[Cite as Weiler v. Knox Community Hosp.,

.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

RICHARD WEILER, ET AL. : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 20CA000018 : KNOX COMMUNITY HOSPITAL, ET : AL. : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 18PM01- 0014

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: June 22, 2021

APPEARANCES:

For Plaintiffs-Appellants: For Defendant-Appellant:

GERALD S. LEESEBERG FREDERICK A. SEWARDS CRAIG S. TUTTLE Poling Law Leesburg & Valentine 300 E. Broad St., Suite 350 175 South Third St., Penthouse One Columbus, OH 43215 Columbus, OH 43215 [Cite as Weiler v. Knox Community Hosp.,

.]

Delaney, J.

{¶1} Plaintiffs-Appellants Richard and Sherre Weiler appeal the October 23,

2020, judgment entry of the Knox County Court of Common Pleas granting summary

judgment in favor of Defendant-Appellee Knox Community Hospital.

FACTS AND PROCEDURAL HISTORY

{¶2} Edward Blackburn, M.D. was the primary care physician for Plaintiff-

Appellant Richard Weiler. At the time Weiler was a patient, Dr. Blackburn was an

employee, agent, and/or member of Fredericktown Family Practice, Inc., and Defendant-

Appellee Knox Community Hospital. In 2011, Dr. Blackburn ordered Weiler a Prostate-

Specific Antigen (PSA) Test to measure the amount of PSA in Weiler’s blood. The result

of that PSA test was normal. After 2011, Dr. Blackburn did not order any further prostate

cancer screening for Weiler, but Weiler thought he was receiving the PSA test in his

bloodwork ordered by Dr. Blackburn. In 2016, Weiler was diagnosed with prostate cancer.

The cancer has progressed to a stage that it is no longer responding to treatment.

{¶3} On May 22, 2017, Plaintiffs-Appellants Richard and Sherre Weiler filed a

complaint in the Richland County Court of Common Pleas against Knox Community

Hospital; Fredericktown Family Practice, Inc.; Christopher V. Blackburn as the Executor

of the Estate of Edward Blackburn, M.D.1; Sarah Jackson, CNP; and Holly Mast, CNP.

The complaint brought claims for medical negligence and failure to obtain informed

consent for the defendants’ alleged failure to conduct prostate cancer screening and

timely diagnose Weiler’s prostate cancer. The complaint alleged Dr. Blackburn was an

1 Dr. Blackburn passed away before the complaint was filed. [Cite as Weiler v. Knox Community Hosp.,

.]

employee, agent, and/or member of Fredericktown Family Practice and Knox Community

Hospital.

{¶4} Weiler voluntarily dismissed Fredericktown Family Practice, Inc. as a

defendant. Defendant Sarah Jackson, CNP filed a motion for summary judgment, which

the Richland County Court of Common Pleas granted, and Jackson was dismissed as a

party.

{¶5} The defendants also filed a motion to change venue to Knox County. The

trial court granted the motion to change venue on January 10, 2018. The complaint was

transferred to the Knox County Court of Common Pleas on January 19, 2018.

{¶6} After the transfer of the case to Knox County, Weiler dismissed Holly Mast,

CNP as a defendant. Weiler also voluntarily dismissed his claim for informed consent.

{¶7} The only claim pending was medical malpractice against the remaining

defendants, Christopher V. Blackburn as the Executor of the Estate of Edward Blackburn,

M.D. (“Estate of Dr. Blackburn”), and Defendant-Appellee Knox Community Hospital

(“KCH”).

{¶8} Weiler entered into settlement negotiations with the Estate of Dr. Blackburn

and KCH. Dr. Blackburn was the named insured on an individual insurance policy issued

by The Doctors Company. KCH was the named insured on an insurance policy issued by

Coverys Insurance Company. Dr. Blackburn and KCH were initially represented by the

same trial counsel; as the settlement negotiations progressed, however, The Doctors

Company retained separate counsel to represent it and the Estate of Dr. Blackburn during

the negotiations. [Cite as Weiler v. Knox Community Hosp.,

.]

{¶9} Weiler and the Estate of Dr. Blackburn entered into a Release and

Settlement Agreement. On April 24, 2020, Weiler voluntarily dismissed the Estate of Dr.

Blackburn as a defendant, with prejudice.

