Section 408. Compromise and Offers to Compromise in Civil Cases

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations regarding the claim is likewise not admissible. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias, prejudice, or state of mind of a witness; rebutting a contention of undue delay; or proving an effort to obstruct a criminal investigation or prosecution.

NOTE

This section is taken nearly verbatim from Proposed Mass. R. Evid. 408, which was adopted in principle in Morea v. Cosco, Inc., 422 Mass. 601, 603–604, 664 N.E.2d 822, 824 (1996). But see Zucco v. Kane, 439 Mass. 503, 510, 789 N.E.2d 115, 120 (2003) (“even if we were to adopt the segment of [Proposed Mass. R. Evid. 408] pertaining to statements made during negotiations . . .”). “This rule is founded in policy, that there may be no discouragement to amicable adjustment of disputes, by a fear, that if not completed, the party amicably disposed may be injured” (quotation and citation omitted). Strauss v. Skurnik, 227 Mass. 173, 175, 116 N.E. 404, 404 (1917).

Evidence that a defendant compromised or offered to compromise a claim arising from the same transaction with a third person not a party to the action is not admissible to prove the defendant’s liability to the plaintiff. Murray v. Foster, 343 Mass. 655, 659–660, 180 N.E.2d 311, 313–314 (1962); Ricciutti v. Sylvania Elec. Prods., Inc., 343 Mass. 347, 349, 178 N.E.2d 857, 859 (1961). In mitigation of damages, however, a defendant is entitled to the admission of evidence of a settlement amount between the plaintiff and a joint tortfeasor on account of the same injury, but such evidence is for the judge only and not the jury to consider. See Morea v. Cosco, Inc., 422 Mass. at 602–603, 664 N.E.2d at 824.

Evidence of a compromise or offer to compromise may be admitted (with limiting instructions) for a purpose other than to prove liability or the invalidity of the claim, such as to impeach the credibility of a witness. See Zucco v. Kane, 439 Mass. at 509–510, 789 N.E.2d at 120–121; Cottam v. CVS Pharmacy, 436 Mass. 316, 327–328, 764 N.E.2d 814, 824 (2002). For example, in an employment discrimination case, statements contained in settlement correspondence were properly admitted as probative of the employer’s state of mind. Dahms v. Cognex Corp., 455 Mass. 190, 199, 914 N.E.2d 872, 880 (2009).

There can be no offer to compromise a claim unless there is indication that there is a potential lawsuit. See Hurwitz v. Bocian, 41 Mass. App. Ct. 365, 372–373, 670 N.E.2d 408, 413 (1996). Whether a particular conversation constitutes a settlement offer or admission may require the resolution of conflicting testimony and is a preliminary question for the trial judge. Marchand v. Murray, 27 Mass. App. Ct. 611, 615, 541 N.E.2d 371, 374 (1989). See Section 104(a), Preliminary Questions: Determinations Made by the Court. A unilateral statement that a party will “take care of” a loss will be treated as an admission of liability, not an offer to compromise. See, e.g., Cassidy v. Hollingsworth, 324 Mass. 424, 425–426, 86 N.E.2d 663, 663–664 (1949) (defendant’s statement made after accident that “I guess I owe you a fender” held to be admission of liability); Bernasconi v. Bassi, 261 Mass. 26, 28, 158 N.E. 341, 342 (1927) (defendant’s statement “I fix it up, everything,” held to be admission of liability); Dennison v. Swerdlove, 250 Mass. 507, 508–509, 146 N.E. 27, 27 (1925) (defendant’s statement immediately after automobile accident that he would “adjust the damage to your car” was an admission of fault). An expression of sympathy does not qualify as either an offer to compromise or an admission of liability. See Section 409, Expressions of Sympathy in Civil Cases; Payment of Medical and Similar Expenses.

Admissions made on the face of settlement documents are admissible. Zucco v. Kane, 439 Mass. at 510–511, 789 N.E.2d at 120–121. Where, however, the parties “understood at [the time of the negotiations] that what was said at that time was said without prejudice to either party,” admissions of fact will not be admissible at trial (quotation omitted). Garber v. Levine, 250 Mass. 485, 490, 146 N.E. 21, 22–23 (1925). However, evidence of conduct or statements made during such negotiations on collateral matters are admissible for their truth. See Wagman v. Ziskind, 234 Mass. 509, 510–511, 125 N.E. 633, 634 (1920); Harrington v. Lincoln, 70 Mass. 563, 567 (1855); Dickinson v. Dickinson, 50 Mass. 471, 474–475 (1845). Cf. G. L. c. 233, § 23D (admissibility of benevolent statements, writings, or gestures relating to accident victims); Section 514, Mediation Privilege (under G. L. c. 233, § 23C, any communication made in course of mediation proceedings and in presence of mediator are not admissible, except where mediating labor disputes).

Cross-Reference: Section 403, Grounds for Excluding Relevant Evidence.