DAMAGE CONTROL: HIGH-LOW CONTRACTS AT TRIAL

Your witnesses are lined up and well-prepared; trial notebook is tight and memorized; all evidentiary issues are anticipated and briefed. Trial day—you are confident because you are prepared. “Your client interested in a high-low?” your adversary chirps at you looking over the frame of his lowered spectacles. If your reaction would be perplexity, creating a chink in crucial trial confidence, continue reading and be prepared for the next time.

The use of a control contract at trial, colloquially known as a high-low agreement,1 establishes concrete parameters of maximum exposure for the defendant and a minimum recovery for the plaintiff. However, if clear terms are not employed and the specific scope is not delineated, defined, and understood by all parties to the contract, chaos can ensue.

A Paradigm

A prototypical high-low agreement can be illustrated in a motor vehicle accident personal injury lawsuit. The defendant owner-operator of the offending vehicle wants to cap exposure—a ceiling—and the plaintiff wants the assurance of a sum certain—a floor. There is a $1 million policy in play, with no other insurance available, and the plaintiff has a minimum acceptable recovery requirement of $150,000. Consider that the damages award in this model could very well exceed the policy limit; the obverse consideration is that the fortunes of trial could yield a jury award of zero dollars.

The parties agree to implement a $850k/$150k high-low agreement: the ceiling is $850,000; the floor is $150,000. Therefore, if the jury awards an amount over the ceiling, the defendant will not have to pay more than $850,000. If there is a jury award below the floor, even if the award is zero, the plaintiff will still receive $150,000. When a jury renders a verdict within the range of the high-low agreement, in this example, say $250,000, the high-low agreement should be rendered inconsequential as to the damages recoverable.

If time permits, the parties should then reduce the agreement into a formal written stipulation. The stipulation should then be read into the record, stipulated to by the attorneys of record with a statement that they each have the authority to enter into such type of agreement, and marked as a court exhibit. Then attorneys have the stipulation “so-ordered.” In the event that it is a last-minute brainchild, attorneys should outline the agreement on a legal pad and read it into the record. Finally, the stipulation should be allocuted with the plaintiff in open court and on the record to memorialize the fact that they understand the benefits and the bad points of entering into the agreement. Where the plaintiff is incompetent, a minor or an estate’s representative, court approval of the agreement will be required.

In that paradigm, the damages die is cast, and the trial can begin, or continue, depending on what phase you are at when the agreement is consummated.

Duty to Disclose

The paradigm provided assumes a single defendant lawsuit. In multi-defendant litigation, a high-low agreement between a plaintiff and fewer than all defendants has the potential of prejudicing the rights of the non-participating defendant if all parties are not aware of the control contract. The disclosure rule in New York with respect to control contracts is settled: secret agreements are not permitted.

The Court of Appeals has provided clear guidance with respect to the duty to disclose to third parties: “…whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the nonagreeing defendant(s).” In re Eighth Judicial District Asbestos Litigation, 8 N.Y.3d 717 (2007).

Control of the Contract

In addition to the damages parameters, the agreement should address how disputes with respect to the control contract will be resolved. To be efficient, the trial court judge may be designated as the sole and final arbiter of all disputes related to the application and interpretation of the contract with no appeal available as to the judge’s rulings pertaining to the contract. With that provision the creation of derivative litigation on the contract will be prevented.

Appeal and Trial Motions

Appealability of the trial itself must be discussed. If the right to appeal is going to be waived or limited (e.g., appellate review limited to determining whether the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the verdict) write it into the contract. Likewise, if the right to appeal will not be waived, consider adding: “All parties retain the right to appeal any verdict or judgment after trial based upon any errors committed by the court over timely objection.” What must be avoided is allowing the right to appeal to become a fail-safe mechanism for the disappointed party.

If the right to appeal is to be preserved a proviso could be inserted stating that the verdict amount will be tendered to the prevailing party, notwithstanding the pronouncement of an appeal, to be held in escrow by counsel for the prevailing party and that the time for perfection of the appeal will be reduced to three months. Finally, the parties must agree on the survival of an agreement in the event of an appeal, and the effect of an appeal by a non-signatory to the agreement.

Similar considerations must be applied to trial and post-trial motion practice. For example, in a Wisconsin case, Manke v. Physicians Insurance of Wisconsin,2 a medical malpractice action, during jury deliberations the parties entered into a high-low settlement agreement with the ceiling at $800,000, and the floor at $100,000. The jury returned a verdict for the plaintiff in excess of the ceiling. Three weeks after the verdict, the defendant doctor filed a motion for a new trial on the grounds that inappropriate materials had been introduced into the deliberations by one of the jurors. The defendant alleged that a juror brought a dictionary definition of negligence into the jury room that allegedly swayed some jurors toward the plaintiff. The plaintiff objected and argued that the high-low agreement precluded the post-trial motion. Because the parties had not contemplated this issue, one that was clearly out of the control of the parties and the court, the trial court found that the high-low agreement did not preclude the post-trial motion.

Payment and Release

Also, it is imperative that defined payment deadlines and default remedies are spelled out. In theory, the floor amount could be due immediately upon execution of the agreement. It is also important to determine whether a release will issue upon payment of the controlled damages award. For example, Cunha v. Shapiro,3 after jury selection, the parties entered into a $325,000-$75,000 high-low agreement and placed it on the record.

