Robbins v. Physicians for Women's Health, LLC

• Decision Date: 27 May 2014
• Docket Number: No. 18961.,18961.
• Citation: 311 Conn. 707,90 A.3d 925
• Court: Connecticut Supreme Court
• Parties: Lisa ROBBINS, Administratrix (Estate of Elijah Jamal Hezekia Robbins Martin), et al. v. PHYSICIANS FOR WOMEN'S HEALTH, LLC, et al.

311 Conn. 707

90 A.3d 925

Lisa ROBBINS, Administratrix (Estate of Elijah Jamal Hezekia Robbins Martin), et al.

v.PHYSICIANS FOR WOMEN'S HEALTH, LLC, et al.

No. 18961.

Supreme Court of Connecticut.

Argued Dec. 10, 2013.

Decided May 27, 2014.

Frank H. Santoro, with whom, on the brief, was R. Cornelius Danaher, Jr., Hartford, for the appellants (named defendant et al.).

Steven D. Ecker, Hartford, with whom were M. Caitlin S. Anderson and, on the brief, Joel T. Faxon, New Haven, for the appellees (plaintiffs).

Jennifer L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for Connecticut Hospital Association et al. as amici curiae.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

ZARELLA, J.

The sole issue in this appeal is whether a covenant not to sue executed by the named plaintiff, Lisa Robbins, as administratrix of the estate of her son, Elijah Jamal Hezekia Robbins Martin,¹ in favor of the corporate tortfeasor, Shoreline Obstetrics and Gynecology, P.C. (Shoreline), forecloses, as a matter of law, the imposition of successor liability on the named defendant, Physicians for Women's Health, LLC, and the defendant Women's Health USA, Inc.² The defendants purchased Shoreline's assets approximately nine months after the events that led to the filing of the present action. The defendants claim that the Appellate Court improperly reversed the judgment of the trial court, which had concluded that the covenant not to sue Shoreline prevented the plaintiff from seeking to recover from the defendants.³ The plaintiff responds that the covenant did not preclude her from commencing an action against the defendants under a theory of successor liability. We agree with the defendants and, accordingly, reverse the judgment of the Appellate Court.

The following facts and procedural history are set forth in the Appellate Court's opinion. “On October 10, 2005, the plaintiff gave birth to a son at Lawrence and Memorial Hospital ... in [the city of] New London. Shortly after his birth, the child died. Jonathan Levine, an obstetrician, and Donna Burke–Howes, a certified nurse midwife, were present at the time and were responsible for rendering medical care to the plaintiff and her son. Levine and Burke–Howes were employees of Shoreline. In July, 2006, Shoreline was sold to the defendants. Shortly thereafter, the plaintiff filed suit against Levine, Burke–Howes, Shoreline, [the hospital], and the defendants, alleging medical malpractice.

“On July 3, 2008, the defendants filed a motion for summary judgment, arguing, inter alia, that they ‘had no connection to the care and treatment rendered to the [plaintiff's son] nor were they in a business or contractual relationship with ... Shoreline [at the time of his death],’ such that they could be liable for the plaintiff's malpractice claim. In response, the plaintiff filed an amended complaint alleging that the defendants were liable under a theory of successor liability and ... an objection to the defendants' motion for summary judgment on that ground. Specifically, the plaintiff argued that the continuity of enterprise exception applied because ‘Shoreline still called itself Shoreline, the same people were employed, the same management existed and the same location and equipment were utilized.’ The trial court agreed with the plaintiff and denied the motion for summary judgment, stating that ‘the defendants ha[d] failed to meet their burden of establishing the absence of a genuine issue of material fact as to successor liability....’

“On November 14, 2008, after reaching a settlement and executing two separate covenants not to sue, the plaintiff withdrew her claims against Levine, Burke–Howes and Shoreline. The record demonstrates that this settlement was reached by providing the plaintiff with monetary compensation through a medical malpractice insurance policy that covered both Levine and Burke–Howes. Insurance documents and interrogatory responses indicate that Levine and Burke–Howes were each insured for up to $1 million. An affidavit submitted by the plaintiff's attorney, dated July 6, 2009, states that Levine, Burke–Howes and Shoreline ‘tender[ed] [the] policy limits' in this settlement.

