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 peti tion for rehearing. The materials submitted by appellant have been reviewed by the members of the hearing panel, who conclude that the original dispo sition was correct. Therefore, the petition for rehearing is denied on the merits.-2-

By this order, however, please be advised of the fo llowing amendment to the order and judgment filed January 28, 1997. Foo tnote 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 summ ary judgment should not be entered in favor of the remaining def endants. Midwest failed to respond and the district court subsequent ly entered summary judgment for the remaining defendants. Although Mi dwest referred to this second order in its notice of appeal, it fa iled to brief the issues presented by the second order. Therefore, this cou rt considers these issues abandoned and waived on appeal. See , Phillips v. Calhoun , 956 F.2d 949, 954 (10th Cir. 1992) (issues designat ed 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By /s/ Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 ju dgment should not be entered in favor of the remaining defendants. Midw est failed to respond and the district court subsequently entered summary judgment for the remaining defendants. Although Midwest referred to this seco nd 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 o n appeal. See Phillips v. Calhoun , 956 F.2d 949, 954 (10th Cir. 1992) (issues design ated 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 listedin 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. (Ken nedy). We hold that the grant of summary judgment to General was error, andwe reverse. We review the grant of summary judgment de novo andapply the same standard used by the district court. Applied Genet ics Int’l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). Summary ju dgment 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. Kenne dy, 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 pr ovided coverage for prior acts from January 1, 1976 to July 1, 1990. In August 19 90, Kennedy became aware that the policy was issued on a nonexistent insuran ce company and was bogus. Allegedly on instructions from General, Kennedy del ayed notifying Midwest until April, 1991, at which time Kennedy replaced the bog us policy with a legitimate policy, but without the prior acts coverage. Midwe st 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 byGeneral as Kennedy’s errors and omissions carrier. In return, Midwest e xecuted a general release and filed a satisfaction of judgment and release, ackno wledging full satisfaction of the judgment. Midwest then brought a second suit against defendants, claiming gross negligence, bad faith, intentional interference wit h a business contract, conspiracy-4-

to defraud, and ratification based on Midwest’s all egation that on the instructions of E & O Professionals, an agent of General, Kennedy delayed advising Midwest of the bogus policy. Midwest claimed that this del ay prevented it from obtaining comparable coverage for the same premium. Defendants moved for dismissal claiming that any ac tion against them was barred by the terms of the general release executed by Midwest and the satisfaction of judgment and release filed in the a ction against Kennedy, and that Midwest was attempting impermissibly to split a cau se of action. Midwest asserted that the claims against General were separ ate and distinct from those brought against Kennedy, and that the releases did not purport to release General from individual torts. Midwest further asserted th at 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, Midwes t does not contest the res2 In its answer brief, General attempts to appeal the district court’s res

judicata determination. Although an appellee may d efend a judgment without filing a cross appeal, an appellee may not attack alower 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 argu ments 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 satisf action of judgment and release and general release bar the claims against General.
DISCUSSION Following settlement in the suit against Kennedy, M idwest 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 authoriz ed and directed to make an entry of the satisfaction on the judgmen t docket. Midwest City Regional Hospital hereby fully release s Ben Kennedy & Associates, Inc., its officers, directors , shareholders, agents, employees, representatives and errors and o missions carriers from any liability related to or arising from the c auses of action set forth in the above-styled case. Appellee’s Supp. App. at 15-16. In addition, altho ugh 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 rec eipt in hand of Eight Hundred Thousand Dollars ($800,000.00) from B en Kennedy & Associates, Inc., and in consideration of said sum, Midwest City Regional Memorial Hospital Authority, d/b/a MidwestCity Regional3 At times relevant to this case, Okla. Stat. Ann. ti t. 12, § 832(H)(1) and (2)

provided: H. When a release, covenant not to sue or a simila r agreement is given in good faith to one of two or more persons l iable in tort for (continued...) -6- Hospital, does hereby release Ben Kennedy & Associates, Inc., its officers, directors, shareholders, agents, employee s and representatives . . . and Ben Kennedy & Associates , Inc.’s insurers and their agents, representatives and employees, to gether with their heirs, successors, estates or assigns, from liabili ty as surety and indemnitor of Ben Kennedy & Associates, Inc., for a ny and all allegations, claims, causes of action and damages a sserted in the case styled Midwest City Regional Hospital v. Ben Kennedy & Ass ociates, 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 Contrib ution Among Tortfeasors Act (UCATA), Okla. Stat. Ann. tit. 12, § 832, under Oklahoma law, “where a release contained broad language . . . see mingly releasing the entire world,” interpretation was limited to the plain lan guage of the release, and all other potential tortfeasors were discharged from li ability. Moss v. City of Oklahoma City , 897 P.2d 280, 284 (Okla. 1995) (citing Brown v. B rown , 410 P.2d 52 (Okla. 1966)).
In Moss , the Oklahoma Supreme Court, considering the appli cability of section 832(H)(1) 3 of the UCATA to the question, adopted the “specifi c identify3 (...continued)

