Joseph v. Markovitz

• Decision Date: 29 June 1976
• Docket Number: CA-CIV,No. 1,1
• Citation: 551 P.2d 571,27 Ariz.App. 122
• Parties: Samuel R. JOSEPH, M.D., Appellant, v. Meyer MARKOVITZ, M.D., Roy S. Weinrach, M.D., and Liberty Mutual Insurance Company, Appellees. LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Cross-Appellant, v. Samuel R. JOSEPH, M.D., Cross-Appellee. 2736.
• Court: Arizona Court of Appeals

Page 571

551 P.2d 571

27 Ariz.App. 122

Samuel R. JOSEPH, M.D., Appellant, v. Meyer MARKOVITZ, M.D., Roy S. Weinrach, M.D., and Liberty Mutual Insurance Company, Appellees.

LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Cross-Appellant, v. Samuel R. JOSEPH, M.D., Cross-Appellee.

No. 1 CA-CIV 2736.

Court of Appeals of Arizona, Division 1, Department B.

June 29, 1976.

Rehearing Denied Aug. 9, 1976.

Hofmann, Salcito & Hover, P.C. by Leroy W. Hofmann, Phoenix, for appellant and cross-appellee, Samuel R. Joseph, M.D

Renaud, Cook, Miller & Cordova, P.A. by Richmond Turner and J. Gordon Cook, Phoenix, for appellees and cross-appellant, Meyer Markovitz, M.D., Roy S. Weinrach, M.D., and Liberty Mutual Ins. Co.

OPINION

WREN, Judge.

The plaintiff below, Samuel R. Joseph, M.D., brings this appeal from the granting of motions for summary judgment in favor of the defendants, Meyer Markovitz, M.D., Roy S. Weinrach, M.D., and Liberty Mutual Insurance Company. Liberty Mutual has cross-appealed the granting of summary judgment in favor of Dr. Joseph on the issue of attorney's fees.

Dr. Joseph's claim against the defendants had its origin in a malpractice action instituted by one L. D. Dennis, the surviving spouse of Pearlie B. Dennis, against Drs. Markovitz and Weinrach. At the time of the alleged malpractice, Dr. Joseph was a partner with Dr. Markovitz and a third physician in the practice of internal medicine. Dr. Weinrach was an associate of the partners. This partnership was dissolved prior to the filing of the malpractice action. Liberty Mutual was the insurance carrier for the doctors and the policy limits were $100,000.

Rather than stating a dollar amount, the Dennis complaint sought such damages as were fair and reasonable. The potential verdict therefore might have exceeded policy limits. A third-party complaint was then filed against Dr. Joseph by the defendants in the malpractice action alleging a right to indemnity from Dr. Joseph under their partnership agreement for 20 per cent of any judgment exceeding policy limits.

The malpractice action was tried to a jury which found in favor of Drs. Markovitz and Weinrach. Thereafter, they moved to dismiss the third-party complaint, and the motion was granted by the court.

Dr. Joseph then filed his action against all three of the defendants alleging that the filing of the third-party complaint against him constituted malicious prosecution, abuse of process and intentional infliction of emotional distress. Against Liberty Mutual alone he alleged bad faith and sought attorney's fees for the defense of the third-party claim.

MALICIOUS PROSECUTION

In order to sustain a cause of action for malicious prosecution, the plaintiff is required to show that a civil or criminal proceeding was instituted by the defendant against the plaintiff; that the suit terminated in favor of the plaintiff; that it was commenced without probable cause; and that it was motivated by malice. Visco v. First National Bank of Arizona, 3 Ariz.App. 504, 415 P.2d 902 (1966); Lantay v. McLean, 2 Ariz.App. 22, 406 P.2d 224 (1965); 52 Am.Jur.2d Malicious Prosecution § 6; 54 C.J.S. Malicious Prosecution § 4; Prosser, Law of Torts (4th ed.) p. 835. The existence of probable cause to institute the action is a complete defense to malicious prosecution without regard to the existence of malice. McClinton v. Rice, 76 Ariz. 358, 265 P.2d 425 (1953); Murphy v. Russell, 40 Ariz. 109, 9 P.2d 1020 (1932); Todd v. Melcher, 11 Ariz.App. 157, 462 P.2d 850 (1969); Lantay v. McLean, supra. Whether probable cause existed is a question of law to be decided by the trial judge Murphy v. Russell, supra.

