In Casey, the claimants' decedent was a passenger in a two-car accident. Their claim included separate causes of action for conscious pain and suffering and for wrongful death against three tortfeasors. The claimants settled with two of the tortfeasors and allocated the greater portion of the total proceeds to the conscious pain and suffering action, despite the dubious nature of that claim; the decedent had never regained consciousness between the accident and the date of death. The third tortfeasor challenged the apportionment. The Court held the self-created apportionment proffered by the claimants was not binding on the trial court because allocating the greater portion of the proceeds to a potentially nonexistent conscious pain and suffering cause of action could improperly minimize the setoff of the wrongful death action. The Court further held that the apportionment of the two causes of action for setoff purposes must be made following trial on the evidence adduced at trial by the trier of fact.
In Zan Machine Company, the Court similarly held that "when a plaintiff settles with one defendant, a nonsettling co-defendant is entitled to a credit of the settlement amount against any judgment the plaintiff obtains against the nonsettling co-defendant as long as both the settlement and judgment represent common damages." 803 F. Supp. at 623.
In opposition, Conrad argues that because the release was given to Shinnick and Downey by the Estate only, she has not released her individual claim and this Court cannot rewrite the release to add additional parties.
Neither Casey not Zan Machine Company specifically address the issue raised in this case. Casey cautioned against permitting double recoveries, i.e., allowing a litigant to allocate proceeds to a non-existent claim in order to minimize the setoff against a viable claim. Here, however, the settlement amount was not apportioned between claims of a single plaintiff. The Estate released Shinnick and Downey from all of its claims. Based on the record, there is no reason to suspect that in doing so the Estate did not settle a viable and valuable claim for wrongful death against Shinnick and Downey. Nor is there reason to suspect that the Estate's wrongful death claim against Shinnick and Downey was not worth $ 100,000. Thus, permitting Skinner's Bar to setoff that amount against any recovery by Conrad individually would run the risk of depriving Conrad individually of full recovery on her claim.
Moreover, the settlement and any recovery by Conrad individually do not appear to represent "common damages" for the "same injury." Under the Dram Shop Act, Conrad has an independent and separate claim for her injury of loss of support from that of the Estate's injury of death. Even if the Estate's claim were barred, for example, because the decedent had caused the intoxication of the inebriate, Conrad individually would still have a claim under the Dram Shop Act for her injury of lost support. Because § 15-108 reduces the claim of the releasor against a joint tortfeasor only for the "same injury," Skinner's Bar's motion to offset the amount of the release against any recovery obtained by Conrad individually is denied without prejudice and with leave to renew following a verdict and upon the evidence adduced at trial.
In conclusion, the Third-Party Defendants' motion for summary judgment dismissing all claims against them is granted. Augie's Bar's motion for summary judgment dismissing all claims against it is granted. Skinner's Bar's motion for summary judgment dismissing the negligence claims is granted, but is denied in all other respects.
Dated: White Plains, N.Y.
July 5, 1995
Barrington D. Parker, Jr.