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