Gold Cross EMS, Inc. v. The Children's Hospital of Alabama
Filing
61
ORDER granting in part and denying in part Defendant The Children's Hospital of Alabama's 43 Motion for Summary Judgment. This case shall proceed to trial on all remaining claims. Signed by Judge J. Randal Hall on 1/8/2015. (jah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
GOLD CROSS EMS,
INC.,
*
*
Plaintiff,
*
*
*
v
CV
113-081
*
THE CHILDREN'S HOSPITAL OF
*
ALABAMA,
*
*
Defendant.
*
ORDER
This case comes before the Court following the settlement
of various negligence claims against both Gold Cross EMS, Inc.
("Gold Cross" or "Plaintiff")
and the Children's Hospital of
Alabama ("Children's" or "Defendant").
The underlying action
involved an accident where a two-year-old girl was paralyzed
after her stretcher tipped over during transport to Children's.
Gold Cross settled the suit and filed the instant action seeking
contribution from Children's and alleging breach of a joint
defense agreement.
The Court now considers Children's motion
for summary judgment (Doc. 43), and for the reasons stated
herein, that motion is GRANTED IN PART AND DENIED IN PART.
I.
A.
BACKGROUND
Factual Background
On March 4,
2009,
Zia'Kiera Threatts
("Threatts"),
a
two-
year-old burn victim, was transferred from Doctor's Hospital of
Augusta
to
condition.
Children's
(Doc.
25
following
the
("Compl.")
discovery
KH
12-13,
of
a
17.)
heart
While
transporting Threatts from the ambulance at Doctor's Hospital to
the plane, her stretcher tipped over and Threatts was paralyzed
from the waist down.
(Doc. 54 H 13.)
alleging
against
negligence
Gold
Two lawsuits were brought
Cross
and
Children's
by
Threatts's father and her guardian ad litem, and all claims were
eventually settled.
60.)
(Doc. 44, Ex. 12 ("Bell Dep.") at 76; Doc.
Specifically,
claims
for
$9
Gold Cross
million,1
contribution from Children's.
but
settled all underlying tort
reserved
the
right
to
seek
(Id^; Doc. 54 %24; Doc. 60.)
Sometime prior to March 4,
2009,
the date of Threatts's
transfer, Doctor's Hospital contacted Dr. Leslie Hayes2 - a
pediatric critical care specialist - to see if she would agree
to care for Threatts.
then
(Doc. 44, Ex. 1 ("Hayes Dep.") at 10-14.)
Dr.
Hayes
contacted
Laura
Demmons,
UAB's
1
Children's did not participate in the settlement, though the settlement
did extinguish its liability for the underlying tort claims.
2
transport
(Doc. 54 H 25.)
Dr. Hayes works at both University of Alabama Birmingham {"UAB") and
Children's.
(Hayes Dep. at 9-10.)
coordinator,
Ex.
2
to arrange transport.3
("Demmons Dep.")
at 21.)
(Doc.
Ms.
53,
Ex.
2; Doc. 44,
Demmons in turn contacted
Gold Cross to arrange for ambulance transport for Threatts from
Doctor's Hospital to the airport.
(Doc. 53, Ex. 2.)
After the
travel arrangements were in place, Children's sent two employees
to Augusta
nurse,
to
oversee
Threatts's
and Michael Mardis,
treatment — Suzanne
a respiratory therapist.
Ex. 2; Doc. 44, Ex. 4 ("Key Dep. I") at 19-20.)
Key,
(Doc.
a
53,
The ambulance
was driven by Gold Cross employees Alima Mims and Jacques A.
Johnson.
It
(Doc. 44, Ex. 8 ("Mims Dep.") at 39-41.)
is
undisputed
that
during
transport
Key and Mardis
remained responsible for all of Threatts's medical care.4
3
UAB and Children's "have a joint dispatch.
(Key
The transport coordinator
on duty takes requests and dispatches transports for both" hospitals.
(Demmons Dep. at 10.) According to Ms. Demmons, UAB would receive any bills
relating to the transport (for example, from Gold Cross) and would in turn
bill Children's for the services rendered.
(Id. at 32-33.)
4
According to Children's, its transport policy requires deference to
ambulance staff in transport matters, leaving only the medical care in its
control.
(Doc. 44, Ex. 14 at Ex. A ("Peterson Aff.") ("As the style of
ambulance stretcher and loading mechanisms/procedures varies with out-of-town
ambulances,
the
medical
team
shall
assist
the
local
ambulance
crew
as
c „ ,, „
directed.").)
Consistent with Children's policy, Vince Brogdon, CEO of Gold Cross,
stated that Gold Cross was responsible for securing the sled to the
stretcher, loading the stretcher, and unloading the stretcher. (Doc. 44, Ex.
7 at 39.) In fact, Alima Mims, one of the Gold Cross employees involved in
this matter, testified that he was not working under the direction of
Children's, but that "we're working up under Gold Cross, because we're not
doing any patient care, so our only job is to transport the patient" and that
they did not rely on the Children's employees to assist with pullxng the
stretcher out of the ambulance.
(Mims Dep. at 64-65.)
Gold Cross contends
that even though it was responsible for transport, senior medical staff here Ms. Key - was in control of the entire process. (See Key Dep. I at 4546.) Bolstering this view, Key stated in her deposition that she, as the
nurse, could have told Mims and Johnson to stay away and unload the stretcher
herself and that she would have expected them to heed her request, but
"[t]hat's not what we do."
