BATTAGLIA, J.
Two petitions for certiorari were presented for our review that pertain to contribution among joint tort-feasors
Dr. Julian, in one of the two cases now under our review, subsequently initiated a separate action against Mercy seeking contribution. The Spences contemporaneously brought suit against Dr. Julian, seeking a declaration that he was not entitled to contribution. Both Mercy and the Spences argued before the trial court and before us that under the Maryland Uniform Contribution Among Joint Tort-Feasors Act, Sections 3-1401 to 3-1409 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2006 Repl.Vol.) ("the Act"),
Under common law, the injured party, considered "lord of his action," could pursue any or all of the joint tort-feasors to recover damages. E.g., Prefatory Note, Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Forty-Ninth Annual Conference 240-41 (1939). The right of contribution among joint tortfeasors, so that one who paid the damages caused by several would be able to spread the loss among the group of tort-feasors, was prohibited. One basis for not permitting the apportionment of an award of damages among joint tort-feasors was that "the claimant for contribution [was thought to be] a `bad man' and hence not entitled to the aid of the courts." Charles O. Gregory, Contribution Among Joint Tortfeasors: A Defense, 54 Harv. L.Rev. 1170, 1170 (1941). As the injured party could have but one recovery, one joint-tort feasor could not settle without necessitating a release of the entire claim, as "a release of one joint tortfeasor releases all." Stuart M. Speiser et al., 1A The American Law of Torts § 5:42, at 577(2003); accord Gunther v. Lee, 45 Md. 60, 67 (1876) ("All the cases, both English and American, maintain the doctrine that satisfaction from one joint tort-feasor, whether received before or after recovery, extinguishes the right as against the others.").
The bar against contribution was criticized, from the viewpoint of the joint tortfeasor who had assumed total responsibility, as unfair and collusive between the injured party and another culpable person who escaped "scot free" from liability. Prosser and Keeton on the Law of Torts
Contribution provided the societal benefit of a broader distribution of loss. Ernest M. Jones, Contribution Among Tortfeasors, 11 U. Fla. L.Rev. 175, 187-88 (1958). In place of perceived unjust enrichment and favoritism towards actors who were not pursued by an injured party for recovery, the right to contribution promoted fairness under the maxim "Equality is equity." Id. at 182; Robert A. LeFlar, Contribution and Indemnity Between Tortfeasors, 81 U. Pa. L.Rev. 130, 136-37 (1932). Contribution also supplied greater certainty of liability to joint tort-feasors, who were able to determine their proportional share of the common liability based on the number of joint tort-feasors. William M. Landes & Richard A. Posner, Joint and Multiple Tortfeasors: An Economic Analysis, 9 J. Legal Stud. 517, 530-31 (1980).
In conformance with these principles, the Uniform Contribution Among Tortfeasors Act was promulgated in 1939 by the American Law Institute and the National Conference of Commissioners on Uniform Laws to enable a statutory abrogation of the common law bar on contribution, in recognition that "[t]he desire for equal or proportionate distribution of a common burden among those upon whom it rests is everywhere fundamental." Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Forty-Ninth Annual Conference, supra, at 240-41. A goal of the draft was to eradicate the common law rule providing a "private, rather than judicial, control of the distribution of loss arising from a common burden of liability," which allowed the injured person to pick and choose "one or more of several tortfeasors commonly liable to suffer judgment, even though trial would have proven them equally responsible...." Id. at 241.
In 1941, the General Assembly adopted the Maryland Uniform Contribution Among Joint Tort-feasors Act, modeled on the national paradigm. 1941 Maryland Laws, Chapter 344. Now currently codified as Sections 3-1401 to 3-1409 of the Courts & Judicial Proceedings Article, the Act defines joint tort-feasors as "two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." Section 3-1401(c). In place of "a release of one releases all" at common law, the Act provides that a release of one joint tortfeasor does not relieve the liability of other joint tort-feasors, but instead reduces the judgment against them by either the consideration paid for the release or an amount or proportion provided in the release, whichever is greater:
Section 3-1404.
Necessary to the existence of contribution under the Act is the determination of joint tort-feasor status, although the Act "does not specify the test of liability." Swigert v. Welk, 213 Md. 613, 619,
Spangler v. McQuitty, 424 Md. 527, 544-45, 36 A.3d 928, 938 (2012), quoting Jacobs v. Flynn, 131 Md.App. 342, 374-75, 749 A.2d 174, 191 (2000). Obviously, one who is not determined a joint tort-feasor is not subject to contribution under the Act; without an admission or adjudication of liability, a party who enters into a release is deemed a volunteer, not a joint tortfeasor. Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 529-30, 16 A.3d 159, 178 (2011).
