Robbins v. Physicians for Women's Health, LLC

ROBBINS v. PHYSICIANS FOR WOMEN'S HEALTH, LLC-DISSENT

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 25, 2011

Officially released February 7, 2012

Dated: February 15, 2012

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BEAR, J., dissenting. Because I agree with the trial court's well reasoned decision, and would affirm its judgment, I respectfully dissent from the majority opinion. The issue in this case is whether an agreement by the plaintiff with a corporate predecessor and two of its employees (alleged tortfeasors) (1) to settle the plaintiff's claims against the alleged tortfeasors, (2) to covenant not to sue the alleged tortfeasors in the future and (3) to discharge the alleged tortfeasors' liability bars recovery by the plaintiff against the alleged successors to the alleged corporate tortfeasor. Like the trial court, I conclude that on the material undisputed facts of this case, recovery by the plaintiff from the alleged successors is barred. Additionally, I conclude that the result of the majority's ruling in this case is to allow the plaintiff the opportunity for an unjustified windfall recovery from the defendants, i.e., recovery in excess of what she could have recovered from the corporate predecessor on the date of the alleged negligence. Accordingly, I would affirm the judgment of the trial court.

The plaintiff, Lisa Robbins, individually and as administratrix of the estate of her deceased son, Elijah Jamal Hezekia Robbins Martin (Elijah), appeals from the summary judgment rendered by the trial court in favor of the defendants Physicians for Women's Health, LLC (Physicians), and Women's Health USA, Inc. (Women's Health).¹ On appeal, the plaintiff claims that the court erroneously concluded that the settlement agreement, entered into by the plaintiff and the corporate predecessor alleged tortfeasor, Shoreline Obstetrics and Gynecology, P.C. (Shoreline), a former defendant in this case; see footnote 1 of this opinion; and the plaintiff's covenant not to sue and discharge from liability, necessarily barred her suit for medical malpractice against the defendants on ''mere continuation'' or ''continuity of enterprise'' theories of successor liability.

The material undisputed facts of this case support my analysis of the issues presented on appeal. Accordingly, I set them forth here. Elijah was born in October, 2005, at Lawrence and Memorial Hospital. The plaintiff's obstetrician was Jonathan Levine, and her certified nurse midwife was Donna Burke-Howes, both of whom were employed by Shoreline. The plaintiff had a high-risk pregnancy, and when Elijah was born, he was transferred to Yale-New Haven Hospital, where he later died, allegedly due to negligence at or near the time of his birth. In October, 2005, neither Physicians nor Women's Health had any ownership interest in the shares or assets of Shoreline, and thus on the date of the alleged negligence they had no direct or vicarious duty to the plaintiff or to Elijah. In July, 2006, approximately ninemonths after Elijah's death, Shoreline entered into a purchase of assets and sale agreement with Physicians.²On October 16, 2006, the plaintiff commenced suit against Levine for medical malpractice and against Physicians, Women's Health, and Lawrence and Memorial Hospital on a claim of vicarious liability for the alleged malpractice of Levine. On December 14, 2006, the plaintiff amended her complaint and added Shoreline as a defendant, also on a claim of vicarious liability. On March 7, 2007, she then added Burke-Howes as a defendant, alleging medical malpractice against her.

On July 3, 2008, Physicians and Women's Health filed their first motion for summary judgment, asserting that they could not be held liable for Elijah's death because they had no relationship with Shoreline at the time Elijah died. In opposition, the plaintiff maintained that the ''mere continuation'' and the ''continuity of enterprise'' exceptions to the general rule of successor nonliability applied to this case.³ After consideration of the parties' arguments, the court rendered its decision denying the defendants' motion for summary judgment and concluding that there existed disputed material facts about whether the defendants were successor entities. On October 8, 2008, the plaintiff filed her third amended complaint, alleging specifically that Physicians and Women's Health, as successor entities, were liable for the medical malpractice of Levine and Burke-Howes.⁴

On December 30, 2008, in connection with a substantial monetary settlement between the plaintiff and Shoreline and Levine, the plaintiff executed a document, entitled ''[c]ovenant [n]ot [t]o [s]ue.''⁵ In the document, the plaintiff covenanted not to sue Levine, Shoreline and, inter alia, the past, present and future agents, officers, employees, assigns, etc., of Shoreline, and she additionally agreed to discharge⁶ them from liability ''forever . . . .''⁷ The document specifically provided, however, that it did not affect the plaintiff's claims against the defendants. The defendants, however, were not parties to the document, nor was the document signed by Levine or a representative of Shoreline; the only signatory on the document was the plaintiff.

On July 1, 2009, the defendants filed their second motion for summary judgment, asserting, inter alia, that the plaintiff's covenant not to sue Shoreline specifically discharged Shoreline from liability, and, therefore, because the defendants' alleged liability was based on a claim of successor liability, if Shoreline, their predecessor, was relieved of liability, the defendants, necessarily, also were relieved of liability. They further argued that any liability they were alleged to have to the plaintiff exclusively derived from Shoreline's liability, and, therefore, if Shoreline was relieved of liability, its successors, including the defendants, also wererelieved of liability. The trial court agreed and granted the defendants' motion for summary judgment. This appeal followed.

The plaintiff claims that the court improperly granted the defendants' motion for summary judgment. She argues that the covenant not to sue was not a release from liability, despite the discharge language contained in it, and that the parties specifically stated in the document that the plaintiff's claims against the defendants were preserved.⁸ As previously set forth, however, the defendants were not parties to the document that purported to preserve the plaintiff's claims against the defendants while settling her claim with Shoreline and releasing Shoreline from all liability.

The settlement between the plaintiff and Shoreline and its employees did not occur until after the asset transaction. Thus, after the defendants purchased the assets of Shoreline, the plaintiff continued to have available to her substantial monetary remedies against Shoreline and against its employees, and the plaintiff eventually took advantage of those remedies, settled her claims against them and executed covenants not to sue them, which covenants specifically stated that Shoreline and its employees were released from all liability ''forever . . . ." Because the plaintiff had substantial monetary remedies available from Shoreline and its employees, which continued to exist after the asset transaction, and because her theories of successor liability are either or both the ''mere continuation'' or ''continuity of enterprise'' of Shoreline and the defendants, e.g., variations on a one continuous enterprise theme, I conclude that she is barred from seeking damages from the defendants under either theory of successor liability. Thus, I disagree with the majority's assertion ''that the undisputed evidence contained within the record does not establish that the plaintiff has failed to meet this requirement [that a case premised on the mere continuation or continuity of enterprise theories of successor liability may not be maintained when the predecessor corporation constitutes a viable source of recovery] as a matter of law.'' As the plaintiff, with the participation of her counsel, affirmatively acknowledged and demonstrated by her own actions when she voluntarily settled her claims against Shoreline and its employees, the amount received by the plaintiff as a result of that settlement must be, as the majority states, a ''viable source of recovery to the plaintiff as a matter of law.'' Especially in light of the undisputed evidence that Shoreline and its employees paid the plaintiff at least $2 million in that settlement, inter alia, there was sufficient evidence before the trial court for it to conclude that...