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Juarez v. Nelson12/3/2002
rvant on the ground that one who does a thing through another, his servant, does it himself and is responsible for the manner in which it is done. By using reason and common sense in applying this rule of law that, if the servant does the master's work in a negligent manner, the master is liable, we must also say that, if the servant did not do the work negligently, there is nothing for the master to be liable for. All that the master can do is to prove that the servant was not negligent, and, having proved that, as the jury finds, there is no negligence to be imputed to the master. Stith v. J.J. Newberry Co., 79 S.W.2d 447, 458 (Mo. 1934). Cf. Kinetics, Inc. v. El Paso Products Co., 99 N.M. 22, 653 P.2d 522 (Ct. App. 1982) (holding that dismissal with prejudice of defendant partnership also exonerates defendant partner alleged to be vicariously liable for the partnership's wrongdoing), correctness questioned by Gutierrez v. Albertsons, Inc., 113 N.M. 256, 264, 824 P.2d 1058, 1066 (Ct. App. 1991).
Further, the modern rule is that a judgment against a plaintiff and in favor of an employee-defendant does not preclude an action against the employee's principal where the judgment in the action against the employee was based solely on a defense that was personal to the employee. Restatement (Second) Judgments, §51(1)(b)(1982); see also 27 Am. Jur. 2d Employment Relationship § 469 (1996) (distinguishing between finding of no civil liability on part of agent and finding that agent was not guilty of wrongdoing). Comment b to Restatement Section 51 cites a dismissal on the basis of a statute of limitations as an instance where a favorable judgment against one defendant should not preclude the plaintiff from asserting a claim against a second defendant who may be vicariously liable for the first defendant's conduct. " f the judgment in favor of the employee is based solely on a defense that is personal to the employee, such as an expired statute of limitations, then the employee's actual negligence has never been determined." Leow v. A & B Freight Line, Inc., 676 N.E.2d 1284, 1294 (Ill. 1997) (McMorrow, J., specially concurring).
We need not rest our decision in this case entirely on common-law principles. As Plaintiffs point out, Roberts held that Section 41-5-13 is a benefit of the Medical Malpractice Act. 114 N.M. at 250-52, 837 P.2d at 444-46. Section 41-5-5(C) provides that " health care provider not qualifying under this section shall not have the benefit of any of the provisions of the Medical Malpractice Act in the event of a malpractice claim against it." Applying Section 41-5-5(C), the Supreme Court held that Section 41-5-13 does not apply to non-qualified health care providers. Id. at 254, 837 P.2d at 448. To qualify under the Medical Malpractice Act, a hospital must demonstrate proof of financial responsibility and must pay an annual surcharge assessed by the superintendent. Section 41-5-5(B). We agree with Plaintiffs that if we were to allow PHS to piggyback upon Dr. Nelson's Section 41-5-13 defense, we would be allowing PHS to obtain an important benefit of the Medical Malpractice Act without sharing the burdens imposed on qualified health care providers. We hold that the dismissal of Dr. Nelson based upon a statute of limitations defense personal to qualified healthcare providers may not be asserted by PHS as a defense to vicarious liability for any acts of negligence committed by Dr. Nelson.
CONCLUSION
The summary judgment in favor of Dr. Nelson is affirmed. The order granting partial summary judgment in favor of PHS is reversed.
IT IS SO ORDERED.
A. JOSEPH ALARID, Judge
WE CONCUR:
RICHARD C. BOS
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