T1 Defendant/Appellant Richard Clayton Sims appeals from judgment entered on a jury verdict for Plaintiff/Appellee Bryan C. Pain. Prior to trial, Pain settled with Defendant Snarky's Hideaway (Snarky's). Sims argues that accоrding to 12 O0.98.2011 § 832(H), the trial court erred by not offsetting the actual damages awarded by the jury with the settlement amount. We hold that § 832(H) does not apply, because evidence of Snarky's liability as a joint tortfeasor was not presented to the jury. We affirm.
12 Pain initiated this personal injury action after his vehicle was rear-ended by Sims while Sims was under the influence of alcohol. Upon learning that Sims was served alcohоl at Snarky's a few hours before the accident, Pain amended his Petition and added Snarky's as a defendant. In a pretrial settlement, Snarky's paid $90,000.00 in exchange for Plaintiff's Dismissal With Prejudice and Release оf Claims against Snarky's (the Release). Thereafter, the case proceeded to trial against Sims, which resulted in a verdict for Pain. The jury awarded Pain $85,000.00 in actual damages and $85,000.00 in punitive damages. The triаl court accepted the verdiet and, after concluding it was in proper form, filed it. Pain submitted a proposed Journal Entry of Judgment based on the jury verdict. Sims objected to the Journal Entry of Judgment, because it did not reduce the amount of actual damages by the amount of Snarky's pretrial settlement. Pain filed a Motion to Settle Journal Entry of Judgment and argued that the offset provision did not apply because Snarky's denied liability and, therefore, was not a tortfeasor under 12 0.8. § 832(H)(1). Sims filed a Response and argued that the damages should be offset because Snarky's admitted liability when it paid $90,000.00 in exchange for the Release. The trial court granted Pain's motion and entered judgment for $176,833.18. Sims appeals.
13 Sims argues that the trial court erred by refusing to apply the $90,000.00 pretrial settlement payment to the actual damages verdict, as required by the Oklahoma Uniform Contribution Among Tortfea-sors Act. 12 0.8. § 832(H)(1). Section 882 provides:
H. When a release, covenant not to sue, or a similar agreement is given in good fuith to one оf two or more persons liable _ in tort for the same injury or the same wrongful death:
1. It does not discharge any other tort-feasor from liability for the injury or wrongful death unless the other tort-feasor is specifiсally named; but it reduces the claim against others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greаter..
12 0.8. § 832(H) (emphasis added). Sims maintains that the settlement payment made by Snarky's should apply as a eredit towards the judgment.
14 Pain claims that Sims's argument is contrary to the settled law of Oklahoma because thеre was no finding or admission of Snarky's fault nor was Snarky's liability presented to the jury. Further, Pain maintains Sims admitted to being the sole tortfeasor at fault, and the jury found the same. Pain
T5 Sims relies on Anderson v. O'Donoghue,
The remaining issue on appeal relates to the settlement of St. Anthony Hospital's potential liability prior to trial and the effect of that event on subsequent proceedings. It is alleged that the trial court erred in not instructing the jury it could apportion a percentagе of the negligence causing the damage to St. Anthony Hospital. It is noted that there is no objection to the instruction given, nor was an instruction offered by Appellant Carey. Under such a circumstance, absent proper objection and notations required by statute, review on appeal is limited to erroneous statements of fundamental law appearing on the face of the instructiоns actually given .... No provision for apportionment was made for the defendant, St. Anthony's. The hospital had settled by the time of trial. The trial judge properly deducted the amount of settlement from thе verdict before arriving at the judgment amount.
Id. at 652 (emphasis added). The Supreme Court of Oklahoma agreed with the trial court's decision, holding that its use of the statute was correct. Id.
T6 Section 882 was agаin interpreted by the Oklahoma Court of Civil Appeals in Cleere v. United Parcel Service, Inc.,
T7 In Nichols, the plaintiffs settled with one of the defеndants, subsequently dismissing that defendant from the case. Id. at 280. The Supreme Court of Oklahoma held that the non-settling defendant, if it wished to pursue a § 882(H) credit, was required to press for a jury assessment of the settling defendаnt's "ghost tortfeasor" liability. Id. In Nichols, the settling defendant's liability was not submitted to the jury during the trial. Id. Ultimately, the non-settling defendant was not allowed the damages offset. Id.
T8 The Court further explained that "A judgment debtor's $ 8382(H) claim to settlement proceedsg' credit is conditioned upon the settling party's liability in tort for the same injury." Id. The Court held that since the non-settling defendant could not satisfy the statutory requirements in § 832(H) showing common liability, it was not entitled to offset the settlement proceeds against the judgment. Id.
T9 The Nichols rule has since been recognized in Capshaw v. Gulf Ins. Co.,
110 The Court's holding in Nichols is clear: a pretrial settlement cannot be used as a credit where the ghost tortfeasor's liability was not submitted to the jury. We are constrained to аpply the rule in Nichols.
{ 11 Here, because Sims failed to objеct to the verdict form, which did not list Snarky's as a joint tortfeasor, he effectively waived the right to a credit of the settlement against the judgment. See Charles W. Adams, "Recent Developments in Oklahoma Civil Procedure," 83 Tulsa L.J. 539, 554 (1997). "If the defendant who remained in the case had wanted to obtain a credit for the settlement, that defendant should have pressed for the jury to find that the settling defendant was partially liаble by objecting to the trial court's form of the verdict that excluded the settling defendant from liability." Id. at 555 (citing Nichols,
112 Moreover, we are not persuaded by Sims's reliance on Anderson. In this case, no instructions were offered to the jury that concerned the apportionment of negligence to Snarky's. Further, the deduction in Anderson occurred before the verdict was entered. As stated in Nichols, the non-settling defendant lost its opportunity to apply a § 882(H) credit when it failed to:
interpose either (1) a pre-submission objection to the trial court's form of verdict on the nuisance claim (which excluded [settling defendant] ), or (2) a post-submission objection-before the jury's discharge-when the verdict was brought into the courtroom but before its acceptance by the trial judge. Either procedural vehicle was available to secure the jury's assessment of [settling defendant's] non-party liability....
Nichols,
€ 13 Snarky's liability was never presented to the jury, which the Oklahoma Supreme Court has required for a § 832(H) offset. Therefore, thе trial court correctly refused to apply the settlement as a credit to the actual damages awarded by the jury.
{ 14 AFFIRMED.
Notes
. According to the Restatement (Second) of Tоrts § 885(3) (1979), "[a) payment made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against