Spence v. Julian

GRAEFF, J. This appeal arises from a medical malpractice action. The issue presented involves the effect of a release agreement pursuant to the Maryland Uniform Contribution Among Joint Tort-Feasors Act (the “UCATA”), Md.Code (2006 Repl.Vol.) § 3-1401 to -1408 of the Courts and Judicial Proceedings Article (“C.J.P.”). The Circuit Court for Baltimore City, in two separate opinions, reached conflicting conclusions. The initial lawsuit (the “Primary Action”) was filed in February 2005.

Appellants, Wycinna and Christopher Spence, individually, and Ms. Spence, as the Personal Representative of the Estate of Caleb Spence (the “Spences”), filed suit against Emerson R. Julian Jr., M.D., Emerson R. Julian, ⁵⁶⁶ Jr., M.D., P.A., and Harbor City OB/GYN (collectively “Dr. Julian”) and Mercy Medical Center and its employees (“Mercy”) for injuries sustained by their son, Caleb Spence, prior to and during his birth. Before trial, Mercy and the Spences entered into a Confidential Settlement Release Agreement (the “Release Agreement”), which provided that no other person would be entitled to a reduction of damages by reason of the settlement “unless and until” Mercy was “adjudicated to be [a] Joint Tortfeasor” with the other person. The Spences’ claim proceeded to trial solely against Dr. Julian, and a jury found him liable for Caleb’s injuries. The jury awarded damages in excess of $8 million; the award subsequently was reduced to $2,186,342.50, and Dr. Julian paid the full amount.

On April 17, 2009, the Spences filed a Complaint for Declaratory Judgment and Injunctive Relief. They asked the circuit court to declare that Dr. Julian was “barred from any right of contribution” from Mercy. On June 15, 2009, Dr. Julian filed a claim against Mercy, asserting that Mercy was liable to him for contribution as a joint tortfeasor. Mercy moved to dismiss the claim, arguing that the Release Agreement it signed with the Spences in the original malpractice case precluded Dr. Julian from seeking contribution from Mercy.

Both cases were heard in the Circuit Court for Baltimore City, but the hearings took place before different judges. On November 25, 2009, in the declaratory judgment action, the court found that Dr. Julian had the right to file a claim for contribution against Mercy. On August 27, 2010, a different judge dismissed Dr. Julian’s contribution claim against Mercy, finding that, pursuant to the Release Agreement, Mercy was relieved from liability to make contribution to Dr. Julian. The Spences noted an appeal from the judgment of the circuit court in the declaratory judgment action.

Dr. Julian appealed the court’s order dismissing his complaint seeking contribution. The two cases were consolidated for appeal. ⁵⁶⁷ The parties present multiple questions for our review, 1 which we have consolidated and rephrased as follows: Where a plaintiff enters into a settlement agreement with one defendant, pursuant to a release that provides that no other person is entitled to a reduction of damages by reason of the settlement unless the settling defendant is adjudicated a joint tort-feasor, does the nonsettling defendant have a right to pursue a claim for contribution in a separate proceeding filed after the conclusion of the underlying case? For the reasons set forth below, we answer that question in the affirmative. Accordingly, we shall affirm the circuit court’s order in the declaratory judgment action and reverse the judgment dismissing Dr. Julian’s contribution claim against Mercy.

FACTUAL AND PROCEDURAL BACKGROUND a. The Release Agreement and Primary Action On February 15, 2005, the Spences filed a medical malpractice claim against Mercy and Dr. Julian. They alleged negli ⁵⁶⁸ gence, wrongful death, and lack of informed consent in the labor and delivery of their son, Caleb, who suffered brain damage and died within one year. .On September 20, 2006, prior to trial, the Spences settled their claim against Mercy and entered into the Release Agreement. The Release Agreement discharged Mercy from all claims as a result of the Occurrence. 2 It addressed the effect of the settlement on any award of damages the Spences might recover against Dr. Julian as follows: 7.

Joint-Tortfeasor Nature of Agreement: a. The [Spences] and the Released Parties agree and understand that this is a “Swigert Release” as set out in the case of Swigert v. Welk, 213 Md. 613 [ 133 A.2d 428 ] (1957), and, in accordance with that decision and the Maryland Uniform Contribution Among Joint Tort-Feasors Act, [C.J.P.] § 3-1401 et seq. (1974, 2002 Repl.Vol.) (“the Act”) the Released Parties are neither deemed joint tortfeasors for purposes of this Release, nor are [the Spences] hereby releasing any other person or entity, whether or not a named party to this agreement. Any person or entity, other than the Released Parties, whom the [Spences] claim are liable to them for injuries, losses and damages which are the subject of this action shall not be entitled to any reduction of the damages the [Spences] are claiming against them by reason of the payment herein, unless and until the Released Parties have been adjudicated to be Joint Tortfeasors with said other person or entity.

