Theophelis v. Lansing General Hospital

Archer, J.

(dissenting). We granted leave to consider whether a release, containing a provision expressly reserving plaintiffs’ claim against the employer hospital-principal, and executed in consideration of settlement payments received from independent contractors-agents, nevertheless released the hospital from vicarious liability under *530MCL 600.2925d; MSA 27A.2925(4),1 and, if the release of the independent contractors-agents is not protected by MCL 600.2925d; MSA 27A.2925(4), the release should be reformed as a covenant not to sue, thereby effectuating the intent of the settling parties which would not discharge the hospital.

I would hold that the plain language of Michigan’s contribution statute, MCL 600.2925d; MSA 27A.2925(4), as amended in 1974, applies to all tortfeasors liable for the same injury, including those vicariously liable. Therefore, I need not reach the issue whether to reform the release as a covenant not to sue. I would further hold that the evidence introduced at trial, viewed in its entirety, .was sufficient for the jury to determine that the hospital was liable for independent as well as vicarious acts of negligence. Finally, I would hold that the hospital’s failure to request special verdicts as urged by the trial court impermissibly invited error, and thereby waived the hospital’s right to appeal the issue.

I would reverse the decision of the Court of Appeals and reinstate the jury verdict against defendant Lansing General Hospital._

*531PACTS

On June 16, 1978, Gene Christopher Schneider, a seven-year-old boy, was admitted to Lansing General Hospital, on the recommendation of his family physician, Robert Wirt, D.O., for a tonsillectomy and bilateral tympanotomy. After the tympanotomy, and before commencement of the tonsillectomy, the child developed a drastic increase in heart rate and his legs and fingers became cyanotic. Jana Palmer, the certified nurse anesthetist who had administered anesthesia for the surgery, called in Jack Gilmore, D.O., the supervising anesthesiologist. Dr. Gilmore had not been present in the operating room during the surgery. The child subsequently suffered a cardiac arrest. After half an hour of resuscitative efforts, the child resumed a spontaneous heartbeat, and was taken to the intensive care unit where he was placed on a respirator and cardiac monitor. Various physicians on staff at the hospital examined the child and directed treatment in the intensive care unit. The following day, a second cardiac arrest occurred. While maintained on a respirator in the intensive care unit, the child’s condition continued to deteriorate until his death six days later, on June 22, 1978.

Plaintiffs, the personal representative and the parents of the child, filed this wrongful death action in the Ingham Circuit Court on June 13, 1980. The defendants named were Jana Palmer, the certified nurse anesthetist, and Dr. Gilmore, the anesthesiologist, both of whom were employed by Capital Anesthesiologists, P.C. Capital had the exclusive contract to perform anesthesia within the hospital. The other defendants included Lansing General Hospital, Gerald Gilroy, D.O., the ear-nose-throat specialist who performed the tympano*532tomy, David Sciamanna, D.O., the assisting resident pediatrician, and various medical personnel.

Prior to trial, a number of physicians, as well as Capital Anesthesiologists, were dismissed for reasons unrelated to this appeal. Also prior to trial, a motion for an order authorizing settlement in the amount of $85,000 against nurse Palmer, only, was granted. After trial began, plaintiffs entered into a similar settlement in the amount of $172,739 with Dr. Gilmore, the anesthesiologist. In both instances, a release was executed in consideration of the settlement payments and a provision was included in the release specifically reserving plaintiffs’ claims against the remaining defendants.2 There were no objections raised by the defendants as to the settlements, to the language of the release, or to the court’s order authorizing the release.

Subsequently, during trial, the hospital moved to strike all allegations concerning the actions of Palmer and Gilmore as ostensible agents of the hospital (under Grewe v Mt Clemens General Hosp, 404 Mich 240; 273 NW2d 429 [1978]). The motions were based upon the theory that the settlements released the hospital from vicarious liability for the actions of Palmer and Gilmore *533despite the express reservation of those claims in the settlement order. While the trial court ruled that the settlements released the hospital from vicarious liability for the actions of Palmer and Gilmore, it permitted the evidence concerning the conduct of the released defendants to go to the jury, reasoning that the evidence was necessary to a jury’s understanding of the independent allegations of negligence against the remaining defendants, Lansing General, Dr. Sciamanna, and Dr. Gilroy. The trial court also recommended that the hospital request the return of special verdicts to determine whether the jury verdict was based upon the hospital’s vicarious or independent liability. The defendants rejected the court’s request.

