Copeland v. Humana of Kentucky, Inc.
769 S.W.2d 67
Ky. Ct. App.
1989
Check Treatment

*2 Nash, P.S.C., Jerry Phelps, Dr. A. Dr. COMBS,* Before DYCHE and Lolita S. Weakley, or Dr. Cecilia M. An- GUDGEL, JJ. zures, heirs, executors, their administra- tors, assigns, successors and will ever DYCHE, Judge. pay any have to out any further sums to Copeland, daughter Laura Michele entity or by injury reason of or Lonny Copeland Mary Copeland, A. and death sustained Laura Michele was scheduled to surgery have corrective land. 20, 1983, right eye January on her on compromise disputed This is a of a (hospital). Suburban On claim of and made with day she was administered anesthesia understanding that neither Aetna Casual- anesthesiologists at the certain heirs, ty Surety Company, and its execu- Nash, employed by Schafer and tors, administrators, successors and as- During anesthesia, this administration of Nash, P.S.C., signs, nor Drs. Schafer and prior beginning surgery, Lau- Jerry Phelps, Dr. Á. Dr. Lolita S. Weak- apparently injury ra suffered a brain Anzures, ley, or Dr. Cecilia M. their severely now disabled. heirs, executors, administrators, succes- Copelands (Lonny Mary), on assigns, any sors and admit on their own behalf and behalf of the in- reason hereof. Laura, fant executed a document on De- subsequently filed ac- which, exchange in cember for surgeon tion court, payments not disclosed damages seeking for Lau- agreed, part, as follows: ra’s The cause action ... not to sue Drs. Schafer and 1) grounds: stated two P.S.C., Jerry Phelps, Dr. Dr. Lolita S. hospital for the vicarious of the Anzures, Weakley, or Dr. Cecilia M. agents anesthesi- acts of its ostensible heirs, executors, administrators, succes- 2) ologists); acts of inde- assigns, Casualty sors or and Aetna pendent acts of the anesthesi- heirs, executors, Surety Company, its ad- ologists. ministrators, assigns, or successors or demand, 8, 1987, any September Cir- make further claim or On the Jefferson tort, contract, statutory granted hospital’s motion whether or for cuit Court claims remedy, injury partial summary judgment death of Laura arising liability, citing the above Copeland any out of or in based on vicarious * accept Ken- opinion election to the This decision was reached and this from this Court to prior Judge resignation tucky Supreme Combs’ Court. curred “release” or “covenant not to quoted document as reason therefor. The is called a appeal. Copelands now sue.” Appellants argue that “the cov little It matters how servant anesthesiologists enant not to sue the does liability; long was released from as he is not constitute a release or inure to the harm, appears free from it to us that his Louisville master should also be blameless. Max v. hospital,” citing Lancaster, *3 Company v. Times Ky. 142 Spaeth, 349 (Mo.1961). 1 S.W.2d 122, (1911) authority. 133 S.W. 1155 required This result is for either or both Copelands argue posi The that the relative “That such a result of two reasons: parties tions of the in the are the same circuity avoid of action or that since the present controversy as in the Louisville liability principal merely of the master or is case, states, “The rule is that Times which secondary, exoneration of derivative joint not to covenant sue one of two upon the the servant removes foundation

