Aherron v. St. John's Mercy Medical Center

• Decision Date: 15 July 1986
• Docket Number: No. 67563,67563
• Parties: Thomas AHERRON, et al., Appellants, v. ST. JOHN'S MERCY MEDICAL CENTER, Defendant-Appellant, Robert Taylor, M.D., Respondent.
• Court: Missouri Supreme Court

Page 498

713 S.W.2d 498

Thomas AHERRON, et al., Appellants, v. ST. JOHN'S MERCY MEDICAL CENTER, Defendant-Appellant Robert Taylor, M.D., Respondent.

No. 67563.

Supreme Court of Missouri,

En Banc.

July 15, 1986.

Jerome F. Raskas, Mark D. Sadow, St. Louis, Gary Paul, Bernard C. Brinker, Clayton, for appellants.

Joseph M. Kortenhof, Joseph H. Raybuck, St. Louis, for respondent.

ROBERTSON, Judge.

Consolidated appeals of Thomas and Jacqueline Aherron, plaintiffs in a medical malpractice action, and St. John's Mercy Medical Center, one of two defendants, sued by the Aherrons. Plaintiffs appeal from summary judgment entered against them on their claim against the second defendant, Robert Taylor, M.D. Defendant Hospital appeals from the trial court's judgment dismissing part of its cross-claim against Taylor. Following an opinion by the Eastern District in which both judgments were reversed, this Court granted transfer. Treating this case as on original appeal, art. V, § 10, Mo. Const., we also reverse the trial court's judgments and remand the cause for reinstatement of the terminated claims.

I.

The pertinent facts are not disputed. Plaintiffs filed an amended petition against Taylor and the Hospital, claiming medical negligence on the part of Taylor and vicarious liability for Taylor's negligence on the part of the Hospital, as Taylor's employer. The Hospital filed a two-count cross-claim against Taylor. In the first count, the Hospital sought indemnity against Taylor for any judgment rendered against it based on derivative liability for Taylor's negligence. In its second count, the Hospital sought non-contractual indemnity based on an apportionment of relative fault, should both parties be found primarily negligent.

Taylor moved to dismiss the Hospital's cross-claim on the ground that, since it was a cause of action based on an act of medical neglect, and since it was filed later than two years after the act of neglect complained of, it was barred by the medical malpractice statute of limitations, § 516.105, RSMo 1978. The trial court sustained the motion as to Count I, but overruled the motion as to Count II, "insofar as it requests an apportionment of liability based upon the relative fault of the defendants."

Subsequently, plaintiffs entered into a settlement agreement with the Hospital, whereby the Hospital agreed to pay a structured settlement and to dismiss its cross-claim against Taylor without prejudice, in return for plaintiffs' promise to release the Hospital from further liability. The agreement recited that it did not constitute a release of Taylor. Plaintiffs also executed a document styled Partial Release, releasing the Hospital from all claims arising out of the underlying accident, but expressly reserving their claims against Taylor. On March 5, 1984, the Hospital filed a document in the Circuit Court stating that it "dismiss[ed] its cross-claim against defendant Taylor without prejudice."

Taylor moved for summary judgment against plaintiffs on the ground that the release of an employer from vicarious liability for the acts of an employee also serves to release the employee, irrespective of any reservation of rights accompanying that release. The trial court entered summary judgment in Taylor's favor on that motion.

II.

Turning first to the Hospital's appeal, the trial court erred in dismissing the Hospital's claim for indemnity as untimely filed under § 516.105. In Rowland v. Skaggs Companies, Inc., 666 S.W.2d 770 (Mo. banc 1984), this Court held that a claim under Missouri Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978), for apportionment of fault need not be subject to the statute of limitations applicable to medical malpractice actions, § 516.105, RSMo 1978, because of the independent nature of that claim from the underlying claim of the plaintiff for damages. In that respect, the Whitehead & Kales claim was effectively treated as a claim for indemnity, although one which arises prior to the payment of a judgment. These same principles apply to the claim asserted here, which is unequivocally couched in terms of indemnity, although of a non-contractual nature. The hospital's claim for indemnity is at least as independent of the underlying claim for damages as that considered in Rowland, and is likewise not subject to the period of limitations stated in § 516.105.

