C & K Lord, Inc. v. Carter

• Decision Date: 04 February 1988
• Docket Number: No. 600,600
• Citation: 74 Md.App. 68,536 A.2d 699
• Parties: , Prod.Liab.Rep. (CCH) P 11,667 C & K LORD, INC. v. John W. CARTER. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 68

74 Md.App. 68

536 A.2d 699, Prod.Liab.Rep. (CCH) P 11,667

C & K LORD, INC. v. John W. CARTER.

No. 600 Sept. Term 1987.

Court of Special Appeals of Maryland.

Feb. 4, 1988.

Michael J. Kopen (George J. Goldsborough, Jr. and Goldsborough & Tolley, on the brief) Easton, for appellant.

Henry I. Greenberg (Toni S. Lifshotz on the brief) Baltimore, for appellee Carter.

Lawrence E. Ballantine (Rollins, Smalkin, Richards & Mackie, on the brief) Baltimore, for appellees, Darling-Delaware Co., Eastern Shore Rendering Co. and Pleiscott.

Argued before GARRITY, ALPERT, and ROBERT M. BELL, JJ.

ALPERT, Judge.

John W. Carter, the appellee, was injured on December 22, 1981, at the Eastern Shore Rendering Co. (Eastern Shore), a chicken rendering plant in Linkwood, Maryland. Carter was working on a conveyor that transported feathers to cookers for processing into feed. As a routine matter, wet feathers would drop off the topside of the conveyor and get caught underneath. If not cleared periodically, the feathers would cause the belt to jam and stop running. Some feathers could be removed by flushing with a garden hose provided for that purpose. This method was imperfect, however, and larger accumulations had to be cleared with a stick that also was kept nearby.

Although Eastern Shore disagreed, Carter and other Eastern Shore employees testified that it was common practice to clear the feathers without shutting down the conveyor. One of Carter's functions was to ensure that the feathers did not jam the operation, and he sustained serious injuries while performing this duty. Carter's arm was drawn up into the uptake pulley while he was cleaning a feather build-up with a stick. The stick got caught in an unguarded pinch point between the pulley and the belt, and before Carter could react, his arm was drawn up into the roller.

He was awarded Workmen's Compensation benefits and then filed a products liability suit in the Circuit Court for Dorchester County (Johnson, J., presiding) alleging counts in negligence and strict liability against C & K Lord, Inc. (C & K Lord), a sheet metal fabricator located in Cambridge, Maryland, that manufactured the conveyor. C & K Lord filed a third-party claim for contribution/indemnity against Eastern Shore, and its parent company, Darling-Delaware Co. (Darling-Delaware). Carter then filed an Amended Complaint joining as defendants Eastern Shore, Darling-Delaware, and Elwood Pliescott, the plant manager (and former owner) of the Eastern Shore plant. Subsequently, C & K Lord filed a third-party claim against Pliescott.

Prior to trial, Carter entered into a Joint-Tortfeasors' Release with Eastern Shore, Darling-Delaware and Pliescott ("settling defendants"). Lord was advised of the settlement, but the terms of the agreement were not disclosed until after the conclusion of the trial. The jury was not advised of the agreement.

During the course of the trial, the court granted judgment in favor of Eastern Shore, Darling-Delaware, and Pliescott, on the ground that they were immune from suit as Carter's employers under Maryland's Workmen's Compensation Act. The claims asserted against C & K Lord were submitted to the jury, which found in favor of C & K Lord on the negligence claim, but awarded Carter $135,000 on the strict liability claim. C & K Lord is appealing this judgment, alleging numerous errors, as set forth in the nine sections that follow. Each of appellant's arguments will be addressed in turn and additional facts will be provided as needed.

I. THE JOINT TORT-FEASORS' RELEASE EXCHANGED AMONG AND BETWEEN APPELLEES OPERATED BY STATUTE TO EFFECT A PRO TANTO REDUCTION OF THE JURY VERDICT.

In this first assignment of error, appellant argues that the court erred in not reducing, pursuant to the release agreement and to § 19 of the Maryland Uniform Contribution Among Tort-Feasors Act, Md.Ann.Code, art. 50, § 16 et seq. (1977) ("Act"), appellant's liability to Carter by the amount of consideration paid by the settling defendants. The pertinent provision of the Act provides:

§ 19. Effect of release on injured person's claim.

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.

The pertinent provision of the parties' release states:

(12) Plaintiff agrees that his right to recover damages from C & K Lord, Inc. is hereby reduced to the extent of the pro-rata share of the settling defendants of the damages of the Plaintiff recoverable against C & K Lord, Inc. should any of the settling defendants be found jointly liable to Plaintiff with C & K Lord, Inc. Appellant misconstrues both the statute and the release. The terms of the release clearly limit plaintiff's right of recovery against C & K Lord only in the event "any of the settling defendants be found jointly liable to the plaintiff with C & K Lord, Inc."

