Mercy Medical Center v. Julian

McDONALD, J.,

concurring and dissenting, in which BELL, C.J., and HARRELL, J., join.

These consolidated cases arise out of conflicting rulings by two judges of the same circuit court in separate parts of what is essentially the same litigation — a head-on collision of sorts. It was up to the Court of Special Appeals — and now us — to *381 sort out who had the right of way and, more importantly, the rules of the road for similar cases in the future.

The majority opinion does a fine job of laying out the background of this case, tracing the history of the law of contribution, describing the Maryland Uniform Contribution Among Joint Tort-Feasors Act (“UCATA”), and outlining the leading cases. It rules in favor of one side, but shies away from making the key choice that this case presents. I would be disposed to join what is a well constructed opinion, except that I cannot tell what decision we have made as to this question: What is the effect, as to a post-judgment action for contribution, of a release that provides for a pro rata reduction of the common liability for allegedly culpable parties conditioned on a subsequent determination of the joint tort-feasor status of the settling party?

At the risk of repeating what has already been well laid out, I begin by briefly summarizing my understanding of UCATA and the Court’s holding in what all parties agree is the key precedent — Sivigert v. Welk. 1

UCATA

Simply put, UCATA establishes a right of contribution among parties who are jointly and severally hable under Maryland tort law. Maryland Code, Courts & Judicial Proceedings Article (“CJ”), § 3-1402. A joint tort-feasor who pays more than a pro rata share of the common liability may collect contribution from the other joint tort-feasors. CJ § 3-1402(b).

UCATA also establishes rules for the assessment of contribution when one or more of the allegedly culpable parties settle with the plaintiff. A settling joint tort-feasor is not entitled to contribution from another joint tort-feasor unless the settlement extinguishes the liability of the other tortfeasor. CJ § 3-1402(c). A release given by a plaintiff to a settling joint tort-feasor reduces the plaintiffs claim against the other joint tort-feasors by the amount of the settlement— *382 or by a greater amount or proportion set forth in the release. CJ § 3-1404. Finally, the settling joint tort-feasor remains liable to pay contribution to other joint tortfeasors for their payment of the common liability unless the release provided by the plaintiff provides for a reduction of the common liability to the extent of the pro rata share of the settling joint tortfeasor. CJ § 3-1405(2). 2 UCATA thus allows a defendant in a tort action to settle its liability with the plaintiff in a way that eliminates any'future obligation of the defendant to make contribution to other defendants who choose to litigate liability.

This seems straightforward enough. But, virtually by definition, settlements occur before liability is adjudicated. Whether a settling party is in fact a joint tort-feasor may be unclear and UCATA’s rules on contribution require further explication, as exemplified in the Swigert case.

Swigert

In Swigert, this Court held that the release given by the Plaintiff (Newport) to the Released Defendant (Welk) would not be effective to reduce the Litigating Defendant’s (Swigert’s) liability pursuant to the pro rata reduction under UCATA (now codified in CJ § 3-1405) until the Released Defendant (Welk) was adjudicated a tort-feasor. 3

*383 If the Released Defendant in Swigert was subsequently adjudicated a tort-feasor, the Litigating Defendant’s liability would accordingly be reduced pro rata under UCATA; the Released Defendant would owe nothing more to the Plaintiff (the settlement had resolved that) or to the Litigating Defendant in contribution (per CJ § 3-1405).

If the Released Defendant was adjudicated not to be a joint tort-feasor, the Released Defendant would be a “volunteer”, the Litigating Defendant’s liability would not be reduced as a result of Released Defendant’s settlement, and the Released Defendant would owe nothing more to either Plaintiff (again, the settlement had resolved that question) or the Litigating Defendant (contribution under UCATA may only be obtained from joint tortfeasors — CJ § 3-1402).

In either case, there would be no further recovery against the Released Defendant. The party at risk in the subsequent adjudication was the Plaintiff. If the Released Defendant was determined to be a joint tort-feasor, any judgment the Plaintiff obtained against the Litigating Defendant would be reduced; if the Released Defendant was not a joint tort-feasor, there would be no reduction. 4

*384

The Majority Opinion in the Present Case

In the present case, our opinion concludes that the contribution action may proceed, but is at best ambiguous on the consequences of that decision. Our opinion raises, but does not answer, the following questions: Does it matter, for purposes of CJ § 3-1405, whether a Released Defendant is determined to be a joint tort-feasor in a separate contribution action as opposed to the main action? Are we limiting or perhaps even overruling Swigert?

