Brousseau v. Jarrett

Decision Date03 October 1977
Citation141 Cal.Rptr. 200,73 Cal.App.3d 864
CourtCalifornia Court of Appeals Court of Appeals
PartiesBrian E. BROUSSEAU, a minor, by and through Raymond Brousseau, his Guardian ad Litem, Plaintiff and Appellant, v. Jerald JARRETT, M. D., Defendant and Respondent. Civ. 14887.

Wallace J. Smith, Sacramento, for plaintiff-appellant.

Leonard & Lyde, Robert L. Hewitt, Oroville, for defendant-respondent.

JANES, Associate Justice.

Plaintiff minor appeals from a judgment of dismissal entered after the court sustained defendant medical doctor's general and special demurrers to plaintiff's first amended complaint (hereinafter, "complaint") without leave to amend. Before the demurrers were sustained, the court offered plaintiff an opportunity to amend the challenged pleading, but plaintiff declined to do so.

The complaint, which is denominated one "for medical malpractice based upon tortious conduct only," is in two counts. Plaintiff seeks the sums of $3,897.11 in special damages and $250,000 in punitive damages, such damages being "in tort only. . . ."

ALLEGATIONS OF FIRST COUNT

Plaintiff suffered personal injuries on August 6, 1971, when struck by an uninsured hit-and-run motorist operating a motor vehicle in Chico. At the time of the accident, plaintiff was an insured under his father's Allstate insurance policy, which contained an uninsured motorist provision. By the terms of that provision, plaintiff was entitled to compensation for all damages for which the uninsured motorist would be liable to plaintiff, up to $15,000.

Defendant, a physician and surgeon, was consulted by plaintiff ("by and through his parents") to diagnose, treat, and care for plaintiff's aforesaid injuries, "and to do all the things necessary which are the normal incidents of such care and treatment," including the preparation of reports containing defendant's prognosis as to whether plaintiff would have residual disability resulting from the accident, and also including the furnishing of such reports to authorized persons for medical-legal purposes. Defendant knew that his reports would be relied upon heavily in evaluating plaintiff's claims for damages arising from the accident, whether those claims were resolved by settlement or adjudication.

Plaintiff was last seen by defendant on December 10, 1971. In August and October of that year, Allstate requested defendant to furnish Allstate with reports containing defendant's prognosis concerning plaintiff. In November and December 1971, defendant furnished Allstate with written reports in which defendant stated that he believed plaintiff would have no residual disability from the accident. Defendant knew, or should have known in the exercise of reasonable care, that plaintiff's injuries were of a potentially more serious nature with reference to residual disability than defendant reported to Allstate. Defendant's conduct was "wilful, intentional and negligent. . . ."

On the basis of defendant's two reports, Allstate negotiated with plaintiff's parents concerning possible settlement of plaintiff's claim under the uninsured motorist provision of the policy. Allstate eventually offered $7,500 to settle the claim; and Allstate asserted that $7,500 was a reasonable sum because defendant's reports indicated that plaintiff would have no residual disability.

As a proximate result of defendant's "conduct and negligence," plaintiff ("by and through his father") suffered damages in the form of attorney's fees and litigation costs in the sum of $3,897.11 reasonably incurred in order to secure a more advantageous resolution of plaintiff's claim against Allstate. The claim was settled for the full policy limit of $15,000 under the uninsured motorist provision after plaintiff's counsel convinced Allstate that defendant's reports "were erroneous, unduly conservative, and inconsistent with the sequel and residuals which are ordinarily known to follow injuries of the type sustained by (plaintiff)."

ALLEGATIONS OF SECOND COUNT

The second count incorporates by reference all the allegations of the first count, and further alleges as follows:

Defendant is frequently employed by Allstate and other insurance companies to make examinations and reports thereof with respect to injured persons not under defendant's care. Defendant knows that these reports are used by the insurance companies as the basis for settlement or adjudication of claims against those companies or their insureds. Defendant is aware that the insurance companies which solicit these reports are interested in resolving such claims at the lowest possible settlement figure. Defendant is also aware that a conservatively written medical report which minimizes or fails to accurately evaluate potential residual disability "is oppressive to the injured person and will ordinarily enable the insurance companies to settle or adjudicate their claims on a basis far more favorable to the insurance company, and therefore adverse to the interest of the injured claimant. . . ."

