Marie Garcia, Administratrix of the Estate of B.G., v. Aman Soin and Kevin’s Towing and Repair, LLC

Marie Garcia, Administratrix of the Estate of B.G., v. Aman Soin and Kevin’s Towing and Repair, LLC

Civil Action-Law-Wrongful Death-Negligence-Collision-Vehicle and Scooter-Settlement With Co-Defendant-Evidence-Admissibility-Credibility of Settling Party-Bias, Prejudice or Collaboration-Participation of Settling Co-Defendant-Cross-Claim.

Marie Garcia (“Plaintiff”) filed suit against Aman Soin (“Soin”) and Kevin’s Towing and Repair, LLC, (“Kevin’s Towing”) following an accident that occurred on July 2, 2018 in which it is alleged that the vehicle operated by Soin collided with a scooter operated by the eleven (11) year old decedent.  Plaintiff alleges that Kevin’s Towing negligently performed a State inspection of the vehicle operated by Soin by failing to discover a problem in the brake system.  The suit was settled by Plaintiff and Kevin’s Towing by a joint tortfeasor release providing that the release shall not be construed as an admission of liability or wrongdoing and may not be introduced into evidence in any proceeding except in an action to enforce the settlement.  Soin filed a cross-claim against Kevin’s Towing seeking contribution toward any damages awarded to Plaintiff.  The issue before the Court is whether or how the settlement with Kevin’s Towing may be introduced at the trial between Plaintiff and Soin.

1.  There is a strong judicial policy in favor of voluntarily settling lawsuits because settlement reduces the burden upon the courts and expedites the transfer of funds into the hands of a complainant.

2.  Title 42 Pa.C.S. § 6141(a) provides that settlement with or payment to an injured person shall not constitute an admission of liability by the person making the payment unless the parties agree to the contrary. 

3.  Section 6141(c) provides that any settlement or payment shall not be admissible in evidence in the trial of the matter.

4.  Pa.R.E. Rule 408(a) prohibits the admissibility of valuable consideration in compromising or attempting to compromise a claim. 

5.  When the existence of a pretrial settlement is relevant to assessing the credibility of the settling party, the law opens a window to allow the court to permit cross examination regarding the settlement in order to show bias, prejudice or collaboration. 

6.  As a general rule, a defendant subject to a cross-claim who has settled must participate in the trial so that the jury may determine issues pertaining to comparative negligence and/or contribution. 

7.  Absent unusual circumstances, the existence of a settlement between Plaintiff and Kevin’s Towing will not be made known to the jury.

8.  Kevin’s Towing will be required to participate in the trial and vigorously to defend itself against claims proffered by Plaintiff and Soin.

9.  If something were to happen at trial implicating questions of bias, motive or collusion on the part of Kevin’s Towing, the existence of a settlement potentially may be made known to the jury. 

L.C.C.C.P. No. 2019-00237, Opinion by Bradford H. Charles, Judge, July 17, 2024.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW

MARIE GARCIA, Administratrix of the :

Estate of B.G.,                                         :

Plaintiff                                            :

                                                                   :

          v.                                                       :        2019-00237

                                                                   :

AMAN SOIN and KEVIN’S TOWING       :

AND REPAIR, LLC,                                 :

Defendants                                                :       

                                                                   :

ORDER OF COURT

AND NOW, 17^th this day of July, 2024, the request of counsel for Kevin’s Towing and Repair, LLC, to be excused from further participation in the above-referenced case, and the request of Plaintiff to exclude evidence of her settlement with Kevin’s Towing and Repair, LLC, are GRANTED in part and DENIED in part in accordance with the attached Opinion.   

BY THE COURT:

                                                                   __________________________J.

                                                                   BRADFORD H. CHARLES

BHC/pmd

cc:     Court Administration (order only)

Edward Coyle, Esq.// 525 S. 8^th Street, PO Box 49, Lebanon PA 17042

          George Eager, Esq.// 1347 Fruitville Pike, Lancaster PA 17601

          Lisa DiBernardo, Esq.// 115 Millersville Road, Lancaster PA 17603

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

MARIE GARCIA, Administratrix of the :

Estate of B.G.,                                         :

Plaintiff                                            :

                                                                   :

          v.                                                       :        2019-00237

                                                                   :

AMAN SOIN and KEVIN’S TOWING       :

AND REPAIR, LLC,                                 :

Defendants                                                :       

                                                                   :

APPEARANCES:

Edward Coyle, Esq.                                FOR Plaintiff                                                                                                                                  

George Eager, Esq.                                 FOR Defendant SOIN

Lisa DiBernardo, Esq.                             FOR Defendant KEVIN’S TOWING and REPAIR, LLC

OPINION BY CHARLES, J.,  July 17, 2024

           What should a jury be told when a plaintiff settles with one of two potentially liable defendants?  In the above-referenced case, Plaintiff initiated a lawsuit against Defendants Aman Soin (hereafter SOIN) and Kevin’s Towing & Repair, LLC (hereafter KEVIN’S TOWING) as a result of a tragic accident that occurred on July 2, 2018. Thereafter, Plaintiff settled with KEVIN’S TOWING on April 8, 2022.  No settlement agreement was reached with SOIN, and the case Plaintiff filed against SOIN is scheduled to proceed to trial on September 12, 2024.  The question before us today is whether or how Plaintiff’s Release Agreement with KEVIN’S TOWING can affect the upcoming jury trial. 