(Key Dep. I at 46.)
Dep. I at 29-41.)
Threatts
at
the hospital,
retained control
into a
In fact, the Children's team took custody of
child
of
seat
the
put her on a
transport
IV and medication,
attached
to a
"sled,"5
brought with Key and Mardis on the trip.
ventilator,
and placed Threatts
both of
(Id.)
which were
The sled locked
into a stretcher, which was provided by Gold Cross.
(Id. at 31-
33.)
Following the initial medical exam, Threatts, Key, Mardis,
and the two Gold Cross employees made their trip to the airport.
(Key Dep. I at 23-25, 36.)
the ambulance with Threatts,
Key and Mardis rode in the back of
who was chemically paralyzed and
sedated, and the Gold Cross employees were in the front of the
ambulance.
(Mims Dep. at 52; Key Dep. I at 39.)
Upon their
arrival at the airport, Mims and Johnson exited the ambulance
and proceeded to remove the stretcher.
Dep. at 53-54.)
(Key Dep. I at 39; Mims
Key also exited the ambulance at this time, but
Mardis stayed inside to ensure all tubing remained connected as
the stretcher was removed.
(Key Dep. I at 39-40.)
this time that the stretcher tipped over.
It was at
(Mims Dep. at 54.)
Immediately thereafter the stretcher was uprighted, though it is
5
The sled is used to attach the child seat to an adult-sized stretcher.
(Key Dep. I at 35.)
6
According to Mims, when he and Johnson arrived at the burn unit in
Doctor's Hospital, Threatts was already strapped into the car seat, which was
attached to the sled.
(Mims Dep. at 47.) Mims and Johnson then "put the
actual board onto our stretcher and [used] our straps to further secure the
baby."
(Id.)
unclear
from the
stretcher
or
record whether all
whether
Mims
and
four
Johnson
individuals
did
so
lifted the
alone.
(Compare
Key Dep. I at 46 (suggesting that all four individuals assisted)
with Mims Dep. at 54 (claiming that Mims and Johnson uprighted
the stretcher).)
Once the stretcher was upright,
Key and Mardis
checked the functioning of all tubes and medication,
Threatts
was put onto the aircraft where she could be secured and any
injuries assessed, and then Threatts, Key, and Mardis traveled
to Birmingham.7
I at 63.)
(Doc. 44, Ex. 5 ("Key Dep. II") at 41; Key Dep.
Approximately two days after the accident, a CT scan
revealed a hematoma on Threatts's spine.
(See Hayes Dep. at 51-
52.)
Following the accident,
the two aforementioned lawsuits
were filed against Gold Cross and Children's ("the underlying
litigation").
Throughout the underlying litigation, Gold Cross
and Children's maintained separate defense strategies, but the
two did agree to share expert witnesses as co-defendants.
54 H 18; Doc.
conversation,
53, Ex.
7.)
Additionally,
(Doc.
following an oral
Children's sent Gold Cross a letter via e-mail
proposing that the two negotiate jointly with the plaintiff.
7
It is unclear from the record who was involved in putting Threatts onto
the plane. In Key's second deposition, she states that she, Mardis, and the
two Gold Cross employees lifted the stretcher from outside the airplane and
the pilots slid it up and made sure it locked into place. (Key Dep. II at
42-43.) However, Mims testified that after they uprighted the stretcher the
flight nurse (Key) told them to get out of the way. (Mims Dep. at 60, 65.)
And Johnson testified that Key and Mardis loaded the baby for transport
following the fall.
(Doc. 44, Ex. 9 ("Johnson Dep.") at 37.)
(Doc.
53,
Ex.
7.)
In that proposal,
Children's and Gold Cross
agreed not to enter pro tanto settlements or high/low agreements
with the plaintiff, and they agreed not to disclose the contents
of
the
letter.
(Id.)
With the
letter,
Children's provided a
scale that delineated the portion of any settlement Children's
would cover if the settlement exceeded $7.5 million.
formal
joint defense agreement,
writing.
(Doc.
discussions,
to
54 H 19.)
however,
A
was never reduced to
During the pendency of settlement
an e-mail was disclosed by counsel for Children's
Threatts's
counsel
that
included
the
range
options listed in the above-mentioned proposal.
38.)
(Id.)
of
settlement
(Compl. HH 35-
And although Threatts's attorney testified that the e-mail
had no impact on the valuation of his client's claim, Gold Cross
claims this breach led to a higher settlement than would have
been reached otherwise.8
B.
(Bell Dep. at 106-08.)
Procedural Background
Gold Cross filed the instant complaint in the State Court
of Richmond County, which Children's removed to this Court on
8
Gold Cross's insurer additionally said the following when asked about
the impact of the e-mail on a decision to settle:
It made a decision - well, it didn't at that point in time,
because we felt like we were in a situation that, if we did lose,
we would be on the hook for bad faith.
So we felt that the
decision at that point was to avoid the risk and avoid the risk
to our insured of an excess verdict.
(Doc. 44, Ex. 13 ("Carleton Dep.") at 59-61.)
6
May 17,
2013.
(Doc.
1.)
owes
it
In its complaint, Gold Cross alleges
that
Children's
contribution
from
the
settlement
that
Children's breached a joint defense agreement.
and
(Doc. 25
(Gold Cross Amended Complaint).)
