American Medicorp, Inc. v. Lord, 8186

• Decision Date: 15 February 1979
• Docket Number: No. 8186,8186
• Citation: 578 S.W.2d 837
• Parties: AMERICAN MEDICORP, INC., et al., Appellants, v. Daniel LORD et al., Appellees.
• Court: Texas Court of Appeals

Page 837

578 S.W.2d 837

AMERICAN MEDICORP, INC., et al., Appellants, v. Daniel LORD et al., Appellees.

No. 8186.

Court of Civil Appeals of Texas, Beaumont.

Feb. 15, 1979.

Jack R. Martin and D. K. Sperry, Houston, for appellant.

Joseph F. Archer, Don Weitinger, Russell H. McMains, Tom W. Foster, Houston, Harry S. Jones, Bellaire, Wayne Sturdivant, Amarillo, William A. Harrison, Houston, for appellee.

CLAYTON, Justice.

This is a wrongful death action brought by appellant Daniel Lord and the Minors Dayna and Sherrie Lord (plaintiffs below), as surviving husband and children of Carolyn Ann Lord, for the wrongful death of Mrs. Lord while an obstetrics patient at Southmore Medical Center, Inc.

The basic undisputed facts are that Carolyn Lord entered Southmore Hospital and was the second patient who used the delivery room in question after the new hospital was opened and began its operations. It is undisputed that she died of anoxia due to a cross-connection between nitrous oxide and oxygen pipelines, or, as was contended by two of the defendants, that the inert testing gas, nitrogen, was never purged from the system and that anoxia resulted therefrom.

The original named defendants were Harcon Corp.; Ohio Medical Products Co.; Lambert Construction Co.; Pierce, Goodwin and Flanagan, an architectural company partnership; Pierce, Goodwin and Flanagan, individually; Southmore Medical Center, Inc.; American Medicorp, Inc.; and Wharton Development Co. Prior to trial, plaintiffs settled with Ohio Medical; Pierce, Goodwin, and Flanagan, individually and as a co-partnership; and orders of non-suit were entered as to these parties; however, they remained in the case because of the various cross-actions filed against them. Cross-actions were filed and prosecuted by each named defendant against all other named defendants.

The case was submitted to a jury on special issues. In response to a general negligence charge, the jury found that American Medicorp, Inc., was negligent and the percentage of its negligence was forty-five percent; Southmore Medical Center, Inc., was forty-five percent negligent; American Medicorp Development Co. was five percent negligent; and Medicorp Management, Inc. was five percent negligent. The jury exonerated defendants Harcon, Lambert, Ohio Medical, and Pierce, Goodwin and Flanagan from any negligence. The jury awarded actual damages in the amount of $2,000,000 and exemplary damages in the amount of $5,000,000 against Southmore Medical Center, Inc. The trial court entered judgment against American Medicorp, Inc.; American Medicorp Development Co.; Medicorp Management, Inc.; and Southmore Medical Center, Inc. all of whom are hereinafter referred to as appellants for actual damages in the sum of $1,000,000, and in the sum of $1,000,000 against Southmore Medical Center as exemplary damages. All damages were duly apportioned between the plaintiffs. The trial court further decreed that ". . . each of the Cross-Plaintiffs . . . recover nothing of and from each of the Cross-Defendants by virtue of such cross-actions for contribution and/or indemnity." Appellants have duly perfected their appeal from such judgment. Defendants Harcon, Lambert, and Ohio Medical are herein referred to as appellees.

On the 20th day of September 1978, and during the pendency of this appeal, this court, upon joint motion of appellants and the plaintiffs (Lords), entered an order wherein "The appeal of the appellants American Medicorp, Inc., American Medicorp Development Company, Medicorp Management, Inc. and Southmore Medical Center, Inc., as to the appellees Daniel Lord, Sherrie Lord, and Dayna Lord is hereby severed from the remainder of the cause and the judgment, insofar as it relates to said Lord plaintiffs only, and is here and now reversed and the cause is remanded to the District Court of Harris County . . . for hearing as to approval of settlement and division of proceeds to minor appellees Dayna Lord and Sherrie Lord." This order was made without prejudice to any of the rights of the remaining parties to this appeal, and the right of any party to indemnity and contribution from any other party "has not been adjudicated but remains for determination after submission of the remainder of the cause to the court."

Pursuant to the above order of reversal and remand of that part of the cause, a settlement was effected between the appellants and the plaintiffs (Lords) which was duly approved by the trial court. The settlement between the parties was consummated by what is designated as an "Assignment of Judgment." By the terms of this instrument, the plaintiffs (Lords) did ". . . SELL, ASSIGN, and CONVEY, all (their) right, title and interest in any and all actions and causes of action of whatsoever nature against any and all parties who are or may be liable for the death of Carolyn Ann Lord, . . . and all of (their) right, title and interest in the Judgment heretofore entered in this cause, . . . Except That the plaintiffs . . . expressly retain the right to receive the sum of . . . ($75,000) from Ohio Medical Products Co. and . . . ($50,000) from Harcon Corporation pursuant to their respective settlement agreements, and this assignment is expressly subject to such agreements. . . ." The consideration for this assignment was $1,050,000. The trial court duly apportioned such sum between the adult plaintiff and the minor plaintiffs.

By virtue of the severance and settlement between appellants and the plaintiffs (Lords) the remaining portion of this appeal concerns the rights of the appellants to indemnity or contribution from the appellees Harcon Corporation, Lambert Construction Company, and Ohio Medical Products Company. It has been stipulated by appellants that they do not further prosecute this appeal against Pierce, Goodwin and Flanagan, either individually or as a co-partnership.

During the course of the oral submission, appellants asked leave to file a post-submission brief addressed to the legal effects of the settlement made by them with the plaintiffs, particularly as to appellants' rights to indemnity or contribution. This court granted leave to file such brief on the condition that the brief be filed only for such purpose and not for the purpose of presenting any additional points or arguments not previously presented or briefed. By their post-submission brief, appellants have presented...