Motorists Mut. Ins. Co. v. Huron Rd. Hosp.

• Decision Date: 30 August 1995
• Docket Number: No. 94-873,94-873
• Parties: MOTORISTS MUTUAL INSURANCE CO. et al., Appellants, v. HURON ROAD HOSPITAL et al., Appellees.
• Court: Ohio Supreme Court

Page 391

73 Ohio St.3d 391

653 N.E.2d 235

MOTORISTS MUTUAL INSURANCE CO. et al., Appellants, v. HURON ROAD HOSPITAL et al., Appellees.

No. 94-873.

Supreme Court of Ohio.

Submitted May 24, 1995.

Decided Aug. 30, 1995.

SYLLABUS BY THE COURT

1. When a medical provider's negligent treatment of bodily injuries caused by a tortfeasor results in further injury or aggravation of the original injury, R.C. 2307.31 creates a right of contribution between the tortfeasor and the medical provider as to indivisible injuries. (Travelers Indemn. Co. v. Trowbridge [1975], 41 Ohio St.2d 11, 70 O.O.2d 6, 321 N.E.2d 787, paragraph one of the syllabus, overruled.)

2. The mere filing of a complaint does not constitute an attempted commencement of an action for purposes of R.C. 2125.04.

On October 12, 1986, Randy Roulette ("Roulette") negligently caused an automobile accident in which James T. Ross was seriously injured. Ross was taken to the emergency room of Lake County Hospital, where appellants claim that necessary medical and surgical treatment was negligently omitted or delayed. Ross was eventually transferred to Huron Road Hospital, where appellants claim that Ross was again negligently subjected to delay in medical and surgical treatment. Ross died on October 13, 1986.

Appellant Frances D. Ross, the executor of Ross's estate, filed suit against Roulette and Roulette Pontiac, alleging that Roulette negligently caused the collision which caused Ross's mortal injuries. She sought damages suffered by Ross prior to his death and additional damages for wrongful death. She made no allegations regarding the alleged negligence of any medical providers in the suit against Roulette.

Appellant Motorists Mutual Insurance Company ("Motorists") was the insurer of Roulette and Roulette Pontiac. Motorists eventually settled the lawsuit against its insureds, paying over $1,300,000 in damages. Ross's estate agreed to release and discharge only Roulette and Roulette Pontiac from further liability. None of the appellees was notified about the settlement prior to its execution.

On October 13, 1988, all the appellants, except Motorists, filed a wrongful death complaint against all the appellees in the Cuyahoga County Common Pleas Court. Appellants alleged that the appellees provided substandard medical care and tortiously delayed providing the emergency treatment which Ross required, causing Ross's death the day after the accident.

According to appellants' brief, after the case was filed, the clerk issued summonses, and the court granted the request of one of appellants' attorneys to himself be permitted to serve the appellees. The attorney designated to make service intentionally did not make service due to a dispute between the executor and the other next of kin. On October 10, 1989, several days before the expiration of one year from the date of filing, with service still not attempted, appellants voluntarily dismissed the case without prejudice under Civ.R. 41(A)(1).

On October 4, 1990, appellants, including Motorists, filed the instant action in the Cuyahoga County Court of Common Pleas. In count one of that complaint, Motorists, asserting its subrogation rights from its insureds, alleged that appellee health care providers had negligently treated Ross following the automobile collision and that Motorists had paid over one million dollars more in damages than it otherwise would have had to pay because of appellees' negligence. Motorists alleged that it thus had a "right of common law indemnity" against all the appellees.

Count two of the complaint was identical to the wrongful death action against appellees which had been "voluntarily dismissed" on October 10, 1989. Count two designates Frances D. Ross, executor of Ross's estate, as an involuntary party plaintiff pursuant to Civ.R. 19(A) "because of her refusal despite being requested to timely file this action and because she is a necessary party plaintiff who should join as a plaintiff and in whose name this action for wrongful death must be brought." The remaining plaintiffs were Ross's parents, Ann Dorothy Ross and the estate of Lloyd D. Ross, Sr., and siblings, Lloyd D. Ross, Jr. and Rita Ann Ross Knapic.

Eventually, as of October 28, 1992, the trial court awarded all the appellees summary judgment on both counts. The appellants appealed to the Eighth District Court of Appeals. The appellate court affirmed the trial court. As to count one, the court found that as a subrogee of an alleged joint tortfeasor with the medical providers, Motorists had a claim for contribution, not indemnity, that was controlled by R.C. 2307.31 and 2307.32. The court found that Motorists failed to comply with the statutory requirements governing its right of contribution, nullifying any recovery against the appellees.

