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SSM Health Care St. Louis12/23/2003
part of the summary-judgment record. Nevertheless, under the circumstances of this case, the potential and incentive for fault-shifting existed. This is because the hospital may have the incentive to shift some of the fault apportioned to its own employee, Dr. Doumit, to the radiologist, Dr. Koch. The hospital would be loathe to file any claim for indemnity against its own employee; however, the hospital might entertain no such compunction as to a suit against its adjudged agents, the radiologists. Thus, while defending against the imposition of any vicarious liability, the hospital might allow the development of evidence to subtly shift fault that might be attributed to its own employee to instead be attributed to its agent. The Missouri Supreme Court found in Oates that it would be inequitable to apply collateral estoppel in circumstances where there was a conflict of interest between the parties. Oates v. Safeco Ins. Co., 583 S.W.2d 713 (Mo. 1979). Here too, with an inherent conflict of interest between the hospital and the radiologists, it would be inequitable to apply collateral estoppel to bar the radiologists from contesting the respective allocation of fault. We hold the hospital is not entitled to invoke collateral estoppel to establish the apportionment of fault in its claim for indemnity.
We are unpersuaded by the hospital's argument that the radiologists are bound because they participated in the discovery process in the Scott litigation. The radiologists settled with the Scotts and were dismissed prior to trial in the underlying action. The radiologists were not present at trial; they did not have a full and fair opportunity in the prior adjudication to litigate the negligence, causation, allocation of fault, and agency issues. The radiologists are entitled to a full opportunity to contest these issues.
Because the hospital's claim for indemnity, as pleaded and presented, was premised entirely on the offensive use of collateral estoppel to establish negligence, causation, allocation of fault, and agency, a use we hold to be unprecedented and unfair under the circumstances of this case, we reverse the judgment of the trial court and remand the cause. Further, because the hospital's petition therefore presently fails to state a claim upon which relief can be granted, we instruct the trial court to dismiss the petition. However, because we also hold the hospital may be able to replead a legally sufficient claim for indemnity, we instruct the trial court to grant the hospital leave to amend its petition within such time as the court shall specify. See Rule 67.06.
The judgment is reversed and the cause is remanded with instructions.
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