Albright, Justice, concurring:
I concur to the majority's
opinion based on the established principle of the rule of law, specifically,
the fact that this Court's holding in Woodrum v. Johnson, 210 W.Va.
762, 559 S.E.2d 908 (2001), remains valid.
(See footnote 1) However, for all the reasons I stated at
length in my dissent to Woodrum,
(See footnote 2) I believe that the settlement reached
between Dr. Thompson, an ostensible agent of the hospital, and the plaintiffs,
should have extinguished the plaintiffs' claims against the hospital.
(See footnote 3) This
is because the plaintiffs' derivative claims against Fairmont General arose
solely out of the agency relationship that resulted from the physician's employment
by the hospital. As I previously stated in explaining my position: [T]he
release of a wrongdoing agent should foreclose further action against the innocent
principal. 210 W.Va. at 781, 559 S.E.2d at 927.
Based on the foregoing, I respectfully concur.
A plaintiff's voluntary settlement with and release of a
defendant who is primarily liable for the plaintiff's injury does
not operate to release parties defendant whose liability is
vicarious or derivative based solely upon their relationship with
the settling defendant.
210 W.Va. at 763, 559 S.E.2d at 909.