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FOR PUBLICATION
ATTORNEY FOR APPELLANT: JOSEPH J. REISWERG Indianapolis, Indiana ATTORNEY FOR APPELLEE: STEVEN J. COHEN Zeigler Cohen & Koch Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOE M. CUMMINS, Appellant-Plaintiff, vs. BRENT R. MCINTOSH, M.D., Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 49A04-0506-CV-331

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Cynthia J. Ayers, Judge Cause No. 49D04-9906-CT-768

April 24, 2006

OPINION - FOR PUBLICATION

ROBB, Judge

Joe Cummins filed a complaint against Brent McIntosh, M.D. alleging medical malpractice. Dr. McIntosh filed a motion for summary judgment, which motion the trial court granted. Cummins now appeals. We reverse and remand. Issue The sole issue raised by Cummins is whether the trial court properly granted summary judgment for Dr. McIntosh. Facts and Procedural History 1 The facts, taken in part from previous opinions in this case, are as follows: [I]n October 1992, [Cummins] fractured his right femur and hip while deer hunting near Greenwood, Indiana. As a result of his injuries, Dr. McIntosh performed surgery on Cummins, inserting an intramedullary nail in Cummins' femur and fixating his hip with screws. Cummins was hospitalized for approximately one month. In November and December 1992, Cummins was off work, on crutches, and in physical therapy. On December 4, 1992, Dr. McIntosh took an x-ray of Cummins' femur. The x-ray report noted "a paucity of callus formation at the distal femoral fracture," and that "[i]t would be nice to see more callus formation." Dr. McIntosh took another x-ray on January 11, 1993, and noted an "interval improvement in the callus formation," and he instructed Cummins to "gradually increase weight bearing." Cummins went off his crutches in late March 1993, and was released back to work in late April 1993. On June 6, 1993, Cummins "felt something strange in his leg." Dr. McIntosh took an x-ray, and discovered that the intermedullary nail had broken. Dr. McIntosh removed the nail and replaced it with a larger one. After the second surgery, Cummins experienced more turmoil than he had with the first nail, and it was discovered that there was a misalignment, that the fracture was causing pain by putting stress on the knee. Cummins opted to see another physician, Dr. Frank Kolisek who explained the misalignment, and cut a wedge out of Cummins' femur and changed the angle of the bone. After six months, Cummins' pain had not subsided and Dr. Kolisek referred Cummins to Dr. Kevin Scheid. Dr. Scheid explained that Cummins' bones were not healing properly and a bone graft would have to be
We held oral argument in this case in Indianapolis, Indiana, on February 24, 2006, as part of an Indiana Trial Lawyer's Association program. We commend counsel for their advocacy.
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performed. Dr. Scheid placed a plate outside Cummins' femur and secured it with screws. On June 9, 1995, Cummins filed his proposed complaint with the Indiana Department of Insurance, alleging that Dr. McIntosh breached the applicable standard of care by permitting Cummins to return to work and to full weight bearing without the benefit of x-rays to determine if the bones had properly healed. The Medical Review Panel issued its opinion finding that "the evidence does not support the conclusion that Defendant, Brent R. McIntosh, M.D., failed to meet the applicable standard of care as charged in the Complaint." McIntosh v. Cummins, 759 N.E.2d 1180, 1182-83 (Ind. Ct. App. 2001), trans. denied (footnotes, parantheticals, and citations omitted) (hereinafter referred to as "Appeal I"). Also on June 9, 1995, Cummins filed a complaint in the Johnson Circuit Court against Smith & Nephew, alleging that the intermedullary nail was negligently designed, sold, and manufactured, as well as "defective and unreasonably dangerous." Cummins's suit against Smith & Nephew was subsequently removed to federal court. Cummins v. McIntosh, 803 N.E.2d 1155, 1157 (Ind. Ct. App. 2004) (hereinafter referred to as "Appeal II"). On November 5, 1998, Cummins signed a release as part of a settlement in the federal case against Smith & Nephew. The release reads in relevant part: RELEASE OF ALL CLAIMS KNOW ALL PERSONS BY THESE PRESENTS: That Joe M. Cummins, being of lawful age, for the sole consideration of Six Thousand and No/100 Dollars ($6,000.00) to the undersigned in hand paid, receipt whereof is hereby acknowledged, does hereby individually and for his heirs, executors, administrators, successors and assigns RELEASE, ACQUIT AND FOREVER DISCHARGE Smith & Nephew North America and Smith & Nephew Richards, Inc., d/b/a Smith & Nephew North America, and their agents, servants, successors, heirs, executors, administrators, insurers, partners, limited partners, and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of services, expenses, attorney fees, and compensation whatsoever, which the undersigned now has OR WHICH MAY HEREAFTER ACCRUE on account 3

