City of College Park v. Fortenberry

• Decision Date: 27 January 2005
• Docket Number: No. A04A2167.,A04A2167.
• Citation: 271 Ga. App. 446,609 S.E.2d 763
• Parties: CITY OF COLLEGE PARK v. FORTENBERRY.
• Court: Georgia Court of Appeals

271 Ga. App. 446

609 S.E.2d 763

271 Ga.App. 446

CITY OF COLLEGE PARK v. FORTENBERRY.

No. A04A2167.

Court of Appeals of Georgia.

January 27, 2005.

Gray, Rust, St. Amand, Moffett & Brieske, Harvey Gray, Atlanta, for Appellant.

Randolph Powell, Huff, Powell & Bailey, LLC, Atlanta, for Appellee.

MILLER, Judge.

As the settling employer of the initial tortfeasor in a personal injury case, the City of College Park brought this action for contribution and indemnity against Jewell Fortenberry, M.D., who was allegedly negligent in his treatment of the plaintiff after the initial injury. The trial court granted Fortenberry's motion for summary judgment on the ground that Georgia law does not allow an initial tortfeasor to obtain either contribution or indemnity against a subsequent tortfeasor. We disagree, and therefore reverse.

On appeal from a grant of summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga.App. 250, 510 S.E.2d 541 (1998).

So viewed, the evidence reveals that in May 1998, the plaintiff in the underlying action was hit by an on-duty College Park police officer, who pulled out in front of him. The plaintiff suffered injuries producing neck and back pain, for which he received treatment from two different doctors. One of these doctors referred the plaintiff to Fortenberry, an anesthesiologist, who eventually administered nine epidural steroid injections over a thirteen-month period. Nine months after the last of these injections, a fourth doctor diagnosed the plaintiff with adhesive arachnoiditis, a clumping of nerve roots possibly resulting from lumbar puncture.

In the meantime, the plaintiff filed suit against the police officer and the City. The City eventually settled the case for $575,000, and then filed this action for contribution and indemnity against Fortenberry. In the course of discovery, plaintiff's counsel testified that before the arachnoiditis diagnosis, the case's value was between $50,000 and $100,000, and that after the diagnosis, the case's value was between $500,000 and $750,000. Fortenberry moved for summary judgment, which was granted. On appeal, the City argues that because it would have been liable as a matter of law for damages arising from Fortenberry's negligence, it must be entitled to either contribution or indemnity from him, and that the trial court therefore erred when it granted Fortenberry's motion for summary judgment. 1. As a preliminary matter, we note a few relevant and well-settled principles. First, an initial tortfeasor is liable for the reasonably foreseeable consequences of his tortious act, including the negligent conduct of a treating physician. See Coleman v. Atlanta Obstetrics & Gynecology Group, 194 Ga.App. 508, 510-511(1), 390 S.E.2d 856 (1990); Gay v. Piggly Wiggly Southern, 183 Ga.App. 175, 178-179(2), 358 S.E.2d 468 (1987); Smith v. Hardy, 144 Ga.App. 168, 173(16), 240 S.E.2d 714 (1977). The City settled this case for an amount within the range of the purported value of the case in the wake of Fortenberry's alleged negligence. This decision to settle cannot have any bearing on the City's right to seek such contribution or indemnity as Georgia law may allow. OCGA § 51-12-32(a) and (c) (rights of contribution and indemnity "shall not be lost or prejudiced by compromise and settlement" of personal injury or wrongful death claim).

At oral argument, Fortenberry made much of the fact that the City had failed to join him as a co-defendant in the plaintiff's original action. It is well established, however, that just as a plaintiff has the right to elect which tortfeasor he will proceed against, a named tortfeasor is under no obligation to seek joinder of other tortfeasors in the plaintiff's original action. See OCGA §§ 9-11-20(a) ("All persons may be joined in one action as defendants" if "any right to relief" arises out of "the same transaction, occurrence, or series of transactions and occurrences") (emphasis supplied); 9-11-14(a) (defendant "may [join] a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim") (emphasis supplied); see also OCGA § 9-11-19(a)(1) (where "complete relief" can be obtained as between existing parties, joinder of third parties is unnecessary).

