Abbott Ford, Inc. v. Superior Court

In Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, the Supreme Court of California held that "neither section 877 nor section 877.6 exempts sliding scale agreements from its 'good faith' requirement," and Tech-Bilt's good faith standards apply to sliding scale agreements. (Abbott Ford, supra, 43 Cal.3d at pp. 875, 886.) The Abbott Ford court also held that to satisfy the statutory objective of a fair apportionment of loss, "the 'consideration' paid by a defendant who enters into a sliding scale agreement must fall within the Tech-Bilt 'ballpark,'" and "the plaintiff's claims against the nonsettling defendants must be reduced by the amount of the 'consideration paid' by the settling defendant." (Abbott Ford, supra, at p. 886.) The Abbott Ford court explained that because a settling defendant "pays" some "consideration" upon entering into a sliding scale agreement, "it is both proper and necessary for a trial court to assess the accuracy of the parties' valuation of consideration in determining whether the settlement is in good faith so as to relieve the settling defendant of liability for comparative indemnification or contribution." (Abbott Ford, supra, at p. 877, fn. 21.) Due to the contingent nature of a sliding scale obligation, "one of the principal difficulties in this area has been the attempt to arrive at an accurate evaluation of the 'price' or 'consideration' . . . paid by a settling defendant" who enters into such an agreement. (Id. at p. 878.) The "cost" or "price" of a sliding scale agreement, the high court noted, "is not equal to the maximum amount that the guarantor may possibly be required to pay under the agreement." (Id. at pp. 878-879.) In Abbott Ford, the Supreme Court further explained: "Section 877 establishes that a good faith settlement bars other defendants from seeking contribution from the settling defendant ( 877, subd. (b)), but at the same time provides that the plaintiff's claims against the other defendants are to be reduced by 'the amount of consideration paid for' the settlement ( 877, subd. (a)). Thus, while a good faith settlement cuts off the right of other defendants to seek contribution or comparative indemnity from the settling defendant, the nonsettling defendants obtain in return a reduction in their ultimate liability to the plaintiff." (Abbott Ford, supra, 43 Cal.3d at p. 873.) The Abbott Ford court held that the parties to the sliding scale agreement bear the initial burden of establishing the monetary value of the sliding scale agreement because they are "in the best position" to do so. (Abbott Ford, supra, 43 Cal.3d at p. 879.) The high court reasoned that requiring a joint valuation by the plaintiff and the settling defendant should generally produce a reasonable valuation because they are likely to have somewhat different and somewhat conflicting interests in placing a value on the agreement. The Supreme Court also explained: "The plaintiff would prefer the value to be on the low side to reduce the amount that its claims against other defendants will be reduced; the settling defendant will want the value to be high enough to assure that the agreement is found to be within its Tech-Bilt 'ballpark' so as to relieve it of liability for comparative indemnity or contribution." (Ibid.) Once the settling parties have declared the settlement agreement's value, the burden shifts to the nonsettling defendants to either: "(1) accept that value and attempt to show the settlement is not in good faith because the assigned value is not within the settling defendant's Tech-Bilt 'ballpark'; or; (2) . . . attempt to prove that the parties' assigned value is too low and that a greater reduction in the plaintiff's claims against the nonsettling defendants is actually warranted." (Abbott Ford, supra, 43 Cal.3d at p. 879.)