On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Dreier, Brochin and Kleiner. The opinion of the court was delivered by Dreier, J.A.D.
Defendants Dr. Joel Marmar and South Jersey Urologic Associates appeal from the dismissal of their cross-claims against Health Care Plan of New Jersey, a health maintenance organization (HCP or HMO). The cross-claims, as well as plaintiff's claims against HCP, were initially dismissed at trial on HCP's motion. Plaintiff appealed and this court reinstated plaintiff's claim. Dunn v. Praiss, 256 N.J. Super. 180, 606 A.2d 862 (App.Div.), certif. denied, 130 N.J. 20, 611 A.2d 657 (1992). Dr. Marmar and South Jersey Urologic Associates had not separately appealed from the dismissal of their cross-claims against HCP. On remand for retrial on the damage awards, the trial court held that Dr. Marmar and South Jersey Urologic Associates were barred from now asserting their cross-claims. The sole issue of this appeal is whether Dr. Marmar and his urologic group may now assert a cross-claim for contribution against the HMO. We determine that the cross-claims were neither barred nor waived. In doing so, we equate cross-claims that seek relief for acts that are proximate causes of a loss, irrespective of whether the act is a breach of a duty defined by contract or by tort law.
Plaintiff, Linda Dunn, individually and as administratrix ad prosequendum of her husband's estate, commenced this medical malpractice action after her husband's untimely death from testicular
cancer.*fn1 Initially, plaintiff named Donald Praiss, M.D., Joel Marmar, M.D., and their medical group, South Jersey Urologic Associates, as defendants. Plaintiff also named the HMO which had retained South Jersey Urologic Associates to provide services to its members, and Martha Brumbaugh, M.D., decedent's primary care physician who was an employee of HCP.
In their answer to plaintiff's complaint, Dr. Marmar, his partner, Dr. Praiss, and South Jersey Urologic Associates denied liability to the plaintiff and asserted cross-claims for contribution and indemnification against the HMO. Specifically, Dr. Marmar, Dr. Praiss and South Jersey Urologic Associates claimed that HCP was liable under the New Jersey Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq., and the New Jersey Comparative Negligence Law, N.J.S.A. 2A:15-5.1 et seq., and that HCP should indemnify them based on common law principles of indemnity as well as express or implied contract. Likewise, HCP asserted cross-claims for contribution and indemnification against Dr. Marmar, Dr. Praiss and South Jersey Urologic Associates.
During trial, all claims against Dr. Praiss were dismissed under R. 4:37-2. The trial court also dismissed plaintiff's claims against Dr. Brumbaugh and HCP under R. 4:37-2(b). The order to that effect, insofar as the HMO was released, was the basis of the first appeal. Plaintiff's claims against HCP were based on theories of contract, respondeat superior, and agency. There had been claims of negligence against the HMO in plaintiff's complaint, but no independent expert proof had been offered by plaintiff on this point at trial.
After the trial court dismissed plaintiff's claims against HCP, plaintiff's counsel inquired about the status of the cross-claims against HCP. The trial Judge admitted that he had not considered
the cross-claims. The attorney for Dr. Marmar and South Jersey Urologic Associates then stated:
I have no evidence that HCP would have done anything deemed negligent. I would not submit any evidence on that. The only thing seems to me, if counsel for the plaintiff is correct, ultimately that there was some vicarious responsibility, your Honor's comments today, they would share in that liability that we ultimately bear in this case I think takes care of that.
The trial Judge cautioned HCP:
All I say, they may be bound if, you have to look at that decision in [ Pappas v. Santiago, 66 N.J. 140, 329 A.2d 337 (1974)], they were invited if they want to continue in the participation of the trial where you are continuing along with the theory of damages because quite conceivably if there is an award and they have been let out and there's a tort feasor still remaining, they may be on the rug for damages, so they still have a right to participate in the trial if they want to.
HCP nevertheless declined to participate further in the trial, and the cross-claims were dismissed as a matter of law pursuant to R. 4:37-2.
The jury returned a verdict in favor of plaintiff against Dr. Marmar and South Jersey Urologic Associates and awarded damages in the amount of $2,904,240.54. The trial court denied the motion for a new trial brought by Dr. Marmar and South Jersey Urologic Associates.
In the initial appeal, plaintiff argued that her claims against HCP should not have been dismissed, and Dr. Marmar and South Jersey Urologic Associates alleged error in the limitation of their expert's testimony, as well as certain aspects of the damage awards. Dr. Marmar and South Jersey Urologic Associates did not cross-appeal from the dismissal of their cross-claims against HCP. We affirmed the liability judgment against Dr. Marmar and South Jersey Urologic Associates and found that the HMO was liable to plaintiff for the acts of Dr. Marmar on the theories of respondeat superior and agency. The damage award for decedent's pain and suffering was remanded for consideration of whether there should be a comprehensive damage trial, and the wrongful death and loss of consortium awards were reversed and