This appeal stems from a grant of certiorari regarding the Court of Appeals’ decision in Dziwura v. Broda , 297 Ga. App. 1 676 SE2d 400 2009. Appellant Mindy Broda and her husband John Broda sued appellee Joan Dziwura, as well as appellee’s purported employer Winmark Homes, for negligence associated with injuries appellant sustained in a car accident caused by appellee.1 At trial, appellant presented evidence that Winmark Homes was also liable for the accident as appellee’s employer, whereas Winmark Homes presented evidence that appellee was instead an independent contractor of the real estate brokerage firm which marketed and sold its homes. Prior to the jury rendering its verdict, appellant entered into a high-low agreement2 with Winmark Homes which provided that if the jury returned a defense verdict for Winmark Homes or a verdict in favor of appellant for less than $350,000, then Winmark Homes would be required to pay appellant $250,000. If the jury returned a verdict against Winmark Homes greater than $3.1 million, then appellant could only collect $3 million from Winmark Homes and would have to forgo collection of the additional amounts. If the verdict was against Winmark Homes and was between $350,000 and $3.1 million, then the exact verdict amount would be paid by Winmark Homes without appeal by either party. The jury returned a verdict against appellee for just over $1 million for appellant’s tort claim and a verdict against Mr. Broda for his loss of consortium claim. The jury did not find that Winmark Homes had any liability for appellant’s claim.3 Based on this outcome and the express terms of the high-low agreement, Winmark Homes was obligated to pay appellant $250,000. Prior to the entry of judgment, appellee moved the trial court to set-off the $250,000 settlement amount from the one million dollar verdict amount awarded against appellee. The trial court denied the motion because the jury did not find Winmark Homes to be a joint tortfeasor. Appellee appealed to the Court of Appeals which agreed with the trial court’s finding that Winmark Homes was not a joint tortfeasor, but reversed the trial court’s denial of the motion for set-off because it determined that appellant was not entitled to a recovery greater than the amount awarded by the jury. In support of its decision to reverse, the Court of Appeals adopted the Restatement Second of Torts § 885 34 and Comment f.5 We granted certiorari to consider whether the Court of Appeals correctly held that a set-off was proper in this case. Because we answer in the negative, the Court of Appeals’ decision is reversed.
In actions concerning a tort, a benefit bestowed on the injured party should not be shifted so as to create a windfall for the tortfeasor. Amalgamated Transit Union Local 1324 v. Roberts , 263 Ga. 405 1 434 SE2d 450 1993. If a windfall must be had, it will inure to the benefit of the injured party rather than relieve the wrongdoer of full responsibility for his wrongdoing. Id. at 407 citing to Denton v. Conway Southern Express , 261Ga. 41, 46 n. 5 402 SE2d 269 1991. In keeping with this purpose of full responsibility, a tortfeasor cannot diminish his liability based on payments made by a non-tortfeasor. See Adkins v. Knight , 256 Ga. App. 394 568 SE2d 517 2002 award against defendant could not be set-off against plaintiff’s settlement with her uninsured motorist carrier because the carrier was not a tortfeasor; Thompson v. Milam , 115 Ga. App. 396, 397 154 SE2d 721 1967 “A tortfeasor cannot diminish the amount of his liability by pleading payments made to the plaintiff under the terms of a contract between the plaintiff and a third party who is not a joint tortfeasor.” “Basic fairness and justice dictate that a tortfeasor should not benefit from a plaintiff’s good fortune in reaching settlements with other potential defendants not determined to be liable.” Fidelholtz v. Peller , 81 Ohio St3d 197, 202 690 NE2d 502 1998.
