Glover for Cobb v. Tacoma General Hosp.

• Decision Date: 10 February 1983
• Docket Number: No. 48506-2,48506-2
• Parties: Catherine GLOVER, as Guardian for Jimmie Lee COBB, an Incompetent, Respondent. v. TACOMA GENERAL HOSPITAL, Appellant, and Martha Cowgill; Phillip Backup; the University of Washington, University of Washington Hospital; the State of Washington, acting through the Board of Regents, d/b/a University of Washington Medical School; and Tacoma Anesthesia Associates, Inc., Defendants.
• Court: Washington Supreme Court

Page 708

98 Wn.2d 708

658 P.2d 1230

Catherine GLOVER, as Guardian for Jimmie Lee COBB, an Incompetent, Respondent. v. TACOMA GENERAL HOSPITAL, Appellant and Martha Cowgill; Phillip Backup; the University of Washington, University of Washington Hospital; the State of Washington, acting through the Board of Regents, d/b/a University of Washington Medical School; and Tacoma Anesthesia Associates, Inc., Defendants.

No. 48506-2.

Supreme Court of Washington En Banc.

Feb. 10, 1983.

Reed, McClure, Moceri & Thonn, Kathy A. Cochran, Seattle, for appellant.

Daniel F. Sullivan, Thomas Golden, Phillip Offenbacker, Seattle, Mary Ellen Goodwin, Tacoma, Williams, Lanza, Kastner & Gibbs, Mary Spillane, Seattle, Billett, Comfort & Rosenow, Allan Billett, Todd M. Worswick, Tacoma, for respondent.

Lane, Powell, Moss & Miller, C. William Bailey, Seattle, Dan Clem, Kitsap County Prosecutor, Patricia Schafer, Deputy Pros. Atty., Port Orchard, for amicus curiae.

CUNNINGHAM, Judge Pro Tem ^*.

Appellant challenges a superior court judge's denial of summary judgment and approval of a settlement pursuant to the terms of Washington's contribution statute, RCW 4.22.040-.920. The case presents issues of first impression regarding the tort reform act, Laws of 1981, ch. 27 (hereinafter the Act). For the reasons discussed below, we remand for entry of partial summary judgment on the issue of vicarious liability and for trial on the independent liability claim. Furthermore, we find that the settlement was reasonable, given the factors outlined in this opinion.

I

The case arises from a medical malpractice action involving the treatment of Jimmie Lee Cobb. On April 25, 1979, Ms. Cobb was admitted to Tacoma General Hospital for surgery. Complications arose during the administration of the anesthetic, when Ms. Cobb became hypotensive and lapsed into a coma. Apparently suffering irreversible brain damage, Ms. Cobb has been comatose since that date.

Her sister, Catherine Glover, was appointed guardian ad litem. She sued, on Jimmie's behalf, the following defendants: (1) Tacoma General Hospital, (2) Dr. Martha Cowgill, the anesthesiology resident trainee who administered the anesthetic, (3) Dr. Phillip Backup, a member of the anesthesiological staff, and (4) the University of Washington Hospital. Dr. Backup was supervising Dr. Cowgill during the procedure. Later, the plaintiff amended her complaint and added two additional defendants: the State of Washington, acting through the Board of Regents, doing business as the University of Washington Medical School, where Dr. Cowgill was a resident, and Tacoma Anesthesia Associates, Inc., Dr. Backup's employer. Plaintiff's complaint alleged, inter alia, negligence in the administration of the anesthetic and breach of the hospital's duty of care to the patient. Plaintiff also alleged that the hospital was vicariously liable for the negligent acts of its agents Cowgill and Backup.

Tacoma General answered by denying the allegations and filing a cross claim for contribution from defendants Cowgill, Backup, University of Washington Hospital, the State of Washington and Tacoma Anesthesia Associates, Inc.

Plaintiff and defendants Cowgill, Backup, University of Washington Hospital, the State of Washington and Tacoma Anesthesia Associates agreed to settle the case for $575,000. Tacoma General apparently did not participate in these negotiations, and the release instrument specifically excluded Tacoma General. Plaintiff then sought court approval of the settlement, as required by RCW 4.22.060. This statute, enacted in 1981, creates a right of contribution between joint tortfeasors. It also establishes procedures for implementing that right. According to the terms of the statute,

[a] release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable.

(Italics ours.) RCW 4.22.060(2). As the above language indicates, RCW 4.22.060(2) requires that the court enter either a finding that the settlement amount is reasonable or that another, presumably higher, amount is reasonable.