wrongdoers does not release and will not impute which to to the master against 142 bar an action the other.” Flavin, 34 Ill.2d Holcomb v. principal.” 127, (citations 133 S.W. at 1157. omit (1966). 216 N.E.2d 814 ted.) argued, Although appellants the have case, agree principle; in We with the brief, orally both and in their we case, particular part and for this of this should not even reach the indemnifica- however, hospital the and the anesthesi- tion/circuity litigation argument, we not feasors. Daniel ologists joint are tort eyes cannot close our the ramifica- Patrick, (1960). Ky., 333 S.W.2d 504 today, especially tions our decision hospital It is clear that the has vicarious sidering Kentucky the dearth of law on the liability for the acts of its ostensible subject. agents, anesthesiologists. Williams the following Center, agree analy the We St. Claire Medical Ky.App., (1983). not, sis of the issue: S.W.2d 590 This doctrine does however, “separate create a distinct” Craig, Stewart v. In 208 Tenn. duty on the assert. 761, [(1961)] the court in a sim- S.W.2d imposed duty The sole involving ilar situation a covenant not agency “through this ostensible its em- pointed out that if a sue the servant staff, ployees including independent against the em- judgment were obtained personnel, staff appropriate to exercise employee’s negli- ployer based the provide patient’s well-being care to the gence, employer the would be entitled Ibid, promote and to his cure.” at 597. the same employee sue the and obtain And, despite appellants’ assertions to the plain- judgment against him. Since the contrary, given employee the covenant tiff had the There no basic or fundamental dis- sue, employee would be then the tinction to be drawn between the plaintiff the judgment entitled to of a master for the tortious act of his originally obtained in the action as was principal servant and a for the tortious employee, completing the thus cases, agent. his the act of both come parties would the circuit grounded upon the maxim of position as when out in the same respondeat superior. court, therefore, held that started. The extin- not to sue the servant Co., Ky., 257 a covenant Nickels Bus Scott Wolford against the guishes the cause of action extinguishes therefore wrongdoer and agreed Having to sue the serv- superior. his the cause of action ant/agent, recovery by and made settle- Flavin, supra at 814. The Holcomb v. therefrom, appellant may not now ment bring would present in the case covenant seek additional from the mas- circuity if reversed the same we ter/principal based same acts of about partial summary judgment. alleged negligence, whether the document issue, The of the Jefferson Circuit As far as the vicarious we is affirmed. spoken find courts to this Court that other reasoning which we persuasive issue with GUDGEL, J.,

paraphrse adopt. The covenant not to concurs. only operated discharge the an- sue not COMBS, J., dissents. esthesiologists, Schafer and pri- COMBS, (the servants/employees) Judge, dissenting. complete marily responsible, it affected a respectfully majority I dissent from the mas- for trial. and would reverse and remand secondarily lia- ter/employer) who is many respects This case is similar ble, despite attempted reservation case of v. St. Claire Medical Williams Copelands in the covenant of all (1983) Center, Ky.App., 657 S.W.2d 590 rights against hospital. Rose, Hospital Company v. Paintsville which the law had but one cause of action Ky., document S.W.2d 255 *4 daugh- gave them executed was a covenant for the ter’s This cause of action as character- to sue and was not a release allegedly conduct of Schafer and tortious majority, and did not inure to ized Nash was assertable alleg- and Nash were Schafer because acting employees in their function as edly agents of the

or ostensible negligent act

time committed injury.

causing Copeland’s Laura entered into the Schafer and Nash

When agreement

structured wrong that Copelands, they repaired the SNYDER, Jr., Administrator Forest fully therefore were they had done and Snyder, Rose the Estate of Barbara liability. This ac- acquitted from further Deceased, Appellant, hospi- quittance inured to the benefit of the tal, primary tort- for the Nash) SNYDER, (Schaefer Appellee. must be held to feasor Forest D. secondary tortfeasor discharge the 87-CA-2464-MR. No. responsibility, hospital) also from further Appeals of the tortious hospital’s liability for derived in nature and act was vicarious 17, 1989. Feb. wrong- solely from its relation Denied Discretionary Review doer, and Nash. Schafer sup- public policy, and This is sound sister from our ported by other decisions Lawson, 534 S.W.2d states. See Craven (Tenn.1976); v. Tacoma Gener- Glover P.2d 1230 Hospital, 98 Wash.2d Meier,

(1983); 188 Neb. Dickey v. Estate of (1972); Mid-Conti- 197 N.W.2d Okla., Crauthers, Pipeline

nent Co. v. Abbott G.M. Holmstead

P.2d 568

Diesel, Inc., 2d 493 P.2d 625 27 Utah Annotation, Release also Sue) Prin- (Or Not to Master or Covenant Liability Servant cipal Affecting Versa, 92 A.L.R.2d Tort or Vice

Agent