MetroHealth Medical Center v. Hoffmann-LaRoche, Inc.

Pfeifer, J. The United States District Court, Northern District of Ohio, Eastern Division, has certified the following questions to this court for our determination: [214] “[1] For purposes of OHIO REV. CODE ANN. § 2307.31 and § 2307.32, is a contribution defendant’s liability for wrongful death extinguished by the contribution plaintiffs settlement with the underlying claimant, which settlement includes a full and final release naming both the contribution plaintiff and contribution defendant, where the contribution defendant had already been dismissed with prejudice as a matter of law from the underlying claimant’s action based upon the statute of limitations? “[2] For purposes of OHIO REV. CODE ANN. § 2307.31(B), is a contribution defendant’s liability for wrongful death extinguished by the contribution plaintiffs settlement with the underlying claimant, which settlement includes a full and final release naming both the contribution plaintiff and contribution defendant, where res judicata barred the underlying tort claim against the contribution defendant?” For the reasons that follow, we answer each certified question in the affirmative. At common law, contribution was “the right of a person who has been compelled to pay what another should have paid in part to require partial (usually proportionate) reimbursement and [arose] from principles of equity and natural justice.” Travelers Indemn. Co. v. Trowbridge (1975), 41 Ohio St.2d 11, 70 O.O.2d 6, 321 N.E.2d 787, paragraph two of the syllabus, overruled on other grounds in Motorists Mut. Ins. Co. v. Huron Rd. Hosp. (1995), 73 Ohio St.3d 391, 653 N.E.2d 235. However, contribution was not allowed between concurrent or joint tortfeasors. Id. at 15, 70 O.O.2d at 8-9, 321 N.E.2d at 790. To alleviate this inequity, the General Assembly enacted a statutory scheme that enabled a tortfeasor to pursue a contribution claim against any joint tortfeasors. R.C. 2307.31 and 2307.32.1 Former R.C. 2307.31(A) stated, “[I]f two or more persons are jointly and severally liable in tort for * * * the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. * * * ” (Now found in R.C. 2307.32[A].) Former R.C. 2307.31(B) stated, “A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for * * * the wrongful death is not extinguished by the settlement * * (Now found in R.C. 2307.32[B].) Former R.C. 2307.31(G) stated, “Whether or not judgment has been entered in an action against two or more tortfeasors for * * * the same wrongful death, [215] contribution may be enforced by separate action.” (Now found in R.C. 2307.32[G].) Former R.C. 2307.32(B) stated, “If there is a judgment for * * * wrongful death against the tortfeasor seeking contribution, any separate action by him to enforce contribution shall be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review.” (Now found in R.C. 2307.33[B].) A contribution claim may go forward notwithstanding the lack of a judgment on the underlying claim against the contribution defendant, notwithstanding even the lack of an action on the underlying claim. R.C. 2307.31(A), (B) and (G). The contribution defendant need merely be “liable in tort” for the same injury to be subject to a contribution claim. R.C. 2307.31(A). We conclude with respect to R.C. 2307.31(A) that “liable in tort” means no more than that the contribution defendant acted tortiously and thereby caused damages. This conclusion is in keeping -with the evident purpose of the statutory scheme to make contribution readily available between joint tortfeasors. That Hoffmann was not “susceptible to suffer an adverse judgment in a maintainable action by [the underlying claimant]” at the time the contribution action was filed is not dispositiva Henry v. Consol. Stores Intematl. Corp. (1993), 89 Ohio App.3d 417, 422, 624 N.E.2d 796, 799. Hoffmann argues that the expiration of the limitations period on the underlying tort claim extinguished its liability and therefore that a subsequent contribution action is also barred. See Nationwide Ins. Co. v. Shenefield (1992), 85 Ohio App.3d 563, 620 N.E.2d 866. But, see, Henry, supra. Acceptance of that position by this court would enable plaintiffs to absolve chosen defendants of liability. The plaintiff could wait to file a complaint until a claim against one of the defendants, but not the other, was time-barred, thereby destroying the disfavored defendant’s statutory right to contribution. See Smith v. Jackson (1986), 106 Wash.2d 298, 301-302, 721 P.2d 508, 509-510; Sziber v. Stout (1984), 419 Mich. 514, 536-537, 358 N.W.2d 330, 339-340. Such a situation is inequitable and was clearly not intended by the General Assembly. The injustice of the position advocated by Hoffmann is further illustrated by the “intolerable paradox” discussed in Henry, 89 Ohio App.3d at 423, 624 N.E.2d at 800. Hoffmann’s position is that a contribution defendant’s liability is not extinguished by a settlement within the meaning of R.C. 2307.31(B), and therefore that contribution is not available, where the contribution defendant has already been dismissed with prejudice from the underlying suit. In other words, it was