Sections of the Act in play in the present case include Section 3-1402, which enables the right of contribution among joint tortfeasors and specifies that it is only when one joint tort-feasor discharges the common liability or pays more than a pro rata share of liability that the right to pursue contribution, in the form of a money judgment, accrues:
"Pro rata" anticipates equal shares that are determined by dividing the common liability by the number of joint tort-feasors. Hashmi v. Bennett, 416 Md. 707, 719 n. 13, 7 A.3d 1059, 1066 n. 13 (2010), citing Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 616, 398 A.2d 490, 511 (1979), rev'd on other grounds sub nom. General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980).
The other section of interest in this case is Section 3-1405 of the Act, which provides for the extinguishment of contribution by a released joint tort-feasor under certain conditions:
At issue before us presently is the impact of a release of one defendant, who does not admit joint tort-feasor status and has not been adjudicated as such, on the ability of another defending party to pursue contribution against the released defendant in a subsequent separate action. Specifically, Mercy was released by the Spences prior to trial in the original medical malpractice action; together the Spences and Mercy contend that their Confidential Settlement Release Agreement ("Release") extinguished Dr. Julian's right to contribution against Mercy under the Act.
The Release provided, in pertinent part, that Mercy as "Released Parties" was not a joint tort-feasor and if it were subsequently adjudicated liable, then the Spences' recovery against other defending parties, namely Dr. Julian, would be reduced by Mercy's pro rata share of the judgment, so to "relieve and protect [Mercy] from any liability for contribution to any person":
(Emphasis added). The Spences further agreed to indemnify Mercy for any and all claims of contribution asserted by Dr. Julian against Mercy and to hold in escrow one half of any judgment rendered against Dr. Julian until Dr. Julian's claim for contribution had been extinguished:
Mercy's liability was never adjudicated in the original medical malpractice action. Although Dr. Julian apparently objected,
In a Memorandum Opinion and Order Granting Mercy's Motion to Dismiss Without Prejudice, the Circuit Court Judge concluded that Mercy's Release complied with the requirements of Section 3-1405. The judge concluded that the Release limited Dr. Julian to pursuing a reduction in the original medical malpractice action, by way of "cross claim or motion," which he did not do and barred a separate contribution action against Mercy:
(Internal footnote omitted). Dr. Julian appealed.
In April 2009, upon learning that Dr. Julian was pursuing a contribution action against Mercy, the Spences filed a Complaint for Declaratory and Injunctive Relief in the Circuit Court for Baltimore City.
Both the Spences and Dr. Julian moved for summary judgment, agreeing that there was no dispute of material fact. Dr. Julian argued that upon paying more than his pro rata share of the liability, he was entitled to pursue, in a separate action, contribution from Mercy pursuant to Section 3-1402 of the Act. The Spences responded that their Release of Mercy satisfied Section 3-1405 and extinguished Dr. Julian's right to contribution. Alternatively, the Spences contended that as a result of the Release, the doctor's pursuit of contribution was limited to the original medical malpractice action and without pleading the affirmative defense of release, or pursuit of a cross-claim against Mercy, in that case, Dr. Julian effectively waived his right to contribution under the Act. Issuing a declaratory judgment in favor of Dr. Julian, a different Circuit Court Judge, Judge Evelyn O. Cannon, disagreed with the Spences, in part on the bases that his right to contribution was neither barred by Section 3-1405 nor waived by his decision not to file a cross-claim for contribution or plead release as an affirmative defense:
The Spences appealed.
Before the Court of Special Appeals, the Spences, Mercy and Dr. Julian filed a Joint Motion to Consolidate Appeals, wherein they acknowledged that the appeals of the Spences in the declaratory judgment action and Dr. Julian in the contribution action were from contradictory orders of the Circuit Court from Baltimore City involving identical issues. The Court of Special Appeals granted the joint motion and consolidated the declaratory judgment action and the contribution action to consider
