West v. Community Hospital

The issue to be decided at this point is whether plaintiff’s claim against Community Hospital has been discharged by virtue of § 8.01-35.1, Code of Virginia, as amended, under the facts and circumstances of this case.

The Procedural History and Hospital’s Motion to Dismiss as stated in Community Hospital’s memorandum accurately states the facts and legal posture of this case for the purpose of this decision and are adopted for this purpose.

The Court has considered the pleadings, memoranda of counsel and argument of counsel.

The Court is of opinion that the reduction required by § 8.01-35.1 is from the total recovery or total judgment recovered for all damages caused by joint tort feasors. The section is not intended to permit a joint tort feasor to settle for part of the total judgment recovered and have this discharge other joint feasors with statutory liability limitations unless the full judgment amount is recovered. Obviously, however, an injured party cannot recover or be paid from joint tort feasors in the aggregate more than the total recovered judgment.

The Court views the words "amount recovered" to be the judgment recovered, not the amount actually *259paid by each tort feasor, which must be reduced by any settlement.

Accordingly, the Court is of opinion that plaintiff’s claim against Community Hospital has not been discharged by the Gardner settlement.