Mick v. Mani, No. 61428

• Court: United States State Supreme Court of Kansas
• Writing for the Court: McFARLAND
• Citation: 766 P.2d 147,244 Kan. 81
• Parties: Douglas MICK, Appellant, v. Mani M. MANI, M.D., Appellee.
• Decision Date: 09 December 1988
• Docket Number: No. 61428

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766 P.2d 147 244 Kan. 81 Douglas MICK, Appellant,
v.
Mani M. MANI, M.D., Appellee. No. 61428. Supreme Court of Kansas. Dec. 9, 1988. Syllabus by the Court

1. Development in Kansas of the "one-action" rule in comparative negligence cases and exceptions thereto is discussed.

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2. Where an injured party brings a products liability action seeking all damages arising from an accident and a second action predicated on medical malpractice against a different defendant seeking a portion of the same damages and the products liability action ends in a judicial determination of fault, the record is examined and it is held: The district court did not err in entering summary judgment in favor of the defendant in the medical malpractice action on the basis of the "one-action rule."

Caleb Boone, Hays, argued the cause and was on the briefs for appellant.

James D. Griffin, of Blackwell Sanders Matheny Weary & Lombardi, Overland Park, argued the cause, and Melinda Swanson Whitman, of the same firm, and Larry L. McMullen, of the same firm, Kansas City, Mo., were with him on the brief for appellee.

McFARLAND, Justice:

This is a medical malpractice action in which plaintiff Douglas Mick claims damages arising from reconstructive surgery performed by defendant, Dr. Mani M. Mani. The district court entered summary judgment in favor of Dr. Mani on the basis that this action was barred by virtue of a verdict in a Rooks County trial in which Mick had sought recovery of damages against a different defendant which included the damages he claims against Dr. Mani in this action. Mick appeals from the entry of said summary judgment.

Douglas Mick was severely injured while working on a drilling rig in Gove County on April 24, 1982. In the accident, Mick sustained severe facial injuries which included crushing fractures to the left side of his face. He was transferred from the local hospital by air ambulance to the Kansas University Medical Center, where he was examined by Dr. Mani. Two other physicians, Dr. Thomas M. Beahm and Dr. John Hiebert, were also involved in his treatment at the medical center to some degree, [244 Kan. 82] but their involvement is immaterial herein. Dr. Mani, a plastic surgeon, performed reconstructive surgery on Mick shortly after his arrival at the hospital.

On or about April 24, 1984, Mick filed two lawsuits. In the Rooks County action (No. 84-C-21), he sued Bethlehem Steel Corporation; Armco Steel Corporation; Armco, Inc.; Schwab's Tinker Shop, Inc.; Larry's Welding Service, Inc.; H & T Pipe; Aaron's Repair and Supply, Inc.; and Aaron G. Maresch. The Rooks County action was predicated upon the theory of products liability being the cause of the oilfield accident. In this action, Mick sought recovery for all of his damages rising from the accident including pain, loss of wages, permanent facial disfigurement, and visual disabilities. On April 24, 1984, he filed the instant action in Johnson County against Drs. Mani, Beahm, and Hiebert, seeking recovery for pain, loss of wages, permanent facial disfigurement, and visual disabilities. This action was predicated upon medical malpractice.

All defendants and, of course, Mick knew of the existence of both lawsuits. Certain joint discovery activities occurred, but plaintiff made certain that no deponents made reference to the existence of two lawsuits in their depositions. The joint discovery was apparently by consent and for convenience. No court order directed any consolidation for discovery or other purposes.

Ultimately, all of the defendants were dismissed from the Rooks County action except for Bethlehem Steel. A total of $40,000 was paid by the settling and/or dismissed Rooks County defendants. Drs. Beahm and Hiebert were dismissed from the case herein by agreement of the parties. Bethlehem Steel was the only remaining defendant in the Rooks County action, and Dr. Mani was the only remaining defendant in the case herein.

The Rooks County case proceeded to trial, commencing on January 20, 1987. Dr. Mani's fault was not compared. Dr. Mani was called as a witness by Mick. The jury returned a verdict finding no fault on the part of Bethlehem Steel. At trial plaintiff sought recovery of his entire damages against Bethlehem, including permanent facial

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deformity. No appeal was taken by the plaintiff from the verdict.

