WILLIAM NATHAN v. ST. LUKE HOSPITALS, INC.
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RENDERED:
DECEMBER 17, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-001389-MR
WILLIAM NATHAN
v.
APPELLANT
APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE ROBERT McGINNIS, JUDGE
ACTION NO. 01-CI-00181
ST. LUKE HOSPITALS, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BUCKINGHAM, DYCHE, AND SCHRODER, JUDGES.
BUCKINGHAM, JUDGE:
William Nathan appeals from an order of the
Pendleton Circuit Court awarding summary judgment to St. Luke
Hospitals, Inc., in a lawsuit related to an automobile accident
in which Nathan was injured.
Nathan contends that the circuit
court erroneously applied the one-year statute of limitations
contained in KRS1 413.140(1)(e) rather than the two-year statute
1
Kentucky Revised Statutes.
of limitations contained in KRS 304.39-230(6), a section of the
Motor Vehicle Reparations Act (MVRA).
We agree with Nathan that
the circuit court incorrectly applied KRS 403.140(1)(e).
Nevertheless, because St. Luke is entitled to summary judgment
on the merits of Nathan’s claims, we affirm.
Viewing the evidence in the light most favorable to
Nathan, the facts are as follows.
On July 7, 2000, Nathan
checked into St. Luke Hospital in Fort Thomas to undergo tests
relating to his alcohol and drug dependency problem and for
ongoing dental infections.
Following initial testing, St. Luke
personnel told Nathan that he needed to be transferred to the
St. Luke facility located in Falmouth, Kentucky, for completion
of the testing.
The transfer was approved by Nathan’s health
insurance carrier, United Healthcare, which also agreed to pay
for the cost of transporting Nathan by cab.
St. Luke called a cab service, Diamond Cab Co., to
transport Nathan to the Falmouth facility.
by Eugene Lee, a Diamond Cab employee.
The cab was driven
According to Nathan, a
St. Luke representative walked him to the front lobby of the
hospital and told him that he was still in the care of St. Luke,
that he could not stop for any reason, that he was to go
directly to the Falmouth facility, and that he was to have no
contact with any person other than the person transporting him.
2
Nathan alleges that Lee initially attempted to
persuade him to go to someone Lee knew in Cincinnati who could
“take care” of his problem.
After Lee headed the cab toward
Cincinnati, Nathan told him that he wanted to go the Falmouth
facility.
Lee then headed the cab back in that direction.
Nathan alleges that during this time he noticed that the vehicle
was not braking and shifting properly and that Lee did not
appear to be paying close attention to the road.
During the drive to Falmouth, two deer darted in front
of the cab, and Lee slammed on the brakes.
Nathan was thrown
forward and hit the front seat headrest and/or the back of Lee’s
head, injuring his left jaw and neck.
Moments later, a vehicle
driven by George Campbell slammed into the back of the cab
causing further injury to Nathan.
On November 17, 2001, Nathan filed a civil action in
the Pendleton Circuit Court in connection with the events of
July 7, 2000.
Eugene Lee, Diamond Cab Co., and George Campbell
were named as defendants.
On May 31, 2002, Nathan filed a motion to amend his
complaint to name St. Luke as a party to the action.
The motion
was granted, and the amended complaint was filed on June 6,
2002.
In his amended complaint, Nathan alleged that at the time
of the July 7, 2000 accident, Diamond Cab Co. was acting with
the consent of, for the benefit of, and subject to the control
3
of St. Luke.
He further alleged that St. Luke had “carelessly
and negligently allowed the Defendant, Diamond Cab Company, to
transport the Plaintiff despite knowledge and belief that the
Defendant, Diamond Cab Company would operate said vehicle in a
careless and negligent manner.”
St. Luke was served on June 11,
2002.
St. Luke thereafter filed a motion for summary
judgment.
It argued that Nathan’s claim against it was barred
by the statute of limitations and, further, that Nathan had
failed to present any affirmative evidence in opposition to the
hospital’s assertion that it had no agency relationship
whatsoever with Diamond Cab Co., and had not presented
affirmative evidence that St. Luke breached any duty owed to him
by procuring Diamond Cab Co. to transport him to Falmouth.
On June 7, 2003, the circuit court entered an order
granting St. Luke’s motion for summary judgment on the basis
that Nathan failed to file his action against St. Luke within
the one-year statute of limitations contained in KRS
413.140(1)(e).
This appeal followed.
