PRINCE GEORGE'S COUNTY v. Brent

LAWRENCE F. RODOWSKY, Judge (retired, specially assigned). This is an appeal from the judgment in Case No. CAL0506034 in the Circuit Court for Prince George’s County in which the Respondent, Cleveland Brent (Brent), sued the Petitioner, Michael W. Daily (Officer Daily). In an earlier case in the same court, CAL03-13492, Brent had obtained a judgment against Prince George’s County, Maryland (the County). 1 Both actions asserted Brent’s claim for damages for personal injuries sustained in one and the same automobile ³³⁷ accident with a police cruiser operated by Officer Daily, of the County’s police force. The principal issue before us is whether the claim asserted in No. CAL05-06034 (Brent II) is merged in the judgment previously rendered in CAL03-13492 (Brent I).

As hereinafter explained, we shall hold that there is no claim preclusion. The accident occurred on December 10, 2002, at an interchange between Branch Avenue and Allentown Road. Officer Daily was traveling on Allentown Road. The accident occurred when he entered and proceeded through an intersection on a red traffic signal.

In July 2003, Brent filed Brent I, naming only the County as a defendant. The action was tried for three days to a jury, and the issues were submitted on a verdict sheet. The jury found that “the defendant” was negligent, that “the defendant, Prince George’s County,” had not proved that Brent was contributorily negligent, and that the damages were $320,000. Judgment was entered against the County accordingly.

The court (Lamasney, J.) reduced the judgment that had been entered on that verdict to $20,000, pursuant to Maryland Code (1974, 2006 RepLVol.), § 5-524 of the Courts and Judicial Proceedings Article (CJ). That section provides: “An owner or lessee of any motor vehicle registered under Title 13 of the Transportation Article may not raise the defense of sovereign or governmental immunity, to the extent of benefits provided by the security accepted by the Motor Vehicle Administration under § 17-103 of the Transportation Article, in any judicial proceeding in which the plaintiff claims that personal injury, property damage, or death was caused by the negligent use of the motor vehicle while in government service or performing a task of benefit to the government.” The “security accepted by the Motor Vehicle Administration” is $20,000 per person per accident. Maryland Code (1977, 2009 RepLVol.), § 17-103(b)(l) of the Transportation Article. In an effort to avoid the effect of CJ § 5-524, Brent, in Brent I and after the verdict, filed a second amended com ³³⁸ plaint in which he named Officer Daily as an additional defendant to the same claim.

The court dismissed the second amended complaint with prejudice, at the same hearing at which it reduced the judgment against the County. Further, some weeks before the dismissal in Brent I of the second amended complaint, Brent had filed Brent II in which only Officer Daily was named as a defendant. Brent I was appealed to the Court of Special Appeals. That appeal challenged the dismissal of the second amended complaint or, at least, its dismissal with prejudice.

In an unreported opinion, that court vacated the dismissal of the second amended complaint, but remanded with direction that that dismissal be “without prejudice to appellant’s right to file a separate cause of action against Officer Daily.” The court cautioned, however, that it did “not intimate any view whatsoever of what should be the proper outcome of [Brent’s] lawsuit against Officer Daily.” In Brent II, Officer Daily, by motions, raised defenses of res judicata, collateral estoppel, and immunity. The immunity argument was based upon CJ § 5—689(b)(1). It provides that “[a]n operator of an emergency vehicle, who is authorized to operate the emergency vehicle by its owner or lessee, is immune from suit in the operator’s individual capacity for damages resulting from a negligent act or omission while operating the emergency vehicle in the performance of emergency service.” Officer Daily’s motions were denied at a hearing on March 30, 2007. The court (Krauser, J.) concluded that res judicata and collateral estoppel were not available to Officer Daily, because he was not a party to Brent I. Counsel for Brent represented to the. court that the verdict sheets initially prepared by counsel for Judge Lamasney had included an issue based on the § 5—639(b)(1) defense, but that that issue had not been submitted to the jury at the request of counsel for the County.

Based on the representations of counsel as to ³³⁹ what had transpired in Brent I, 2 the court denied summary judgment on the ground of emergency service immunity under § 5-639(b)(l) because it considered that there was a dispute of fact that had not been decided in Brent I. 3 Shortly thereafter, the County paid Brent the $20,000 judgment in Brent I, subject to an agreement that the $20,000 would be credited against an enrolled judgment, if any, rendered for the plaintiff in Brent II. At a hearing in August 2007, the parties advised the court (Krauser, J.) of their agreement that, at trial, the only issue of fact for the jury would be whether, at the time of the accident, Officer Daily had been operating an emergency vehicle in the performance of emergency service, i.e., the immunity defense under CJ § 5—639(b)(1). The parties also advised the court of their agreement that, if the jury found that Officer Daily was not acting at the time of the accident on an emergency call, then judgment would be entered in favor of Brent for $200,000 (against which the $20,000 paid by the County would be credited). 4 At the trial of Brent II in December 2007, the court (Schiff, J.) submitted that lone issue to the jury. The jury answered ³⁴⁰ “NO” to the question, “Do you find by a preponderance of the evidence that Officer Michael W. Daily was in emergency service on December 10, 2002?”.