“On July 1, 2009, the defendants filed a second motion for summary judgment. In this motion, the defendants argued that ‘successor liability ... derives exclusively from and is coterminous with the liability of [Shoreline].’ From this premise, the defendants argued that the plaintiff could not proceed because the covenant not to sue ‘completely discharged’ Shoreline from liability. On December 7, 2009, the court ... [granted] the defendants' motion for summary judgment on these grounds....

“On appeal [to the Appellate Court], the plaintiff claim[ed] that her execution of a covenant not to sue in favor of Shoreline [did] not prevent her from seeking recovery from the defendants under a theory of successor liability. In doing so, the plaintiff argue[d] that a covenant not to sue is an agreement not to proceed against a particular defendant that, unlike a release, does not discharge liability for the underlying cause of action. In response, the defendants argue[d] that successor liability may afford no greater recovery against a successor than is available against the predecessor and, therefore, the covenant not to sue executed in favor of Shoreline also inure[d] to their benefit.

“On September 21, 2011, [the Appellate] [C]ourt ordered the parties to file supplemental briefs addressing whether the plaintiff's recovery from Shoreline foreclosed the possibility of successor liability as a matter of law. The defendants filed a supplemental brief on October 5, 2011, in which they argue [d] that successor liability may be imposed only when the predecessor corporation is no longer able to afford the plaintiff relief. The defendants also assert[ed] that the plaintiff's settlement with Shoreline demonstrate[d] that she [could not] meet this threshold requirement as a matter of law. The plaintiff filed a supplemental brief on October 6, 2011, arguing that a case premised on a theory of successor liability may be pursued when recovery has been obtained from the predecessor corporation and that, in such a case, ‘the successor entity is liable for the difference between [the] plaintiff's damages ... and the amount ... that the plaintiff was able to recover from the predecessor.’ ” (Footnotes omitted.) Robbins v. Physicians for Women's Health, LLC, 133 Conn.App. 577, 580–83, 38 A.3d 142 (2012).

A divided Appellate Court reversed the trial court's judgment on two grounds. Id., at 587–88, 595–96, 38 A.3d 142; see also id., at 596, 38 A.3d 142 ( Bear, J., dissenting). The court first concluded that successor liability may be imposed under the mere continuation and continuity of enterprise theories if the predecessor no longer represents a viable source of relief; id., at 586–87, 38 A.3d 142; but that, in the absence of undisputed evidence in the record demonstrating the amount of the plaintiff's damages, it was “unable to conclude that Shoreline represented a viable source of recovery ... as a matter of law.” Id., at 588, 38 A.3d 142. The court next concluded that a covenant not to sue, unlike a release, does not discharge the underlying cause of action, and, therefore, the covenant not to sue executed by the plaintiff in favor of Shoreline did not prevent her from seeking to recover from the defendants. Id., at 595, 38 A.3d 142. The Appellate Court thus remanded the case to the trial court for a determination of whether Shoreline no longer remained a viable source of recovery such that successorliability could be imposed on the defendants. See id., at 587–88 and n. 10, 596, 38 A.3d 142.

Judge Bear issued a dissenting opinion in which he concluded that, even if sufficient facts existed to support the plaintiff's recovery under the mere continuation and continuity of enterprise theories of successor liability, the plaintiff had no viable claim against the defendants under either theory. Id., at 604, 38 A.3d 142 ( Bear, J., dissenting). He reasoned that, because “any liability of the successors necessarily is derivative of and, thus, dependent on the existence of liability of the predecessor”; id., at 605, 38 A.3d 142 ( Bear, J., dissenting); the plaintiff's voluntary settlement of her claim against the defendants' predecessor, Shoreline, discharged and extinguished the liability of both Shoreline and the defendants as successors in the absence of a claim of fraud. Id., at 604–606, 38 A.3d 142 ( Bear, J., dissenting).

This court granted the defendants' petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly determine that a covenant not to sue, executed by the plaintiff in favor of a corporate tortfeasor, does not foreclose the imposition of successor liability, as a matter of law, on the subsequent purchaser of that company's assets?” Robbins v. Physicians for Women's Health, LLC, 304 Conn. 926, 41 A.3d 1052 (2012).

The defendants claim that the covenant not to sue discharged the underlying action against Shoreline and its successors. The plaintiff argues to the contrary that the covenant not to sue did not foreclose an action against the defendants as successors. We agree with the defendants.

The standard of review is well established. “Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a...