McCORMACK, J.
Kathryn Podraza and her husband, Terrance Podraza, brought suit against New Century Physicians of Nebraska, LLC (New Century), to recover for injuries allegedly sustained after New Century's
On December 11, 2005, Kathryn visited the emergency room at Lakeside Hospital, complaining of severe abdominal pain. According to Kathryn, she told the emergency room physician that the pain radiated through her entire abdominal area. A noncontrast CT scan performed during her visit was considered generally "unremarkable," but a report on the scan indicated calcification in the region of the appendix, which could be "highly suspicious" if "the patient hurts in the region of the appendix or is symptomatic for appendicitis."
Kathryn was discharged without a clear diagnosis and told to return if her condition worsened. On December 15, 2005, she returned to the emergency room, reporting severe abdominal pain, vomiting, diarrhea, and small amounts of blood in the urine. A different attending physician diagnosed her with cystitis and gastritis, and she was again sent home.
Kathryn's condition continued to deteriorate, and she reported to the emergency room for a final time on December 20, 2005. She was diagnosed with a ruptured appendix and admitted to the hospital for surgery. Kathryn experienced a lengthy recovery, and she alleges that the delay in her diagnosis caused unnecessary pain and suffering, medical bills, lost income, scarring and disfigurement, loss of bodily function, and other damages. Terrance alleges loss of consortium.
Shortly after Kathryn's recovery, the Podrazas entered into discussions with Alegent concerning compensation for her injuries. The Podrazas stated they were surprised to learn at that time that the emergency room physicians at Lakeside Hospital were not employed by Alegent, but were provided through an independent contractor agreement with Premier Health Care Services, Inc. (Premier Health), the parent company of New Century.
Alegent contracted for Premier Health to provide qualified physicians to work at Alegent's hospital departments of emergency medicine and Alegent's express care locations and to provide medical directors responsible for coordinating and overseeing the quality, availability, safety, and appropriateness of those physicians' services. Under the agreement, the physicians were directed to work alongside Alegent's nonphysician personnel, including nurses and technical and paramedical personnel. Dr. Jeff Snyder, the regional medical director for Premier Health, explained that New Century physicians working at the Alegent-owned emergency rooms and urgent care centers were "seamlessly integrated into the Alegent healthcare system" and that "[b]y all outward appearances Premier Health and New Century physicians are Alegent physicians, right down to the employee identification tags provided by Alegent." Alegent was responsible for providing the equipment, supplies, and ordinary utilities and services.
The agreement between Alegent and Premier Health provided that none of its provisions were intended to create any relationship between the parties other
Neither Premier Health nor New Century participated in the settlement negotiations between the Podrazas and Alegent, and it is unclear whether they were aware the negotiations were taking place. While disclaiming liability for what it considered a "doubtful and disputed claim," Alegent agreed to forgive the Podrazas' copay liability for their hospital bills, which totaled $1,765.33, and to pay an additional $11,234.67 in cash, for a total settlement of $13,000.
The release signed by the Podrazas and Alegent stated in pertinent part that in consideration for $13,000, the Podrazas agreed to "release, acquit and forever discharge the said
The "Released Parties" were defined as "Alegent Health and/or Alegent Health-Lakeside Hospital, any person employed by or entity owned by or affiliated with Alegent Health, any subsidiary or affiliated corporation, their directors, officers or others on their behalf." Premier Health and New Century were not specifically named. They were not signatories to the release agreement and did not contribute to the settlement payment.
The release recited that it contained the entire agreement between the parties and that there were "no agreements or understandings between the parties hereto, other than those expressed or referred to herein." The Podrazas also affirmed, through the agreement, that they had read the release and understood its contents. The Podrazas were not represented by an attorney.
After their settlement with Alegent, the Podrazas began discussions with representatives of the two emergency room physicians and New Century. No agreement could be reached, and the Podrazas brought this suit. New Century initially answered with only a general denial of any negligence on the part of its physicians and a denial of proximate causation and the nature and extent of the Podrazas' injuries. But several months later, New Century was allowed to amend its answer to plead accord and satisfaction based upon the release agreement with Alegent. It then moved for summary judgment based upon that release.
The Podrazas responded by presenting deposition and affidavit testimony that the parties to the release agreement did not intend for the agreed-upon amount to fully compensate them for their loss, nor did they intend for the agreement to release New Century. Rather, the Podrazas testified
The parties stipulated that Lakeside Hospital would submit evidence rebutting any claim that Alegent had made representations to the Podrazas regarding their ability to pursue New Century after the release. The trial court concluded there was an issue of fact as to the parties' actual intent concerning who was released by the agreement. But the issue was whether the parties' actual intent could be considered at all, because New Century claimed that the parol evidence rule barred consideration of anything other than the plain terms of the written agreement.