Following
answer
and
and
(2)
Gold
Cross's
counterclaims
medical
Threatts's care.
complaint,
for
expenses
(Doc. 4.)
(1)
Children's
attorney's
written
off
partial
in its response,
summary
asks this
judgment
by
and
its
expenses
Children's
for
Children's then filed the current
motion for summary judgment on April 3,
Cross,
fees
filed
in
its
2014
(Doc. 43) .
Court to sua
favor
on
Gold
sponte grant
the
issue
of
contribution liability, finding either that (1) Children's owed
a non-delegable duty with respect to the child's transport or
(2) Mims and Johnson were solely or jointly under the control of
Children's at the time of the accident.
II.
Summary
judgment
(Doc. 53.)
SUMMARY JUDGMENT STANDARD
is
appropriate
only
if
"there
is
no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
Facts are "material" if they could affect the outcome of the
suit under the governing substantive law.
Lobby, Inc., 477 U.S. 242, 248 (1986).
facts
in the light most
Anderson v. Liberty
The Court must view the
favorable to the non-moving party,
Matsushita Elec.
587
Indus.
Co.
v.
Zenith Radio Corp.,
475 U.S.
(1986) , and must draw "all justifiable inferences in
favor."
U.S.
(11th Cir.
v.
1991)
Four Parcels of Real Prop.,
(en banc)
941 F.2d 1428,
574,
[its]
1437
(internal punctuation and citations
omitted).
The moving party has the initial
Court,
motion.
burden of showing the
by reference to materials on file,
Celotex Corp.
v.
Catrett,
the basis for the
477 U.S.
317,
323
(1986).
How to carry this burden depends on who bears the burden of
proof at trial.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993) .
When the non-movant has the burden of
proof at trial, the movant may carry the initial burden in one
of
two
ways
-
by
negating
an
essential
element
of
the
non-movant's case or by showing that there is no evidence to
prove a fact necessary to the non-movant's case.
Coats & Clark,
Inc.,
929 F.2d 604,
606-08
See Clark v.
(11th Cir.
1991)
(explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and
Celotex, 477 U.S. 317) .
Before the Court can evaluate the non-
movant's response in opposition, it must first consider whether
the movant has met its initial burden of showing that there are
no genuine issues of material fact and that it is entitled to
judgment as a matter of law.
Jones v. City of Columbus, 120
F.3d 248, 254 (11th Cir. 1997) (per curiam).
A mere conclusory
statement that the non-movant cannot meet the burden at trial is
insufficient.
Clark,
929 F.2d at 608.
If — and only if — the movant carries its initial burden,
the
non-movant
"demonstrat[ing]
that precludes
may
avoid
summary
judgment
by
that there is indeed a material issue of fact
summary
Id.
judgment."
bears the burden of proof at trial,
When
the non-movant
the non-movant must tailor
its response to the method by which the movant
initial burden.
only
carried its
If the movant presents evidence affirmatively
negating a material fact,
the non-movant
"must respond with
evidence sufficient to withstand a directed verdict motion at
trial on the material fact sought to be negated."
2 F.3d at 1116.
Fitzpatrick,
If the movant shows an absence of evidence on a
material fact, the non-movant must either show that the record
contains evidence that was "overlooked or ignored" by the movant
or
"come
withstand
forward
a
with
directed
additional
verdict
motion
alleged evidentiary deficiency."
evidence
at
trial
Id^ at 1117.
sufficient
based
to
on the
The non-movant
cannot carry its burden by relying on the pleadings or by
repeating conclusory allegations contained in the complaint.
See Morris v. Ross,
Rather,
the
663 F.2d 1032, 1033-34 (11th Cir. 1981).
non-movant
must
respond
with
affidavits
otherwise provided by Federal Rule of Civil Procedure 56.
or
as
In this action,
of
the
motion
for
the Clerk gave Plaintiff appropriate notice
summary
summary judgment rules,
judgment
and
informed
it
of
the right to file affidavits or other
materials in opposition, and the consequences of default.
46.)
Therefore,
the
the
notice
requirements
of
Wainwright, 772 F.2d 822, 825 (11th Cir. 1985)
(Doc.
Griffith
v.
(per curiam), are
satisfied.
III.
In
its
motion
for
DISCUSSION
summary
judgment,
Children's
seeks
judgment as a matter of law regarding both of Gold Cross's
claims:
(1)
contribution;
defense agreement.
and
(2)
Additionally,
breach of
the
oral
joint
and in the alternative to
denying this motion, Gold Cross asks this Court to sua sponte
find Children's liable for contribution.9
The Court addresses
each of Children's claims in turn.
A.
Contribution
Under Georgia law, claims for contribution are governed by
O.C.G.A.
§ 51-12-32:
[W]here
a
turpitude,
tortious
act
does
not
involve
moral
contribution among several trespassers may
be enforced just as if an action had been brought
against them jointly. Without the necessity of being
charged by action or judgment, the right of a joint
9
Given the rulings contained herein, the Court need not address this
position.
10
trespasser
shall
to
contribution
continue
unabated
from
and
another
shall
not
or
be
others
lost
or
prejudiced by compromise and settlement of a claim or
claims
for injury to person or property
wrongful death and release therefrom.
O.C.G.A.
liable
statute
where
based
on
does
not
settling party.
