The issue in this case is whether a distinction should be made between primary and derivative liability for purposes of determining the pro rata share of contribution among named defendants in a medical malpractice action. The facts of this case are not in dispute. In 1989 Max Foley III brought a medical malpractice action against Piedmont Hospital, Inc., John C. Garrett M. D. and Resurgens, P. C., a professional corporation in which Garrett was a shareholder. The jury awarded Foley $2,500,000 on his claim and the parties ultimately agreed to settle the case for $2,300,000. Piedmont Hospital’s insurance carrier, St. Paul Fire & Marine Insurance Company (“St. Paul”), the defendant/appellant in the present case, paid one-third of the settlement amount ($766,666.66) on behalf of its insured, and MAG Mutual Insurance Company (“MAG Mutual”), the plaintiff/appellee, paid two-thirds ($1,533,334) on behalf of its insureds, Garrett and Resurgens. However, pursuant to a consent agreement, St. Paul and MAG Mutual agreed that after the settlement was paid the trial court would determine the pro rata share each defendant should pay of the settlement amount.
MAG Mutual subsequently filed suit against St. Paul seeking contribution for $383,333.34, the difference between 50 percent of the total settlement amount paid to plaintiff and the amount St. Paul paid towards the settlement. Both parties filed motions for summary judgment. The trial court granted MAG Mutual’s motion for summary judgment and entered judgment in its favor for $383,333.34, finding that the contributive shares of the parties should be one-half for Piedmont Hospital and a combined one-half for Garrett and Resurgens. St. Paul then timely filed its appeal to this court. We affirm the judgment of the trial court.
St. Paul argues that the correct measure of contribution among joint tortfeasors should be determined by dividing the judgment or settlement amount by the number of joint tortfeasors without regard to the character of each tortfeasor’s negligence and that, therefore, in this case each defendant should pay one-third of the total amount paid in settlement to the plaintiff. On the other hand, MAG Mutual argues that the trial court correctly determined the contributive shares of the parties in this case because a defendant such as *185 Resurgens who is liable to an injured party solely because of negligence imputed to it by virtue of its relationship with another party and that actively negligent defendant (here Dr. Garrett) should be treated as one party for the purpose of measuring the pro rata share of contribution of multiple defendants.
It is true that ordinarily the total amount of the judgment is divided equally among those liable to the injured person. However, this court has also held that a party cannot seek contribution from other defendants “simply because they are jointly liable to plaintiffs.”
Flynn v. Reaves,
In
Flynn v. Reaves,
the issue was whether a partner who is sued individually by a plaintiff injured by the partner’s sole negligence could seek contribution from his co-partners when the negligent act occurred in the course of the partnership business. This court held that the partner had no right to seek contribution from his co-partners, reasoning that an actively negligent party cannot seek contribution from those to whom his negligence is imputed. “Here, the co-partners and defendant are not joint tortfeasors as among themselves. For the co-partners are subjected to liability only by the doctrine of respondeat superior. Thus, defendant whose negligence, if any, was actual, cannot seek contribution from his co-partners, who are merely constructively negligent. Of course, had defendant alleged that his co-partners were actual tortfeasors, a third party action for contribution would lie. But such is not the case.”
It is clear from the foregoing that this court previously has made a distinction between active and constructive negligence when determining a party’s right to seek contribution. However, it appears that the precise issue presented in this case is one of first impression in this state. Other jurisdictions which have considered this issue have concluded that the actively negligent party and that party who is vicariously or derivatively liable for the negligence of the active tortfeasor should be treated as one party when considering the apportionment of a judgment among multiple defendants. “Where there are multiple tortfeasors, distinct acts of each which directly cause the damages must be independently considered to determine the number of tortfeasors who are liable for contribution. Where one or more of such defendants is liable solely on the basis of negligence imputed to him by virtue of his relationship with one of the other tortfeasors, the one guilty of negligence and the one to whom that negligence is imputed are to be treated as one party for the purpose of measuring the pro rata share of contribution due to the others. [Cits.]”
Reese v. Henke,
We find these decisions to be persuasive. We hold therefore, that when there are multiple defendants and one or more of them is liable to the injured party solely on the basis of negligence imputed to it by virtue of its relationship with one of the other defendants, the one guilty of the negligent conduct and the one to whom the negligence is imputed are to be treated as one party when determining the pro rata share of the verdict or settlement each defendant must pay. Accord
Harris v. Hanna Creative Enterprises,
Judgment affirmed.