Tatham v. Hoke

• Decision Date: 18 April 1979
• Docket Number: No. C-C-78-083.,C-C-78-083.
• Citation: 469 F. Supp. 914
• Court: U.S. District Court — Western District of North Carolina
• Parties: Charlotte Gwen TATHAM, Plaintiff, v. Dr. Harold HOKE, Defendant and Third-Party Plaintiff, v. Dr. Don R. Capell, Dr. J. L. Simpson, Dr. W. F. Strait, III, Rock Hill Gynecological and Obstetrical Associates, P.A., Third-Party Defendants.

469 F. Supp. 914

Charlotte Gwen TATHAM, Plaintiff, v. Dr. Harold HOKE, Defendant and Third-Party Plaintiff, v. Dr. Don R. Capell, Dr. J. L. Simpson, Dr. W. F. Strait, III, Rock Hill Gynecological and Obstetrical Associates, P.A., Third-Party Defendants.

No. C-C-78-083.

United States District Court, W. D. N. Carolina, Charlotte Division.

April 18, 1979.

W. J. Chandler, Haynes, Baucom, Chandler & Claytor, P.A., Charlotte, N. C., for plaintiff.

William H. Elam, Elam & Kaplan, P.A., Charlotte, N. C., for defendant and third-party plaintiff.

J. A. Gardner, III, Hedrick Parham, Helms, Kellam & Feerick, Charlotte, N. C., for third-party defendants.

ORDER

McMILLAN, District Judge.

On March 9, 1978, plaintiff Charlotte Gwen Tatham filed this action alleging that on April 2, 1977, defendant Dr. Harold Hoke negligently performed an abortion resulting in her subsequent hospitalization and surgical treatment. Defendant Hoke answered and moved to dismiss the complaint for plaintiff's failure to comply with the notice and amount-of-liability limitations stated on one side of the agreement the parties entered into prior to the procedure. Dr. Hoke moved in the alternative for a stay of the action pending arbitration in conformity with the mandatory arbitration provisions also appearing on the contract form.

Shortly after filing answer, plaintiff Hoke sued as third-party defendants Dr. Don R. Capell, Dr. J. L. Simpson, Dr. W. Frank Strait, III, and Rock Hill Gynecological and Obstetrical Associates, P.A., the Rock Hill, South Carolina, professional group with which all three third-party defendants are associated. Dr. Hoke contends that plaintiff's suffering, if any, was not the product of any alleged negligence on his part, but rather the result of negligent treatment afforded plaintiff Tatham by the third-party defendants after her return to South Carolina following the abortion procedure performed at Dr. Hoke's clinic. All third-party defendants have moved to dismiss on the alternative grounds that the court has no personal jurisdiction over them and that Dr. Hoke has failed to state a claim for relief under the law of the controlling forum. Dr. Hoke has responded by moving, inter alia, that these same persons be joined under rule 19 of the Federal Rules of Civil Procedure as persons needed to insure a just adjudication.

Dr. Hoke has also moved for joinder of a new defendant, York General Hospital, generally stating that its joinder is related to the third-party action and that York General officials have refused to honor discovery requests for the production of documents relating to plaintiff's stay there.

Third-Party Defendants.—There appears to be no dispute that plaintiff Tatham received all her treatment from Dr. Hoke while in North Carolina, and that she received all her treatment from the third-party defendants while in South Carolina. Dr. Hoke's claim for indemnity or contribution, then, must be founded exclusively on acts (or omissions) of the third-party defendants occurring in South Carolina. The choice of laws rule of North Carolina is clear: the substantive law of the forum in which the acts giving rise to the claim occurred governs. See Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911 (1943); cf. Henry v. Henry, 291 N.C. 156, 229 S.E.2d 158 (1976). The law of South Carolina, therefore, governs the viability of the third-party complaint.

A review of South Carolina law demonstrates that the third-party complaint fails to state a claim upon which relief can be granted, whether the relief sought be denominated as indemnity or contribution. The general rule in South Carolina is stated in Atlantic Coast Line Railroad Co. v. Whetsone, 243 S.C. 61, 132 S.E.2d 172 (1963):

"The appellant asserts that it is entitled to indemnity from the respondent for the full amount so paid because the injury to its employee was directly and proximately caused by the active gross negligence and carelessness of the respondent . . .

