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Oral Argument Recap – Broda v. Dziwura

September 15, 2009

The first civil case argued this morning at the Supreme Court involved the proper application of a setoff from a jury verdict.  Broda and her husband sued Dziwura and her employer, Winmark Homes, for injuries resulting from a car accident.  While the jury was deliberating, Broda and Winmark agreed to a “high-low” contract.  Under the terms of the agreement, if the verdict was more than $350,000 against Winmark, Winmark would pay up to a maximum of $3.1 million, but if the verdict was less than $350,000 against Winmark, it would pay the Brodas $250,000.  In either case, the Brodas would not take more than $3.1 million.  The jury returned a $1 million verdict solely against Dziwura, finding no liability for Winmark.  Dziwura sought to reduce the verdict against her by the $250,000 the Brodas received from Winmark, but the trial court denied the motion, stating that Winmark was released from liability and thus not a joint tortfeasor.  The Court of Appeals reversed, finding that the verdict should be reduced by the amount Winmark agreed to pay.

Broda’s attorney, Michael Goldberg, opened by saying that the Supreme Court would decide who gets a $250,000 windfall.  Either his client would receive $250,000 beyond what was required by the jury, or Dziwura would receive a $250,000 benefit because of action she had not taken.  Goldberg said the Court of Appeals relied on a provision of the Restatement (Second) of Torts, because there was not enough Georgia law on the subject.  But the provision relied on by the Court of Appeals had been replaced in the Restatement (Third) of Torts, which now supported his client’s position.  He further argued that under Georgia law, if someone is going to receive a windfall, it needs to be the injured party.  Justice Benham asked about the policy of encouraging settlement, and Goldberg stated his client’s approach encouraged settlement, because it enabled people to get what they paid for, as opposed to another defendant taking advantage of an agreement without being part of the settlement process at all.

William Anderson argued for the appellees, saying that a plaintiff is entitled to only one satisfaction of his or her injury, and cannot have a double recovery.  Under questions from the Court, Anderson agreed that his client would win under either the Restatement (Second) or the Restatement (Third) policies, because the facts of this case involve master/servant liability, not apportioning liability between co-defendants.  He further cited cases from the Supreme Court where it has held master/servant situations were treated as joint tortfeasors.

In rebuttal, Golberg agreed with questions that if the Court found Restatement (Second) applied, his position would be difficult, but said that existing Georgia law plus Restatement (Third) allows his client to win.

Oral Argument Statistics

  • First question for appellant came after approximately three minutes of argument.
  • First question for appellee came after less than one minute of argument.
  • Appellant reserved four minutes for rebuttal and used all the time.
  • Appellee left approximately 10 minutes of his 20 minutes of argument unused.

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