Appeal from the Superior Court of the District of Columbia (CA-5003-99) (Hon. Mary A. Gooden Terrell, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before KRAMER and FISHER, Associate Judges, and TERRY, Senior Judge.
Although its post-verdict cross-claim for contribution was rejected as untimely, The George Washington University filed this separate action for contribution based on the same underlying facts and the same legal theories. Because we discern no significant difference between this claim and the one we previously rejected, we affirm the trial court's grant of summary judgment to appellee.
In 1994, Elena Paul sued Dr. Charles Bier and The George Washington University ("GWU"), the employer of another physician, to recover damages for alleged medical malpractice related to their treatment of a blood clot in her left leg.*fn1 The trial began on July 8, 1996. On July 18, 1996 -- after she presented her case-in-chief but before the defense began -- Ms. Paul settled with GWU for $2,000,000. Although their agreement was captioned "Joint Tortfeasors Settlement Agreement,"its contents belie that characterization. The agreement allowed GWU to exit the lawsuit while "maintain[ing] that [it was] not liable on any of the claims and causes of action asserted therein." See also Paul v. Bier, 758 A.2d 40, 42 n.3 (D.C. 2000); id. at 44-45 & n.10. Moreover, Ms. Paul and GWU "expressly agreed that nothing contained [in the settlement was] intended to release or shall have the effect of releasing the non-settling defendant to the lawsuit [namely, Dr. Bier]."
At the same time, GWU "desire[d] to ensure that no claims [could be] asserted against it . . . by the non-settling defendant to the lawsuit . . . ." Therefore, the agreement provided that, "[i]n the event that [GWU was] held liable for contribution or indemnification in this action or in any subsequent action . . . , Ms. Paul [would] indemnify [GWU] for said liability . . . ."See alsoPaul, 758 A.2d at 42. The settlement agreement is "silent on the parties' respective rights in the situation that developed here, where it was GWU, not Dr. Bier, making a claim for contribution." Id. at 45 n.11.
After the settlement, the trial resumed against Dr. Bier alone and, on July 29, 1996, the jury returned a verdict awarding Ms. Paul $2,000,000.*fn2 On September 18, 1996, the trial court granted Dr. Bier's motion for a pro tanto credit for the amount of the settlement between Ms. Paul and GWU, thereby reducing the amount of damages paid by Dr. Bier to zero. On October 24, 1996, over three months after its settlement with Ms. Paul, GWU sought leave from the trial court to file a cross-claim against Dr. Bier for contribution in the amount of $1,000,000. When the trial court denied the request as untimely, GWU appealed.
We affirmed, holding that "the trial court did not abuse its discretion in disallowing the cross-claim on the ground that GWU's failure to timely assert its right to contribution was prejudicial to Dr. Bier, the non-settling defendant." Paul, 758 A.2d at 46.*fn3 "Fairness dictates that all defendants, whether they choose to settle or litigate, file cross-claims for contribution before the verdict in order to give notice to other defendants that they will be required to pay their fair share of damages to a joint tortfeasor in the event that they are found liable." Id. at 48. Resolving a consolidated appeal by Ms. Paul, we also upheld the trial court's decision to award Dr. Bier pro tanto, rather than pro rata, credit for the amount of the settlement. Id. at 42-45. (If the credit had been pro rata only, Dr. Bier would have had to pay $1,000,000 to Ms. Paul, thereby increasing her recovery to $3,000,000. Id. at 43.)
On July 16, 1999, three years after the settlement with Ms. Paul and the verdict against Dr. Bier, and in order to toll the statute of limitations, GWU filed this separate action for contribution against Dr. Bier based on the same underlying facts asserted in its rejected cross-claim. The trial court stayed the case at the request of the parties pending the outcome in Paul. After this court decided Paul, both parties moved for summary judgment and on April 3, 2002, the trial court lifted the stay for the limited purpose of adjudicating the motions.
The trial court granted Dr. Bier's motion for summary judgment while denying GWU's. Characterizing the filing of the separate action seeking contribution as an "effort to circumvent the Court of Appeals' decision in Paul," the court determined that GWU could not establish that it and Dr. Bier were joint tortfeasors. There was no stipulation to that effect by all parties.Furthermore, there had been no adjudication of GWU's status in the original proceeding, and the trial court stated that it could not "formally adjudicate the parties as joint tortfeasors."The trial court also rejected GWU's alternative claim for indemnification. It looked to the RESTATEMENT OF RESTITUTION § 71 (2) (1937) and found no debtor/creditor or suretyship relationships upon which the claim for indemnification could be based. GWU appeals the rulings rejecting both of its claims.
In reviewing a trial court's grant of summary judgment, we perform an independent evaluation of the record, employing the same standards as the trial court when it initially considers the motion. EastBanc, Inc. v. Georgetown Park Associates II, LLP, 940 A.2d 996, 1001 (D.C. 2008). "We therefore must determine whether the party awarded summary judgment demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. We view the record in the light most favorable to the non-moving party." National Association ...