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Dziwura v. Broda

Section 885 3 of the Restatement Second of Torts favors a set-off under the facts present here and is persuasive.

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A jury awarded Mindy Broda monetary damages in her personal injury lawsuit against Joan Dziwura stemming from a motor vehicle accident. Dziwura moved to set-off the jury’s verdict by the amount of a settlement agreement entered into between Broda and Dziwura’s alleged employer prior to the entry of the verdict, which the trial court denied. Dziwura appeals, arguing that the trial court erred as a matter of law by denying her motion to set-off. For the reasons that follow, we agree and reverse. Viewed in the light most favorable to the verdict, on or around November 16, 2004, Dziwura negligently collided her vehicle into the back of Broda’s automobile. As a result of the accident, Broda suffered severe injuries to her wrist.

Broda filed a personal injury lawsuit against Dziwura, which she later amended to allege that Dziwura was the employee of Winmark Homes and was acting within the scope of her employment at the time of the collision. Broda sought to hold Winmark Homes liable for her injuries under the doctrine of respondeat superior or agency. Winmark Homes answered the complaint and denied that Dziwura was its employee, asserting instead that she was an independent contractor.

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