Opinion
No. WD68672
August 26, 2008
Appeal from the Circuit Court of Buchanan County, The Honorable Weldon Clare Judah, Judge.
Trial court's judgment is reversed and the case is remanded with directions to grant summary judgment in favor of Fast.
PAULA L. BROWN, ESQ., KANSAS CITY, MO; and TIMOTHY S. FRETS, CO-COUNSEL, KANSAS CITY, MO, for appellant.
JOHN M. WALDECK, ESQ., LEAWOOD, KS and SUSAN C. HASCALL, ESQ., CO-COUNSEL, LEAWOOD, KS, for respondent.
Before DIV IV: HOWARD, C.J., LOWENSTEIN and WELSH, JJ.
This appeal arises from a suit for indemnity between two doctors, Robert Fast and James Marsten, who were both involved in a gynecological surgery performed on Kimberly Black in 1997. Fast appeals the grant of summary judgment in favor of the defendant, Marsten, on Fast's petition for indemnity. Fast and Marsten were both named defendants in Black's medical malpractice suit. Prior to trial, Marsten settled with Black. Fast, the only defendant to go to trial was adjudged vicariously responsible for Marsten's wrongful acts. Fast then brought suit against Marsten for indemnity. This court concludes that the trial court erred in granting summary judgment in favor of Marsten on Fast's indemnity claim, and rules that Fast was entitled to judgment as a matter of law.
I. FACTUAL BACKGROUND
Black initially consulted Marsten because she was experiencing pelvic pain. Marsten scheduled Black for a diagnostic laparscopy, which the surgeon makes a small incision below the navel to examine the pelvic area. When the laparscopy revealed adhesions, Marsten concluded that a laparotomy, which requires a larger incision cutting into the abdomen, was necessary to remove Black's uterus, left ovary, and left ovarian tube. Marsten proceeded with the laparotomy and called for Fast, his medical group's gynecologist on call, to assist. Fast arrived ten minutes later and assisted in the surgery that lasted another fifty-five minutes.
Black continued to experience abdominal problems after the surgery. In 2003, Black consulted a doctor who discovered a laparotomy sponge had been left near the abdominal wall during the 1997 surgery. The sponge was removed and, in May 2004, Black filed suit against doctors Marsten and Fast, St. Joseph OB-GYN, Inc., and Heartland Regional Medical Center.
St. Joseph OB-GYN was the medical group to which both doctors were employed.
Prior to trial, Heartland Regional Medical Center and Marsten settled with Black. In return for the settlement, Marsten was released from all claims under an agreement signed by Black ("the Release"). Fast and St. Joseph OB-GYN were the only defendants that remained at the time of trial. The case was tried before a jury in May 2006. In finding for the plaintiff, the jury returned two verdicts. In Verdict A, the jury entered a verdict for Black and against Fast and assessed damages at $223,000. In Verdict B, the jury apportioned 100% of the fault to Marsten, finding Fast 0% at fault. The trial court entered a judgment against Fast, the appellant here, finding him vicariously liable for the fault of Marsten, the respondent here; and St. Joseph OB-GYN vicariously liable for Fast's imputed liability, jointly and severally, for $223,000. Fast appealed that judgment to this court ("Fast I").
While the appeal in Fast I was pending, Fast brought suit for indemnity against Marsten ("Fast II") asserting that, as Fast was vicariously liable for the fault apportioned to Marsten, Fast was entitled to indemnity from Marsten for the judgment, costs, and expenses of Fast I. Marsten contended that he was discharged from any liability for indemnity by the provisions of Section 538.230, or, alternately the Release, and that he had "bought his peace" in the Fast I. Cross-motions for summary judgment on those theories were filed. After a hearing on the motions in July 2007, the trial court granted summary judgment in favor of Marsten. The judgment read, in pertinent part:
All statutory references are to RSMo (2000) unless otherwise specified.
Plaintiffs under their petition for indemnification seek recovery against Defendant for sums awarded another Plaintiff and against them under the theory of "vicarious liability" following the determination by a jury as to that other Plaintiff's entitlement thereto under the case of Kimberly Black v. Robert E. Fast, M.D., et al. , . . . presently pending before the Missouri Court of Appeals — Western District, case number WD67377. Following presentation of the motions, and despite the fact that the Court made known to Plaintiffs the Court's belief that their action was premature and not ripe for adjudication, Plaintiffs declined to dismiss their action, without prejudice to the refilling of the same, and insisted upon this Court's ruling as to their motion. . . .