429,
the
432 (Ga.
abolish
the
a
jury
apportions
percentage
abolish
the
of
damages
fault,
right
of
this
among
App.
right
2013)
of
those
apportionment
contribution
See Zurich Am. Ins. Co. v. Heard,
Ct.
for
And although Georgia no longer allows
§ 51-12-32(a).
contribution
or
from
a
740 S.E.2d
("[I]t cannot be interpreted to
contribution
between
settling
joint
tortfeasors when there has been no apportionment of damages by a
trier of
fact.") .
apportionment
Thus,
the Court
statute notwithstanding,
recognizes
that it may,
award contribution if
warranted.
"Clearly, an action for contribution and indemnification is
an action for negligence."
Dep't of Transp. v. Montgomery Tank
Lines, Inc., 575 S.E.2d 487, 490 (Ga. 2003).
As such, Gold
Cross makes several allegations of negligence against Children's
that it believes supports contribution: (1) failing to supervise
Threatts's transport,
(2) failing to care for Threatts during
transport and after the fall, and (3) failing to disclose the
fall and its role in Threatts's paralysis.
As the Court reads
Gold Cross's complaint, it bases its claim for contribution on
11
two
overarching
theories:
(1)
vicarious
liability
and
(2)
independent acts of negligence subsequent to Threatts's fall.
i.
Vicarious Liability
An employer will be held vicariously liable for the torts
committed
by
independent
contractors
circumstances.
As
is
the negligence
liable
for
in
only
relevant to the present action,
of a
contractor:
limited
an employer
"(4)
if
the
wrongful act is the violation of a duty imposed by statute" or
"(5) if the employer retains the right to direct or control the
time and manner of executing the work or interferes and assumes
control so as to create the relation of master and servant or so
that
an
injury
interference[.]"
results
O.C.G.A.
which
§ 51-2-5.
is
traceable
to
his
With this statute as the
guide, Gold Cross asserts three theories of vicarious liability
to support its claim for contribution, each of which the Court
summarizes briefly.
First, Gold Cross avers - as Threatts did in the underlying
tort action - that Children's is a common carrier and thus owed
a non-delegable
statutory duty
to
Threatts.
See
O.C.G.A.
§ 46-9-132 ("A carrier of passengers must exercise extraordinary
diligence to protect the lives and persons of his passengers but
is not
liable
for injuries
to them after having used such
diligence."); Bricks v. Metro Ambulance Serv., Inc., 338 S.E.2d
12
438, 441 (Ga. Ct. App. 1985) (holding that an ambulance may be a
common
carrier).
Indeed,
the
parties
spend
a
considerable
portion of their briefs addressing whether Children's qualifies
as a
common carrier.
Next,
Gold
and
Johnson,
Mims
Cross
claims that the two ambulance
were
either
borrowed or
thus under the control of Children's.
joint
In Georgia,
drivers,
servants
and
the borrowed
servant doctrine is based in statutory law: "If the bailor sends
his own agents with the thing bailed,
the hirer shall not be
liable for the acts of such agents but shall only be liable
either to the bailor or to third persons for the consequences of
his
own
directions
and
for
gross
neglect."
O.C.G.A.
§ 44-12-62(b); see also Underwood v. Burt, 364 S.E.2d 100, 102
(Ga. Ct. App. 1987)
("By definition, a borrowed servant is, at
least
the
temporarily,
employer.'
actual
employee
of
the
^borrowing
For example, the borrowing employer would presumably
bear vicarious liability for the acts of the borrowed servant
precisely because those acts are performed for his benefit and
under
his
direction
and
supervision.").
Georgia
law
additionally recognizes the concept of "joint servants," where
the employees are subject to the control of multiple masters.
Merry Bros. Brick & Tile Co. v. Jackson,
171 S.E.2d 924,
926
(Ga. Ct. App. 1969) (holding that "[o] rdinarily, one is not the
servant
of
two masters,
but
the
13
courts
of
this
State
have
recognized
masters
the
and
principle
subject
to
that
the
one
may
demands
be
of
the
both
servant
two
either"
or
of
and
listing cases that say the same).
Finally, Gold Cross argues that Children's was engaged in a
joint venture with Gold Cross at the time of the incident.
Clarendon Nat'l
Ct. App. 2008)
of
vicarious
S.E.2d 153,
Ins.
Co.
v.
Johnson,
666
S.E.2d 567,
571
See
(Ga.
(recognizing joint venture as a possible theory
liability);
155
(Ga.
Ct.
Williams
App.
v.
2005)
Chick-fil-A,
Inc.,
617
("A joint venture arises
where two or more parties combine their property or labor,
or
both, in a joint undertaking for profit, with rights of mutual
control
(provided
the
arrangement
does
not
establish
a
partnership), so as to render all joint venturers liable for the
negligence of the other ....
For a joint venture to exist,
there must be not only a joint interest in the purpose of the
enterprise . . . but also an equal right, express or implied, to
direct and control the conduct of one another in the activity
causing the injury.")
(citations omitted).
Here, Gold Cross
alleges that Children's had the right to control the unloading
of the stretcher at the time of the accident and that the two
entities
were
combining
their
property
and
labor
in
an
undertaking for profit.
The Court need not decide, however, if Children's would be
vicariously liable under any of these theories, as Georgia law
14
is clear that
"a negligent employee and his vicariously liable
employer are not 'joint tortfeasors'
in the classic sense,
in
that the employer has committed no separate and distinct act of
negligence and the employee has no right of contribution against
his employer."
