The opinion of the court was delivered by: JOHN PADOVA, District Judge
Plaintiffs, Norman Zitomer and Elissa Young, have brought this
action seeking a declaration that Defendants are responsible for
payment of all delay damages and post-judgment interest awarded
in Young v. Zitomer, et al., Philadelphia County Court of
Common Pleas, March Term 1999, No. 1993 ("Young v. Zitomer").
Before the Court are Defendants' Motion for Summary Judgment and
Plaintiffs' Motion for Partial Summary Judgment. For the reasons
which follow, Plaintiffs' Motion is granted and Defendants'
Motion is granted in part and denied in part.
Norman Zitomer is a physician who practices in Philadelphia.
(2d Am. Compl. ¶ 1.) In 1996 he purchased medical malpractice
insurance policy no. 547080 from The Medical Protective Company
("MedPro") with a term from July 7, 1996 to July 7, 1997 (the
"Policy"). (Defs.' Ex. B.) The Policy is an occurrence policy
which provides coverage in the amount of $200,000 per occurrence,
with a total annual aggregate limit of $600,000. (Id.) On March
15, 1999, Dr. Zitomer and six other defendants were sued in the
Court of Common Pleas of Philadelphia County for medical malpractice by
Elissa Young, one of Dr. Zitomer's patients, for negligence that
occurred in April and May 1997, during the policy period. (Pls.'
Ex. A.) Ms. Young alleged in her complaint that, as a result of
the negligent care provided by the defendants, including Dr.
Zitomer, she suffered from multiple septic emboli and her left
foot was amputated. (Id. ¶¶ 16, 30, 33, 34.) MedPro retained
Kevin Wright, Esquire to represent Zitomer in Young v. Zitomer.
(Defs.' Ex. C.) On October 1, 2001, five weeks prior to the
November 5, 2001 trial of Young v. Zitomer, MedPro sent a
letter to Zitomer enclosing a consent/non-consent to settle form.
(Id.) The letter notified Zitomer that he had the right to
consult his own attorney, at his own expense, regarding the case,
and asked him to indicate on the form whether he consented to
MedPro entering into a settlement discussion if MedPro determined
it to be reasonable to do so. (Id.) Defendants claim that
Zitomer did not consent to settle. (Defs.' Statement of Undisp.
Facts ¶ 14.) Zitomer disputes this. (Pls. Resp. to Defs.
Statement of Undisp. Facts ¶ 14.)
Young v. Zitomer went to trial in November 2001. A MedPro
claims representative approached Zitomer during the trial
regarding settlement and claims that Zitomer did not give his
consent to settle. (Defs.' Ex. D.) Plaintiffs maintain that the
claims representative did not give Zitomer all of the information
he needed to make a decision about settlement and did not ask him
to consent to settle. (Zitomer Dep. at 29, Alff Dep. at 43-44,
49-50.) On November 16, 2001, the jury returned a verdict in
favor of Young and against all defendants in the amount of
$20,800,000. Young v. Zitomer, Corrected Order (July 29, 2002).
The jury apportioned 60% of fault to Zitomer. (Id.) On July 29,
2002, the trial court molded the jury verdict to include an award
of delay damages in the amount of $3,140,236.99 in accordance
with Pennsylvania Rule of Civil Procedure 238.*fn1
Judgment was then entered as follows:
on the molded verdict in favor of the Plaintiff,
Elissa L. Young, and against the Defendants, Norman
Zitomer, M.D., Mohammad (Ahmer) Kashif, M.D.,
Allegheny University Hospitals Hahneman [sic]
Division, Allegheny United Hospitals, Inc., and
Allegheny Health, Education and Research Foundation,
jointly and severally, in the sum of $24,210,236.99
and against the Defendant, Norman Zitomer, M.D., to
the extent of sixty (60%) percent of the causal
liability apportioned by the jury in the sum of
(Id.) On July 11, 2001, Wright filed a Petition to Reduce
Security for Purposes of Appeal, asking the court to reduce the
amount of security that had to be paid into the court for the
appeal to act as a supersedeas pursuant to Pennsylvania Rule of
Appellate Procedure 1731(a). (Defs.' Ex. F.) The Petition stated that
MedPro would "pay its share of the verdict, $200,000, plus its
proportionate share of delay damages . . . or $32,791.00, into
Court pending the appeal." (Id. ¶ 11.) On August 14, 2002,
Wright filed a motion seeking permission to pay into court the
policy limits of the Policy ($200,000) and MedPro's proportionate
share of delay damages and post-judgment interest as calculated
by MedPro ($42,970.00). (Defs.' Ex. G.)
