Posey v. Medical Center-West, Inc., CENTER-WES

• Decision Date: 09 October 1986
• Docket Number: Nos. 73116,INC,73117,CENTER-WES,s. 73116
• Citation: 350 S.E.2d 259,180 Ga.App. 674
• Parties: POSEY et al. v. MEDICALMEDICALv. POSEY.
• Court: Georgia Court of Appeals

Page 259

350 S.E.2d 259

180 Ga.App. 674

POSEY et al. v. MEDICAL CENTER-WEST, INC.

MEDICAL CENTER-WEST, INC. v. POSEY.

Nos. 73116, 73117.

Court of Appeals of Georgia.

Oct. 9, 1986.

Rehearing Denied Oct. 27, 1986.

W. Pitts Carr, J. Renee Kastanakis, Atlanta, for appellants.

Judson Graves, Benny C. Priest, Robert G. Tanner, Samuel P. Pierce, Atlanta, for appellees.

SOGNIER, Judge.

William Posey and Arlette Posey, individually and as administratrix of the Estate of Shannon Posey, brought this medical malpractice action against Medical Center-West, Inc., d/b/a Parkway Regional Hospital, Parkway Surgery Associates, P.C., and two physicians. The Poseys appeal from the trial court's grant of summary judgment in favor of all defendants.

Appellants' child was struck by a car driven by a third party and died two and one-half hours later subsequent to treatment by the two appellee physicians at appellee hospital's facility. It is uncontroverted that in the absence of proper medical treatment, death would have resulted from the injuries sustained by appellants' child in the car accident. Six months after the accident, appellants were paid $10,000, representing the policy limits of the insurance policy covering the third-party driver's automobile, and executed a preprinted release form provided by the third-party driver's insurance company. The release provides that for the sole consideration of $10,000, "the undersigned [appellants] hereby releases and forever discharges [the third-party driver and her insurance company], her heirs, executors, administrators, agents and assigns, and all other persons, firms, or corporations liable or who might be claimed to be liable, ... from any and all claims, demands, damages, actions, causes of actions or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from [the subject accident]. Undersigned hereby declares that the terms of this settlement ... are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident." The trial court granted summary judgment in appellees' favor based on the foregoing release.

1. Appellants contend the trial court erred by granting summary judgment in favor of appellees on appellants' claim that their child died because appellees failed to intervene to prevent the injuries, inflicted on the child as a result of the car accident, from causing the child's death. We note that appellants do not contend appellees inflicted injuries separate and independent of the accident injuries but instead assert appellees' negligence consisted of the omission of actions which allegedly would have prevented the automobile-inflicted injuries from resulting in death. Appellants' enumeration is based on their contention that the trial court incorrectly ruled that appellees were covered under the general release executed by appellants.

Appellants first argue that the trial court's ruling was erroneous because it was based on an incorrect characterization of appellees as joint tortfeasors, rather than successive tortfeasors, as contended by appellants. The Supreme Court in Mitchell v. Gilson, 233 Ga. 453, 454, 211 S.E.2d 744 (1975), stated that " '[i]f the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury other than a nuisance, and if a rational basis does not exist for an apportionment of the resulting damages among the various causes, then the actors are joint tortfeasors, jointly and severally liable for the full amount of plaintiff's damages, notwithstanding the absence of voluntary intentional concert of action among them.' " The Supreme Court, in deciding Mitchell, supra, adopted and affirmed this court's opinion in Gilson v. Mitchell, 131 Ga.App. 321, 205 S.E.2d 421 (1974), wherein it was explained that in determining whether or not tortfeasors are joint tortfeasors, " '[t]he correct procedure is to look first to the time of the commission of the acts. If there was concert of action, then there is no need to go further to establish entire liability. But if there was no concert, the next step should be to look to the combined effect of the several acts. If the acts result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts. However, if the combined result is a single and indivisible injury, the liability should be entire. Thus the true distinction to be made is between injuries which are divisible and those which are indivisible.' [Cit.] '... The question is whether, upon the facts, it is possible to say that each defendant is responsible for a separate portion of the loss sustained. The distinction is one between injuries which are capable of being divided, and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury, and the tort is joint. If they shoot him independently, with separate guns, and he dies, the tort is still joint, for death cannot be apportioned. [Emphasis supplied.] If they merely inflict separate wounds, and he survives, a basis for division exists, no matter how difficult the proof may be, and the torts are several.' [Cit.]" Id. at 325, 205 S.E.2d 421.

Where the alleged negligent acts of two or more tortfeasors result in a single and indivisible injury, such as death, the alleged tortfeasors may be sued jointly. Id.; Sims v. Bryan, 140 Ga.App. 69, 72 (3), 230 S.E.2d 39 (1976); Parks v. Palmer, 151 Ga.App. 468, 471 (2), 260 S.E.2d 493 (1979). Thus, under the facts in this case, appellees are joint tortfeasors. See McKee v. Harris, 170 Ga.App. 58, 316 S.E.2d 14 (1984). "It is a well established rule in this state that 'a release executed in favor of one joint tortfeasor, in full settlement of damages, acts as a release in favor of all other joint tortfeasors.' [Cits.]" Zimmerman's, Inc. v. McDonough, etc., Co., 240 Ga. 317, 319-320 (1), 240 S.E.2d 864 (1977). The trial court did not err by determining that appellees were joint tortfeasors entitled to claim coverage under the general release signed by appellants. McKee, supra.

Appellants further argue that they should have been allowed to introduce parol evidence to show it was not their intention to release appellees when they executed the general release. "The law is clear that '[w]here one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defeat an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. [Cits.]' [Cits.]" Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 59-60, 239 S.E.2d 381 (1977). "In short, the general rule remains that a release releases." Roberson v. Henderson Chem. Co., 171 Ga.App. 722, 724, 320 S.E.2d 835 (1984). The record does not disclose any artifice, trick or actual fraud perpetrated upon appellants that would void the release, see Conklin, supra, see also Division 2, infra, nor is this an instance where parol evidence would be admissible to demonstrate...