record shows that the Estate did cash the $20,000 settlement
check on July 14, 1998, more than two months before the date
of the purported letter. See Pl. Opp. to Short MSJ, Exh. 5
(Crestar Bank deposit slip for $20,000 dated July 14, 1998).
Thus, it is abundantly clear that the Estate cashed the
settlement check before it could even have responded to, let
alone received, Viedma's September 30, 1998 letter. Therefore,
Short may not escape the terms of the revised limited release by
invoking the doctrine of accord and satisfaction. The Court
holds that the revised limited release constitutes the
settlement agreement between Short's insurer and the
Estate.*fn10 Accordingly, Short's Motion shall be denied
insofar as it argues that the general release constituted the
settlement agreement between Short's insurer and the Estate, and
shall be granted insofar as it argues, alternatively, that the
revised limited release constituted the settlement agreement.
2. Mercedes-Benz's Right to Indemnification
In her Motion, Short also argues that, as a matter of law,
Mercedes-Benz may not obtain any indemnification from her should
it be found liable to Plaintiff. In her Motion, Short argues
that since she was "jointly liable for the injuries sustained by
Ms. Johnson", Mercedes-Benz may not obtain indemnification from
her. Short MSJ, at 22. In contrast, Mercedes-Benz claims that it
is entitled to "complete indemnity" from Short for any liability
to Plaintiff. Third-Party Compl., at 4.
Indemnity generally involves the "shifting of the entire loss
from one who has paid it to another who would be unjustly
enriched at the indemnitee's expense by the indemnitee's
discharge of the obligation." District of Columbia v.
Washington Hosp. Center, 722 A.2d 332, 340 (D.C. 1998). A duty
to indemnify may be "implied in fact (on an implied contract
theory) or implied in law in order to achieve an equitable
result." R. & G. Orthopedic Appliances and Prosthetics, Inc. v.
Curtin, 596 A.2d 530, 544 (D.C. 1991). When based on equitable
principles, indemnity may be granted to an indemnitee if there
is a "significant difference in the kind and quality" between
the indemnitee's and the indemnitor's wrongdoing. Quadrangle
Development Corp. v. Otis Elevator Co., 748 A.2d 432, 435 (D.C.
2000) (citation omitted).
There are presently numerous material facts in dispute with
regard to the "kind
and quality" of Mercedes-Benz's potential liability to
Plaintiff. See id. Indeed, Mercedes-Benz denies any liability
whatsoever to Plaintiff. As a result, it is not possible to
compare the "kind and quality" of Mercedes-Benz' wrongdoing (if
any) with that of Short. See id. at 435. Accordingly, the
Court must deny as premature Short's Motion with respect to
B. Third-Party Plaintiff Mercedes-Benz's Motion for Partial
Summary Judgment Regarding Its Right to Pro Rata, As
Opposed to Pro Tanto, Reduction of Damages
Short's Motion and Mercedes-Benz's First Partial Motion for
Summary Judgment both argue that, as a matter of law,
Mercedes-Benz would be entitled to a pro rata reduction of 50
percent if it is found liable to Plaintiff. Under this theory,
Mercedes-Benz need only pay half of any damages awarded to
Plaintiff, because Plaintiff has already settled with Short.
Disagreeing, Plaintiff responds that if found liable,
Mercedes-Benz would have to pay full damages, less a pro tanto
(dollar-for-dollar) reduction of $20,000.
In the District of Columbia, it is well established that joint
tortfeasors are equally liable for their wrongdoing and
therefore are entitled to pro rata contribution from all other
joint tortfeasors.*fn11 See Washington Hosp. Center, 722
A.2d at 336. Only if a settling tortfeasor has been adjudged or
stipulated liable,*fn12 see Paul v. Bier, 758 A.2d 40,
44-45 (D.C. 2000), may a nonsettling tortfeasor receive a pro
rata reduction of its liability. If a settling tortfeasor has
not been adjudged liable, only a joint stipulation between the
settling tortfeasor and the plaintiff will establish its
liability. See District of Columbia v. Shannon, 696 A.2d 1359,
1367 (D.C. 1997) (citing Berg v. Footer, 673 A.2d 1244, 1251
In this case, the Estate settled with Short before filing this
lawsuit against Mercedes-Benz. Although she had "denie[d] all
liability" in the revised limited release, Short now offers to
stipulate that she was in fact liable to the Estate. Short MSJ,
Exh. G (revised limited release). However, the Estate has
refused to join Short's unilateral stipulation of liability.