Our opinion notes, correctly I think, that a contribution claim may be brought in the original action or as a separate action. Op. at pp. 374-78, 56 A.3d at 162-65. But what does this mean with respect to a Released Defendant? 5 Does it matter whether the Released Defendant is adjudicated a joint tort-feasor in the original action or in a separate action for the release to absolve the Released Defendant of liability for contribution?

In both this case and in Swigert, the determination of the Released Defendant’s status as a joint tort-feasor would occur only subsequent to the execution of the release. In Swigert, the subsequent adjudication of the Released Defendant’s (Welk’s) status as a joint tort-feasor would occur at some point *385 in the main action as the Released Defendant had been impleaded by the Litigating Defendant (Swigert) as a third party defendant. Under our holding in this case, that determination will take place in a separate contribution action by the Litigating Defendant (Julian) against the Released Defendant (Mercy). 6

In our opinion in the present case, we say that a Plaintiff and a Released Defendant take a “risk” in having the liability of the Released Defendant adjudicated — presumably an adjudication that happens after execution of the release, or it would not be a “risk.” Op. at p. 369, 56 A.3d at 159-60. But is the Released Defendant, as well as the Plaintiff, taking a “risk” in that adjudication? The same passage in our opinion suggests not — after analyzing the outcomes if the Released Defendant is adjudicated liable or not liable, at the conclusion of the same paragraph we say that the Released Defendant is not subject to recovery by either the Plaintiff or Litigating Defendants “in both scenarios.” Id. Thus, it seems that we are saying that only the Plaintiff is taking a risk in submitting the Released Defendant’s tort-feasor status to adjudication— presumably the risk that the Released Defendant will be adjudged a tort-feasor under UCATA, thus reducing the Plaintiffs recovery against the Litigating Defendant.

This analysis suggests that a Released Defendant in the position of Mercy in this case faces no additional liability from the adjudication of its tort-feasor status, whether that adjudication takes place in the context of a third-party or cross claim in the main action (as in Swigert) or as a claim for contribution in a separate action (as in the present case). 7 On the *386 other hand, we could decide to limit the Swigert approach to cases in which the post-release adjudication of tort-feasor status occurs in the litigation of a third-party claim for contribution rather than a separate action for contribution. That in fact was one of the questions on which we granted certiorari. 8 But our opinion now declines to answer it (other than implicitly in the paragraph described above). 9

The Need to Make a Choice

In urging us to choose one rule over the other the parties have conjured competing pictures of adverse consequences. Mercy projects that a ruling that Julian may recover money damages from it in the contribution action will encourage piecemeal litigation and undermine what it characterizes as UCATA’s goals of encouraging settlements and judicial efficiency. Julian counters that, if the determination whether the Released Defendant is in fact a joint tort-feasor must take place in the main action, it would inevitably distort the truth- *387 finding process and confuse the jury: the Plaintiff would have no incentive to prove the culpability of the Released Defendant while the Litigating Defendant would be placed in the untenable position of simultaneously defending its own conduct while also seeking to prove the culpability of the Released Defendant. 10

No doubt the parties to medical malpractice and other tort litigation will accommodate their practices to whatever rule we ultimately adopt for the effect of particular types of releases under UCATA. It is important, nonetheless, that we make whatever rule we adopt clear so that they may make that accommodation.

It is sometimes not so important what rule is adopted as that some rule is clearly adopted. For example, there is no moral imperative that directs the choice between requiring drivers to stay to the right side of the road or to stay to the left. But the choice must be clearly made. If not, even the best engineered road will experience head-on collisions.

Chief Judge BELL and Judge HARRELL join in this opinion.

. 213 Md. 613 , 133 A.2d 428 (1957).

. The release must also be given before the right of the other joint tortfeasor to obtain a money judgment for contribution arises — i.e., before the joint tort-feasor seeking contribution has paid the common liability, or at least more than the payor's pro rata share. CJ § 3-1405(1); CJ § 3-1402(b).

. To keep the positions of the various players under UCATA in focus, for the remainder of this opinion I will use the term Released Defendant to identify the allegedly culpable party that enters into a settlement with the Plaintiff and obtains a release that purports to protect that party from liability under UCATA for contribution to other joint tortfeasors. Under this definition, a Released Defendant, of course, may or may not' ever formally be a defendant in the litigation and may or may not ultimately be determined to be a joint tort-feasor.

