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