of or in any [way] growing out of any and ALL KNOWN AND UNKNOWN, FORESEEN AND UNFORESEEN, ANTICIPATED AND UNANTICIPATED bodily and personal injuries and the consequences thereof resulting or to result from an incident which occurred on or about June 9, 1993, when the Recon Nail (which was implanted in Joe M. Cummins' leg in October of 1992) failed. IT IS UNDERSTOOD AND AGREED that this settlement is a compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid further litigation and buy their peace. THE UNDERSIGNED HEREBY DECLARES AND REPRESENTS that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release, it is understood and agreed that the undersigned relies wholly upon the undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed. THE UNDERSIGNED FURTHER DECLARES AND REPRESENTS that no promise, inducement or agreement not herein expressed has been made to the undersigned and that this Release contains the entire agreement between the parties hereto, and that the terms of the Release are contractual and not a mere recital. ... THE UNDERSIGNED FURTHER DECLARES AND REPRESENTS that he will dismiss with prejudice the action in the United States District Court, Southern District of Indiana, Indianapolis Division entitled Joe M. Cummins, Plaintiff, v. Smith & Nephew Richards, Inc. d/b/a Smith & Nephew North America, Defendant, Cause No. IP95-903-C-M/S. THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT. Signed, sealed and delivered this 5 day of Nov., 1998. CAUTION: READ BEFORE SIGNING BELOW /s/ Joe M. Cummins Appellant's Appendix in Appeal II at 229-31. 2

Cummins filed a motion with this court to incorporate into the record of this appeal the appendices filed in the previous appeals. Cummins' motion was granted, and therefore, we have before us three separate appendices, which will be designated herein as "Appellant's App. in Appeal I," "Appellant's App. in Appeal

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On May 28, 1999, Cummins filed a complaint against Dr. McIntosh in Marion Superior Court alleging that he was negligent in allowing Cummins "to return to work and place weight on his fractured leg [and] in removing the broken nail at the time of surgical replacement." Id. at 13. In June 1999, Dr. McIntosh filed a motion for summary judgment in which he asserted that Cummins had failed to establish the existence of a genuine issue of material fact regarding whether he conformed to the applicable standard of care. The trial court denied Dr. McIntosh's motion, and this court affirmed on interlocutory appeal. McIntosh, 759 N.E.2d at 1185. In 2002, Dr. McIntosh became aware of the release that Cummins had signed in the Smith & Nephew proceeding. On December 18, 2002, McIntosh filed a motion for summary judgment, asserting that Cummins had "barred himself from pursuing any and all claims against any and all persons that purport to arise from the occurrence in question." Appellant's App. in Appeal II at 203. In support of his motion, McIntosh designated inter alia Cummins' release. On February 5, 2003, Cummins filed a response to McIntosh's motion, designating his affidavit in which he avers it was not his intent when signing the release to release Dr. McIntosh from liability. On April 14, 2003, Master Commissioner Cheryl Boone and Judge Cynthia Ayers both signed an entry granting summary judgment to Dr. McIntosh. Cummins appealed, and because of a procedural defect in the summary judgment order, we remanded to the trial

II" and "Appellant's App."

