Carpenter v. Young By and Through Young

• Decision Date: 15 May 1989
• Docket Number: No. 88SC158,88SC158
• Citation: 773 P.2d 561
• Parties: Stephen CARPENTER, M.D., Petitioner, v. Kayla YOUNG, a minor, by and through her parents and next friends, Charlotte YOUNG and Carl Young, Respondents.
• Court: Colorado Supreme Court

Page 561

773 P.2d 561

Stephen CARPENTER, M.D., Petitioner, v. Kayla YOUNG, a minor, by and through her parents and next

friends, Charlotte YOUNG and Carl Young, Respondents.

No. 88SC158.

Supreme Court of Colorado,

En Banc.

May 15, 1989.

Pryor, Carney and Johnson, Susan T. Smith, Englewood, for petitioner.

McDermott, Hansen, Anderson & Reilly, William J. Hansen, Denver, for respondents.

ERICKSON, Justice.

We granted certiorari to review the court of appeals decision in Young v. Carpenter, 757 P.2d 148 (Colo.App.1988), which reversed the trial court's entry of summary judgment in favor of petitioner Stephen Carpenter, M.D. We reverse and return the case to the court of appeals with directions to reinstate the entry of summary judgment.

I.

In this medical malpractice case, Charlotte and Carl Young, individually and on behalf of their daughter Kayla, brought suit against Stephen Carpenter, M.D., James Pfeiff, M.D., Forrest M. Keeler, M.D., Ren Imai, M.D., Colorado Permanante Medical Group, and St. Joseph Hospital, Inc. for injuries sustained by Kayla at birth. On August 30, 1979, Charlotte Young was admitted to St. Joseph Hospital to give birth to Kayla. Mrs. Young was examined upon admission by her attending physician, Dr. Stephen Carpenter, who determined that Young would vaginally deliver an average-sized infant. Mrs. Young was brought to the labor room and her delivery was progressing normally when labor suddenly arrested. Dr. Carpenter informed the Youngs that a cesarean section might be required to deliver the infant. Any potential need for a cesarean section soon vanished when Mrs. Young resumed labor. Approximately thirty minutes after labor resumed, Kayla was precipitously delivered.

During the delivery, the nurses in the labor room made an emergency call for a "precip pack," a sterile package containing instruments used in a precipitous delivery. Dr. Keeler, a third year obstetrics resident, responded to the call and upon entering the labor room noted that Kayla's head was crowning. Since there was no time to transport Mrs. Young to the delivery room, and Dr. Carpenter was not yet present, Dr. Keeler began to deliver Kayla. He performed an episiotomy and delivered the head. The head quickly retracted against the perineum, indicating that Kayla's shoulder was impacted behind her mother's pubic bone. Dr. Keeler diagnosed the baby's condition as shoulder dystocia, ¹ and then attempted to dislodge the shoulder by rotating it. When this proved unsuccessful, he then applied downward and outward traction to the baby's head.

While Dr. Keeler was attempting to deliver Kayla, Dr. Carpenter entered the room and assumed control of the delivery. He repositioned Mrs. Young, directed Dr. Keeler to apply suprapubic pressure, and repeated Keeler's traction maneuver. Despite these steps, Kayla still was not delivered. Finally, after several other unsuccessful traction maneuvers, Dr. Carpenter extracted Kayla's free arm, thereby dislodging the impacted shoulder, and delivered her. As a result of this difficult delivery, Kayla suffered a brachial plexus injury which caused permanent partial paralysis of her right shoulder and arm.

On January 16, 1981, the Youngs filed suit on Kayla's behalf in the Denver District Court alleging that Kayla's injuries were caused in part by Keeler's and Carpenter's excessive use of traction on her head and neck. In regard to Dr. Carpenter, the respondents asserted both a direct negligence claim and a respondeat superior claim based upon Dr. Keeler's alleged negligence.

Dr. Keeler moved for summary judgment, arguing that the respondents had failed to present any expert testimony alleging Keeler to have been negligent. The district court, over respondents' objection, granted Keeler's motion for summary judgment and dismissed all claims against him with prejudice. Three days later, the Youngs entered into a settlement agreement with all defendants except Dr. Carpenter. In consideration of releasing Dr. Pfeiff and Colorado Permanente from liability, the Youngs received $70,000. The settlement further provided that in consideration of an additional $45,000, the Youngs released their claims against St. Joseph Hospital and waived their right to appeal the summary judgment order granted in Keeler's favor. The agreement expressly reserved the right to sue Carpenter, stating that it

shall not in any way prejudice, or operate as a release or waive[r] of, plaintiffs' remaining claims and causes of action and rights of appeal against the defendant Stephen Carpenter, M.D., which claims, causes of action and rights of appeal are expressly reserved herein.