Following plaintiff's petition for approval of the settlement, Superior Court Judge Waldo Stone heard argument on the reasonableness of the settlement. Tacoma General, urging that the proposed settlement was unreasonable, argued the settling defendants were the ones principally liable to the plaintiff. This settlement left Tacoma General, alone, exposed to a potential verdict of $2.5 million, with an offset of only $575,000. After evaluating the evidence, Judge Stone concluded that the $575,000 was a reasonable settlement. He therefore dismissed Tacoma General's cross claim for contribution.

In addition to its resistance to the proposed settlement, Tacoma General moved for summary judgment against the plaintiff on the issue of vicarious liability. This motion, as well as Tacoma General's motion for summary judgment of dismissal, were denied. Tacoma General sought discretionary review, only on the issues pertaining to the vicarious liability claim. We granted this limited review.

Tacoma General now urges that the trial judge erred in applying the contribution statute, RCW 4.22.040-.920. Specifically, it assigns error to the trial court's rulings (1) that the settlement was reasonable; (2) that the motion for summary judgment should be denied; and (3) that Tacoma General's cross claim for contribution and/or indemnity should be dismissed.

We hold that RCW 4.22.040(1) requires that the vicarious liability claim against Tacoma General Hospital be dismissed, that the trial judge properly dismissed Tacoma General's cross claims for contribution, and that the settlement was reasonable. We believe this result is most consistent with the Legislature's intent in passing the tort reform act. A review of the common law prior to the Act and an analysis of the Act itself demonstrates this point.

II

Plaintiff Glover alleged two principal forms of liability against Tacoma General Hospital. First, plaintiff alleged that Tacoma General breached an independent duty to provide proper treatment. Second, she alleged that the hospital was vicariously liable for the acts of the anesthesiologists.

The first claim presents a classic multiple tortfeasor situation. In Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 235, 588 P.2d 1308 (1978), this court described the various types of tortfeasors and the implications arising from each classification.

There the court noted:

It has long been recognized that the single tort-feasor is liable for all damage for which his tortious conduct is a proximate cause. In the case of multiple tort-feasors the principle is the same. That is, each multiple tort-feasor is personally liable for any injury for which his tortious act is a proximate cause.

Multiple tort-feasors are often characterized as "joint", "concurrent", or "successive" when differentiating between the type of harm caused and the nature of the duty owed. Joint tort-feasors are those who have acted in common or who have breached a joint duty. Concurrent tort-feasors are those whose independent acts concur to produce the injury. Significantly, the harm caused by both joint and concurrent tort-feasors is indivisible. The distinguishing factor between these types of tort-feasors is the duty breached. Joint tort-feasors breach a joint duty whereas concurrent tort-feasors breach separate duties.

Since the harm caused by both joint and concurrent tort-feasors is indivisible, similar liability attaches. We have long held that such tort-feasors are each liable for the entire harm caused and the injured party may sue one or all to obtain full recovery.

(Footnote and citations omitted.) Shoreline Concrete, at 234-35, 588 P.2d 1308. This latter concept is known as joint and several liability. Under the common law, contribution--the right of one tortfeasor to recover from another amounts paid to the injured plaintiff--did not exist. See W. Prosser, Torts § 50, at 306 (4th ed. 1971). The rationale most often suggested for the denial of contribution was the belief that a tortfeasor was a wrongdoer and should be denied the assistance of the courts. In drafting the Uniform Contribution Among Tortfeasors Act, the commissioner offered the following observations on the fairness of this rule:

It is apparent that an injury resulting from the joint tort of two or more persons involves each of them, jointly and severally, in liability for the entire damage. It is equally apparent that this is an instance of a common obligation resting on two or more, the discharge of which by one of them accrues to the advantage of the others. At first blush, this appears to be a typical instance of the discharge of a common liability to be governed by the principle of contribution. But the policy of Anglo-American common law has been to deny assistance to tortfeasors on the understanding that they are wrongdoers and hence not deserving of the aid of courts in achieving equal or proportionate distribution of the common burden.

As an original proposition, all might agree that courts should not lend their aid to rascals in adjusting differences among them. But all tortfeasors are not rascals, in spite of the literal translation of the term as wrongdoers. Most joint and several tort liability results from inadvertently caused damage, although it is almost impossible to draw a practical line between torts of inadvertence and others. It is, then, somewhat ironic to note...