201 Md.App. at 579-80, 30 A.3d at 231.
The intermediate appellate court initially addressed whether the Release satisfied the two conditions of Section 3-1405, so as to extinguish Dr. Julian's right to contribution. Observing there to be no dispute that the first condition, requiring the release to be given before Dr. Julian's right to contribution accrued, "i.e., before he ... has paid more than his ... pro rata share," 201 Md.App. at 582, 30 A.3d at 232, was satisfied, the court then looked to whether the Release provided for a reduction, representing Mercy's pro rata share, in the Spences' damages recovered against Dr. Julian, pursuant to Section 3-1405(2). The Release did not satisfy Section 3-1405(2), concluded the intermediate appellate
The Court of Special Appeals then addressed whether the determination of Mercy's liability was required to occur in the original medical malpractice action brought by the Spences, as the judge in the contribution action had expressly determined. The intermediate appellate court concluded that there was no Maryland statute, case law or rule that prohibited an independent contribution action under the circumstances of this case. Id. at 588-89, 30 A.3d at 235. Affirming the decision in the declaratory judgment action, but reversing the decision in the contribution action, the Court of Special Appeals ultimately held that Dr. Julian was not prohibited from pursuing contribution from Mercy in a separate action. Id. at 589, 30 A.3d at 236.
Before us, the issue continues to be whether and to what extent the release of one defending party, without admission of joint tort-feasor status, may negate or limit another's right to contribution under the Act. Historically, "[t]he effect of a settlement with the plaintiff by the contribution defendant, who has received a release or a covenant not to sue, has perhaps given more difficulty than any other problem." W. Page Keeton, Prosser and Keeton on the Law of Torts § 50, at 340 (5th ed.1984). Mercy and the Spences challenge Dr. Julian's pursuit of contribution, because they assert that their Release complied with Section 3-1405 of the Act and thus extinguished Mercy's contribution liability to Dr. Julian. Section 3-1405, once again, provides:
The Spences and Mercy contend that Dr. Julian's right to contribution was extinguished when the Release was given, because the following language of their Release mirrored, and consequently complied with, Section 3-1405(2):
Dr. Julian responds, as the Court of Special Appeals determined, that this language of the Release conditioned the reduction of the Spences' judgment against him on the adjudication of Mercy's liability and, because Mercy was dismissed from the original action prior to having been adjudicated as a joint tort-feasor, Mercy's liability had yet to be determined. As a result, Dr. Julian maintains that the Release's conditional language did not operate to satisfy Section 3-1405(2).
For support, the Spences, Mercy, and Dr. Julian each point to our decision in Swigert v. Welk, 213 Md. 613, 133 A.2d 428 (1957), in which we considered whether a similar release, without an admission of
213 Md. at 618, 133 A.2d at 430-31. The Superior Court for Baltimore City granted Mr. Welk's motion for summary judgment, from which Mr. Swigert appealed.
Before us, Mr. Welk (like Mercy and the Spences in the present case) contended that his release "fully complie[d]" with Section 24, and, therefore, barred Mr. Swigert from pursuing contribution. 213 Md. at 617, 133 A.2d at 430. Looking to the language of the release, this Court observed that it was given before Mr. Swigert's right to contribution accrued, and it iterated verbatim the second requirement of Section 24, regarding a reduction in damages representing Mr. Welk's pro rata share of the liability. We concluded, nonetheless, that the release "fully complies with this section, ... if Welk is a tortfeasor," (emphasis added), which was denied in the settlement release:
213 Md. at 618, 133 A.2d at 431. As a result, we reversed the grant of Mr. Welk's summary judgment in Mr. Welk's favor and remanded the case back to the trial court; Mr. Welk remained as a third party defendant to enable adjudication of his joint tort-feasor status.
Mercy and the Spences apparently interpret Swigert to stand for the proposition that a defending party who is released need not stipulate to joint tort-feasor status before its release "fully complies" with Section 24, now Section 3-1405. Dr. Julian responds that Swigert does not contradict his position that the Release's conditional language does not comply fully with Section 3-1405 to relieve Mercy's contribution liability.
