Johnson v. Kelly Services Ireland, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY HOWARD M. JOHNSON Plaintiff v. KEL LY S ERV ICES IREL AND , LTD ., and XEROX CORPORATION Defend ants ) ) ) ) ) ) ) ) ) CIVIL ACTION NUMBER 00C-06-115-JEB MEMORANDUM OPINION Submitted: October 8, 2002 Argument: December 6, 2002 Decided: January 8, 2003 Upon Motion of Defendants Seeking Set-Off Against Jury Verdict - DENIED Appearances: Edward T. Ciconte, Esq., of Ciconte Roseman & Wasserman, Wilmington, Delaware, attorney for plaintiff Colleen D. Shields, Esq., of Elzufon Austin Reardon Tarlov & Mondell, Wilmington, Delaw are, attorney for d efendan ts HERLIHY, Judge On July 16, 2002, a jury awarded plaintiff Howard Johnson ( Johnson ) $25,000 in damages for injuries h e received in an auto a ccident. Th e other driver was Kenneth Ard. Ard was working for defendant Kelly Services Ireland ( Kelly ) on an assignmen t for defen dant X erox C orpora tion ( X erox ) at the tim e of the accide nt. Prior to trial, Johnson settled with Ard. Kelly and Xerox now seek, as join t- tortfeasors, a set-off of that amou nt against the jury s award. Their motion was filed on September 18, 200 2. As joint tort-feasors they would normally be entitled to such a set-off. But the document which Johnson signed in his settlement with Ard is neither entitled a Joint Tort-feasor Release nor incorporates statutory language providing for set-off s for joint tortfeasors. While it is indisputable that Kelly and Xerox are joint-tortfeasors with Ard, the issue is whether the document Johnson executed deprives Kelly and Xerox of the set-off provisions. This Co urt holds tha t, despite the language of the particular document Johnson signed with Ard, Ke lly and Xerox would be entitled to set-off. But, their motion, filed over two mon ths p ost-v erdict, is u ntim ely as bein g beyond the te n days this Court s rules require for filing such motions. The defendants motion for set-off is DENIED. Facts Johnson sued Ard seeking compensation for injuries he suffered in a motor vehicle accident which occurred on July 30, 1999. At the time of the accident, Ard was driving his personal car, but was acting in the course and scope of his employment wit h Ke lly, on a 1 temporary assignment for Xerox. In addition to claims against Ard, Johnson made derivative claims against Kelly and Xerox based on respondeat superior. By pr e-trial stip ulati on, K elly, Xerox and Ard conceded scope of employment and admitted that his negligence caused the accide nt. Prior to trial, Johnson received $16,666.67 from Allstate, Ard s personal insurance carrier. In exchange, Johnson executed the following document entitled Agreement : I, Howard Johnson, hereby acknowledge receipt of the payment of sixteen thousand six hundred sixty-six and 67/100 dollars ($16,666.67) from Kenneth Ard and Allstate Insurance Company representing one-third (1/3) of Kenneth Ard's policy limits. By signing this Agreement, Howard Johnson does not intend to adversely affect his right to continue his claim against other parties who m ay be liable to him through th e actions of Kenne th Ard. It is understood that in return for this payment of $16,666.67, that Howard Johnson will not seek to hold Kenneth Ard personally responsible for any amounts that may be adjudicated in favor of Howard Johnson against any defendant. If any award is entered as a judgm ent in any court against Kenneth A rd in favor of Howard Johnson as a result of this lawsuit, (C.A. No. 00C-06-115 JEB ) Ho war d Joh nson agre es to satis fy such judgment as long as su ch satisfactio n will not prejudice How ard Johnson. The Agree ment w as not e ntitled as a Joint T ort-fea sors' Re lease, n or did it incorporate the provisio ns of th e Dela ware C ode co vering such re leases. The case went to trial as one for damages only against Kelly and Xerox. Th e jury awarded Johnson $25,000 representing its determination of all of his damages. 2 Kelly and Xerox have filed a "Motion Seeking Set-off Against the Jury Verdict" claiming that they are entitled to a $16,666.67 reduction o f that verdict in accordan ce with the Delaware Code providing for reduction of verdicts in circumstances such as this. Johnson, on the other hand, characterizes the motion as one not for a set-off, but rather as a remittitur. His argument is two-fold. First, he argues that the Agreement is not a joint tortfeasor release and that it was intentionally drafted to avoid the set-off provisions of the Uniform Contribution Among Tort-feasors Law. Second, he contends that the Mo tion is untimely under this Court s Civil Rule 59 since it was filed more than 10 days after the verdict. To rebut the un timeliness argum ent Kelly and Xerox w hen first pres enting their motion, suggested that Johnso n led them to believe that Ard s payment would be set-off. The defenda nts also seemed to infer that Johnson refused to set-off only after the ten day deadline had passed. These inferen ces pro mpted the Co urt to set u p an ev identiar y hearing . Kelly and Xerox produced no evidence at that hearing to su pport their ea rlier suggestio ns. The on ly evidence presented was a letter Johnso n s couns el wrote to Kelly and Xerox s counsel prior to trial. There was no evidence of post-trial communications of any nature regarding set-off. Discussion Two distinct issues are before the Court. First, as a substantive matter, can a plaintiff settling a claim w ith one of se veral tort-feas ors avoid the set-off provisions of the Uniform Contribution Among Tort-feasors Law by drafting the contract as an "Agreement" rather than 3 as a release and by avoiding joint tort-feasor phraseology? Second, as a proce dural matter, is a "Motio n for Set-o ff" untime ly if it is filed over tw o month s after verdic t? A The first issue, of course, implicates Delaware s statute concerning joint tort-feasors. The provisions applicable to the resolution of this case are: (a) A release by the injured pers on of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasor unless the re lease so pro vides; but red uces the cla im against the other tort-feasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides th at the total claim shall be reduced, if greater