Syverson

This is an appeal by defendant Stephen Heitmann from a judgment entered after a jury found him liable to plaintiff Richard Syverson for personal injuries and assessed damages in the amount of $100,000. Prior to trial plaintiff had settled with other codefendants for the sum of $100,000. Defendant contends (1) the judgment must be modified to state that plaintiff take nothing from defendant as the verdict award is completely offset by the amount plaintiff received in settlement with other defendants; and (2) since the award is completely offset, defendant is the “prevailing party,” entitling him to an award of costs. Plaintiff asserts he is the prevailing party for purposes of costs and further that he is entitled as costs those sums paid for the services of expert witnesses. Defendant’s first contention has merit. We disagree, however, that he is the “prevailing party” and shall reverse with directions to correct the judgment with respect to damages and shall remand to the trial court with directions to determine the recoverable costs of plaintiff and to award him those costs.

We observe initially that this case is before us on an appeal from the judgment which appeal…