UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MIDWEST CITY REGIONAL

HOSPITAL,

Plaintiff-Appellant,

v.

GENERAL INSURANCE COMPANY

OF AMERICA; AON DIRECT

GROUP, INC.; JOHN L. WORRALL;

WILLIAM E. BAUER; WOBAR,

INC.,

Defendants-Appellees.

Nos. 95-6434

 95-6461

ORDER

Filed March 18, 1997

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

This matter is before the court on appellant’s petition for rehearing. The

materials submitted by appellant have been reviewed by the members of the

hearing panel, who conclude that the original disposition was correct. Therefore,

the petition for rehearing is denied on the merits.
-2-

By this order, however, please be advised of the following amendment to

the order and judgment filed January 28, 1997. Footnote one on page two of the

order and judgment is amended to read:

In its order granting summary judgment to General, the district

court directed Midwest to show cause as to why summary judgment

should not be entered in favor of the remaining defendants. Midwest

failed to respond and the district court subsequently entered summary

judgment for the remaining defendants. Although Midwest referred

to this second order in its notice of appeal, it failed to brief the issues

presented by the second order. Therefore, this court considers these

issues abandoned and waived on appeal. See, Phillips v. Calhoun,

956 F.2d 949, 954 (10th Cir. 1992) (issues designated for review are

waived if not actually argued in the party’s brief); Abercrombie v.

City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990) (failure to

argue issue in appellate brief constitutes waiver, even when issue is

listed in appellant’s notice of appeal).

The amended order and judgment will reissue this date.

Entered for the Court

 PATRICK FISHER, Clerk

By /s/ 

 Deputy Clerk
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 18 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MIDWEST CITY REGIONAL

HOSPITAL,

Plaintiff-Appellant,

v.

GENERAL INSURANCE COMPANY

OF AMERICA; AON DIRECT

GROUP, INC.; JOHN L. WORRALL;

WILLIAM E. BAUER; WOBAR,

INC.,

Defendants-Appellees.

Nos. 95-6434

 95-6461

(D.C. No. CIV-95-445-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1

In its order granting summary judgment to General, the district court

directed Midwest to show cause as to why summary judgment should not be

entered in favor of the remaining defendants. Midwest failed to respond and the

district court subsequently entered summary judgment for the remaining

defendants. Although Midwest referred to this second order in its notice of

appeal, it failed to brief the issues presented by the second order. Therefore, this

court considers these issues abandoned and waived on appeal. See Phillips v.

Calhoun, 956 F.2d 949, 954 (10th Cir. 1992) (issues designated for review are

waived if not actually argued in the party’s brief); Abercrombie v. City of

Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990) (failure to argue issue in appellate

brief constitutes waiver, even when issue is listed in appellant’s notice of appeal).

-2-

Plaintiff, Midwest City Regional Hospital (Midwest), appeals the district

court’s order granting summary judgment to defendant, General Insurance

Company of America (General).1 The district court concluded that although the

claims against General were not res judicata, they were precluded by a general

release and a release and satisfaction of judgment in a prior action brought by

Midwest against Ben Kennedy & Associates, Inc. (Kennedy). We hold that the

grant of summary judgment to General was error, and we reverse.

We review the grant of summary judgment de novo and apply the same

standard used by the district court. Applied Genetics Int’l, Inc. v. First Affiliated

Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Summary judgment is

appropriate where “‘there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.’” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
-3-

FACTS AND PROCEDURAL HISTORY

The basic facts of this case are undisputed. Kennedy, an insurance broker,

issued a liability insurance policy to Midwest for the period of July 1, 1990

through July 1, 1991. The policy stated that it provided coverage for prior acts

from January 1, 1976 to July 1, 1990. In August 1990, Kennedy became aware

that the policy was issued on a nonexistent insurance company and was bogus.

Allegedly on instructions from General, Kennedy delayed notifying Midwest until

April, 1991, at which time Kennedy replaced the bogus policy with a legitimate

policy, but without the prior acts coverage. Midwest subsequently filed suit

against Kennedy asserting gross negligence, fraud, the tort of outrage, and breach

of contract.

