Opinion
No. 82CA1464
Decided July 5, 1984. Prior Opinions Announced March 29, and May 17, 1984, Withdrawn Petitions for Rehearing Denied as Moot July 5, 1984. Rehearing Denied August 2, 1984. Certiorari Granted January 14, 1985.
Appeal from the District Court of Jefferson County Honorable Michael C. Villano, Judge
Galchinsky and Silverstein, Herbert H. Galchinsky, Edward Grossman, for plaintiffs-appellants.
Henderson and Streelman, Jack D. Henderson, for defendant-appellee.
Division III.
In this personal injury action, plaintiffs, Gunnar Greenemeier and his mother, Lois Redington, received a jury verdict in their favor totaling $58,000 in compensatory and $1,000 in exemplary damages against defendant, Darwin Spencer. Because they had settled their claims for the same injury against three co-defendants for $100,000, the trial court ordered the jury award against Spencer reduced to zero compensatory and $1,000 exemplary damages and entered judgment accordingly. Plaintiffs appeal the order and judgment. We affirm.
Two boys, David Sacco and Darwin Spencer, were shooting BB guns. Plaintiff Gunnar Greenemeier was hit in the eye by a BB fired by Sacco. Plaintiffs sued both boys and their parents.
A few days before trial the Saccos settled the claims against them for $100,000. The action was dismissed as to them.
The claims against the Spencers went to trial. This resulted in a directed verdict in favor of Mr. and Mrs. Spencer and jury verdicts against Darwin Spencer in favor of Gunnar for $50,000 compensatory and $1,000 exemplary damages and in favor of Gunnar's mother for $8,000 compensatory damages.
Spencer then timely filed a motion to reduce the jury awards to zero, based on § 13-50.5-105(1), C.R.S. (1983 Cum. Supp.) of the Uniform Contribution Among Tortfeasors Act (the Act). That section provides:
"When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
"(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
"(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor." Relying upon the statute, the trial court granted the motion in part, reducing the compensatory damages to zero but entering judgment for the $1,000 exemplary damages.
I.
On appeal, relying on § 13-50.5-102(3), C.R.S. (1983 Cum. Supp.), plaintiffs claim that, since exemplary damages were awarded against Spencer, he is not entitled to any right of contribution. We agree that he has no right of contribution, but that does not change the result in this case.
The Act changed the Colorado law relating to contribution among joint tortfeasors. Prior to the Act, one of several joint tortfeasors could not obtain contribution from a co-tortfeasor. Now, under the Act, one tortfeasor who has paid a settlement may seek contribution from his co-tortfeasor for any payment he has made above his pro rata share. In re Question Submitted by U.S. District Court, 196 Colo. 392, 586 P.2d 224 (1978). An exception to that rule is contained in § 13-50.5-102(3) relied on by plaintiffs: "[T]here is no right of contribution in favor of any tortfeasor who has intentionally, willfully, or wantonly caused or contributed to the injury. . . ."
However, the fact that, under the circumstances of this case, Spencer has no right of contribution from Sacco or, as applicable here, Sacco may have no right of contribution from Spencer, is of no consequence here. "Contribution" is the right of recovery by one joint tortfeasor from the co-tortfeasor. It has nothing to do with the rights of the injured party to recover from the tortfeasors.
The section under which the jury award was reduced, § 13-50.5-105(1)(a), C.R.S. (1983 Cum. Supp.), pertains only to reduction of the injured party's claim. And, the plain words of the statute direct that the claim against one joint tortfeasor, here Spencer, is to be reduced by the amount paid by the co-tortfeasors, the Saccos.
Spencer did not appeal the retention of the exemplary damages award and the judgment entered thereon. Therefore, we do not address the question whether § 13-50.5-105(1)(a) applies to exemplary damages also.
II.
The trial court was informed of the settlement and, on the morning of the trial, a discussion took place in chambers concerning what the jury should be told about it. Plaintiffs' attorneys requested the court to let the jury know that the Saccos had settled with plaintiffs for the sum of $100,000. The Spencers' attorneys suggested that the court inform the jury that plaintiffs had settled their claims against the Saccos but that the amount of the settlement should not be mentioned. The court decided not to tell the jury anything about the settlement.