I will use the term Litigating Defendant to denote an allegedly culpable party that does not enter into a settlement or obtain a release from the Plaintiff.

. Maryland adopted the 1939 version of UCATA, as did seven other states. Chapter 344, Laws of Maryland 1941. It is notable that, in 1955, the Uniform Laws Commissioners withdrew the 1939 version of the model law and substituted a revised version. In doing so, the commissioners noted that § 5 of the 1939 UCATA, which is the basis for CJ § 3-1405, “has been one of the chief causes of complaint where [1939 UCATA] has been adopted, and one of the main objections to its adoption.” 12 Uniform Laws Annotated, 1955 UCATA, § 4, comment at p. 285. The commissioners substituted a new section that combined old § 4 — the basis for CJ § 3-1404 — and § 5 of 1939 UCATA into one section and eliminated the requirement that a release provide for a pro rata reduction in any judgment in order to extinguish a Released Defendant’s liability for contribution. No state has adopted the 1939 version of UCATA for more than 60 years. As a result, there is a relatively little law from other jurisdictions interpreting § 5 of the 1939 version of UCATA. In Swigert, Maryland, like two other states, followed the approach of a Pennsylvania decision that required an adjudication or admission of the Released Defendant's tort-feasor status, at least for purposes of reducing a judgment pursuant to § 4 of 1939 UCATA. Davis v. Miller, 385 Pa. 348 , 123 A.2d 422 (1956); see also Scalf v. *384 Payne, 266 Ark. 231 , 583 S.W.2d 51 (1979); Medical Center of Delaware v. Mullins, 637 A.2d 6 (Del.1994).

. Two federal courts, in applying Maryland law and dismissing or granting summary judgment with respect to claims for contribution, have concluded that execution of a Swigert release absolves the Released Defendant of liability for contribution. Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 708-11 (D.Md.2001) (granting summary judgment to released defendants as to cross-claim for contribution on ground that right of contribution against alleged joint tort-feasors had been "extinguished” as a result of Swigert release prior to any adjudication of the released party’s tort-feasor status); Montgomery County v. Jaffe, Raitt, Heuer & Weiss, P.C., 897 F.Supp. 233, 239 (D.Md.1995) (holding that "the statutory terms imposing a bar against contribution” had been met in a Swigert release and that, as a result, a litigating defendant had "no right of contribution” against the settling defendants and therefore could not implead them — again before adjudication of tort-feasor status). The majority opinion acknowledges that the two federal cases accurately quote CJ § 3-1405, but does not attempt to distinguish them, although those cases each reach a conclusion quite different from the majority opinion.

. A primary issue in a contribution action involving a Released Defendant presumably is whether the Released Defendant is in fact a joint tort-feasor. If not, the Released Defendant cannot be liable for contribution.

. Under that analysis, the release in the present case is similar to the release in Swigert in that it does not acknowledge the Released Defendant’s status as a tort-feasor, but allows for a pro rata reduction if that determination is made in the future. Here, if Mercy (the Released Defendant) is subsequently adjudicated a tort-feasor in the contribution *386 action, the release becomes effective to reduce Julian's (the Litigating Defendant’s) liability pro rata and Mercy should owe nothing more. If Mercy is found not to be a joint tort-feasor, it is a "volunteer”, Julian owes the judgment, and Mercy still owes nothing more to either plaintiffs or Julian.

. If the choice were left to me, I would opt for judicial economy and trust our trial judges to manage litigation to avoid potentially collusive trials.

. We granted Mercy's petition for certiorari, which included the following question:

If a joint tort-feasor may pursue a post-judgment action for contribution against a party released by a "Swigert" pro rata release, may he recover money damages from the "Swigert” defendant, or is the remedy limited to a reduction of the judgment?

424 Md. 628 , 37 A.3d 317 (2012). This is essentially the question whether a post-release adjudication of the Released Defendant’s joint tort-feasor status in a contribution action has the same effect as a post-release adjudication of that status in a third party claim or cross claim — the Swigert situation.

. Our reason for declining to address this question explicitly is that it calls for an advisory opinion. Op. at p. 379 n. 17, 56 A.3d at 165 n. 17. Yet we can provide an answer that is no more advisory than this Court's holding in Swigert that the release in that case would result in a reduction of a future judgment for the Plaintiff if the Released Defendant were later determined to be a joint tort-feasor. Swigert, 213 Md. at 619 , 133 A.2d 428 . Moreover, for the reasons explained in the text, it appears to be the key question posed by these consolidated cases.