* * * * * *

"The general rule is that there can be no indemnity among mere joint tort-feasors. Since the decision in Merryweather v. Nixan, decided in 1799, 8 T.R. 186, 101 Eng.Reprint 1337, it has been said to be an established principle of the common law that as between joint tort-feasors there is no right of contribution or indemnity, the rule being premised on the doctrine that the Courts are not open to wrongdoers to assist them in adjusting the burdens of their misconduct, and that the law will not lend its aid to one who founds his cause of action on a delict."

132 S.E.2d at 174-75 (emphasis added); accord, United States v. Seckinger, 397 U.S. 203, 219 n. 4, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970) (Stewart, J., dissenting) (interpreting South Carolina law); Knight v. Autumn Co., 245 S.E.2d 602 (S.C.1978); Travelers Insurance Co. v. Allstate Insurance Co., 249 S.C. 592, 155 S.E.2d 591 (1967).

The only exception to this broad ban against recovery permits a claim for indemnity or contribution to stand either (a) when liability is imputed to one party solely because of a contractual or other relationship between the named defendant and the actual tort-feasor; or (b) when the duty to contribute or indemnify arises under a valid contract between the parties. Addy v. Bolton, 183 S.E.2d 708 (1971). There is no such legal or contractual relationship between the third-party plaintiff and the third-party defendants.

Nor is the joinder of these persons necessary for a just adjudication or to prevent inconsistent adjudications. Principles of res judicata, as well as the South Carolina bar against contribution among tort-feasors, should prevent Dr. Hoke's inclusion in any possible later suit instituted in South Carolina. Finally, the dismissal should in no way jeopardize defendant Hoke's assertion that he was not negligent and that plaintiff's injuries resulted exclusively from the negligence of the third-party defendants. Those persons are all available to defendant by way of deposition or other discovery, and are, according to defendant Hoke's own motion for rule 19 joinder, within the territorial limits for effective service of process. See Federal Rules of Civil Procedure rule 45. Defendant will be able, therefore, to pursue his defense of intervening or superseding cause, without impediment.

Since the third-party complaint does not now and cannot reasonably be amended at this stage to allege a viable claim for relief, the motions of the third-party defendants to dismiss for lack of in personam jurisdiction, which appear to have substantial merit, will be dismissed as moot.

Dismissal or Stay of the Main Action. —Defendant Hoke's claims that the action should be dismissed or, in the alternative, stayed pending the completion of arbitration, are founded exclusively on paragraph 13 of the form entitled "INFORMED CONSENT TO TREATMENT, ANESTHETIC, AND OTHER MEDICAL SERVICES," executed by plaintiff in North Carolina immediately prior to the abortion:

"13. In the event of any dispute between me and Hallmark, my physician, or other personnel, I agree to make a written claim within thirty (30) days of this date. If such a claim is not timely made, I waive any and all rights of recovery. If such a claim is made, be it for professional liability, personal injury, contract, warranty, or other breach of duty, I agree to submit the claim to binding arbitration. In the event of such arbitration, I understand and agree that Hallmark shall choose one physician arbitrator; I shall choose a second physician arbitrator; a third such arbitrator shall be designated by the American Arbitration Association office in Washington, D. C. The decision of the arbitrators shall be binding upon me without recourse to any other judicial or other tribunal. I further agree that liability shall in no case exceed $15,000.00, and that I shall post in advance a bond to cover the costs of arbitration and the counsel fees of Hallmark Clinic, its physician(s), or other personnel."

Plaintiff challenges the entire paragraph as an unenforceable adhesion contract contrary to the public policy of North Carolina, the place of its execution.

The terms in paragraph 13 providing for an absolute bar to recovery of damages in excess of $15,000, and to any recovery at all should the patient fail to notify Dr. Hoke of her claim within thirty days of the date the form is executed, are, in substance, clear attempts to limit liability by a contract abrogating rights otherwise available to the aggrieved patient. The limitations imposed have no necessary relationship to the nature of the individual patient's claim: the limit on recovery applies by its terms to all claims; the thirty-day "limitations" period runs from the date of the execution of the form and provides no exception for matters not discoverable within that period.

The general rule in North Carolina is that contracting parties may, with a few exceptions, agree to limitations on liability for ordinary negligence, with the agreements being strictly construed against the party relying on the agreement. Hall v. Sinclair Refining Co., 242 N.C. 707, 89 S.E.2d 396 (1955). All such otherwise valid limiting agreements are void as contrary to public policy, however, when they relate to transactions affected with a substantial public interest or colored by inequality of bargaining power:

"A public service corporation or a public utility cannot contract against its negligence in the regular course of its business or in performing one of its duties of public service. The limitation is likewise uniformly applied to certain relationships

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