Teepak, Inc. v. Learned, 57149
| Decision Date | 10 May 1985 |
| Docket Number | No. 57149,57149 |
| Citation | 237 Kan. 320,699 P.2d 35 |
| Parties | TEEPAK, INCORPORATED, Appellee, v. George R. LEARNED, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the provisions of K.S.A. 60-258a, the concept of joint and several liability between joint tortfeasors previously existing in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages will be based on proportionate fault, and contribution among joint judgment debtors is no longer required in such cases.
2. The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.
3. A named defendant in a comparative negligence action cannot settle a claim on behalf of a party or parties against whom the plaintiff has not sought recovery and then seek contribution from those parties in proportion to the percentage of causal negligence attributable to those parties. Such an action seeks post-judgment contribution rather than "comparative indemnity." Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), distinguished.
4. In an action by a tortfeasor who has settled the injured party's claim and who seeks, in a separate action, to recover all or part of the settlement from a physician whom the tortfeasor contends added to the injured party's damages by medical malpractice, although no claim was ever asserted by the injured party against the physician, the record is examined and it is held: (1) such action is predicated upon the legal principles of contribution rather than indemnification; and (2) no valid cause of action exists for post-settlement contribution under such circumstances.
Mark A. Buck, Topeka, argued the cause, and Thomas E. Wright and Zackery E. Reynolds of Fisher, Ochs, Heck & Wright, P.A., Topeka, were on briefs for appellant.
Bryan E. Nelson of Alder & Nelson, Overland Park, argued the cause, and Ronald W. Nelson, of the same firm, was with him on brief for appellee.
This is an action wherein plaintiff Teepak, Inc., seeks recovery from defendant George R. Learned for moneys paid by Teepak to Carl and Violet Baise in settlement of an action brought by the Baises against Teepak in the United States District Court for the Western District of Missouri. Learned filed motions to dismiss the action and for summary judgment predicated upon two grounds--that the statute of limitations had run, and that, as a matter of law, Teepak had failed to state a valid cause of action against him. The district court denied both motions, and the matter is before us on Learned's interlocutory appeal therefrom.
The pertinent facts may be summarized as follows. On November 30, 1979, Carl Baise, a resident of Lawrence, purchased a package of Alewel's Summer Sausage. The following day Mr. Baise ate some of the sausage and subsequently became ill as the result of a sausage casing obstructing his small intestine. Ultimately, Dr. George Learned performed surgery upon Baise, excising two-thirds of the patient's small intestine. Dr. Learned's treatment of Baise ended in January, 1980.
The sausage had been made by Alewel's Incorporated, a Missouri corporation. The casing for the sausage had been made by Teepak, Inc., an Illinois corporation. In September of 1981 Baise and his wife filed an action against both corporations seeking recovery for his injuries and medical treatment. The action was filed in the United States District Court for the Western District of Missouri. Federal jurisdiction was invoked on the basis of diversity of citizenship. The Baises at no time ever asserted a cause of action against Learned.
On July 29, 1983, Teepak filed a third-party complaint against Learned in the federal case seeking "indemnity or subrogation" for sums Teepak might have to pay the Baises. On October 6, 1983, Teepak filed this action in the Douglas County District Court seeking indemnification from Learned for any of Teepak's liability to the Baises which "is chargeable and attributable to the negligence of Dr. Learned."
Teepak and Alewel's (as well as their respective insurance carriers) entered into a structured settlement agreement with the Baises. The settlement was agreed upon on or about November 1, 1983, and subsequently executed by the parties thereto in December of 1983 and January of 1984. The total settlement was approximately $375,000.00. The federal case was dismissed by stipulation on January 27, 1984. At the time of the dismissal, Learned had been served with the third-party complaint but had not filed an answer. The third-party complaint was dismissed without prejudice at the time the plaintiff's petition was dismissed.
Teepak, after the Baise settlement, proceeded with its Kansas action against Learned. Learned filed motions seeking dismissal and summary judgment on the grounds the action was barred by virtue of: (1) the statute of limitations having expired on any action by the Baises against him predicated upon medical malpractice prior to assertion of any claim against him by Teepak; and (2) the failure of Teepak to assert a valid claim against him under Kansas law. The district court denied both motions and the matter is before us on Learned's interlocutory appeal therefrom.
The basic question before us may be stated in general terms as follows: Whether or not, under the principles of comparative negligence, a defendant tortfeasor causing the initial injury to the plaintiff may settle with the injured plaintiff and then seek indemnification, or contribution, in a separate action, from another person whom the tortfeasor contends is a "subsequent" tortfeasor causing part of the injured party's damages even though the injured party never asserted a claim against the "subsequent" tortfeasor.
In specific terms the question may be stated as follows: Whether or not the Kansas law of comparative negligence permits a tortfeasor causing physical injury to a person to settle with the injured person and then proceed against a physician whom the tortfeasor (but not the injured party) claims added to the injured party's damages through negligent treatment of the injured party. If this question is answered affirmatively, then a second question arises. Is the cause of action barred if the tortfeasor does not bring the action against the physician until after the statute of limitations has expired which governs the period the injured party could have brought a malpractice action against the physician?
In 1974 the legislature enacted K.S.A. 60-258a, which made the concept of comparative negligence the law of Kansas. The statute provides:
Since 1974 Kansas appellate courts have been repeatedly called upon to determine the purpose and intent of K.S.A. 60-258a and the effect of the statute's enactment upon existing Kansas case law. The evolution of the law of comparative negligence in Kansas is the result of each case utilizing prior case law as the foundation upon which determination of the issues presented must rest. This same approach will be followed herein.
We shall first consider whether or not a cause of action based upon contribution exists herein. Brown v. Keill, 224 Kan. 195, Syl. pp 5, 6, 580 P.2d 867 (1978), is particularly significant on this aspect of the issue before us and must be cited at some length. Preliminarily, the following observation made in Brown needs to be noted:
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