Mercy Med. Ctr. v. Julian

• Decision Date: 27 November 2012
• Docket Number: Sept. Term, 2011.,119,Nos. 118,s. 118
• Parties: MERCY MEDICAL CENTER, et al. v. Emerson R. JULIAN, Jr., et al. Wycinna L. Spence, et vir. v. Emerson R. Julian, Jr., et al.
• Court: Maryland Court of Appeals

429 Md. 348

56 A.3d 147

MERCY MEDICAL CENTER, et al.

v.Emerson R. JULIAN, Jr., et al.

Wycinna L. Spence, et vir.

v.Emerson R. Julian, Jr., et al.

Nos. 118, 119, Sept. Term, 2011.

Court of Appeals of Maryland.

Nov. 27, 2012.

Kelly Hughes Iverson (Craig B. Merkle of Goodell, DeVries, Leech & Dann, LLP, Baltimore, MD), on brief, for Petitioners in No. 118, Sept.Term, 2011.

Rignal W. Baldwin, Jr. (Jeffrey P. Bowman of Baldwin, Kagan & Gormley, LLC, Annapolis, MD), on brief for Petitioners in No. 119, Sept.Term, 2011.

James L. Shea (Mitchell Y. Mirviss, Michael J. DeVinne, and Viktoriya M. Shpigelman of Venable LLP, Baltimore, MD; David A. Levin and Michelle R. Mitchell of Wharton, Levin, Ehrmantraut & Klein, P.A., Annapolis, MD), on brief, for Respondents.

George S. Tolley, III, Esquire, Dugan, Babij & Tolley, LLC, Timonium, MD, for amicus curiae brief of Maryland Association for Justice in Support of Petitioners.

J. Mark Coulson, Esquire, Jonathan Singer, Esquire, Miles & Stockbridge, PC, Baltimore, MD, for amici curiae brief of Johns Hopkins Health System, Lifebridge Health, Inc., Medstar Health, and University of Maryland Medical System Corporation in No. 118, Sept.Term, 2011.

Albert D. Brault, Esquire, Joan F. Brault, Esquire, Brault Graham, LLC, Rockville, MD, for amici curiae brief of Maryland State Medical Society and Medical Mutual Liability Insurance Society of Maryland.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

BATTAGLIA, J.

Two petitions for certiorari were presented for our review that pertain to contribution among joint tort-feasors ¹ and arise from one medical malpractice action, in which the Petitioners Wycinna and Christopher Spence ² (collectively “the Spences”) alleged wrongful death and survival claims against Mercy Medical Center, Inc. (“Mercy”), ³ also a Petitioner, and Respondents Emerson R. Julian, Jr., M.D., and his practices Emerson R. Julian, Jr., M.D., P.A., and Harbor City OB/GYN Associates, LLC (collectively “Dr. Julian”). The issue of contribution arises in this matter because the Spences and Mercy entered into a pretrial settlement, by which the Spences agreed to dismiss their claims against Mercy for an undisclosed amount, without exacting an admission of liability; after Mercy was dismissed as a party, the case proceeded to trial against Dr. Julian, which ultimately resulted in an award to the Spences of $2,186,342.50.

Dr. Julian, in one of the two cases now under our review, subsequently initiated a separate action against Mercy seeking contribution. The Spences contemporaneously brought suit against Dr. Julian, seeking a declaration that he was not entitled to contribution. Both Mercy and the Spences argued before the trial court and before us that under the Maryland Uniform Contribution Among Joint Tort–Feasors Act, Sections 3–1401 to 3–1409 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2006 Repl.Vol.) (“the Act”), ⁴ their release extinguished any right that Dr. Julian had to seek contribution against Mercy, because he did not join Mercy as a third party defendant in the original action after it was dismissed as a party. The Court of Special Appeals consolidated both cases, 201 Md.App. 562, 566, 30 A.3d 220, 223 (2011), and we continue that joinder, to consider whether Dr. Julian may pursue, in a separate action, contribution against Mercy after it had settled with, and been voluntarily dismissed by, the Spences subsequent to the filing of suit but prior to trial.⁵

The concept of a “joint tort-feasor” is derived from the notion that a single injury can result from the joint actions of two or more individuals, who, putting aside defenses, may be jointly and severally liable. W. Page Keeton, Prosser and Keeton on the Law of Torts § 41, at 268 (5th ed. 1984). Each individual is severally liable for the entire damage, regardless of whether the conduct of one directly caused more or less injury compared to that of another, because they acted together with a common purpose resulting in responsibility for the common injury.⁶Consumer Protection Division v. Morgan, 387 Md. 125, 178, 874 A.2d 919, 950 (2005), citing William L. Prosser, Joint Torts and Several Liability, 25 Cal. L.Rev. 413, 414 (1936); see also Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671, 687, 756 A.2d 526, 534 (2000).