In the event the Released Parties are adjudicated to be Joint Tortfeasors liable to the [Spences] for damages, the [Spences] agree that their damages recoverable against all other tort-feasors, including but not limited to [Dr. Julian], will be reduced to the extent of the pro rata share of the Released Parties pursuant to the Maryland Uniform Contribution Among Joint Tort-Feasors Act, [C.J.P.] § 3-1405 (1974, 2002 Repl.Vol., 2005 Supp.). This provision is further in ⁵⁶⁹ tended to relieve and protect the Released Parties from any liability for contribution to any person, firm, partnership or corporation.[ 3 ] The release contained a provision for an escrow account to be maintained if the Spences obtained a judgment against Dr. Julian. It provided: [The Spences] shall hold in escrow one half of the amount of such judgment (upon receipt of payment) in an interest bearing account. The escrowed funds are intended as security for the benefit of the Released Parties for any future indemnity payments that the [Spences] are obligated to pay to the Released Parties under this Release Agreement.

Said funds shall be escrowed for three years from the date of the judgment or until [Dr. Julian’s] claim for contribution has been extinguished. The Release Agreement also contained an indemnity and hold harmless clause. It provided that the Spences would indemnify Mercy for any claims against it arising out of the Occurrence. The Release Agreement specifically stated that its purpose was to limit forever the amount of money to be paid by the Released Parties in conjunction with the Occurrence.... to relieve the Released Parties from any liability to make contribution to or indemnify [Dr. Julian], or any other person or entity, in the event that the Released Parties are found to be tort-feasors liable for damages pursuant to the finding of any court of law.

Following the execution of the Release Agreement, the Spences filed a Stipulation of Voluntary Dismissal. It dismissed the “Complaint, and each and every Count therein, asserted against Defendant [Mercy], only,” with prejudice. ⁵⁷⁰ Prior to trial, Dr. Julian moved to compel production of the Release Agreement, stating that he needed to review it to determine how to protect his claims against Mercy as a joint tortfeasor. Specifically, he stated: [Pursuant to C.J.P. § 3-1404] a joint tort-feasor release permits Dr. Julian to reduce a judgment, if any, in this case by the greater of the amount of consideration paid by Mercy Medical Center, or the pro-rata share. If, however, the Release is not a joint tort-feasor Release, but rather, a Swigert Release, then Dr. Julian must know to decide whether or not to bring a contribution action against Mercy Medical Center by third-party claim or in a separate action.

Dr. Julian would need to present evidence to the Court and jury as to whether the hospital is a joint tort-feasor under Maryland law to permit him the option of set-off. Judicial economy may dictate that the same jury that decides the liability, if any of Dr. Julian, also determine from the facts presented whether or not Dr. Julian and Mercy Medical Center are true joint tortfeasors with respect to the plaintiffs’ alleged injuries. Dr. Julian is entitled to know whether or not the Release between the plaintiffs and Mercy Medical Center gives rise to claims for contribution or results in automatic set-off. Dr. Julian is entitled to know the amount of the Release and Settlement to enable him to determine the extent of the set-off against him.

If Dr. Julian learns that he must pursue a separate claim against Mercy Medical Center, then he will require the document in order to file an Amended Answer pursuant to Rule 2-323 of the Maryland Rules to assert the affirmative defense of Release. In a letter dated October 6, 2006, counsel for Dr. Julian requested that the attorneys representing Mercy and the Spences withdraw the Stipulation of Voluntary Dismissal. Counsel for Dr. Julian stated: “Because it is my understanding that Mercy Medical Center has entered into a [Swigert ]- type release in this case, I cannot agree to the dismissal of the ⁵⁷¹ claims against Mercy Medical Center.” Ultimately, however, Mercy was dismissed from the case. 4 The trial proceeded solely against Dr. Julian. The jury found Dr. Julian liable and awarded the Spences more than $8,000,000; the award subsequently was reduced to $2,186,342.50.

On appeal, we affirmed the judgment in an unreported opinion, Emerson R. Julian, Jr. v. Christopher Spence, No. 1466, Sept. Term 2007 (filed Dec. 23, 2008). On April 10, 2009, the Court of Appeals denied Dr. Julian’s petition for writ of certiorari. Julian v. Spence, 408 Md. 150 , 968 A.2d 1065 (2009). The next month, Dr. Julian’s insurance company paid the judgment against him in full. b.

