Franklin v. Morrison

• Decision Date: 01 September 1997
• Docket Number: No. 84,84
• Citation: 350 Md. 144,711 A.2d 177
• Parties: Michael FRANKLIN v. Glenn A. MORRISON et al. ,
• Court: Maryland Court of Appeals

Page 144

350 Md. 144

711 A.2d 177

Michael FRANKLIN v. Glenn A. MORRISON et al.

No. 84, Sept. Term, 1997.

Court of Appeals of Maryland.

June 11, 1998.

William J. Jackson (Semmes, Bowen & Semmes, on brief), Baltimore, for petitioner.

Kevin A. Dunne (Charles T. Smith, II, Stephanie A. Baldanzi, Ober Kaler, Grimes & Shriver, Baltimore; Alan D. Titus, argued (William J. Carter, Carr Goodson Lee & Warner, Washington, DC), on brief, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, WILNER and CATHELL, JJ.

RODOWSKY, Judge.

This multiple party tort action arises out of a tragic automobile accident in which a mother and her two children were killed. A jury in the Circuit Court for Prince George's County awarded substantial damages. The only non-settling defendant is the petitioner, Michael Franklin (Franklin), who was found to be liable. We granted his petition for certiorari in order to consider three issues which we rephrase as follows:

1. Was Franklin entitled to get to the jury on his cross-claim for indemnity against one of the settling defendants who was also found to be liable?

2. Should the jury have been advised, as requested by Franklin, of the existence and terms of the joint release purchased by all of the defendants other than Franklin?

3. How is the credit against the verdict to be determined under the terms of the instant joint release where the total consideration paid by the releasees is greater than the pro rata share of the only releasee that was found liable?

Because a motion for judgment at the close of all of the evidence was granted on Franklin's cross-claim for indemnity in favor of the alleged indemnitor, we describe the happening of the accident under the evidence most favorable to Franklin.

On December 24, 1992, Franklin took his 1992 Chevrolet S-10 Blazer (the Blazer) for routine servicing to a Beverly, Massachusetts Jiffy Lube owned and operated by a franchisee, Lube 495, Inc. (Jiffy Lube), one of the respondents. The servicing required a Jiffy Lube technician to remove the rear differential check plug, in order to check and, if necessary, replenish the lubricant level, and then to replace the plug. The technician either failed to replace or improperly replaced the check plug, causing the differential fluid to escape in a gradual, undetectable manner over the next several weeks. The lack of fluid to lubricate the gears and bearings within the differential eventually results in the gears and bearings melting, fusing together, and breaking off due to excessive friction and heat. This process causes a seizing of the rear differential and completely disables a vehicle from moving.

Franklin had experienced no mechanical difficulty with the Blazer since its servicing until shortly before noon on Saturday, January 16, 1993. At that time Franklin was driving on Route 50 in Prince George's County at highway speed in the middle of the three westbound lanes. He heard a gear grinding noise emanating from the Blazer's undercarriage. The noise temporarily ceased, but then resumed, accompanied by a violent shaking of the Blazer and a burning smell. Franklin first tapped his brakes to disengage the cruise control and thereafter continued to "tap" his brakes to maintain control of the Blazer. He unsuccessfully attempted to drive the Blazer to the right hand shoulder of the highway through "light ... spotty type traffic." The Blazer decelerated rapidly and steadily until it came to a complete stop in the center lane. At trial Franklin was asked: "After you knew there was a problem, could you have gotten through traffic?" He responded: "No, I couldn't because the vehicle was quickly decelerating and as I looked to the right hand side to try and pull over there was heavy traffic in that lane."

When the vehicle had stopped, Franklin placed the gearshift in park. At his urging his wife exited from the passenger side of the Blazer. Franklin released the rear lift gate of the Blazer by way of a button located on the dashboard, locked the doors by pressing an automatic control button, exited from the driver's side of the vehicle, retrieved his dog from the back of the vehicle, leashed the dog, closed the rear lift gate, and made his way safely to the side of the road with his wife. Franklin testified that while on the side of the road he waved his arms in an effort to alert oncoming traffic to the presence of the disabled Blazer.

