Gold Cross Ems, Inc. v. Children's Hosp. of Ala.
| Decision Date | 27 April 2016 |
| Docket Number | No. 15-14369,15-14369 |
| Parties | GOLD CROSS EMS, INC., Plaintiff-Counter Defendant-Appellant, v. THE CHILDREN'S HOSPITAL OF ALABAMA, Defendant-Counter Claimant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 1:13-cv-00081-JRH-BKE
Appeal from the United States District Court for the Southern District of Georgia
Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
Gold Cross EMS, Inc. appeals from the district court's grant of summary judgment to the Children's Hospital of Alabama in Gold Cross's action for contribution. Their dispute arises out of an accident that occurred during the ambulatory transportation of a two-year-old patient. Children's Hospital hired Gold Cross to transport the patient and Children's Hospital's "critical care team," which consisted of a nurse and a therapist, to an airport in Georgia. Two Gold Cross employees drove the ambulance, which was owned by Gold Cross, while the patient, nurse, and therapist rode in the back. When they arrived at the airport, the Gold Cross employees began removing the patient from the ambulance. During that process, the stretcher to which the patient was bound tipped over onto the tarmac. It was later discovered that the girl had been paralyzed.
The patient's father and a guardian ad litem sued Gold Cross and Children's Hospital jointly. (They also sued the Gold Cross employees, who were later dismissed.) Gold Cross ultimately settled the claims against it and Children's Hospital for $9 million. In its settlement agreement, Gold Cross expressly reserved the right to pursue a contribution claim against Children's Hospital. Exercising that right, Gold Cross filed a complaint in Georgia state court seekingcontribution from Children's Hospital under Georgia law.1 Children's Hospital removed the case to federal court and later moved for summary judgment on the contribution claim. Gold Cross cross-moved for summary judgment and, in the alternative, requested that the court certify the contribution question to the Georgia Supreme Court. The district court denied Gold Cross' request to certify the question and granted summary judgment to Children's Hospital. See Gold Cross EMS, Inc. v. Children's Hosp. of Ala., 79 F. Supp. 3d 1316 (S.D. Ga. 2015). Gold Cross then moved for reconsideration, which the district court denied. See Gold Cross EMS, Inc. v. Children's Hosp. of Ala., 108 F. Supp. 3d 1376 (S.D. Ga. 2015).
Georgia law recognizes "the right of contribution between settling joint tortfeasors when there has been no apportionment of damages by a trier of fact." Zurich Am. Ins. Co. v. Heard, 740 S.E.2d 429, 432 (Ga. Ct. App. 2013). However, "[w]here no judgment finding both tortfeasors liable has been entered . . . the party seeking contribution must prove that his own negligent action and those of the alleged joint tortfeasors jointly caused the harm." Suggs v. Hale, 629 S.E.2d 11, 15 (Ga. Ct. App. 2006) (quotation marks and alterations omitted). In other words, the party seeking contribution must show that the alleged joint tortfeasor committed "separate and independent acts of negligence." Zimmerman's, Inc. v.McDonough Const. Co., 240 S.E.2d 864, 866 (Ga. 1977) (quotation marks omitted).
Gold Cross cannot establish that Children's Hospital committed any independent acts of negligence that contributed to the harm at issue here. The evidence shows that Gold Cross' employees, and only Gold Cross' employees, were handling the stretcher when it tipped over on the tarmac. Gold Cross asserts that Children's Hospital's nurse, who was at least present during the accident, was negligent in failing to supervise Gold Cross' employees when they removed the child from the ambulance. However, Gold Cross cites no Georgia case law to support the proposition that Children's Hospital had such a duty and, aside from that, they do not explain how Children's Hospital's supervision would have prevented Gold Cross' employees from dropping the stretcher.
Gold Cross contends that even if it cannot establish independent acts of negligence, it is still entitled to contribution. It argues that Children's Hospital is vicariously liable for the negligence of Gold Cross' employees because those employees were borrowed or joint servants of both Children's Hospital and Gold Cross, and that Children's Hospital and Gold Cross were therefore joint employers or joint masters.2 Even if Gold Cross could seek contribution based on Children'sHospital's potential vicarious liability, Gold Cross has failed to establish that its employees were borrowed or joint servants of Children's Hospital. To succeed on that theory, Gold Cross would have to show that Children's Hospital exercised "complete control" over Gold Cross' employees. See Food Giant v. Davison, 362 S.E.2d 447, 448-49 (Ga. Ct. App. 1987); Garden City v. Herrera, 766...
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