Declaratory Judgment Action On April 17, 2009, the Spences filed a complaint in the Circuit Court for Baltimore City seeking declaratory and injunctive relief against Dr. Julian, who had informed them that he intended to pursue a contribution action against Mercy. 5 The Spences requested that the court “[djetermine and adjudicate the rights and liabilities of the parties with respect to the Swigert Release,” including Dr. Julian’s “failure to plead and prove negligence on the part of’ Mercy and his “failure to affirmatively plead ‘Release’ in conformance with Maryland Rule 2-323.” They asked the court to declare that Dr. Julian was “barred from any right of contribution,” and he had “a duty to pay the full amount of the $2,186,342.50.” ⁵⁷² On June 15, 2009, Dr. Julian filed a Motion to Dismiss and Motion for Sanctions. He argued that: (1) the Spences lacked standing to pursue declaratory relief; (2) “declaratory judgment actions are inappropriate when the issue can be resolved in a pending tort action”; and (3) the Spences “failed to state a claim upon which relief may be granted,” because “the ‘relief sought ... is contrary to Maryland law.” Dr. Julian noted that he had filed a contribution action in the Health Claims Alternative Dispute Resolution Office (“HCADRO”), and he argued that the Spences’ complaint should be addressed in that forum. He cited C.J.P. § 3-1402 for the proposition that the appropriate statutory remedy was not a declaratory judgment, but rather, the Spences should raise the Release Agreement as a defense to his contribution action. Dr. Julian asserted that his contribution action against Mercy was not waived “by a failure to file a cross-claim in the underlying action” or “by a failure to affirmatively plead ‘release’ in the primary malpractice action.” Dr. Julian characterized the Spences’ complaint as “meritless” and without substantial justification, and he requested that the court award him attorney’s fees and costs.

On July 13, 2009, the Spences filed their opposition to Dr. Julian’s motion. They argued that declaratory relief was appropriate because it “may terminate all further controversy related” to the case, thereby fulfilling the purpose of the declaratory judgment statute. Noting that they were not a party in the HCADRO proceeding, which was initiated two months after they had filed their complaint for declaratory judgment, the Spences maintained that “[declaratory relief is particularly appropriate, if not essential, when the interests of a party in one case might not be properly or completely represented by a separate party in another case.” They asserted that they had “no statutory rights or other means” to protect their rights. The Spences insisted that, pursuant to Swigert, 213 Md. at 613 , 133 A.2d 428 , the Release Agreement insulated Mercy from any claim for contribution.

They further argued that the doctrine of res judicata prevented Dr. Julian from filing a contribution suit against Mercy because he ⁵⁷³ “failed to plead or prove any negligence on the part of Mercy and/or its employees” in the Primary Action, and he waived the defense of release because he failed to timely plead it as an affirmative defense in the Primary Action. The Spences also maintained that Dr. Julian’s motion for sanctions was “neither substantive or thoughtful,” and they urged the court to deny the motion. On July 28, 2009, Dr. Julian filed a reply. He maintained that “[dismissal of the declaratory judgment action is mandated given that the parties may adjudicate the identical issues in the pending HCADRO contribution action,” arguing that the Spences were, in fact, parties in the HCADRO proceedings because they were contractually bound to indemnify Mercy.

In that regard, he asserted that the Spences could not assert standing in the declaratory judgment proceeding as “Use Plaintiffs” and then deny involvement in the HCADRO action. Dr. Julian argued that there was no justiciable controversy because he had not yet pursued a contribution claim against Mercy. On August 7, 2009, the Honorable Lynn K. Stewart held a hearing on Dr. Julian’s Motion to Dismiss. Counsel for Dr. Julian argued that the court should dismiss the declaratory judgment action because there was another proceeding pending on the issue involved.