In support of their motions for summary judgment, the defendants submitted affidavits of Drs. Markovitz and Weinrach and of Richard Segal, their attorney in the malpractice action. Segal's deposition was also in evidence. Both the affidavits and deposition established that the idea of filing the third-party complaint against Dr. Joseph originated with Segal, and that the decision to file it was also left to Segal. It was Segal's opinion that Dr. Joseph would be liable under the partnership agreement for 20 per cent of any verdict exceeding the insurance recovery limits. The attorney stated in his deposition that he informed Liberty Mutual of his intention to sue Dr. Joseph because he knew Liberty Mutual would probably have to finance Dr. Joseph's defense. The record is void of any indication that the defendants initiated or encouraged the filing of the third-party suit. They merely relied upon Segal's legal expertise.

It has been generally recognized that the advice of a duly-licensed attorney given after full and truthful disclosure of the facts is sufficient to establish probable cause even if the lawyer's advice was erroneous. Tate v. Connel, 3 Ariz.App. 534, 416 P.2d 213 (1966); Patapoff v. Vollstedt's, Inc., 230 Or. 266, 369 P.2d 691 (1962); Allen v. Moyle, 84 Idaho 18, 367 P.2d 579 (1961); Consumers Filling Station Company v. Durante, 79 Wyo. 237, 333 P.2d 691 (1958); Masterson v. Pig 'N Whistle Corporation, 161 Cal.App.2d 323, 326 P.2d 918 (1958); 52 Am.Jur.2d Malicious Prosecution § 77; Prosser, Law of Torts (4th ed.) p. 844. Probable cause having been established as a matter of law, malicious prosecution cannot lie.

We recognize that a summary judgment must be viewed in a light most favorable to the party against whom it was directed and that it is inappropriate if there is any doubt as to whether an issue of material fact exists. Livingston v. Citizen's Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971); Boozer v. Arizona Country Club, 102 Ariz. 544, 434 P.2d 630 (1967); Flynn v. Lindenfield, 6 Ariz.App. 459, 433 P.2d 639 (1967). However, when a motion for summary judgment is supported by proof of specific facts which would defeat plaintiff's claim, plaintiff must then come forward to show the existence of a genuine factual issue. Davis v. Vumore Cable Co., 14 Ariz.App. 411, 484 P.2d 23 (1971); Patton v. Paradise Hills Shopping Center, Inc., 4 Ariz.App. 11, 417 P.2d 382 (1966).

On appeal, an appellant must be able to point to an issue of fact in the record which renders the summary judgment improper. Mozes v. Daru, 4 Ariz.App. 385, 420 P.2d 957 (1966). The record here is void of any evidence showing that Dr. Markovitz, Dr. Weinrach or Liberty Mutual, in filing the third-party complaint, did anything other than follow Segal's advice in good faith after full disclosure of all the facts. Such facts establish probable cause as a matter of law and Dr. Joseph's allegations of malice, even if true, will not support a malicious prosecution action where probable cause is shown to exist.

ABUSE OF PROCESS

'Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.

'The essential elements of abuse of process, as the tort has developed, have been stated to b: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.' Prosser, Law of Torts (4th ed.) p. 856 and 857.

Dr. Joseph's claim of abuse of process is based on his allegation that the third-party complaint was filed against him to prevent his testifying against Drs. Markovitz and Weinrach. In support of this claim, Dr. Joseph points to certain answers given by Segal in his deposition.

'Q. Is it not true that one of the reasons that you believed that the plaintiff's attorneys did not want Joseph as a party to the law suit was that Joseph might be less willing to testify as a witness on the plaintiff's behalf?

'A. I had considered that.

'Q. That was part of your belief?

'A. Yes.

'A. No, I didn't think it would affect his willingness to be a witness.

'Q. What did you think it would affect?

'A. I thought it would affect his hard feelings towards Markovitz and Weinrach, as they had described them to me, upon Dr. Joseph's testimony.

'Q. You felt that he might be less an advocate, so to speak, if he were a party than otherwise?

'A. Yes.

'Q. Okay. Lee enthusiastic in his testimony?

'A. Less reckless. I was not interested in his enthusiasm.'

However, as noted supra, proof of abuse of process requires some act beyond the initiation of a lawsuit; such as, if Drs. Markovitz and Weinrach had offered to dismiss the third-party complaint in exchange for Dr. Joseph not testifying against them. Dr. Joseph has not alleged such an actual use of the suit to prevent his testimony....