The trial court initially denied New Century's motion for summary judgment, concluding that regardless of the language of the written release, parol evidence was admissible to ascertain the parties' intent as concerned persons or entities not parties to the agreement. The trial judge issuing this determination retired, and New Century filed a renewed motion for summary judgment and/or motion to reconsider before a different district court judge. The Podrazas, in turn, moved for partial summary judgment, alleging that the terms of the release unambiguously excluded New Century because it was undisputed that New Century was not an "affiliate" of Alegent.
The new trial judge denied both New Century's renewed motion for summary judgment and the Podrazas' motion for partial summary judgment. The court concluded that New Century was "`affiliated with'" Alegent, but determined that parol evidence could nevertheless be considered to show whether the parties actually intended New Century to benefit from the release.
After New Century filed a motion for clarification, the trial court reversed its determination as to the applicability of the parol evidence rule and found that summary judgment in favor of New Century should be granted. The court reasoned that New Century should be considered a party to the agreement and that, thus, the Podrazas could not vary the written terms of the release. The Podrazas appealed the trial court's judgment, and New Century cross-appealed.
The Podrazas assert that the trial court erred in (1) granting summary judgment on the basis that the release barred the Podrazas' action against New Century, (2) receiving into evidence on the matter of summary judgment Snyder's affidavit and its attachments, (3) denying the Podrazas' motion for partial summary judgment on the matter of the release, and (4) ordering that the Podrazas were not entitled to discovery of all e-mail communications between New Century's attorneys and its expert witness.
In its cross-appeal, New Century asserts that the trial court erred in admitting the Podrazas' affidavits insofar as they sought to vary the terms of the written agreement.
In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable
The applicability of the parol evidence rule is a matter of law, for which we have an obligation to reach a conclusion independent of the lower court's decision.
Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion.
On its face, the agreement between Alegent and the Podrazas purports to release the "Released Parties" and "all others directly or indirectly liable or claimed to be liable, if any, from any and all claims and demands, actions and causes of action, damages, [and] claims for injuries." The "Released Parties" were defined as "Alegent Health and/or Alegent Health-Lakeside Hospital, any person employed by or entity owned by or affiliated with Alegent Health, any subsidiary or affiliated corporation, their directors, officers or others on their behalf." The parties dispute whether New Century is "affiliated with" Alegent. But the threshold question is whether the Podrazas' intent must be construed solely from the four corners of this agreement.
The parol evidence rule states that if negotiations between the parties result in an integrated agreement which is reduced to writing, then, in the absence of fraud, mistake, or ambiguity, the written agreement is the only competent evidence of the contract between them.
Different rules apply, however, when it is not a contracting party who seeks to rely on the legal presumption that the writing is a complete integration. We have held that the parol evidence rule cannot be invoked by a stranger to the agreement to prevent a party to the writing from adducing extraneous evidence as to its terms, even if that evidence varies or contradicts the written agreement.
New Century effectively asserts that because it is encompassed by the plain language of the agreement, it is not a stranger to it. Instead, it claims under the agreement to be a third-party beneficiary, and thus evokes the parol evidence
Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit.
More particular rules have emerged for persons claiming to be third-party beneficiaries to release agreements.
In Scheideler v. Elias,
Our holding in Scheideler was limited to the discharge of successive tort-feasors, and we have not squarely addressed these releases under current joint tort-feasor liability. But we have consistently looked to
That joint and several liability for noneconomic damages has since been abrogated
Other courts have relied on this language, derived from the Uniform Contribution Among Tortfeasors Act,
But many courts, under the same statutory language, have adopted a less stringent intent rule for interpreting releases as to nonparty tort-feasors. Under the intent rule, general releases which fail to specifically designate who is discharged either by name or by some other specific identifying terminology are inherently ambiguous, and the actual intent of the parties will govern.
We view the intent rule as consistent with our case law governing third-party beneficiaries and the release of nonparty joint tort-feasors as discussed above, and we hereby adopt it. We also adopt a rebuttable presumption that a release benefits only those specifically designated and that in accordance with general principles for third-party beneficiaries, it is the unnamed
Accordingly, the broad description of "Released Parties" in the agreement between the Podrazas and Alegent is not conclusive of whether those parties actually intended to confer a benefit upon New Century. The question next becomes whether the definition of "Released Parties" in the agreement, as including entities "affiliated with" Alegent, is a sufficiently specific designation such that inquiry into the parties' actual intent is no longer warranted by the intent rule.