We agree with Dr. Julian. In advocating that Swigert is the linchpin in our jurisprudence that a party does not have to be determined a tort-feasor to fully comply with Section 24, now Section 3-1405, Mercy and the Spences ignore the key condition of our conclusion, that being the release "fully complies with this section [24], and is also within the provisions of sec. 23, if Welk is a tortfeasor. This, however, is denied in the release." 213 Md. at 618, 133 A.2d at 431 (emphasis added). As a result of the denial of liability, we rejected Mr. Welk's argument that his release relieved him of his contribution liability, because his contribution liability was conditional. Mr. Welk, impleaded as a third party defendant, had to remain in the case as it proceeded to trial, so as to determine whether Mr. Welk was liable as a joint tort-feasor. Mercy and the Spences, therefore, neglect what we have often affirmed, that a party must have been adjudicated liable or have admitted to joint tort-feasor status for the Act, and of course, Section 3-1405,
In the absence of an adjudication that the released party is liable as a joint tort-feasor, a release has only evoked the Act, so as to extinguish contribution liability, when it has included an admission of the released defending party's joint tort-feasor status. In Jones v. Hurst, 54 Md.App. 607, 610, 459 A.2d 219, 221 (1983), the release included General Motors Corporation's stipulation to be considered as a joint tort-feasor "to the same extent and effect as if judgments had been rendered against [it] as joint tort-feasor[]." Based on this concession, the intermediate appellate court held that no subsequent trial, adjudicating the corporation's liability, was necessary; the corporation was dismissed prior to trial and a judgment against another joint tort-feasor was properly reduced by the corporation's pro rata share of the liability. Id. at 612-13, 459 A.2d at 222-23. A pro rata release that stipulates to the joint tort-feasor status of the released defendant allows the defendant to avoid going to trial and being adjudicated a joint tort-feasor.
By contrast, a release that does not address the liability of the released defending party, and conditions the reduction in the damages recoverable required under Section 3-1405(2), complies with this provision only "if [the released party] is a tortfeasor," Swigert, 213 Md. at 618, 133 A.2d at 431. In agreeing to a conditional release, the plaintiff and the released defending party agree to take a risk by having
We have had occasion to address some of these scenarios. In Spangler v. McQuitty, 424 Md. 527, 542-43, 36 A.3d 928, 937 (2012), for example, one of the defendants, a hospital, entered into a release with the plaintiff, without any admission of liability. The trial court granted the hospital's motion for summary judgment as to liability and, as a result, we determined that the hospital, as a "volunteer," was not a joint tort-feasor under the Act, so that the remaining defendant, a doctor against whom judgment was rendered following trial, was not entitled to a reduction in the judgment for the hospital's release under Section 3-1404.
In Porter Hayden Company v. Bullinger, 350 Md. 452, 713 A.2d 962 (1998), Porter Hayden Company filed a third party contribution claim against Babcock & Wilcox, who had previously settled with the plaintiff. After Babcock & Wilcox failed to file an answer to the third party complaint, Porter Hayden secured a default judgment. The trial court refused to reduce the judgment against Porter Hayden for Babcock & Wilcox's release, raising the issue of whether the default judgment established the liability of Babcock & Wilcox as a joint tortfeasor. We reversed the trial court, concluding that "[a] default judgment against a settling defendant is akin to an admission of liability" and is "sufficient to establish one a joint tortfeasor for the purposes of the application of section 3-1404 of the [Act]." Id. at 474, 719 A.2d at 972.
In Allgood v. Mueller, 307 Md. 350, 513 A.2d 915 (1986), released defendants, who had not admitted to being joint tort-feasors, were found not liable at trial. The trial court, however, reduced the plaintiffs' judgment against the remaining culpable defendant in light of the release. We vacated the reduction of the judgment on the basis that the Act did not apply because the released defendants were adjudicated not liable as joint tort-feasors. Id. at 354, 513 A.2d at 917.
The Court of Special Appeals's jurisprudence, in requiring that the released party's joint tort-feasor status be determined before a release's effect on contribution can be addressed, is in accord. In Collier v. Eagle-Picher Industries, Inc., 86 Md.App. 38, 45, 585 A.2d 256, 259-60 (1991), three of several defendants entered into a release, in which they denied joint tortfeasor status, and only one of the three, thereafter, was determined to be liable. The issue arose as to whether the nonsettling defendants were entitled to a reduction in the judgment against them for a portion of this release of one joint tortfeasor and two volunteers. The Court of Special Appeals remanded the case for further consideration as to the amount of the reduction. Id. at 64, 585 A.2d at 269. Clearly, the adjudication of the released parties' liability remained a precondition to the consideration of how the release would impact the rights of the nonsettling defendants.