During trial, at the close of plaintiffs’ proofs, and upon defendants’ motion, the trial court struck certain allegations of independent hospital negligence from plaintiffs’ complaint, but granted plaintiffs’ motion to amend their complaint to conform to the proofs. The amended complaint continued to include allegations that the hospital failed to require use of a precordial stethoscope in pediatric cases.

After a two-week trial, the jury returned a verdict against defendant Lansing General Hospital in the amount of $1 million. It found no cause of action as to Drs. Gilroy and Sciamanna. The verdict was reduced by the settlement amount of $257,739, and, on June 2, 1983, judgment was entered against Lansing General Hospital for $742,261.

On March 4, 1985, the Court of Appeals affirmed the jury verdict, concluding that the acts of the settling tortfeasors were properly introduced where "critical to the ability of plaintiffs to prove their independent claims against the hospital.” Theophelis v Lansing General Hosp, 141 Mich App 199, 205; 366 NW2d 249 (1985). On rehearing, a divided *534Court of Appeals set aside the jury verdict and remanded the case for a new trial. Having found that the trial court granted a directed verdict on all but one of plaintiffs’ independent claims against the hospital, the Court of Appeals decided there was now "no competent evidence or expert testimony” to support the issue of independent liability on the, part of the hospital to send to the jury. Theophelis v Lansing General Hosp (On Rehearing), 148 Mich App 564, 567; 384 NW2d 823 (1986). Judge Michael J. Kelly dissented, continuing to adhere to the analysis set forth in the original Court of Appeals opinion. Id., 568.

i

The Court of Appeals found that under common law, "the release of nurse Palmer and Dr. Gilmore released the hospital from any liability based on a theory of respondeat superior.” 141 Mich App 204; 148 Mich App 566. I disagree. An appreciation for the historical development of Michigan’s contribution statute, MCL 600.2925d; MSA 27A.2925(4), is necessary for an understanding of our disagreement with the Court of Appeals.

The common-law rule in Michigan is that a release of one or more joint tortfeasors releases the others, regardless of an express reservation of rights against another tortfeasor. McBride v Scott, 132 Mich 176; 93 NW 243 (1903); Lindsay v Acme Cement Plaster Co, 220 Mich 367; 190 NW 275 (1922); Moffit v Endtz, 232 Mich 2; 204 NW 764 (1925); MacDonald v Henry Hornblower & Weeks, 268 Mich 626; 256 NW 572 (1934). This rule is based upon the theory that there can be but one compensation for a joint wrong, and the action is *535satisfied once the injured party has been paid by any joint tortfeasors.3

The harshness of and dissatisfaction with the common-law rule has resulted in a modern trend towards various devices designed to avoid its effect.4 These devices included the use of covenants not to sue,5 uniform legislation abrogating the rule, such as the Uniform Contribution Among Tortfeasors Act,6 and state statutes,7 among other *536things.8 Generally, these devices obviate the need for the common-law rule by setting off the amount of any settlement.

In 1941, the Michigan Legislature chose to ameliorate the rigidity of the common-law rule by enacting a variation of the Uniform Contribution Among Tortfeasors Act. The statute, 1941 PA 303, § 2, 1948 CL 691.562; MSA 27.1683(2), provided:

It shall be lawful for all persons having a claim or cause of action against 2 or more joint tortfeasors to compound, settle with, and discharge, at any time prior to rendition of a judgment in said action, any and everyone or more of said joint tortfeasors for such sum as such person may deem fit, without impairing the right of such person or persons to demand and collect the balance of said claim or cause of action from the remaining joint tort-feasors, against whom such person, or persons, has such claim or cause of action, and not so released. [Emphasis added.]

Unlike the 1941 Uniform Contribution Among Tortfeasors Act, the original Michigan statute did not include the definition of "joint tortfeasor.” The use of the term "joint tortfeasor” without definition resulted in problems of interpretation. See Geib v Slater, 320 Mich 316; 31 NW2d 65 (1948), overruled on other grounds Moore v Palmer, 350 *537Mich 363; 86 NW2d 585 (1957); Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970).

In Geib, supra, 320, the issue was whether the defendant owner of an automobile driven by a negligent employee was a "joint tort-feasor” within the statute. This Court held that the statute did not apply to the liability of the automobile owner because the owner was not a "joint tort-feasor.”