After Officer Daily’s post-trial motion was denied, the court entered judgment against him in the amount of $180,000. Appeal was timely noted to the Court of Special Appeals. 5 The Court of Special Appeals affirmed, sub nom. Prince George’s County v. Brent, 185 Md.App. 42 , 968 A.2d 630 (2009). Officer Daily raised three principal contentions: “ ‘1.

That the second action was barred because it split a single cause of action, or was otherwise barred by principles of res judicata and collateral estoppel; “ ‘2. That the trial judge erred at the second trial by failing to grant appellant’s Motion for Judgment because the evidence conclusively established that Officer Daily was operating his vehicle in emergency service; and, “‘3. That the trial court erred in finding that §§ 5— 507(b)(2) ... did not apply to afford Officer Daily immunity as to any amount in excess of the County’s existing motor vehicle insurance limit.’ ” Id. at 48, 968 A.2d at 634 . The court held that there was no splitting of the cause of action, which continued to be the negligence claim against Daily.

Every fact necessary to decision of that claim, that is, negligence, contributory negligence, causation, damages and vicarious liability, were fully litigated in Brent I. The only issue for trial in Brent II was an issue of defense by way of immunity, that was not litigated in Brent I. The court further found that there was sufficient evidence to sustain the jury’s finding and that CJ § 5-507(b)(2), hereinafter discussed, was inapplicable as an additional basis for immunity. From the affirmance by the Court of Special Appeals, Officer Daily, purportedly joined by Prince George’s County, ³⁴¹ Maryland, petitioned this Court for a writ of certiorari. That petition essentially raised three questions: I. Whether Brent II was barred by res judicata. 6 II. Whether the circuit court erred in denying Officer Daily’s motion for judgment and for judgment N.O.V. 7 III.

Whether Officer Daily was entitled to public official immunity under CJ § 5-507(b)(2). 8 I Brent’s claim against Officer Daily is not barred by res judicata, i.e., claim preclusion. In determining the dimen ³⁴² sions of a claim for applying the principles of claim preclusion, including the prohibition against splitting a cause of action, this Court has generally approved of the transactional approach found in § 24 of Restatement (Second) of Judgments (Restatement). Kent County Board of Education v. Bilbrough, 309 Md. 487, 499 , 525 A.2d 232, 238 (1987); Shum v. Gaudreau, 317 Md. 49, 54-55 , 562 A.2d 707, 710 (1989). 9 Clearly, the claim in Brent I and II is the same claim. It arises out of the same accident and the same injuries to Brent.

The oft quoted definition of res judicata by this Court is that found in MPC, Inc. v. Kenny, 279 Md. 29, 32 , 367 A.2d 486, 488-89 (1977): “the doctrine of res judicata is that a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit[J” See also Restatement § 17. 10 The parties in Brent I and II are different so that the question arises whether master and servant are “privies” for purposes of the res judicata doctrine. ³⁴³ In lieu of using the term, “privies,” the Restatement analyzes that subject under a topic, “Substantive legal relationships resulting in preclusion.” Section 51 addresses “Persons Having a Relationship in Which One Is Vicariously Responsible for the Conduct of the Other.” In relevant part, § 51 reads: “If two persons have a relationship such that one of them is vicariously responsible for the conduct of the other, and an action is brought by the injured person against one of them, the judgment in the action has the following preclusive effects against the injured person in a subsequent action against the other.... “(2) A judgment in favor of the injured person is conclusive upon him as to the amount of his damages, unless: “(b) Different rules govern the measure of damages in the two actions.” Comment a to Section 51 points out that a plaintiff may sue in one action both the primary obligor and the person vicariously responsible. “However, under prevailing procedural rules the injured person ordinarily is not required to join both and may decide to bring suit in the first instance against only one of them. If he does so, the rule of this Section becomes applicable.” (Emphasis added). Comment b to § 51 sets forth the rationale for the rule. “The injured person’s claims against the primary obligor and the person vicariously responsible for his conduct are in important respects separate claims. First, neither of the obligors is ordinarily the representative of the other....

Second, a release of one does not ordinarily release the other.... Third, one of the obligors may be immune from suit while the other is not, and different statutes of limitations may be applicable to them. Finally, the claims are ³⁴⁴ separate in the sense that neither the rule against ‘splitting’ a claim nor the usual rules of joinder of parties require that they be maintained in a single action.” (Emphasis added). Officer Daily argues that “[bjecause the judgment in Brent I was ... based on the negligence of employee Appellant Daily, judgment in Brent I is a final bar to any other suit upon the same cause of action, and is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters or any other claim arising from the same transactions and operative facts that could have been but was [sic] not raised in Brent I.” As we observed above, Brent II did not involve another claim.