C & K Lord, Inc. v. Carter, 74 Md.App. 68, 73-74, 536 A.2d 699, 701-02 (1988),
Mercy and the Spences, however, argue that "Swigert" releases have repeatedly been found to comply with Section 3-1405 and extinguish the right to contribution without a determination of joint tort-feasor status. They point first to Martinez v. Lopez, 300 Md. 91, 476 A.2d 197 (1984), a case in which we quoted our determination in Swigert that the release of Mr. Welk "fully complies with [present § 20], and is also within the provisions of [present § 19], if Welk is a tortfeasor." 300 Md. at 102, 476 A.2d at 203, quoting Swigert, 213 Md. at 618, 133 A.2d at 431. We quoted Swigert, however, solely as support for the notion that the provisions now known as Sections 3-1404 and 3-1405 are not mutually exclusive. In Martinez, the plaintiffs settled with one defendant, a hospital, prior to trial with a release that provided that the hospital would be considered a joint tort-feasor with the remaining defendant, a doctor, and that any recovery against the doctor would be reduced by the pro rata share of the released hospital. Ultimately, the jury award against the doctor was less than the amount of the hospital's settlement, and the issue arose as to whether a reduction in that judgment, to zero, was provided under Section 19 of Article 50, Maryland Code, now Section 3-1404 of the Act. We answered in the affirmative; clearly the issue of whether the language of the release established the released hospital's joint tort-feasor status was not contested. Martinez did not address, nor did it dispel, our interpretation in Swigert that a release without a determination of joint tort-feasor status will "fully compl[y]" with Section 3-1405, if the released party is a tortfeasor.
Mercy also points to two cases in which they allege that two different judges of the United States District Court for the District of Maryland determined that a conditional release, without an admission of liability, but providing a pro rata reduction of damages recoverable on a subsequent adjudication of the released party's liability, complied with Section 3-1405. In Montgomery County v. Jaffe, Raitt, Heuer & Weiss, 897 F.Supp. 233 (D.Md.1995), Montgomery County brought a professional malpractice action against a Michigan law firm, Jaffe, Raitt, Heuer & Weiss ("Jaffe Raitt"), alleging that the law firm's misstatements in an opinion letter led the County to proceed with an ultimately-unsuccessful development project. 897 F.Supp. at 235-36. The County had also filed a separate action against the developers, a limited partnership and its guarantors, but this second action was dismissed after the County and developers settled. Id. at 238. The County's release of the developers provided no admission of liability and that the release "shall serve only to reduce any recovery which may be had against the other alleged tortfeasors ... to the extent of the pro rata share recoverable by law from the releasees in accordance with the provisions of the Uniform Contribution Among Joint Tortfeasors Act of Maryland." Id. at 239. The release further conditioned this pro rata reduction on the adjudication that the developers were liability for contribution. Id. ("Any reduction effected hereby shall not be construed to affect the recovery in any suit, cause of action or claim in which the releasees shall not have been adjudged legally liable for contribution.").
Jaffe Raitt asserted as an affirmative defense a right to contribution, contending that if the developers and Jaffe Raitt were
In response to the County's argument that the developers had to be joined as parties by Jaffe Raitt before the latter could be entitled to contribution, the court also addressed whether the release satisfied Section 20 of Article 50, Maryland Code (1991),
In Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 709 (D.Md.2001), another judge of the federal district court considered whether a conditional release, which provided that the damages recoverable be reduced by the released party's pro rata share of the liability if "determined to be joint tortfeasors," satisfied Section 3-1405, so to protect the released defendants from a cross-claim for contribution. The court determined that the language satisfied Section 3-1405(2), so long as the released parties were found to be liable as joint tort-feasors: "Therefore, to the extent that the [released parties] are found to be joint tortfeasors ... [they] are protected against the claim for contribution...." Id. at 709.
Mercy's and the Spences' position that a release, providing no admission of liability and a reduction in a judgment against nonsettling defendants if the released party is a joint tort-feasor, will alone satisfy Section 3-1405 and extinguish contribution, thus, is without support. The Spences dismissed Mercy in the original action, prior to any determination of Mercy's liability as a tort-feasor. As a result, we agree with the Court of Special Appeals and conclude that in the absence of an admission of joint tort-feasor status or an adjudication of Mercy's liability, Mercy's and the Spences' conditional release did not comply with Section 3-1405 of the Act and, consequently, did not extinguish Dr. Julian's right to contribution.
Mercy and the Spences also, nevertheless, challenge Dr. Julian's ability to bring his contribution claim in a separate action. They assert that Dr. Julian was required to pursue his contribution claim
In disagreeing with Mercy and the Spences, we initially note that there is no expression in Section 3-1405, or any other provision of the Act, that a cross-claim for contribution must be asserted in the original action.
