Wilson v. Galt
| Decision Date | 21 June 1983 |
| Docket Number | No. 5503,5503 |
| Citation | 1983 NMCA 74,668 P.2d 1104,100 N.M. 227 |
| Parties | Michael WILSON and Diane Wilson his wife, Individually and as Parents, Guardians and Next Friends of Zachariah Zebadee Lee Wilson, an infant, and Santa Fe National Bank, as Conservator of the Estate of Zachariah Zebadee Lee Wilson, an infant, Plaintiffs-Appellants, Cross-Appellees, v. Charles E. GALT, Jr., M.D., Catherine Armstrong, M.D., Carlsbad Regional Medical Center and J.F. Haynes, M.D., Defendants-Appellees, Cross-Appellants, J.F. HAYNES, M.D., Third-Party Plaintiff-Appellee, Cross-Appellant, v. Bonnie DITTUS, Third-Party Defendant-Cross-Appellee. |
| Court | Court of Appeals of New Mexico |
Plaintiffs Michael and Diane Wilson, parents of Zachariah Lee Wilson, (Zach), an infant, and Santa Fe National Bank, as Zach's conservator, sued three physicians and the Carlsbad Regional Medical Center (Hospital) for damages allegedly resulting from the negligent care and treatment of Zach.
Zach was born on February 3, 1976 at the Hospital. Defendant Charles E. Galt, Jr. (Dr. Galt) was the obstetrician who cared for the mother and baby until their release from the hospital on February 6, 1976. Defendant Catherine Armstrong (Dr. Armstrong), a pediatrician, began caring for Zach approximately five days after discharge from the Hospital. His mother took Zach back to the hospital on February 9, 1976 for a PKU test and again on February 11, 1976 for additional tests. Defendant J.F. Haynes (Dr. Haynes) supervised the lab at the hospital. Third-party defendant Bonnie Dittus (Dittus), a lab technician employed by the hospital, administered the tests. Following the tests, Dr. Armstrong continued to care for Zach. Because of continued problems with the baby's crying and feeding, the parents took Zach to Bernalillo County Medical Center in Albuquerque where brain damage caused by bilirubin encephalopathy was diagnosed.
Prior to trial plaintiffs settled with Dr. Armstrong, the Hospital and Dittus (the latter was included although she had not been sued by plaintiffs). The jury answered the special instruction given them as follows:
Damages: $500,000 for Zach's injuries
$10,000 for parents' injuries
Apportionment of fault
Dr. Armstrong 65%
Hospital 15%
Dittus 5%
Dr. Haynes 15%
Dr. Galt 0%
----
100%
The amount of the settlement paid by the settling defendants substantially exceeded the $510,000 which the jury found plaintiffs should recover as total damages. The trial court held that as a matter of law plaintiffs were not entitled to additional recovery, since the settlement exceeded the damage award. Judgment was entered in favor of Dr. Galt and Dr. Haynes and costs assessed against plaintiffs. Plaintiffs appeal raising seven issues:
A. Is a tortfeasor relieved of his several share of liability if settling tortfeasors pay an amount which exceeds plaintiffs' damages?
B. Did the trial court err in dismissing the parents' claims of damages for:
A. loss of Zach's society and companionship; and
B. mental pain and anguish suffered as bystanders?
C. Did the trial court err in dismissing the claim for punitive damages?
D. Did the trial court err in excluding medicare regulations?
E. Can written admissions by a settling defendant come in at trial as evidence?
F. Did the trial court err in instructing the jury?
G. Was it proper to assess costs against plaintiffs?
At the outset we note that this case was tried after Claymore v. City of Albuquerque, aff'd sub nom, Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), but before Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (Ct.App.1982), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982).
The issue presented is: As a matter of law can an injured party recover an amount reflecting a nonsettling tortfeasor's negligence when the injured party has recovered, through settlement with other tortfeasors, an amount in excess of the entire damage award determined by the jury?
In order to answer this question we must first review the common law with respect to joint and several liability, the effect of release of one tortfeasor and contribution among tortfeasors; the change in the law effected by the Uniform Contribution Among Tortfeasors Act, NMSA 1978, Secs. 41-3-1 to 41-3-8 (Repl.Pamp.1982) (hereafter the "Uniform Act"); and the impact of Bartlett.
