Lerman v. Heemann

Decision Date01 September 1995
Docket NumberNo. 2012,2012
Citation112 Md.App. 320,685 A.2d 782
PartiesSheldon LERMAN v. Kerry HEEMANN. ,
CourtCourt of Special Appeals of Maryland

J. Mark Coulson (Mark D. Gately and Miles & Stockbridge, on the brief), Baltimore, for appellant.

Catherine W. Steiner (William W. Whiteford and Whiteford, Taylor & Preston, on the brief), Baltimore, for appellee.

Argued before MOYLAN, FISCHER and SALMON, JJ.

SALMON, Judge.

In 1994, a wrongful-death claim was filed with the Director of the Health Claims Arbitration Office (HCAO) against, inter alia, appellant, Sheldon H. Lerman, M.D., and appellee, Kerry R. Heemann, M.D. 1 No cross-claims were filed with the HCAO by either Dr. Lerman or Dr. Heemann. A health claims arbitration panel determined that both doctors were negligent and an award against them was entered. The doctors rejected the award and, pursuant to section 3-2A-06 of the Courts and Judicial Proceedings Article of the Maryland Code (1974, 1995 Repl.Vol.) ("the Courts Article"), suit was filed against Drs. Lerman and Heemann in the Circuit Court for Baltimore County. Again, no cross-claims were filed in the circuit court by the physicians.

In September 1994, the case was tried before a jury (Kahl, J., presiding). A verdict was returned against Drs. Lerman and Heemann in the amount of $3,354,808.55. Subsequently, the insurance carrier for each physician paid one-half the interest due on the judgment. The judgment was satisfied when Dr. Heemann's insurer paid the plaintiffs $2,354,808.55 and Dr. Lerman's insurer paid the remaining $1,000,000 that was due. Because Dr. Heemann paid more than his pro-rata share of the judgment, he filed, pursuant to Maryland Rule 2- 614, a post trial motion requesting that a judgment be entered in his favor against Dr. Lerman for $677,404.28. 2

Dr. Lerman opposed the motion and argued: 1) The court had no authority to enter a judgment for contribution because Dr. Heemann had never filed a cross-claim against him, and alternatively, 2) the court had no jurisdiction to entertain Dr. Heemann's claim for contribution because Dr. Heemann had failed to submit his contribution claim to the HCAO for arbitration. Judge Kahl held a hearing on this matter and, on October 30, 1995, filed a written memorandum opinion and order in which he rejected Dr. Lerman's arguments and granted judgment in favor of Dr. Heemann in the full amount requested. Dr. Lerman noted this timely appeal and raises the same issues as he raised below.


If in a single action a judgment is entered against more than one defendant, and if one defendant pays more than his pro-rata share of that judgment, may a court enter a judgment for contribution against the defendant who has failed to pay his pro-rata share when no cross-claims have been filed?

We have found no prior reported case in Maryland where it was necessary to answer this question. We have, however, twice addressed the question in dicta and have answered it in the affirmative. See Baltimore County v. Stitzel, 26 Md.App. 175, 187, 337 A.2d 721 (1975), and Murphy v. Board of County Comm'rs, 13 Md.App. 497, 507-08, 284 A.2d 261 (1971).

The Uniform Contribution Among Joint Tort-Feasors Act (the Uniform Act) is codified in article 50, sections 16-24 of the Maryland Annotated Code of 1957 (1994 Repl.Vol.). Sections 16 and 17 of the Uniform Act read, in pertinent parts:

§ 16. Definitions.

For purposes of this subtitle:

(a) "Joint tort-feasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.

(b) "Injured person" means any person having a claim in tort for injury to person or property.

§ 17. Right of contribution.

(a) Right exists.--The right of contribution exists among joint tort-feasors.

(b) Discharge of liability or payment of share.--A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof....

Maryland Rule 2-614 provides:

Judgment of Contribution or Recovery Over

If in a single action a judgment is entered jointly against more than one defendant, the court upon motion may enter an appropriate judgment for one of the defendants against another defendant if (a) the moving defendant has discharged the judgment by payment or has paid more than a pro rata share of the judgment and (b) the moving defendant has a right to contribution or to recovery over from the other defendant.

