Arbitration & Mediation

Mary Carter Agreement Not Found With Settling Defendant Who Remained in Case As Cross-Defendant

By Christopher B. Hopkins, Esq.

"Mary Carter Agreements" have been banned in Florida since 1993 yet the question of the existence of one recently arose in the Fourth District's La Costa Beach Club Resort Condominium Association Inc v. Aphonso Carioti, Donald Wendt, Ingeborg Wendt, Kenny Wendt, Clarke Warne, and Marcille Garber (Ciklin, Gross and May).

During the course of the lawsuit, plaintiff sued defendants who turn around and filed various cross, counter, and third party claims. Plaintiff settled with one defendant, where the terms included dismissal against the one defendant, payment, a general release with confidentiality, and the defendant making himself available for trial. It was clear that all parties and the court knew of the settlement. That settling defendant, however, was still a party as a cross-defendant.

The Panel concluded this was not a Mary Carter Agreement since the element of "secrecy" did not exist. "Secrecy is the essence of such an arrangement," opined the court, which acknowledged that the other elements did exist.

Full post as published by Florida Arbitration Law on April 15, 2010 (boomark / email).