This article will discuss the less established issue of how the set-off rules apply in a crashworthiness case. The question, in particular, is whether a nonsettling product manufacturer against whom a verdict has been rendered, is entitled to a set-off against that verdict for settlement payments received from a driver (or other party potentially liable in negligence in connection with a plaintiff’s injuries). The same question can be asked in the reverse, ie. is a nonsettling driver who is sued in negligence entitled to a set-off for settlement payments received from a product manufacturer alleged to have sold a defective product that contributed to the plaintiff’s injuries? There is a good argument, supported by a some authority, that the answer to both questions should be no.

In 2001, the Florida Supreme Court passed down its decision in D’Amario v. Ford Motor Co., 806 So.2d 424, 435 (Fla. 2001), and changed the landscape of crashworthiness litigation in Florida. Among other things, D’Amario held that the principles of comparative fault concerning apportionment of fault will not ordinarily apply in crashworthiness cases. Crashworthiness cases recognize that in every crash there are potentially two collisions, the first being the collision of the vehicle with another object, and the second being the collision of the occupants with the vehicle or areas outside the vehicle, as the case may be. If the plaintiff proceeds to trial against another driver, his claim is that the driver was negligent in causing the first collision and his damages are the injuries resulting from the first collision. If the plaintiff proceeds to trial against the manufacturer, his case is for the injuries incurred over and above the injuries resulting from the first collision.

The set off statute, F.S. 768.041 says, in subsection (2):

At trial, if any defendant shows the court that the plaintiff, or any person lawfully on her or his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set this amount off from any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.

In a crashworthiness case, the “damages sued for” are the second collision damages or “enhanced injuries”. Thus, a crashworthiness case, by its very nature, involves a claim for different damages than the damages claimed against the driver. Indeed, one of the plaintiffs burdens of proof in a crashworthiness case is the existence of additional or enhanced injuries caused by a product defect. The logical conclusion to be drawn when one puts the setoff statute and the D’Amario decision is that a set-off would not be proper in a crashworthiness case because the “damages sued for” are completely different from the “first collision” damages caused by a negligent driver.

The only Florida case that has opined on this issue stated just that (albiet in dicta in a footnote). In Walker v. Bozeman, 243 F.Supp.2d 1298 (N.D. Fla. 2003), the issue was whether a settlement with GM could be set-off against a verdict against the alleged negligent owner of a vehicle. The plaintiff’s decedent died at the scene leaving little or no medical expenses. The only damages claimed in Walker v. Bozeman were for the pain and suffering of the survivors. The court held that a setoff was not proper because all of the damages claimed were non-economic and a defendant is entitled to a setoff only for economic damages. See, Wells, supra. The court then went on to say the following in footnote 5:

Even if the law were otherwise, the right to a setoff here would be far from clear. Mr. Bozeman and General Motors were not joint tortfeasors. See, D’Amario v. Ford Motor Co., 806 So.2d 424, 435 (Fla. 2001)(treating person who caused wreck and crashworthiness defendant as successive, not joint, tortfeasors). Setoffs generally are available only with respect to joint tortfeasors. (cites omitted) Walker at 1303.

In order to succeed D’Amario, the plaintiff must put on an expert who will say, without the defect, the plaintiffs injuries would have been X, but because there was a defect, the injuries are Y. According to D’Amario, a defendant, it is entitled to a jury instruction stating that the plaintiff is making no claim for X but only for the difference between X and Y (the enhanced injuries) and that the jury is should not hold the manufacturer liable for any of X. Therefor, in a crashworthiness case that goes to verdict against a manufacturer, the jury’s verdict is the equivalent of a verdict that apportions 100% of the liability for the enhanced injuries to the manufacturer and 0% to the driver. In any other type of case in which the jury has apportioned 100% of the liabilty to the nonsettling defendant and 0% to a settling defendant, the law is clear that the non-settling defendant is not entitled to a setoff. See, Gauty v. Schnepel, supra. It makes no difference in such a case if the damages awarded by the jury or represented by a settlement are economic or non-economic because the jury’s award is only for the difference between X and Y, for which the manufacturer is 100% liable.

It is only a matter of time before this issue makes its way before one of Florida’s district courts of appeal and/or the Florida Supreme Court. The outcome of any cases on this issue will have a large impact on the ability of injured consumers to be fully compensated for their injuries caused by defective vehicles.