Many Florida lawyers, particularly those with Florida school law degrees, clutch to their Ehrhardt “Florida Evidence” text. And with good reason. However that grasp should be loosened just enough to take a red pen to section 408.1 of the book. You may also want to mark up your Florida Statutes 768.041(3) (release or covenant not to sue) and section 90.408 (compromise and offers to compromise). Because the Florida Supremes ruled that evidence of settlement or dismissal of a former defendant is never admissible, even to challenge bias or credibility.
In Albert Saleeby v. Rocky Elson Construction, the Court tangled with a direct and express conflict between the Third and Fourth DCA on the issue of admissibility of a prior defendants settlement under these two statutes (Fourth District had permitted while the Third had not). In the Saleeby facts, a defendant had been released from the case and later appeared in trial as an expert, opining a co-defendant had violated building codes.
The High Court cited the 4th District case and its citation to Ehrhardt’s text. A dissent did as well. But the opinion was that the plain meaning of both statutes prohibited admission for any reason. The Court buttressed its opinion with a claim that admitting such evidence was contrary to a strong state public policy in favor of settlement.
A brief discussion was made about “Mary Carter Agreements,” a chimera of a legal theory which gets discussed more frequently than it is actually spotted in the wild. A Mary Carter agreement, which was forbidden as of a 1993 opinion, involves a secret settlement between plaintiff and defendant where the defendant agrees to remain in the case and try to amplify a co-defendant’s liability. The Court used words like “charade” and phrases like “unfair and unethical” and “outlawed their use” in describing such agreements.
Canady’s dissent was interesting as it argued that section 90.608(2)(attacking credibility by showing bias) was not subjacent to 768.041(3)(release or covenant not to sue) or 90.408. He argued that, in this case, the plaintiff created its own situation by hiring the former defendant as an expert and placing him on the stand. Justice Polston, meanwhile, plainly draw the conflict with Professor Ehrhardt by quoting the book upfront and then opining that the evidence should have been admissible since it was not admitted to prove liability but simply to show bias.