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Court of Appeal, Second District, Division 1, California.

Morris B. WEISS, Cross-Complainant and Appellant, v. Stephen M. FIELD, Cross-Defendant and Respondent.

Civ. 56790.

Decided: December 27, 1979

Booth, Mitchell, Strange & Smith and E. Gary Smith, Los Angeles, for cross-complainant and appellant. Hillsinger & Costanzo and Darrell A. Forgey, Los Angeles, for cross-defendant and respondent.

Morris Weiss appeals from summary judgment entered against him on his cross-complaint for indemnity and declaratory relief filed in a medical malpractice action.

The complaint in the underlying action was filed by Katherine Kinney against Weiss, a podiatrist, Jack Taubman, a physician and Van Nuys Community Hospital.   The complaint alleged that from April 3, 1973, through June 10, 1974, Weiss treated plaintiff;  on April 24, 1974, defendants negligently performed surgery on plaintiff;  from that date to June 11, 1974, defendants were negligent in their post-operative care of plaintiff thereby causing serious infection of her left foot;  on June 18, 1974, as a proximate result of such negligence plaintiff was required to undergo surgery for the amputation of her left great toe and subsequently was required to undergo further surgeries and amputations.   The complaint sought general damages of $2 million.

Weiss answered the complaint and thereafter, by leave of court, filed a cross-complaint for indemnity and declaratory relief against Stephen Field.  (Code Civ.Proc., §§ 428.10, 428.50.)   The cross-complaint alleged that after terminating her relationship with Weiss plaintiff employed Field, a physician, to treat her;  plaintiff's injuries occurring on and after June 11, 1974, were the result of Field's failure to properly treat her;  Weiss is entitled to indemnity from Field as to damages for plaintiff's injuries caused solely by Field's negligence for which Weiss may be vicariously liable to plaintiff under the law;  an actual controversy exists between the parties to the cross-complaint regarding Field's obligation to indemnify Weiss.   The cross-complaint was amended to add a cause of action for partial indemnity based on the comparative negligence of those who contributed to plaintiff's injuries.   (See American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899.)   Field answered the cross-complaint and the amended cross-complaint.

On the second day of the trial, the court approved a stipulation 1 that judgment be entered in favor of plaintiff and against Weiss for $200,000, and ordered that the cross-complaint be set for trial.   The court also approved a stipulated judgment in favor of plaintiff and against Taubman for an undisclosed sum.   The respective judgments against Weiss and Taubman were paid in full.   At plaintiff's request, the action against the hospital was dismissed with prejudice.

Field moved for summary judgment dismissing the cross-complaint (Code Civ.Proc., § 437c).   The supporting declaration 2 of Field's attorney stated that Weiss has a policy of malpractice insurance with limits of $100,000, issued by All-Star Insurance Corporation;  after issuance of the policy All-Star became insolvent and claims on its policies were handled by the California Insurance Guarantee Association (CIGA);  Weiss has excess insurance coverage (for sums over $100,000) carried by Chicago Insurance Company;  before the stipulation for judgment was entered into, CIGA filed a complaint for declaratory relief against Weiss alleging that it has no obligation to pay claims arising under policies issued by All-Star;  the stipulation for judgment provided that Chicago Insurance Company would pay the first $100,000 of the judgment and that the balance would be paid out of the proceeds of any judgment rendered in favor of Weiss in CIGA's declaratory relief action against him;  after the stipulation was entered into, summary judgment in the declaratory relief action was entered ordering CIGA to pay the remaining $100,000 of the stipulated judgment;  at the time of the injuries alleged in plaintiff's complaint, Field was insured by Signal Insurance Company;  that insurer subsequently became insolvent and claims arising under its policies now are handled by CIGA.

The declaration in opposition to the motion for summary judgment did not controvert any of the foregoing facts.   It stated that on June 11, 1974, Weiss' treatment of plaintiff was terminated and after that date she was treated by Field exclusively.

