You win your case against two defendants, a jury divides the fault between them, and then you learn the hard truth of collection: one of them is bankrupt, uninsured, and has nothing. Does that missing share come out of your recovery, or does the other, solvent defendant have to cover the whole judgment? In Massachusetts, the answer usually protects you. Under joint and several liability, each defendant found responsible for your injury can be held liable for the entire judgment — so when one cannot pay, the loss generally falls on the other defendants, not on the injured person who did nothing wrong. It is one of the rules that separates a judgment worth having from one that merely looks good on paper.
That rule matters enormously, because it decides who bears the risk of an empty-pocket defendant. The defense would prefer a world in which each defendant pays only its own percentage and you simply lose whatever share belongs to the insolvent one. Massachusetts has not adopted that approach for jointly liable tortfeasors. Instead, the wrongdoers who caused your harm are collectively on the hook for the whole of it, and the law gives them a mechanism — contribution — to sort out their shares among themselves afterward, without making that their victim’s problem. The injured person is meant to be paid first and in full, with the wrongdoers’ internal accounting left for later.
What follows is how joint and several liability works in Massachusetts: who pays when one defendant is bankrupt or uninsured, how contribution and indemnity work between defendants, and how a prior settlement affects the ones who remain. This is general information, not advice about a specific case. Because these rules operate alongside the way fault is compared, our discussion of comparative fault aggregation is a useful companion. The two doctrines answer different questions but frequently show up in the same multi-defendant case.
Who pays when one defendant cannot?
The starting point is understanding what it means for defendants to be jointly and severally liable, and why that allocation of risk favors the injured person.
What joint and several liability means
When two or more parties are jointly and severally liable for the same injury, each of them is responsible for the entire judgment, and the injured person can collect the full amount from any one of them. The jury may assign the defendants percentages of fault, but those percentages primarily govern how the defendants sort matters out among themselves — they do not limit what the plaintiff can collect from any single liable defendant. If a defendant is found liable at all, it can be required to pay the whole judgment, leaving it to pursue the others for their shares. This is a foundational feature of Massachusetts tort law, and it is what makes a judgment actually collectible when the defendants’ ability to pay is uneven. A verdict is only as good as the defendant standing behind it, and this rule puts a solvent defendant behind the whole of it. It is easy to overlook until the moment collection begins, and then it becomes everything.
The solvent defendants bear the shortfall
The practical consequence is that when one defendant cannot pay — because it is bankrupt, uninsured, or simply judgment-proof — the shortfall generally falls on the remaining, solvent defendants rather than on the injured person. Because each liable defendant is answerable for the whole, the plaintiff can collect the full judgment from a solvent defendant, and that defendant then absorbs the loss of not being able to recover the insolvent party’s share through contribution. The plaintiff never has to chase the party with nothing; that unhappy task belongs to the co-defendant. The risk of an empty-pocket co-defendant, in other words, is placed on the defendants who caused the harm together, not on the victim. That allocation is the whole point of the rule. Someone has to bear the risk that a wrongdoer cannot pay, and the law places it on the other wrongdoers rather than the victim.
Why this protects the injured person
Joint and several liability exists because, as between an innocent injured person and the wrongdoers who hurt them, the wrongdoers should bear the risk that one of their number cannot pay. It would be deeply unfair to make a blameless plaintiff eat the missing share simply because one defendant happened to be insolvent, when other responsible parties are able to pay. The victim did nothing to choose their defendants’ finances, and the law does not punish them for it. The rule ensures that a person whose injury was caused by several careless parties is not left under-compensated by the accident of which defendant has money. It keeps the focus where it belongs: the full harm gets paid by those responsible for it, and they can argue about their internal shares later. That argument happens on the defense side of the case and never reduces what the injured person is owed.
One defendant is bankrupt or uninsured
The clearest illustration of the rule is the case where one responsible party has nothing to give and another does.
Collecting the whole from any liable defendant
Because each jointly liable defendant answers for the entire judgment, an injured person facing an insolvent defendant can turn to a solvent co-defendant for the full amount. The plaintiff is not limited to collecting each defendant’s percentage from that defendant alone; a defendant found liable can be required to satisfy the whole judgment. So if one of two liable defendants is bankrupt, the plaintiff may recover the entire award from the other. The bankruptcy of one wrongdoer does not shrink the judgment; it just changes who writes the check. This is what gives a favorable verdict real value even when the fault is split and one wrongdoer cannot pay — the collectible defendant stands behind the whole judgment. Without joint and several liability, an insolvent co-defendant would simply erase part of the recovery.