Under the intent rule, actual intent governs as to everyone except those discharged by name "`or by some other specific identifying terminology.'"
The relevant language of the agreement defines the "Released Parties" as "Alegent Health and/or Alegent Health-Lakeside Hospital, any person employed by or entity owned by or affiliated with Alegent Health, any subsidiary or affiliated corporation, their directors, officers or others on their behalf." The parties dedicate most of their briefs to their opposite conclusions as to what "affiliated with" means. The Podrazas view the phrase narrowly to include only those entities either owned by or controlled by Alegent, and not independent contractors bound only by contract to perform in a designated manner. New Century states that while the Podrazas might be correct for "affiliate" as a noun, as an adjective, "affiliated with" broadly includes any form of close association or allegiance.
Suffice it to say that under the circumstances presented here, "affiliated with" does not satisfy the level of specificity required for a third-party beneficiary to be able to rely solely on the four corners of the agreement. Even if we were to accept New Century's definition, it presents too broad a category for a stranger to be able to easily identify to whom it refers. Moreover, to determine whether any given entity falls under this definition, an intricate knowledge of all contracting entities and their relationship with New Century would be necessary. This likewise does not make those persons readily identifiable.
Certainly, the Podrazas stated that they did not suspect New Century was in any way being described in the release. In light of the language of the release, the fact that New Century did not participate in the settlement, and the alleged assurances by Alegent that the Podrazas could
We accordingly find no merit to New Century's cross-appeal. Nor do we find merit to the Podrazas' argument that we may conclude as a matter of law that New Century was not an intended beneficiary of the release. We find no need to determine the Podrazas' second assignment of error concerning conclusions in Snyder's affidavit that New Century may be deemed "affiliated with" Alegent, as that question is inextricably tied to the trier of fact's determination of the parties' actual intent to benefit New Century. We will, however, next address the Podrazas' assignment of error concerning certain paralegal-expert witness e-mail correspondence, because, if the trier of fact finds New Century was not intended to be released by the agreement, this discovery question will remain an issue on remand.
The Podrazas' fourth assignment of error relates to their efforts, during discovery, to obtain correspondence between New Century's attorneys and its expert witness. New Century objected to the request, but the parties eventually reached an out-of-court understanding as to most matters. In particular, with regard to proposed expert witness Dr. Edward Mlinek, New Century had produced everything agreed upon, but the parties could not agree whether certain e-mail correspondence from the paralegal for New Century's attorneys to Mlinek was discoverable. The correspondence contained discussions about whether Mlinek could recommend a radiologist for New Century to employ in order to obtain a second opinion as to the interpretation of Kathryn's CT scan.
The Podrazas became aware of this specific correspondence because New Century inadvertently sent it to them, and New Century sought a protection order for the correspondence, claiming it contained privileged work product. The Podrazas argued that the correspondence was not privileged and that it was relevant to show Mlinek's bias, because the paralegal stated in the e-mail: "You [Mlinek] suggested we should have a radiologist interpret the CT scan and hopefully confirm that there is no calcification within the appendix." The Podrazas argued that the word "hopefully" indicated Mlinek's biased interest in seeing a certain outcome from the radiologist's report. The trial court granted New Century's motion for a protective order on the basis that the e-mail contained inadvertently disclosed work product, and the Podrazas were prohibited from using or further disclosing the correspondence and were ordered to destroy all copies.
Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion.
Neb. Ct. R. Disc. § 6-326(b)(3) describes the circumstances under which a party may obtain work product. It states in part:
Subsection (b)(4), in turn, specifically relates to expert witnesses:
(Emphasis supplied.)
The e-mails contain private discussions between the paralegal for New Century's
There is no such substantial need to use at trial for impeachment purposes someone else's characterization that the retained expert had indicated that an unbiased radiologist would "hopefully" have a favorable reading of the CT scan. This is not a case, such as those relied upon by the Podrazas, where the Podrazas are seeking information necessary to understand the basis for the expert's opinion. Indeed, the correspondence in question relates more to administrative matters within the attorneys' office than to the formation and basis of any expert's testimony. Nor do we find merit to the Podrazas' contention that the inadvertent disclosure waived the protections afforded by the discovery rules. The trial court did not abuse its discretion in granting a protection order in favor of New Century for the e-mail communications.
We reverse the trial court's order of summary judgment in favor of New Century, but affirm its grant of a protection order for e-mail correspondence between New Century's attorneys' office and its expert witness. We affirm the trial court's denial of the Podrazas' partial motion for summary judgment.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED.
