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Porter Hayden Co. v. Bullinger5/15/1998
udgment has been recovered against all or some of them." CJ 3-1401(c). With respect to the method by which one may be considered a joint tort-feasor under the Act, this Court in Swigert v. Welk, 213 Md. 613, 619, 133 A.2d 428, 431 (1957), stated: "The act does not specify the test of liability. Clearly, something short of an actual judgment will suffice; we think it equally clear that a denial of liability will not."
When a judge or a jury determines a releasee is liable for an injury to the plaintiff, the releasee, by way of that judicial determination of liability, becomes a joint tort-feasor, and section 3-1404 of the Courts and Judicial Proceedings Article operates to reduce the claim against the non-settling joint tort-feasor. See Brooks v. Daley, 242 Md. 185, 193, 218 A.2d 184, 188 (1966); see also Collier v. Eagle-Picher Indus., Inc., 86 Md. App. 38, 58-59, 585 A.2d 256, 266-67 (holding a non-settling defendant was entitled to a partial reduction in the verdict when a joint release was executed and only one of the settling defendants was found liable for injury to plaintiff), cert. denied sub nom. Corhart Refractories Co. v. Collier, 323 Md. 33, 591 A.2d 249 (1991).
On the other hand, when there is a judicial determination by either a judge or jury that the releasee is not liable, the releasee is not considered a joint tort-feasor, and section 3-1404 does not apply to reduce the plaintiff's claim against the non-settling joint tort-feasor. See Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 530-33, 682 A.2d. 1143, 1159 (1996)(holding that a jury determination that releasees were not liable and therefore not joint tort-feasors precluded right of contribution); Allgood v. Mueller, 307 Md. 350, 357, 513 A.2d 915, 919 (1986) (stating that a jury determination that releasees were not liable precluded reduction of verdict against non-settling defendant); Brooks, 242 Md. at 193, 218 A.2d at 188-89 (stating that the non-settling defendant was not entitled to a reduction in the verdict because jury determined releasee was not liable); Collier, 86 Md. App. at 58-59, 585 A.2d at 265-66 (1991) (concluding that when a settling defendant is not liable, the non-settling defendant is not entitled to a reduction in the verdict); C & K Lord, Inc. v. Carter, 74 Md. App. 68, 73-74, 536 A.2d 699, 701-02 (1988)(holding that when settling defendants were granted summary judgment because they were immune from suit, the non-settling defendant was not entitled to a reduction in the verdict).
A trial on the merits and subsequent determination by a fact finder that a settling defendant is a joint tort-feasor is not the sole method by which a non-settling defendant may obtain a reduction in the verdict pursuant to section 3-1404. The release between the plaintiff and the settling defendant may provide that the settling defendant is, or is to be considered, a joint tort-feasor, in which case the non-settling defendant is entitled to a reduction in the verdict. See Martinez v. Lopez, 300 Md. 91, 94-95, 476 A.2d 197, 198-99 (1984); Jones v. Hurst, 54 Md. App. 607, 611-12, 459 A.2d 219, 222 (1983).
In this case, there has been no determination by a fact finder as to B & W's liability. Likewise, the release apparently did not provide that B & W was to be treated as a joint tort-feasor for purposes of the Act. The issue is whether the default judgment on Porter Hayden's third-party claim entered against B & W constituted a determination of liability such that B & W should be considered a joint tort-feasor for purposes of section 3-1404 of the Courts and Judicial Proceedings Article.
We recently described the effect of a default judgment in Curry v. Hillcrest
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