The trial court granted the motion on the grounds that Weiss, “the primary defendant, has stipulated to judgment and public policy demands an end to litigation.   There is further, a Satisfaction of Judgment on file in this case and to relitigate only on the Cross-Complaint under the theory of American Motorcycle would subject the plaintiff and all other settling defendants to harassment.” 3  Weiss appeals from the ensuing summary judgment entered against him and in favor of Field on the cross-complaint.

 The respective declarations of the parties reveal that there were no issues of fact to be tried.   The sole issues presented were issues of law which may be determined by summary judgment.  (Dow v. Britt (1974) 37 Cal.App.3d 868, 871, 112 Cal.Rptr. 710;  Vincent v. State of California, (1971) 22 Cal.App.3d 566, 570, 99 Cal.Rptr. 410;  Burke Concrete Accessories, Inc. v. Superior Court (1970) 8 Cal.App.3d 773, 775, 87 Cal.Rptr. 619.)   The judgment appears to be based on two grounds:  (1) Weiss stipulated to entry of judgment against him in plaintiff's medical malpractice action;  and (2) that action has been settled as to all of the defendants.   Neither ground is valid.

As to the first ground, American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, permits the right of partial indemnity among multiple tortfeasors on a comparative fault basis;  it also permits a defendant, by cross-complaint, to seek such indemnification from a previously unnamed party.   In Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, 495–497, 147 Cal.Rptr. 262, we concluded that a settling concurrent tortfeasor may continue to pursue his right of partial indemnity asserted by a presettlement cross-complaint against a party not named by the plaintiff.   We explained the reasons for our conclusion as follows:  “The hierarchy of policies [expressed in American Motorcycle, supra ] dictates the result which we reach in the case at bench.   In no way does a rule permitting assertion by a settling defendant of his right of comparative indemnity impinge upon the maximization of recovery to the injured person.   Permitting the recovery encourages settlement.   If recovery were barred, a named defendant would be inhibited in effectuating a settlement where he believes that he has a right of indemnity against a solvent person or corporation, particularly where the potential indemnitor is not named as a defendant by the plaintiff.   Allowing the settling defendant to assert his right of contribution against other concurrent tortfeasors effectuates the policy of equitable apportionment of the loss among them.”  (P. 496, 147 Cal.Rptr. p. 264.)

 As to the second ground of the summary judgment, the fact that the underlying action has been settled as to all of the defendants, and in effect dismissed, does not warrant denial of a trial on the cross-complaint.   A complaint and a cross-complaint are for most purposes treated as independent actions.  (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 353, 100 Cal.Rptr. 258.)   Accordingly, even a judgment dismissing the complaint does not deprive the cross-complainant of his right to a trial of the issues on his cross-complaint.  (National Electric Supply Co. v. Mount Diablo Unified School Dist. (1960) 187 Cal.App.2d 418, 422, 9 Cal.Rptr. 864;  Atherley v. MacDonald, Young & Nelson (1955) 135 Cal.App.2d 383, 386, 287 P.2d 529.)

 Although the trial court improperly granted summary judgment on the grounds stated therein, the judgment must be affirmed if it is correct upon any theory of law applicable to the case.  (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18–19, 112 Cal.Rptr. 786, 520 P.2d 10;  In re Marriage of Fithian (1977) 74 Cal.App.3d 397, 402, 141 Cal.Rptr. 506.)   The declaration in support of respondent's motion for summary judgment set forth facts showing that, in accordance with the stipulation, the judgment against appellant was satisfied by payments made by insurers on his behalf.   No right to indemnity exists unless the indemnitee has suffered actual loss through payment.  (See E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506, 146 Cal.Rptr. 614, 579 P.2d 505.)  “If the obligation is paid by anyone other than the claimant for contribution, no right to contribution arises in favor of the claimant, despite the fact that such payment may have been made for his benefit.” 4  (14 Cal.Jur.3d, Contribution and Indemnification, § 6, p. 650.   See also Jackson v. Lacy (1940) 37 Cal.App.2d 551, 560, 100 P.2d 313.)   Accordingly, appellant is not entitled to indemnification unless he comes within the collateral source rule.   That rule provides that if an injured person receives compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which he would otherwise collect from the tortfeasor.  (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6, 84 Cal.Rptr. 173, 465 P.2d 61.)   It expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and other eventualities.  (Id., at p. 10, 84 Cal.Rptr. 173, 465 P.2d 61.)   However, “[t]he term ‘injured person’ in the context of the collateral source rule connotes one who has sustained personal injuries or property damage at the hands of a tortfeasor.   We know of no case applying the collateral source rule to a situation in which the injury sustained by the injured person was an award against him in an unrelated lawsuit of damages which he personally was never called on to pay.  Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 1, 8, fn. 7, 84 Cal.Rptr. 173, fn. 7, 465 P.2d 61, fn. 7, supra, specifically stated that the collateral source rule does not apply to payments made in satisfaction of a judgment by a joint tortfeasor or his insurance carrier.”  (Kirtland & Packard v. Superior Court (1976) 59 Cal.App.3d 140, 145, 131 Cal.Rptr. 418, 421.)   It follows that summary judgment was properly entered in favor of respondent on appellant's cross-complaint.