Swigert, 213 Md. at 622, 133 A.2d at 433.
Our Rules also recognize that a contribution claim may be raised in the original action:
Rule 2-614. We have had occasion to interpret the Rules in Lerman v. Heeman, 347 Md. 439, 445, 701 A.2d 426, 430 (1997), involving a contribution claim that followed a judgment of $3.3 million against two defendants, Dr. Sheldon H. Lerman and Dr. Kerry R. Heeman, of which Dr. Heeman paid $2.3 million and Dr. Lerman paid $1 million. Dr. Heeman filed a Motion for Judgment of Contribution or Recovery Over, seeking contribution for the amount that his payment of the judgment exceeded Dr. Heeman's, which the trial court granted. The Court of Special Appeals affirmed.
Before us, Dr. Lerman contended that "a right to contribution can be acquired only if it was previously asserted in a cross-claim." 347 Md. at 443, 701 A.2d at 428. We disagreed, reasoning that cross-claims are not mandatory and therefore are not prerequisites to pursuing contribution by a post-trial motion under Rule 2-614. Id. at 446, 701 A.2d at 430. We continued that Rule 2-614, as a procedural mechanism for recovering contribution, did not alter the original intent of the Act, which did not require the filing of a cross-claim
We consulted the Maryland Rules Commentary, authored by Judge Paul V. Niemeyer and Linda M. Schuett, to interpret Rule 2-614 as a "rule of convenience" that provided the defendant seeking contribution with an alternative to bringing a separate action for contribution. Id. at 445, 701 A.2d at 429-30 ("Although initiation of a separate action by defendant A against defendant B is an alternative method of proceeding, defendant A may avoid a separate lawsuit by filing a motion for judgment in the original action," quoting Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 475 (2d ed. 1992)). Accordingly, we affirmed the grant of Dr. Heeman's motion for contribution, as there is "[n]o rule or statute impos[ing] the additional requirement that a co-defendant `assert' that right in the original trial by filing a cross-claim." Id. at 446, 701 A.2d at 430.
Similarly, Rule 2-332, regarding third-party practice, provides that a defendant may, but is not required to, bring a claim against a third party:
In O'Keefe v. Baltimore Transit Company, 201 Md. 345, 94 A.2d 26 (1953), we considered whether Section III of the General Rules of Practice and Procedure, which was titled "Joinder of Parties and Claims; Third Party Practice" and included the precursor to Rule 2-332,
Before us, Mr. O'Keefe argued that the Baltimore Transit Company could not secure a settlement in a pending case and then pursue contribution in a separate action. Looking to Section III, we concluded that Baltimore Transit Company's separate action for contribution was permitted, because "[t]here is no requirement in these rules that an action for contribution must be brought in the original action and cannot be brought in an independent action." Id. at 351, 94 A.2d at 28.
Mercy argues, nevertheless, that allowing Dr. Julian to proceed in a separate action for contribution would thwart the Act's purpose of "try[ing] in one action all phases of litigation among the original and impleaded parties," Montgomery County v. Valk Mfg. Co., 317 Md. 185, 191, 562 A.2d 1246, 1249 (1989), quoting Stem v. Nello L. Teer Co., 213 Md. 132, 144, 130 A.2d 769, 775 (1957). The Act, however, was designed to subvert the common law's notion that the joint tort-feasor, against whom judgment was solely collected, was thought to be "bad man" and not entitled to pursue a fair distribution of liability among multiple culpable actors. Charles O. Gregory, Contribution Among Joint Tortfeasors: A Defense, 54 Harv. L.Rev. 1170, 1170 (1941). Clearly, the Act, as well as the Rules pertaining to the pursuit of contribution, do not mandate the filing of a cross-claim.
The possibility of joinder in one action, though facially appealing for the court and some of the parties, may not be appealing to the nonsettling defendant. Dr. Julian argues that his pursuit of contribution in a separate action was a matter of trial strategy, because if he had filed a cross-claim against Mercy, the Spences would have presented evidence as to his liability solely, leaving the jury confused and persuaded that Mercy was not liable: "The real parties
The Spences separately argue, however, that Dr. Julian waived his right to pursue contribution against Mercy in a separate action, because he failed to plead "release" as an affirmative defense, pursuant to Rule 2-323(g)(12),
Accordingly, Dr. Julian was not obligated to file an amended Answer in the original action to include release as an affirmative defense, prior to pursuing a contribution action against Mercy.