Dr. Lerman stresses that a court can only grant a motion for contribution under Maryland Rule 2-614(b) if the movant has a right of contribution. He posits that Dr. Heemann did not acquire such a right because he failed to file a cross-claim for contribution. We reject this view and hold that no cross-claim is necessary. Dr. Heemann's right to contribution is derived from section 17(a) of the Uniform Act. Maryland Rule 2-614 provides the mechanism under which the rights granted by the Uniform Act are enforced. 3 Dr Heemann proved both prerequisites for the application of Rule 2-614. First, the jury verdict established that he and Dr. Lerman shared a common liability to the plaintiffs in the underlying tort action. 4 Therefore, the two were "joint tortfeasors" within the meaning of the Uniform Act. Second, Dr. Heemann proved that he paid more than his pro-rata share of the common obligation.

Paul V. Niemeyer & Linda M. Scheutt, in Maryland Rules Commentary 475 (2d ed. 1992), accurately explain the history, 5 purpose, and effect of Maryland Rule 2-614:

This rule continues the substances of former Rule 605d with stylistic changes only. It is a rule of convenience that permits one defendant who has paid more than a pro-rata share of a judgment to obtain judgment against another defendant who was held jointly liable. For example, if two defendants, A and B, are joint tortfeasors responsible for the plaintiff's damages, and defendant A pays more than half of the judgment, defendant A may obtain a judgment against defendant B for defendant B's pro-rata share of the judgment paid by defendant A. Although initiation of a separate action by defendant A against defendant B is an alternative method of proceeding, defendant A may avoid a separate lawsuit by filing a motion for judgment in the original action.

Contents of motion.

A motion for judgment filed under this rule is governed by Rule 2-311. It is granted on the findings of the court or the jury with respect to the joint liability of the parties. The only new fact to be shown is that defendant A paid more than a pro-rata share of the judgment. Complete satisfaction of the judgment is not required. The defendant may make this showing by affidavit, as required by Rule 2-311(d). The defendant must also show, as a matter of law, the right to contribution or recovery over against another. For example, the Uniform Contribution Among Tort-Feasors Act, Article 50, § 17 of the Maryland Code, gives this right to one joint tortfeasor against another.

(Emphasis added.)

Dr. Lerman argues:

[H]ad [a]ppellee filed a cross-claim against [a]ppellant, the jury's verdict in the underlying action against both doctors could form the basis for a motion pursuant to Rule 2-614.

Where, as here, however, [a]ppellee had only a potential, unasserted and unperfected right of recovery against [a]ppellant because [a]ppellee failed to file a cross-claim, Rule 2-614, by its very terms, is not available.

Dr. Lerman further maintains:

[T]he trial court's decision blur[s] the distinction between potential liability and actual liability. There are many instances where an alleged tortfeasor is potentially liable. In some cases, evidence of that potential liability may be so strong as to make judgment against the party a virtual certainty. Notwithstanding this, no court would enter judgment against a tortfeasor in the absence of a claim being brought against the tortfeasor.

The short answer to Dr. Lerman's arguments is that Dr. Heemann did make a claim against Dr. Lerman. The claim was made by a motion, and his right to make the claim in this manner is fully authorized by the provisions of Maryland Rule 2-614. His claim, therefore, was not "potential, unasserted and unperfected."

The appellant asserts that reading Rule 2-614 to allow a judgment for contribution without the necessity of filing a cross-claim would "eviscerate Rule 2-331(d) governing cross-claims." 6 This is untrue. Although there are situations, such as those here presented, in which a cross-claim proves to be unnecessary, there are many situations where a defense counsel would be extremely imprudent if he or she failed to file a cross-claim. This was cogently explained by Judge Powers for this Court, in Murphy, supra, 13 Md.App. at 507-08, 284 A.2d 261:

Crossclaims among alleged joint tort-feasors have their greatest efficacy in those stages of a trial before it is determined which of multiple defendants will be exposed to a jury verdict. Pendency of a crossclaim can prevent a co-defendant's premature exit from the case by a successful demurrer to the plaintiff's declaration, by a summary judgment against the plaintiff, by a separate settlement with the plaintiff, or by a directed verdict during trial as to the plaintiff's right to recover against him. However, unless a crossclaim seeks some separate affirmative relief, or indemnification, as distinguished from contribution, it virtually loses its raison d'etre when the parties to it are equally exposed to a jury determination of the liability or non-liability of each. See Maryland Rule 314.[ 7] Those defendants who are held liable to the plaintiff are also liable to each other in contribution, with or without a crossclaim, and those defendants who are held not liable to the plaintiff are not liable at all.

(Footnote in original omitted.)


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