 Appellant contends that he is entitled to indemnification because the settlement agreement provides that if he recovers judgment against respondent on the cross-complaint the first $100,000 of such recovery will go to Chicago Insurance Company, appellant's excess insurance carrier.   The contention is without merit, for no right to indemnity is established by the claimant if a judgment against him is paid with the money of a third person who is to receive what may be recovered by way of indemnification.  (14 Cal.Jur.3d, Contribution and Indemnification, § 6, p. 650.)   Appellant further argues that, apart from the question of indemnity, trial on the cross-complaint is necessary in order to vindicate his professional reputation.5  We do not agree.   The mere settlement of a claim for damages on account of personal injuries does not in itself establish liability for the conduct out of which the injuries arose.  (Polk v. Garcia & Maggini Co. (1934) 137 Cal.App. 406, 409, 30 P.2d 615, 616.)  “It may be, and often is, the case that actions of this character are settled and dismissed, where no liability exists;  other considerations entering into the transaction.”  (Rich v. Edison Electric Co. (1912) 18 Cal.App. 354, 358.)

 Appellant's final contention is that the motion for summary judgment should not have been entertained because it was noticed for hearing only 13 days before the date set for trial of the cross-complaint.   In support of this contention, appellant relies on rule 78 of the Law and Motion Policy Manual of the superior court, and on section 437c of the Code of Civil Procedure.   Rule 78 states that “Motions for summary judgment noticed near the date set for trial are disfavored.”   Under this provision, the late filing of the motion was not jurisdictional;  the trial court therefore was free to hear the motion on its merits.  (Thomas v. Edgington Oil Co. (1977) 73 Cal.App.3d 61, 64, 140 Cal.Rptr. 635.)  Section 437c provides in part that a motion for summary judgment “shall be heard no later than 45 days before the date of trial, unless the court for good cause orders otherwise.”   This provision, added to section 437c in 1978 (Stats.1978, ch. 949, § 2), was not in effect when the motion was heard.

The judgment is affirmed.


1.   The declaration in support of motion for summary judgment states that a settlement agreement was entered into between plaintiff and all defendants for the total sum of $212,999.   Pursuant to that agreement, Weiss was to pay $200,000, Taubman $10,000 and the hospital $2,999.

2.   Both the supporting declaration and the opposing declaration contain legal arguments and conclusions.   We summarize only the evidentiary facts set forth in the declarations.

3.   After granting Weiss' motion to reconsider its order granting summary judgment, the trial court reaffirmed that order.

4.   Contribution is a form of indemnity.  (See American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 591, 146 Cal.Rptr. 182, 578 P.2d 899.)

5.   The amended cross-complaint seeks a declaration of the relative negligence of those who contributed to plaintiff's injuries.   The purpose of such declaration is to establish comparative fault as the basis for partial indemnity.   It has no significance as a separate cause of action.

LILLIE, Acting Presiding Justice.

HANSON and CRAHAN (Assigned by the Chairperson of the Judicial Council), JJ., concur.

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