Cox v. Turner

207 S.E.2d 152, 157 W. Va. 802, 1974 W. Va. LEXIS 245
CourtWest Virginia Supreme Court
DecidedApril 30, 1974
DocketNo. 13223
StatusPublished
Cited by7 cases

This text of 207 S.E.2d 152 (Cox v. Turner) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Turner, 207 S.E.2d 152, 157 W. Va. 802, 1974 W. Va. LEXIS 245 (W. Va. 1974).

Opinions

Neely, Justice:

This is an appeal from a final order of the Circuit Court of Hancock County by which the appellee, plaintiff below, Anne R. Cox, recovered a $10,500 judgment upon a jury verdict against the appellant, Ruth Cox Turner, for the negligent practice of law.

In October 1967 the plaintiff was injured by an uninsured motorist and sustained a fractured clavicle. The plaintiff was taken to the East Liverpool City Hospital in East Liverpool, Ohio where she engaged the services of her personal physician, Melborne P. Burnett, M.D., for treatment. She remained in the East Liverpool City Hospital for ten days and was discharged with instructions to see Dr. Burnett in his office three weeks later. However, the plaintiff was suffering great pain and was anxious concerning the efficacy of Dr. Burnett’s treatment; therefore, she consulted Dr. Leonard E. Yurko who admitted her to Weirton General Hospital in Weirton, West Virginia, and performed certain operative procedures. Dr. Yurko hospitalized the plaintiff again in June 1968, and as a result of these periods of hospitalization [804]*804the plaintiff lost several thousand dollars in wages and incurred extensive medical bills and child care expenses.

The plaintiff initially retained the defendant as her attorney to pursue remedies against the uninsured motorist and, ultimately, the plaintiff and the defendant, as plaintiff’s attorney, turned to the Nationwide Insurance Company under the Uninsured Motorist Coverage of the plaintiff’s own automobile policy and negotiated a settlement with Nationwide for $5,500. This settlement was in addition to a $1,000 medical payment made under the medical payment provision of the plaintiff’s policy, and the record indicates that the $5,500 settlement was based upon bills submitted to Nationwide for medical expenses, housekeeping expenses, personal property damage and lost wages.

During the course of defendant’s representation of plaintiff in the negotiations with Nationwide plaintiff retained the defendant on a contingent fee basis to bring an action for malpractice against Dr. Burnett. At the time plaintiff retained the defendant such an action would not have been barred by the Ohio Statute of Limitations. The defendant, however, was unmindful that an Ohio statute of limitations bars a malpractice action after one year (para. 2305.11 Pages Ohio Revised Code Annotated) and defendant failed to prosecute the plaintiff’s action within the statutory period.

In October 1969 the plaintiff instituted this action in the Circuit Court of Hancock County against the defendant for legal malpractice and -the action was tried upon the theory that defendant would only be liable if plaintiff proved a case of malpractice against Dr. Burnett. After a trial in which evidence was introduced concerning Dr. Burnett’s negligence, as well as defendant’s negligence in permitting the statute to run, and upon proper instructions by the trial court, the jury found in favor of the plaintiff for $10,500, and judgment was entered against the defendant in that amount.

[805]*805The defendant, in her amended answer, set forth the defense that the settlement with Nationwide Insurance Company barred plaintiff from seeking further compensation. At the pre-trial conference the defendant argued that should the settlement with Nationwide not be considered a complete bar, the defendant should at least be entitled to a setoff in the amount of Nationwide’s payment.

Under the two alternative theories, one of bar and the other of setoff, the trial court permitted the defendant to introduce evidence, outside of the presence of the jury, concerning the settlement made by Nationwide. Based upon this testimony the defendant made a post-trial Motion for Judgment and for Partial Satisfaction which was overruled on the grounds that a certain Release and Trust Agreement, quoted infra, given Nationwide in settlement of plaintiff’s claim under the Uninsured Motorist Coverage was not a release of the original tort-feasor, and that as the plaintiff had paid for the Uninsured Motorist Coverage, the amount which she received from Nationwide was similar to medical payments under hospitalization or accident insurance and, therefore, exempt from liability to setoff under the “Collateral Source Rule.”

In this Court the defendant has assigned as error the trial court’s ruling on the Motion for Judgment and for Partial Satisfaction and has raised two questions of law: (1) Does a release of an insurance company under the Uninsured Motorist Coverage of an insurance policy constitute a release as to all joint tort-feasors? and, (2) If a release does not constitute a bar to an action against other joint tort-feasors, are the other joint tort-feasors entitled to a setoff in the amount of the recovery from the insurance carrier?

The Release and Trust Agreement between plaintiff and Nationwide Insurance Company provided in pertinent part as follows:

[806]*806“ . . . That, for the sole consideration of the sum of Five Thousand Five Hundred Dollars ($5,500.00), receipt of which from the Nationwide Insurance Company, designated below, (hereinafter called “Nationwide”) is hereby acknowledged, the undersigned in her capacity as an insured . . . hereby releases, discharges, and for herself, her heirs, executors, administrators, successors and assigns does forever release and discharge Nationwide of and from all claims of whatsoever kind and nature prior to and including the date hereof growing out of the Uninsured Motorist Coverage of an Automobile Insurance Policy number 91-444-492 issued by Nationwide to Anne R. Cox, and resulting or to result from an accident which occurred on October 15, 1967, at or near Carolina Ave., Chester, W. Va.
“And further: In consideration of such payment, the undersigned, for herself personally . . . agrees to take, through any representative designated by Nationwide, such action as may be necessary or appropriate to recover the damages suffered by the undersigned . . . from any person or persons, organization, association or corporation other than Nationwide who or which may be legally liable therefor and to hold any monies recovered from such person or persons, organization, association or corporation as a result of judgment or as a result of settlement with or without litigation, in trust for Nationwide to be paid to Nationwide immediately upon recovery thereof; provided, however, that any sum recovered in excess of the amount paid to the undersigned by Nationwide as consideration for this Release and Trust Agreement plus all expenses, court costs and attorney fees in connection therewith shall be retained by the undersigned and . . . the undersigned hereby agrees to reimburse, indemnify and save harmless said Nationwide against any further claims under said policy resulting from the above accident . . . hereby waiving any and all rights of exemption, both as to real and personal property, to which the undersigned may be entitled by the laws of any state as against such claims [807]*807for reimbursement or indemnity.” [Emphasis supplied]

In order for a release of one joint tort-feasor to bar an action against another joint tort-feasor, it must appear from the terms of the release that the injured party acknowledged complete satisfaction for all of his injuries. Conley v. Hill, 115 W.Va. 175, 174 S.E. 883 (1934). In the case at bar the release given by the plaintiff, Mrs.

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Cox v. Turner
207 S.E.2d 152 (West Virginia Supreme Court, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
207 S.E.2d 152, 157 W. Va. 802, 1974 W. Va. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-turner-wva-1974.