222.Evidence of Sliding-Scale Settlement
You have heard evidence that there was a settlement agreement between
[name of settling defendant] and [name of plaintiff].
Under this agreement, the amount of money that [name of settling
defendant] will have to pay to [name of plaintiff] will depend on the
amount of money that [name of plaintiff] receives from [name of
nonsettling defendant] at trial. The more money that [name of plaintiff]
might receive from [name of nonsettling defendant], the less that [name of
settling defendant] will have to pay under the agreement.
You may consider evidence of the settlement only to decide whether
[name of settling defendant/name of witness] [, who testiﬁed on behalf of
[name of settling defendant],] is biased or prejudiced and whether [his/
her] testimony is believable.
New April 2007; Revised June 2016
Directions for Use
Use this instruction for cases involving sliding scale or “Mary Carter” settlement
agreements if a party who settled appears at trial as a witness. A “Mary Carter”
agreement calls for the settling defendant to participate in the trial on the plaintiff’s
behalf, and provides for a settling defendant to be credited for amounts the plaintiff
recovers from nonsettling defendants. It is secret and raises concerns of collusion
and the potential for fraud. The interests of the parties are realigned in a manner
not apparent to the trier of fact. (Diamond v. Reshko (2015) 239 Cal.App.4th 828,
843, fn. 7 [191 Cal.Rptr.3d 438].)
The court must give this instruction on the motion of any party unless it ﬁnds that
disclosure will create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury. (Code Civ. Proc., § 877.5(a)(2).)
If the settling defendant is an entity, insert the name of the witness who testiﬁed on
behalf of the entity and include the bracketed language in the third paragraph.
See CACI No. 217, Evidence of Settlement. See also CACI No. 3926, Settlement
Sources and Authority
• Evidence of Settlement. Code of Civil Procedure section 877.5(a)(2).
•“[W]hen a defendant is a party to a sliding scale settlement, which is also
called a ‘Mary Carter’ agreement, that agreement must be disclosed to the jury
if the settling defendant testiﬁes at trial, unless the court ﬁnds that the
disclosure will create a substantial danger of undue prejudice.” (Diamond,
supra, 239 Cal.App.4th at p. 843.)