Here, the plaintiff obtained "complete relief" from the City in the form of a settlement made in view of the City's liability for the acts of a subsequently negligent treating physician. Neither the plaintiff nor the City was obligated to join Fortenberry as a party to the original action, however. Indeed, it would have been reversible error for the court to order such a joinder. See Ferguson v. Carver, 257 Ga.App. 849, 850-851(1), 572 S.E.2d 700 (2002) (where plaintiff's injuries are the result of two separate collisions, joinder of second tortfeasor amounts to abuse of discretion); see also Posey v. Medical Center-West, 257 Ga. 55, 59, 354 S.E.2d 417 (1987) (plaintiff's release of one tortfeasor does not discharge others unless so agreed).

2. Fortenberry argues that Georgia law does not allow an initial tortfeasor to seek contribution from a subsequent treating physician because the two are not joint tortfeasors. We agree. Nevertheless, given the longstanding entwinement of our law of contribution with that of indemnity, a summary of the former is in order.

Georgia's contribution statute reads in relevant part as follows:

(a) Except as provided in Code Section 51-12-33 [allowing apportionment of fault on the basis of a plaintiff's comparative negligence], where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims. . . .

(b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution.

(Emphasis supplied.) OCGA § 51-12-32.

At English common law, contribution claims were barred only where the tortfeasor seeking contribution had acted wilfully and consciously. See Marchman & Sons v. Nelson, 251 Ga. 475, 476-477, 306 S.E.2d 290 (1983) (summarizing history of contribution statute); Greyhound Lines v. Cobb County, 681 F.2d 1327, 1332(II) (11th Cir.1982). Late nineteenth-century and early twentieth-century Georgia law adapted the English rule in two complementary ways. First, it refused to assist intentional wrongdoers, allowing contribution only between those tortfeasors whose wrongful acts did not involve "moral turpitude." See Greyhound Lines, supra, 681 F.2d at 1332(II); OCGA § 51-12-32(a). Second, "[o]ur courts developed a rule recognizing a right of contribution in [a] joint tortfeasor who was merely passive in his conduct from another joint tortfeasor who was active in his conduct." (Citations omitted.) Marchman, supra, 251 Ga. at 476,306 S.E.2d 290. This Court held in 1911, for example, that a railway whose employee was electrocuted by contact with a worn cable had no rights in either contribution or indemnity against the utility that owned, placed, and maintained the cable because the railway's own failure to inspect made it "actively," and not "passively," negligent. Central of Ga. Ry. Co. v. Macon R. etc. Co., 9 Ga.App. 628, 632(3), 71 S.E. 1076 (1911); see also Peacock Constr. Co. v. Montgomery Elevator Co., 121 Ga.App. 711, 713(2), 175 S.E.2d 116 (1970). In a later proceeding in the same case, however, the Supreme Court of Georgia used the active-passive distinction for the diametrically opposed purpose of allowing the railway to proceed against the utility. Central of Ga. R. Co. v. Macon R. etc. Co., 140 Ga. 309, 318, 78 S.E. 931 (1913) (railway would have right of contribution and indemnity when it "was not a mere joint tortfeasor in the sense that it had been guilty with the [utility] of the same or like negligence"); see also Peacock Constr. Co., supra, 121 Ga.App. at 713(2),175 S.E.2d 116; Standard Oil Co. v. Mt. Bethel United Methodist Church, 230 Ga. 341, 344-345(6), 196 S.E.2d 869 (1973). As late as 1980, our Supreme Court was still using the active-passive distinction when it held that the "active" negligence of a co-defendant who dropped a gun which went off, injuring the plaintiff, barred an indemnity action against the gun manufacturer for defective design. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560-561, 272 S.E.2d 251 (1980).

Commentators have long criticized the active-passive distinction on the ground that its all-or-nothing approach obstructs the principle of comparative fault. See, e.g., Greyhound Lines, supra, 681 F.2d at 1332-1333(II) (allowing "actively" negligent party to seek contribution); Prosser and Keeton on Torts (5th ed., 1984, with 1988 Supplement), § 51, p. 343, nn. 19 and 20; Dobbs, The Law of Torts (2000), § 386, p. 1079. Indeed, one commentator declared as early as 1973 that the "distinction is no longer valid in Georgia." Note, Torts — Distribution of Judgment among Tortfeasors — An Approach of Fairness Among the Parties, 24 Mercer L.Rev. 697, 701 (1973).

In 1983, citing this last source, the Supreme Court of Georgia noted for the first time that the 1933 Code had not taken up the active-passive distinction, implementing instead the modern rule allowing contribution between all tortfeasors against whom a joint judgment had been entered. Marchman, supra, 251 Ga. at 476, 306 S.E.2d 290, citing Code 1933, § 105-2012. Amendments in 1966 and 1972 extended this right of contribution by permitting recovery "without the necessity of...