While the 1955 revision of the uniform act eliminated the term "joint tortfeasor” and substituted the term "tortfeasor,” the language of the 1961 Michigan revision authorizing release of a joint tortfeasor without discharging any others remained identical to the original 1941 act.9 Later, in an effort to resolve the definitional problem, this Court in Moyses, supra, 329, defined "joint tortfeasors,” stating,

[W]here two (or more) persons owe to another the same duty and by their common neglect of that duty such other is injured, the two (or more) have committed a. joint tort and therefore are joint tortfeasors.

The Legislature expressed its dissatisfaction with the various judicial interpretations that evolved following its failure to define "joint tortfeasors” in the 1941 statute and its 1961 amendment by amending MCL 600.2925d; MSA 27A.2925(4) to totally eliminate use of the term "joint tortfeasor.” The 1974 amendment provides in pertinent part:

When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 *538or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide. [Emphasis added.]

The 1974 change in language to include "persons liable in tort” and to eliminate the term "joint tortfeasors” indicates the Legislature’s intention to apply the statute to all tortfeasors liable in tort for the same injury regardless of whether their liability was joint. To read the present statute, as amended in 1974, otherwise would render nugatory a related provision of the statute, § 2925d(b). Section 2925d(b) provides that a release or covenant not to sue "reduces the claim against the other tort-feasors to the extent of the amount stipulated by the release or the covenant . . . .” See n 1.10 Every part of a statute should be given meaning and no part should be rendered nugatory. Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980); Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971).

The 1974 amended statute, unlike its predecessor, does not limit its application to joint tortfeasors. Rather, the express language of the current statute applies to "1 of 2 or more persons liable in tort for the same injury or the same wrongful death.” Liability "in tort for the same injury” would include claims founded in vicarious liability. The defendant hospital is "1 of 2 or more . . . liable in tort for the same . . . wrongful death.” Thus, its vicarious liability falls within the statute. Other jurisdictions with statutes having language identical or similar to the 1974 amend*539ment agree.11 Accordingly, I would find the principle established in Geib, supra, prior to the 1974 amendment to be in conflict with the plain language of § 2925d, and therefore, no longer valid.

My interpretation is further supported by the recent decisions interpreting related provisions of § 2925a. See O’Dowd v General Motors Corp, 419 Mich 597; 358 NW2d 553 (1984), and Piper Aircraft Corp v Dumon, 421 Mich 445; 364 NW2d 647 (1984). In both O’Dowd and Piper, we acknowledged that the statute’s focus is on the relationship between the defendants and the injured party rather than the relationship between the defendants themselves.

More importantly, a statute must be construed in light of legislative intent. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). Clearly, the Legislature’s intention in enacting MCL 600.2925d; MSA 27A.2925(4) was to "(1) encourag[e] settlements and (2) assur[e] that a plaintiff is fully compensated for injuries sustained.” Mayhew v Berrien Co Road Comm, 414 Mich 399, 411-412; 326 NW2d 366 (1982). This policy enables a plaintiff to settle with an agent without losing his cause of action against a party liable under a theory of respondeat superior, while allowing the remaining defendant complete access to the courts for a full adjudication of his liabilities and rights to indemnification. See Knutson v Morton Foods, Inc, 603 SW2d 805 (Tex, 1980).

To allow the common-law rule to survive would deter the parties from settling because they would *540risk losing other claims necessary to obtain full compensation. Any inequities argued by the defendant are obviated by the setoff requirements imposed by related provisions of the statute. See MCL 600.2925a et seq.; MSA 27A.2925(1) et seq. I reject the hospital’s argument that enforcement of the release in these cases would encourage a circuity of action in view of its right to indemnification. MCL 600.2925a(7); MSA 27A.2925(1)(7). I believe the remedial nature of § 2925d — to encourage settlements and assure full compensation to the plaintiff for injuries — takes precedence over possible indemnity problems. The defendant to be indemnified suffers no prejudice because the settlement actually results in the reduction of its possible liability by the amount paid in settlement. See Knutson, supra. Loss of indemnification is especially not a problem in cases where the agent or employee settles for the full amount of the policy limits under his liability insurance. See Munson v United States, 380 F2d 976 (CA 6, 1967).12 Furthermore, in cases where, as here, there is a question of active negligence as well as vicarious negligence, the defendant may have no right to indemnity.13

I also disagree with the hospital’s argument that this Anew would create an atmosphere ripe for *541collusion.14 If there is any indication that a settlement involved collusion, a trial court can rely on the "good faith” requirement of § 2925d to find that the settlement was not made in good faith. To further avoid any impropriety, challenges to the good faith of the settlements should be made at the time of settlement or prior to trial.