As to Plaintiff's Motion for Summary Judgment, the Court is unable to find that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law, and the Court will deny Plaintiff's request for relief thereunder.
As to Defendant's Cross Motion for Summary Judgment, the Court finds that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law, and the Court will grant Defendant's request for relief thereunder.
After briefing of this appeal, but prior to argument and submission, this court, in a per curiam opinion, affirmed the judgment in Fast I in Black v. Fast , 254 S.W.3d 114 (Mo.App. 2008).
II. DISCUSSION
Fast raises two points on appeal. He first argues, in response to the trial court's statement in the judgment that the court believed the indemnity action was premature, that his claim was ripe for adjudication. He next argues that the trial court predicated its grant of summary judgment in favor of Marsten on inconsistent applications of Section 538.230 and 537.060.
This court reviews the grant of a motion for summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 s.w.2D 371, 376 (Mo. banc 1993). Summary judgment is appropriate when a party establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 74.04(c)(6). "The party granted summary judgment must show both entitlement to it affirmatively and that the other party would not be entitled to recover under any discernable circumstances." Manar v. Park Lame Med. Ctr. , 753 S.W.2d 310, 314 (Mo.App. 1988).
A. FAST'S CLAIM WAS RIPE.
Fast first claims that his claim for indemnity was ripe and proper for adjudication notwithstanding the pending appeal in the underlying suit. A claim for indemnity is an anticipatory claim that is ripe for adjudication when the defendant has suffered a judgment and liability has attached. Hemme v. Bharti , 183 S.W.3d 593, 598 (Mo. banc 2006) (citing Safeway Stores, Inc. v. City of Raytown , 633 S.W.3d 727, 731 (Mo. banc 1982)). When a judgment is entered against a defendant, that defendant is then "permitted to bring an independent action against a co-defendant for indemnity or contribution." Id. "If the indemnity is against liability, the cause of action accrues as soon as liability occurs, and no actual loss need be shown." Burns McDonnell Eng'g Co. v. Torson Constr. Co. , 834 S.W.2d 755, 758 (Mo.App. 1992). That an appeal of the underlying judgment is pending when the suit for indemnity is filed is not determinative, in that the defendant's liability becomes fixed and established upon entry of judgment in the underlying suit. Glidewell v. S.C. Mgmt., Inc. , 923 S.W.2d 940, 960 (Mo.App. 1996).
Here, Fast suffered a judgment in Fast I on May 30, 2006, when the court entered judgment finding him vicariously liable for Marsten's actions and ordering him to pay $223,000 in damages to plaintiff Black. Entry of judgment against him in the underlying medical malpractice suit was a sufficient basis upon which Fast could seek indemnity against liability from Marsten in Fast II. The appeal of Fast I had no legal effect on whether Fast could maintain his suit for indemnity. Thus, Fast's claim for indemnity against Marsten was properly before the court.
B. SECTION 538.230 IN INAPPLICABLE TO FAST'S CLAIMS.
Fast next claims that, in granting summary judgment for Marsten, the court inconsistently applied portions of Sections 538.230 and 537.060. He claims, as he was found 0% at fault, Section 538.230 should have operated to prevent any recovery against him. He contends that the trial court failed to apply Section 538.230 but applied the release provisions of Section 537.060 to his detriment. Whether one, both, or neither, of the statutes apply to Fast's action is determined by the nature of Fast's liability in Fast I. The nature of Fast's underlying liability first must be addressed.
Black's theories at the medical malpractice trial were: (1) Fast was directly liable for leaving the sponge in her abdomen; or (2) Marsten left the sponge in her abdomen and Fast was vicariously responsible for Marsten's actions. Black did not posit that Fast and Marsten were jointly or concurrently liable for the injury. Rather, she argued that Fast bore the entire responsibility, either for his own acts or vicariously for Marsten's wrongful acts.
A physician independently employed or acting independently in a case is not liable for the wrongful act of another physician unless the one observed or, in the exercise of ordinary care, should have observed the wrongful act of the other. Crump v. Piper , 425 S.W.2d 929, 928 (Mo. 1968). Where the physicians are jointly employed or acting jointly, each physician is answerable for his own negligence and vicariously for the negligent acts or omissions of the other. Coon v. Dryden , 46 S.W.3d 81, 89 (Mo.App. 2001).