BELL, C.J., HARRELL, and McDONALD, JJ., concur and dissent.
McDONALD, J., concurring and dissenting, in which BELL, C.J., and HARRELL, J., join.
These consolidated cases arise out of conflicting rulings by two judges of the same circuit court in separate parts of what is essentially the same litigation — a head-on collision of sorts. It was up to the Court of Special Appeals — and now us — to sort out who had the right of way and, more importantly, the rules of the road for similar cases in the future.
The majority opinion does a fine job of laying out the background of this case, tracing the history of the law of contribution, describing the Maryland Uniform Contribution Among Joint Tort-Feasors Act ("UCATA"), and outlining the leading cases. It rules in favor of one side, but shies away from making the key choice that this case presents. I would be disposed to join what is a well constructed opinion, except that I cannot tell what decision we have made as to this question: What is the effect, as to a post-judgment action for contribution, of a release that provides for a pro rata reduction of the common liability for allegedly culpable parties conditioned on a subsequent determination of the joint tort-feasor status of the settling party?
At the risk of repeating what has already been well laid out, I begin by briefly summarizing my understanding of UCATA and the Court's holding in what all parties
Simply put, UCATA establishes a right of contribution among parties who are jointly and severally liable under Maryland tort law. Maryland Code, Courts & Judicial Proceedings Article ("CJ"), § 3-1402. A joint tort-feasor who pays more than a pro rata share of the common liability may collect contribution from the other joint tort-feasors. CJ § 3-1402(b).
UCATA also establishes rules for the assessment of contribution when one or more of the allegedly culpable parties settle with the plaintiff. A settling joint tortfeasor is not entitled to contribution from another joint tort-feasor unless the settlement extinguishes the liability of the other tort-feasor. CJ § 3-1402(c). A release given by a plaintiff to a settling joint tortfeasor reduces the plaintiff's claim against the other joint tort-feasors by the amount of the settlement — or by a greater amount or proportion set forth in the release. CJ § 3-1404. Finally, the settling joint tortfeasor remains liable to pay contribution to other joint tortfeasors for their payment of the common liability unless the release provided by the plaintiff provides for a reduction of the common liability to the extent of the pro rata share of the settling joint tort-feasor. CJ § 3-1405(2).
This seems straightforward enough. But, virtually by definition, settlements occur before liability is adjudicated. Whether a settling party is in fact a joint tortfeasor may be unclear and UCATA's rules on contribution require further explication, as exemplified in the Swigert case.
In Swigert, this Court held that the release given by the Plaintiff (Newport) to the Released Defendant (Welk) would not be effective to reduce the Litigating Defendant's (Swigert's) liability pursuant to the pro rata reduction under UCATA (now codified in CJ § 3-1405) until the Released Defendant (Welk) was adjudicated a tortfeasor.
If the Released Defendant in Swigert was subsequently adjudicated a tort-feasor, the Litigating Defendant's liability would accordingly be reduced pro rata under UCATA; the Released Defendant would owe nothing more to the Plaintiff (the settlement had resolved that) or to the Litigating Defendant in contribution (per CJ § 3-1405).
In either case, there would be no further recovery against the Released Defendant. The party at risk in the subsequent adjudication was the Plaintiff. If the Released Defendant was determined to be a joint tort-feasor, any judgment the Plaintiff obtained against the Litigating Defendant would be reduced; if the Released Defendant was not a joint tort-feasor, there would be no reduction.
In the present case, our opinion concludes that the contribution action may proceed, but is at best ambiguous on the consequences of that decision. Our opinion raises, but does not answer, the following questions: Does it matter, for purposes of CJ § 3-1405, whether a Released Defendant is determined to be a joint tortfeasor in a separate contribution action as opposed to the main action? Are we limiting or perhaps even overruling Swigert?
Our opinion notes, correctly I think, that a contribution claim may be brought in the original action or as a separate action. Op. at pp. 374-78, 56 A.3d at 162-65. But what does this mean with respect to a Released Defendant?
In both this case and in Swigert, the determination of the Released Defendant's status as a joint tort-feasor would occur only subsequent to the execution of the release. In Swigert, the subsequent adjudication of the Released Defendant's (Welk's) status as a joint tort-feasor would occur at some point in the main action as the Released Defendant had been impleaded by the Litigating Defendant (Swigert) as a third party defendant. Under our holding in this case, that determination will take place in a separate contribution action by the Litigating Defendant (Julian) against the Released Defendant (Mercy).