The risk falls on the defendants, not the victim
The defense in these situations argues that each defendant should pay only its own share, so the plaintiff should simply absorb the insolvent party’s percentage. Massachusetts’s joint and several liability rejects that as between the wrongdoers and the victim. The solvent defendant that pays more than its share is not without recourse — it can seek contribution from the others — but the difficulty of collecting from an insolvent co-defendant is the solvent defendant’s problem to manage, not a reason to shortchange the injured person. Shifting that difficulty onto the victim would turn the rule on its head. Placing that collection risk on the defendants is exactly how the rule is designed to work, and it reflects a judgment about who should bear the consequences of a co-wrongdoer’s inability to pay. Between a blameless plaintiff and a group of wrongdoers, the law does not hesitate about where that burden belongs.
Comparative negligence still applies
Joint and several liability governs how a judgment is collected among defendants; it does not erase the plaintiff’s own comparative fault. Under Massachusetts General Laws chapter 231, section 85, the plaintiff’s recovery is first reduced by their own share of the fault, and barred entirely if they are more than half responsible. What remains after that reduction is the judgment the defendants are jointly and severally liable for. So the two doctrines work in sequence: comparative negligence sets the size of the plaintiff’s recovery, and joint and several liability determines that any liable defendant can be made to pay the whole of that amount. Keeping the two straight is important to understanding what an injured person can actually collect. First the reduction for the plaintiff’s own share, then full collectibility of the remainder from any liable defendant.
Contribution and indemnity between defendants
Once a defendant pays more than its fair share, the law gives it tools to recover from the others — tools that operate on the defense side of the case and are generally none of the plaintiff’s concern.
The right of contribution
Under Massachusetts General Laws chapter 231B, section 1, where two or more people are jointly liable in tort for the same injury, there is a right of contribution among them. A defendant that pays more than its pro rata share of the common liability can recover the excess from the other tortfeasors, and no tortfeasor can be forced to contribute beyond its own share. This contribution statute is the mechanism that lets the defendants square up after one of them has paid the plaintiff. It turns what could be a windfall or a wipeout into an orderly division of the burden by fault. It is a claim among the wrongdoers themselves, resolved separately from the plaintiff’s recovery, and it is how the ultimate burden gets distributed according to fault once the injured person has been paid. The statute lets the wrongdoers even things out among themselves without ever involving the plaintiff.
Indemnity as a separate remedy
Distinct from contribution is indemnity, which shifts the entire loss from one party to another rather than dividing it by shares. Indemnity can arise where one party’s liability is purely derivative or where a contract or special relationship makes another party ultimately responsible — for example, where one defendant is liable only because of another’s conduct. The contribution statute expressly preserves existing rights of indemnity, and where indemnity applies, the party entitled to it seeks full reimbursement, not a proportional share. Like contribution, indemnity is a matter among the defendants, an allocation of the ultimate burden that does not reduce what the injured person collects. Whether the defendants use contribution or indemnity, the plaintiff’s recovery stays the same.
Not the plaintiff’s problem
The essential point for an injured person is that contribution and indemnity are the defendants’ business, not theirs. The plaintiff collects the judgment from a liable defendant; how that defendant then recovers from the others through contribution or indemnity is a separate fight that does not diminish the plaintiff’s recovery or delay it while the defendants sort themselves out. This separation is deliberate. It ensures the injured person is made whole first, with the internal accounting among the wrongdoers handled afterward and among themselves. Understanding that these are downstream, defendant-side mechanisms helps an injured person keep the focus on collecting the full judgment rather than getting drawn into the defendants’ disputes. Those disputes can be complex, but they are the defendants’ to fight.
The effect of a prior settlement
When one defendant settles before trial, that settlement changes the arithmetic for the defendants who remain in the case.
The settlement reduces the claim against the others
Massachusetts’s contribution statute addresses what happens when a plaintiff settles with one of several tortfeasors: the settlement reduces the plaintiff’s claim against the remaining defendants, generally by the amount paid in the settlement. This dollar-based reduction prevents a double recovery while still allowing the plaintiff to pursue the non-settling defendants for the rest of the harm. The remaining defendants get credit for what the settling party paid, so they are not asked to pay more than the balance of the judgment. This setoff is how the settlement of one defendant is folded into a case that continues against the others. It keeps the plaintiff from being paid twice while preserving the claim for everything not yet covered.