{¶10} On May 12, 2020, KCH filed a motion to compel Weiler to produce the full

and complete copy of the Release and Settlement Agreement between Weiler and the

Estate of Dr. Blackburn. KCH became aware there was allegedly language in the Release

and Settlement Agreement that would preserve the right of Weiler to continue the

negligence claim against KCH. Weiler opposed the motion and argued the parties to the

Release and Settlement Agreement agreed it was confidential. The trial court ordered

Weiler to provide only excerpted provisions of the Release and Settlement Agreement,

which were pertinent to Weiler’s reservation of rights. Weiler could make any redactions

necessary to preserve the confidentiality of the Release and Settlement Agreement.

{¶11} KCH filed a motion for summary judgment on August 31, 2020. It contended

that while Weiler brought a claim for medical negligence against both the Estate of Dr.

Blackburn and KCH, liability attached to KCH via vicarious liability through the actions of

its former employee, Dr. Blackburn. Via the Release and Settlement Agreement, Weiler

settled with and released the Estate of Dr. Blackburn from his claim of medical negligence.

Weiler voluntarily dismissed the Estate of Dr. Blackburn from the action, with prejudice.

KCH argued it was black-letter law that the settlement with and the release of the

employee who was primarily liable extinguishes the secondary liability of the employer,

KCH. Based on the Release and Settlement Agreement, there was no genuine issue of

material fact that KCH was entitled to judgment as a matter of law on the claim for medical

negligence. The redacted Release and Settlement Agreement was filed under seal. [Cite as Weiler v. Knox Community Hosp.,

.]

{¶12} Weiler filed a response to the motion for summary judgment. The Release

and Settlement Agreement defined the term “RELEASEE” to exclude Dr. Blackburn’s

employer, KCH. Weiler described the settlement with the Estate of Dr. Blackburn as a

partial settlement. Weiler argued Ohio law permitted a plaintiff to settle with a primarily

liable employee and continue to pursue vicarious liability claims against the secondarily

liable employer when the consideration paid by the employee was only a partial

satisfaction of the plaintiff’s damages.

{¶13} On October 23, 2020, the trial court granted KCH’s motion for summary

judgment. It is from this judgment that Weiler now appeals.

ASSIGNMENTS OF ERROR

{¶14} Weiler raises one Assignment of Error:

{¶15} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

APPELLEE, WRONGLY HOLDING THAT AN EMPLOYER HOSPITAL CAN ONLY BE

HELD LIABLE WHEN THE EMPLOYEE PHYSICIAN REMAINS SUBJECT TO

LIABILITY.”

ANALYSIS

{¶16} The issue before this Court is whether the trial court erred when it granted

summary judgment in favor of KCH in finding that a settlement with the employee, as the

primarily liable party, extinguishes the claim of liability against the employer, the

secondarily liable party. Based upon our interpretation of current Ohio case law on this

issue, we find the trial court did not err. [Cite as Weiler v. Knox Community Hosp.,

.]

Standard of Review

{¶17} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment. The

moving party bears the initial responsibility of informing the trial court of the basis for the

motion and identifying those portions of the record before the trial court, which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim. Dresher v. Burt,

,

(1996).

The nonmoving party then has a reciprocal burden of specificity and cannot rest on the

allegations or denials in the pleadings but must set forth “specific facts” by the means

listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v. Wheeler,

,

(1988).

{¶18} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall,

,

(1997), citing Dresher v. Burt,

,

(1996).

{¶19} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc.,

,

(1987).

Respondeat Superior

{¶20} The Ohio Supreme Court explained in Clark v. Southview Hosp. & Family

Health Ctr.,

,

(1994), that “[g]enerally, an employer

or principal is vicariously liable for the torts of its employees or agents under the doctrine

of respondeat superior.” Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio [Cite as Weiler v. Knox Community Hosp.,

.]

St.3d 594,

,

. The Court adopted a theory of

vicarious liability in Albain v. Flower Hosp.,

,

(1990).

It held that “[i]t was a fundamental maxim of law that a person cannot be held liable, other

than derivatively, for another’s negligence. * * * [T]he most common form of derivative or

vicarious liability is that imposed by the law of agency, through the doctrine of respondeat

superior.” Wuerth, ¶ 20 quoting

, overruled on other grounds by Clark,

. Vicarious liability “depends on the existence of control by a

principal (or master) over an agent (or servant), terms that [the Court] have used

interchangeably.” Wuerth at ¶ 20 citing Hanson v. Kynast,

,

(1986).

