Morgan v. Cohen

RODOWSKY, Judge,

dissenting.

I join in the well reasoned analysis presented in Parts I, II, and III of the Court’s opinion. I respectfully dissent from Part IV, however, because it is a non sequitur. In my view the petitioners have released their claims against the respondent.

As the Court recognizes in Parts I—III an original tortfeasor is not only liable for damages for the bodily harm initially caused solely by that tortfeasor’s breach of duty, but, if there is negligent medical treatment, the original tortfeasor is also liable with the health care provider for *322damages for any aggravation or exacerbation of that bodily harm. For example, if both tortfeasors were sued in one action and the jury valued the bodily harm caused exclusively by the initial tort at $10,000 and valued the aggravation of that harm by medical treatment at $20,000, the original tortfeasor would be liable for $30,000 damages and the physician would be jointly and severally liable for $20,000 of that amount. Judgment would be entered against the original tortfeasor and the physician, jointly and severally, for $20,000, and against the original tortfeasor alone for $10,-000.

Here the claims against the original tortfeasors and against the physician were asserted one after the other. That does not change the applicable law. It remains a matter of law that the wrong of the original tortfeasor is a proximate cause of the aggravation of the bodily harm also caused by the treating physician.

The heart of the majority’s analysis in Part IV, where the subject releases are said to be ambiguous, rests on the words, “resulting from” and “in consequence of,” as applied to the accidents specified in the respective releases. The majority says:

But a contrary reading is permissible. What are released are claims for injuries “resulting from” or “sustained ... in consequence of” specific accidents caused by specific original tortfeasors on a particular date. The damages claimed [against the physician] by Morgan and Hovermill were not so caused.

And further:

In short, it is arguable that what followed from Dr. Cohen’s treatment was the result or consequence of that treatment, and not of the original accidents.

Remarkably, the majority has managed to deny in Part IV what it took pains to affirm in Parts I—III, namely, that the law views the negligence of the original tortfeasor as concurring with any negligence of the physician in producing the enhanced injury. Consequently, a release of “all *323other persons ... from ... all ... damages ... on account of ... bodily ... injuries ... resulting ... from,” or “in consequence of,” the motor vehicle accident is a release of the allegedly negligent physician because the damages for which the physician might be liable would be concurrently caused by the motor vehicle accident.

The majority’s result-reaching has unfortunate effects on Maryland contract law. Consider the parol evidence rule ramifications of today’s holding. These written contracts of release are the product of arms length bargaining. Morgan and Hovermill were each represented by counsel (who were other than their present appellate counsel). Hovermill was paid $49,000 for her release and Morgan was paid $20,000 for her release. The subject matter of the bargaining was tort claims. The words of causation used to limit the scope of the releases necessarily have the same meaning as proximate causation has in the law of torts. Indeed, Morgan, whose release contains an express integration clause, did not even present an ambiguity issue in her brief.

The majority cites Kasten Construction Co. v. Rod Enterprises, 268 Md. 318, 301 A.2d 12 (1973) to support its statement that “[pjhrases like ‘in consequence of’ and ‘resulting from’ are not technical legal terms; they should be read in their ordinary and literal sense.” The squabble in Kasten concerned the extent of the obligations assumed by the purchaser of a partially completed real estate development under a written contract with the selling original developer. The contract called for assignment to the purchaser of an escrow fund to be used “for completion of all paving.” The trial court in Kasten, based on evidence of pre-contract conversations and correspondence, concluded that the quoted words were ambiguous. This Court reversed, ruling that there was no ambiguity. Kasten involved a fluid fact situation that was unique to the contracting parties, particularly as to the state of completion of various phases of the real estate development. If parol evidence was excluded in Kasten, a fortiori it should be excluded here. The subject matter of the instant releases is *324legal claims and the causation language of the releases has a definite meaning in law. See Parts I—III of the majority opinion.

Parties who make written contracts using language which carries a recognized legal meaning in the context of the subject matter and of their legal relationship have a right to expect that courts will honor that objective legal meaning. Yet, the majority remands these cases for further proceedings which presumably may include evidence on the meaning of “resulting from” and “in consequence of.” Can anyone seriously think that there were prior or contemporaneous parol discussions about the meaning of those words in these particular releases? What the majority really has sanctioned are excursions into subjective intent and individual assumptions.

I would have affirmed the circuit court judgments. Chief Judge MURPHY and Judge McAULIFFE have authorized me to state that they join in this dissenting opinion.