If you defend a case with multiple tortfeasors in Missouri, a co-defendant’s settlement doesn’t just change the settlement posture; it can change the math on any eventual verdict. Under Missouri law, a non‑settling defendant is entitled to reduce (set off) a judgment by the consideration paid by a settling party. The challenge for claims professionals and defense counsel is obtaining the amount of that settlement when the plaintiff invokes confidentiality, work product, or privilege.
This article distills the core Missouri rules on setoffs and offers a step‑by‑step playbook, forms, timing, and practical tactics to surface settlement amounts pre‑verdict so you can evaluate exposure accurately, drive sensible settlements, and protect the record.
Black‑Letter Law (Missouri)
- Statute: Mo. Rev. Stat. § 537.060 provides that a plaintiff’s claim against non‑settling defendants is reduced by the greater of (1) the amount stated in the release/settlement, or (2) the consideration actually paid.
- Pleading/Proof: Setoff is an affirmative defense. The defendant bears the burden to plead and to prove both the existence and the amount of any settlement.
- Discovery Access: Missouri courts recognize that the amount and terms of a co‑defendant’s settlement are discoverable where necessary to prove setoff, notwithstanding confidentiality or work‑product objections where the information has been shared with an insurer or third party and is not core attorney mental impressions.
Key Missouri Cases at a Glance
- Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012): Set-off must be pleaded; defendants must prove existence and amount. The court reversed the refusal to allow discovery into the settlement necessary to establish setoff.
- Hill v. Wallach, 661 S.W.3d 786 (Mo. banc 2023): Settlement documents/amounts discoverable over work‑product objections where shared with an insurer; confidentiality provisions cannot defeat a statutory right to setoff proof.
Often, defendants are left wondering the amounts of a set-off when other settling parties exit the case, and the plaintiff claims confidentiality in the settlement documents and amounts. They will often say, “You can have your set-off; we will consent, we will just give you the amounts of the other settlements after the verdict.” This unfairly forces the remaining defendants to speculate about the amount of the set-off, which prejudices the ability to fairly evaluate and resolve the case, and gives all the unnecessary leverage to the plaintiff’s lawyers to obfuscate and conceal information that is rightfully shared with the lawyers. The only reason to conceal the information is to further leverage the remaining defendants to settle.
That said, what strategies can defense lawyers employ to try and obtain this information if the other side claims privilege?
Start at the Pleadings: Preserve the Right and Set the Table
In your multi-party case, begin day one by pleading setoff as a stand‑alone affirmative defense in your Answer. Doing so anchors the issue, signals your intention to pursue the statutory credit, and avoids any waiver argument. A clear formulation works best, e.g., “Defendant pleads setoff under § 537.060, RSMo, and is entitled to a reduction of any judgment by the greater of the consideration paid or the amount stated in any settlement/release by other parties concerning the same occurrence or injury.” If you learn of a settlement later, amend promptly. The theme is simple: make setoff a live issue from the start and keep it live.
Aim Early Discovery at the Number You Need
Do not wait for pretrial. Serve targeted discovery early, focused on the existence and amount of any settlements. Use interrogatories to pin down the basics: who settled, when, which claims were released, and what consideration was paid, including cash, structured sums, loan receipts, indemnity, and covenants not to execute. Pair those with document requests for the settlement agreement, side letters, lien or resolution paperwork, proof of payment, and any correspondence that memorializes consideration. Close the loop with requests for admission that establish the fact of settlement, the date, the settling party, and that it relates to the same injury or occurrence. The goal is a clean record that proves both existence and amount.
Expect Objections and Defuse Them Up Front
You will encounter confidentiality and work‑product assertions. Meet them with a narrow protective order: designate the settlement amount “attorneys’ eyes only” and permit redaction of non‑essential terms. On privilege and work product, frame the amount paid as a necessary fact for a statutory credit, not core opinion work product, particularly where the number has been shared with an insurer or third party. If relevance or timing is challenged, point to your burden at trial to prove setoff, and to the real‑time impact the number has on valuation, verdict form preparation, and efficient resolution.
Go Outside the Parties When You Must
If the plaintiff resists, use third‑party discovery. Subpoena the settling co‑defendant or its carrier/TPA for the amount paid and proof of payment. Where speed and simplicity help, ask for declarations or affidavits authenticating consideration so the issue can be resolved without unnecessary motion practice at trial.
Move Early to Compel and Build an Appealable Record
If discovery stalls, move to compel well before trial. Offer practical guardrails, an in-camera review, and a protective order. Attach the pleadings showing setoff is at issue, reproduce your tailored requests, and offer reasonable redactions. Ask the court to set a pretrial procedure for calculating the credit, whether by pre‑verdict stipulation or a brief post‑verdict hearing. Even if you do not get the number immediately, you will have a clean record that preserves the issue.
Plan the Paper: Motions to Amend Judgments, and Error Preservation
Do not wait until the instruction conference to think about forms. Request a motion to modify the verdict and judgment framework that either incorporates the court’s calculation of the § 537.060 credit or expressly provides for a post‑verdict setoff hearing. If the court denies discovery, proffer the settlement documents you sought and the dollar figure you expect to prove. That proffer preserves the issue for review and keeps pressure on for a sound ruling before judgment is entered.
Valuation Notes for Claims Professionals
Model exposure has two ways from the outset: a gross verdict range and a net‑of‑setoff range. Use the statutory credit as a framing tool in mediation to reset net‑recovery expectations and narrow the negotiation band. Adjust reserves when a settlement is confirmed and the amount authenticated, and document your basis in the claim file. Finally, keep carrier correspondence that reflects disclosure of settlement amounts; those records often undercut later claims that the number is protected work product.
Bottom line: treat the settlement number like any other essential proof. Plead it, target it, pursue it, and, where you can, lock it in before a jury is sworn. Doing so improves valuation accuracy, sharpens negotiation strategy, and protects the record.
By: Tiwa Adedibu and William Thomas