The agreement was approved, and the district court dismissed with prejudice the claims against Keeler, St. Joseph Hospital, Colorado Permanente Medical Group, and Pfeiff.

Following the settlement, a four-week jury trial was held on the respondents' claims against Dr. Carpenter. At the close of the evidence, the trial court, after extensive argument, declined to give the jury an instruction on vicarious liability under a "captain of the ship" doctrine. ² The jury returned a verdict finding in favor of Carpenter on the direct negligence claim. The respondents appealed the case, claiming that the trial court erred in not submitting the vicarious liability issue to the jury. Dr. Carpenter defended by arguing that the trial court's refusal to submit the issue was proper and that the grant of summary judgment in Keeler's favor collaterally estopped respondents from alleging vicarious liability based upon Keeler's negligence.

On August 2, 1984, the court of appeals reversed the trial court and held that the vicarious liability issue under the "captain of the ship" doctrine should have been submitted to the jury. Young v. Carpenter, 694 P.2d 861, 863 (Colo.App.1984). The court of appeals, citing Boulderado Motor Homes, Inc. v. Peterson, 100 Colo. 243, 66 P.2d 1271 (1937), rejected Carpenter's collateral estoppel argument because he had failed to assert it at the trial level, raising it for the first time on appeal. Young v. Carpenter, 694 P.2d at 863. The court then remanded the case for retrial on the issue of vicarious liability only. Id. at 864.

On remand, the trial court allowed Carpenter to amend his answer to assert the affirmative defenses of res judicata and collateral estoppel. Both respondents and Carpenter then moved for summary judgment. Carpenter argued that:

Plaintiff's vicarious liability claim against Dr. Carpenter necessarily rests upon a finding of negligence on the part of Dr. Keeler. However, the unappealed summary judgment ruling by the trial court in Dr. Keeler's favor was and is a final adjudication on the merits of all claims of negligence against Dr. Keeler and, as such, collaterally estops plaintiff from relitigating the issue of Dr. Keeler's negligence in this case. Since there is already a judgment in Dr. Keeler's favor, there can be no liability on Dr. Carpenter's part for the conduct of a loaned servant [Dr. Keeler] previously found by the trial court not to be liable to the plaintiff.

The court, stating no grounds for its ruling, granted Carpenter's motion while denying respondents'.

The respondents again appealed and the court of appeals reversed the trial court. Young v. Carpenter, 757 P.2d 148 (Colo.App.1988). The court of appeals rejected Carpenter's collateral estoppel argument, holding that the summary judgment order for Keeler was not a final judgment since it had not been certified pursuant to C.R.C.P. 54(b) as final and appealable. Id. at 150. The court also concluded that Keeler's summary judgment order merged into and was superseded by the subsequent settlement agreement between the Youngs and all defendants but Carpenter. Id. The judgment was therefore extinguished and the settlement agreement controlled. Because the settlement agreement reserved respondents' claims against Carpenter, the trial court's entry of summary judgment in Carpenter's favor "contravened the intent of the parties as expressed in the settlement agreement" and was therefore reversible error. Id. The case was remanded for trial and Carpenter petitioned this Court for a writ of certiorari.

II.

We granted certiorari to review the court of appeals finding that C.R.C.P. 54(b) certification is required before a judgment can be given collateral estoppel effect and that the summary judgment order entered in Keeler's favor merged into and was extinguished by the settlement agreement.

A.

Generally, a summary judgment exonerating an employee of negligence which is not appealed is a dismissal on the merits and bars a subsequent respondeat superior action against the employer. See Sanchez v. Rice, 40 Colo.App. 481, 483, 580 P.2d 1261, 1262 (1978); Flournoy v. Sayles, 37 Colo.App. 67, 70, 544 P.2d 649, 652 (1975). Such a bar arises by virtue of collateral estoppel and consequently applies only if the judgment is final. ³ See, e.g., Association for Retarded Citizens in Colorado v. Frazier, 517 F.Supp. 105, 124-25 (D.Colo.1981); People v. Hearty, 644 P.2d 302, 312 (Colo.1982). According to the court of appeals, the summary judgment order granted in Keeler's favor was not final under C.R.C.P. 54(b) and therefore could not supply the basis for Carpenter's collateral estoppel claim.

The issue squarely presented is whether a judgment is final for purposes of collateral estoppel if it is not certified as final under C.R.C.P. 54(b). ⁴ We agree that the plain language of C.R.C.P. 54(b) would initially seem to indicate that a judgment is not final until certified as such. However a review of cases from our and other jurisdictions involving collateral estoppel leads us to conclude that C.R.C.P. 54(b) certification is not required before a judgment can be given preclusive effect. Such a result, in our view, best comports both with the function of C.R.C.P. 54(b) and the principles of collateral estoppel.

The doctrine of collateral estoppel...