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Cohen v. University of Dayton10/28/2005
amount of the consideration paid for it, whichever is greater.
{ } "(2) The release or covenant discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor."
{ } Although the University appeared unwilling to concede, in the trial court, that the liability that Morgan settled with Cohen was a tort liability, that appears to be beyond dispute, given the essential, undisputed facts of this case. Therefore, the issue involved in Morgan's defense to the University's claim for contribution is whether the release he received in his settlement with Cohen was given in good faith. If so, the University's claim for contribution is barred; if not, the University may proceed with its claim for contribution against Morgan.
{ } After Morgan moved for summary judgment, the University moved for a continuance, pursuant to Civ. R. 56(F), to permit it to conduct discovery necessary to respond to Morgan's motion for summary judgment. In support of its motion for a continuance, the University included the following argument:
{ } "Specifically, the University needs discovery regarding the proportionality of Mr. Morgan's settlement with the Plaintiff. * . In this action, Plaintiff has demanded at least a seven figure damage award. Yet, Plaintiff settled with Mr. Morgan, who started the fire, for $191,800. * . Even assuming Plaintiff's demand was for only one million dollars, Mr. Morgan's settlement comprises only 19% of the damage claim. Certainly, because Mr. Morgan is responsible for starting the fire that resulted in Austin J. Cohen's death, there is an issue of fact as to whether Mr. Morgan's settlement is in proportion to his amount of liability. If it is not, there is an issue as to whether the Release was given in good faith. As a result, discovery is needed to determine the amount of damages claimed by Plaintiff and whether Mr. Morgan's settlement is in proportion to his amount of liability. * . Discovery is also needed to determine if there was any fraud, collusion or other wrongful conduct on the part of Plaintiff or Mr. Morgan with regard to the execution of the Release. * ." (Internal citations omitted.)
{ } The trial court granted the University's motion for a continuance, but only "for the limited purpose of taking the Plaintiffs' deposition on the issue of the 'good faith' settlement with the third-party Defendant, Morgan." The University moved for reconsideration, arguing that it needed to take Morgan's deposition, as well as Cohen's deposition. This motion was overruled.
{ } The decision whether to grant a request for a continuance, pursuant to Civ. R. 56(F), to the party opposing a motion for summary judgment is confided to the discretion of the trial court, but that discretion should be exercised liberally in favor of the party opposing summary judgment. Fiske v. Rooney (1998), 126 Ohio App.3d 649, 655. On the other hand, the public policy in favor of encouraging outof-court settlements militates in favor of limiting the scope and extent of discovery in connection with the good-faith defense to contribution, because without substantial limitation of the scope and extent of discovery, one of multiple alleged joint tortfeasors will have less incentive to settle; even if he settles his liability to the plaintiff, he may find himself in protracted litigation with an alleged joint tortfeasor over the issue of contribution. This animated the decision in Mahathiraj v. Columbia Gas of Ohio, Inc. (10th App. Dist., 1992), 84 Ohio App.3d 554, 617 N.E.2d 737, cited by Morgan and Cohen, in which the court opined that: "A court may determine the good faith of a settlement based solely upon the arguments of co
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