improper. The instruction ignored plaintiffs' theories that Dolphin Pools failed in its pool maintenance duties and that the murky water was a concurrent, rather than the sole, cause of Mitchell Spergel's drowning.
II. Defendant's Motion to Amend Judgment to Include Credit
This action began as both a survival and wrongful death action. According to the settlement agreement, the motel defendants purportedly paid $ 300,000 to settle the survival action and $ 50,000 to settle the wrongful death action. At trial, plaintiffs voluntarily dismissed the wrongful death count and proceeded only on the survival action. Dolphin Pools now claims that it is entitled to a credit of the settlement amount, or $ 350,002.
Plaintiffs first claim that Dolphin Pools can receive credit only for the amount of settlement for the survival action, or $ 300,000. The Court rejects this theory. A plaintiff can recover no more than the loss actually suffered. The jury verdict represents the full measure of this loss. Snowden v. D.C. Transit System, Inc., 147 U.S. App. D.C. 204, 454 F.2d 1047, 1048 (D.C. Cir. 1972). To deny Dolphin Pools credit of the wrongful death settlement would effectively allow plaintiffs to recover $ 50,000 more than the jury verdict and would constitute unjust enrichment.
Plaintiffs also argue that defendant Dolphin Pools can only receive credit for 50% of the jury verdict ($ 339,739) on the theory that there were only two tortfeasors prior to trial -- the motel and the pool management company. This claim belies the record. Plaintiffs named five defendants as joint tortfeasors, four of which settled the case and purportedly contributed to the settlement sum.
Even if defendants Winberg Management Company and 1600 New York Avenue were considered to be one single tortfeasor, there would still be three settling defendants and Dolphin Pools would be entitled to a credit of up to 3/4's of the jury verdict (well more than the settlement amount here). Accordingly, Dolphin Pools is entitled to a credit of the full settlement amount, $ 350,002.
For the reasons set forth above, IT IS ORDERED that:
Defendant Dolphin Pools' motion for judgment notwithstanding the verdict is DENIED;
Defendant Dolphin Pools' motion for a new trial is DENIED;
Defendant Dolphin Pools' motion to amend judgment is GRANTED. The Judgment on the Verdict entered on May 31, 1990 is amended to read that the plaintiffs "have and recover of and from the defendant Dolphin Pools the sum of three hundred twenty-nine thousand, four hundred seventy-six dollars ($ 329,476) together with costs."