(Ga.
Ct.
App.
S.E.2d 226,
employer's
Gay v.
1987);
233 (Ga.
Piggly Wiggly S.,
see also PN Express,
Ct. App.
liability is
vicarious liability,
358 S.E.2d 468,
2010)
Inc. v.
("Thus,
entirely dependent
Zegel,
471
697
where a defendant
on principles
such as respondeat superior,
of
then unless
additional and independent acts of negligence over and above
those
alleged
against
the
servant
or
employee
are
alleged
against the employer, a verdict exonerating the employee also
exonerates
the
employer."
citations omitted) );
St.
(internal
quotation
Paul Fire & Marine Ins.
marks
Co.
and
v. MAG
Mut. Ins. Co., 433 S.E.2d 112, 113 (Ga. Ct. App. 1993) (quoting
with approval the proposition from Gay stated above); Flynn v.
Reaves,
218
S.E.2d
661,
663
(Ga.
Ct.
App.
1975)
("Thus,
defendant [w]hose negligence, if any, was actual, cannot seek
contribution from his co-partners, who are merely constructively
negligent.").
As detailed above, theories based on common carrier, joint
and borrowed
servant,
and
joint venture
imposing vicarious liability on an employer.
are
all
means
of
Because Gold Cross
does not allege that Children's was actively negligent in the
15
removal
either
the
owed
control
based
of
over
on
a
—
but
non-delegable
Mims
these
matter of
ii.
stretcher
and
duty
Johnson
vicarious
rather
—
asserts
in
any
liability
that
transport
claims
for
theories
must
Children's
or
retained
contribution
fail
as
a
law.
Independent Act of Negligence
Although Gold Cross does not allege that Children's was
independently negligent in the removal of the stretcher,
its
complaint does not limit its claim for contribution to vicarious
liability alone.
Children's
was
In the complaint,
subsequently negligent
Gold Cross alleges that
in failing
to properly
care for Threatts during transport, failing to disclose the fall
and its role in Threatts's paralysis,
and failing to properly
care for the child subsequent to her fall.
(Compl. H 29.)
In
support of these allegations, Gold Cross asserts that Children's
initially took the position that Threatts's paralysis was of an
unknown origin and did not disclose the fall to the child, "her
parents, her guardian ad litem, or her foster parents[.]"
(Id^
H 22.)
"was
Moreover,
Gold
Cross
alleges
that
Children's
additionally jointly and severally liable to the plaintiffs in
the Tort Action along with Gold Cross because its negligent
failure to timely disclose the incident to medical personnel at
16
its
hospital
injuries."
As
whether
a
preliminary matter,
Cross
may
litigation,
characterization
Children's,
caused
or
contributed
to
[Threatts's]
(Id. f 27.)
Gold
underlying
facility
of
the
raise
such
Gold
Cross
Children's
Gold Cross,
Court
a
seriously questions
claim.
did
Throughout
not
liability
Children's Careflight,
the
challenge
the
as
vicarious.
Alima Mims,
and
Jacques Johnson were sued in tort by April L. Logan, Threatts's
guardian ad litem, and Dwight Williams,
Threatts's father,
September 13, 2011 and June 11, 2012, respectively.
pre-trial order dated October 24,
2012
on
A revised
in the Logan matter
recognized the only liability issue - at least as it pertained
to Children's - was "[w]hether Children's is vicariously liable
for the negligent acts of the employees of Gold Cross, Alima
Mims and Jacques A. Johnson." (Doc. 44, Ex. 10 at 11 8.)
This
order was never signed by the state court judge and the parties
settled just a week later, but both Gold Cross and Children's
agree that the issues before the court in the underlying
litigation - at least as to Children's - were limited to
vicarious liability.
Gold Cross's
(Doc. 54 H 20.)
deposition of
Bell, Jr., is also telling.
Threatts's
counsel,
John C.
In that deposition, (1) Bell agreed
with Gold Cross's characterization that the "live issue"
for
trial, as it related to Children's liability, was the joint
17
control/borrowed servant
(2)
case
Bell
or
stated
have
that
any
initiated sooner
he
position
(Doc.
44,
did not
pursue
a
experts
opine
that
if
Ex.
12
medical
at
70-71);
malpractice
treatment
had
been
there might have been a different outcome in
terms of Threatts's paralysis
(Id^ at 90-91);
(3)
Bell "never
abandoned the theory that legally [he] had a legitimate argument
that either Mims and Johnson were, quote, borrowed servants and
under some indicia of control"
(Id^ at 92-93);
and
(4)
Bell
based the claim against Children's on vicarious liability and a
joint servant theory and did not have
"any experts who were
prepared to testify or testified that there was any substandard
care while at Children's"
Finally,
summary
(Id^ at 120) .
in the underlying action,
judgment
or
a
stipulation
Children's moved for
that
liability
Children's was limited to vicarious liability.10
as
to
In a hearing on
the matter, Judge Booker openly questioned why such a motion or
stipulation would be necessary when Threatts never raised a
claim of malpractice or independent negligence.
11 at 219-222.)
Threatts's
In fact,
attorney
remained silent.
when the court raised this concern,
responded
(IdJ
(Doc. 44, Ex.