Discharge of the settling defendant from contribution
The contribution statute also protects a defendant that settles in good faith: such a settlement discharges the settling tortfeasor from liability for contribution to the others. This encourages settlement by assuring a defendant that resolves the plaintiff’s claim that it will not later be dragged back into the case by a co-defendant seeking contribution. Certainty is what a settling defendant is really buying, and the statute provides it. The trade-off is built into the statute: the settling defendant buys its peace, the remaining defendants get a credit for the settlement amount, and the plaintiff pursues the balance. These interlocking rules are what make multi-defendant settlements workable. Without them, few defendants would settle for fear of being pulled back in later.
How it affects the remaining defendants
For the defendants who do not settle, the practical effect is that they face the plaintiff’s claim reduced by the settlement credit, but they remain jointly and severally liable for that balance. They cannot seek contribution from the good-faith settling defendant, so the burden of the remaining judgment falls among the non-settling parties. Those who stay in the case, in effect, inherit the full balance to divide among themselves. This is why the timing and structure of settlements matter so much in a multi-defendant case, and why an early settlement with one defendant can reshape the exposure of the others. A defendant weighing settlement has to think about how the credit and the discharge will shift the remaining case. For the injured person, the key is that the settlement plus the continued claim together add up to the full recovery, with the setoff preventing a double payment rather than reducing the true value of the case.
Injuries, parties, and recovery
Joint and several liability matters most in the serious, multi-party cases where the difference between defendants’ ability to pay is largest.
The cases where this matters
The rule does its most important work in cases with several defendants of unequal means — a multi-vehicle crash involving an uninsured driver and an insured one, a construction or premises incident with a small, judgment-proof contractor and a larger responsible company, or a product case with a defunct manufacturer and a solvent distributor. These pairings — one wrongdoer with money and one without — are exactly where the rule proves its worth. In each, the injured person’s ability to be made whole may depend entirely on being able to collect the full judgment from the solvent defendant. Because these are often the cases with the most serious harm, including catastrophic injuries, the collectibility that joint and several liability provides can be the difference between real compensation and an uncollectible paper judgment. In a serious case, that difference can amount to a lifetime of care that is either funded or not.
Who is responsible
Identifying every liable party is doubly important here, because it is not only about assigning fault but about finding the defendants who can actually pay. Each negligent driver, property owner, contractor, employer, or manufacturer who contributed to the harm is a potential defendant, and among them, the solvent, well-insured parties are the ones who make a judgment collectible. A defendant with deep coverage can anchor an entire recovery on its own. Bringing in a defendant that can satisfy the whole judgment — and establishing its liability — is often what turns a case against an insolvent primary wrongdoer into a recoverable claim. Mapping the full set of responsible parties, with an eye to who can pay, is central to a real recovery. Fault and solvency are two different questions, and a strong case has to answer both.
What a claim can recover
Where liability is established, an injured person can generally recover the full measure of the harm — medical expenses, lost income and earning capacity, and compensation for pain, suffering, and the lasting effects of the injury — reduced only by their own comparative fault, and collectible in full from any jointly liable defendant. Joint and several liability is what ensures that this recovery is not diminished by a co-defendant’s insolvency. The plaintiff’s task is to prove the harm and the defendants’ liability; the collection of the full judgment from a solvent defendant, and that defendant’s later pursuit of contribution, follow from the rule. The plaintiff does not have to orchestrate the collection among defendants; the rule does that work.
Protecting your claim
Making joint and several liability work for you takes deliberate attention to who the defendants are and which of them can pay.
Naming every solvent defendant
Because any liable defendant can be made to satisfy the whole judgment, identifying and naming every responsible party — especially the solvent, insured ones — is the single most important step in a case with an insolvent wrongdoer. A claim aimed only at the most obvious defendant, who turns out to be judgment-proof, can leave an injured person with nothing collectible; adding a solvent co-defendant whose negligence also contributed changes everything. One additional, well-insured name on the complaint can convert an unrecoverable case into a recoverable one. This is why a careful investigation of who else may share responsibility, and of each potential defendant’s ability to pay, is central to building a recoverable case rather than a hollow one. The most obvious defendant is not always the one who can actually satisfy the judgment.
The evidence that matters
Proving a solvent defendant’s liability requires the same careful development as any negligence case: the facts of how the harm happened, each party’s role in causing it, and the records and testimony that establish the connection. Because the goal is to hold a collectible defendant jointly liable for the whole judgment, the case against that defendant has to be genuinely established, not assumed. Solvency is only useful once liability against that defendant is actually proven. The apportionment of fault among the defendants still occurs, but it governs their contribution rights among themselves rather than capping what the plaintiff can collect from any one of them. Building the liability case against every responsible party, with the solvent ones firmly in it, is what secures a collectible recovery. A liability theory that reaches a paying defendant is worth far more than one that reaches only an empty pocket.
When to call a Boston injury lawyer
When your injury was caused by more than one party and one of them cannot pay, whether you are fully compensated can turn entirely on joint and several liability and on getting the right defendants into the case. A lawyer can identify every responsible and solvent party, establish their liability, and use the joint and several rule to collect the full judgment, leaving the defendants to sort out contribution among themselves; the work is handled on contingency, so there is no fee unless there is a recovery. Our Boston personal injury attorneys handle multi-defendant crashes and complex injury cases, from large collisions to premises and product claims, across the Commonwealth and in nearby communities including Quincy and Cambridge, as reflected across our practice areas. If one of the parties who hurt you is bankrupt or uninsured, a first conversation costs nothing, and you can reach out to find out who can still be made to pay.
Reviewed and Approved By
This article was reviewed for legal accuracy by Daniel J. Larson, the founding attorney of Larson Law and a Massachusetts-barred personal injury lawyer in Boston. He represents individuals and families harmed by negligence in serious-injury matters arising from motor-vehicle collisions, unsafe property conditions, and other preventable incidents. Attorney Larson works litigation-first, developing each case through detailed investigation, discovery, and expert analysis with the expectation that it may be tried. Before founding the firm, he defended doctors, hospitals, and other healthcare providers in malpractice litigation at a Boston firm — experience that informs how he anticipates the way insurers and defense counsel evaluate a claim. He is a member of the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys.
Frequently asked questions
If one defendant is bankrupt, do I lose that part of my recovery?
Generally not, because of joint and several liability. In Massachusetts, each defendant found responsible for your injury can be held liable for the entire judgment, so you can collect the full amount from a solvent defendant even if a co-defendant is bankrupt or uninsured. The solvent defendant then bears the difficulty of recovering the insolvent party’s share through contribution, but that is the defendant’s problem, not yours. The risk of an empty-pocket co-defendant falls on the wrongdoers who caused your harm together, not on you.
What does “joint and several liability” actually mean?
It means that when two or more parties are responsible for the same injury, each of them can be required to pay the whole judgment, and you can collect the full amount from any one of them. The jury may assign the defendants percentages of fault, but those percentages mainly govern how the defendants divide the burden among themselves — they do not limit what you can collect from any single liable defendant. This is what makes a favorable verdict collectible when the defendants’ ability to pay is uneven.
Then how do the defendants sort out who really owes what?
Through contribution, and sometimes indemnity. Under the Massachusetts contribution statute, a defendant that pays more than its fair share can recover the excess from the other tortfeasors, so the ultimate burden ends up distributed according to fault. Indemnity is a related remedy that shifts the entire loss to another party in certain situations. Both are disputes among the defendants, resolved separately from your recovery. You collect the judgment from a liable defendant; how that defendant then recovers from the others does not reduce or delay what you receive.
How does a settlement with one defendant affect the others?
The contribution statute reduces your claim against the remaining defendants, generally by the amount of the settlement, so there is no double recovery. A good-faith settlement also discharges the settling defendant from having to contribute to the others. So the settling defendant buys its peace, the remaining defendants get credit for the settlement amount and remain jointly liable for the balance, and you pursue the rest. The settlement and the continued claim together add up to your full recovery, with the setoff preventing a double payment rather than cutting the real value of your case.
Why is it so important to name every defendant?
Because any liable defendant can be made to satisfy the whole judgment, and a case aimed only at a judgment-proof wrongdoer can leave you with nothing collectible. Adding a solvent, insured co-defendant whose negligence also contributed to your injury can be the difference between a real recovery and an uncollectible paper judgment. That is why a careful investigation of everyone who may share responsibility — and of each one’s ability to pay — is one of the most important early steps in a multi-defendant case.
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