Barnum v. Coastal Health Services, Inc., A07A1561.

• Decision Date: 02 November 2007
• Docket Number: No. A07A1561.,No. A07A1562.,A07A1561.,A07A1562.
• Parties: BARNUM v. COASTAL HEALTH SERVICES, INC. Coastal Health Services, Inc., v. Barnum.
• Court: Georgia Court of Appeals

288 Ga. App. 209

653 S.E.2d 816

BARNUM v. COASTAL HEALTH SERVICES, INC.

Coastal Health Services, Inc., v. Barnum.

No. A07A1561.

No. A07A1562.

Court of Appeals of Georgia.

November 2, 2007.

William J. Scott, J. Converse Bright, Valdosta, for Appellant.

Chambless, Higdon, Richardson, Katz & Griggs, Joseph H. Chambless, David Norton Nelson, Macon, for Appellee.

BERNES, Judge.

These are consolidated appeals arising out of a wrongful death and survival action brought by Burnice L. Barnum, as administratrix of the estate of her uncle Jimmy L. Barnum, against Coastal Health Services, Inc. In Case No. A07A1562, Coastal Health appeals from the trial court's denial of its motion for summary judgment based on the affirmative defense of accord and satisfaction. In denying the motion, the trial court concluded that a settlement agreement reached between the parties did not eliminate all of the plaintiff's claims. We agree with the trial court and, therefore, affirm. In Case No. A07A1561, the plaintiff challenges the trial court's subsequent ruling that in light of the partial settlement and the resulting amendments to the complaint, discovery would be reopened so that Coastal Health could depose any expert the plaintiff anticipated calling at trial, with the expert's fees to be paid by the plaintiff if Coastal Health had previously deposed the expert. We conclude that the trial court acted within its discretion in authorizing Coastal Health to depose the plaintiff's experts, but did not use the proper test for determining whether the plaintiff should pay the fees for any of her own experts' deposition time. Thus, in Case No. A07A1561, we affirm in part, vacate in part, and remand for further action consistent with this opinion.

The record reflects that the decedent, Jimmy Barnum, was an inpatient at Waycross Health and Rehabilitation Center from June 2, 1997 until his death on September 22, 2001. Coastal Health operated the rehabilitation center. Barnum, who was elderly, suffered from numerous medical conditions, including diabetes mellitus, peripheral vascular disease, dementia, incontinence, and stroke-related problems such as difficulty swallowing and reduced mobility. The plaintiff contends that Barnum's condition was stable until he suffered a stroke in December 2000. According to the plaintiff, the nursing staff at the rehabilitation center provided negligent medical care to Barnum after his stroke which, among other things, resulted in him becoming malnourished and dehydrated; caused him to develop pressure ulcers on his feet that in turn required him to undergo numerous painful procedures; and resulted in a decubitus ulcer on his lower back at the coccyx (or tailbone) deteriorating into a stage III and then stage IV ulcer that became septic and caused his death. ¹

In January 2003, the plaintiff, Barnum's niece and the administratrix of his estate, filed this wrongful death and survival action against Coastal Health,² asserting claims for professional negligence, ordinary negligence, and violations of state statutory and federal administrative law. The plaintiff sought to recover monetary damages for the value of Barnum's life, his medical expenses, his pain and suffering, and his funeral expenses. After several years of litigation and after discovery had closed, Coastal Health and the plaintiff entered into a settlement agreement on June 29, 2006 that provided:

This will confirm that we have agreed to settle all claims of Jimmy Barnum, his estate and/or the beneficiaries of his estate arising out of any and all care Mr. Barnum received at Waycross Health and Rehabilitation on or before July 1, 2001.

We will provide you with a check for $75,000.00 and you have agreed not to further pursue any further litigation, collection or contribution actions currently pending or filed in the future dealing with any claims for damages for care provided to Mr. Barnum on or before July 1, 2001. You will provide us with a copy of your Amended Complaint, which will eliminate all claims on or before July 1, 2001, and make it clear that the claims you will now pursue will be limited to those after July 1, 2001.

. . . .

This settlement involves only those claims that you may have had against the nursing home for damages on or before July 1, 2001, as it is your intent to continue to pursue additional claims that you have against the nursing home that allegedly arose and allegedly caused damage to Mr. Barnum after July 1, 2001.³

Following execution of the settlement agreement, the plaintiff sought leave to amend the complaint to limit the claims to those arising after July 1, 2001.