"Absolutely,"
and
Gold
Cross
This review of the record demonstrates
that at no time did Gold Cross assert that Children's engaged in
10
This motion and its subsequent hearing were prior to the third revised
pretrial order, wherein the parties all agreed that Children's was subject to
only vicarious liability.
18
any
act
of
independent
negligence;
rather,
it
Children's liability was derivative in nature.
asks
this
Court
to
recognized
Now Gold Cross
allow for contribution based on allegations
that Children's was actively negligent,
when at every stage in
the underlying litigation it not only failed to object to the
characterization
of
Children's
liability
but
affirmatively
agreed with it, as in the revised pre-trial order.
Even assuming Gold Cross could assert a claim based on an
independent act of negligence, Gold Cross has failed to allege
any facts that would support a finding of independent negligence
by Children's.
A negligence claim requires the plaintiff to
show the existence of some duty, breach of that duty, causation,
and damages.
Johnson v. Am. Nat'l Red Cross, 578 S.E.2d 106,
108 (Ga. 2003).
In fact,
[o]n the issue of the fact of causation, as on other
issues
essential
to
the
cause
of
action
for
negligence, the plaintiff, in general, has the burden
of proof. The plaintiff must introduce evidence which
affords a reasonable basis for the conclusion that it
is more likely than not that the conduct of the
defendant was a cause in fact of the result.
A mere
possibility of such causation is not enough; and when
the
matter
remains
one
of
pure
speculation
or
conjecture, or the probabilities are at best evenly
balanced,
it becomes the duty of the court to grant
summary judgment for the defendant.
Likewise, it is a
well settled principle of negligence law that the
occurrence of an unfortunate event is not sufficient
to authorize an inference of negligence.
Christopher v. Donna's Country Store, 511 S.E.2d 579, 580 (Ga.
1999) (internal citations and quotation marks omitted).
19
Gold Cross,
at
the
airport
in its complaint, only claims that (1)
was
the
cause
of
a
swollen
epidural hematoma that resulted in paralysis,
not
discover
admitted
to
the
injury
Children's,
until
and
two
(3)
days
spinal
cord
and
(2) Children's did
after
Children's
the fall
took
Threatts
the
was
position
that the paralysis was of an unknown origin and did not disclose
the injury to Threatts, her guardian, her parents, or her foster
parents.
(Compl. M 20-23.)
In conclusory fashion, Gold Cross
states that Children's improperly cared for Threatts following
her fall and also failed to disclose the role of the fall in her
paralysis.
Gold Cross does not affirmatively point to any facts
supporting how Children's improperly cared for Threatts or how
the failure to timely disclose the role of the fall impacted the
paralysis.
Instead,
in
its
brief,
Gold
Cross
focuses
exclusively on the level of control exercised by Children's at
the scene of the accident.
To support that assertion,
Gold
Cross presents deposition testimony from Mims and Johnson that
the choice to take Threatts straight to Birmingham after the
fall and not go to a local trauma center was made by the
Children's nurse.11
(See Mims Dep. at 75; Johnson Dep. at 37.)
However, merely stating that Children's "negligent failure
to timely disclose the incident to medical personnel at its
11
Although Gold Cross cites these in reference to the issue of whether
Children's exercised control and is thus subject to vicarious liability, the
Court reviews this evidence as related to the issue of delayed care.
20
hospital
facility
injuries"
(Compl.
for
summary
causation,
causal
caused
1 27)
judgment
but
instead
relationship.12
or
contributed
to
[Threatts's]
is insufficient to withstand a motion
as
it
does
provides
As
to
nothing
pure
the
to
speculation
aforementioned
demonstrate
as
to
the
deposition
testimony, simply showing that Threatts was taken to Birmingham
instead of a hospital in Augusta in no way demonstrates that
Children's
thereof.
in
fact
caused
the
paralysis
or
any
aggravation
In the underlying tort action, Threatts's counsel did
not have any experts that would testify that Children's engaged
in any sort of professional or ordinary negligence or that the
time delay made any difference in Threatts's condition, and Gold
Cross does not present any contradictory facts now.13
As such,
Gold Cross has "failed to meet
[its]
burden of
pointing to specific evidence showing that [Children's] caused
12
As described above, in a motion for summary judgment, where the moving
party presents evidence that affirmatively negates a material fact, the nonmovant must respond with evidence sufficient to withstand a directed verdict.
See Fitzpatrick, 2 F.3d at 1116. Through Bell's deposition, detailed above,
Children's has demonstrated an absence of evidence relating to causation.
Thus, the burden shifts to the non-movant (1) to show that the record
contains
evidence
"overlooked or
forward with additional
verdict[.]"
Id. at 1117.
ignored"
by
Children's
or
(2)
to
"come
evidence sufficient to withstand a directed
For the reasons described herein, Gold Cross has
not met this burden.
13
Although Bell does state that he believes the time lapse in discovery
of the spinal injury made a difference (Bell Dep. at 90-91), he freely admits
that he had no expert to support that claim, and Gold Cross has presented
none in its complaint or subsequent filings. (Id^ at 120 (Bell responding in
the negative when asked if he had "any experts who were prepared to testify
or testified that there was any substandard care while at Children's).)
In
fact, Bell had a pediatric neurologist who testified that the care Threatts
received was "excellent" at Children's.
21
(Id. at 112.)
[the]
injuries."
See
Christopher,
511
S.E.2d
at
580.