Following trial, a jury awarded Midwest damages in the amount of

$1,675,000. The parties subsequently entered into a settlement agreement

wherein Midwest received $800,000 which was paid by General as Kennedy’s

errors and omissions carrier. In return, Midwest executed a general release and

filed a satisfaction of judgment and release, acknowledging full satisfaction of the

judgment.

Midwest then brought a second suit against defendants, claiming gross

negligence, bad faith, intentional interference with a business contract, conspiracy
-4-

to defraud, and ratification based on Midwest’s allegation that on the instructions

of E & O Professionals, an agent of General, Kennedy delayed advising Midwest

of the bogus policy. Midwest claimed that this delay prevented it from obtaining

comparable coverage for the same premium.

Defendants moved for dismissal claiming that any action against them was

barred by the terms of the general release executed by Midwest and the

satisfaction of judgment and release filed in the action against Kennedy, and that

Midwest was attempting impermissibly to split a cause of action. Midwest

asserted that the claims against General were separate and distinct from those

brought against Kennedy, and that the releases did not purport to release General 

from individual torts. Midwest further asserted that because the amount received

from Kennedy only partially satisfied the judgment, the rule against splitting a

cause of action did not apply.

The district court converted defendants’ motion to dismiss under Fed. R.

Civ. P. 12(b)(6) to a motion for summary judgment. See Fed. R. Civ. P. 12(b). 

The court determined that because Midwest was asserting separate and distinct

claims against General, its claims were not barred by res judicata, but were barred

by the language of the releases. On appeal, Midwest does not contest the res
2

In its answer brief, General attempts to appeal the district court’s res

judicata determination. Although an appellee may defend a judgment without

filing a cross appeal, an appellee may not attack a lower court judgment with a

view toward enlarging its own rights or lessening the rights of appellant without

filing a cross appeal. Hansen v. Director, OWCP, 984 F.2d 364, 367 (10th Cir.

1993). Therefore, we do not address General’s arguments on the res judicata

issue.

-5-

judicata determination,2

 but only challenges the district court’s grant of summary

judgment based on its determination that the satisfaction of judgment and release

and general release bar the claims against General.

DISCUSSION

Following settlement in the suit against Kennedy, Midwest filed a

satisfaction of judgment and full release which stated in part:

WHEREFORE, Satisfaction of the Judgment is hereby

acknowledged and the Clerk of the Court is authorized and directed

to make an entry of the satisfaction on the judgment docket.

Midwest City Regional Hospital hereby fully releases Ben

Kennedy & Associates, Inc., its officers, directors, shareholders,

agents, employees, representatives and errors and omissions carriers

from any liability related to or arising from the causes of action set

forth in the above-styled case.

Appellee’s Supp. App. at 15-16. In addition, although not filed, Midwest

executed a general release which stated:

Midwest City Regional Hospital Authority, d/b/a the Midwest

City Regional Hospital, does hereby acknowledge receipt in hand of

Eight Hundred Thousand Dollars ($800,000.00) from Ben Kennedy &

Associates, Inc., and in consideration of said sum, Midwest City

Regional Memorial Hospital Authority, d/b/a Midwest City Regional
3 At times relevant to this case, Okla. Stat. Ann. tit. 12, § 832(H)(1) and (2)

provided:

H. When a release, covenant not to sue or a similar agreement is

given in good faith to one of two or more persons liable in tort for

(continued...)

-6-

Hospital, does hereby release Ben Kennedy & Associates, Inc., its

officers, directors, shareholders, agents, employees and

representatives . . . and Ben Kennedy & Associates, Inc.’s insurers

and their agents, representatives and employees, together with their

heirs, successors, estates or assigns, from liability as surety and

indemnitor of Ben Kennedy & Associates, Inc., for any and all

allegations, claims, causes of action and damages asserted in the case

styled Midwest City Regional Hospital v. Ben Kennedy & Associates,

Inc., Case No. CJ-91-7272, filed in the District Court of Oklahoma

County, Oklahoma and in the counter-appeal styled Midwest City

Hospital v. Ben Kennedy & Associates, Case No. 83,955 in the

Supreme Court of Oklahoma.

Id. at 17-18.