In Allgood v. Mueller, 307 Md. 350, 513 A.2d 915 (1986), the Court of Appeals was presented with an analogous situation. The court explained:

For the nonsettling defendant to get the benefit of the reduction solely by operation of statutory law, the settling defendant and the nonsettling defendant must be "persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them."

Id. at 355, 513 A.2d 915, citing § 16(a) of the Act.

Inasmuch as the trial court granted judgment in favor of all the settling defendants as a matter of law, the settling defendants are not "joint-tortfeasors" under the Act. See Baltimore Transit Co. v. State ex rel Schriefer, 183 Md. 674, 39 A.2d 858 (1944). In the absence of an express contractual agreement between the settling defendants and C & K Lord, therefore, C & K Lord was not entitled to a reduction in the jury verdict against it. See American Radiator & Standard Sanitary Corp. v. Mark Eng'g Co., 230 Md. 584, 187 A.2d 864 (1963).

II. THE TRIAL COURT ERRED BY REFUSING TO SUBMIT TO THE JURY THE ISSUE OF THE SETTLING DEFENDANTS' LIABILITY AS JOINT TORT-FEASORS.

Next, appellant argues that the court erred in dismissing all of C & K Lord's claims against the settling defendants, i.e., that the question of liability vel non of the settling defendants should have been submitted to the jury. We disagree.

As the Court of Appeals explained in Brady v. Ralph Parsons Co., 308 Md. 486, 520 A.2d 717 (1987) Apart from several statutory exceptions, the liability of the employer is exclusive [Md.Ann.Code, art. 101, § 15 (1985) ]. See Lowery v. McCormick Asbestos Co., 300 Md. 28, 40-44, 475 A.2d 1168, 1174-76 (1984). That is, an injured employee may not maintain an action at law for damages against his employer. Since the worker's sole remedy against the employer is a claim under the Act, the employer is considered to be "immune" from suit at law.

Id. at 498, 520 A.2d 717. Once the court concluded that the settling defendants were immune from liability under the Act, they were likewise immune from liability for contribution or indemnity. American Radiator & Standard Sanitary Corp. v. Mark Eng'g Co., 230 Md. 584, 589-90, 187 A.2d 864 (1962); Baltimore Transit Co. v. State ex rel. Schriefer, 183 Md. 674, 39 A.2d 858 (1944). Thus, it would be contrary to the purpose of the Act to force the employer to defend a suit in order to submit the issue of liability to the jury.

Swigert v. Welk, 213 Md. 613, 133 A.2d 428 (1957), relied upon by appellant, is inapposite. In Swigert, none of the defendants were, as here, immune from liability in tort as a matter of law. Because the settling defendants sub judice, as "employers," could not be "jointly or severally liable in tort," as a matter of law they were not liable as "joint tort-feasors" and there was no question to submit to the jury. Had there been sufficient evidence that Pliescott "designed" the subject conveyor (see Part IV infra ), then a different result might be required on this issue.

III. PARTIES TO A SECRET "MARY CARTER" AGREEMENT SHOULD NOT BE PERMITTED TO STAND MUTELY BY WHILE THE COURT INSTRUCTS THE JURY ON AN ISSUE THEY KNOW IS IN CONFLICT WITH, AND CONTRADICTED BY, THE TERMS OF THEIR UNDISCLOSED AGREEMENT.

A "Mary Carter Agreement" was explained by the Court of Appeals in General Motors v. Lahocki, 286 Md. 714, 720, 410 A.2d 1039 (1980):

The term arises from the agreement popularized by the case of Booth v. Mary Carter Paint Co., Fla.App.1967, 202 So.2d 8, and now appears to be used rather generally to apply to any agreement between the plaintiff and some (but less than all) defendants whereby the parties place limitations on the financial responsibility of the agreeing defendants, the amount of which is variable and usually in some inverse ratio to the amount of recovery which the plaintiff is able to make against the nonagreeing defendant or defendants. [ Maule Indus., Inc. v. Rountree, 264 So.2d 445, 446, n. 1 (Fla.Dist.App.1972), rev'd, 284 So.2d 389 (Fla.1973) ].

It is probably safe to say that no two pacts dubbed "Mary Carter Agreement" have been alike. However, three basic features seem to be contained in each: (1) The agreeing defendant is to remain a party and is to defend himself in court. However, his liability is limited by the agreement. In some instances this will call for increased liability on the part of other co-defendants. (2) The agreement is secret. (3) The agreeing defendant guarantees to the plaintiff that he will receive a certain amount, notwithstanding the fact that he may not recover a judgment against the agreeing defendant or that the verdict may be less than that specified in the agreement.

In Lahocki, the court...