Under common law, the injured party, considered “lord of his action,” could pursue any or all of the joint tort-feasors to recover damages. E.g., Prefatory Note, Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Forty–Ninth Annual Conference 240–41 (1939). The right of contribution among joint tortfeasors, so that one who paid the damages caused by several would be able to spread the loss among the group of tort-feasors, was prohibited. One basis for not permitting the apportionment of an award of damages among joint tort-feasors was that “the claimant for contribution [was thought to be] a ‘bad man’ and hence not entitled to the aid of the courts.” Charles O. Gregory, Contribution Among Joint Tortfeasors: A Defense, 54 Harv. L.Rev. 1170, 1170 (1941). As the injured party could have but one recovery, one joint-tort feasor could not settle without necessitating a release of the entire claim, as “a release of one joint tortfeasor releases all.” Stuart M. Speiser et al., 1A The American Law of Torts § 5:42, at 577(2003); accord Gunther v. Lee, 45 Md. 60, 67 (1876) (“All the cases, both English and American, maintain the doctrine that satisfaction from one joint tort-feasor, whether received before or after recovery, extinguishes the right as against the others.”).

The bar against contribution was criticized, from the viewpoint of the joint tort-feasor who had assumed total responsibility, as unfair and collusive between the injured party and another culpable person who escaped “scot free” from liability. Prosser and Keeton on the Law of Torts § 50, at 338. Nevertheless, a joint tort-feasor remained motivated to settle for less than the full amount, because of the “fear of each that unless he settles he may have to bear alone the full weight of the verdict.” Fleming James, Jr., Contribution Among Joint Tortfeasors: A Pragmatic Criticism, 54 Harv. L.Rev. 1156, 1161 (1941).

Contribution provided the societal benefit of a broader distribution of loss. Ernest M. Jones, Contribution Among Tortfeasors, 11 U. Fla. L.Rev. 175, 187–88 (1958). In place of perceived unjust enrichment and favoritism towards actors who were not pursued by an injured party for recovery, the right to contribution promoted fairness under the maxim “Equality is equity.” Id. at 182; Robert A. LeFlar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L.Rev. 130, 136–37 (1932). Contribution also supplied greater certainty of liability to joint tort-feasors, who were able to determine their proportional share of the common liability based on the number of joint tort-feasors. William M. Landes & Richard A. Posner, Joint and Multiple Tortfeasors: An Economic Analysis, 9 J. Legal Stud. 517, 530–31 (1980).

In conformance with these principles, the Uniform Contribution Among Tortfeasors Act was promulgated in 1939 by the American Law Institute and the National Conference of Commissioners on Uniform Laws to enable a statutory abrogation of the common law bar on contribution, in recognition that “[t]he desire for equal or proportionate distribution of a common burden among those upon whom it rests is everywhere fundamental.” Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Forty–Ninth Annual Conference, supra, at 240–41. A goal of the draft was to eradicate the common law rule providing a “private, rather than judicial, control of the distribution of loss arising from a common burden of liability,” which allowed the injured person to pick and choose “one or more of several tortfeasors commonly liable to suffer judgment, even though trial would have proven them equally responsible....” Id. at 241.

In 1941, the General Assembly adopted the Maryland Uniform Contribution Among Joint Tort-feasors Act, modeled on the national paradigm. 1941 Maryland Laws, Chapter 344. Now currently codified as Sections 3–1401 to 3–1409 of the Courts & Judicial Proceedings Article, the Act defines joint tort-feasors as “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.” Section 3–1401(c). In place of “a release of one releases all” at common law, the Act provides that a release of one joint tort-feasor does not relieve the liability of other joint tort-feasors, but instead reduces the judgment against them by either the consideration paid for the release or an amount or proportion provided in the release, whichever is greater:

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but it reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.

Section 3–1404.

Necessary to the existence of contribution under the Act is the determination of joint tort-feasor status, although the Act “does not specify the test of liability.” Swigert v. Welk, 213 Md. 613, 619, 133 A.2d 428, 431 (1957). Our jurisprudence since the Act's passage provides that a party may qualify as a joint tort-feasor only by either having been adjudicated as liable, or having conceded or admitted liability, as a tort-feasor; threat of suit or suit itself will not suffice:

As the Court of Appeals recognized long ago, “[the Uniform Act] does not specify the test of liability. Clearly, something short of an...