Accordingly, under MCL 600.2925d; MSA 27A.2925(4), the release of defendants Palmer and Gilmore did not release the defendant hospital from vicarious liability for the actions of its agents or employees. I would reverse the decision of the Court of Appeals and reinstate the judgment against defendant Lansing General Hospital.

ii

Because I conclude that MCL 600.2925d; MSA 27A.2925(4) is applicable in cases of vicarious liability, I do not find it necessary to pursue the issue whether the releases, if not protected by the statute, should be reformed as covenants not to sue which discharge the hospital to effectuate the intent of the settling parties.

hi

Notwithstanding the applicability of MCL 600.2925d; MSA 27A.2925(4) to defendant hospital’s vicarious liability, the record also reflects that it would have been possible for the jury to find the hospital liable for independent acts of negligence.

While the trial court struck certain allegations of independent hospital negligence from plaintiffs’ complaint upon the hospital’s motion to direct a verdict, the trial court simultaneously allowed the *542plaintiffs to amend their complaint to conform to the proofs. The hospital concedes that the issue whether defendant hospital had been independently negligent in failing to require the use of the precordial stethoscope as standard operating procedure remained a viable issue for the jury. When testifying at trial, plaintiffs’ expert, Dr. Zsigmond, recognized, albeit in a different context, that failure to use the precordial stethoscope in this case was a "very severe major deviation from the good standard of practice.” The precordial stethoscope issue and Dr. Zsigmond’s testimony were submitted, without objection, to the jury. If there is sufficient evidence tending to support the jury’s verdict, a court cannot set it aside even if it might be in doubt as to the ultimate facts. Baldwin v Nall, 323 Mich 25, 29; 34 NW2d 539 (1948). Hence, I agree with Judge Kelly’s dissent on rehearing that when viewed in its entirety, the evidence introduced at trial regarding use of the precordial stethoscope could support the jury’s verdict.

iv

Finally, the hospital contends that a new trial would be required even if this Court held that the hospital could be vicariously liable for Palmer’s and Gilmore’s actions, as it cannot be determined from the jury’s verdict, upon which basis it found liability. Baker v Alt, 374 Mich 492, 497; 132 NW2d 614 (1965). However, the record reflects that the trial judge repeatedly recommended and encouraged the hospital to request the return of special verdicts at the close of proofs to determine upon what basis liability was found. The hospital rejected the request.

Had the hospital made the request, any confusion as to the basis upon which the jury found the *543hospital liable would have disappeared. "A party cannot sit back and after the jury decides against him claim error after he had been given the fullest opportunity to correct any alleged error at the trial.” Baldwin v Nall, supra, 31; Watson v Dax, 334 Mich 320, 330; 54 NW2d 674 (1952). Accordingly, I would find that the hospital’s failure to request special verdicts at the urging of the trial court invited impermissible error, thereby waiving its right to complain on this issue.

CONCLUSION

I would reverse the decision of the Court of Appeals and reinstate the judgment against Lansing General Hospital.

When a release or a covenant not to sue or not to enforce judgment is given in good faith to 1 of 2 or more persons liable in tort for the same injury or the same wrongful death:

(a) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide.

(b) It reduces the claim against the other tort-feasors to the extent of any amount stipulated by the release or the covenant or to the extent of the amount of the consideration paid for it, whichever amount is the greater.

(c) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.

The releases provide in pertinent part:

It is intended that this Release shall be operative as to Jana Palmer only and shall not be construed to release any other persons or entity who may be liable in tort for the same wrongful death. MCL 600.2925d; MSA 27A.2925(4).
It is intended and understood that this release shall be operative as to Jack Gilmore, D.O. only, and shall not be construed to release any other persons or entities who may be liable in tort for the alleged wrongful death of Gene Christopher Schneider, deceased, and any and all other damages alleged to result from the alleged wrongful death. MCL 600.2925d; MSA 27A.2925(4).

See 66 Am Jur 2d, Release, § 1.

