United States District Court, S.D. Georgia, Augusta Division
For Gold Cross EMS, Inc., Plaintiff: J. Robert Persons, LEAD ATTORNEY, Steven D. Henry, Smith Moore Leatherwood LLP, Atlanta, GA.
For The Children's Hospital of Alabama, Defendant, Counter Claimant: Alexander H. Booth, LEAD ATTORNEY, PRO HAC VICE, Hall, Booth, Smith & Slover, PC, Atlanta, GA; Jasper P. Juliano, Mark W. Lee, LEAD ATTORNEYS, PRO HAC VICE, Parsons, Lee & Juliano, PC, Brimingham, AL; Mark W. Wortham, LEAD ATTORNEY, Hall, Booth, Smith & Slover, PC, Atlanta, GA.
For Gold Cross EMS, Inc., Counter Defendant: J. Robert Persons, LEAD ATTORNEY, Smith Moore Leatherwood LLP, Atlanta, GA.
For The Children's Hospital of Alabama, Counter Claimant: Alexander H. Booth, Mark W. Wortham, LEAD ATTORNEYS, Hall, Booth, Smith & Slover, PC, Atlanta, GA; Jasper P. Juliano, LEAD ATTORNEY, Parsons, Lee & Juliano, P.C., Brimingham, AL; Mark W. Lee, LEAD ATTORNEY, PRO HAC VICE, Parsons, Lee & Juliano, PC, Brimingham, AL.
HONORABLE J. RANDAL HALL, UNITED STATES DISTRICT JUDGE.
This case comes before the Court following the settlement of various negligence claims against both Gold Cross EMS, Inc. (" Gold Cross" or " Plaintiff" ) and the Children's Hospital of Alabama (" Children's" or " Defendant" ). The underlying action involved an accident where a two-year-old girl was paralyzed after her stretcher tipped over during transport to Children's. Gold Cross settled the suit and filed the instant action seeking contribution from Children's and alleging breach of a joint defense agreement. The Court now considers Children's motion for summary judgment (Doc. 43), and for the reasons stated herein, that motion is GRANTED IN PART AND DENIED IN PART.
A. Factual Background
On March 4, 2009, Zia'Kiera Threatts (" Threatts" ), a two-year-old burn victim, was transferred from Doctor's Hospital of Augusta to Children's following the discovery of a heart condition. (Doc. 25 (" Compl." ) ¶ ¶ 12-13, 17.) While transporting Threatts from the ambulance at Doctor's Hospital to the plane, her stretcher tipped over and Threatts was paralyzed from the waist down. (Doc. 54 ¶ 13.) Two lawsuits were brought alleging negligence against Gold Cross and Children's by Threatts's father and her guardian ad litem, and all claims were eventually settled. (Doc. 44, Ex. 12 (" Bell Dep." ) at 76; Doc. 60.) Specifically, Gold Cross settled all underlying tort claims for $9 million, but reserved the right to seek contribution from Children's. (Id.; Doc. 54 ¶ 24; Doc. 60.)
Sometime prior to March 4, 2009, the date of Threatts's transfer, Doctor's Hospital contacted Dr. Leslie Hayes -- a pediatric critical care specialist -- to see if she would agree to care for Threatts. (Doc. 44, Ex. 1 (" Hayes Dep." ) at 10-14.) Dr. Hayes then contacted Laura Demmons, UAB's transport coordinator, to arrange transport. (Doc. 53, Ex. 2; Doc. 44, Ex. 2 (" Demmons Dep." ) at 21.) Ms. Demmons in turn contacted Gold Cross to arrange for ambulance transport for Threatts from Doctor's Hospital to the airport. (Doc. 53, Ex. 2.) After the travel arrangements were in place, Children's sent two employees to Augusta to oversee Threatts's treatment -- Suzanne Key, a nurse, and Michael Mardis, a respiratory therapist. (Doc. 53, Ex. 2; Doc. 44, Ex. 4 (" Key Dep. I" ) at 19-20.) The ambulance was driven by Gold Cross employees Alima Mims and Jacques A. Johnson. (Doc. 44, Ex. 8 (" Mims Dep." ) at 39-41.)