After the plaintiff moved for leave to amend the complaint, Coastal Health filed a motion for summary judgment based on the affirmative defense of accord and satisfaction. Coastal Health contended that the settlement agreement was intended to and in fact did resolve all of the plaintiff's pending claims. The trial court declined to grant the motion. In turn, the trial court granted the plaintiff leave to amend the complaint, but ruled that discovery would be reopened for Coastal Health to have an opportunity to depose any expert that the plaintiff anticipated calling at trial. The trial court went on to rule that the fees for an expert's deposition time had to be paid by the plaintiff if Coastal Health had previously deposed the expert. The plaintiff moved for reconsideration of the trial court's order reopening discovery and reallocating the payment of expert costs. The trial court denied the motion for reconsideration but issued a certification of immediate review. We granted the application, and these consolidated appeals followed.

Case No. A07A1562

1. In Case No. A07A1562, Coastal Health contends that the trial court erred in concluding that the settlement agreement did not resolve all of the plaintiff's pending claims. We disagree.

(a) Coastal Health argues that the settlement agreement should be construed as resolving all of the plaintiff's claims because any other construction would allow the plaintiff to improperly split her claim and obtain a double recovery. As an initial matter, the settlement agreement, read as a whole, plainly shows that it was not the parties' intention to release Coastal Health from all liability.

A mediation or settlement agreement is a contract subject to the usual rules of statutory construction. While the cardinal rule of construction is to determine the intention of the parties, no construction is required or permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.

(Citations omitted.) Peacock v. Spivey, 278 Ga.App. 338, 339(1), 629 S.E.2d 48 (2006). Furthermore, "there is no full and complete release of claims where some claims are specifically reserved by any of the parties." (Citation and footnote omitted.) Dowse v. Southern Guaranty Ins. Co., 263 Ga.App. 435, 438(1), 588 S.E.2d 234 (2003).

Here, the settlement agreement clearly was intended to reserve some of the claims asserted by the plaintiff. In this respect, the agreement specifically provided that the plaintiff would file an amended complaint after execution of the agreement and explicitly stated that the plaintiff was entitled "to continue to pursue additional claims that [she had] against the nursing home that allegedly arose and allegedly caused damage to Mr. Barnum after July 1, 2001." Thus, the agreement did not contemplate that the plaintiff would be required to dismiss all of the pending claims as part of the settlement. Rather, the plain language reflects that the plaintiff was required to dismiss all pending claims flowing from nursing care provided on or before July 1, 2001, but could continue to pursue any claims flowing from nursing care provided after July 1, 2001.

It is true, as Coastal Health asserts, that Georgia law prohibits the splitting of claims such that in suing a particular defendant, "a plaintiff must bring every claim for relief he has concerning the same subject matter in one lawsuit." Lawson v. Watkins, 261 Ga. 147, 149-150(2), 401 S.E.2d 719 (1991). Notably, however, the prohibition against claim splitting is for the benefit of the defendant and thus can be waived by him or her. Story v. Rivers, 220 Ga. 232, 233, 138 S.E.2d 304 (1964). As such, we have held that the prohibition against claim splitting does not apply to a partial settlement, since in that context the defendant has waived any objection to the splitting of the claims. James v. Emmco Ins. Co., 71 Ga.App. 196, 201(2), 30 S.E.2d 361 (1944) ("[T]here is no requirement of law that [requires] the parties to make a full settlement and prevents them from making a partial settlement if they can not agree upon a full one. The rule which requires a plaintiff to bring his action for the entire claim does not apply to a settlement.") (citation omitted). See also 1 AmJur2d, Actions, § 106. Hence, by entering into the settlement agreement with the plaintiff, Coastal Health waived any objection to claim splitting by the plaintiff.

Finally, we note that the troubling question of whether the settlement agreement negotiated by the attorney retained by the first insurer was in Coastal Health's best interests does not affect the outcome here. The general rule is that parties are free to contract about any subject matter and on any terms upon which they agree. Brandon v. Newman, 243 Ga.App. 183, 186(3)(b), 532 S.E.2d 743 (2000). See also Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 675(2), 308 S.E.2d 544 (1983).

(b) Coastal Health also argues that even if the settlement agreement left open the possibility that some claims would remain pending, the record evidence shows that the plaintiff has no claims flowing solely from negligent nursing care provided after July 1, 2001. Specifically, Coastal Health contends that even if the plaintiff may pursue claims that are...