In this appeal, Nathan contends that the circuit court
erroneously granted summary judgment to St. Luke.
He maintains
that his appeal was timely filed because the two-year statute of
limitations contained in KRS 304.39-230(6) applies in this case
4
rather than the one-year statute of limitations contained KRS
413.140(1)(e).
The standard of review of a trial court's granting of
summary judgment is "whether the trial court correctly found
that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of
law."
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996).
Summary judgment is proper when it appears that it would be
impossible for the adverse party to produce evidence at trial
warranting a judgment in its favor.
James Graham Brown
Foundation, Inc. v. St. Paul Fire & Marine Insurance Co., Ky.,
814 S.W.2d 273, 276 (1991).
Moreover, we are to view the record
in the light most favorable to the party opposing the motion and
resolve all doubts in his favor.
Steelvest, Inc. v. Scansteel
Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).
KRS 413.140(1)(e) requires that an action against a
physician, surgeon, dentist, or hospital licensed pursuant to
KRS Chapter 216, for negligence or malpractice be brought within
one year from the time the cause of action arises.
The injuries
to Nathan occurred, and thus his cause of action arose, on July
7, 2000,2 whereas Nathan did not file his lawsuit against the St.
Luke until June 6, 2002.
If KRS 413.140(1)(e) applies, then
2
While Nathan alleges that the events occurred on July 7, 2000, the
defendants contend that the events occurred on July 8, 2000.
5
Nathan did not file against St. Luke within the limitations
period.
Nathan’s claims against St. Luke sound in negligence.
Nathan alleges that St. Luke was negligent in its selection of
Diamond Cab Co. as the mode of transportation to the Falmouth
facility.
Alternatively, Nathan seeks to impose vicarious
liability upon the hospital on the basis that Diamond Cab Co.
was an agent of St. Luke’s at the time of the accident.
The
vicarious liability theory asserted against St. Luke likewise
sounds in negligence as Nathan’s claim against Diamond Cab Co.
is based upon negligence.
In Hackworth v. Hart, Ky., 474 S.W.2d 377, 380 (1971),
the Kentucky Supreme Court stated, “[a]s we interpret [KRS
413.140(1)(e)], it governs all causes of action against
physicians and surgeons regardless of whether the claim be
alleged in tort or in contract.”
(Emphasis added).
While
Hackworth was concerned with a case involving a
physician/surgeon, as hospitals licensed pursuant to KRS Chapter
216 (which St. Luke is) are covered by the same rule, it follows
that the same principle stated in Hackworth applies to
hospitals, i.e., KRS 413.140(1)(e) applies to “all” tort causes
of action against hospitals.
However, KRS 304.39-230(6) "extends the statute of
limitations to two years for actions 'with respect to accidents
6
occurring in this Commonwealth and arising from the ownership,
maintenance or use of a motor vehicle,' when not 'abolished' by
the Act." (Emphasis added).3
Troxell v. Trammell, Ky., 730
S.W.2d 525, 527 (1987) (quoting Bailey v. Reeves, Ky., 662
S.W.2d 832, 833-34 (1984)); Fields v. BellSouth
Telecommunications, Inc., Ky., 91 S.W.3d 571, 572 (2002).
Under
the MVRA, "'[U]se of motor vehicle' means any utilization of the
motor vehicle as a vehicle including occupying, entering into,
and alighting from it."
KRS 304.39-020(6); Fields at 572.
The
determination of whether a plaintiff was "using" a vehicle is
made in light of the basic rule of statutory construction that
the "MVRA is to be liberally interpreted in favor of the
accident victim."
Id.; Lawson v. Helton Sanitation, Inc., Ky.,
34 S.W.3d 52, 62 (2000).
Nathan’s cause of action against
Diamond Cab Co., Lee, and Campbell arose from his “use” of the
Diamond Cab Co. vehicle as a passenger.
See D&B Coal Co., Inc.
v. Farmer, Ky., 613 S.W.2d 853, 854 (1981); Troxell at 224.
Nathan argues that the two-year statute of limitations
applies to the hospital even though it was a nonmotorist.
agree.
We
In Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984), the
plaintiff struck a cow owned by the defendant in the case.
The
trial court dismissed the action on the ground that the action
was barred by KRS 413.140 since it was not filed within one year
3
A cause of action for the type of accident occurring in this case is not
“abolished by the Act.”
7
from the date of the accident.