than the consideration paid. (b) A release by the injured person of one joint tort-feasor does not relieve the one joint tort-feasor from liability to make contribution to another jo int tort-feasor u nless the release is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata sh are of the re leased tortfeasor, of the injured person's damages recoverable against all the other tort-feasors.1 Johnson contends that in order to receive the set-off, Kelly and Xerox must establish that the release executed in Ard s favor was intended by them to be a "joint tort-feasor release" containing this statutory language or its equivalent. According to Johnson, he never executed a joint tort-feasor release because the words "joint tort-feasor" and "release" do not appear in the Agreement. In fact, he admits that he worked diligently in drafting the Agreement to avoid the Law's set-off provisions. The Agreement, he maintains, was nothing more than a receipt for payment. However, the explicit langu age of the Agreem ent belies his 1 10 D EL. C ODE ANN. tit. 10 §6304 (Supp. 20 00). 4 argumen t. It is clearly a release because it provides that "in return for this payment ¦ Howard Johnson will not seek to hold Kenneth Ard personally responsible for any amounts that may be adjudicated in favor of Howard Johnson against any defendant." The Agreement goes on to provide other language clearly evidenc ing an inten t to incorporate for Ard the protection of the Law. That language is: If any award is entered as a judgment in any court against Kenneth Ard in favor of Howa rd Johnso n as a result o f this lawsuit, (C.A. No. 00C-06-115-JEB) Howard Johnson agrees to satisfy such judgment as long as such satisfaction will not prejudice Howard Johnson. Fina lly, it is highly improbable that Allstate would have paid Johnson anything without obtaining a releas e for itself an d its insured, A rd. In short, to ar gue that this document is me rely a receipt is unpersuasive. Nor is it dispositive that the release does not contain the language of section 6304. There is no requirement that only the magic words of that statute be used to conve rt a releas e to a join t tort-fea sor relea se. At least one decision has applied the set-off provision of section 6304 despite the lack of statutory language in the release.2 This case turns not on whether the p arties labeled the contract an A greement or a "release ," but rather w hether A rd, Kelly and Xerox are all joint tort-feasors for the purposes of section 6304. According to the Delaware Supreme Court, in order for parties to be 2 Clark v. Brooks, 377 A .2d 36 5 (De l. Supe r. Ct. 1977) (finding that release signed by plaintiff in conn ection w ith settlement of his personal injury claim against employer failed to con tain be nefic ial language found in U niform Contribution Am ong Tortfeasors Law, under accepted principles that proscribed unjust enrichment, employee doctor was entitle d to b enef it of am oun t rece ived by p laintiff as co nside ration for re lease .) 5 deemed joint tort-feasors for the purposes of the statute, there must be "some reliable means there was a determination , either judicially or by an admission, that the settling party was liable in tort. i.e., a tort-feasor."(emphasis added)3 The parties' pretrial stipulation unequivocally contained an admission of A rd s tort liability when in part it stated: The defen dants K elly Servic es Irelan d, Ltd., Xerox Corporation and Kenneth A. Ard concede that Kenneth Ard was operating his vehicle while in the course and scope of his employment with Kelly Se rvices o n July 30, 1999. Defendants further concede that the negligence of Kenneth Ard was the proxim ate cause of a motor vehicle accident involving a vehicle operated by plaintiff H oward Jo hnson. D efendan ts dispute that Howard Johnson was injured in the manner or to the extent to which he claims. Defendants further dispute that Howard Johnson sustained damages including medical bills and wage loss to the extent he cla ims as a resu lt of the accid ent. 4 Ard s admission of negligence constitutes a "reliable means there was a determination" that he was liable in tort, and therefore a tort-feasor. Therefore, as a substantive matter, Kelly and Xerox would be entitled to a set-off of 16,666.67 from the $25,00 0.00 jud gmen t. B There remains, however, the issue of the timeliness of the defendants motion. Johnson argues that w hile the defendants have couched the motion in terms of s eeking a se toff, the actual remedy sought is a remittitur and that such requests are governed by Superior 3 4 Medi cal Ctr . of Dela ware v . Mullin s, 637 A.2d 6, 8 (D el. 1994). Pre-trial Stipulation at 2. 6 Court Civil Rule 59. Rule 5 9(d) provid es that "[a] m otion to alter or amend the judgment shall be served and filed not later than 10 days after entry of the judgment." Johnson concludes that since Kelly and Xerox filed this motion over two months after verdict, the motion is untim ely and p rocedu rally barred . Kelly and Xerox, of course, disagree. They maintain that their "motion for set-off" is not governed by Rule 59 because they are not seeking to alter or amend the judgment, but only obtain a credit for sums already paid. They have not, however, offered any alternative Rule or authority on which to judge the m otion's timeliness. Regardless of how one chara cterizes their motion, whether it be a remittitur or for setoff, some Rule or statute must govern as to the issue of timeliness. Rule 59, with its 10 day limitations period, is the most analogous. To avoid the consequences of the limitations period, Kelly and Xerox intimated that Johnson led them to believe there would be a set-off. Only when more than ten days had e lapsed afte r the verdict, did Johnson , they hint, state there would be no set-o ff. Their evidence of this was scant, at best, and far from persuasive. It was a letter se nt prior to trial. There was no evidence Johnson s counsel did anything after the trial to mislead couns el for K elly and X erox. Accordingly, defenda nts' motion fo r seeking se t-off again st the jury verdict is DENIED as proc edurally tim e barred . IT IS SO ORDERED. J. 7 8
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