I.     FACTUAL BACKGROUND

           On February 14, 2019, Plaintiff initiated a wrongful death/survival civil action against SOIN and KEVIN’S TOWING.  The action resulted from a collision between a 2009 Lincoln motor vehicle driven by SOIN and a YVOLUTION scooter operated by 11-year-old B.G.  As a result of the collision, B.G. tragically died. 

          The collision occurred at the intersection of North 12^th Street and Crowell Street in the City of Lebanon.  Although details about the collision are in dispute, we understand that SOIN’s vehicle was travelling north on North 12^th Street and B.G.’s scooter was travelling west on Crowell Street prior to the collision. 

          Plaintiff alleged that SOIN’s negligent operation of his Lincoln vehicle caused the collision that tragically ended B.G.’s life.  SOIN argues that B.G.’s own negligent operation of his scooter caused the accident.  As it relates to KEVIN’S TOWING, Plaintiff’s Complaint alleges that KEVIN’S TOWING negligently performed a state inspection of SOIN’s vehicle and that the inspection failed to discover a problem with the braking system.  Plaintiff alleges that this braking problem was a factor that caused the collision with B.G.’s scooter. 

          On April 8, 2022, Plaintiff and KEVIN’S TOWING entered into a joint tort feasor release.[1]  The release included the following language:

“This release shall not be construed in any manner as an admission of liability or wrongdoing by any individual, institution, or party, and it may not be introduced into evidence in any proceeding, of any nature whatsoever, except an action to enforce the settlement of this matter.”

          As is common in cases of this nature, SOIN filed a cross-claim against KEVIN’S TOWING.  The cross-claim sought contribution from KEVIN’S TOWING toward any amount SOIN would be required to pay to Plaintiff. 

          Numerous pre-trial issues were submitted to this Court.  As part of those pre-trial proceedings, we learned about Plaintiff’s settlement with KEVIN’S TOWING.  Both parties had different impressions of how that settlement could or should impact the upcoming trial between Plaintiff and SOIN.  In addition, counsel for KEVIN’S TOWING submitted a request to be excused from further participation at trial.  Because of the parties’ disagreement, we solicited briefs.  Both Plaintiff and SOIN submitted briefs in early July.  The issue of whether or how Plaintiff’s release with KEVIN’S TOWING can become a part of the upcoming trial in September is now before this Court for disposition.

II.    DISCUSSION

          “There is a strong judicial policy in favor of voluntarily settling lawsuits because it reduces the burden on the courts and expedites the transfer of money into the hands of a complainant.”  Mastroni-Mucker v. Allstate Insurance Company, 976 A.2d 510, 518 (Pa. Super. 2009).  In part because public policy so strongly favors voluntary settlement of disputes, Pennsylvania’s General Assembly passed a specific provision discussing the effect of civil settlements:

1. Personal Injuries – Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment is made, unless the parties to such settlement or payment agree to the contrary.

42 Pa. C.S.A. § 6141(a).

Section 6141 of the Judiciary Code also provides:

“Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment [to settle personal injuries] shall not be admissible in evidence on the trial of any matter.”

42 Pa. C.S.A. § 6141(c).

Our Supreme Court has recognized that the purpose of 42 Pa. C.S.A. § 6141 is to encourage settlements.  Hatfield v. Continental Imports Inc., 610 A.2d 446 (Pa. 1992). 

          In addition to § 6141, Pennsylvania Rule of Evidence 408(a) also prohibits the admissibility of “valuable consideration in compromising or attempting to compromise the claim.”  According to the comment to Rule 408, “Pa.R.E.V. 408 is consistent with 42 Pa. C.S.A. § 6141.” 