The Kentucky Supreme Court
reversed “[b]ecause the literal language of the MVRA extends the
statute of limitations to two years for actions ‘with respect to
accidents occurring in this Commonwealth and arising from the
ownership, maintenance or use of a motor vehicle[.]’”
833.
Id. at
The court further stated that “[t]he purview of the Act is
motor vehicle accident victims. . . . regardless of whether the
tortfeasor is a motorist or a nonmotorist.”
Id. at 835.4
In Troxell v. Trammell, Ky., 730 S.W.2d 525 (1987),
which also concerned a conflict between the provisions of KRS
413.140 and KRS 304.39-230(6), our supreme court provided
additional rationale concerning the latter’s precedence over the
former:
The one-year personal injury statute of
limitations, KRS 413.140(1)(a), is a general
statute of limitations "for an injury to the
person of the plaintiff." It does not speak
to motor vehicle accidents as such, and,
indeed, it is so old that it may well have
preexisted the advent of the motor vehicle.
On the other hand, KRS 304.39-230(6) is a
special statute of limitations, part of a
comprehensive, integrated code (the MVRA)
applicable to the rights and liabilities of
motor vehicle accident victims. Our rules
of statutory construction are that a special
statute preempts a general statute, that a
later statute is given effect over an
4
This is where the circuit court erred in the case sub judice. The circuit
court held that the two-year MVRA statute of limitations could not apply
because St. Luke was not involved in the accident. As the court in the
Bailey case noted, however, the act covers motor vehicle accident victims
regardless of whether the tortfeasor was a motorist or nonmotorist. Id.
8
earlier statute, and that because statutes
of limitation are in derogation of a
presumptively valid claim, a longer period
of limitations should prevail where two
statutes are arguably applicable. Thus the
statutory language in KRS 304.39-230(6)
applies rather than the statutory language
in KRS 413.140(1)(a) in the present
situation where the cause of action is both
a motor vehicle accident and a personal
injury claim.
Id. at 528.
Therefore, with respect to the causes of action
asserted by Nathan against St. Luke, we conclude that the twoyear statute of limitations contained in KRS 304.39-230(6) takes
precedence over the one-year statute of limitations contained in
KRS 413.140(1)(e).
Thus, we conclude that the circuit court
erred by granting summary judgment on the basis that the
limitations period had expired.
In its motion for summary judgment and in its brief in
this appeal, St. Luke has argued that it was entitled to summary
judgment on the merits because Nathan failed to present
affirmative evidence supporting his theories of liability
against the hospital so as to defeat its properly supported
motion for summary judgment.
We agree, and thus arrive at the
same conclusion as did the circuit court, albeit by a different
route.
“[A] correct decision by a trial court is to be upheld
on review, notwithstanding it was reached by improper route or
9
reasoning.
Revenue Cabinet v. Joy Technologies, Inc., Ky. App.,
838 S.W.2d 406, 410 (1992).
Nathan advances two theories of liability against St.
Luke.
First, he claims vicarious liability on the basis that
Diamond Cab Co. was an agent of the hospital at the time it was
transporting Nathan to Falmouth.
Second, he claims that St.
Luke was negligent in procuring Diamond Cab Co. as a means of
transporting Nathan because it knew, or should have known, that
Diamond Cab Co. would be careless and negligent in carrying out
this function.
First, we address Nathan’s theory that St. Luke bears
vicarious liability on the basis that Diamond Cab Co. was an
agent of St. Luke’s at the time it was transporting him to
Falmouth.
St. Luke attached the sworn affidavit of Adele
Cummins, Director of Risk Management of St. Luke, to its motion
for summary judgment.
In her affidavit, Cummins averred that
St. Luke and Diamond Cab Co. did not, at any relevant time, have
a written contract regarding the provision of taxi services;
that St. Luke has never owned or controlled Diamond Cab Co.;
that St. Luke did not own any of Diamond Cab Co.’s equipment,
including but not limited to the cab operated by Eugene Lee at
the time of the accident; that St. Luke has never been involved
in any of Diamond Cab Co.’s operations; that Eugene Lee has
never been an employee of St. Luke; that St. Luke has never
10
controlled the activities of Lee, including his activities as a
taxi cab operator for Diamond Cab Co.; and that neither Diamond
Cab Co. nor Eugene Lee have ever been employees or agents of St.
Luke.
Under common law principles of agency, a principal is
vicariously liable for damages caused by torts of commission or
omission of an agent or subagent, other than an independent
contractor, acting on behalf of and pursuant to the authority of
the principal.