Defendant is further aware that he is asked by insurance companies under these circumstances to conduct such examinations and render reports thereof because he traditionally prepares his reports in an unduly conservative fashion designed to minimize in each case the nature and extent of the residual disability. A substantial portion of defendant's income from his medical practice is derived from doing examinations and reports thereof and being a witness with respect thereto. Defendant and the aforesaid insurance companies have an understanding "though unwritten and perhaps unexpressed concisely" that defendant will prepare all such reports in a conservative fashion to enhance the position of the insurance company in its negotiations with the injured claimants.

Defendant engaged in the conduct described in the second count "intentionally, wilfully, fraudulently, and with a wanton, reckless disregard for the possible injuries (sic ) consequences . . . and as a result of . . . said intentional, wilful, wanton, reckless, oppressive, and fraudulent conduct, plaintiff is entitled to exemplary damages. . . ."

DEMURRERS

Defendant generally demurred on three grounds, namely, that the complaint (1) does not state facts sufficient to constitute a cause of action "in that no recoverable damages are alleged," (2) does not state facts sufficient to constitute a cause of action for the recovery of punitive damages, and (3) does not state facts sufficient to constitute a cause of action within the jurisdiction of the superior court. Defendant's special demurrer was on the single ground of a defect or misjoinder of parties. (See, Code Civ.Proc., § 430.10.) The general and special demurrers were to the complaint as a whole rather than to individual counts.

CONTENTIONS
Special Demurrer

Preliminarily, we uphold plaintiff's contention that the special demurrer should not have been sustained. Defendant argues as he did in the trial court that it appears from the complaint that defendant was an agent of Allstate and that Allstate therefore should have been joined as his principal. The argument is devoid of merit. Nothing on the face of the complaint supports defendant's agency theory. The pleading states no facts requiring Allstate's compulsory joinder as an indispensable party (Code Civ.Proc., § 389); and it contains no allegations which indicate that defendant might be prejudiced by nonjoinder of Allstate. Consequently, the court's ruling on the special demurrer was erroneous. (See, Miller v. McKinnon (1942) 20 Cal.2d 83, 99, 124 P.2d 34; Tregear v. Etiwanda Water Co. (1888) 76 Cal. 537, 541, 18 P. 658; McKelvey v. Rodriquez (1943) 57 Cal.App.2d 214, 223, 134 P.2d 870; 37 Cal.Jur.2d, Parties, §§ 62-63, pp. 406-407; 39 Cal.Jur.2d, Pleading, § 142, pp. 205-206.)

General Demurrer to First Count

As indicated above, the first count inconsistently alleges that defendant's conduct was both "intentional and negligent. . . ." Such allegations, although contradictory in form, satisfactorily plead negligence in general terms and are not reached by general demurrer. (Ward v. Jones (1952) 39 Cal.2d 756, 760, 249 P.2d 246; see also Ryan v. Jacques (1894) 103 Cal. 280, 284, 37 P. 186; 3 Witkin Cal. Procedure (2d ed. 1971) Pleading (hereinafter "Witkin, Pleading"), § 471, p. 2126 and § 802, p. 2415; 39 Cal.Jur.2d, Pleading, § 138, pp. 200-201.) In the trial court, plaintiff proceeded on the theory that the first count sounded in negligence, rather than an intentional tort or breach of contract. He makes the same election on appeal. The rule is, of course, that "a general demurrer should not be sustained if the pleading, liberally construed, states a cause of action on any theory." (Covo v. Lobue (1963) 220 Cal.App.2d 218, 221, 33 Cal.Rptr. 828, 829.)

Plaintiff correctly contends that the first count states a cause of action for actionable negligence. "Actionable negligence involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury." (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 422, 463 P.2d 770, 774.) As stated above, the first count alleges that plaintiff, by and through his parents, "consulted" defendant for the specific purpose among others of having defendant furnish to authorized persons medical-legal reports containing defendant's prognosis as to whether plaintiff would have residual disability from the accident. When the word "consulted" is liberally construed in a contractual sense, these allegations sufficiently plead a duty on defendant's part to use reasonable care to furnish an objective prognosis, a duty which arose from defendant's employment to perform the specific professional service. (See Witkin, Pleading, § 457, pp. 2112-2113, and § 462, p. 2117.) Defendant's argument that he owed no legal duty to plaintiff to prepare medical-legal reports "in a fashion...

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