Neves v. Potter

• Decision Date: 13 February 1989
• Docket Number: No. 87SC373,87SC373
• Parties: Deanna M. NEVES, individually and as natural guardian of Manuel D. Neves, III, a minor, and Manuel D. Neves, II, individually and as natural guardian and duly appointed conservator of the Estate of Manuel D. Neves, III, a minor, protected person, Petitioners, v. Robert E. POTTER, D.O., and Gilbert Roth, D.O., Respondents.
• Court: Colorado Supreme Court

Page 1047

769 P.2d 1047

Deanna M. NEVES, individually and as natural guardian of Manuel D. Neves, III, a minor, and Manuel D. Neves, II individually and as natural guardian and duly appointed conservator of the Estate of Manuel D. Neves, III, a minor protected person, Petitioners, v. Robert E. POTTER, D.O., and Gilbert Roth, D.O., Respondents.

No. 87SC373.

Supreme Court of Colorado,

En Banc.

Feb. 13, 1989.

As Modified on Denial of Rehearing

March 13, 1989.

Law Firm of Kenneth D. Kinnaird, Kenneth D. Kinnaird, Colorado Springs, for petitioners.

Cooper & Kelley, P.C., Mick T. Mihm, and John R. Mann, Denver, for respondent, Robert E. Potter, D.O Wills and Gorsuch Kirgis, Lee R. Wills, Colorado Springs, for respondent, Gilbert Roth, D.O.

Pryor, Carney and Johnson, Robert W. Carney, Irving G. Johnson, and Elizabeth C. Moran, Englewood, for amicus curiae, Colorado Defense Lawyers Ass'n.

Gerald P. McDermott and Springer and Steinberg, P.C., Jeffrey A. Springer, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

ERICKSON, Justice.

We granted certiorari to review the court of appeals decision in Neves v. Potter, 748 P.2d 1335 (Colo.App.1987), which affirmed the trial court's entry of summary judgment in favor of the respondent doctors. The issue is whether a release executed by the Neves which specifically released the Eisenhower Hospital "as well as any and all other persons, firms or corporations" from liability for malpractice also operated to release the respondent doctors, who were not specifically named in the release. Because there is a genuine issue as to whether the Neves intended to release the doctors from liability through the execution of this release, we reverse and return the case to the court of appeals with directions to remand to the trial court for further proceedings consistent with this opinion.

I.

This action involves a medical malpractice suit brought against respondents, Drs. Robert E. Potter and Gilbert Roth, by Deanna M. and Manuel D. Neves, II, individually, as guardians of and as conservators for their son Manuel D. Neves, III (Manny). On April 21, 1974, Manny, then twenty-two months old, was admitted to the Eisenhower Hospital in Colorado Springs for treatment of an ear infection. The following day, surgery was performed with Drs. Potter and Roth serving as Manny's operating and attending physicians. After the surgery, the doctors used a post-nasal pack to control bleeding, which was left tied in place when Manny was taken to the recovery room. Routine post-operative orders were issued to the nurses, including directions that Manny be given appropriate doses of codeine if he exhibited signs of discomfort.

A few hours after being taken to the recovery room, Manny stopped breathing. The hospital staff, after removing the post-nasal pack, successfully resuscitated the child. During the course of the resuscitation it was discovered that Manny had mistakenly been administered an adult dose of morphine rather than the ordered amount of codeine for a child. Manny appeared to recover from the incident. Later however, he exhibited both a speech defect and a mild learning disability.

The Neves threatened to sue Eisenhower Hospital, alleging that Manny was brain damaged as a result of the respiratory arrest brought on by the morphine overdose. Counsel for the Neves entered into settlement negotiations with Eisenhower's insurance carrier, Glen Falls Insurance Company, and an agreement was reached. The agreement required in part that the Neves execute a release in favor of the hospital.

The Neves filed a Petition for Appointment of Conservator with the district court sitting as a probate court and attached a copy of the proposed release which had been executed on September 20, 1978. The district court judge issued an order on September 28, 1978, approving the petition and stated:

That the proposed compromised settlement on behalf of said minor set forth in the Petition filed herein be and the same hereby is authorized, and said Conservator is directed to accept the sum of $17,000.00 for Manuel D. Neves, III in full and complete settlement of all claims of said minor and said Conservator against Eisenhower Hospital, its successors and assigns, for any and all claims growing out of said accident and to execute a release.

(Emphasis added.)

The order is materially different from the September 20 release because the class of persons described in the release is substantially broader than the class of persons described in the order. Specifically, the September 20 release states that the Neves

release, acquit and forever discharge Eisenhower Hospital, and its successors, assigns, agents, servants, principals and insurers, and any and all other persons, firms, or corporations who are or might be liable of and from any claims ... resulting or to result from malpractice which occurred on or about August, 1974, at Colorado Springs, Colorado.