the dismissal, not the settlement, that extinguished Hoffmann’s liability. According to this argument, a settling tortfeasor is barred from pursuing a fellow tortfeasor who was dismissed but not one who was never sued. It is apparent to [216] us that the General Assembly did not intend the underlying claimant’s diligence, or lack of diligence, to affect the contribution plaintiffs right to contribution. This conclusion is evidenced by the fact that the statutory scheme does not require a judgment or even an action as a prerequisite to a contribution claim. R.C. 2307.31(A) and (G). A defendant who loses at trial to the underlying claimant has a clear right to pursue contribution from a joint tortfeasor unless the joint tortfeasor has been adjudicated not liable. To hold otherwise with respect to a defendant who “loses” by settling would penalize tortfeasors for settling. The statutes do not support and we cannot justify such a rule. To the contrary, we should strive to remove obstacles to settlement efforts. Based on our analysis of the entire statutory scheme, we are convinced that the General Assembly’s primary intention in enacting R.C. 2307.31(B) was to prevent the inequitable situation of a tortfeasor paying contribution to a fellow tortfeasor who has settled and remaining subject to liability on the underlying claim. Though the words “extinguished by the settlement” are not surplusage, they cannot mean that a joint tortfeasor may avoid liability for contribution because of a technical nicety. Rather, we conclude that the General Assembly intended to ensure that no contribution defendant would be subject to double liability. In this case, Hoffmann is not subject to double liability, because it was specifically named in the release. The certified questions before us compel stark “yes” or “no” answers. Such choices make our task easier, because we need do no more than answer “yes” or “no,” and harder, because it is so difficult to foresee all the situations that will be governed by our answer. See Kutner, Contribution Among Tortfeasors: The Effects of Statutes of Limitations and Other Time Limitations (1980), 33 Okla. L.Rev. 203 (fourteen hypothetical cases involving contribution and statutes of limitations). With that in mind, we are convinced that a negative answer to the first certified question would frustrate the purpose of the statutory scheme and exacerbate the plight of parties seeking contribution. We conclude that a contribution plaintiffs claim should not be compromised merely because the underlying claimant failed to comply with a statute of limitations as to the contribution defendant. This position has been adopted by an “overwhelming majority of jurisdictions.” Smith v. Jackson, supra, 106 Wash.2d at 302, 721 P.2d at 510. See Annotation, What Statute of Limitations Applies to Action for Contribution Against Joint Tortfeasor (1975), 57 A.L.R.3d 867. We answer the first certified question in the affirmative. We turn now to the second certified question. The doctrine of res judicata involves both claim preclusion (historically called estoppel by judgment) and issue preclusion (traditionally known as collateral estoppel). Grava v. Parkman Twp. [217] (1995), 73 Ohio St.3d 379, 381, 653 N.E.2d 226, 228. Claim preclusion “prevents a party from litigating a cause of action after a prior court has rendered a final judgment on the merits of that cause as to that party.” Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107, 538 N.E.2d 1058, 1062, citing Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67, paragraph one of the syllabus. Issue preclusion “precludes the relitigation of an issue that has been ‘actually and necessarily litigated and determined in a prior action.’ ” Krahn, 43 Ohio St.3d at 107, 538 N.E.2d at 1062, quoting Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 195, 2 OBR 732, 734, 443 N.E.2d 978, 981. This court recognized in Natl. Mut. Ins. Co. v. Whitmer (1982), 70 Ohio St.2d 149, 151-152,24 O.O.3d 248, 249, 435 N.E.2d 1121, 1123, that a contribution action differs from the underlying action when it stated that “[i]t is clear from the provisions of the Act [R.C. 2307.31 and 2307.32] that the liability for contribution is distinct from the liability for the jointly committed tort. * * * Ohio’s statutory scheme for contribution does not concern the basic relationship of tortfeasors to one who has suffered injury but establishes the relationship of tortfeasors inter se when one of them discharges the common liability.” Based on the. distinction between a tort claim and a contribution claim noted by this court in Whitmer and the above analysis regarding the first certified question, we conclude that res judicata does not preclude a contribution claim when the underlying claim failed because of the expiration of a statute of limitations. We answer the second certified question in the affirmative. Judgment accordingly. Douglas, Resnick and F.E. Sweeney, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent. Footnotes [1] The statutes referred to in this opinion are the former versions as they existed before their amendment in Am.Sub.H.B. No. 350, effective January 27,1997.