NO. 92-130 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1993

LARRYBOYKEN,

Plaintiff and Respondent,
v. STEVEN STEELE,

Defendant andAppellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, TheHonorable Thomas M.McKittrick, Judge presiding.

COUNSELOFRECORD:

For Appellant: H. William Coder, Attorney at Law, Great Falls, Montana For Respondent: Patrick F. Flaherty, Attorney at Law, Great Falls, Montana

Submitted on Briefs: August 6, 1992

Decided: February 11, 1993

### Justice Terry N. Trieweiler delivered the opinion of the Court.

Plaintiff Larry Boykenbrought this action against defendant Steven Steele to recover damages for intentional assault and battery. Ajury assessed Boyken's damagesat $2500, but found that Boykenwas75percent responsible for the incident which caused his injuries. The District Court granted Boyken's motion for a judgment notwithstanding the verdict, andawarded the full amount of damages. The District Court did not allow offset against amounts previously received by Boyken for the sameinjuries in a negligence settlement with Lee's Northside Bar. Prom this judgment, Steele appeals. Wereverse. Thefollowing issue is dispositive of this appeal: Wasplaintiff entitled to recover damageswithout regard to amounts collected from another defendant ascompensation for the

same 

### injuries? This action arises from abarroom fight between Larry Boyken andSteven Steele onthe evening of July 25, 1990, which resulted infacial injuries to Boyken. Boykenfiled acomplaint in District Court naming Steele and Lee's Northside Bar in Great Falls as co-defendants. Healleged that Steele had committed assault and battery andthat the bar hadbeennegligent. Prior to trial, Boyken settled with the bar's insurance carrier for $5000. The bar was 

### discharged from any further liability, and the release further stated that any claims for contribution or indemnity against the bar were extinguished. The complaint against the bar wasthen dismissed.
2The claim against Steele was tried in October 1991, and the

jury found that Steele had committed assault and battery when he "sucker punched" Boyken in the eye. The jury found that Boyken's actual damages as a result of that incident totalled $2500. However, the jury also found that Boyken had used profane and abusive language and had challenged Steele to fight him, and was therefore responsible for 75percent of his owndamages. Boyken moved for judgment notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., and argued that the doctrine of comparative negligence should not be applied to bar recovery in
cases based upon intentional torts. The District Court agreed, and
onDecember 5, 1991, granted adirected verdict in favor of Boyken. The court held it was error to instruct the jury onthe doctrine of comparative negligence, and pursuant to the jury verdict, entered judgment for Boyken in the amount of $2500. The District Court also held that the terms of the release signed by Boyken andthe bar had clearly reserved Boyken's right to
sue for the intentional tort of assault, and that the settlement against the bar should not beoffset against the damages recovered from Steele. Therefore, the court concluded that Boyken was entitled to a judgment of $2500 against Steele, with no offset against amounts recovered in the previous settlement. Steele appeals from this decision. We need not address the issue raised by Steele regarding whether it was proper to apply comparative negligence in this situation, because we conclude that Boyken was fully compensated 3for his injuries by the bar and is not entitled to recover an

additional damage award under any legal theory. The jury, after hearing testimony and considering the evidence, found that Boyken had incurred actual damages in the amount of $2500. That finding has not been challenged or appealed. Furthermore, Boyken received $5000 from the bar in avoluntary settlement for those same damages. The law is clear in Montana that when a joint tort-feasor settles with a claimant, the claimant's recovery against the remaining tort-feasor is to be reduced dollar-for-dollar bythe consideration paid bythe settling tort-feasor. 

### Stateex

### rel.Deere&

### Co.V.

### D&ict Court(1986),224Mont. 384, 386, 730 P.2d 396, 398. 

### (SeealsowhitiEgv.state (lYYl), 248 Mont. 207, 810 P.2d 1177; 

### Madduxv.Bunch (1990), 241 Mont. 61, 784 P.2d 936; 

### Kuhnkev.Fisher (1987), 227 Mont. 62, 740 P.2d 625.) This policy provides a single satisfaction for asingle injury. kfaa%I.x, 784 P.2d at 940. In this case, Boyken raised claims against Steele andthe bar
as joint tort-feasors, alleging intentional assault and battery, andnegligence, respectively. These alleged acts together resulted in the facial injuries sustained by Boyken. There can only beone amount of actual damages as aresult of those injuries. The jury found that amount was $2500. Since the $5000 Boyken received in the settlement with the bar exceeds his total actual damages, Boyken is entitled to no additional compensatory damages from Steele.
4Wehold the District Court erred when it entered the judgment

against Steele in the amount of $2500 without allowing anoffset in the amount previously received by Boyken as compensation for the
same injuries. Wereverse and remand for further proceedings consistent with this opinion.

Weconcur:

5