No one asked for the jury to be told that, as a result of the settlement, any award against the Spencers would be reduced by the amount of the Sacco settlement. And, no instructions were tendered on the subject of the settlement. The jury was instructed that, if it held for plaintiffs, it should award them an amount that would reasonably compensate them for their damages.
On appeal, plaintiffs no longer contend that the jury should have been told the amount of the settlement. But they do assert that it was reversible error not to have told the jury that the Saccos had settled before trial. We do not agree.
There are no reported cases in Colorado dealing with whether or what a jury should be told about settlement. There is no unanimity in the case law from other jurisdictions. See Annot., 94 A.L.R.2d 352 (1964). Any solution to this question has a potential for unintended and unjust results.
Where, as here, there is no question for determination by the jury with regard to the fact of settlement or the amount paid therefor, some courts have held that this information should be given to the jury and that it, and not the court, should then deduct from the plaintiff's total damages the amount received by him from the settlement. See, e.g., Croda v. Sarnacki, 106 Mich. App. 51, 307 N.W.2d 728 (1981). Others have held, in situations where, in one way or another, the information has come to the attention of the jury during the course of the trial, that the jurors must be instructed to determine the liability of the defendant on trial and the total amount of plaintiff's damages without regard to the settlement, with any later apportionment or deduction to be made not by the jury but by the court. See, e.g., Theobold v. Angelos, 40 N.J. 295, 191 A.2d 465 (1963). In some jurisdictions, whether to tell the jury is left to the discretion of the trial court. See, e.g., Groves v. Compton, 280 S.E.2d 708 (W.Va. 1981); Degen v. Bayman, 86 S.D. 598, 200 N.W.2d 134 (1972).
Some have held, as did the trial court in the instant case, that it is proper not to tell the jury about the settlement and for the court to credit the unreleased tortfeasor after the jury has returned a verdict for the full amount of plaintiff's damages. See, e.g., Slayton v. Ford Motor Co., 140 Vt. 27, 435 A.2d 946 (1981); McCombs v. Stephens, 252 S.C. 442, 166 S.E.2d 814 (1969); DeLude v. Rimek, 351 Ill. App. 466, 115 N.E.2d 561 (1953).
The better rule is that applied by the trial court here, not informing the jury of the fact or amount of settlement and, instead, instructing the jury to determine whether the defendant on trial was liable and, if so, to determine the full amount of plaintiff's damages. Admittedly, the jurors may be concerned about the absence of the other tortfeasor. However, from the viewpoint of both defendants and plaintiffs, the dangers of improper inferences and the possibilities of confusion and prejudice on the part of the jury are much greater if the jurors know about the settlement and, especially, if they are required to consider the offset in arriving at the amount of plaintiff's damages.
For more detailed discussion of the issues involved, see Dixson v. Newsweek, Inc., 562 F.2d 626 (10th Cir. 1977); Luth v. Rogers, 507 P.2d 761 (Alaska 1973); Egurrola v. Szychowski, 95 Ariz. 194, 388 P.2d 242 (1964); DeLude v. Rimek, supra; Orr v. Coleman, 455 S.W.2d 59 (Ky.App. 1970); McCombs v. Stephens, supra; Degen v. Bayman, supra; Slayton v. Ford Motor Co., supra.
Moreover, matters pertaining to settlement with a co-tortfeasor are irrelevant to the issues being tried, i.e., the questions of the liability of the nonsettling defendant and the amount of plaintiff's damages. Egurrola v. Szychowski, supra. Only after the jury has held for plaintiff on these issues is it proper to consider the effect of the settlement, and that matter should be left for the court to determine, upon application of the defendant after verdict. DeLude v. Rimek, supra.
Judgment affirmed.
JUDGE STERNBERG concurs in part and specially concurs in part.
CHIEF JUDGE ENOCH concurs in part and dissents in part.