Bradford, J.
Case Summary
In December of 2012, Sharon Clearwaters died as a result of medical complications after taking Levofloxacin. In November of 2013, Appellant Plaintiff David Shelton, in his position as personal representative for Clearwaters’s estate, filed a proposed complaint with the Indiana Department of Insurance (“IDI”) against Appellee-Defendant Kroger Limited Partnership I, John Doe, M.D. (“Dr. Doe”) and ABC, Inc. (“ABC”).[Footnote omitted.] After receiving notice from the IDI that only Dr. Doe and ABC were qualified providers under the Indiana Medical Malpractice Act (“Medical Malpractice Act”), Shelton filed a wrongful death complaint in the trial court against Kroger, Dr. Doe and ABC. In this complaint, Shelton alleged that in light of other medications which Clearwaters took in connection with a chronic heart condition, Dr. Doe and ABC were negligent in prescribing Clearwaters with Levofloxacin and Kroger, the pharmacy which filled the prescription, was negligent in filling the prescription. Dr. Doe and ABC were eventually dismissed from the underlying trial court action after settling with Shelton.
Following the dismissal of Dr. Doe and ABC, Kroger sought and received permission to amend its answer to Shelton’s complaint to assert a non-party defense as to Dr. Doe and ABC. Kroger also filed a motion for partial summary judgment in which it sought a judicial ruling that it was entitled to a credit or set-off for Shelton’s settlement with Dr. Doe and ABC. Shelton opposed Kroger’s motion, arguing that under the Indiana Comparative Fault Act, Kroger was not entitled to a credit or set-off and that Kroger’s only remedy was to name Dr. Doe and ABC as non-parties and to ask the jury to apportion them fault. The trial court subsequently issued an order granting Kroger’s motion for partial summary judgment. Concluding that the trial court erred in granting Kroger’s motion for partial summary judgment, we reverse and remand the matter to the trial court with instructions.
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Shelton contends that the trial court erred in granting summary judgment in favor of Kroger. In making this contention, Shelton argues that under Indiana’s Comparative Fault Act, Kroger was not entitled to receive a credit or set-off in relation to Shelton’s settlement with Dr. Doe, ABC, and the IPCF. Shelton further argues that the only way by which Kroger could seek to limit its potential liability at trial would be to name Dr. Doe and ABC as non-parties and to ask the jury to apportion them fault.
For its part, Kroger argues that the trial court properly granted its motion for partial summary judgment because the Comparative Fault Act does not apply to cases involving claims of medical malpractice. In support, Kroger cites to the Indiana Supreme Court’s decision in Indiana Department of Insurance v. Everhart, 960 N.E.2d 129 (Ind. 2012) and our opinion in Palmer v. Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093 (Ind. Ct. App. 2007). As is discussed in both Everhart and Palmer, Indiana Code section 34-51-2-1(b)(1) expressly states that the Comparative Fault Act does not apply to an action brought against a qualified health care provider for medical malpractice. In addition, the Indiana Supreme Court held in Everhart that the law allowing for credits and set-offs remains good law for cases that involve joint tortfeasors but fall outside the Comparative Fault Act. 960 N.E.2d at 139.
In this case, the IDI determined that Kroger was not a qualified health care provider under the Medical Malpractice Act. Kroger, therefore, was not exempted from the Comparative Fault Act. As such, both Everhart and Palmer can be easily distinguished from the instant matter because in both cases, the party seeking the credit or set-off was a qualified health care provider who was being sued for malpractice and, thus, was exempt from the Comparative Fault Act.
Because Kroger was not exempted from the Comparative Fault Act, Kroger was not entitled to receive a credit or set-off with relation to Shelton’s settlement with Dr. Doe, ABC, and the IPCF. See R.L. McCoy, 772 N.E.2d at 989-91; Mendenhall, 728 N.E.2d at 144-45. As such, we conclude that the trial court erred in granting Kroger’s motion for partial summary judgment and reverse the trial court’s order granting said motion. We further instruct the trial court that on remand, Kroger may only seek to limit its potential liability through its asserted non-party defense.
The judgment of the trial court is reversed and the matter remanded to the trial court with instructions.
Pyle, J., and Altice, J., concur.