No. 14-0158 - Modular Building Consultants of West Virginia, Inc. et al. v. Poerio, Inc.

                                                                           FILED
                                                                          May 21, 2015

                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

LOUGHRY, Justice, concurring:                                           OF WEST VIRGINIA




                 I fully concur in the majority’s conclusion that Modular advanced a proper

contribution claim and write separately to express my strong belief that this Court must

revisit the holding in Charleston Area Medical Center, Inc. v. Parke-Davis, 217 W.Va. 15,

614 S.E.2d 15 (2005). It is clear from the arguments advanced in the case sub judice that

there remains considerable confusion about the means by which a viable contribution claim

may be asserted. Although the concepts in Parke-Davis are only tangentially implicated in

this case,1 at the heart of the ongoing confusion is most certainly the wholly nonsensical

conclusion in Parke-Davis that contribution among joint tortfeasors may only be had when

an injured plaintiff initiates a lawsuit. Not only does this conclusion unfairly place joint

tortfeasors somewhat at the mercy of the allegedly injured party, it frustrates our long-

standing precept that “[t]he law favors and encourages the resolution of controversies by

contracts of compromise and settlement rather than by litigation[.]” Syl. Pt. 1, in part,

Sanders v. Roselawn Mem’l Gardens, 152 W.Va. 91, 159 S.E.2d 784 (1968).2

       1
         Unlike what occurred in Parke-Davis, the case sub judice commenced with an action
by the injured plaintiff, after which the defendant pursued a third-party complaint against the
alleged joint tortfeasor.
       2
           Parke-Davis also impacted another case currently pending before this Court, forcing
                                                                                (continued...)

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              In Parke-Davis, a small child died as the result of an accidental overdose of

medication administered at Charleston Area Medical Center (“CAMC”), and CAMC

consummated a pre-suit settlement with the decedent’s personal representative. Thereafter,

alleging that the drug overdose was actually caused by improper labeling, CAMC brought

a stand-alone claim for contribution against the drug manufacturer, Parke-Davis. The Court

held, however, that a tortfeasor who settles with an injured person before suit cannot bring

a contribution claim against a joint tortfeasor who was not a participant in the settlement

agreement. Parke-Davis, 217 W.Va. at 17, 614 S.E.2d at 17, syl. pt. 6. In reaching this

conclusion, the Court found that CAMC was not “forced to pay more than [its] pro tanto

share” because it had voluntarily settled with the plaintiff. Id. at 23, 614 S.E.2d at 23

(quoting Syl. Pt. 4, in part, Sydenstricker v. Unipunch, 169 W.Va. 440, 288 S.E.2d 511

(1982) (emphasis added)). The Court further found that there was no joint legal obligation

between CAMC and Parke-Davis because the decedent’s representative had not initiated a

legal proceeding against them. Parke-Davis, 217 W.Va. at 23, 614 S.E.2d at 23. The Court

therefore found that contribution could only be brought by way of third-party impleader,

thereby necessitating a lawsuit first initiated by the injured party: “Absent compliance with

this procedural mechanism for asserting contribution in advance of the rendering of a joint

judgment, there is no right of contribution . . . .” Id. at 24, 614 S.E.2d at 24.

       2
        (...continued)
a party to assert an implied indemnification claim instead of a claim for contribution. See
State Auto Prop. & Cas. Ins. v. Al-Ko Kober, No. 14-0556 (argued and submitted for decision
on April 8, 2015).

                                               2

               There is little logic to be found here. The Parke-Davis Court seemingly

punished CAMC for quickly and in good faith settling with the injured person without the

necessity of the injured person suing. Certainly, CAMC’s prompt redress of the matter is

behavior we should encourage. Even though CAMC took the position that fault lay primarily

or exclusively with another, given its central role in the injury there was no legal justification

why CAMC would not see fit to settle in full. By stripping CAMC of its ability to then seek

recovery against an alleged joint tortfeasor, the Parke-Davis Court did nothing but encourage

defendants and their insurers to force an injured person to initiate litigation, with its

commensurate delay, costs, and attorney’s fees, for the sole purpose of advocating for an

equitable apportionment of fault among those who contributed to the injury. This is

disadvantageous to both plaintiffs and defendants.



               The real, and only, inadequacy in CAMC’s settlement for purposes of pursuing

contribution is that it did not extinguish Parke-Davis’s liability to the injured person by way

of a release, as is made clear in the majority opinion sub judice. This procedural failure was

only mentioned in passing by way of footnote and played no role whatsoever in the Parke-

Davis Court’s analysis. See id. at 23 n.11, 614 S.E.2d at 23 n.11. It is on this basis that the

Parke-Davis Court should have ruled that CAMC’s contribution claim failed–not because

of the lack of a lawsuit filed by the representative of the deceased child.