These
allegations, even when taken in the light most favorable to Gold
Cross
"are merely
See id.
conclusions and are probative
of nothing."
(quoting Wilkes v. Kroger Co., 470 S.E.2d 506, 507 (Ga.
Ct. App. 1996)).
Based upon the foregoing, Gold Cross's claim
for contribution must fail as a matter of law.
B.
Joint Defense Agreement
Gold Cross next alleges that Children's breached a joint
defense agreement when it "negligently disclos[ed]
to counsel
for
discussions
[Threatts]
confidential
settlement
authority
between and among the Tort Action Defendants."
(Compl. 1 35.)
According to Gold Cross, this joint defense agreement was made
orally between Gold Cross's and Children's counsel and was
"fiduciary
in
nature,
confidence
in the other
where
each
party
placed
and promised mutually
trust
and
to cooperate,
support and defend each other with respect to any and all claims
(Id^ %34.)
by [Threatts] in the Tort Action."
contends, however,
Cross,
and even
Children's
they did not reach an agreement with Gold
if
an agreement
was
reached there were
no
damages resulting from a breach.
There is
joint
defense
scant authority in this
agreements.
Georgia
jurisdiction regarding
courts
have,
however,
recognized joint defense agreements within the framework of a
22
common
interest
communication
matter of
is
privilege,
made
by
which
separate
common interest;
(2)
further that effort; and (3)
"applies
parties
in
where
the
(1)
course
the
of
a
the communication is designed to
the privilege has not been waived.
The privilege does not require a complete unity of interests
among the participants,
and it may apply where
interests are adverse in substantial respects."
v. Green,
United
assert
McKesson Corp.
597 S.E.2d 447, 452 n.8 (Ga. Ct. App. 2004)
States
2003)).
the parties'
v.
Bergonzi,
216
F.R.D.
487,
495
(quoting
(N.D.
Cal.
Here, it is unclear whether Gold Cross is attempting to
a
breach
of
fiduciary
duty
claim
based
on
the
confidential nature of the privilege or a breach of contract
claim.
However, because Georgia courts recognize the concept in
terms of a privilege and seemingly not a contract, this Court
will do so as well.
F.
Supp.
2d
1069,
IdL; see also United States v. Stepney, 246
1079
(N.D.
Cal.
2003)
("Joint
defense
agreements are not contracts which create whatever rights the
signatories
chose,
but
are
written
notice
of
defendants'
invocation of privileges set forth in common law.").
A claim for breach of fiduciary duty requires proof of
three elements:
"(1)
the existence of a fiduciary duty;
(2)
breach of that duty; and (3) damage proximately caused by the
breach."
Bienert v. Dickerson,
23
624 S.E.2d 245,
248
(Ga. Ct.
App. 2005)
(quoting Griffin v. Fowler,
579 S.E.2d 848,
850 (Ga.
Ct. App. 2003)) .
This Court assumes,
attaches
Elec.
without deciding,
that a fiduciary duty
upon invocation of the privilege.
Corp. v. Kerr-McGee Corp.,
See Westinghouse
580 F.2d 1311,
1319 (5th Cir.
1978)14 (recognizing "[w]hen information is exchanged between codefendants and their attorneys in a criminal case,
an attorney
who is the recipient of such information breaches his fiduciary
duty if he later, in his representation of another client, is
able to use this information to the detriment of one of the co-
defendants, even though that co-defendant is not the one which
he
represented
in
the
criminal
case"
as
a
"fairly
common
situation[] where, although there is no express attorney-client
relationship,
there
exists
nevertheless
a
fiduciary
obligation"); Wilson P. Abraham Constr. Corp. v. Armco Steel
Corp., 559 F.2d 250, 253 (5th Cir. 1977)
("In such a situation,
an attorney who is the recipient of such information breaches
his fiduciary duty if he later, in his representation of another
client, is able to use this information to the detriment of one
of the
co-defendants.");
ABA Formal
Op.
95-395
("[A]
lawyer
would almost surely have a fiduciary obligation to the other
members of the [joint defense] consortium, which might well lead
"
See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
1981) (holding Fifth Circuit decisions made on or before September 30, 1981,
are binding precedent in Eleventh Circuit).
24
to his disqualification.");
see
Indian Harbor Ins.
F.R.D.
2013)
Co. , 295
(recognizing
settlement
value
or
also Maplewood Partners,
documents
options
in
550,
564,
revealing
a
joint
605-14
(S.D.
information
defense
LP
v.
Fla.
about
agreement
are
privileged even without a written joint defense agreement where
the parties assigned tasks to various attorneys consistent with
the privilege); Nat'l Med. Enter, v. Godbey, 924 S.W.2d 123, 130
(Tex.
1996)
attorney
(quoting Westinghouse for the proposition that an
would
breach
the
confidential information).15
341 F.3d 1318,
fiduciary
duty
by
revealing
But see United States v. Almeida,
1326 (11th Cir. 2003)
(holding "when each party
to a joint defense agreement is represented by his own attorney,
and when communications by one co-defendant are made to the
attorneys of other co-defendants, such communications do not get
the benefit of the attorney-client privilege in the event that
the co-defendant decides to testify on behalf of the government
in
exchange
for
a
reduced
sentence"
and
"confidential
communications made during joint defense strategy sessions are
privileged [,] [but a] duty of loyalty, however, does not exist
in this situation and it is therefore improper to conclude that
all of the attorneys in the joint defense strategy session
represent all of the participating defendants"); Travelers Cas.