This action was filed in the Philadelphia County Court of
Common Pleas on September 30, 2002 and Young was named as one of
the Defendants. On March 13, 2003, Young settled her malpractice
action against the defendants in Young v. Zitomer in return for
the payment of $551,435.00, the promise of payment of
$2,501,790.00 from the Medical Care Availability and Reduction of
Error Fund (the "MCARE Fund"), and the assignment of Zitomer's
rights against MedPro. (Defs.' Ex. I.) Young executed a "Limited
Release" pursuant to which she agreed not to satisfy any part of
the judgment in Young v. Zitomer against the personal assets of
any of the defendants to that action, released the MCARE Fund of
any further obligation, retained her right to proceed against the
estate of the PHICO Insurance Company pursuant to a previously
filed proof of claim, and preserved her right to proceed in this
action against MedPro "and to file and proceed with any other
claim defendant Zitomer may have against said insurance company."
(Id.) Defendants subsequently moved to realign Young as a
Plaintiff in this action. That motion was granted and Defendants removed to
this Court on June 13, 2003.
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine"
if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material"
if it might affect the outcome of the case under governing law.
A party seeking summary judgment always bears the initial
responsibility for informing the district court of the basis for
its motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where
the non-moving party bears the burden of proof on a particular
issue at trial, the movant's initial Celotex burden can be met
simply by "pointing out to the district court that there is an
absence of evidence to support the non-moving party's case."
Id. at 325. After the moving party has met its initial burden,
"the adverse party's response, by affidavits or otherwise as
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary
judgment is appropriate if the non-moving party fails to rebut by
making a factual showing "sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477
U.S. at 322. The Court must view the evidence presented on the
motion in the light most favorable to the opposing party.
Anderson, 477 U.S. at 255. However, "[s]peculation, conclusory
allegations, and mere denials are insufficient to raise genuine
issues of material fact." Boykins v. Lucent Technologies, Inc.,
78 F. Supp.2d 402, 407 (E.D. Pa. 2000). Indeed, evidence
introduced to defeat or support a motion for summary judgment
must be capable of being admissible at trial. Callahan v. AEV,
Inc., 182 F.3d 237, 252 n. 11 (3d Cir. 1999) (citing Petruzzi's
IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224,
1234 n. 9 (3d Cir. 1993)). "Where, as here, cross-motions for
summary judgment have been presented, we must consider each
party's motion individually. Each side bears the burden of
establishing a lack of genuine issues of material fact." Reinert
v. Giorgio Foods, Inc., 15 F. Supp.2d 589, 593-94 (E.D.
Pa. 1998). III. DISCUSSION
The Second Amended Complaint asserts causes of action for
declaratory judgment (Count I), breach of contract (Count II) and
indemnification (Count III). The Second Amended Complaint
demands, in connection with each Count, a declaration that
Defendants are "responsible for paying the full measure of delay
damages (prejudgment interest) and post-judgment interest
presently owed to Ellisa Young under Pennsylvania law. . . ." (2d
Am. Compl. at 10, 12, 14.)
A. Joint and Several Liability
Plaintiffs have moved for summary judgment on Counts I and II
on the grounds that MedPro is obligated under the Policy to pay
all of the delay damages awarded in Young v. Zitomer and all of
the post-judgment interest which has accrued on the judgment in
that case because Zitomer is jointly and severally liable for the
entire amount of the judgment. Defendants have moved for summary
judgment on Counts I and II on the grounds that MedPro cannot be
held jointly and severally liable for delay damages and
On July 29, 2002, judgment was entered jointly and severally
against Zitomer, and the other Young v. Zitomer defendants, on
the molded verdict of $24,210,236.99, which includes delay
damages in the amount of $3,410,236.99. (Defs.' Ex. I.) The
Pennsylvania Supreme Court has held that delay damages can be
awarded against tortfeasors jointly and severally: we hold that as a general precept Rule 238 damages
awarded against all defendants in a negligence action
are properly aggregated with the verdict such that
the defendants are jointly and severally liable for
the aggregated delay damages. The fact that delay
damages under Rule 238 may be calculated in the first
instance on an individualized basis before being
aggregated with the general liability verdict does
not alter the analysis.
Allen v. Mellinger, 784 A.2d 762, 766 (Pa. 2001); see also,
Tindal v. Southeastern Pennsylvania Transportation Authority,
560 A.2d 183, 189 (Pa. Super. 1989) (en banc) ("Liability
normally follows verdict. Therefore, appellants are jointly and
severally responsible for the entire amount of delay ...