As for count two, the court found that the appellants failed to meet the statute of limitations for wrongful death actions. While the first complaint was filed in a timely fashion, appellants never attempted service. While the appellants refiled their lawsuit within one year after voluntarily dismissing it, the savings statute for wrongful death actions failed to apply, since the original action had never been commenced or attempted to have been commenced.

This action is before this court upon the allowance of a discretionary appeal.

Spero & Rosenfield Co., L.P.A., and Keith E. Spero; Donald D. Weisberger, Cleveland and Marian Rose Nathan, mentor for appellants.

Reminger & Reminger Co., L.P.A., Stephen E. Walters and Nancy F. Zavelson, Cleveland, for appellees Huron Road Hosp., Keith Perrine, M.D., Craig Carter, M.D., and Raymond Malackany, M.D.

Reminger & Reminger Co., L.P.A., John R. Scott and Nancy F. Zavelson, Cleveland, for appellees Modesto Peralta, M.D., and Donna J. Waite, M.D.

Reminger & Reminger Co., L.P.A., and Nancy F. Zavelson, Cleveland, for appellees Lake Hosp. Systems, Inc., Lake County Hosp. East, and Ann Klein Takacs.

Jacobson, Maynard, Tuschman & Kalur and Janis L. Small, Cleveland, for appellees Daniel P. Guyton, M.D., Nandalike S. Shetty, M.D., Claudio Gallo, M.D., Lake County Emergency Services, Dennis Dolgan, M.D., John P. Ferron, M.D., Drs. Hill & Thomas Company, David A. Steiger, M.D., Arthur M. Thynne, M.D., and Euclid Clinic Foundation.

Martindale & Brzytwa, Harry T. Quick and Daniel F. Petticord; and Richard G. Waldron, Cleveland, for appellee Blue Cross and Blue Shield of Northern Ohio, d.b.a. HMO Health Ohio.

PFEIFER, Justice.

The two issues in this case are: (1) whether a common-law right of indemnity or a statutory right of contribution controls the relationship between a tortfeasor and a medical provider, when the medical provider negligently causes further injury or aggravates the original injury caused by the tortfeasor; and (2) whether the savings statute for wrongful death cases applies to a case in which a complaint has been filed but in which service has not been attempted.

I

Motorists argues that the common-law right of indemnity created by this court in Travelers Indemn. Co. v. Trowbridge (1975), 41 Ohio St.2d 11, 70 O.O.2d 6, 321 N.E.2d 787, controls its relationship with the other appellees, rather than R.C. 2307.31, which provides a right of contribution among joint tortfeasors.

As this court has long recognized, the substance of the subject matter of a case is determinative, not the form under which a party chooses to bring it. Love v. Port Clinton (1988), 37 Ohio St.3d 98, 524 N.E.2d 166. The substance of Motorists' claim is one for contribution.

Motorists' insureds and the appellees, if negligent, were concurrently negligent. "Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury." Garbe v. Halloran (1948), 150 Ohio St. 476, 38 O.O. 325, 83 N.E.2d 217, paragraph one of the syllabus. Though separate in time, the negligence of Motorists' insureds led to the alleged negligence of the appellees, and combined with the appellees' alleged negligence to cause Ross's death, the single indivisible injury.

Motorists admits that it, through its insureds, was actively negligent. As such, it has no right to indemnity. "Indemnification is not allowed when the two parties are joint or concurrent tortfeasors and are both chargeable with actual negligence." Reynolds v. Physicians Ins. Co. of Ohio (1993), 68 Ohio St.3d 14, 16, 623 N.E.2d 30, 31-32.

Motorists' claim has none of the indicia of indemnity. Implied contracts of indemnity are reserved for those "situations involving related tortfeasors, where the one committing the wrong is so related to a secondary party as to make the secondary party liable for the wrongs committed solely by the other. * * * Relationships which have been found to meet this standard are the wholesaler/retailer, abutting property owner/municipality, independent contractor/employer, and master/servant." Id. at 16, 623 N.E.2d at 31.

Even the nature of the relief Motorists seeks points to contribution rather than indemnity. Motorists seeks proportionate reimbursement from appellees; an action for indemnity, on the other hand, requires complete reimbursement. Travelers, 41 Ohio St.2d at 13-14, 70 O.O.2d at 8, 321 N.E.2d at 789.

Motorists points to the Travelers decision for salvation, but it offers none. In Travelers, an employee was injured due to his employer's negligence. The employee's treating physician aggravated the injury. The employee's lawsuit against his employer was settled, and the employer's insurer then instituted an action against the physician ...