to the agreement, the settling defendant was required to pay $125,000.00 to plaintiff immediately. In addition, if the settling defendant was found liable in an amount exceeding $ 125,000.00, it would have to pay up to an additional $25,000.00 regardless of the actual amount awarded by the jury. Id. at 1183. Thereafter, the remaining defendants tendered $25,000.00 to the registry of the court in order to satisfy the settling defendant's contingent liability, id. at 1184, and removed to the District Court. On motion by the plaintiff, the Higgins court remanded, finding the dismissal neither the result of a voluntary act of the plaintiff nor a final settlement of the claims against the non-diverse defendant. Id.
In the case before me, plaintiff argues that the settlement she agreed to was not a final settlement with the ACF defendants, because the sum she will receive is contingent on the total amount of the verdict. Plaintiff argues that the conditional nature of the settlement renders this case indistinguishable from Higgins. GAF seeks to distinguish Higgins by pointing out that under the settlement, even though the jury will be required to determine the total amount of harm attributable to all defendants as joint tort-feasor
which were suffered by the plaintiff, it will not be required to determine the settling defendants' liability to the plaintiff. As a result, GAF argues, the jury will not be required to determine the precise amount that the ACF defendants will be liable to plaintiff and therefore the settlement is final.
I agree with plaintiff. The agreement entered into by plaintiff and the ACF defendants certainly alters the normal direct correspondence between the jury's assessment of liability and the ACF defendants' liability. The partial settlement adopts some alternative formula by which to convert the jury's finding of liability into a dollar figure owed by the settling defendants to the plaintiff. The fact remains that the jury's finding will determine the amount of liability of the "settling" defendants. Under these circumstances, I am unable to conclude that the agreement between the plaintiff and the ACF defendants is a final settlement of all claims between them. This case will be remanded to the Court of Common Pleas.
An appropriate Order follows.
AND NOW, this 30th day of March, 1987, it is hereby Ordered that plaintiff's motion to remand this action to the Court of Common Pleas for Philadelphia County Pennsylvania is GRANTED. The Clerk of Court shall remand this case to the Court of Common Pleas of Philadelphia County Pennsylvania.
AND IT IS SO ORDERED.