{¶21} In the instant case, the employment relationship between of KCH and Dr.

Blackburn is not before this Court. The parties agree that Dr. Blackburn was an employee

of KCH and acting within the scope of his employment at the time of the alleged medical

negligence.

{¶22} The Ohio Supreme Court analyzed the issue of respondeat superior in Natl.

Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth,

,

,

. Wuerth involved a claim for legal malpractice against the attorney and

law firm filed in federal court. The district court dismissed the attorney from the suit

because the statute of limitations for legal malpractice had expired before the complaint

was filed. Moore v. Mount Carmel Health System,

,

, ¶ 26

(10th Dist.), citing

. The district court next dismissed the vicarious liability

claim against the law firm because there was no legally cognizable claim against the

attorney, and the law firm did not directly practice law.

citing

. On appeal [Cite as Weiler v. Knox Community Hosp.,

.]

to the Sixth Circuit Court of Appeals, the court certified a question to the Ohio Supreme

Court whether Ohio law permits a legal malpractice claim to “’be maintained directly

against a law firm when all of the relevant principals and employees have either been

dismissed from the lawsuit or were never sued in the first instance.’” Moore at ¶ 27 citing

¶ 9.

{¶23} In Wuerth, the Ohio Supreme Court examined its prior holdings as to the

respective liabilities of a principal and agent:

“For the wrong of a servant acting within the scope of his authority, the

plaintiff has a right of action against either the master or the servant, or

against both, in separate actions, as a judgment against one is no bar to an

action or judgment against the other until one judgment is satisfied.” [Losito

v. Kruse,

,

(1940)], citing Maple v.

Cincinnati, Hamilton & Dayton RR. Co. (1883),

. See also

State ex rel. Flagg v. Bedford (1966),

, 47–48,

,

(“This court follows the rule that until the injured party

receives full satisfaction, he may sue either the servant, who is primarily

liable, or the master, who is secondarily liable, and a mere judgment

obtained against the former is not a bar to an action or judgment against

the latter”). “The plaintiff, in any event, can have but one satisfaction of his

claim.” Losito, 136 Ohio St. at 187–188,

,

.

Although a party injured by an agent may sue the principal, the agent, or

both, a principal is vicariously liable only when an agent could be held

directly liable. As we held in Losito, for example, “[a] settlement with and [Cite as Weiler v. Knox Community Hosp.,

.]

release of the servant will exonerate the master. Otherwise, the master

would be deprived of his right of reimbursement from the servant, if the

claim after settlement with the servant could be enforced against the

master.” Id. at 188,

,

, citing Herron v.

Youngstown (1940),

,

,

; Bello

v. Cleveland (1922),

,

; Brown v. Louisburg

(1900),

,

. Similarly, in Comer v. Risko,

,

,

, we recognized that “[t]he

liability for the tortious conduct flows through the agent by virtue of the

agency relationship to the principal. If there is no liability assigned to the

agent, it logically follows that there can be no liability imposed upon the

principal for the agent's actions.” (Emphasis added.) Id. at ¶ 20, citing Losito

and Herron. See also Munson v. United States (C.A.6, 1967),

(applying Ohio law and stating that “the master's sole liability depends

upon a finding of liability on the part of the servant, so he cannot be held

accountable where there is no such finding”).

Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth,

, 2009-Ohio-

3601,

. The Court did not decide whether the judgment

dismissing the law firm should be affirmed but answered the certified question by holding,

“[a] law firm does not engage in the practice of law and therefore cannot directly commit

legal malpractice.”

. The Sixth District Court of Appels then affirmed the

dismissal of the law firm based on the dismissal of the attorney. Natl. Union Fire Ins. Co.

of Pittsburgh, PA v. Wuerth,

(6th Cir. 2009). [Cite as Weiler v. Knox Community Hosp.,

.]