She further argued that the relief the Spences were requesting was not available, stating that Dr. Julian had a statutory right to contribution, was not obligated to file a cross-claim in the Primary Action to establish Mercy’s liability as a joint tortfeasor, and “there [is] no case law, whatsoever, that suggests that” a nonsettling defendant must “plea[d] release in the underlying malpractice case before [it] can pursue [contribution] in a subsequent action.” The Spences responded in two ways. First, they asserted that the HCADRO proceedings did not render the Spences’ declaratory judgment motion improper because the proceedings involved different claims and different parties—the HCA-DRO proceedings involved a medical negligence claim that Dr. Julian had initiated against Mercy, whereas the declaratory ⁵⁷⁴ judgment proceedings involved the Spences’ request that the court determine Dr. Julian’s right to contribution. Counsel maintained that the claims were “separate and distinct” and declaratory relief is disfavored only when parallel proceedings involve identical parties and identical issues. Second, counsel argued that Dr. Julian waived his right to pursue a contribution claim because he did not plead release as an affirmative defense or implead Mercy to establish its status as a joint tortfeasor in the Primary Action.

The court issued its ruling from the bench, denying Dr. Julian’s Motion to Dismiss and Motion for Sanctions. The court found that the matters pending before it and in the HCADRO proceedings were “not even the same,” noting that they involved “different parties, different issues, [and] different claims.” It observed that Mercy’s status as a joint tortfeasor had not been established, and Dr. Julian “did not really protect [himjself in a way that [he] should have or that it appeared that he was going to in reference to amending ... [his] Answer ... for the affirmative defense of release or to file a cross claim or a cross interpleader.” The court stated that the Spences’ had a “valid declaratory relief action,” and it denied Dr. Julian’s Motion to Dismiss. On August 21, 2009, Dr. Julian filed his answer to the Spences’ complaint. He alleged a number of defenses, including that the Spences’ claim was barred by C.J.P. § 3—409(b), which prohibits declaratory relief when “a statute provides a special form of remedy for a specific type of case.” Dr. Julian also maintained that, if the court granted the declaratory relief requested by the Spences, he would “be entitled to a credit or setoff for the amount of the settlement with Mercy Medical Center.” On August 27, 2009, Dr. Julian filed a Motion for Summary Judgment, arguing that there was no dispute of material fact and that he was entitled to judgment as a matter of law.

In this motion, and his reply to the Spences’ opposition, he maintained that “a contribution action is the statutorily proscribed [sic] method by which [Dr. Julian] must establish the ⁵⁷⁵ tortfeasor status of Mercy,” and “there is no requirement under Maryland law that [Dr. Julian] must adduce evidence of negligence of a party during the underlying malpractice action in order to preserve the right to pursue a contribution claim against that party in a subsequent action.” He argued that “there is no obligation in Maryland to affirmatively plead ‘Release’ ” or “to file a cross-claim in the underlying malpractice action in order to preserve the ability to seek contribution.” The Spences filed an opposition to Dr. Julian’s Motion for Summary Judgment, as well as their own motion for summary judgment. They maintained that they were entitled to judgment as a matter of law, arguing: (1) Dr. Julian waived his contribution claim because he “did not affirmatively plead ‘Release’ pursuant to Maryland Rule 2-823”; and (2) Dr. Julian failed to preserve a contribution claim because he did not plead or prove Mercy’s negligence in the Primary Action, which was required to obtain contribution under the UCATA. The Spences asserted that Dr. Julian’s “assumption that [he] could prove negligence in a subsequent claim and ignore the intervening requirement to introduce evidence of joint tortfea-sor negligence in the underlying claim” was fatal to his ability to recovery under the UCATA. On November 19, 2009, after a hearing, the Honorable Evelyn 0.

Cannon stated that she was “going to issue declaratory judgment that [Dr. Julian’s] action may go forward.” The court stated that there was no requirement in Maryland that a claim for contribution be made in the underlying action by a cross-claim or third-party claim, and therefore, Dr. Julian was not barred from pursuing a contribution claim against Mercy at that point. On November 25, 2009, the circuit court issued its declaratory judgment order in Dr. Julian’s favor. It provided: [Dr. Julian] ha[s] not waived any right to assert a claim for setoff or contribution against Mercy Medical Center in connection with the judgment against [Dr. Julian] in Wycin-na Spence, et al. v. Emerson Julian, el. al, Circuit Court ⁵⁷⁶ for Baltimore City, Case no. 24-C-05-1852. [Dr. Julian’s] decision not to file a cross-claim or plead “release” did not waive their right to file a claim or setoff or contribution and the claim is not barred by [C.J.P.] § 3-1405 or res judicata. There has not been a judicial finding [that] Mercy Medical Center was or was not a joint tortfeasor.

The Spences timely filed a Notice of Appeal. c. Dr. Julian’s Contribution Claim On June 15, 2009, Dr. Julian filed a claim in the HCADRO, seeking contribution from Mercy for the damages award it paid as a result of the verdict in the Primary Action. On August 13, 2009, the HCADRO transferred the case to the circuit court. On September 23, 2009, Dr. Julian filed a Complaint against Mercy and two nurses, Justina Mammeri and Tina Call (the “nurses”), 6 in the Circuit Court for Baltimore City.