Prior to Oklahoma’s adoption of the Uniform Contribution Among

Tortfeasors Act (UCATA), Okla. Stat. Ann. tit. 12, § 832, under Oklahoma law,

“where a release contained broad language . . . seemingly releasing the entire

world,” interpretation was limited to the plain language of the release, and all

other potential tortfeasors were discharged from liability. Moss v. City of

Oklahoma City, 897 P.2d 280, 284 (Okla. 1995) (citing Brown v. Brown, 410

P.2d 52 (Okla. 1966)).

In Moss, the Oklahoma Supreme Court, considering the applicability of

section 832(H)(1)3

 of the UCATA to the question, adopted the “specific identify
3

(...continued)

the same injury or the same wrongful death:

1. It does not discharge any of the other tort-feasors from liability

for the injury or wrongful death unless its terms so provide; but it

reduces the claim against others to the extent of any amount

stipulated by the release or the covenant, or in the amount of the

consideration paid for it, whichever is the greater; and

2. It discharges the tort-feasor to whom it is given from all liability

for contribution to any other tort-feasor.

4 We note that in 1995, section 832(H)(1) was amended to read, “[i]t does

not discharge any other tort-feasor from liability for the injury or wrongful death

unless the other tort-feasor is specifically named.” Okla. Stat. Ann., tit. 12, 

§ 832(H)(1).

-7-

rule” that in order for a general release to discharge potential tortfeasors not

parties to the release from liability, “the language contained in the release must

expressly designate by name or otherwise specifically identify such other

potential tortfeasors.”4 Id. at 286, 288.

Oklahoma has published a line of cases following Moss which further

define and refine its policy regarding the effect of a release given to one or more

tortfeasors on other potential tortfeasors. In Hoyt v. Paul R. Miller, M.D., Inc.,

921 P.2d 350 (Okla. 1996), the court considered an action brought for wrongful

death against the health care providers providing medical attention to the

deceased after an automobile accident. The court held that there were genuine

issues of fact precluding summary judgment as to whether two releases filed in

cases against the driver of the automobile and the driver’s insurer were intended

to represent full compensation for the plaintiff’s death.
-8-

The Hoyt court stated that the Oklahoma Supreme Court’s recent decisions

in Kirkpatrick v. Chrysler Corporation, 920 P.2d 122 (Okla. 1996), Shadden v.

Valley View Hospital, 915 P.2d 364 (Okla. 1996), and Carmichael v. Beller, 914

P.2d 1051 (Okla. 1996) recognized that the amendment to the UCATA, section

832(H), served to overrule the rule that there cannot be recovery in a malpractice

suit by one who has sustained personal injuries in consequence of a third person’s

negligence, against a physician for injuries resulting from improper treatment,

after settlement with full release of the tortfeasor who caused the injuries. Hoyt,

921 P.2d 355-56. Relying on Moss, the court then set forth the new rule that a

release given to an original tortfeasor will not discharge any subsequent health

care provider unless the health care provider is named or otherwise specifically

identified in the release. 921 P.2d at 356-57.

In Jones v. Wilson Industries, Inc. (In re Jones), 804 F.2d 1133, 1142-43

(10th Cir. 1986), we held that section 832(H) did not require that the parties be

joint tortfeasors to be applicable, but only that the multiple tortfeasors cause or

contribute to the same injury sustained by the plaintiff. The applicability of

section 832(H) thus turns, not on whether the parties are joint tortfeasors, but

whether there is a common liability. Carmichael, 914 P.2d at 1056. Although it

is unclear from the record whether common liability exists between Kennedy and

General or whether General’s actions constitute an independent and separate
-9-

cause of action, because we ultimately conclude that under either theory the

releases cannot be interpreted as discharging General from liability as a potential

tortfeasor, we do not need to make this determination here.

General wears two hats in this case, one as the errors and omissions carrier

for Kennedy, and one as a potential tortfeasor allegedly causing Midwest to incur 

damages. The satisfaction of judgment and release contains language releasing

“Ben Kennedy & Associates, Inc., its officers, directors, shareholders, agents,

employees, representatives and errors and omissions carriers from any liability

related to or arising from the causes of action set forth in the above-styled case.” 

