Maximizing Recovery

In February, 2001, we obtained a jury verdict of $3.5 million against a subcontractor at a PECO power plant which had allowed a 44-year old York County laborer access to an unsafe work environment. The laborer sustained fatal injuries while using a high-pressure water hose to cleanse the inside of a condensation unit at the PECO facility, which qualified as a “confined space” under OSHA regulations. Joined in the suit were PECO and the manufacturer of the hydraulic equipment. Before the commencement of trial, substantial settlements were obtained from both PECO and the manufacturer, allowing the Plaintiff to focus exclusively on the subcontractor at the time of trial. In addition, the pre-trial settlements with PECO and the manufacturer placed Plaintiff in a much better position to either negotiate an optimum settlement with the subcontractor, or “gamble” with going to verdict against that remaining single defendant.

In this case, the strategy worked to perfection in that only the subcontractor was found responsible, in spite of the subcontractor’s attempts to shift responsibility to the settled defendants, or the Plaintiff laborer. Because neither of the settled defendants were found causally negligent, none of their settlements could be deducted from the $3.5 million verdict. Thus, total recovery will be substantially more than the verdict.

Many facets of the case must be thoroughly scrutinized before advising a client to enter into a joint tortfeasor release. But when correctly assessed, the strategy offers multiple advantages: Your client will have at least some recovery; Plaintiff's bargaining power against the remaining defendant increases significantly, because the remaining defendant becomes the sole target at trial, and because your client is no longer desperate for a recovery; trial usually runs smoother, because the story to the jury is simplified, and settled co-defendants’ lawyers tend to stay out of the way at trial. On the other hand, the strategy can completely backfire if the remaining defendant is able to credibly blame the settled defendants for a lion’s share of responsibility.

Certainly, the strategy should at least be examined in every multiple defendant case. As demonstrated in this case, the client’s recovery can be greatly enhanced by successfully employing this strategy.
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