Plaintiff’s Settlement and Release of the Employee

{¶24} There is no factual dispute that Weiler entered into a Release and

Settlement Agreement with the Estate of Dr. Blackburn. The terms of the Release and

Settlement Agreement were confidential, and the majority of the agreement filed under

seal with the trial court was redacted. The unredacted portion of the Release and

Settlement Agreement defined the “Releasees” as “CHRISTOPHER V. BLACKBURN,

Individually and as Executor of the Estate of Edward D. Blackburn, Edward D. Blackburn

(Deceased) and THE DOCTORS COMPANY.” The redacted agreement stated, “[t]he

definition of RELEASEES shall not include Knox Community Hospital.” Weiler

characterized the Release and Settlement Agreement as a partial settlement of his claim

for medical negligence. Due to the redactions, we are unable to recite the terms of the

agreement as to compensation for Weiler’s injuries.

{¶25} The issue before this Court is whether Weiler’s settlement and release of

his claims with the Estate of Blackburn extinguished his claims of vicarious liability against

KCH. We look to Comer v. Risko,

,

,

,

where the Ohio Supreme Court favorably cited to three decisions from the First District

and Eighth District that found settlement with the employee, the primarily liable party,

extinguishes the liability of the employer, the secondarily liable party:

An example is Radcliffe v. Mercy Hosp. Anderson (May 14, 1997),

Hamilton App. Nos. C–960424 and 960425,

, a wrongful-

death case filed against Mercy Hospital and two physicians, both

independent contractors who had treated the plaintiff at Mercy. The plaintiff

settled her claim against the first physician, and the court granted summary [Cite as Weiler v. Knox Community Hosp.,

.]

judgment in favor of the second physician. The court, in turn, granted

summary judgment to the hospital on the issue of its liability for the alleged

negligence of the independent-contractor physicians. The court concluded

that once the primary liability was extinguished, either by settlement and

release or by a favorable judgment, the secondary liability was necessarily

extinguished also.

citing Losito v. Kruse. “[T]here can be no vicarious

liability imputed to a principal, if there is no liability on the part of the agent.”

In Wells v. Spirit Fabricating, Ltd. (1996),

,

, [appeal not allowed,

,

(1997),] the appellate court concluded that the plaintiff's settlement with and

release of the employee/defendant also released the employer. An

“employer cannot be found to be liable for negligence he did not commit.

The employer's liability is dependent on the negligence of the employee.

Since the plaintiff released [the employee] for his negligence, there is no

basis to support plaintiff's claim against Spirit [the employer].” Id. at 294,

.

Likewise, in Dickerson v. Yetsko (Nov. 22, 2000), Cuyahoga App. No.

77636,

, [appeal not allowed,

,

(2001)], the plaintiff settled with and executed a release to Dr.

Yetsko. The court held that the release extinguished the secondary liability

of Meridia Hospital because the hospital's liability, if any, was secondary to

and derived solely from the primary liability of its agent. If the liability of the [Cite as Weiler v. Knox Community Hosp.,

.]

primarily liable party was extinguished, the liability of the secondarily liable

party was likewise extinguished.

Comer v. Risko,

,

,

, ¶¶ 21-23.

{¶26} The rationale of the rule espoused in Losito is “to protect the employer’s

indemnification rights against the employee, who bears primary liability.” Wells v. Spirit

Fabricating, Ltd.,

,

(8th Dist. 1996). “’[W]here

a person is chargeable with another's wrongful act and pays damages to the injured party

as a result thereof, he has a right of indemnity from the person committing the wrongful

act, the party paying the damages being only secondarily liable; whereas, the person

committing the wrongful act is primarily liable.' quoting Travelers Indemn. Co. v.

Trowbridge (1975),

,

,

. It logically follows

that release of the employee from liability would thwart the employer's ability to seek

reimbursement from the employee for payments made to the plaintiff by destroying the

employer's subrogation rights. Wells,

,

.” Comer,

, ¶ 24.

{¶27} The Wells case further held that a partial satisfaction and a reservation of

right to pursue a claim against the secondarily liable party would bar the claim:

Also, although there is only a partial satisfaction and plaintiff reserved

her right to pursue a claim against defendant, the plaintiff cannot do so. The

Ohio Supreme Court in Krasny–Kaplan v. Flo–Tork, Inc. (1993),

,

, held:

“The concept of indemnity embraces aspects of primary and secondary

liability. Indemnification occurs when one who is primarily liable is required [Cite as Weiler v. Knox Community Hosp.,

.]

to reimburse another who has discharged a liability for which that other is

only secondarily liable. See Prosser & Keeton on Torts (5 Ed. 1984) 341,

Section 51. In the present case, no liability of either defendant to the plaintiff

was found. Therefore, the traditional understanding of indemnity cannot

apply, because appellee was never determined to be primarily liable.”