15
The Court notes that
these cases almost exclusively relate to an
attorney's fiduciary duty, and neither party has addressed the issue of
whether that duty can be imputed to Children's, through agency or other legal
principles.
25
& Sur.
WL
Co. of Am. v. Highland P'Ship,
4381629,
at
*3
(S.D.
Cal.
Inc.,
Sept.
20,
No.
10-cv-2503,
2011)
(holding
2011
that
fiduciary relationships are characterized by the vulnerability
of one party and the empowerment of another).
On
a
motion
for
summary
judgment,
Children's
can
only
succeed by either negating an essential element of Gold Cross's
case
or
by
showing
there
necessary to the case.
arguments:
is no
evidence
In its motion,
to
prove
a
fact
Children's makes two
(1) no such agreement existed between Gold Cross and
Children's and (2)
even if the agreement exists,
there was not a
breach.
Addressing whether the privilege or any agreement existed,
Children's asserts that
(1)
its common interest was limited to
resolving the matter with the smallest monetary contribution
possible and (2) Gold Cross has failed to present any evidence
that a joint defense agreement was in place.
However,
it is
well established under Georgia law that the existence of an oral
agreement
is
a
question
of
fact
for
the
jury.
Turner
Broadcasting Sys., Inc. v. McDavid, 693 S.E.2d 873, 877-78 (Ga.
Ct. App. 2010).
Children's conclusory assertions that (1) no
such agreement existed and (2) the common interest, if any, was
extremely limited are insufficient to warrant summary judgment
on
this critical
issue of fact.
Children's also
attempts
to
satisfy its burden by pointing to Gold Cross's alleged failure
26
to present evidence in support of the existence of an agreement.
However,
in
light
of
the
e-mail
correspondence
between
the
parties regarding the settlement proposal - which references an
undescribed,
prior conversation - and Gold Cross's claim that
the agreement was oral, fiduciary in nature, and based in mutual
cooperation and defense, the Court disagrees.
As demonstrated
by the McKesson case, whether the common interest privilege has
even been invoked is a fact-intensive inquiry dependent on the
content of the communication and whether an agreement was made
in furtherance of a common interest.
McKesson Corp., 597 S.E.2d
at 452 n.8; Cochran v. Five Points Temporaries, LLC, No: 2:10-
cv-3522,
2012 WL 4726285,
*6-ll
(N.D.
Ala.
Sept.
27,
2012)
(analyzing a written joint defense agreement that detailed the
privilege,
sharing
of
the
confidentiality
documents
with
of
communications,
outside
parties,
but
and
the
ultimately
holding that the plaintiff failed to show that confidential
information
was
exchanged
during
the
agreement).
Thus,
a
question of fact remains as to whether the privilege was fully
invoked and, if so, the scope of that privilege.
Children's has similarly not presented sufficient evidence
to negate the third element of breach of fiduciary duty: damage
proximately caused by the breach.
Children's provides the
testimony of John Bell and Jay Carleton to support its claim
that Gold Cross was not harmed by any breach.
27
Bell testified
that
the
disclosure
valuation
of
the
representative
of
case
of
the
e-mail
(Bell
Gold
had nothing
Dep.
at
Cross's
106-08)
insurer,
to
do
with his
and
Carleton,
stated
that
a
the
settlement decision was driven by a desire to avoid a potential
bad faith claim from the insured (Carleton Dep.
Court
does
matter of
not
law.
find
this
sufficient
to
at 59-61) .
warrant
A review of Carleton's testimony,
judgment
The
as
a
for example,
reveals that the e-mail, while it did not impact the decision to
settle,
did have some impact on the value of that settlement.
(Carleton Dep. at 59 ("Once the E-mail trail went through and
Bell
discovered
that
there
were
probably
additional
funds
remaining to resolve the case,
we felt that we were
situation there that,
the plaintiff was aware that
you know,
there was additional money to settle the case.").)
in a
In fact,
Georgia law recognizes a claim for bad faith against an insurer
that fails to pay the policy limit to settle catastrophic injury
cases.
See S. Gen. Ins. Co. v. Holt, 416 S.E.2d 274, 276 (Ga.
1992) (holding that where the evidence showed that liability for
an accident was clear and damages exceeded the policy limits, a
question of fact existed as to whether an insurance company
acted in bad faith by refusing to settle) .
inferences in Gold Cross's favor,
Thus, drawing all
the Court cannot hold as a
matter of law that the breach did not result in damages to Gold
Cross.
28
Accordingly,
genuine
issues
of
the privilege was ever invoked and,
exist,
fact
remain as
to whether
assuming an agreement does
whether breach of that agreement proximately caused Gold
Cross's damages.
Thus, summary judgment in Defendant's favor is
improper at this juncture.
IV.
For
the
reasons
set
CONCLUSION
forth
above,
Defendant
Children's
Hospital of Alabama's motion for summary judgment (Doc. 43) is
GRANTED IN PART AND DENIED IN PART.
This case shall proceed to
trial on all remaining claims.
ORDER
January,
ENTERED
at
Augusta,
Georgia,
this
2015.
HONORA&LE^T.
RANDAL HALL
UNITED/ STATES DISTRICT JUDGE
50UTH2RN DISTRICT OF GEORGIA
29
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