Travelers Indem. Co. v. Trowbridge

• Decision Date: 14 December 1972
• Docket Number: No. 859036,859036
• Citation: 311 N.E.2d 901,38 Ohio Misc. 55
• Parties: , 63 O.O.2d 183, 67 O.O.2d 239 TRAVELERS INDEMNITY COMPANY v. TROWBRIDGE. *
• Court: Ohio Court of Common Pleas

Page 55

38 Ohio Misc. 55

311 N.E.2d 901, 63 O.O.2d 183, 67 O.O.2d 239

TRAVELERS INDEMNITY COMPANY v. TROWBRIDGE. ^*

No. 859036.

Court of Common Pleas of Ohio, Cuyahoga County.

Dec. 14, 1972.

Frank Seth Hurd, John M. Baker and Weston, Hurd, Fallon, Sullivan & Paisley, Cleveland, for plaintiff.

Dwight B. Buss, Parker M. Orr and Baker, Hostetler & Patterson, Cleveland, for defendant.

WHITE, Judge.

This action comes before the court on defendant's motion for judgment on the pleadings on the ground that the plaintiff has failed to state a claim upon which relief can be granted.

The plaintiff's petition and amended reply, the material allegations of which are deemed to be true for purposes of ruling on the defendant's motion for judgment on the pleadings, recite that on August 30, 1965, its insured, Republic Steel Corporation (hereinafter referred to as 'Republic') entered into an agreement with Industrial Valves, Inc., for the reconditioning of a pneumatic accumulator belonging to Republic. On September 7, 1965, during the course of the reconditioning, Walter Dlusky, an employee of Industrial Valves, Inc., was injured, suffering facial burns and lacerations, a broken denture, injuries to his right eye, a contusion of the left knee, a fracture of the right wrist, nervous and emotional shock, and, most significantly in terms of subsequent developments, a serious injury to the cervical spine involving the herniation of an intervertebral disc. Travelers concedes that these injuries were suffered by reason of the negligence of its insured, Republic.

As a result of the injury to his cervical spine, Dlusky was treated by defendant, William Trowbridge, M. D., and was forced to undergo an operation known as, an 'anterior cervical intervertebral fusion.' During the performance of the operation Dlusky suffered a contusion of the spinal cord, resulting in complete paralysis of the lower extremities partial paralysis of the upper extremities, and loss of bowel and bladder control. Plaintiff alleges that these additional injuries were the proximate result of defendant's negligence in driving a bone plug into Dlusky's spinal cord during the course of the operation and claims that under the applicable rule of law, its insured, Republic, was liable to Dlusky not only for the original injuries, but also for the aggravation of said injuries incurred during their treatment.

Thereafter, on April 11, 1966, Dlusky filed an action against Republic, seeking recovery for all his injuries in the amount of $1,500,000. Plaintiff alleges that it notified the defendant, in writing, of the commencement of Dlusky's action and demanded that he assume the defense thereof, which he refused to do, and that it subsequently invited defendant to participate either in settlement or trial of Dlusky's action as to that amount of damage which might be reasonably attributed to his negligent acts, but he again refused. Shortly after this second communication, plaintiff, in its capacity as Republic's insurer, settled the suit brought by Dlusky for $290,000, and Dlusky executed a general and unconditional release to Republic.

On April 11, 1968, plaintiff commenced the present action against defendant, asserting that it was subrogated to the rights of its insured, Republic, and demanding judgment for $290,000 and its defense costs in the Dlusky suit, plus its costs in the instant action. Defendant demurred to the petition on the grounds that the plaintiff's petition did not state a cause of action and that plaintiff's claim was barred by the statute of limitations. This demurrer was overruled by another member of this court, and defendant answered, pleading several defenses not admitted by plaintiff's amended reply and not now considered by the court for purposes of this motion for judgment on the pleadings. Full responsibility for the case was subsequently assigned to this member of the court under the Personal Docket System inaugurated on January 1, 1972. After reviewing the past history of the case, the court requested the parties to prepare special briefs on the issue of whether plaintiff had pleaded a cause of action against defendant. These briefs, along with defendant's motion for judgment on the pleadings, were filed on November 29, 1972.

