David Shelton, as Personal Representative of the Estate of Sharon K. Clearwaters v. Kroger Limited Partnership I
2016 Ind. App. LEXIS 281
| Ind. Ct. App. | 2016Background
- Sharon Clearwaters died after taking levofloxacin prescribed by Dr. Doe and filled by Kroger; she was on amiodarone and warfarin, creating a known dangerous interaction.
- David Shelton, as personal representative, filed claims initially with the Indiana Department of Insurance (IDI) against Dr. Doe, ABC (Dr. Doe’s employer), and Kroger; IDI determined Dr. Doe and ABC were qualified health care providers under the Medical Malpractice Act, Kroger was not.
- Shelton settled with Dr. Doe, ABC, and the Indiana Patients Compensation Fund (IPCF); those defendants were dismissed from the trial court action and the IDI action was dismissed with prejudice.
- After the settling defendants were dismissed, Kroger amended its answer to assert a nonparty fault defense as to Dr. Doe and ABC and moved for partial summary judgment seeking a credit/set-off for Shelton’s settlement with the settling defendants and IPCF.
- Shelton argued the Comparative Fault Act barred credits/set-offs and required Kroger to use the nonparty defense at trial so a jury could apportion fault; the trial court granted Kroger’s partial summary judgment.
- The Court of Appeals reversed, holding Kroger — not a qualified health care provider — is nonetheless subject to the Comparative Fault Act and may not obtain a credit/set-off; Kroger’s remedy on remand is to pursue its nonparty defense and apportionment at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kroger is entitled to a credit or set-off for plaintiff’s settlement with qualified health‑care defendants | Shelton: Comparative Fault Act applies and bars credits; Kroger must use a nonparty defense and seek jury apportionment | Kroger: Comparative Fault Act doesn’t apply to medical malpractice claims; credits/set-offs remain available (citing Everhart/Palmer) | Court: Kroger is not a qualified health‑care provider and is therefore subject to the Comparative Fault Act; no credit/set-off allowed; Kroger may pursue nonparty defense for juror apportionment |
| Whether a defendant who settles with a plaintiff can reduce another defendant’s liability by settlement credit instead of nonparty apportionment | Shelton: Settlement credit would improperly reduce plaintiff’s recovery and circumvent Comparative Fault Act allocation | Kroger: Credit avoids double recovery and follows pre‑comparative‑fault common law | Court: Under comparative fault and precedent (Mendenhall, McCoy), credits are inappropriate where remaining defendant can assert nonparty fault; settlements allocate risk to settling parties and do not reduce others’ several liability |
Key Cases Cited
- Mendenhall v. Skinner & Broadbent Co., 728 N.E.2d 140 (Ind. 2000) (held Comparative Fault Act favors requiring defendants to name settling nonparties if seeking apportionment rather than obtain credits)
- R.L. McCoy, Inc. v. Jack, 772 N.E.2d 987 (Ind. 2002) (explained elimination of credit in comparative fault context; settling parties bear settlement risks and remaining defendants must use nonparty defense)
- Indiana Dep’t of Ins. v. Everhart, 960 N.E.2d 129 (Ind. 2012) (discussed interplay of Medical Malpractice Act and credits; relevant where defendant is a qualified health‑care provider)
- McDermott, Inc. v. AmClyde & River Don Castings Ltd., 511 U.S. 202 (1994) (U.S. Supreme Court rejecting pro tanto credit rule in admiralty and recognizing settlements may exceed trial liability)
- Palmer v. Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093 (Ind. Ct. App. 2007) (distinguished in this case because it involved a qualified health‑care provider)
- Allen v. Great American Reserve Ins. Co., 766 N.E.2d 1157 (Ind. 2002) (standard of review for summary judgment)