(Emphasis sic.)

The court in Munson v. United States (C.A.6, 1967),

,

also applied the above principle as follows:

“It should be clear that the primary-secondary characterization of the

relationship between master-servant is a definition of their rights between

themselves and has no bearing on their liability to the third party who has

been injured. Thus, the master's right to indemnity from his servant, by way

of subrogation to plaintiff's claims, is the crucial factor in releasing the

master when the servant is released. It is not, as the Government contends,

based on some abstract dissolution of the underlying liability to the plaintiff

which occurs when the servant releases him for less than full compensation

and plaintiff reserves his rights against the master. That view would seem

to be an erroneous application of the rule that where master and servant

are joined by plaintiff in one suit, a verdict against the master will not be

allowed when the servant is simultaneously exonerated. In that situation,

the master's sole liability depends upon a finding of liability on the part of

the servant, so he cannot be held accountable where there is no such

finding.” [Cite as Weiler v. Knox Community Hosp.,

.]

Wells v. Spirit Fabricating, Ltd.,

,

(8th

Dist. 1996).

{¶28} When it answered the certified question as to the liability of a law firm based

on the alleged malpractice of a non-party attorney, the Ohio Supreme Court in Wuerth

acknowledged the similarities in legal and medical malpractice claims and utilized

precedent in the medical malpractice arena. Moore at ¶ 28. In Moore v. Mount Carmel

Health System,

,

(10th Dist.), the Tenth District Court

of Appeals examined the conflict in the districts whether Wuerth should be applied to

medical malpractice claims:

Several districts in Ohio have applied Wuerth to bar malpractice claims

against a medical or dental group where the allegedly negligent doctor or

dentist was either not included or was not timely sued. See Hignite v. Glick,

Layman & Assocs., Inc., 8th Dist. Cuyahoga No. 95782,

,

, ¶ 13 (dental malpractice claim against dental office

barred because statute of limitations against dentist had expired);

Whitcomb v. Allcare Dental & Dentures, 8th Dist. Cuyahoga No. 97141,

,

, ¶ 9-10 (same); Rush v. Univ. of

Cincinnati Physicians, Inc.,

,

, ¶ 23 (1st Dist.)

(allegedly negligent doctor was not named in suit); Wilson v. Durrani, 1st

Dist. Hamilton No. C-130234,

,

, ¶ 15

(release of another party included claims against doctor; therefore, doctor's

practice could not be vicariously liable); Henry v. Mandell-Brown, 1st Dist.

Hamilton No. C-090752,

,

, ¶ 14 (claims [Cite as Weiler v. Knox Community Hosp.,

.]

against doctor were not filed within the limitations period); Smith v. Wyandot

Mem. Hosp., 3d Dist. Wyandot No. 16-14-07,

,

, ¶ 17, fn. 4 (same); Brittingham v. Gen. Motors Corp., 2d Dist.

Montgomery No. 24517,

,

, ¶ 50-51

(malpractice claim against General Motors, which hired company doctor,

was not allowed where doctor was not timely sued).

In contrast, a number of districts have distinguished Wuerth or found it

inapplicable where claims against hospitals and their employees are

concerned. See Stanley v. Community Hosp., 2d Dist. Clark No. 2010-CA-

53,

,

, ¶ 22; Cope v. Miami Valley Hosp.,

,

,

(2d Dist.);

Taylor v. Belmont Community Hosp., 7th Dist. Belmont No. 09 BE 30, 2010-

Ohio-3986,

, ¶ 30-34; Henik v. Robinson Mem. Hosp.,

9th Dist. Summit No. 25701,

,

, ¶ 19;

Cobbin v. Cleveland Clinic Found.,

,

, ¶ 30

(8th Dist.).

Moore v. Mt. Carmel Health Sys., 10th Dist. No. 2017APE-10-754,

,

,

, ¶¶ 32-33.

{¶29} We acknowledge the conflicts in the appellate districts as to the issue of

vicarious liability and medical malpractice claims against hospitals and their employees.

