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STATUTE OF LIMITATIONS - MEDICAL NEGLIGENCE - INDEMNITY - § 6-5-482 - MCNAMARA V. BENCHMARK INSURANCE COMPANY

McNamara v. Benchmark Insurance Company, [Ms. 1151314, Sept. 8, 2017] __ So. 3d __ (Ala. 2017). In this plurality decision by Justice Sellers, (Stuart, C.J., and Main and Wise, JJ., concur; Bolin, Parker, Shaw, and Bryan, JJ., concur in the result; and Murdock, J., dissents), the Court reverses a summary judgment for Benchmark on an indemnity claim against McNamara, a pharmacist. Benchmark defended and subsequently settled a negligence action against McNamara’s employer. McNamara, a pharmacist, was not named by the plaintiff as a defendant in the underlying medical negligence action.

The trial court awarded judgment to Benchmark against McNamara in the amount of $465,000, the sum expended by Benchmark in defending and settling the medical negligence lawsuit.

Benchmark’s suit against McNamara was filed more than 4 years after McNamara’s mis-filling of the prescription which injured the plaintiff and gave rise to the underlying lawsuit. The Court noted that § 6-2-6, Ala. Code 1975, “provides that the statute of limitations applicable to a principal/agent indemnity claim ‘does not commence to run until the liability of the principal for the act or omission of ... [the] agent is ascertained by an action of the party aggrieved against the principal.’” Ms. *18. The Court noted, however, that

In 1975 when it adopted the AMLA, the legislature added the additional language stating that, “notwithstanding any provisions of [the listed Code sections, including what is now § 6-2-6], no action shall be commenced more than 4 years after the act, omission, or failure complained of.”

Ms. *14-15. The plurality opinion concluded that as a result of the quoted language from § 6-5-482 Benchmark’s indemnity action against McNamara, filed more than 4 years after McNamara mis-filled the prescription, was time-barred.

Justice Murdock asserts in his dissent that as recognized in Justice Shaw’s concurrence in the result “‘[u]nder the facts of this case, the statute of limitations expired under § 6-5-482(b) [, Ala. Code 1975,] before the limitations period under § 6-2-6 [, Ala. Code 1975,] began to run.’” Ms. *36, n. 7, Murdock, J., dissenting. Justice Murdock would avoid this result by holding that an indemnity action by an employer of a health care provider against its agent/employee is not an action under the Alabama Medical Liability Act and therefore not subject to § 6-5-482. Ms. *35.

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