At common law each tortfeasor was jointly as well as severally liable for damages arising from an injury. Prosser, Law of Torts, Secs. 46-49 (4th ed. 1971); Bartlett. No right of contribution existed, however, among joint tortfeasors. Rio Grande Gas Company v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969). The release of one joint tortfeasor at common law released all other tortfeasors. Herrera v. Uhl, 80 N.M. 140, 452 P.2d 474 (1969); Downer v. Southern Union Gas Co., 53 N.M. 354, 208 P.2d 815 (1949).
Adoption of the Uniform Act in 1947 gave joint tortfeasors the right to contribution, but it did not change the common law rule of joint and several liability. Section 41-3-2; Rio Grande Gas Company v. Stahmann Farms, Inc. Under the Uniform Act a settling tortfeasor could protect himself not only from further liability to the injured person, but also from other tortfeasors seeking contribution. See Garrison v. Navajo Freight Lines, Inc., 74 N.M. 238, 392 P.2d 580 (1964). Further, once a joint tortfeasor had discharged the common liability or paid more than his pro rata share thereof, he could seek contribution. The rule against double recovery together with the settling tortfeasor's ability to protect himself from contribution placed the risk of obtaining only partial recovery on the injured person.
What effect did Bartlett have on this state of the law? Bartlett held that "Joint and several liability is not to be retained in our pure comparative negligence system ...." 646 P.2d at 585. It also rendered the concept of one indivisible wrong obsolete with respect to comparative negligence cases involving more than one tortfeasor. Thus, the injured person bears the risk of not recovering from a responsible tortfeasor who does not pay, for whatever reason.
Since joint and several liability provides the foundation under the Uniform Act for the pro rata 1 allocation of burden among tortfeasors, Bartlett effectively eliminates any basis for contribution among concurrent tortfeasors. See H. Woods, Comparative Fault, Sec. 13.5 (1978). If each concurrent tortfeasor is liable only for his respective share of the negligence, no need exists for him to invoke the Uniform Act and either seek contribution from other tortfeasors or protect himself against having to contribute. Thus, the Uniform Contribution Among Tortfeasors Act no longer has force in this State with respect to contribution among concurrent tortfeasors. See H. Woods, Comparative Fault, Sec. 13.5 (1978).
If the injured person settles with one tortfeasor for an amount equal to or, as here, in excess of the amount of damages, would the injured person be receiving double recovery if the nonsettling tortfeasors must pay their apportioned share of damages? Because of the uniqueness of New Mexico's laws, as summarized above, we have found no precedent, thus leaving the question open. It will be helpful to discuss the possible alternatives and the likely consequences.
As one possibility, we could revive the common law rule that the release of one tortfeasor released all others. Since the common law rule clashes with Bartlett, which abolished joint and several liability, we decline to apply it here.
Another approach would be to construe the Uniform Act, in light of Claymore and Bartlett, to permit contribution among the tortfeasors. At first blush, this approach has a certain logical appeal. The Uniform Act would for the most part remain intact. The injured party would not receive double recovery, and the settling tortfeasor could seek contribution. However, without joint and several liability, which is the foundation of the Uniform Act and the common law rule, there is no longer a need for contribution. In addition this approach offers little incentive for the injured person to settle with one or fewer than all of the tortfeasors. As we have held, contribution no longer applies to concurrent tortfeasors liable on the basis of each tortfeasor's negligence.
A third approach, and the one we find most suitable, would be to allow the injured person to pursue recovery from each severally liable tortfeasor without reduction. Under Claymore and Bartlett, each tortfeasor is responsible only for his respective share. If the injured person settles and releases one tortfeasor, the consideration paid would satisfy only that tortfeasor's percentage of fault, even though no jury determination of the amount of his liability exists at the time of settlement. If the injured person pursues his claim against the other tortfeasors, recovery will be only against them for their respective shares of fault. Thus, the injured person, by settling, would not recover more than his total damages, because each tortfeasor would pay, by settlement or judgment, only his respective share. The factfinder would still assess the injured person's total damages and apportion fault among all tortfeasors, present or absent. 2 If the settling tortfeasor paid more in settlement than his apportioned share of the total damages as determined, the injured person, without reduction, would retain the benefit...
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