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Marathon Corp. v. Pitzner8/2/2001
to whatever offset and credit which I may be entitled to for the amounts that [the other original defendants] paid, but that's not an issue that has anything to do with anything --
The Court: Right.
Counsel: - we need to do for a jury --
The Court: For the jury.
Counsel: - submission. That will be an issue upon entry of judgment. It can be taken up at that time.
The Court: Right . . . We'll do it that way. We'll take it up later on. Okay.
We do not consider this statement to be an election of the section 33.012(b)(2) option. The statement could refer equally to the section 33.012(b)(1) option. Even if appellant could be said to have made a verbal election, it filed no written election changing the method of settlement credit to the section 33.012(b)(2) option. Furthermore, in its Objections to Plaintiff's Motion for Judgment on the Verdict, filed on December 19, 1997, Marathon asserted it was entitled to a dollar-for-dollar amount.
The language of section 33.014 is clear and unambiguous: a non-settling defendant may elect either method of settlement credit. Its choice "shall be made by a written election." Section 33.012(b)(2) will be considered elected if (1) no written election is filed, or (2) conflicting elections are made. Marathon has cited no caselaw, and we can find none, in which a defendant was permitted to verbally change his settlement credit option. We hold that the written election choosing the section 33.012(b)(1) dollar-for-dollar credit is the valid election, and we will apply it accordingly.
A defendant seeking a settlement credit has the burden of proving its right to such a credit. Mobil Oil, 968 S.W.2d at 927; First Title Co. v. Garrett, 860 S.W.2d 74, 78 (Tex. 1993). A party can meet this burden by placing the settlement agreement or some evidence of the settlement amount in the record. Mobil Oil, 968 S.W.2d at 927; First Title, 860 S.W.2d at 79. Placing the uncontested settlement amount in the record by informing the trial court of the amount in open court, or in a written opposition to a motion for judgment, will suffice to meet the burden. Mobil Oil, 968 S.W.2d at 927.
Appellee asserts that the credit should be for $600,000, citing the following statement by appellee's counsel at a pre-voir dire conference on December 2, 1997:
Counsel: But in terms of the [settlement] money, I don't think he told you that, but I'll be clear, it was $200,000 per defendant or, more or less, that's the way it works out at, we're faced with $350,000 past medical damages and mounting.
In its brief, Marathon asserts, in the alternative, that the trial court abused its discretion in denying Marathon's request for post-verdict discovery as to the total amount of the settlement. In its "Objections to Plaintiff's Motion for Judgment on the Verdict," Marathon requested an opportunity to discover the actual amount of settlement money received by appellee, and stated that it:
was aware of at least $405,000 being paid by settling Defendants. Counsel for Plaintiff stipulated during voir dire and again during opening statements that at least $600,000 had been paid by the settling Defendants. In addition a sum uncertain was paid in an attempt to settle with Plaintiff's employer under that employer's ERISA Plan. Since an ERISA Plan, unlike a policy of worker's compensation insurance, is not exempted from the Texas Civil Practice and Remedies Code credit provisions, [Marathon] is entitled to discover the amount payed through that plan and obtain a credit against same to be deducted prior to calculations of any amounts owed or interest due.
The cler
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