ANNIE BEATRICE VICKERS V ST JOHN HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
ANNIE BEATRICE VICKERS, Personal
Representative of the Estate of DELANSO
JOHNSON, Deceased,
UNPUBLISHED
Plaintiff-Appellant,
v
No. 196365
Wayne Circuit
LC No. 94-409926 NH
ST. JOHN HOSPITAL and
JOHN E. BOCCACCIO, M.D.,
Defendants-Appellees.
Before: Holbrook, Jr., P.J. and White and R.J. Danhof,* JJ.
DANHOF, J. (concurring in part and dissenting in part).
I concur with part III of the majority’s opinion, but respectfully dissent from part II because I do
not believe that the trial court erred in ruling that there was a valid release of Dr. Boccaccio and that the
release operated to discharge the hospital from vicarious liability for any negligent acts by Dr.
Boccaccio.
In Theophelis v Lansing General Hospital, 430 Mich 473, 480; 424 NW2d 478 (1988), our
Supreme Court stated:
At common law a valid release of an agent for tortious conduct operates to bar
recovery against the principal on a theory of vicarious liability, even though the release
specifically reserves claims against the principal.
This common law doctrine is still recognized in Michigan and has not been changed by the statute
governing rights of contribution. Id.; Larkin v Otsego Memorial Hospital Ass’n, 207 Mich App 391,
393; 525 NW2d 475 (1995). Thus, any release by plaintiff of Dr. Boccaccio would have the legal
effect of discharging the hospital from vicarious liability for his negligent acts.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Plaintiff argues that the settlement agreement with Dr. Boccaccio constituted a covenant not to
sue, not a release. Unlike a release, a covenant not to sue with an agent does not discharge the
principal. Theophelis, supra at 492. The difference between a release and a covenant not to sue was
discussed in Theophelis, supra at 492, n 14:
A covenant not to sue is to be distinguished from a release in that it is not a
present abandonment or relinquishment of the right or claim. It does not extinguish the
cause of action. As between the parties to the agreement, the final result is the same in
both cases. The difference is primarily in the effect as to third parties, and is based
mainly on the fact that in the case of a release there is an immediate release or
discharge, whereas in the other case there is merely an agreement not to prosecute a
suit.
In the present case, plaintiff gave the following testimony when placing the terms of her
settlement with Dr. Boccaccio on the record:
Mr. Demczuk [Plaintiff’s attorney]: And are the terms of the settlement that,
in exchange for compensation of $10,000 to the Estate, you will dismiss Dr. John
Boccaccio as a defendant in this case, only?
Plaintiff: Yes.
Mr. Demczuk: And you still have the right to proceed with your cause of action
against the hospital?
Plaintiff: Right, yes.
The Court: Mr. Kenney, do you have any questions?
Mr. Kenney [Defense counsel]: Yes. Ms. Vickers, as the Personal
Representative of the Estate, you understand that by releasing – by settling with Dr.
Boccaccio you are releasing him from any and all liability, or of any and all claims that
you or the Estate may or may have had against Dr. Boccaccio?
Plaintiff: Yes.
Mr. Kenney: And do you believe that, that releasing Dr. Boccaccio is in the
best interest of the Estate, at this time, for the $10,000?
Plaintiff: Yes.
Mr. Kenney: Do you understand that this, once and for all, ends any claim that
you may have against Dr. Boccaccio for the claims of the death of Delanso Johnson?
Plaintiff: Yes.
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The foregoing testimony does not indicate that plaintiff simply agreed to forego suing on an existing
claim. On the contrary, the testimony reflects “a present abandonment or relinquishment” of plaintiff’s
rights and claims against Dr. Boccaccio. Plaintiff expressly acknowledged that she was “releasing” Dr.
Boccaccio of “any and all claims.” Thus, plaintiff’s settlement with Dr. Boccaccio is in the nature of a
release rather than a covenant not to sue.
The majority concludes that the settlement agreement should be declared unenforceable for
“lack of a meeting of the minds.” However, the record unambiguously reflects that the parties mutually
understood, and intended, that plaintiff was “releasing” Dr. Boccaccio from “any and all liability” and
“any and all claims.” The alleged misunderstanding in this case does not involve the intended terms of
the agreement, but rather the legal effect of the agreement to release Dr. Boccaccio from liability. Any
unilateral misunderstanding of the legal effect of the release does not abrogate the release. Theophelis,
supra at 493; Schmalzriedt v Titsworth, 305 Mich 109, 119; 9 NW2d 24 (1943); Wiersma v
Nordella, 260 Mich 574, 576; 245 NW 520 (1932); Malone v SCM Corp, 63 Mich App 11, 14;
233 NW2d 872 (1975).
Finally, I would decline plaintiff’s request to reform the release as a covenant not to sue. The
burden of proof is upon the party seeking reformation of a written instrument. River Rouge Bank v
Fisher, 372 Mich 558, 562; 127 NW2d 426 (1964). Absent a mutual mistake or a unilateral mistake
coupled with fraud, shown by clear and convincing evidence, reformation is not warranted. Theophelis,
supra at 492-493. Because plaintiff failed to show that the parties mutually intended to effectuate a
covenant not to sue rather than a release, and because plaintiff has not made any showing of fraud, I
would not reform the settlement agreement as a covenant not to sue.
In sum, I would affirm the trial court’s dismissal of Dr. Boccaccio pursuant to the release and
settlement agreement, together with the trial court’s determination that the release of Dr. Boccaccio
operated to discharge the hospital from vicarious liability for any negligent acts by Dr. Boccaccio.
However, because there was evidence that other physicians may have committed malpractice,
specifically Dr. LaPuerta, for which the hospital could be vicariously liable, I would reverse the trial
court’s order granting a directed verdict for the hospital and remand for further proceedings.
/s/ Robert J. Danhof
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