It is the same claim as Brent I, but asserted against another party. Brent II involved a different defense to the same claim. The circuit court concluded that that separate defense was not decided in Brent I. In a sense, there has been a splitting of defenses, inasmuch as the County could have raised the emergency response defense in Brent I. Officer Daily also makes the following argument: “As Appellee points out, Maryland Rule 2-211 11 was intended to assure that Appellant Daily’s rights are not adjudicated unless he had his day in court and to prevent multiplicity of litigation by assuring determination of the entire controversy in a single proceeding .... If Appellee had a claim against Appellant Daily as to whether he was in emergency service, he was mandated under well established caselaw to bring that claim, not because Appellants are advancing a new mandatory joinder rule.” (Emphasis in original).

The Court of Special Appeals has held that, under Maryland law, as in other jurisdictions, “an employee is not a necessary party to a suit against an employer on the theory of vicarious liability.” Market Tavern v. Bowen, 92 Md.App. 622, 640-41 , 610 A.2d 295, 305 , cert. denied, 328 Md. 238 , 614 A.2d 84 (1992). We understand Officer Daily’s argument to be that, although Brent was not required to join ³⁴⁵ him in Brent I, Brent’s decision not to do so has resulted in claim preclusion. Our research has disclosed a few cases, reviewed below, in which a tort plaintiff first sued only the master or servant, obtained judgment, and then sued the other. So long as the claim has not been satisfied, the tort plaintiff is permitted to do so.

Here, the claim has not been satisfied. The parties have agreed that, if Brent prevailed on the emergency issue in Brent II, the damages would be $200,000, less credit for the $20,000 previously paid by the County. In Melikian v. Corradetti 791 F.2d 274 (3d Cir.1986), the plaintiffs initially sued a corporation on a fraud claim. Judgment was rendered for the plaintiffs, but the judgment was not satisfied because of the corporation’s insolvency.

They sought to amend the original complaint to join the principals of the corporation, but the trial court would not permit the amendment. Consequently, the plaintiffs sued the principals in a separate action. That action was dismissed by the trial court on a number of grounds, including splitting of the cause of action. The Third Circuit reversed.

Applying the law of New Jersey in effect when the cause of action arose, the court held that “ ‘a claim against a person who was not a party to the initial litigation is ordinarily not precluded from being subsequently litigated even if it is the same as or transaction-ally related to the claim which is the subject of the initial litigation.’ ” Id. at 280 (quoting Bates Marketing Assocs., Inc. v. Lloyd’s Electronics, Inc., 190 N.J.Super. 502 , 464 A.2d 1142, 1144 (1983), appeal dismissed, 97 N.J. 703 , 483 A.2d 211 (1984)). An historical review of the issue before us is found in Sherwood v. Huber & Huber Motor Express Co., 286 Ky. 775 , 151 S.W.2d 1007 (1941). The court began by reviewing the common law, at which master and servant could not be joined in one action, where the master’s liability was derivative, because the cause of action against the actual tortfeasor lay in trespass while that against the party derivatively liable lay in case. The law evolved, however, to consider that the liability ³⁴⁶ was joint and several.

That is the rule in Maryland. Bemheimer-Leader Stores, Inc. v. Burlingame, 152 Md. 284 , 136 A. 622 (1927). The Kentucky court in Sherwood next analogized to the law relating to the effect of judgment against less than all joint tortfeasors. The court quoted 1 T.M. Cooley, Cooley on Torts § 82, at 259 (4th ed. 1932), where the author said: “Whatever may have been the reason for proceeding at first against less than the whole, it is conceded on all sides that a previous suit against one or more is no bar to a new suit against the others, even though the first suit be pending, or have proceeded to judgment when the second is brought. “The second, or even a subsequent suit may proceed until a stage has been reached in some one of them at which the plaintiff is deemed in law to have either received satisfaction, or to have elected to rely upon one proceeding for his remedy to the abandonment of the others.” Thus, in Sherwood , a passenger in a taxicab, that had collided with a truck, was not precluded from bringing a second action against the owners of the truck when, although the plaintiff had obtained judgment against the taxicab company and the driver of the truck, that judgment was not satisfied.

Similar reasoning was applied by the court in McFadden v. Turner, 159 N.J.Super. 360 , 388 A.2d 244 (1978). That was a medical malpractice case in which the plaintiff initially sued a hospital. At a bifurcated trial, the hospital’s liability was established. Those parties then reached a settlement for $9,500, expressly predicated on the $10,000 limit of liability that the hospital enjoyed under a New Jersey statute.