It is undisputed that during transport Key and Mardis remained responsible for all of Threatts's medical care. (Key Dep. I at 29-41.) In fact, the Children's team took custody of Threatts at the hospital, put her on a transport ventilator, retained control of the IV and medication, and placed Threatts into a child seat attached to a " sled,"  both of which were brought with Key and Mardis on the trip. (Id.) The sled locked into a stretcher, which was provided by Gold Cross. (Id. at 31-33.)
Following the initial medical exam, Threatts, Key, Mardis, and the two Gold Cross employees made their trip to the airport. (Key Dep. I at 23-25, 36.) Key and Mardis rode in the back of the ambulance with Threatts, who was chemically paralyzed and sedated, and the Gold Cross employees were in the front of the ambulance. (Mims Dep. at 52; Key Dep. I at 39.) Upon their arrival at the airport, Mims and Johnson exited the ambulance and proceeded to remove the stretcher. (Key Dep. I at 39; Mims Dep. at 53-54.) Key also exited the ambulance at this time, but Mardis stayed inside to ensure all tubing remained connected as the stretcher was removed. (Key Dep. I at 39-40.) It was at this time that the stretcher tipped over. (Mims Dep. at 54.) Immediately thereafter the stretcher was uprighted, though it is unclear from the record whether all four individuals lifted the stretcher or whether Mims and Johnson did so alone. (Compare Key Dep. I at 46 (suggesting that all four individuals assisted) with Mims Dep. at 54 (claiming that Mims and Johnson uprighted the stretcher).) Once the stretcher was upright, Key and Mardis checked the functioning of all tubes and medication, Threatts was put onto the aircraft where she could be secured and any injuries assessed, and then Threatts, Key, and Mardis traveled to Birmingham. (Doc. 44, Ex. 5 (" Key Dep. II" ) at 41; Key Dep. I at 63.) Approximately two days after the accident, a CT scan revealed a hematoma on Threatts's spine. (See Hayes Dep. at 51-52.)
Following the accident, the two aforementioned lawsuits were filed against Gold Cross and Children's (" the underlying litigation" ). Throughout the underlying litigation, Gold Cross and Children's maintained separate defense strategies, but the two did agree to share expert witnesses as co-defendants. (Doc. 54 ¶ 18; Doc. 53, Ex. 7.) Additionally, following an oral conversation, Children's sent Gold Cross a letter via e-mail proposing that the two negotiate jointly with the plaintiff. (Doc. 53, Ex. 7.) In that proposal, Children's and Gold Cross agreed not to enter pro tanto settlements or high/low agreements with the plaintiff, and they agreed not to disclose the contents of the letter. (Id.) With the letter, Children's provided a scale that delineated the portion of any settlement Children's would cover if the settlement exceeded $7.5 million. (Id.) A formal joint defense agreement, however, was never reduced to writing. (Doc. 54 ¶ 19.) During the pendency of settlement discussions, an e-mail was disclosed by counsel for Children's to Threatts's counsel that included the range of settlement options listed in the above-mentioned proposal. (Compl. ¶ ¶ 35-38.) And although Threatts's attorney testified that the e-mail had no impact on the valuation of his client's claim, Gold Cross claims this breach led to a higher settlement than would have been reached otherwise. (Bell Dep. at 106-08.)
B. Procedural Background
Gold Cross filed the instant complaint in the State Court of Richmond County, which Children's removed to this Court on May 17, 2013. (Doc. 1.) In its complaint, Gold Cross alleges that Children's owes it contribution from the settlement and that Children's breached a joint defense agreement. (Doc. 25 (Gold Cross Amended Complaint).)
Following Gold Cross's complaint, Children's filed its answer and counterclaims for (1) attorney's fees and expenses and (2) medical expenses written off by Children's for Threatts's care. (Doc. 4.) Children's then filed the current motion for summary judgment on April 3, 2014 (Doc. 43). Gold Cross, in its response, asks this Court to sua. sponte grant partial summary judgment in its favor on the issue of contribution liability, finding either that (1) Children's owed a non-delegable duty with respect to the ...