Western Insurance Co. v. Brochner

TURSI, Judge,

dissenting.

I respectfully dissent.

In the underlying personal injury action against Dr. Brochner and the hospital, the patient sought recovery for damages sustained from the performance of unnecessary surgery. Dr. Brochner was sued for medical malpractice. The hospital was sued for failure to provide adequate procedures to insure that unnecessary surgery is not performed, and failure to maintain and enforce staff standards prescribed by its own rules.

*1219After trial had commenced, the hospital, and then Dr. Broehner, independently negotiated and executed settlement and release agreements. Without admitting liability, the hospital settled for $150,000, which was paid by its insurance company. Although the record is not clear, it appears that Dr. Broehner settled, also without admitting liability, but at a substantially lesser amount.

Here, there is no contract of indemnity between Dr. Broehner and the hospital. There is no evidence of an indemnity provision in the hospital’s by-laws or in the rules and regulations. Further, the trial court found there was no evidence establishing that Dr. Broehner was shown a copy of the by-laws.

Dr. Broehner and the hospital are ostensibly joint tortfeasors, each breaching independent duties owed to the patient. See Moon v. Mercy Hospital, 150 Colo. 430, 373 P.2d 944 (1962). The majority, relying on the doctrine set forth in Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977) and Bradford v. Bendix-Westinghouse Automotive Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973), concludes that Dr. Broehner was under a preexisting duty to hold the hospital harmless from liability for injuries he might cause, and since he was primarily responsible for the patient’s damages, he must bear the burden of total responsibility. I disagree.

The majority oversimplifies the claim against the hospital as negligent supervision. Rather, the patient’s pleadings alleged active negligence on the part of the hospital. Here, the trial court found the testimony in the personal injury suit to indicate that both Dr. Broehner and the hospital had breached independent legal duties owed to the patient. See W. Prosser, Torts § 51 (4th ed. 1971).

Each breach was a contributing cause of the patient’s injuries, and each breach can sustain liability for the total damages suffered. Because of the hospital’s omission in the performance of its duties, as alleged by the patient, it was foreseeable that the injury complained of could happen. In fact, had the hospital performed its duty, the injury might well have been avoided. Thus, patient’s claim was one of concurrent negligence. Under this factual situation, where there is common liability, resulting from active negligence, the primary and secondary liability distinction is inappropriate. See National Farmers Union Property & Casualty Co. v. Frackelton, 662 P.2d 1056 (Colo.1983).

At common law, indemnity was limited to situations in which there is either an express contract for indemnity, or in which liability is imputed to a person who is not at fault. See W. Prosser, supra and Highway Construction Co. v. Moses, 483 F.2d 812 (8th Cir.1973). Contribution between joint tortfeasors was prohibited. See Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960).

In order to circumvent the common law rule prohibiting contribution among joint-tortfeasors, courts extended indemnity to permit a tortfeasor, whose negligence was vicarious or passive, to shift total responsibility to the joint tortfeasor whose negligence actively caused the injury. Ringsby, supra. This overextension of the right to indemnity was motivated by the harshness of the no-contribution rule. Laugesen, Colorado’s Contribution Among Tortfeasor’s Act, 6 Colo.Law. 1485 (1977). Therefore, indemnification under Ringsby could, and often did, result in unjust windfalls to indemnitee tortfeasors.

The justification of the Ringsby doctrine was vitiated with the adoption of the Uniform Contribution Among Tortfeasors Act, § 13-50.5-101 et seq., C.R.S.1973 (1982 Cum.Supp.) (Act), which permits apportionment of liability among joint tortfeasors. See § 13-50.5-102(1), C.R.S.1973 (1982 Cum.Supp.). The all-or-nothing remedy in Ringsby is no longer necessary as the Act permits equitable allocation of responsibility based upon relative fault. Restatement (Second) of Torts § 886B comment f. See Laugesen, supra. Since the underlying rationale for the development of the active-passive negligence doctrine as set forth in Ringsby no longer exists, there is no just *1220reason for its perpetuation. Therefore, indemnity should be limited to traditional indemnification situations. Hamm v. Thompson, supra. See Uniform Contribution Among Tortfeasors Act § 1 comment (f), 12 U.L.A. 66 (1975).

I conclude that the factual situation here properly falls within the law of contribution, and not indemnity. Since the plaintiffs did not seek contribution, I would reverse the trial court’s judgment and remand the matter for dismissal of plaintiffs’ complaint.