the same injury or the same wrongful death: 1. It does not discharge any of the other tort-fea sors from liability for the injury or wrongful death unless its terms s o provide; but it reduces the claim against others to the extent of a ny amount stipulated by the release or the covenant, or in th e amount of the consideration paid for it, whichever is the greater ; and 2. It discharges the tort-feasor to whom it is giv en from all liability for contribution to any other tort-feasor.

4 We note that in 1995, section 832(H)(1) was amendedto 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 discha rge potential tortfeasors not parties to the release from liability, “the languag e contained in the release must expressly designate by name or otherwise specifical ly identify such other potential tortfeasors.” 4 Id. at 286, 288. Oklahoma has published a line of cases following Mo ss which further define and refine its policy regarding the effect o f 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 m edical attention to the deceased after an automobile accident. The court h eld that there were genuine issues of fact precluding summary judgment as to wh ether 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 Hoytcourt stated that the Oklahoma Supreme Court’s rec ent 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. Bell er , 914 P.2d 1051 (Okla. 1996) recognized that the amendment to the UCATA, section 832(H), served to overrule the rule that there cann ot 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 result ing from improper treatment, after settlement with full release of the tortfeaso r 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 di scharge any subsequent health care provider unless the health care provider is na med 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 n ot require that the parties be joint tortfeasors to be applicable, but only that t he multiple tortfeasors cause or contribute to the same injury sustained by the plai ntiff. The applicability of section 832(H) thus turns, not on whether the parti es 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 Gener al 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 err ors and omissions carrier for Kennedy, and one as a potential tortfeasor alle gedly causing Midwest to incur damages. The satisfaction of judgment and release contains language releasing “Ben Kennedy & Associates, Inc., its officers, dire ctors, shareholders, agents, employees, representatives and errors and omissions carriers from any liability related to or arising from the causes of action setforth in the above-styled case.” Appellee’s Supp. App. at 15-16 (emphasis added). T herefore, assuming the existence of common liability, the UCATA is applica ble, and General is released from all further liability as Kennedy’s errors and omissions insurer. Our question thus becomes whether the release proports to releas e 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 identi fied 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 rele ase 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 liabili ty, an independent cause of action may exist against General for the separat e harm caused by its alleged actions in instructing Kennedy to delay a disclosur e of the bogus policy to Midwest. No language in the releases can be reason ably 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 re lease at issue. In that General was not named or specifically identified in any oth er capacity other than as Kennedy’s errors and omissions carrier, the release s were not sufficient to discharge General from the liability asserted by Mi dwest 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 judgme nt is appropriate only when there is no substantial dispute as to any mate rial fact, and the movant is entitled to judgment as a matter of law). Finally, we briefly address General’s argument thatMidwest’s second suit would constitute an impermissible splitting of the cause of action. In Kirkpatrick , the Oklahoma court considered and altered the exist ing law regarding what constitutes impermissible splitting of a cause of a ction. The court concluded that when the amount of damages has been determined by a n adjudication on the merits, or when the parties agree on a settled amou nt 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 circumstanc es, allowing the plaintiff to proceed against other potential tortfeasors would “ breed inefficiency and thwart the beneficial goal of bringing finality to litigat ion.” Id. at 130. On the other hand, when “the agreed or consent judgment is merel y part of a settlement of the case never intended to discharge absent tortfeasors and never intended to represent full compensation . . . a different resul t should obtain.” Id. Here we are confronted with the unique situation wh ere an amount of damages has been determined by actual adjudication, and also where the lesser amount paid in satisfaction of the judgment was a r esult 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 inten ded as full compensation for Midwest’s damages, we see no reason to deviate fromthe Kirkpatrickreasoning. In Hoyt , the court held that summary judgment was improperbecause, although the language in the releases acknowledged full payment and satisfaction for any claim raised in the suit against the origin al tortfeasor, there was no evidence in the record showing that the amounts pai d 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 co nclusion that the amount of settlement was intended to represent full compensat ion for Midwest’s injury.5 We note that Midwest asserts that it entered into t he 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 possi ble deduction of the amount of settlement against Kennedy from any judgment that m ight 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 ag ainst 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, grantin g summary judgment to General Insurance Company of America, is REVERSED, and this matter is REMANDED to the district court for further proceedi ngs. 6

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge