Under Georgia law, a plaintiff traditionally has been limited to one satisfaction for one injury.
Under Georgia law, a plaintiff traditionally has been limited to one satisfaction for one injury. See Kroger Co. v. Mays, 262 Ga. App. 339, 664 S.E.2d 818 (2008). However, after a February 8, 2010 opinion issued by the Georgia Supreme Court, the one-injury-one-satisfaction rule has been abridged and curtailed.
In Broda v. Dziwura, 2010 Ga. LEXIS 152 (Feb. 8, 2010), the Supreme Court of Georgia unanimously found that “the applicability of the set-off is predicated on the settling party being liable.” In Broda, the Plaintiff sued Dziwura and Winmark Homes alleging that Winmark was responsible for Dziwura’s action since Dziwura was acting in the course and scope of his employment with Winmark. Winmark entered into a high-low agreement with the Plaintiff’s attorney which required it to pay a minimum of $250,000 even if the jury found that Dziwura was not acting within his scope of employment, and therefore Winmark was not legally responsible.
At trial, the jury awarded over a million dollars against Dziwura, but did not find any liability against Winmark. However, pursuant to the high-low agreement, Winmark paid the Plaintiff the $250,000. Dziwura sought a set-off for the money paid by Winmark, but the trial court denied Dziwura’s request based upon the fact that no liability had been assessed against Winmark.
The Court of Appeals reversed the lower court’s conclusion regarding the set-off, adopting the Second Restatement of Tort’s position in § 885(3) – that is a plaintiff cannot collect more than it is awarded by the jury. Therefore, a payment made by one who is not adjudged liable as a joint tortfeasor will go to diminish the jury award owed to the plaintiff so long as that payment was made for the same harm the responsible parties are found liable.
The Georgia Supreme Court reversed the Court of Appeals relying heavily upon case law from other jurisdictions to support its conclusion, and reinstated the lower court’s holding. Specifically, the Georgia Supreme Court ruled that a tortfeasor cannot diminish his liability based upon payments made by a non-tortfeasor. Rather stated the Supreme Court, if a windfall must be had, it will inure to the benefit of the injured party rather than to relieve the wrongdoer of full responsibility of his wrongdoing.
This decision raises a number of issues, including the following. One, what happens if the jury finds the non-party on the verdict form to be less at fault than the non-party percentage paid before trial as compared to the verdict? Does this reduce the credit to an amount less than may have been paid earlier by the non-party? Second, what happens if a named defendant settles out of the lawsuit before trial and is not placed on the verdict form for the jury to assess a percentage of fault against? Broda strongly suggests that because no liability would be adjudged against the settling party in this situation, the settling party’s settlement payment would not diminish any award assessed against the remaining defendant(s). Thirdly, does Broda encourage a plaintiff to name as many defendants as possible, and then to settle with those defendants against whom the plaintiff has the weakest case? And related, will Broda force defendants who would not have considered settling to settle for fear that they will not be able to take advantage of the other settling-defendant(s) payment?
In order for a defendant to avail itself of the settlement of another party, that defendant must either (1) attempt to third party the settling defendant back into the lawsuit, or (2) ask for an apportionment to a non-party under the new tort reform statute. Certainly the second option of placing a non-party on the verdict in hope that the jury will apportion some liability to this non-party is not likely to be very successful since juries tend to be hesitant to find a non-present party liable. In the end, Broda appears to give a plaintiff a significant upper-hand in terms of forcing co-defendants to settle, or else risk being responsible for the entire verdict.