Colella v. GGP, Inc., No. N17C-11-195 FWW, 2019 WL 4013583 (Del. Super. Ct. Aug. 23, 2019)

Another Delaware case holds that one defendant who settles with a plaintiff cannot be dismissed in full because the non-settling co-defendant needs to pursue its claim for contribution at trial.

The plaintiffs settled their claims with certain of the defendants, but not others. The settling parties executed a confidential joint tortfeasor release. Following the settlement, a remaining defendant moved to dismiss itself from the lawsuit and from the cross-claims for defense and indemnification asserted by the co-defendants. The moving defendant contended that when the defendant’s right to set-off damages is preserved after one joint tortfeasor is released from litigation, that defendant’s interests will not be prejudiced by their co-defendant’s dismissal. The court held that the remaining co-defendant “seeks to prove that the co-defendants [who settled] are joint tortfeasors. Necessarily, the jury will be required to apportion liabilities among the parties, which cannot be done if [settled co-defendant] is dismissed from the suit.” The setting party need not be present at trial but should remain on the record until their status is finally determined.


Case Law Alerts, 4th Quarter, October 2019

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