Darlene Morrison, the wife of respondent Glenn A. Morrison (the Plaintiff), was traveling behind Franklin in a 1990 Dodge Minivan occupied by her two minor children, Justin and Andrea. Mrs. Morrison was able to bring her vehicle to a stop immediately behind the Blazer. With her brakes depressed, she tried but was unable, due to passing traffic, to change lanes and get around the disabled Blazer. ¹ A tractor trailer driven by Dale Mettenbrink and owned by National Carriers, Inc. (collectively, National Carriers) crested an upgrade in the center lane of westbound Route 50 and plowed into the back of Darlene Morrison's minivan. ² The tractor trailer dragged the minivan several hundred feet, causing it to burst into flames. Darlene Morrison and her two children were burned to death.

Post-accident investigation of the Blazer revealed that, although the rear differential check plug was missing, there was no damage to the hole threads, indicating that the check plug had not been dislodged on impact, but rather had not been properly replaced.

Franklin testified that, at the time of the accident, he was completely unaware of what caused the Blazer to be disabled. It had operated normally since its servicing at Jiffy Lube, and Franklin did not observe any leaking. An expert called by Franklin testified that differential fluid evaporates in a mist and does not leak visibly. Similarly, Franklin did not observe the fact that the check plug, which is located within the vehicle's undercarriage and which can only be reinstalled using a wrench, was either missing or improperly replaced.

The instant suit was brought by the Plaintiff, individually and as personal representative of the estates of his wife and children. Franklin, Jiffy Lube, and National Carriers were named as defendants. The defendants filed cross-claims against each other for indemnity and contribution.

On August 31, 1995, about one month before trial, the court and Franklin were advised that the Plaintiff had reached a settlement with Jiffy Lube and National Carriers (the settling defendants). The general terms of the then unsigned agreement were placed on the record. Under the agreement, all of the Plaintiff's claims against the settling defendants were released in consideration of a payment of $3.7 million. The "Release and Indemnity Agreement" was executed on September 25, 1995, the first day of trial. Relevant to the questions presented to this Court are the following terms of the agreement:

In consideration of the payment of $3.7 million by the settling defendants to the Plaintiff, the latter agreed to release the former from any and all claims arising out of the January 16, 1993 automobile accident;

The Plaintiff agreed to indemnify and hold the settling defendants harmless from "cross-claims, claims for contribution or claims for indemnity" arising from the Plaintiff's claims, including any such claims asserted against the settling defendants by Franklin;

The settling defendants agreed to permit the Plaintiff to contact and utilize any experts that the former had retained and to cooperate with the Plaintiff in the prosecution of his claims against Franklin.

The release also provided:

"This Release is not a joint tortfeasor release.

"This Release does not and shall not bar any cause of action, right, lien or claim arising from [the automobile accident] which [the Plaintiff] may now have or may in the future have against any alleged tortfeasor or any entity or person not specifically named herein or released hereby. However, in order to avoid inconvenience and expense to the settling defendants herein, [the Plaintiff] agree[s] that, in the event that settling defendants or any of them is determined by the Court or jury to be a joint tortfeasor, then in that event, this Release shall serve to reduce any recovery of [the Plaintiff] which may be had against any other alleged tortfeasors to the extent of the pro-rata share recoverable by law from settling defendants herein, or to the extent of the amount paid for this Release by settling defendants herein, whichever is greater, in accordance with the provisions of the Maryland Uniform Contribution Among Tortfeasors Act. The said reduction effected hereby shall not be construed to affect the recovery in any suit, cause of action or claim in which the settling defendants herein, or any of them, shall not have been adjudged legally liable for contribution."

(Citation omitted).

Before trial started the Plaintiff dismissed his claims against the settling defendants. ³ National Carriers did not participate at trial. Jiffy Lube remained a cross-claim defendant to Franklin's cross-claim for indemnity and contribution. On the first day of trial Jiffy Lube amended its original cross-claim against Franklin to claim contribution only, rather than to claim both contribution and indemnity. Jiffy Lube continued to assert this amended cross-claim throughout the course of trial.

In summary, the three claims remaining at the start of trial were:

(1) The Plaintiff v. Franklin (negligence causing deaths and survival actions);

(2) Franklin v. Jiffy Lube (cross-claim for indemnity and contribution); and

(3) Jiffy Lube v. Franklin (cross-claim for contribution).

Prior to trial Franklin moved to have the existence and terms of the release disclosed to the jury, but the court denied that motion. Just after the jurors were sworn, the court instructed them that the Plaintiff was proceeding solely against Franklin, and that National Carriers was ...