Wecker v. Kilmer
| Decision Date | 04 April 1973 |
| Docket Number | No. 1272S165,1272S165 |
| Citation | 294 N.E.2d 132,260 Ind. 198 |
| Parties | Larry L. WECKER, Plaintiff-Appellant, v. Warren L. KILMER, M. D., Defendant-Appellee. |
| Court | Indiana Supreme Court |
Lowell E. Enslen, McHie Enslen & Moran, Rudolph Tanasijevich, Hammond, for plaintiff-appellant.
Fred F. Eichhorn, Jr., and David C. Jenssen, Schroer, Eichhorn & Morrow, Hammond, for defendant-appellee.
This cause has been presented to this Court by the United States Court of Appeals for the Seventh Circuit on a certified question of law pursuant to Rule 15(N) of the Indiana Rules of Appellate Procedure, 1 which we have accepted. On August 18, 1967, plaintiff while riding in a vehicle driven by his mother, was injured in a collision with another vehicle in LaPorte County, Indiana. The other vehicle was driven either by John D. Lloyd or Karen Lee Lloyd of Canton, New York. On the same day, plaintiff received medical attention from defendant, a physician. In this suit plaintiff alleges that defendant was negligent in his care and treatment.
On February 20, 1968, plaintiff executed a release in favor of the Lloyds. The release reads as follows:
'FOR AND IN CONSIDERATION OF the payment to me/us of the sum of ($25,621.00) Twenty Five Thousand Six Hundred Twenty One and 00/100 Dollars, and other good and valuable consideration, we being of lawful age, have released and discharged, and by these presents do for myself/ourselves, my/our heirs, executors, administrators and assigns, release, acquit and forever dis-Charge John D. Lloyd & the Estate of Karen Lee Lloyd, Deceased, Canton St. Lawrence County, New York, and any and all other persons, firms and corporations, whether herein named or referred to or not, of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, compensation, and all consequential damage on account of, or in any way growing out of, any and all known and unknown personal injuries and death and property damage resulting or to result from accident that occurred on or about the 18th day of August, 1967, at or near U.S. Highway #30, 1 1/2 miles West of Wanatah, LaPorte County, Indiana.
'I/we hereby declare and represent that the injuries sustained may be permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I/we have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.
'I/we understand that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of the persons, firms and corporations hereby released by whom liability is expressly denied.
'It is agreed that distribution of the above sum shall be made as follows:
'This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.
'I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act.
'WITNESS my hand and seal this 20th day of February, 1968.
'CAUTION! READ BEFORE SIGNING
/s/ Larry L. Wecker (SEAL)
_ _ (SEAL)'
The consideration of $25,261.00 was paid by Nationwide Insurance Company, liability carrier of the Lloyds. All alleged acts of malpractice of defendant were performed prior to execution of the release.
After plaintiff filed his complaint in the United States District Court for the Northern District of Indiana, defendant filed a motion for summary judgment which was granted. An appeal was taken to the Seventh Circuit Court of Appeals. The Seventh Circuit stated that whether defendant is entitled to the benefit of the release is controlled by Indiana law. There being no clear controlling precedents in the decisions of the Supreme Court of Indiana, the Seventh Circuit requested this Court to provide them with instructions concerning the following question:
'As a matter of Indiana law does the release dated February 20, 1968, quoted above, bar the claim asserted by plaintiff against the defendant in this litigation?'
We are faced with a situation where an alleged subsequent tortfeasor aggravates an injury caused by the alleged original tortfeasor. We must decide if the above described general release accrues to the benefit of the subsequent tortfeasor as well as the original tortfeasor. The defendant argues that the weight of authority is of the view that a general release to one responsible for the original injury bars an action by the injured party against a physician or surgeon for negligent treatment of the injury, citing 40 A.L.R.2d 1075. The rationale for this point of view is based on the principle of proximate causation. The theory goes that the aggravation of injuries is foreseeable by the original tortfeasor and proximately caused by his actions. Indiana has at least one case espousing this view of proximate cause. See Suelzer v. Carpenter (1916), 183 Ind. 23, 107 N.E. 467. (However this case did not involve a release). Other jurisdictions then apply this proximate cause theory to a general release given to the original wrongdoer. The argument goes that since a general release to the original tortfeasor would include release of liability for aggravation proximately resulting, such a release must be deemed to embrace any claim for the same aggravation against the negligent physician; otherwise, the injured party would receive double satisfaction for the same injury. See Derby v. Prewitt (1962), 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556, 558.
This fear of double recovery is unfounded because the amount received from the original tortfeasor for the release would have to be credited against any amounts received in an action against a subsequent tortfeasor. Thus, if the injured party had received full satisfaction for all his injuries from the original tortfeasor he would be...
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