See anno: Release of, or covenant not to sue, one primarily liable for tort, but expressly reserving rights against one secondarily liable, as bar to recovery against latter, 24 ALR4th 547, 551; anno: Release of one joint tortfeasor as discharging liability of others: Modern trends, 73 ALR2d 403, 407-408.

A covenant not to sue, as opposed to a release, is a collateral undertaking which indicates the parties’ specific intention not to discharge the remaining joint tortfeasors, without expressly reserving rights against the joint tortfeasors. See Robinson v Godfrey, 2 Mich 408 (1852); Morgan v Butterfield, 3 Mich 615 (1855); Cook v City Transport Corp, 272 Mich 91; 261 NW 257 (1935); Boucher v Thomsen, 328 Mich 312; 43 NW2d 866 (1950); annotations, n 4 supra; anno: Release of (or covenant not to sue) master or principal as affecting liability of servant or agent for tort, or vice versa, 92 ALR2d 533, 538.

In 1939, the National Conference of Commissioners on Uniform State Laws approved the Uniform Contribution Among Tortfeasors Act, 12 ULA 63, which provided in § 4 that a release given to one of several persons liable in tort for the same injury does not discharge any other tortfeasor unless its terms so provide. A 1955 revision of the act extended § 4 to covenants not to sue. It states, in pertinent part:

When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release of the covenant, or in the amount of the consideration paid for it, whichever is the greater . . . .”

The uniform act has been adopted in at least sixteen jurisdictions. See anno: Uniform contribution among tortfeasors act, 34 ALR2d 1107, 24 ALR4th 547, 551, 565-567, and 73 ALR2d 403, 434-435.

The Uniform Joint Obligations Act, (which preceded the Uniform Contribution Among Tortfeasors Act) and which has been adopted by *536a minority of states, provides that the release of one joint obligor, which includes a person liable in tort, shall not release all unless it contains a reservation of right to the contrary. See anno: 73 ALR2d 432, n 4 supra. See, also, anno: Federal Tort Claims Act: Judgment against or settlement with negligent employee as releasing United States, or vice versa, 42 ALR2d 960.

See n 4.

Other devices abrogating the common-law rule include the Restatement Torts, 2d, § 885(1) and (2), which provides that releases and covenants not to sue do not discharge any other tortfeasor liable for the same harm. See 24 ALR4th 547, 551, and Restatement Judgments, 2d, § 51, which provides that a settlement with an agent generally does not discharge the liability of the principal.

See 1961 PA 236, MCL 600.2925; MSA 27 A.2925. See also Duncan v Beres, 15 Mich App 318, 328, n 18; 166 NW2d 678 (1968) (opinion of Levin, J.).

See, also, Mayhew v Berrien Co Road Comm, 414 Mich 399, 410; 326 NW2d 366 (1982).

See Alaska Airlines, Inc v Sweat, 568 P2d 916 (Alas, 1977); Ritter v Technicolor Corp, 27 Cal App 3d 152; 103 Cal Rptr 686 (1972); Clark v Brooks, 377 A2d 365 (Del Super, 1977); Blackshear v Clark, 391 A2d 747 (Del, 1978); Van Cleave v Gamboni Const Co, 101 Nev 524; 706 P2d 845 (1985); Aherron v St John’s Mercy Medical Center, 713 SW2d 498 (Mo, 1986); Waters v Hedberg, 126 NH 546; 496 A2d 333 (1985).

Cf. Ritter v Technicolor Corp, nil supra.

While I would not rule on that issue today, I note that recent Court of Appeals decisions have held that a party seeking common-law indemnity must be free from any active negligence. Pontious v E W Bliss Co, 102 Mich App 718, 721; 302 NW2d 293 (1981); Hill v Sullivan Equipment Co, 86 Mich App 693, 696-697; 273 NW2d 527 (1978); Palomba v East Detroit, 112 Mich App 209, 215-216; 315 NW2d 898 (1982); Johnson v Bundy, 129 Mich App 393, 399; 342 NW2d 567 (1983); Reed v St Clair Rubber Co, 118 Mich App 1, 10; 324 NW2d 512 (1982); Skinner v D-M-E Corp, 124 Mich App 580; 335 NW2d 90 (1983); McIntyre’s Mini Computer Sales Group, Inc v Creative Synergy Corp, 644 F Supp 580 (ED Mich, 1986).

Lansing General Hospital admits in its brief that no collusion occurred in the settlements involved herein.