of tort defendants who refuse to settle. This situation arises primarily from the Law Court\u27s interpretation of the statutory language. The Law Court has allowed a non-settling defendant to choose which settling defendants, if any, will be presented to the jury for allocation of fault at trial. The non-settling defendant has been guaranteed a credit against the jury verdict for the amount paid by any settling defendant whom he chooses not to present to the jury. The Law Court has required plaintiffs to accept a settlement payment lower than a subsequent jury award against the settling defendant but has refused to balance the burden by allowing the plaintiff to retain the benefit of a settlement that is higher than a subsequent jury award. In addition, non-settling defendants in these circumstances are allowed to pay less than their allocated share of liability. The Law Court also allows a non-settling defendant to seek contribution from a settling defendant. All of these factors encourage a defendant not to settle. In addition, the statutes conflict in allowing both proportional allocation of fault and dollar-for-dollar verdict reduction for settlement payments, a situation which also creates confusion and undue complexity for the trial court. Neither result could have been intended by the Maine Legislatures that enacted sections 156 and 163, nor is it likely that these results were intended by the Law Court. Revision of case law, the statutes, or both, is necessary