Deck 22: Settlements, Releases, and Dismissals

Question 1

Define
high-low release

Answer 1

An agreement between parties to settle their dispute by payment and accep- tance of a sum of money within an agreed range, but they leave to the court or tribunal the decision for making an award of money damages.

Question 2

Define
consent judgment

Answer 2

A stipulation to terms and conditions of a judgment by parties to a civil lawsuit which one of the parties may have entered against the other.

Question 3

Define
covenant not to sue

Answer 3

A type of settlement agreement in which the plaintiff agrees not to commence an action or maintain an action against the defendant but does not release the defendant from his or her liability for the occurrence.

Question 4

Settlement negotiations in a wrongful death action must be prosecuted by a person appointed by the court for the benefit of the next of kin. The person is called a:

A) guardian.
B) custodian.
C) conservator.
D) trustee.

Question 5

The settling defendant who obtains a full and final release may bring an action against any joint tortfeasor who has concurrent liability to the claimant.

Question 6

The Statute of Frauds requires that all settlement agreements be in writing.

Question 7

The termination of a lawsuit by the court before a judgment is entered is called:

A) declaratory judgment.
B) summary judgment.
C) dismissal.
D) release.
E) settlement.

Question 8

Information and statements that come out as part of settlement negotiations, the substance of which would ordinarily be subject to discovery procedures, are not protected from use at trial.

Question 9

Define
confession of judgment

Question 10

The court would enter an order dismissing the plaintiff's case in each of the following instances, except which?

A) if the defendant were to prevail on any of the motions authorized by Rule 12.
B) if the plaintiff's motion for summary judgment were denied.
C) if the plaintiff fails to comply with a valid court order, such as an order to permit discovery pursuant to Rule 37.
D) if the plaintiff has been dilatory in prosecuting the action.
E) if the plaintiff's evidence fails to prove a prima facie case of liability against the defendant.

Question 11

An offer of judgment cannot be made unless a civil action has already been commenced and a settlement demand has been made.

Question 12

A covenant not to sue is the same as a release.

Question 13

Any tortfeasor who did not pay his or her fair share for the release is liable to the party who bought the full and final release for:

A) damages.
B) contribution.
C) settlement.
D) consideration.

Question 14

An agreement between two litigants to mutually release each other from any and all liability is not a valid agreement since no "consideration" is given to the other.

Question 15

A release cannot be enforced like a contract.

Question 16

Which of the following would constitute an act of duress which would provide grounds for avoiding a settlement agreement?

A) a party's desperate need for money.
B) a party's compelling desire to end the dispute.
C) a party threatens to inflict personal injury or property damage.
D) another party's threat to end settlement negotiations.

Question 17

All courts have held that all Mary Carter agreements are illegal.

Question 18

Define
general release

Question 19

Parents are not permitted to settle a child's claim without court approval.

Question 20

Define
offer of judgment

Question 21

What is the effect of a dismissal without prejudice?

Question 22

Briefly describe the nature of structure settlements.

Question 23

If the parties' stipulation for a voluntary dismissal fails to state whether the dismissal is with prejudice, what effect will a court give to the dismissal?

Question 24

When might a court dismiss an action without the plaintiff 's consent?

Question 25

What is the principal benefit to a tortfeasor in agreeing to allow the claimant to take a consent judgment against the tortfeasor?

Question 26

What consequence should a claimant consider before giving a partial release to one of two or more joint tortfeasors?

Question 27

If a person pays a consideration to a claimant for the claimant's covenant not to sue, what exposure does the settling person continue to have?

Question 28

What condition is required to use a stipulated consent judgment against a liability insurer?

Question 29

If a suit is dismissed, may the plaintiff bring the same lawsuit again? Explain.

Question 30

How does a covenant not to sue differ from a release?