Settling With One Defendant in Virginia? What It Does to Your Case Against the Others
The most serious injury cases rarely have just one defendant. A tractor-trailer crash can involve the driver, the trucking company, and a second motorist who cut across lanes. A surgical injury can involve the surgeon, the practice, the hospital, and the doctor who handled the complication afterward. A death on a construction site can involve a general contractor and several subcontractors.
In cases like these, it is common for one defendant, or that defendant's insurer, to offer to settle before the others are ready to. That offer can be good news. But in Virginia, accepting it changes the math on everything that happens afterward, and a recent ruling from the Court of Appeals of Virginia shows how dramatically.
The rule: settling with one does not release the others, but it does reduce what they owe
Virginia Code § 8.01-35.1 governs what happens when you give a release (or a promise not to sue) to one of two or more people liable for the same injury or the same wrongful death. It does three things.
First, the release does not discharge the other defendants "unless its terms so provide." You can settle with the trucking company's co-defendant and keep going against the trucking company.
Second, whatever you later recover from the remaining defendants is reduced by the settlement. The reduction is the amount stated in the release or the amount actually paid for it, "whichever is the greater."
Third, the settling defendant is released from any claim for contribution by the others. Once it has settled with you, the defendants still in the case cannot drag it back in to share the bill.
Virginia also lets you pursue joint wrongdoers one after another. Under § 8.01-443, a judgment against one does not bar you from proceeding against the others until the judgment has been satisfied. What the law will not allow is collecting full compensation twice for the same harm.
A 2026 ruling shows the credit can erase a verdict entirely
In Gerber v. James C. Justice Companies, Inc., No. 0871-25-2 (Va. Ct. App. Sept. 8, 2026) (unpublished), the plaintiff settled with one defendant shortly before trial, then won a jury verdict against the remaining defendant. After trial, the court applied § 8.01-35.1 and reduced the verdict to zero, because the earlier settlement was larger than what the jury awarded. The Court of Appeals affirmed.
The plaintiff argued the two defendants had caused different injuries, because one was sued in contract and the other in tort, and because their conduct happened at different times. The court rejected both points. What matters, it held, is the injury itself: when two defendants' conduct produced the same loss, they "caused the same injury, regardless of cause of action or timing." The court also held the trial judge was not required to split the settlement among different claims once it found there was only one injury.
Gerber was a business dispute, not an injury case, and it is not a published, binding precedent. But the statute it applied is the same one that governs every Virginia personal injury and wrongful death settlement, and its lesson carries over directly: a settlement with one defendant is subtracted from what you can collect from the rest.
What this means if you were seriously hurt
A good early settlement can still be the right call. A settling defendant's money is certain; a verdict against the others is not. Taking guaranteed compensation from one defendant, while keeping your claim alive against the rest, is often exactly the right move.
But the value of the whole case has to be weighed before you sign. Because the settlement comes off the top of any later verdict, a settlement that looks generous on its own may leave little to gain from a trial against the remaining defendants. That trade-off should be evaluated against a realistic view of what the full case is worth, not just the number on the table.
Read the release as carefully as the check. The statute protects your claims against the others only "unless its terms so provide." Some release forms are written to release every other person or company connected to the incident. Signing that kind of language can end your case against every defendant, including the ones who have not paid you anything.
Wrongful death and minors' settlements go through the court. § 8.01-35.1 is expressly subject to Virginia's court-approval statutes. A personal representative may compromise a wrongful death claim only with court approval under § 8.01-55, and a court can approve a settlement on behalf of an injured child or another person under a disability under § 8.01-424. Who ultimately shares in a wrongful death recovery is a separate question, which we cover in our post on Virginia wrongful death beneficiaries.
Not every payment counts as a settlement credit. The reduction applies to payments from people "liable for the same injury." Your own underinsured motorist coverage is different; the Supreme Court of Virginia has held that a defendant does not get credit for it, as we explain in our post on Llewellyn v. White.
Remember contributory negligence. In Virginia, a plaintiff found even slightly at fault can lose the claim altogether, which is one more reason a certain settlement from one defendant can be worth more than it looks. Our primer on contributory negligence in D.C., Maryland, and Virginia explains the rule.
How D.C., Maryland, and Virginia compare
| Virginia | Maryland | District of Columbia | |
|---|---|---|---|
| Does settling with one defendant release the others? | No, unless the release says so (Va. Code § 8.01-35.1) | No, unless the release says so (Md. Code, Cts. & Jud. Proc. § 3-1404) | Governed by court decisions rather than a statute; read the release terms closely |
| How the settlement is credited against a later verdict | Reduced by the amount stated in the release or the amount paid, whichever is greater | Reduced by the amount paid, or by any greater amount or proportion the release specifies | Dollar-for-dollar credit, unless the settling party is established as a joint tortfeasor by adjudication or stipulation, in which case the credit is its proportionate share (Paul v. Bier, 758 A.2d 40 (D.C. 2000)) |
| Can being partly at fault defeat the claim? | Yes. Contributory negligence | Yes. Contributory negligence | Yes. Contributory negligence, with a narrow statutory exception for pedestrians, cyclists, and other vulnerable users in motor vehicle collisions |
Talk to a Virginia injury lawyer
If you or someone you love was seriously injured or killed and more than one person or company may be responsible, the order and terms of any settlement can matter as much as the amount. Before you accept an offer from any one defendant, it is worth understanding what that decision will do to the rest of your case.
Posey Lebowitz PLLC handles serious injury and wrongful death cases in Virginia, Maryland, and D.C. Call us at (202) 524-0123 or use our contact form for a free consultation.
This article is general information, not legal advice about your case.