Our review of the law, however, shows that Losito and its progeny, which includes Wuerth,

are currently valid precedent to resolve this appeal. “We * * * take this opportunity to

remind the lower courts in this state that they are required to follow our precedent. State [Cite as Weiler v. Knox Community Hosp.,

.]

v. Fips,

,

,

, ¶ 10 citing Smith v. Klem,

,

(1983), citing Merrick v. Ditzler,

,

264,

(1915).

{¶30} We note that as of the date of this opinion, the Ohio Supreme Court has

accepted for review the appeal of Clawson v. Heights Chiropractic Physicians, LLC., 2nd

Dist. Montgomery No. 28632,

, appeal accepted for review,

,

,

, where the issue before the Supreme Court

is whether, “once an physician/employee’s liability has been extinguished for alleged acts

of malpractice the claimant can no longer pursue vicarious liability claims sounding in

respondeat superior against the corporate employer of the physician.”

Covenant Not to Sue vs. General Release

{¶31} Weiler also contends this case is distinguishable because the Release and

Settlement Agreement only provided for a partial settlement, and he reserved his right to

pursue a claim against KCH. He cites this Court to Riley v. City of Cincinnati,

,

(1976). In Riley, the plaintiff suffered an injury after she

stepped in a hole in a sidewalk. She sued the abutting property owners and the City of

Cincinnati for her injuries. After the abutting property owners were dismissed from the

action pursuant to a covenant not to sue executed by the plaintiff, the matter went to trial

against the city and the jury returned a verdict for the plaintiff. On appeal, the Supreme

Court held the covenant not to sue was not a bar to further proceedings against the city.

It held:

When an injured plaintiff brings a tort action against two tortfeasors, the

liability of one being primary and the liability of the other being secondary, [Cite as Weiler v. Knox Community Hosp.,

.]

and, prior to the trial of the action, plaintiff executes for a valuable

consideration a covenant not to sue in favor of the defendant primarily

liable, the consideration therefor being only for partial satisfaction of

plaintiffs damages, such covenant is not a bar to further proceedings in the

pending cause. (Diamond v. Davis Bakery,

,

, approved and followed.)

Riley v. City of Cincinnati,

,

(1976), paragraph one

of syllabus. In resolving the matter, the Court examined the language of the covenant not

to sue. It held that a covenant not to sue was “nothing more or less than a contract and

should be so construed.”

. The Court found the terms of the contract (1) clearly

stated that the consideration to be paid was only a partial compensation for the injury

received, acknowledging she had suffered injuries in excess thereof; (2) it did not

“release” any party but promised only to “cease and desist from prosecution” of the

present action against the abutting property owners only; and (3) it expressly excepted

and reserved all rights the plaintiff had against the city.

.

{¶32} The Eighth District Court of Appeals examined a covenant not to sue in

Leon v. Parma Community Gen. Hosp.,

,

(8th Dist.

2000). The administrator of the patient’s estate sued the hospital, alleging vicarious

liability and negligent credentialing of the physician. The hospital impleaded the physician

and radiology group in a third-party complaint for indemnity. The administrator executed

a covenant not to sue with the physician and radiology group in exchange for $700,000.

The covenant not to sue constituted a “full and final consideration of any and all claims or

rights or cause of action” against the physician and radiology group. Id. at 97. The [Cite as Weiler v. Knox Community Hosp.,

.]

covenant not to sue expressly reserved the right to bring claims against the hospital.

The administrator then settled his claim with the hospital. The only claim remaining was

the third-party indemnification claim of the hospital against the physician and radiology

group. Id. at 99.

{¶33} Counsel for the physician and radiology group filed a motion for summary

judgment pursuant to Radcliffe and Wells arguing the administrator’s settlement with the

primarily liable parties extinguished the hospital’s secondary liability. Id. The issue was

whether the covenant not to sue had the effect of a release to extinguish the secondary

liability of the hospital and preclude the indemnification claim. Id. The Eighth District found

there was a difference between a covenant not to sue and a release:

A covenant not to sue is nothing more than a contract and should be

construed as such. Diamond v. Davis Bakery, Inc. (1966),

,

,

. Limited by the language of

the contract and the intent of the parties, a covenant not to sue will be

upheld as such if it clearly states that (1) the consideration paid was only a

partial compensation for the injury sustained; (2) the plaintiff was not

“releasing” the other party from any claim, but promised only to “cease and

desist” from further prosecution of the present action; and (3) the plaintiff is

reserving its rights to pursue other claims. See Riley,

,

,

. A release, on the other hand, is

unqualified and absolute in its terms and gives rise to a rebuttable

presumption that the injury has been fully satisfied. Whitt v. Hutchison

(1975),

,

, 34–35,

. [Cite as Weiler v. Knox Community Hosp.,

.]