In our opinion in the present case, we say that a Plaintiff and a Released Defendant take a "risk" in having the liability of the Released Defendant adjudicated — presumably an adjudication that happens after execution of the release, or it would not be a "risk." Op. at p. 369, 56 A.3d at 159-60. But is the Released Defendant, as well as the Plaintiff, taking a "risk" in that adjudication? The same passage in our opinion suggests not — after analyzing the outcomes if the Released Defendant is adjudicated liable or not liable, at the conclusion of the same paragraph we say that the Released Defendant is not subject to recovery by either the Plaintiff or Litigating Defendants "in both scenarios." Id. Thus, it seems that we are saying that only the Plaintiff is taking a risk in submitting the Released Defendant's tort-feasor status to adjudication — presumably the risk that the Released Defendant will be adjudged a tort-feasor under UCATA, thus reducing the Plaintiff's recovery against the Litigating Defendant.
This analysis suggests that a Released Defendant in the position of Mercy in this case faces no additional liability from the adjudication of its tort-feasor status, whether that adjudication takes place in the context of a third-party or cross claim in the main action (as in Swigert) or as a claim for contribution in a separate action (as in the present case).
In urging us to choose one rule over the other the parties have conjured competing pictures of adverse consequences. Mercy projects that a ruling that Julian may recover money damages from it in the contribution action will encourage piecemeal litigation and undermine what it characterizes as UCATA's goals of encouraging settlements and judicial efficiency. Julian counters that, if the determination whether the Released Defendant is in fact a joint tort-feasor must take place in the main action, it would inevitably distort the truth-finding process and confuse the jury: the Plaintiff would have no incentive to prove the culpability of the Released Defendant while the Litigating Defendant would be placed in the untenable position of simultaneously defending its own conduct while also seeking to prove the culpability of the Released Defendant.
No doubt the parties to medical malpractice and other tort litigation will accommodate their practices to whatever rule we ultimately adopt for the effect of particular types of releases under UCATA. It is important, nonetheless, that we make whatever rule we adopt clear so that they may make that accommodation.
It is sometimes not so important what rule is adopted as that some rule is clearly adopted. For example, there is no moral imperative that directs the choice between requiring drivers to stay to the right side of the road or to stay to the left. But the choice must be clearly made. If not, even the best engineered road will experience head-on collisions.
Chief Judge BELL and Judge HARRELL join in this opinion.
Dr. Julian subsequently filed a complaint for contribution against Mercy Medical Center, Inc. and its nurses, Justine Mammeri, MSN, CNM, and Tina Call (now Safaraz), RN. A third nurse, Rachel Breman, RN. was also named a defendant in the complaint for contribution but was not served and, pursuant to Rule 2-507(b), she was dismissed for lack of jurisdiction. In our discussion we shall refer to Mercy Medical Center, Inc. and its nurses as a singular entity, "Mercy."
We also granted the Spences' Petition for Writ of Certiorari, 424 Md. 628, 37 A.3d 317 (2012) to consider the following questions:
The letter indicates that a courtesy copy was also sent to the Clerk of the Circuit Court for Baltimore City.
Swigert, 213 Md. at 618, 133 A.2d at 430 (emphasis in original removed).
Swigert, 213 Md. at 617, 133 A.2d at 430 (emphasis in original removed).
Montgomery County v. Jaffe, Raitt, Heuer & Weiss, 897 F.Supp. 233, 238 (D.Md.1995). This provision was previously codified as Section 24 of Article 50, Maryland Code (1951), and subsequently recodified as Section 3-1405 of the Courts & Judicial Proceedings Article, without substantive change.
1941 Md. Laws, Chap. 344, § 27(c). Section 27(c) was subsequently repealed by Section 1 of Chapter 399 of the Maryland Laws of 1957.
416 Md. 707, 727 n. 17, 7 A.3d 1059, 1071 n. 17.
I will use the term Litigating Defendant to denote an allegedly culpable party that does not enter into a settlement or obtain a release from the Plaintiff.
424 Md. 628, 37 A.3d 317 (2012). This is essentially the question whether a post-release adjudication of the Released Defendant's joint tort-feasor status in a contribution action has the same effect as a post-release adjudication of that status in a third party claim or cross claim — the Swigert situation.