Following the trial, Dr. Mani filed a motion for summary judgment on the basis of the "one-action" rule (discussed later in the opinion). In his motion for a new trial in Rooks County, Mick [244 Kan. 83] asked the court to consolidate the two cases. On February 5, 1987, Mick filed a motion with the Kansas Supreme Court (file No. 60,460) to consolidate the two cases. The motion was denied on February 13, 1987. Summary judgment was entered in Johnson County on September 17, 1987. Plaintiff appeals therefrom.

Plaintiff contends the trial court erred in entering summary judgment because: (1) the Rooks County trial court would not permit Bethlehem Steel to compare defendant Mani's fault; (2) the accident and defendant's action were two separate occurrences, thereby permitting two separate lawsuits; (3) defendant waived or is estopped to assert the one-action rule of K.S.A.1987 Supp. 60-258a; and (4) defendant waived the election of remedies defense.

Preliminarily, since this appeal is from a summary judgment, the general rules relevant to the challenge to summary judgment are as follows: Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Danes v. St. David's Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988); Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, Syl. p 1, 729 P.2d 1214 (1986); Peoples Nat'l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985). When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Hollingsworth v. Fehrs Equip. Co., 240 Kan. at 401, 729 P.2d 1214; Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, Syl. p 2, 710 P.2d 1297 (1985); McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. p 4, 662 P.2d 1203 (1983).

Preliminarily, we should dispose of the claim the summary judgment was improper because the Rooks County District Court did not allow Bethlehem Steel to compare its fault with that of Dr. Mani. Nowhere in the record can we find where Bethlehem Steel ever requested such a comparison. The only place in the record where such a comparison is referred to which we have located or had our attention directed to was during the October 16, 1985, pretrial of the Rooks County case. In a general discussion of the issues, a defendant other than Bethlehem [244 Kan. 84] mentioned the possibility. A sort of off-the-cuff conversation ensued, ending as follows:

"THE COURT: I don't know that I will be taking anything away from you people at the pretrial. Let me say this, at this point in time I would be planning on comparing the parties plus the co-workers, but not planning on comparing doctors. If somebody convinces me later on that I decided this in the wrong direction, then I can always withdraw and reconsider my last opinion.

"MR. BLEEKER [attorney for a defendant subsequently dismissed]: Might I make a suggestion to the Court, that maybe the Court could establish a deadline for briefing that issue, while we are here today[?]

"THE COURT: I am going to establish some deadline on various things. I did want to see if we could have some general consensus on the issues before I did that.

"MR. CALEB BOONE [attorney for plaintiff]: Your Honor, I would like to mention one thing. Those doctors have been sued by the plaintiff in Johnson County. If that case is consolidated with this one, we would want that to have no bearing on that case, or the fact that they should be brought in, so plaintiff would not be collaterally estopped from relitigating the issues, or estopped by judgment from litigating the issues against them.

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"I would just like to make the Court aware of that.

"THE COURT: I don't know that I am going to do anything like that at pretrial frankly. The direction I am heading is to leave you with your Johnson County litigation and not get it into this case. Now, that is where I am tending to be heading. If I change that position later on, we will change the position later on."

There is no indication that briefs were filed or reconsideration was sought by anyone. Dr. Mani was not a party to the Rooks County action and, accordingly, did not participate in the proceedings other than as a plaintiff's witness at trial.

Clearly, Mick wanted to keep the two cases separate. This position only changed after the defendant's verdict in Rooks County and the prospect of the summary judgment herein. Bethlehem Steel apparently was satisfied to keep the cases separate. They were the only two parties who went to trial in Rooks County. Mani had no right or duty to attempt to force his inclusion into the Rooks County litigation as a real or phantom defendant. We find this point to be without merit.

At this point, a review of the Kansas law of comparative negligence is appropriate as it pertains to the one-action concept.

K.S.A.1987 Supp. 60-258a provides as follows:

"(a) The contributory negligence of any party in a civil action shall not bar such party or such party's legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if such party's negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party [244 Kan. 85] in such action shall be...