It is well established that a plaintiff may settle a claim for partial

satisfaction with one tortfeasor and execute a covenant not to sue. The

covenant will not, however, act as a bar to further litigation against another

tortfeasor who is also liable even where the suit is brought against a party

who is only secondarily liable and who may have a right of indemnity against

the party in favor of whom the covenant not to sue was executed. Whitt, 43

Ohio St.2d at 60–61, 72 O.O.2d at 34–35,

. A covenant

not to sue that does not purport to release a cause of action and does not

expressly recognize that the consideration paid thereunder as full

satisfaction for the injury will not bar actions against others for causing the

injury where the injury has not been fully compensated. Id.; see, also,

Mason v. Labig (June 29, 1989), Greene App. No. 87–CA–91, unreported,

at 40–43,

.

Id. at 99-100. The court examined the language of the document executed by the

administrator, the physician, and radiology group and concluded it was a covenant not to

sue as opposed to a general release. Id. Because it was a covenant not to sue, the court

found Radcliffe and Wells did not apply to bar the hospital’s indemnification claim against

the physician and radiology group.

{¶34} In this case, we do not have access to the full terms of the Release and

Settlement Agreement as the courts did in Riley and Leon. The filed copy of the Release

and Settlement Agreement was redacted so that only the terms relating to the reservation

of rights were available for court’s review. In his appellate brief, Weiler contends that KCH

did not object to the redactions to preserve its claim against liability. We find this argument [Cite as Weiler v. Knox Community Hosp.,

.]

disingenuous because Weiler is relying on the terms of the Release and Settlement

Agreement that are redacted and unknown to the other parties or the court to argue for

judgment in his favor. Weiler contends the Release and Settlement Agreement was a

partial settlement. In his appellate brief he states it was a partial settlement because

Weiler “will eventually suffer a premature death as a result of his cancer, giving rise to an

entirely new and yet-to-accrue wrongful death claim.” (Appellant’s Brief, p. 20). Weiler

may amend his complaint for medical malpractice to include a claim of wrongful death at

some point in the unfortunate future, but there is no dispute that a wrongful death claim

was not pending before the trial court when Weiler and the Estate of Dr. Blackburn

entered into the Release and Settlement Agreement.

{¶35} After the moving party files its motion for summary judgment, the

nonmoving party has a reciprocal burden of specificity and cannot rest on the allegations

or denials in the pleadings but must set forth “specific facts” by the means listed in Civ.R.

56(C) showing that a “triable issue of fact” exists. Mitseff v. Wheeler,

,

(1988). Weiler has not met his burden under Civ.R. 56 for this

Court to follow the holdings of Riley and Leon to find there is a genuine issue of material

fact the Release and Settlement Agreement was not a general release, barring the

application of Losito and Wells.

Vicarious Liability Was Extinguished

{¶36} Dr. Blackburn was an employee of KCH and was acting within the scope of

his employment when he provided the allegedly negligent care to Weiler. Weiler and the

Estate of Dr. Blackburn entered into a Release and Settlement Agreement where he

settled the claim against the Estate of Blackburn but reserved his right to pursue a claim [Cite as Weiler v. Knox Community Hosp.,

.]

against KCH. Even if Weiler met his burden under Civ.R. 56 to establish there was a

genuine issue of material fact as to the terms of the Release and Settlement Agreement

regarding a partial settlement demonstrating the agreement was not a general release,

the law is clear that when there is a release of the agent, even a partial settlement with

the agent bars a claim against the principal. See

Pursuant to Losito and its

progeny, we hold that that because Weiler released the Estate of Dr. Blackburn from his

claim of medical negligence, there is no basis to support Weiler’s claim of vicarious liability

against KCH.

{¶37} Weiler’s sole Assignment of Error is overruled.

CONCLUSION

{¶38} The judgment of the Knox County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.