That limitation did not extend to hospital employees, whom the plaintiff next sued. The defendants moved for summary judgment “[bjecause of the identity of this cause of action and that prosecuted in the prior suit against the hospital” and because of “the so-called entire controversy doctrine.” Id. at 364 , 388 A.2d at 245 . With leave, the defendants appealed from the denial of that motion. After pointing out that the ³⁴⁷ release of one joint tortfeasor no longer released all, the court stated: “While that departure from the common law was formulated in the context of multiple acts of negligence committed by concurrent tortfeasors, each of whom was himself actually rather than merely vicariously liable, we see no reason why the rule should not apply as well to the single act of negligence for which both the actual wrongdoer and his master or principal are each independently liable.

The rationale of the rule is equally apposite whether the liability is actual or vicarious—namely, that plaintiff is entitled to pursue all those who are independently liable to him for his harm until one full satisfaction is obtained.” Id. at 366-67 , 388 A.2d at 246-47 . See also Day v. Davidson, 951 P.2d 378 (Wyo.1997) (holding that master and servant are not in privity, but that servant entitled to credit for damages obtained by plaintiffs on consent judgment against master in earlier suit on same negligence claim); compare New Crawford Valley Ltd. v. Benedict, 877 P.2d 1363 (Colo.App.1993) (holding fraud judgment against corporation no bar to later suit against corporation’s directors on same claim). New Jersey’s experience with the “entire controversy doctrine” furnishes a particularly compelling reason for rejecting Officer Daily’s contention that, because he could have been sued in Brent I, the claim against him is precluded. The history of that doctrine is reviewed in H.M. Erichson, “PAPER SYMPOSIUM: THE DEMISE OF THE ENTIRE CONTROVERSY DOCTRINE: Of Horror Stories and Happy Endings: The Rise and Fall of Preclusion-Based Compulsory Party Joinder Under the New Jersey Entire Controversy Doctrine.” 9 Seton Hall Const.

L.J. 755 (1999). Professor Erichson states that New Jersey attempted what no other jurisdiction had tried. “The experiment was this: the merger of claim preclusion and compulsory party joinder.” Id. at 758. He explained: ³⁴⁸ “Outside of New Jersey, claim preclusion applies to claims that could have been brought, but does not extend to additional parties who could have been joined. Outside of New Jersey, compulsory party joinder is enforced by ordering joinder or by dismissing if joinder is impossible, not by precluding later claims against the unjoined party.

Within New Jersey, while the experiment was underway, mandatory party joinder was enforced by imposing claim preclusion on litigants who failed to join a party in an earlier proceeding.” Id. at 759 (footnotes omitted). The problems with the doctrine were: “First, it forces litigants to assert claims that otherwise would not have been asserted. Second, it creates excessive ancillary litigation concerning application of the doctrine.” Id. at 769-70. Professor Erichson considered that the New Jersey Supreme Court “plunged into its party joinder experiment in 1989” in Cogdell v. Hospital Center at Orange, 116 N.J. 7 , 560 A.2d 1169 (1989).

He described the result: “As the New Jersey courts enforced the new party joinder mandate, the rule drew an unenthusiastic response. Judges and rulemakers, concerned about the implications of the rule on various types of cases, began to carve out exceptions to the doctrine. In 1994, the gripes of bench and bar coalesced in a recommendation by the New Jersey Supreme Court’s Civil Practice Committee that the Supreme Court overrule Cogdell and abandon the entire controversy doctrine mandatory party joinder rule. The Committee’s recommendation went unheeded.” 9 Seton Hall Const.

L.J. at 762 (footnotes omitted). The turning point, the author tells us, arrived in 1997 in Olds v. Donnelly, 150 N.J. 424 , 696 A.2d 688 (1997), where the New Jersey Supreme Court acknowledged that the doctrine “had not worked out as the court had expected,” and it requested its Civil Practice Committee to reexamine the entire controversy. 9 Seton Hall Const. L.J. at 768. ³⁴⁹ For these reasons, we decline to hold that Brent’s unsatisfied claim from Brent I precluded its assertion in Brent II simply because Officer Daily had not been joined in Brent I. 12 II Officer Daily contends that his motion for judgment at the close of the plaintiffs case, that was renewed in his motion for judgment n.o.v., was erroneously denied. 13 In reviewing the denial of a motion for judgment n.o.v., we assume the truth of all credible evidence and inferences therefrom, which we consider in the light most favorable to the party against whom the motion was made. Impala Platinum v. Impala Sales, 283 Md. 296 , 389 A.2d 887 (1978).

The Court of Special Appeals in Brent II fully reviewed the evidence and found that it was legally sufficient. Prince George’s County v. Brent, 185 Md.App. at 49-52 , 968 A.2d at 635-36 . We agree with that analysis, which we shall briefly review.