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              In addition to the common sense-defying logic in Parke-Davis, its legal

analysis is likewise unsound. First, the Court concluded that the voluntary settlement lacked

the “forcible” element previously mentioned in our caselaw. Id. at 23, 614 S.E.2d at 23.

However, a fair interpretation of CAMC’s settlement is that the hospital was in fact “forced”

to pay more than its share in order to extinguish its liability. CAMC took the position that,

at most, it was only partially at fault. Recognizing, however, its inescapable role in the

injury, it chose to settle the claims irrespective of this position. If CAMC had offered to pay

only what it considered to be its proportionate share of the liability (consistent with its

assertion of contribution against Parke-Davis), or had offered no compensation at all

(consistent with a claim for implied indemnity), the decedent’s personal representative

presumably would not have settled and the parties would have had to proceed to litigation

simply for CAMC to be able to pay less than a full settlement.3



              Secondly, the Parke-Davis Court’s perception that there was no “joint

obligation” similarly lacks merit. The “joint obligation” was created by virtue of the joint

negligence of the tortfeasors. As noted in the majority opinion, other courts view the creation

of a joint obligation similarly. See MetroHealth Med. Ctr. v. Hoffmann-LaRoche, Inc., 685

N.E.2d 529, 532 (Ohio 1997) (concluding that statutory requirement that contribution



       3
        Again, however, as the majority opinion explains, the correct way for CAMC to have
reflected its purported payment of a “full settlement” for the combined negligence of all
tortfeasors would have been to obtain a release for all tortfeasors.

                                              4

defendant be “‘liable in tort’ means no more than that the contribution defendant acted

tortiously and thereby caused damages”); Doyle v. Rhodes, 461 N.E.2d 382, 388 (Ill. 1984)

(finding that whether party is “subject to liability” to plaintiff for purposes of contribution

is determined at time of injury).



              Insofar as Parke-Davis raised purported “practical” considerations, these are

of little moment. The Court expressed concern that “there is no assurance that principles of

fairness and equity will be advanced if one settling party can affect the amount of settlement

independent of other tortfeasors and then seek to make those non-involved tortfeasors

contribute to the settlement that it voluntarily undertook to pay.” Parke-Davis, 217 W.Va.

at 24, 614 S.E.2d at 24.       This is easily resolved, as most other jurisdictions have

acknowledged, by permitting the contribution defendant to challenge the settlement amount

to the extent that it is in excess of what is reasonable. Said another way, while it is unlikely

that a settling tortfeasor would pay wildly in excess of that which is reasonable for a claim,

were that to occur, a contribution defendant may easily challenge the amount with much the

same proof as it would have offered if the plaintiff had initiated the suit and it was made a

party defendant.



              Finally, Parke-Davis’s lone other “practical” concern was that by permitting

a stand-alone contribution claim, “[r]ather than contributing to the laudable objective of



                                               5

judicial economy, such separate actions seem by design to encourage . . . the possibility of

protracted proceedings.” Id. This perhaps makes as little sense as anything in the opinion.

If a plaintiff initiates litigation, there is one lawsuit into which all of the parties should be

brought. If a plaintiff does not initiate suit, as occurred in Parke-Davis, permitting a stand­

alone contribution proceeding would, likewise, create one lawsuit. Either way, there is one

piece of litigation. How this could be characterized as “protracted” or “piecemeal” is fairly

inexplicable.



                As footnote eight of the majority opinion points out, none of the “disqualifying

factors” for the contribution claim in Parke-Davis exist in the case sub judice–the injured

plaintiff initiated a lawsuit against a single joint tortfeasor, which joint tortfeasor then

brought a third-party action against its fellow alleged joint tortfeasor. Regardless, the

subsequent removal of the injured plaintiff from the action through the settlement somehow

created a misapprehension that the contribution claim was no longer viable. In large part,

I fault the tortured conclusions contained in Parke-Davis for this impression. To be clear,

in no way do I advocate piecemeal litigation for purposes of pursuing contribution or

indemnity–where an action is filed, all parties and claims should be brought therein via

impleader or consolidation. However, where an injured party does not sue, yet a singular

tortfeasor was required to pay what it contends was more than its share of damages to obtain

a release from liability, there is no legal justification for precluding that tortfeasor from



                                                6

pursuing joint tortfeasors to achieve an equitable apportionment of damages. Requiring the

plaintiff to sue before the defendants can sort out their respective fault, based solely on some

dogged obedience to the notion of a “forcible joint obligation,” ignores the reality of modern

litigation and encourages tortfeasors to hold an injured person at bay until the person is

forced to sue.



                 Accordingly, I respectfully concur in the majority opinion.




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