The defendant cites no decision applying the interpretation it favors. But see Grace v. Buckley, 13 Mass. App. Ct. 1081, 1082 (1982) (consideration for release to be "subtracted from the total of the damages found to have been suffered"). Furthermore, in defining "claim for relief," Mass. R. Civ. P. 8 (a), 365 Mass. 749 (1974), explicitly distinguishes between the "claim" and the "demand for judgment."
Such an inchoate right is releasable. See, e.g., Rakowski v. Lucente, 120 Ill. App.3d 715, 76 Ill.Dec. 293, 458 N.E.2d 947 (1983); Norton v. Benjamin, 220 A.2d 248 (Me. 1966); Grace v. Buckley, 13 Mass. App. 1081, 435 N.E.2d 655 (1982); Stutz v. Campbell, 602 S.W.2d 874 (Mo. Ct. App. 1980); Claunch v. Bennett, 395 S.W.2d 719 (Tex.Civ.App. 1965). For the above reasons, the plaintiff's appeal is denied and dismissed.
While this provision may well stimulate an undesirable "race to the courthouse," in order to control the litigation see Locke, Workmen's Compensation § 669 (2d ed. 1981), it is nonetheless the law, and in this case, Coyle had won that race. Second, Cliff was not entitled to seek contribution from the city on the consortium claims once the plaintiffs had dismissed their consortium claims against the city with prejudice. G.L.c. 231B, § 4( b). Assuming this stipulation to have been in good faith — as we must, given the circumstance of its having been filed with the approval of the trial judge — the effect of that stipulation was to deprive Cliff of any right of contribution. Ibid. Grace v. Buckley, 13 Mass. App. Ct. 1081 (1982). Thus the city should have been, but was not, dismissed as a party to the proceedings prior to trial (but preserving its rights to be heard in the event of a proposed settlement — see G.L.c. 152, § 15), thereby disposing of the cross claims between the city and Cliff. The end result was that Cliff prosecuted its claims for contribution against the city and defended the city's claim against it — thereby contributing substantially to the jury's confusion.
However, G.L.c. 231B, § 4, applies only to tortfeasors jointly and severally liable. See, e.g., Scannell v. Ed. Ferreirinha Irmao, Lda., 401 Mass. 155, 165 (1987); Grace v. Buckley, 13 Mass. App. Ct. 1081, 1082 (1982). As neither the union nor the MBTA participated in the other's breach, see Bowen, supra at 223 n. 11; Vaca v. Sipes, 386 U.S. 171, 197 (1967); and Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th Cir. 1983), Reilly's reliance on G.L.c. 231B, § 4, is misplaced.
Even where a claimant receives nothing in exchange for releasing a defendant, the statute may preclude a claim by a codefendant for contribution. See Grace v. Buckley, 13 Mass. App. Ct. 1081, 1082 (1982). A rule whereby a determination of lack of good faith could be based only on the amount of a settlement would "require trial courts to apply an unworkable standard to every settlement.
Although Quinn points to the nominal consideration for the release as evidence of a lack of good faith, the amount of the consideration is not material in determining lack of good faith. Noye, 28 Mass.App.Ct. at 190, citing Grace v. Buckley, 13 Mass.App.Ct. 1081, 1082 (1982) (stating that the statute may preclude a claim for contribution even where a claimant receives nothing in exchange for releasing a defendant). Further, no inference of collusion arises merely from the fact the Brooks and Sundelin have a longstanding relationship.
(Citations omitted.) Grace v. Buckley, 13 Mass.App.Ct. 1081, 435 N.E.2d 655, 657 (1982). The amount paid by Smith — $450,000 — is a setoff on the judgment here entered against EJM.
Mass. R. Civ. P., Rule 41(a)(1). See generally, Grace v.Buckley, 13 Mass. App. Ct. 1081, 1082 (1982). Apart from that infirmity in the Stipulation, there was not, and would not be, any separate and final judgment of dismissal as to FMC unless and until the court issued an order pursuant to Mass. R. Civ. P, Rule 54(b).