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court. 3 On remand, the parties submitted proposed findings of fact and conclusions of law, and the trial court entered the following order, which, after recitation of the salient facts, concluded as follows: CONCLUSIONS OF LAW In Huffman v. Monroe County Community School Corporation (588 N.E.2d 1264 (Ind. 1992)), the Indiana Supreme Court abrogated the principle of law that a release of one joint tortfeasor automatically releases all other joint tortfeasors. The Court held that a release should henceforth be interpreted according to the standard rules of contract law with the parties' intentions regarding the purpose of the document governing. A release executed in exchange for proper consideration works to release only those parties to the agreement "unless it is clear from the document that others are to be released as well." Language in a release document which releases "all persons" is clear as long as no other terms are contradictory. The test for determining whether an ambiguity exists is whether reasonable persons would find the contract subject to more than one interpretation. If the language of a release document is clear and unambiguous, the intent of the parties is to be determined by reviewing the language contained between the four corners of the instrument. A reasonable person construing the "Release of All Claims," signed by [Cummins], would be led to the interpretation: that [Cummins] was releasing "all other persons . . . from any and all claims, actions, causes of action, demands, rights, damages . . . on account of or in any [way] growing out of any and all known and unknown, foreseen and unforeseen, anticipated and unanticipated bodily and personal injuries and the consequences thereof resulting or to result from an incident which occurred on or about June 9, 1993, when the Recon nail (which was [implanted] in [Cummins'] leg in October of 1992) failed." The "Release of All Claims," signed by [Cummins], is clear and unambiguous. No language in the "Release of All Claims" contradicts the notion that "all other persons," including [Dr. McIntosh], were also being released for damages caused by the breaking of the nail on June 9, 1993. There exists no genuine issue as to any material fact and [Dr. McIntosh] is

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The entry, which found only that the motion should be granted without also stating the facts upon which the recommendation was based, did not comply with Indiana Code section 33-5.1-2-11(e), which provides that a commissioner shall report the findings in each of the matters before the commissioner in writing to the judge. Cummins, 803 N.E.2d at 1160. We therefore remanded for the master commissioner to enter more specific findings. Id.

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entitled to judgment as a matter of law for the reason that [Cummins] has executed a full, final "Release of All Claims," whereby he has barred himself from pursuing any and all claims against any and all persons that purport to arise from the occurrence in questions, [sic] including [Dr. McIntosh]. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Judgment is entered for [Dr. McIntosh]. There is no just reason for delay. [Dr. McIntosh's] Second Motion for Summary Judgment is granted. Appellant's App. at 64-66. 4 Cummins again appeals to this court. Discussion and Decision I. Summary Judgment Standard of Review On appeal from a grant of summary judgment, our standard of review is the same as that of the trial court. Wilcox Mfg. Group, Inc. v. Marketing Services of Indiana, Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005). We stand in the shoes of the trial court and apply a de novo standard of review. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Robson v. Texas Eastern Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied; Ind. Trial Rule 5(H). Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 5(C). For summary judgment purposes, a fact is "material" if it bears on the ultimate resolution of relevant issues. Wilcox Mfg. Group, Inc., 832 N.E.2d at 562. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving

Contrary to Indiana Appellate Rules 46(A)(10) and 46(B), neither party included a copy of the written opinion on appeal.

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party. Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans. denied. A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Wilcox Mfg. Group, Inc., 832 N.E.2d at 562. Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court. Troxel Equip. Co., 833 N.E.2d at 40. We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id. II. Effect of Release Cummins contends that the trial court erred in granting summary judgment to Dr. McIntosh based upon his execution of a release in the federal lawsuit against Smith & Nephew. He contends that, by the clear and unambiguous terms of the release, Dr. McIntosh is not included in the release, and therefore, Dr. McIntosh is not entitled to summary judgment as a matter of law. He also contends that if the release is ambiguous, his affidavit regarding the intent of the parties to the release is relevant and raises at least a genuine issue of material fact precluding entry of summary judgment. A. Law Regarding Releases We note first the difference between joint and successive tortfeasors: "The actions of joint tortfeasors unite and combine to form a single injury. Successive tortfeasors, on the 8

other hand, are those whose respective negligent acts are independent of one another and produce different injuries." Depew v. Burkle, 786 N.E.2d 1144, 1147 (Ind. Ct. App. 2003), trans. denied (citations omitted). Indiana traditionally adhered to the common law doctrine that release of one joint tortfeasor operated as a release of all other tortfeasors, even in the face of express agreements between the parties that it should not prevent the victim from proceeding against other actors. See Bellew v. Byers, 272 Ind. 37, 396 N.E.2d 335, 336-37 (1979). In Huffman v. Monroe County Cmty. Sch. Corp., 588 N.E.2d 1264 (Ind. 1992), our supreme court abandoned the common law rule in favor of the rule set forth in the Restatement (Second) of Torts: "`a valid release of one tortfeasor from liability for harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them.'" Id. at 1267 (quoting Restatement (Second) of Torts

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