Only a joint stipulation between Short and Plaintiff can
establish Short's liability. See id. Thus, Short's liability
has not been established by either adjudication or stipulation,
and Mercedes-Benz is not entitled to receive a 50 percent pro
rata reduction in any award Plaintiff may receive. See Paul
758 A.2d at 44-45; Shannon, 696 A.2d at 1367.
Seeking to save its right to a pro rata reduction,
Mercedes-Benz asks for an adjudication that Short is liable to
the Estate as a matter of law. See Paul, 758 A.2d at 44-45.
Numerous material facts are in dispute with regard to Short's
purported liability. Thus, the Court is in no position to make a
judgment that Short is liable to the Estate as a matter of law.
Accordingly, the Court must deny Mercedes-Benz's First Motion
for Partial Summary Judgment and Short's Motion as to
Mercedes-Benz's right to a pro rata reduction.
C. Defendant Mercedes-Benz's Second Motion for Partial
Summary Judgment To Dismiss Plaintiffs Count IV Claim for
Loss of Consortium, Lost Services of Decedent, and Burial
Plaintiff has brought his lawsuit against Mercedes-Benz as a
survival action, not a wrongful death action.*fn13 In its
Second Partial Motion for Summary Judgment, Mercedes-Benz
requests that Plaintiffs claims for loss of consortium (Count
IV), lost services, funeral-related expenses, and burial costs
be dismissed with prejudice. Plaintiff does not oppose the
dismissal of his claims for lost services, funeral-related
expenses, and burial costs. See Def. MSJ II Reply, at 6.
Consequently, those claims are dismissed with prejudice. In
addition, Mercedes-Benz requests an Order "limiting the possible
damages recoverable by Plaintiff to `under 6 hours' of conscious
pain and suffering." Def. MSJ II, at 12. Plaintiff does not
oppose this request. Consequently, the Court will issue such an
Plaintiff opposes the dismissal of Count IV, loss of
consortium. Count IV alleges that the "death of Mrs. Johnson
deprived Mr. Johnson of the services, society, love, affection,
companionship, sexual relations and other matters generally
associated with a marital relationship." Pl. Compl. ¶ 36
(emphasis added). At common law, a plaintiff has an independent
right of action for loss of consortium where a wrongdoer has
caused injury to his or her spouse. See Brown v. Curtin &
Johnson, Inc., 221 F.2d 106 (D.C.Cir. 1955); Hitaffer v.
Argonne Co. 183 F.2d 811 (D.C.Cir. 1950), cert. denied,
340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), overruled on other
grounds by Smither & Co. v. Coles, 242 F.2d 220, 226 (D.C.Cir.
1957); Perry v. Criss Bros. Iron Works, Inc., 741 F. Supp. 985
(D.C. 1990). However, there is no case that the Court could
find, or that Plaintiff has cited, that extends the scope of a
survival action to a situation where the surviving spouse claims
damages based on the decedent spouse's death. In fact, the
federal courts in this jurisdiction have expressly held that a
right of action for loss of consortium does not extend to a
spouse's wrongful death. See, e.g., Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 564-65 (D.C.Cir. 1993) (loss of
consortium only recoverable under the District of Columbia
Wrongful Death Act);*fn14 Ciarrocchi v. James Kane Co.,
116 F. Supp. 848, 850 (D.C. 1953); Brown, v. Curtin & Johnson,
Inc., 117 F. Supp. 830 (D.C. 1954), aff'd, 221 F.2d 106
Accordingly, Plaintiffs claim for loss of consortium (Count
IV) will be dismissed with prejudice, and the Court must grant
Mercedes-Benz's Second Motion for Partial Summary Judgment.
For the foregoing reasons, the Court denies in part and
grants in part Short's Motion for Summary Judgment, denies
Mercedes-Benz's First Motion for Partial Summary Judgment, and
grants Mercedes-Benz's Second Motion for Partial Summary
An appropriate Order will issue with this Opinion.
Defendant Mercedes-Benz USA, LLC has filed two Motions for
Partial Summary Judgment [# 51, # 60], and Third-Party Defendant
Short has filed a Motion for Summary Judgment [# 63]. Upon
consideration of the Motions and all related pleadings, Short's
Motion for Summary Judgment [# 63] is denied in part and
granted in part, Mercedes-Benz's First Motion for Partial
Summary Judgment [# 51] is denied, and Mercedes-Benz's Second
Motion for Partial Summary Judgment [# 60] is granted. It is
further ordered, that any possible damages recoverable by
Plaintiff be limited to "under six hours" of pain and suffering.