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Final Copy 286 Ga. 507

S09G1218. BRODA v. DZIWURA. Benham, Justice. 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

At trial, appellee conceded fault for the accident which occurred on her way to a meeting for real estate agents selling Winmark Homes. A high-low agreement is an agreement which sets a fixed range of payment amounts the defendant will pay the plaintiff based on the possible outcomes at trial. See Black's Law Dictionary (8th ed. 2004) (a high-low agreement is "[a] settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiff's agreement to accept a maximum amount regardless of the outcome of the trial."). 1
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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 $1 million 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
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The verdict form read: "TWe, the jury, find in favor of Plaintiff Mindy Broda and against: (choose one) T Defendant Joanne Dziwura; __Defendants Joanne Dziwura and Winmark Homes in the amount of $1,002,763.00." 2

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

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