Dr. Best argued that because she never actually treated Jenkins she did not owe any duty to Jenkins. The trial court agreed and granted summary judgment. On appeal BHE and another doctor, Dr. Farmer, filed a notice of appeal. Dr. Best and University Associates moved to dismiss the appeal based on the lack of standing of BHE and Dr. Farmer to contest the summary judgment. The court noted:
It is a universal rule that a joint tort-feasor . . . will not be heard to complain on appeal . . . that the suit was dismissed as to a co-defendant.Dr. Farmer and BHE agreed this would be the case, except for the Supreme Court's adoption of comparative fault in Hilen v. Hays. The court asked:
Did Hilen create the right of a defendant in a tort action to appeal the dismissal of his co-defendant where such right did not previously exist? Appellants claim Hilen did create such a right. They identify it as “the right of the appellants for an apportionment of fault.While the court agreed that this right existed, "it does not give a party the right to apportion fault to persons whose liability has been judicially determined not to exist. In this case, Dr. Farmer's and Baptist Hospital's right to apportion liability to Dr. Best and University Associates was extinguished when summary judgment was granted in their favor."
The court discussed the ancient origins of apportionment of fault among joint tortfeasors. It noted that the apportionment of fault among joint tortfeasors was well established long before Hilen was announced. Therefore, the court concluded, "that Hilen created no new right to apportionment of fault among joint tort-feasors." It further noted that if such a "right" was created it was taken away by KRS 411.182, which does not allow apportionment against a defendant who is found not legally liable.
The court found that Dr. Best and University Associates were not legally liable. It summarized its decision; "The claim that Dr. Best and University Associates are directly liable to Jenkins is her claim to assert. When that claim was denied, it was her right to appeal the decision. However, Dr. Farmer and Baptist Hospital are no more entitled to appeal the trial court's denial of Jenkins' claim than they would have been to file it in circuit court in the first place."
Recall my concerns and criticisms of an unpublished case by another panel of the court of appeals in Apportionment Claim? There I criticized the opinion, which seemed to create a "cause of action or claim" for apportionment, which previously did not exist. This published opinion addresses that criticism. There is no "claim" for apportionment. Apportionment is a procedure to be applied when you have joint tortfeasors, to determine the extent of each tortfeasor's fault. While a defendant has a "right" to have fault apportioned among codefendants, this "right" does not exist when the other defendant bears no percentage of fault to the plaintiff. Because there is no "claim" for apportionment, the defendant has no standing to appeal the grant of summary judgment to a codefendant based on such a claim. That standing belongs to the only party that has a claim against that defendant, the plaintiff.