Taylor asserts, however, that the Hospital may not appeal from the involuntary dismissal of its indemnity claim, because, having filed a subsequent, undifferentiated dismissal of its cross-claim, it is no longer a "party" to the suit.

Section 512.020, RSMo 1978, provides in pertinent part that "[a]ny party to a suit aggrieved by any judgment of any trial court ... may take his appeal ... from any final judgment in the case...." The statute does not require that the aggrieved party be a "party" in the sense that he either has or is subject to a pending claim, notwithstanding the effects of the judgment of which he complains.

Were defendant Taylor's argument correct, it would effectively remove the right of appeal from any claimant whose claim has been dismissed, whether voluntarily or involuntarily. Generally, a party may not appeal from a voluntary dismissal of his action; however, this is not because he is no longer a "party," but because he is not aggrieved. Here, defendant Hospital is aggrieved by the trial court's judgment involuntarily dismissing its cross-claim for indemnity. ¹

Even if defendant Hospital is a party, defendant Taylor argues that the Hospital is not genuinely aggrieved by the involuntary dismissal of its cross-claim for indemnity. On March 2, 1984, the Hospital filed a dismissal in the trial court as follows: "Defendant St. John's Mercy Medical Center dismisses its cross-claim against defendant Taylor without prejudice." Taylor argues that the undifferentiated language of the document constitutes a voluntary dismissal of both counts of the Hospital's cross-claim against Taylor, that the Hospital is not an aggrieved party and, therefore, the Hospital has no standing to appeal. We disagree.

Although the language of the dismissal document is not to be recommended under these circumstances, the fact remains that Count I of the Hospital's cross-claim was dismissed by the trial court on December 2, 1983. When the Hospital filed its dismissal, its cross-claim consisted of only Count II, Count I having been dismissed by the trial court. It is logically inconsistent to dismiss voluntarily that which has already been involuntarily dismissed. We do not believe that the Hospital's voluntary dismissal filed March 2, 1984, can be read as a voluntary dismissal of Count I, under these circumstances. The Hospital is an aggrieved party authorized to appeal in this matter.

Rowland, supra, therefore, requires reversal of the trial court's dismissal of Count I of the Hospital's cross-claim against Taylor.

III.

On their appeal, the Aherrons charge that the trial court erred in granting Taylor summary judgment based on their release of the Hospital. The Aherrons urge that the express terms of the release reserved their claim against Taylor, and that such a release of an employer, against whom only vicarious liability is asserted, does not effectively release an employee. We agree.

Max v. Spaeth, 349 S.W.2d 1, 3 (Mo.1961), includes dicta that "release of the master releases the servant." We need not determine whether that dicta correctly states the law in Missouri in cases involving vicarious liability. ²

The pertinent rule is provided by § 537.060, RSMo Cum.Supp.1984. Under that section,

Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontractual indemnity to any other tort-feasor. The term "noncontractual indemnity" as used in this section 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. The second and third sentences of this section, added by Laws 1983, p. 914, are substantially the same as § 4 of the Uniform Contribution Among Tortfeasors Act (1955 Revision), 12 U.L.A. 57 (1975) (hereafter UCATA).

An employee and a vicariously liable employer are "persons liable in tort for the same injury or wrongful death," and therefore subject to the statutory provisions controlling partial settlement and release. In Clark v. Brooks, 377 A.2d 365 (Del.Super.1977), aff'd sub nom Blackshear v. Clark, 391 A.2d 747 (Del.1978), the court interpreted a Delaware statute drawn from an earlier version of the UCATA. Under the earlier language, similar provisions regarding the effect of partial settlement and release were applied to agreements with "persons jointly or severally liable in tort for the same injury." Del. Code Annot. tit. 10, §§ 6301, 6304 (1974). That court held that these provisions were pertinent to settlement agreements involving employees and their vicariously liable employers. Accord, Holve v. Draper, 95 Idaho 193, 505 P.2d 1265 (1973). While the Clark court resisted the conclusion, it is apparent that the revised language of the UCATA,...