In the recent Florida Supreme Court case of Salee-
by v. Rocky Elson Construction, Inc., 3 So. 3d
1078 (Fla. 2009), the Plaintiff was injured when
roof trusses on the construction site he was working at
collapsed on him. He filed a negligence action against
Rocky Elson Construction Company (“Elson”), which
was the construction company that installed the truss-
es, and A-1 Roof Trusses Ltd. (“A-1”), the company
that manufactured them.
Prior to trial, the Plaintiff’s attorney deposed A-1’s
President regarding the cause of the collapse. Subse-
quently, the Plaintiff settled with A-1 and dismissed
A-1 from the lawsuit. The trial then went forward
against Elson.
During the trial, the President of A-1 was again
called as a witness. His testimony was damaging to
the defense of Elson.
During cross examination, Elson’s attorney attempt-
ed to impeach the A-1 President with evidence that
A-1 had previously been a party to the lawsuit and had
settled with the Plaintiff. The trial court allowed this
testimony to be admitted before the jury. The Fifth
District Court of Appeals affirmed.
The Florida Supreme Court reversed. During its
analysis, it discussed how there are two Florida Stat-
utes specifically addressing the issue of evidence of
settlement to the jury. Florida Statute Section 768.041
addresses the ramifications of the signing of a release
for a convenant not to sue. Specifically, subsection
3 of this statute states as follows: “The fact of such a
release or covenant not to sue, or that any defendant
has been dismissed by Order of the Court shall not be
made known to the jury.”
The Florida Supreme Court further cited Florida
Statute Section 90.408, which states as follows: “Evi-
dence of an offer to compromise a claim which was
disputed as to validity or amount, as well as any rel-
evant comments or statements made in negotiations
concerning a compromise, is inadmissible to prove
liability or absence of liability for the claim or its val-
ue.”
The Florida Supreme Court indi