Travelers' action is based upon a subrogation provision in its insurance contract with Republic. Accordingly, it stands in the shoes of its insured and can have no greater rights against Dr. Trowbridge than Republic. Royal Indemnity Co. v. Becker (1930), 122 Ohio St. 582, 173 N.E. 194. If a petition filed by Republic against Dr. Trowbridge failed to state a claim upon which relief could be granted, the same is true of a petition filed by Travelers, its subrogee.

The issue which the court must decide is whether a tortfeasor who pays a judgment or makes a settlement which includes damages for aggravation of the victim's injuries by the alleged negligence of a physician in treating them, thereby acquires a cause of action against the allegedly negligent physician for indemnity. The parties agree that there are no reported Ohio decisions directly in point. Thus, on this narrow issue, this appears to be a case of first impression. However, under established principles of the law of negligence and of indemnity enunciated by the Ohio Supreme Court, Republic, as plaintiff's subrogor, and defendant are deemed to be concurrent tortfeasors with respect to the aggravation during surgical treatment of the injury inflicted by Republic on Dlusky, and there is no right of contribution or indemnity between concurrent tort-feasors in Ohio. Accordingly, this court holds that plaintiff, Travelers Indemnity Company, has not stated a cause of action against defendant, William V. Trowbridge, M. D. The diligence of counsel for plaintiff has uncovered cases from three other jurisdictions which reach a contrary result on facts similar to those here, but this trial court is bound by the controlling decisions of the Ohio Supreme Court, and under these decisions plaintiff has no cause of action.

In Ohio, as in the great majority of jurisdictions, a tortfeasor is liable to the injured party for any aggravation of his injuries by a treating physician. Tanner v. Espey (1934), 128 Ohio St. 82, 190 N.E. 229; Loeser v. Humphrey (1884), 41 Ohio St. 378. The legal theory at the heart of this rule is that the negligence of the original tortfeasor is the proximate cause of the need for medical treatment and of any untoward consequences resulting therefrom. The rule in Ohio is stated in the first paragraph of the syllabus of Tanner v. Espey, supra:

'1. If one who has suffered personal injuries by reason of another's negligence exercises reasonable care in obtaining the services of a competent physician or surgeon, and such injuries are thereafter aggravated by the negligence, mistake or lack of skill of such physician or surgeon, such aggravation is a proximate result of the negligence of the original tortfeasor, and he is liable therefor.'

Indeed it was on the basis of this rule, imposing liability upon plaintiff's insured, Republic, for all of Dlusky's injuries, including those inflicted by Dr. Trowbridge's alleged negligence, that plaintiff made the substantial settlement that it did.

Plaintiff, although admitting that its insured, Republic, was liable for Dlusky's injury during treatment, contends that such liability is only secondary and that Republic is entitled to indemnity from Dr. Trowbridge as the party primarily responsible. This is not, however, a case of primary and secondary liability. Republic's liability is primary, for the proximate result of its own active negligence in causing the original injury to Dlusky's cervical spine. Secondary liability arises only when one party is required to respond for the tort of another solely because of his relationship to the wrongdoer, or because of a duty imposed upon him by law, rather than because of any acts of active negligence on his own part. Indeed, a sine qua non of secondary liability is that the party whose liability is deemed to be secondary must himself be free of active negligence, his responsibility instead being based on his relationship with the actual wrongdoer or upon a rule of public policy. Hence a tortfeasor's liability cannot be deemed to be merely secondary when, as is the case with Republic, its own active negligence is a proximate cause of the damage to the injured party. See e. g., Albers v. Great Central Transport Corp. (1945), 145 Ohio St. 129, 60 N.E.2d 669; Globe Indemnity Co. v. Schmitt (1944), 142 Ohio St. 595, 53 N.E.2d 790; Massachusetts Bonding & Ins. Co. v. Dingle-Clark Co. (1943), 142 Ohio St. 346, 52 N.E.2d 340; Wery v. Seff (1940), 136 Ohio St. 307, 25 N.E.2d 692; Fidelity and Cas. Co. of New York v. Federal Express (6th Cir. 1943), 136 F.2d 35 (Ohio law); Continental Cas. Co. v. Ohio Edison Co. (6th Cir. 1942), 126 F.2d 423 (Ohio...