Kirby V. New Mexico State Highway Department

In a suit for the wrongful death of Mark Cummings and for personal injuries suffered by Katherine Kirby, the jury returned a verdict against the State Highway Department (SHD) for $55,000 in favor of Cummings's representative, and for a total of $17,207.09 for Kirby and her father/next friend. The trial court awarded plaintiffs' costs against SHD. It refused SHD's proposed form of judgment which provided for set-off on the jury verdicts to the extent of payments of $9,000 to Kirby and $22,500 for Cummings' death made by another alleged, but not sued, joint tortfeasors "pursuant to New Mexico Uniform Contribution Among Tortfeasors Act," and for which releases had been given by plaintiffs. SHD appeals the award of costs and denial of the set-offs. We affirm the allowance of costs and the Kirby judgment, and reverse, with instructions, the wrongful death award to Cummings's representative.