He alleged that Mercy and the nurses were negligent in the prenatal care and delivery of Caleb Spence. Specifically, Dr. Julian alleged that Mercy and the nurses failed “to adequately monitor and supervise the administration of Cytotec and Pitocin,” which caused Caleb to “lose his oxygen reserve during labor” and “suffer a severe and ultimately fatal injury during that delivery that was prolonged.” Dr. Julian maintained that, because Mercy settled with the Spences by signing a non-Joint Tort-feasor Release, he was entitled to establish Mercy’s negligence and obtain an award in the amount of Mercy’s pro rata share of liability via a contribution claim. On May 12, 2010, after filing its Answer, Mercy filed a motion to dismiss or, in the alternative, for summary judgment. It relied on C.J.P. § 3-1405, which provides: ⁵⁷⁷ A release by the injured person of one joint tort-feasor does not relieve the joint tort-feasor from liability to make contribution to another joint tort-feasor unless the release: (1) Is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued; and (2) Provides for a reduction, to the extent of the pro rata share of the released tort-feasor, of the injured person’s damages recoverable against all other tort-fea-sors.

Mercy stated that it had entered into a Release Agreement with the Spences “before [Dr.] Julian’s right of contribution against Mercy accrued,” and the Release Agreement “specifically provided for a pro rata reduction in favor of [Dr.] Julian in the event Mercy was adjudicated to be a joint tortfeasor liable to the Spences.” Accordingly, Mercy argued, Dr. Julian’s right to contribution had been extinguished under C.J.P. § 3-1405. Mercy further asserted that it had provided Dr. Julian with a copy of the Release Agreement, but “[Dr.] Julian made no effort ... to adjudicate Mercy and [the nurses’] alleged liability and/or joint tortfeasor status.” It maintained that Dr. Julian did not “avail himself of the benefit of the pro rata reduction provided for in the Release” Agreement, and therefore, his claim was barred by C.J.P. § 3-1405. On May 26, 2010, Dr. Julian filed his Opposition to Mercy’s motion to dismiss and motion for summary judgment. He maintained that Mercy’s claim for dismissal was barred by res judicata, asserting that Judge Cannon had concluded in the declaratory judgment action that, because Mercy and the Spences had entered into a non-tortfeasor “Swigert Release,” “Dr. Julian was permitted to pursue a contribution action against Mercy” to establish Mercy’s status as a joint tortfea-sor.

Although Mercy was not a party to the declaratory judgment proceeding, Dr. Julian maintained that it was bound by the judgment because it was in privity with the Spences by ⁵⁷⁸ virtue of the Spences’ promise to indemnify it for claims related to Caleb’s injuries. Dr. Julian argued that C.J.P. § 3-1405 was not applicable, asserting that C.J.P. § 3-1405(2) requires a release to provide for a pro rata reduction in a nonsettling tortfeasors’ liability, but in this case, the Release Agreement excluded Mercy as a joint tortfeasor and precluded Dr. Julian from obtaining a reduction in the damages award. Dr. Julian argued that he was not obligated to file a cross-complaint to adjudicate Mercy’s liability in the underlying proceeding, and he did not waive his right to prove Mercy’s liability in an independent contribution claim. On June 22, 2010, Mercy filed its reply to Dr. Julian’s opposition to its motion to dismiss and motion for summary judgment.

It maintained that its motion to dismiss was not barred by res judicata because it had not had “a full and fair opportunity to litigate the application of’ C.J.P. § 3-1405 in a prior proceeding because the circuit court’s decision in that regard was made in response to the Spences’ motion for declaratory judgment, to which it was not a party. Mercy argued that the Release Agreement complied with C.J.P. § 3-1405, which expressly “relieve[s] the joint tortfeasor from liability to make contribution to another tortfeasor.” It asserted that “[Dr.] Julian had a complete opportunity to obtain the benefit of Mercy’s release by filing a third party claim in the Primary Action and establishing” Mercy’s status as a tortfeasor, but he waived the right for tactical reasons at trial. On June 25, 2010, the court held a hearing on the motions. Counsel for Mercy argued that, “once Mercy obtained its release before the judgment and provided for pro rata reduction, [Dr.] Julian no longer had a right of contribution.” Rather, Dr. Julian “had an opportunity to get a reduction