Appellee’s Supp. App. at 15-16 (emphasis added). Therefore, assuming the

existence of common liability, the UCATA is applicable, and General is released

from all further liability as Kennedy’s errors and omissions insurer. Our question

thus becomes whether the release proports to release General as an additional

tortfeasor as well.

Our reading of the releases indicates that General, as a potential tortfeasor,

was neither named nor otherwise specifically identified as a discharged party. 

Therefore, if it is determined that common liability exists and the UCATA

applies, we must reverse on the basis that the release fails to properly identify

General as a discharged party. See Moss, 897 P.2d at 282.
-10-

If it is determined that there is no common liability, an independent cause

of action may exist against General for the separate harm caused by its alleged

actions in instructing Kennedy to delay a disclosure of the bogus policy to

Midwest. No language in the releases can be reasonably construed to discharge

General under this theory either. Cf. Shadden, 915 P.2d at 370. 

We have carefully reviewed the record on appeal and in particular, the

satisfaction of judgment and release and general release at issue. In that General

was not named or specifically identified in any other capacity other than as

Kennedy’s errors and omissions carrier, the releases were not sufficient to

discharge General from the liability asserted by Midwest in its suit. Summary

judgment in General’s favor was therefore, improper. See Wolf v. Prudential Ins.

Co., 50 F.3d 793, 796 (10th Cir. 1995) (summary judgment is appropriate only

when there is no substantial dispute as to any material fact, and the movant is

entitled to judgment as a matter of law). 

Finally, we briefly address General’s argument that Midwest’s second suit

would constitute an impermissible splitting of the cause of action. In Kirkpatrick,

the Oklahoma court considered and altered the existing law regarding what

constitutes impermissible splitting of a cause of action. The court concluded that

when the amount of damages has been determined by an adjudication on the

merits, or when the parties agree on a settled amount as full compensation for the
-11-

plaintiff’s injuries, a plaintiff is precluded from proceeding against other

tortfeasors. 920 P.2d at 129. In such circumstances, allowing the plaintiff to

proceed against other potential tortfeasors would “breed inefficiency and thwart

the beneficial goal of bringing finality to litigation.” Id. at 130. On the other

hand, when “the agreed or consent judgment is merely part of a settlement of the

case never intended to discharge absent tortfeasors and never intended to

represent full compensation . . . a different result should obtain.” Id.

Here we are confronted with the unique situation where an amount of

damages has been determined by actual adjudication, and also where the lesser

amount paid in satisfaction of the judgment was a result of settlement by the

parties. Because the adjudicated amount was never paid, and we are still faced

with the question of whether the $800,000 was intended as full compensation for

Midwest’s damages, we see no reason to deviate from the Kirkpatrick reasoning.

In Hoyt, the court held that summary judgment was improper because,

although the language in the releases acknowledged full payment and satisfaction

for any claim raised in the suit against the original tortfeasor, there was no

evidence in the record showing that the amounts paid were intended to be full

compensation for the plaintiff’s death. 921 P.2d at 354, 358. We find no

evidence in the record here upon which to base a conclusion that the amount of

settlement was intended to represent full compensation for Midwest’s injury. 
5 We note that Midwest asserts that it entered into the settlement agreement

due to Kennedy’s insolvency and pending bankruptcy. Midwest contends that the

bankruptcy court lifted the automatic stay only to the extent of the errors and

omissions policy limits, of which only $800,000 of the $1,000,000 limit available

during a policy period still remained.

6 Because the issue is not before us for decision, in reversing and remanding

this case, we make no determination as to any possible deduction of the amount of

settlement against Kennedy from any judgment that might be forthcoming as a

result of Midwest’s suit against General.

-12-

Indeed, the discrepancy between Midwest’s formally adjudicated damages of

$1,675,000 and its settlement with Kennedy for $800,000 strongly suggests the

contrary. We therefore hold that Midwest’s suit against General would not

constitute an impermissible splitting of its cause of action. 5

Accordingly, the November 8, 1995, judgment of the United States District

Court for the Western District of Oklahoma, granting summary judgment to

General Insurance Company of America, is REVERSED, and this matter is

REMANDED to the district court for further proceedings.6

Entered for the Court

Paul J. Kelly, Jr. 

Circuit Judge