           Case: 15-14369   Date Filed: 04/27/2016     Page: 1 of 6


                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14369
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:13-cv-00081-JRH-BKE



GOLD CROSS EMS, INC.,

                                                     Plaintiff-Counter Defendant-
                                                                       Appellant,


                                  versus

THE CHILDREN’S HOSPITAL OF ALABAMA,

                                                 Defendant-Counter Claimant-
                                                                   Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                             (April 27, 2016)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and ANDERSON, Circuit
Judges.
              Case: 15-14369     Date Filed: 04/27/2016   Page: 2 of 6




PER CURIAM:

      Gold Cross EMS, Inc. appeals from the district court’s grant of summary

judgment to the Children’s Hospital of Alabama in Gold Cross’s action for

contribution. Their dispute arises out of an accident that occurred during the

ambulatory transportation of a two-year-old patient. Children’s Hospital hired

Gold Cross to transport the patient and Children’s Hospital’s “critical care team,”

which consisted of a nurse and a therapist, to an airport in Georgia. Two Gold

Cross employees drove the ambulance, which was owned by Gold Cross, while the

patient, nurse, and therapist rode in the back. When they arrived at the airport, the

Gold Cross employees began removing the patient from the ambulance. During

that process, the stretcher to which the patient was bound tipped over onto the

tarmac. It was later discovered that the girl had been paralyzed.

      The patient’s father and a guardian ad litem sued Gold Cross and Children’s

Hospital jointly. (They also sued the Gold Cross employees, who were later

dismissed.) Gold Cross ultimately settled the claims against it and Children’s

Hospital for $9 million. In its settlement agreement, Gold Cross expressly

reserved the right to pursue a contribution claim against Children’s Hospital.

Exercising that right, Gold Cross filed a complaint in Georgia state court seeking




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contribution from Children’s Hospital under Georgia law. 1 Children’s Hospital

removed the case to federal court and later moved for summary judgment on the

contribution claim. Gold Cross cross-moved for summary judgment and, in the

alternative, requested that the court certify the contribution question to the Georgia

Supreme Court. The district court denied Gold Cross’ request to certify the

question and granted summary judgment to Children’s Hospital. See Gold Cross

EMS, Inc. v. Children’s Hosp. of Ala., 79 F. Supp. 3d 1316 (S.D. Ga. 2015). Gold

Cross then moved for reconsideration, which the district court denied. See Gold

Cross EMS, Inc. v. Children’s Hosp. of Ala., 108 F. Supp. 3d 1376 (S.D. Ga.

2015).

       Georgia law recognizes “the right of contribution between settling joint

tortfeasors when there has been no apportionment of damages by a trier of fact.”

Zurich Am. Ins. Co. v. Heard, 740 S.E.2d 429, 432 (Ga. Ct. App. 2013). However,

“[w]here no judgment finding both tortfeasors liable has been entered . . . the party

seeking contribution must prove that his own negligent action and those of the

alleged joint tortfeasors jointly caused the harm.” Suggs v. Hale, 629 S.E.2d 11,

15 (Ga. Ct. App. 2006) (quotation marks and alterations omitted). In other words,

the party seeking contribution must show that the alleged joint tortfeasor

committed “separate and independent acts of negligence.” Zimmerman’s, Inc. v.
       1
         In that action, Gold Cross also asserted a claim for breach of a joint defense agreement.
That claim is not relevant to this appeal.


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McDonough Const. Co., 240 S.E.2d 864, 866 (Ga. 1977) (quotation marks

omitted).

       Gold Cross cannot establish that Children’s Hospital committed any

independent acts of negligence that contributed to the harm at issue here. The

evidence shows that Gold Cross’ employees, and only Gold Cross’ employees,

were handling the stretcher when it tipped over on the tarmac. Gold Cross asserts

that Children’s Hospital’s nurse, who was at least present during the accident, was

negligent in failing to supervise Gold Cross’ employees when they removed the

child from the ambulance. However, Gold Cross cites no Georgia case law to

support the proposition that Children’s Hospital had such a duty and, aside from

that, they do not explain how Children’s Hospital’s supervision would have

prevented Gold Cross’ employees from dropping the stretcher.

       Gold Cross contends that even if it cannot establish independent acts of

negligence, it is still entitled to contribution. It argues that Children’s Hospital is

vicariously liable for the negligence of Gold Cross’ employees because those

employees were borrowed or joint servants of both Children’s Hospital and Gold

Cross, and that Children’s Hospital and Gold Cross were therefore joint employers

or joint masters.2 Even if Gold Cross could seek contribution based on Children’s


       2
          In the district court Gold Cross also argued that it and Children’s Hospital were engaged
in a joint venture. In its opening brief, however, Gold Cross makes only passing references to its
joint venture theory, fails to develop or elaborate any argument about that issue, and does not cite


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Hospital’s potential vicarious liability, Gold Cross has failed to establish that its

employees were borrowed or joint servants of Children’s Hospital. To succeed on

that theory, Gold Cross would have to show that Children’s Hospital exercised

“complete control” over Gold Cross’ employees. See Food Giant v. Davison, 362

S.E.2d 447, 448–49 (Ga. Ct. App. 1987); Garden City v. Herrera, 766 S.E.2d 150,

152–53 (Ga. Ct. App. 2014). Based on the record before us, Gold Cross cannot

establish that control.

       Gold Cross next contends that it is entitled to contribution because

Children’s Hospital could not delegate its duty of care to Gold Cross. Specifically,

Gold Cross argues that because Children’s Hospital operates an ambulance service

and ambulance services are common carriers, Children’s Hospital owed a non-

delegable duty of extraordinary diligence to its passengers. That argument fails

because Children’s Hospital was not acting as an ambulance service or as a

common carrier at the time the patient was injured. See DeMott v. Old Town

Trolley Tours of Savannah, Inc., 760 S.E.2d 703, 706 (Ga. Ct. App. 2014) (finding

any case law or other authorities relevant to that argument. Thus, despite its protestations to the
contrary in its reply brief, Gold Cross has abandoned that argument. See United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (finding that a party abandoned an issue
when he made only “passing references” to it in his opening brief); United States v. Woods, 684
F.3d 1045, 1064 n.23 (11th Cir. 2012) (noting that a party abandons an issue “by failing to
develop any argument on it in his opening brief”); United States v. McKinley, 732 F.3d 1291,
1295 n.1 (11th Cir. 2013) (deeming an issue abandoned when a party “did not elaborate any
argument regarding [the issue] in his initial brief or cite any authority relevant to such an
argument”); United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (stating that this Court
will not consider “arguments raised for the first time in a reply brief”) (quotation marks and
alteration omitted).


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that common carrier’s duty of extraordinary diligence is not implicated when “no

carrier-passenger relationship existed”).

      Finally, Gold Cross contends that the district court erred in denying its

request to certify the following question to the Georgia Supreme Court:

“[W]hether Georgia law permits contribution between two employers, masters or

principals . . . both of whom were alleged to be vicariously liable in tort for the acts

or omissions of joint employees or agents, where one has paid all of the cost of

settling the claim against the two entities.” The decision to certify a question of

state law is discretionary. See Lehman Bros. v. Schein, 416 U.S. 386, 390–91, 94

S. Ct. 1741, 1744 (1974). Because the Gold Cross employees were not joint or

borrowed servants, this case does not raise the question Gold Cross identifies. As

such, the district court did abuse its discretion in refusing to certify that question to

the Georgia Supreme Court.

      AFFIRMED.




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