(Emphasis added.)

On October 2, 1980, the Neves filed a malpractice suit against the respondent doctors in the El Paso County District Court. The complaint alleged that before the morphine overdose was administered, the respondents negligently placed the post-nasal pack in such a way that it blocked Manny's airway and induced the respiratory arrest. The respondents moved for summary judgment, asserting that the September 20 release entered into between the Neves and Eisenhower effectively released them from liability for claims arising from that incident. The Neves moved to reform the release. The trial court denied the motion, and entered summary judgment in respondents' favor on April 8, 1985. The Neves appealed the trial court's action to the Colorado Court of Appeals.

The court of appeals issued two opinions regarding the case. Its first opinion, issued May 28, 1987, reversed the trial court's entry of summary judgment because the release did not expressly identify the respondents as parties who were released and whose liability was discharged. Neves v. Potter, No. 85CA1001 (Colo.App. May 28, 1987). The respondent doctors filed a motion for rehearing, which was granted. The court of appeals then withdrew its May 28 opinion and issued a new opinion affirming the trial court. The court of appeals stated:

While the release before us did not explicitly name the defendants as parties to the discharge from liability, we hold that the language "any and all other persons" in a release when coupled with the limiting language "resulting or to result from malpractice which occurred" on a specific date is sufficiently specific to identify those to be discharged and to comply with the requirements of the [Uniform Contribution Among Tortfeasors Act]. Hence, the trial court correctly ruled that the Neves' release discharged the defendants.

Neves v. Potter, 748 P.2d 1335, 1337 (Colo.App.1987). We granted certiorari to address the question of whether the form release of "all other persons, firms or corporations" discharges all joint tortfeasors from liability under section 13-50.5-105.

II.

The issue in this case, arising from the differences between the terms of the release agreement and the district court's order authorizing the agreement, focuses on the intended scope of the release. The conflict between the terms creates an ambiguity as to the intended scope of the release, and causes us to determine whether there was any genuine issue of material fact as to the intended scope. We reach the issue upon which certiorari was granted because if it is found that the release reflects the parties' intent, then it must be determined whether, as a matter of law, a form which provides for the release of "all other persons, firms or corporations" discharged the respondent doctors.

A release is the relinquishment of a vested right or claim to a person against whom the claim is enforceable. E.g., Trustee Co. v. Bresnahan, 119 Colo. 311, 203 P.2d 499 (1949). At common law, and for many years in Colorado, the release of one joint tortfeasor served to release all other joint tortfeasors. E.g., Cox v. Pearl Inv. Co., 168 Colo. 67, 450 P.2d 60 (1969); Price v. Baker, 143 Colo. 264, 352 P.2d 90 (1959); Morris v. Diers, 134 Colo. 39, 298 P.2d 957 (1956). The traditional rationale given for this rule was that where two or more tortfeasors acted in concert to cause an injury, the act of one became the act of all and a single cause of action, with each participant being liable for the entire loss sustained by the plaintiff. Prosser, Joint Torts and Several Liability, 25 Calif.L.Rev. 413, 418 (1937). The release of one joint tortfeasor was a surrender of the entire cause of action, and resulted in releasing each tortfeasor from liability. W. Keeton, W. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 49, at 332 (5th ed. 1984); e.g., Cingoranelli v. St. Paul Fire & Marine Ins. Co., 658 P.2d 863, 866 (Colo.1983).

The common-law doctrine of release of joint tortfeasors has come under widespread criticism as yielding results that are "harsh," "without any rational basis," and "very unfair." J. Calamari & J. Perillo, The Law of Contracts § 20-3 (2d ed. 1977); e.g., Alsup v. Firestone Tire & Rubber Co., 101 Ill.2d 196, 77 Ill.Dec. 738, 461 N.E.2d 361 (1984); Bjork v. Chrysler Corp., 702 P.2d 146 (Wyo.1985). The basis for the criticism was well put by the Ohio Supreme Court when it stated in Whitt v. Huchison, 43 Ohio St.2d 53, 330 N.E.2d 678 (1975), that:

The injustice of the traditional rule was that it frequently acted to extinguish a cause of action which was only partly compensated, even though the parties themselves had no such intention. The rule also made it very difficult for a claimant to settle a claim by partial settlements with several persons who were jointly liable for his injury. A major cause of these difficulties was the doctrine of joint liability itself, a doctrine largely grounded in a policy of assuring compensation for injured plaintiff...