Accordingly, Verdict Director B, requiring the jury to apportion fault between Marsten and Fast, may have been given in error. Apportionment of fault is proper where the plaintiff asserts that medical defendants are joint or concurrent tortfeasors. Hewlett v. Lattinville , 967 S.W.2d 149, 152 (Mo.App. 1998). Black did not contend joint or concurrent liability between Fast and Marsten. As Verdict Director B was given in error, the court did not err in declining to apply the provisions of Section 538.230 to prevent any recovery in Fast II.
Nevertheless, Verdict B indicates that the jury did not find Fast personally culpable for the injury as the jury apportioned him 0% fault. Fast's only liability, then, was his vicarious responsibility for Marten's negligence. Having concluded that Fast's only liability in the Fast I was derivative, vicarious liability, the applicability of Sections 538.230 and 537.060 can be assessed.
In the cross-motions for summary judgment, Fast and Marsten both relied on the provisions of Section 538.230. Fast claimed he was only liable for the fault apportioned to him in Verdict B — effectively, none — and Marsten claimed he was discharged from all liability for contribution or indemnity by virtue of the statute's release provisions.
Section 538.230 "addresses the effect of a settlement by one of several defendants in a medical malpractice case." Scott v. SSM Healthcare St. Louis , 70 S.W.3d 560, 568 (Mo.App. 2002). This section provides, generally, that the release of one party defendant is not effective to release co-defendants unless the release specifies otherwise. Section 538.230. By operation of the statute, the released tort-feasor is discharged "from all liability for contribution or indemnity." Id. The remaining, non-settling defendants are "entitled to have a judgment against them reduced by the percentage fault allocated to a settling party." Scott , 70 S.W.3d at 568.
By his plain language, however, Section 538.230 "applies only in those cases ' where fault is apportioned.'" Glidewell . In other words, Section 538.230 only applied where multiple joint or concurrent tortfeasors each have been allocated a portion of the fault. Section 538.230 is inapplicable where a defendant is found vicariously liable because "when a claim is based upon vicarious liability, there is no basis for apportionment of fault." Id. at 946.
Because some measure of fault was not apportioned to each of defendants in the malpractice suit, Section 538.230 is inapplicable to both Fast's claim and Marsten's defense. Fast's only liability was derived; he was found vicariously liable for Marsten's negligence. The grant of Marsten's cross-motion for summary judgment based on the application of Section 538.230 was in error.
C. THE RELEASE DOES NOT BAR FAST'S ACTION IN INDEMNITY
Fast next contends that the trial court improperly applied Section 537.060 in granting Marsten's motion for summary judgment. Application of Section 537.060 is not limited to medical malpractice suits, but, rather, the section applies generally to tort suits. The section provides that, when a party defendant settles and, by agreement with the plaintiff, is released from further claims, the agreement shall not "discharge any of the other tort-feasors for the damages unless the terms of the agreement so provide." Section 537.060. Moreover, the party defendant so released is discharged from "all liability for contribution or non-contractual indemnity to any other tortfeasor." Id. "Noncontractual indemnity," as used in the statute, "refers to indemnity between joint tort-feasors culpably negligent, having no legal relationship to each other and does not include indemnity which comes about by reason of contract, or by reason of vicarious liability." Id. (Emphasis added.) The remaining tortfeasors are entitled to a dollar-for-dollar set off from the assessed judgment by the stipulated amount of the settlement. Id.
The analysis in Manar v. Park Lane Medical Center , 753 S.W.2d 310 (Mo.App. 1988), is instructive in determining whether Section 537.060 applies to this case. In Manar , the plaintiff brought suit against five osteopathic physicians, a nurse anesthetist, and a hospital. Id. at 310 Prior to trial, the plaintiff settled with and released the individual physicians and nurses but reserved her claims against the hospital. Id. The hospital moved for summary judgment, contending that the release of the servant effectively released the master. The trial court granted the motion without stating its grounds. Id. at 310-11.
