Cardinal Glennon Hosp. v. American Cyanamid Co.

• Decision Date: 01 June 1999
• Docket Number: Nos. ED,s. ED
• Citation: 997 S.W.2d 42
• Parties: CARDINAL GLENNON HOSPITAL, Plaintiff/Appellant/ Cross-Respondent, and St. Louis University, and Paul G. Fetick, M.D., Plaintiffs, v. AMERICAN CYANAMID COMPANY, and Hesselberg Drug Company, Defendants/Respondents/Cross-Appellants. 74795, ED 74796, ED 74809.
• Court: Missouri Court of Appeals

Page 42

997 S.W.2d 42

CARDINAL GLENNON HOSPITAL, Plaintiff/Appellant/ Cross-Respondent and St. Louis University, and Paul G. Fetick, M.D., Plaintiffs, v. AMERICAN CYANAMID COMPANY, and Hesselberg Drug Company Defendants/Respondents/Cross-Appellants.

Nos. ED 74795, ED 74796, ED 74809.

Missouri Court of Appeals,

Eastern District,

Division One.

June 1, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 6, 1999.

Application for Transfer Denied

Aug. 24, 1999.

Bruce R. Bartlett & Steven G. Schumaier, Clayton, MO, for Cardinal Glennon, appellant.

Rex Carr, St. Louis, MO, for SLU, appellant.

P. Terence Crebs, St. Louis, MO, for Dr. Fetick, appellant.

Kenneth R. Heineman & Dale R. Joerling, St. Louis, MO, for Hesselberg & Co-Counsel for American Cyanamid, respondent.

David P. Donovan, Roger W. Yoergers, Alex C. Lakatos & Nicholas P. Coleman, Washington, D.C., for American Cyanamid, respondents.

CRANDALL, J.

Plaintiff, Cardinal Glennon Hospital ¹, appeals from the trial court's grant of summary judgment in favor of defendants, American Cyanamid Company and Hesselberg Drug Company, in an action for contribution and indemnification and from the dismissal of its action for fraud against American Cyanamid Company which it brought after settling a medical malpractice action. We affirm.

The record reveals that the underlying medical malpractice action was brought in 1987 by Danny Callahan, a permanent triplegic, against St. Louis University (hereinafter SLU), Cardinal Glennon Hospital (hereinafter Cardinal Glennon), Dr. Paul G. Fetick, and the present defendant, American Cyanamid Company (hereinafter American Cyanamid) for causing Danny's paralysis from polio. See Callahan v.. Cardinal Glennon Hosp., 863 S.W.2d 852, 856-857 (Mo. banc 1993) (hereinafter Callahan I ) (setting forth the factual details of the malpractice action). American Cyanamid was the manufacturer of Orimune, the live polio vaccine given to Danny. In July 1990, Dr. Fetick, Danny's pediatrician, settled with him for $290,000.00. Sometime thereafter, American Cyanamid was dismissed. At the time of trial only SLU and Cardinal Glennon remained as defendants. In May 1991, the jury returned a verdict in the amount of $16,000,000.00 against SLU and Cardinal Glennon. The trial court entered judgment in the amount of $15,710,000.00, after reducing the verdict by the amount of the settlement between Danny and Dr. Fetick; and held SLU and Cardinal Glennon jointly and severally liable. Both defendants appealed. Cardinal Glennon settled Danny's claim for $4,000,000.00 prior to filing its appellate brief. SLU continued with the appeal and the Missouri Supreme Court affirmed the judgment in Callahan I, 863 S.W.2d at 873. This court later held that SLU was required to pay the remaining $11,710,000.00 plus interest to Danny. Callahan v. Cardinal Glennon Children's Hosp., 901 S.W.2d 270 (Mo.App. E.D.1995) (hereinafter Callahan II ). In February 1994, American Cyanamid entered into a settlement with Danny for $300,000.00. ²

In May 1996, Cardinal Glennon brought an action against American Cyanamid and Hesselberg Drug Company (Hesselberg) for contribution and indemnification and for fraud. The claims against American Cyanamid were based in part on its failure to comply with federal statutes and regulations regarding the licensing, testing, and manufacture of live oral polio vaccine. American Cyanamid moved to dismiss the fraud claim on the ground that it was a disguised contribution claim that did not state a cause of action for fraud. The trial court dismissed the fraud claim on that basis. American Cyanamid then moved for dismissal, or in the alternative for summary judgment, on the ground that Cardinal Glennon did not obtain a release of Danny's claims against it, a prerequisite to seeking contribution. Hesselberg joined in that motion. The trial court granted summary judgment in favor of American Cyanamid and Hesselberg.

In its first point, Cardinal Glennon contends the trial court erred in granting summary judgment in favor of American Cyanamid and Hesselberg because Cardinal Glennon's settlement with Danny did not bar the present contribution action.

When considering an appeal from a summary judgment, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. The propriety of a summary judgment is purely an issue of law. Id. Because the trial court's judgment is founded on the record submitted and the law, the appellate court need not defer to the trial court's grant of summary judgment. Id. Summary judgment is designed to permit the trial court to enter judgment where the moving party has demonstrated on the basis of facts, as to which there is no genuine dispute, a right to judgment as a matter of law. Id.; see also Rule 74.04.

Section 537.060, RSMo (1994) addresses contribution between tortfeasors and provides in pertinent part:

Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one or two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontractual indemnity to any other tort-feasor....

Cardinal Glennon claims the Missouri legislature's failure to include language in the statute specifically prohibiting a settling tortfeasor from seeking contribution from a non-settling tortfeasor evinces its intent to not bar such actions.

In Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. banc 1983), the Missouri Supreme Court stated that the Uniform Comparative Fault Act (hereinafter UCFA) should be applied in Missouri "insofar as possible." Section 4(b) of the UCFA provides that "[c]ontribution is available to a person who enters into a settlement with a claimant only ... if the liability of the person against whom contribution is sought has been extinguished...." Other Missouri cases have consistently followed the rule requiring that one seeking contribution must discharge the liability of the person from whom contribution is sought. See, e.g., State Farm Mut. Auto. Ins. Co. v. MFA Mut. Ins. Co., 671 S.W.2d 276 (Mo. banc 1984) (an uninsured motorist carrier suing another carrier for contribution must first show that it has obtained a release which discharges the other carrier from liability); Greenstreet v. Rupert, 795 S.W.2d 539 (Mo.App.1990) (a settling joint tortfeasor permitted to seek contribution where he had obtained from the underlying plaintiff a general release "of any and all claims" and paid the...