The jury verdict exceeded $325,000 and, therefore, triggered the damages ceiling. Some weeks later, the defendant sought a release from the plaintiff. The plaintiff failed to provide one, believing it was not called for in the agreement. Because the defendant failed to tender payment within thirty days of the verdict, as required in the high-low settlement agreement, the plaintiff filed for a judgment, which was executed by the clerk of the court in the amount of $325,000, plus an additional $48,060 in costs and interests.

The defendant moved to vacate the judgment, arguing that the parties had settled and, the plaintiff failed to tender a general release. The deadline for payment was determined from the time of tender of a release. Rejecting the plaintiff’s characterization of the arrangement as a “mere stipulated modification of the jury’s verdict,” the Second Department found that the parties had entered into a settlement agreement requiring a general release. The court noted that the parties could have opted out of that requirement, but failed to address it in their contract and the judgment filed by the plaintiff was vacated.

The Cunha court specifically held that a high-low agreement that is reached between parties constitutes a settlement of the litigation and must be treated like any other settlement for CPLR purposes, including application of the payment, judgment, and interest provisions of CPLR 5003-a, unless the provisions of the statute are expressly exempted from the stipulated terms of the high-low agreement.

Moreover, the contract must clearly address the treatment of taxed costs, disbursements, collateral source deductions, and pre- and post-judgment interest. A well-crafted control contract will yield a hard number at the close of a trial and obviate the need for further calculation.

Contributory Fault

Where contributory fault is a consideration, a high-low settlement agreement can be a problem. In Batista v. Elite Ambulance Service, Inc.,4 the jury awarded damages within the control contract range, but assigned the plaintiff a 75 percent share of contributory fault. Reduction of the jury award for comparative fault reduced the amount to below the floor of the high-low settlement agreement. The plaintiff sought the unreduced amount of the verdict. The terms of the high-low agreement were silent as to how the issue of comparative fault was to be treated. The appellate court rejected the plaintiff’s argument, holding that the agreement contained no language whereby the defendant waived the defense of comparative fault.5 The court found that the plaintiff was only entitled to the amount of the verdict, even though it was below the floor of the high-low settlement agreement.

Truncating a Trial

Another way the contract can be implemented in a comparative negligence litigation is to have the jury apportion fault against the locked damages. For example, you have a $100,000 policy in an auto negligence action. The high-low is $80,000-$20,000. The jury apportions fault 50 percent to the plaintiff and 50 percent to the defendant. The trial is over, and plaintiff recovers $40,000. Keep in mind that in an auto case, that model can only be used where the serious injury threshold6 is conceded. That model obviates the need to have doctors come in to testify and reduces the trial time by more than 50 percent; in a bifurcated trial, even more.??

Further Considerations

In a multiple defendant litigation all parties must consider the consequences of settlement prior to verdict in light of GOL §15-108(a), which entitles a non-settling tortfeasor to a reduction in damages equal to the greater of: (1) the settling defendant(s)’ equitable share of the damages awarded; (2) the stipulated amount of any settlements; or (3) the amount actually paid by the settling defendant(s).7 A defendant in default will not be entitled to the setoff. Moreover, a settling defendant who has obtained a general release from the plaintiff is free from any claim of contribution by the non-settling defendants under Article 14 of the CPLR.8

Counsel must also address whether there will be disclosure of the agreement to the jury. A non-agreeing litigant may want to show bias of a witness. A defendant in a traumatic brain injury case may seek to use the agreement or the transcript of the allocution of the agreement to establish that the party is exaggerating cognitive deficits. Finally, how the agreement will be affected in the event of a party’s bankruptcy, incapacitation or death (it happens), must be considered.

Conclusion

The concept of the control contract is consistent with the tenet that parties are free to chart the course of their litigation and is an excellent means to create predictability, preserve judicial resources, save clients’ time, and secure a result that is perceived as just by the parties involved in a lawsuit. The key, of course, is making sure that the contract is properly developed so that a meeting of the minds is apparent and that as many contingencies as possible have been addressed. Having accomplished that, the attorneys will have served well their clients and the judicial system.

Joseph D. Nohavicka is a partner at Pardalis & Nohavicka in Astoria.

Endnotes:

1. See In re Eighth Judicial District Asbestos Litigation, 8 N.Y.3d 717 (2007) (“A high-low agreement is a tool commonly used in litigation that guarantees the plaintiff a minimal recovery while concomitantly capping a defendant’s potential exposure” (citing Faley and Alonso, Outside Counsel, “High-Low Agreements: Misunderstood Litigation Technique,” NYLJ, March 27, 1998, at 1, col. 1)).

2. 289 Wis. 2d 750, 712 N.W.2d 40 (Wis. App. 2006).

3. 42 A.D.3d 95 (2d Dept. 2007).

4. 281 A.D.2d 196, 721 N.Y.S.2d 355 (1st Dept. 2001).

5. Batista, 281 A.D.2d at 196.

6. Insurance Law §5102(d).

7. Whalen v. Kawasaki Motors Corp., 92 N.Y.2d 288 (1998).

8. GOL §15-108(b).

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