Williams v. Kentucky Dept. of Educ., Ky., 113
S.W.3d 145, 151 (2003).5
In determining whether one is an agent
or servant or an independent contractor, substance prevails over
form, and the main dispositive criterion is whether it is
understood that the alleged principal or master has the right to
control the details of the work.
United Engineers &
Constructors, Inc. v. Branham, Ky., 550 S.W.2d 540, 543 (1977).
The Cummins affidavit effectively disclaims that there
was any agency or master/servant relationship whatsoever between
St. Luke and Diamond Cab Co.
In response to the affidavit,
Nathan has failed to present any affirmative evidence that St.
Luke had the right to control the details of Diamond Cab Co.’s
5
And when the principal is under a duty to provide protection for or to have
care used to protect others and confides the performance of that duty to a
servant or other person who causes harm to them by failing to perform that
duty, vicarious liability attaches even if the agent or subagent is not a
servant, i.e., is an independent contractor. Williams at 151. Such a
nondelegable duty, however, is not at issue in this case.
11
work or in any way exercised control over Diamond Cab Co. in its
function as a public conveyance.
“[A] party opposing a properly
supported summary judgment motion cannot defeat it without
presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial.”
Steelvest, Inc.
v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 482
(1991).
Accordingly, St. Luke was entitled to summary judgment
on Nathan’s theory that Diamond Cab Co. was acting as an agent
of St. Luke at the time it undertook the charge to transport
Nathan to Falmouth.
Alternatively, Nathan contends that St. Luke was
negligent by hiring Diamond Cab Co. to transport Nathan on the
basis that it knew, or should have known, that the cab company
would operate the vehicle in a careless and negligent manner.
negligence case requires proof that (1) the defendant owed the
plaintiff a duty of care, (2) the defendant breached the
standard by which his or her duty is measured, and (3)
consequent injury. Pathways, Inc. v. Hammons, Ky., 113 S.W.3d
85, 88 (2003).
It is well established that "[t]he concept of
liability for negligence expresses a universal duty owed by all
to all."
Gas Service Co., Inc. v. City of London, Ky., 687
S.W.2d 144, 148 (1985).
"The rule is that every person owes a
duty to every other person to exercise ordinary care in his
activities to prevent foreseeable injury."
12
Grayson Fraternal
A
Order of Eagles v. Claywell, Ky., 736 S.W.2d 328, 332 (1987).
However, "[i]n any negligence case, it is necessary to show that
the defendant failed to discharge a legal duty or conform his
conduct to the standard required.”
Mitchell v. Hadl, Ky., 816
S.W.2d 183, 185 (1991); Seigle v. Jasper, Ky. App., 867 S.W.2d
476, 483 (1993).
While St. Luke owed a duty to Nathan to exercise
ordinary care in selecting a mode of transporting him to
Falmouth, Nathan has failed to identify any acts or omissions by
St. Luke which involve a breach of that duty.
For example,
Nathan has failed to present any affirmative evidence that St.
Luke knew or should have known that Diamond Cab Co. was an
unsafe means for transporting Nathan to Falmouth, that Diamond
Cab Co. was in fact an unsafe means of transportation, or even
that a safer means of transportation was an available option.
There are no genuine issues of material fact
concerning the issue of whether St. Luke was negligent in
selecting Diamond Cab Co. to transport Nathan to Falmouth.
St.
Luke did not breach any duty it owed to Nathan by selecting
Diamond Cab Co. as the method of transporting him to Falmouth,
and St. Luke was entitled to summary judgment as a matter of law
under this theory of liability.
For the foregoing reasons, the judgment of the
Pendleton Circuit Court is affirmed.
13
DYCHE, JUDGE, CONCURS.
SCHRODER, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
SCHRODER, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I agree with the Majority when it ruled the two-year
statute of limitations6 applies.
the trial court.
I would reverse and remand to
The statute of limitations was an affirmative
defense and the trial court never granted summary judgment on
the merits.
As an appellate court, we cannot grant summary
judgment but must remand the matter to the circuit court where
it may consider a motion for summary judgment on the merits.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Raymond S. Bogucki
Bogucki, Knoebel, & Vice,
P.S.C
Maysville, Kentucky
James A. Comodeca
Margaret M. Maggio
Dinsmore & Shohl, LLP
Cincinnati, Ohio
6
KRS 304.39-230.
14
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