Farmer's State Bank of Darwin, Respondent, vs. Jill Swisher, defendant and third-party plaintiff, Appellant, vs. Mark Leonard Johnson, third-party defendant, Respondent, and Darwin Bancshares, Inc., Third-Party Defendant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-261

Farmer's State Bank of Darwin,

Respondent,

vs.

Jill Swisher,

defendant and third-party plaintiff,

Appellant,

vs.

Mark Leonard Johnson,

third-party defendant,

Respondent,

and

Darwin Bancshares, Inc.,

Third-Party Defendant.

Filed November 14, 2000

Affirmed

Kalitowski, Judge

Meeker County District Court

File No. C596713

Gregory J. Holly, McGuigan & Holly, P.L.C., 200 Liberty Bank Building, 176 North Snelling Avenue, St. Paul, MN 55104 (for appellant)

H. Kelsey Page, Standke, Greene & Greenstein, Ltd., 17717 Highway 7, Minnetonka, MN 55345 (for respondent Mark Leonard Johnson)

            Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges the district court's reduction of her jury award by $50,000, contending the district court erred in determining the entire amount of her settlement with a joint tortfeasor should be offset to avoid a double recovery for the same injury.  We affirm.

D E C I S I O N

            A district court's decision on remittitur is generally reviewed for an abuse of discretion.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994).  Respondent argues that this is the proper standard of review here.  We disagree.  Generally, remittitur requires the court to determine if the jury's damage award is excessive in light of the facts of the case.  See id.  Here, the district court was required to make a legal determination:  whether appellant presented clear and convincing evidence that her receipt of both a $50,000 settlement and a jury award did not constitute a double recovery for the same injury.  Therefore, this court's review is de novo.  Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735  (Minn. 1996).

            Although a plaintiff can maintain parallel actions for sexual harassment under the Minnesota Human Rights Act and common law intentional tort, a plaintiff generally cannot recover under both claims.  Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990).  But if a plaintiff can show by clear and convincing evidence that the misconduct alleged arises from a different set of facts, recovery on both claims is allowable.  Id.  Here, the district court found, and appellant concedes, that her claims against respondent and the alleged joint tortfeasor bank arise from the same set of facts. 

            Further, the general rule is that a nonsettling joint tortfeasor's liability should be reduced by the amount paid by a joint tortfeasor in a settlement agreement.  Pacific Indem. Co. v. Thompson-Yaeger, Inc. 260 N.W.2d 548, 558 (Minn. 1977).  Notwithstanding this rule, appellant contends the district court erred by reducing the jury award by the full amount of her settlement with the bank.  Appellant argues that the record indicates part of the settlement was for attorney fees, which were not included in the jury award.

            Appellant settled her claims with the bank for $50,000 prior to trial pursuant to an Offer of Judgment made pursuant to Minn. R. Civ. P. 68 that provided:

This Offer of Judgment is inclusive of all "reasonable costs and disbursements accrued to date."  "Reasonable costs and disbursements accrued to date" means reasonable costs, disbursements, interest and reasonable attorney's fees.

            * * * *

This Offer of Judgment * * * is not to be construed either as an admission that Farmers State Bank of Darwin and Darwin Bancshares, Inc., are liable in this action, or that Jill Swisher has suffered any damage.

The district court in reviewing the settlement concluded:

[T]he Offer for Judgment and Acceptance of Offer of Judgment, which are the only document relating to the settlement of Swisher's claim against [the bank] do not indicate what amount, if any, is for attorney fees and there is no evidence on this issue.  Therefore, the Court could only speculate as to that amount.  For the above reasons, the jury's compensatory award must be reduced by $50,000.

Thus the district court determined that appellant did not satisfy her burden of showing there was not a double recovery.  We agree.  Under Wirig, the prevailing party is required to show there was not a double recovery. 461 N.W.2d at 379.  Appellant did not carry her burden because, as stated by the district court, she failed to provide any evidence as to what amount of attorney fees, if any, were included in the settlement agreement.  Therefore, we cannot say the district court erred by reducing appellant's jury award by the full $50,000 settlement. 

            Appellant cites Rambaum v. Swisher, 435 N.W.2d 19 (Minn. 1989), to support her argument that she did not receive double recovery.  But Rambaum deals with a Pierringer release under Minn. Stat. § 604.01 (1998).  With a Pierringer release, the settling tortfeasor pays an estimate of what the jury will later determine is her fair share of the plaintiff's award.  Rambuam, 435 N.W.2d at 22.  But unlike the situation with a Pierringer release, the jury here did not decide the bank's liability.  Because the bank's share of liability, if any, is unknown and because appellant carries the burden in this case, the district court did not err in refusing to speculate concerning what part of the $50,000 settlement could be attributed to attorney fees.

            Affirmed.