Barringer v. Baptist Healthcare of Oklahoma, 94,121.

• Decision Date: 03 April 2001
• Docket Number: No. 94,121.,94,121.
• Citation: 2001 OK 29,22 P.3d 695
• Parties: Richard BARRINGER, Plaintiff, v. BAPTIST HEALTHCARE OF OKLAHOMA d/b/a Blackwell Regional Hospital, Third-Party Plaintiff/Appellant, v. R.F. Morgan, M.D., Third-Party Defendant/Appellee.
• Court: Oklahoma Supreme Court

22 P.3d 695

2001 OK 29

Richard BARRINGER, Plaintiff, v. BAPTIST HEALTHCARE OF OKLAHOMA d/b/a Blackwell Regional Hospital, Third-Party Plaintiff/Appellant, v. R.F. Morgan, M.D., Third-Party Defendant/Appellee.

No. 94,121.

Supreme Court of Oklahoma.

April 3, 2001.

Brian E. Dittrich, Linda M. Szuhy, Tulsa, OK, for Appellant.

K. Clark Phipps, Christine M. Benson, Tulsa, OK, for Appellee. BOUDREAU, Justice:

¶ 1 The issue in this appeal is whether the doctrines of waiver and estoppel bar the defendant hospital's claim for contribution from the treating physician. We hold the hospital's contribution claim is not barred.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On June 16, 1993, plaintiff Richard Barringer (plaintiff), then sixteen years old, lost control of the Ford Bronco he was driving and the vehicle rolled over. He was taken to the emergency room at Blackwell Regional Hospital (hospital) where he was treated by R.F. Morgan, M.D. (physician). He is now paraplegic.

¶ 3 On February 15, 1995, plaintiff commenced a medical negligence action against both the hospital and the physician. About two years later he dismissed his claim against the physician without prejudice and proceeded solely against the hospital. The hospital then filed a third-party petition seeking contribution or indemnification from the physician.¹ On October 7, 1997, just before the medical negligence trial was to begin, plaintiff and the hospital entered into a settlement agreement. The hospital paid plaintiff $3 million. In return, plaintiff dismissed his medical negligence claim against the hospital with prejudice and executed a release in favor of both the hospital and the physician. At that time, in October of 1997, the only issue that remained in the case was the hospital's third-party petition against the physician.

¶ 4 In June of 1999, the physician moved for summary judgment. The trial court granted the motion and denied the hospital's motion for new trial. The hospital appealed, the Court of Civil Appeals reversed and the physician sought certiorari review which we previously granted.

II. STANDARD OF REVIEW

¶ 5 A motion for new trial is addressed to the sound discretion of the trial court. Unless it is apparent that the trial court erred in some pure question of law or acted arbitrarily the ruling will not be disturbed on appeal. McMinn v. City of Oklahoma City, 1997 OK 154, 952 P.2d 517.

¶ 6 A summary judgment disposes solely of issues of law and therefore we review it by a de novo standard. Manley v. Brown, 1999 OK 79, 989 P.2d 448, 455. In a de novo review, we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact. Kluver v. Weatherford Hospital Authority, 1993 OK 85, 859 P.2d 1081, 1084.

III. UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT

¶ 7 In 1978 the Oklahoma Legislature enacted the Oklahoma Uniform Contribution Among Tortfeasors Act, 12 O.S.1991, § 832 (the Act). The intent of the Act was to interject judicial control over the distribution of damages in tort claims in which there is more than one tortfeasor. 12 Uniform Laws Annot. 185, 187 (1955 revision, prefatory note) (1996). In Oklahoma, prior to the adoption of the Act, a joint tortfeasor could totally avoid payment to the plaintiff if the plaintiff elected not to sue that tortfeasor. See, e.g., Laubach v. Morgan, 1978 OK 5, 588 P.2d 1071. With the adoption of the Act, a plaintiff's loss is distributed among the joint tortfeasors in proportion to their respective negligence, whether or not plaintiff sued all the tortfeasors. National Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 1989 OK 157, 784 P.2d 52; Hawkins v. Gadoury, 713 A.2d 799, 806 (R.I.1998); 12 Uniform Laws Annot. 194, 196 § 1 cmt. (d) (1955 revision) (1996).

¶ 8 Subsection 832(A) of the Act creates the right of contribution among joint tortfeasors. It provides that when two or more persons become jointly liable in tort for the same injury to a person, there is a right of contribution among them. Subsection 832(B) identifies who is entitled to seek contribution. It provides that the right to contribution exists only in favor of a tortfeasor which has paid more than its pro rata share of the common liability and that the tortfeasor's total recovery is limited to the amount it paid in excess of its pro rata share. Subsection 832(D) identifies the circumstances under which a non-settling tortfeasor is not required to make contribution. Under § 832(D), a non-settling tortfeasor is not required to make contribution unless its liability to the plaintiff has been extinguished by the settlement between the plaintiff and the settling tortfeasor. Reading § 832(A), (B) and (D) together, a tortfeasor who settles with a plaintiff for the full amount of plaintiff's injuries, and who takes a release which releases plaintiff's claims against the alleged joint tortfeasors, is entitled to seek contribution from the released tortfeasors after actual payment of the money to the plaintiff.

