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Motorists Mut. Ins. Co. v. Huron Rd. Hosp.8/30/1995
PFEIFER, J.
The two issues in this case are: (1) whether a common-law right of indemnity or a statutory right of contribution controls the relationship between a tortfeasor and a medical provider, when the medical provider negligently causes further injury or aggravates the original injury caused by the tortfeasor; and (2) whether the savings statute for wrongful death cases applies to a case in which a complaint has been filed but in which service has not been attempted.
I
Motorists argues that the common-law right of indemnity created by this court in Travelers Indemn. Co. v. Trowbridge (1975), 41 Ohio St.2d 11, 70 O.O.2d 6, 321 N.E.2d 787, controls its relationship with the other appellees, rather than R.C. 2307.31, which provides a right of contribution among joint tortfeasors.
As this court has long recognized, the substance of the subject matter of a case is determinative, not the form under which a party chooses to bring it. Love v. Port Clinton (1988), 37 Ohio St.3d 98, 524 N.E.2d 166. The substance of Motorists' claim is one for contribution.
Motorists' insureds and the appellees, if negligent, were concurrently negligent. "Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury ." Garbe v. Halloran (1948), 150 Ohio St. 476, 38 O.O. 325, 83 N.E.2d 217, paragraph one of the syllabus. Though separate in time, the negligence of Motorists' insureds led to the alleged negligence of the appellees, and combined with the appellees' alleged negligence to cause Ross's death, the single indivisible injury.
Motorists admits that it, through its insureds, was actively negligent. As such, it has no right to indemnity. "Indemnification is not allowed when the two parties are joint or concurrent tortfeasors and are both chargeable with actual negligence." Reynolds v. Physicians Ins. Co. of Ohio (1993), 68 Ohio St.3d 14, 16, 623 N.E.2d 30, 31-32.
Motorists' claim has none of the indicia of indemnity. Implied contracts of indemnity are reserved for those "situations involving related tortfeasors, where the one committing the wrong is so related to a secondary party as to make the secondary party liable for the wrongs committed solely by the other. * * * Relationships which have been found to meet this standard are the wholesaler/retailer, abutting property owner/municipality, independent contractor/employer, and master/servant." Id. at 16, 623 N.E.2d at 31.
Even the nature of the relief Motorists seeks points to contribution rather than indemnity. Motorists seeks proportionate reimbursement from appellees; an action for indemnity, on the other hand, requires complete reimbursement. Travelers, 41 Ohio St.2d at 13-14, 70 O.O.2d at 8, 321 N.E.2d at 789.
Motorists points to the Travelers decision for salvation, but it offers none. In Travelers, an employee was injured due to his employer's negligence. The employee's treating physician aggravated the injury . The employee's lawsuit against his employer was settled, and the employer's insurer then instituted an action against the physician "seeking indemnity from [the physician] for that portion of the settlement attributable solely to the [physician's] alleged independent negligent acts * * *."Travelers, 41 Ohio St.2d at 12, 70 O.O.2d at 7, 321 N.E.2d at 788.
The court decided Travelers in a time when the status of the law was that "ordinarily there is no contribution or indemnity between joint or concurrent tortfeasors." Travelers, 41 Ohio St.2d at 14, 70 O.O.2d at 8, 321 N.E.2d at
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