In reversing the grant of summary judgment, the eastern district of this court found that Section 537.060 permitted a claimant to settle with one or more defendants without impairing claims against a party who could only be found liable on a theory of vicarious liability. Id. at 313. The vicariously liable party's right to indemnification is not extinguished because such indemnity is expressly excluded from the statutory definition of noncontractual indemnity. Section 537.060. The statute's dollar-for-dollar offset and discharge of liability provisions were inapplicable because, the court concluded, "where the suit proceeds against the non-settling and vicariously liable [party], the latter's right to indemnity survives the settlement reached by the [another party] whose responsibility is released only to the extent of his payment." Id. at 314.
Fast's remedy against Marsten is in indemnity, not contribution. Although the terms indemnity and contribution are often conflated or used interchangeably, they are separate and distinct concepts. SSM Healthcare St. Louis v. Radiologic Imaging Consultants, LLP , 128 S.W.3d 534, 539 (Mo.App. 2003). Contribution seeks to distribute loss among joint tort-feasors by requiring each to pay his proportionate share. Id. To invoke contribution, the parties must share a common liability and the party seeking contribution "has discharged more than his fair share of the common liability of burden." Id.
Indemnity is not applicable where there is a shared or common burden. Rather, indemnity is applicable where a party is held liable purely by the imputation of law because of the party's relationship to the wrongdoer. Id. "Indemnity is a right that inures to the person who has discharged a duty that is owed by him, but which, as between himself and another, should have been discharged by the other, so that if the other does not reimburse the person, the other is unjustly enriched to extent that his liability has been discharged." Id.
Fast was adjudged vicariously liable for Marsten's wrongful acts. Fast is only liable by imputation of law because of his relationship with Marsten. Thus, Fast's remedy lies in indemnity arising from his vicarious liability for Marsten's wrongful acts. By its own terms, Section 537.060 does not apply to vicarious liability, and Marsten is not released of his duty to indemnify Fast.
Accordingly, the Release was not effective to discharge any duty Marsten owed to Fast. This result is consistent with the "principle that every one is responsible for the consequences of his own wrongdoing, and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him." Id. The culpable party cannot seek to evade the consequences of his own wrongdoing by shifting those consequences to another person whose only liability arises from a relationship to the wrongdoer. If summary judgment was granted to Marsten on the application of the Release and Section 537.060, it was done in error.
III. CONCLUSION
Neither Section 538.230, Section 537.060, nor the Release discharge Marsten's duty to indemnify the vicariously liable Fast for the damages assessed in the medical malpractice suit. Fast's action properly lies in indemnity. Marsten is discharged from his duty to indemnify Fast only to the extent of his payment to Black.
As no material facts are at issue, Fast is entitled a grant of summary judgment as a matter of law. The judgment is reversed, and the case is remanded to the trial court with directions to grant summary judgment in favor of Fast.
All Concur.
Dr. Robert Fast appeals the grant of summary judgment in favor of defendant, Dr. F. James Marston, on Fast's petition for indemnity. The doctors were both defendants in a medical malpractice suit. Prior to trial, Marston settled with the plaintiff and was released from further liability. Fast proceeded to trial where the jury rendered a verdict for the plaintiff and, although the jury found Fast was not personally negligence, found him vicariously liable for Marston's malpractice. While the medical malpractice suit was on appeal, Fast brought suit against Marston for indemnity. The parties filed cross-motions for summary judgment. Each party asserted that no genuine issues of material fact were in dispute. Fast asserted that he was entitled to indemnity because he was held vicariously liable for Marston's wrongful actions. Marston claimed he was discharged from all liability for indemnity and contribution by the operation of the release and Section 538.230. The trial court granted summary judgment for defendant Marston without specifying its grounds for doing so.
All statutory references are to RSMo (2000) unless otherwise specified.
Section 538.230 was repealed by H.B. 393, 93rd Gen. Assem., 1st Reg. Sess. (Mo. 2005), effective August 2005, applied to the malpractice suit because the petition was filed prior to repeal, in May 2004.
This court finds that the release granted Marston by the malpractice plaintiff does not bar Fast's action for indemnity. Section 538.230 is only applicable where fault is apportioned between multiple tortfeasors, not where a defendant is adjudged vicariously liable for the actions of a settling defendant. The release does not serve to bar Fast's action for indemnity as Section 537.060, applying to settlements in tort suits, by its own terms does not apply to indemnity arising from vicarious liability.
The trial court's grant of summary judgment in favor of Marston was in error. Fast was entitled to judgment as a matter of law. The trial court's judgment is reversed and the case is remanded with directions to the trial court to grant summary judgment in favor of Fast.