¶ 9 However, an alleged tortfeasor defending against a contribution claim is not without defenses. It may assert, among any other available defenses, that it was not a tortfeasor (i.e., that it had no liability to plaintiff) or that the settlement with the plaintiff was not reasonable because the settling tortfeasor paid more than the plaintiff's claim was worth or because the settlement was not made in good faith. 18 Am.Jur.2d Contribution § 127 at 130 (2d ed.1985); In re Guardianship of Babb, 162 Ill.2d 153, 205 Ill.Dec. 78, 642 N.E.2d 1195 (1994); Dubina v. Mesirow Realty Development, Inc., 308 Ill.App.3d 348, 241 Ill.Dec. 681, 719 N.E.2d 1084 (1999); The Home Ins. Co. v. Advance Machine Co., 443 So.2d 165 (Fla.App.1983).

IV. DISCUSSION

A. The Hospital's Denials of Liability

¶ 10 The physician contends the hospital's consistent denials of liability bar the hospital from subsequently asserting its status as a tortfeasor for purposes of contribution under 12 O.S. § 832. The physician argues the following syllogism: one of the prerequisites to seeking contribution is that the party seeking contribution be a tortfeasor; the hospital is barred by the doctrines of waiver and estoppel from asserting its status as a tortfeasor after denying it for four years; therefore the hospital is not entitled to seek contribution.

¶ 11 The physician points to the following instances in which the hospital denied negligence: the hospital's answer to plaintiff's petition and its answer to plaintiff's amended petition; the hospital's allegations in its third-party petition and its amended third-party petition; the hospital's equivocal response to the physician's request for admissions; and the hospital's express denial of liability in its settlement agreement with plaintiff.² The physician points out that it was only after four years of litigation and after the hospital settled with the plaintiff that the hospital finally admitted it was negligent.³

B. Judicial Estoppel

¶ 12 First, the physician contends the doctrine of judicial estoppel bars the hospital's contribution claim. According to the physician, the doctrine of judicial estoppel prevents the hospital from asserting — for purposes of contribution — that it was negligent, since it previously asserted that it was not negligent.

¶ 13 Judicial estoppel is an equitable doctrine designed to bar a party who has knowingly and deliberately assumed a particular position from assuming an inconsistent position to the prejudice of the adverse party. Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 687 P.2d 121, 128. The rule applies to inconsistent positions assumed in the course of the same judicial proceeding or in a subsequent proceeding involving identical parties and questions. Id. It applies to prevent advancement of inconsistent positions only vis-a-vis matters of fact. Parker v. Elam, 1992 OK 32, 829 P.2d 677, 680. It does not prevent a party from asserting a legal theory contrary to one advanced earlier in litigation. Id.

¶ 14 The circumstances under which judicial estoppel may appropriately be invoked are not reducible to any general formulation of principle. Paschke v. Retool Ind., 445 Mich. 502, 519 N.W.2d 441, 450 (1994). Judicial estoppel must be applied with restraint and only in the narrowest of circumstances so as to avoid impinging on the truth-seeking function of the court. Vowers and Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 (1998).

¶ 15 The physician complains about inconsistent positions taken by the hospital in its pleadings and outside its pleadings. With regard to the hospital's pleadings, the hospital denied liability to plaintiff in its answer to both plaintiff's petition and amended petition, and also in both its third-party petition and amended third-party petition against the physician seeking indemnity. Despite these denials of liability, the hospital asserted a contribution claim against the physician — a claim that is necessarily premised on joint liability with the physician to the plaintiff.

¶ 16 We do not view the hospital's assertion in its pleadings of inconsistent facts (negligence and non-negligence) which support alternative theories of recovery (contribution and indemnity) as sufficient to invoke the doctrine of judicial estoppel. Judicial estoppel must not only be applied cautiously and with restraint, it must never be applied in a way that impairs the statutory right granted a party in 12 O.S.1991, § 2008(E)(2), to plead and rely on inconsistent facts, theories, claims and defenses.

¶ 17 The Oklahoma Pleading Codes provides, in pertinent part: "A party may set forth and at trial rely on two or more statements of a claim or defense alternately or hypothetically . . . [and] may also state as many separate claims or defenses as [the party] has, regardless of consistency [.]" 12 O.S.1991, § 2008(E)(2)....