          Based upon § 6141 of the Judiciary Code, Rule 408(a) and the public policy upon which said Rules were premised, it would appear almost self-evident that the jury in the case of Garcia v. Soin should not be told about Plaintiff’s settlement with KEVIN’S TOWING.  Please notice that we used the equivocating word “almost” because there is an exception to the rule precluding admissibility of settlements.  When the existence of a pre-trial settlement is relevant to assessing the credibility of the settling party, the law opens a window to allow courts to permit cross-examination regarding the settlement in order to show bias, prejudice or collaboration.  See, Wilkerson v. Allied Van Lines, Inc., 521 A.2d 25 (Pa. Super. 1987).[2]  In this case, no evidence exists that the agreement between Plaintiff and KEVIN’S TOWING was in any way collusive.  However, if such information is provided at trial, we would revisit the decision we will be rendering today to preclude admissibility of the settlement between Plaintiff and KEVIN’S TOWING. 

          At trial, SOIN is entitled to defend itself by pointing a finger of culpability at KEVIN’S TOWING.  The cross-claim filed by SOIN against KEVIN’S TOWING requires nothing less.  This said, the question then arises about whether or to what extent the settling party should be required to participate at trial. 

          As a general rule, a defendant subject to a cross-claim who has settled, must participate in the trial so that the jury may determine issues pertaining to comparative negligence and/or contribution.  In National Liberty Life Insurance Company v. The Kling Partnership, 504 A.2d 1273 (Pa. Super. 1996), plaintiff entered into a settlement with some defendants and sought to proceed to trial against others.  A question arose as to whether the settling defendants should be excused from participation.  The Superior Court stated:

“Bethlehem ‘does have an extremely valuable right in retaining [the settling defendants] in the case, because If the jury should find [them] to be joint tort feasors, Bethlehem’s liability to National Liberty would be reduced proportionately.’  Pennsylvania cases hold that even though he has settled with the plaintiff and obtained a pro-rata release, a defendant must nevertheless participate in the trial so that the jury may determine the issues of joint or sole liability.” Id at page 1277, citing Davis v. Miller, 123 A.2d 422 (Pa. 1956).

          In this case, counsel for KEVIN’S TOWING has sought to be excused from any further participation in the above-referenced trial.  In the absence of an agreement by all other counsel, we have thus far refused counsel’s request to be excused from participation.  We are mindful of an admonition provided by a noted commentator: “From the plaintiff’s point of view, it is almost always desirable that the settling defendant participate and vigorously defend at trial, so as to minimize its percentage share of liability.  Particularly since Charles v. Giant Eagle Markets, 522 A.2d 1 (Pa. 1987), the lower the percentage share of the settling defendant, the greater the plaintiff’s ultimate recovery.”  See, “Practical Consideration in Entering into Releases”, 4 West’s Pennsylvania Practice §18.18.  At the upcoming pre-trial conference, we will discuss the issue of whether or how KEVIN’S TOWING should participate in trial.  Unless there is an agreement, counsel for KEVIN’S TOWING should be prepared to appear and “vigorously defend” her client at trial. 

III.      CONCLUSION

          Based upon the above, we reach the following conclusions as it relates to the settlement between Plaintiff and KEVIN’S TOWING and how it will impact the trial of the above-referenced case:

•  The amount of the settlement between Plaintiff and KEVIN’S TOWING will not be disclosed to the jury. 
•  Absent unusual circumstances that we do not anticipate, the existence of a settlement between Plaintiff and KEVIN’S TOWING will not be made known to the jury.
•  KEVIN’S TOWING will be required to participate in the trial and vigorously defend itself against claims proffered against it by either Plaintiff or SOIN.
•  If something unusual occurs at trial that would implicate questions of bias, motive or collusion on the part of KEVIN’S TOWING, we would agree to revisit conclusions (1) and (2) above.

We have issued this Opinion to assist the parties in their preparation for upcoming pre-trial conference and trial.  It is our hope and expectation that everyone involved in the above-referenced matter will litigate this case in a manner that is fair and efficient.

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[1] The amount of compensation paid by KEVIN’S TOWING is not germane to any issue now before this Court, and we will not set forth the amount paid by KEVIN’S TOWING in return for the Release Agreement.

[2] Books have been written about so-called “Mary Carter” agreements.  The term “Mary Carter agreement” was derived from the case of Booth v. Mary Carter Paint Company, 202 SO. 2^nd 8 (Fla. Dis. Ct. App. 1967).  The term commonly refers to a collusive settlement agreement where parties surreptitiously agree to work together at trial in return for payment by one party to the other.  Without question, Mary Carter agreements are not favored in the law.  In fact, some commentators view such agreements as unethical.  See, Validity and Effect of Mary Carter or Other Similar Agreement…22 A.L.R. 5^th 483 (1994).  In Hatfield v. Continental Imports Inc., 610 A.2d 446 (Pa. 1992), Pennsylvania’s Supreme Court held: “Where an agreement clearly allies two or more parties against another, such that a clear potential for bias exists which would not otherwise be apparent to the fact finder, that part of the agreement, or at least the existence of the reason for the potential bias, must be conveyed to the fact finder.” Id at page 563.