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Kindred Nursing Centers Limited Partnership v. Overstreet

Court of Appeals of Kentucky

August 9, 2013

KINDRED NURSING CENTERS LIMITED PARTNERSHIP D/B/A HARRODSBURG HEALTH CARE CENTER; KINDRED NURSING CENTERS EAST, LLC; KINDRED HOSPITALS LIMITED PARTNERSHIP; KINDRED HEALTHCARE, INC.; KINDRED HEALTHCARE OPERATING, INC.; AND KINDRED REHAB SERVICES, INC. D/B/A PEOPLEFIRST REHABILITATION APPELLANTS/CROSS-APPELLEES
v.
JAMES OVERSTREET, ADMINISTRATOR OF THE ESTATE OF LULA BELLE GORDON, DECEASED APPELLEE/CROSS-APPELLANT

APPEAL FROM MERCER CIRCUIT COURT HONORABLE DARREN W. PECKLER, JUDGE ACTION NO. 11-CI-00296

BRIEFS FOR APPELLANTS/CROSSAPPELLEES: Donald L. Miller, II J. Peter Cassidy, III Kristin M. Lomond Louisville, Kentucky.

BRIEFS FOR APPELLANTS/CROSSAPPELLEES: Donald L. Miller, II J. Peter Cassidy, III Kristin M. Lomond Louisville, Kentucky Louisville, Kentucky.

BRIEFS FOR APPELLEE/CROSSAPPELLANT: Corey T. Fannin Robert E. Salyer Lexington, Kentucky.

ORAL ARGUMENT FOR APPELLEE/CROSS-APPELLANT: Robert E. Salyer Lexington, Kentucky.

BEFORE: ACREE, CHIEF JUDGE; STUMBO AND VANMETER, JUDGES.

OPINION

STUMBO, JUDGE

Kindred Nursing Centers LTD Partnership, d/b/a Harrodsburg Health Care Center, et.al. (hereinafter collectively referred to as "HHCC") appeal from an Amended Order and Declaratory Judgment of the Mercer Circuit Court in favor of James Overstreet, Administrator of the Estate of Lula Belle Gordon, deceased. HHCC argues that the circuit court erred in failing to conclude that Overstreet's action alleging personal injury and violation of Kentucky's Resident Rights Statute (KRS Chapter 216) was time-barred as having been brought outside the one or two year statutory period for personal injury actions. Based on Allen v. Extendicare Homes, Inc., 2012 WL 6553823 (Ky. App. 2012), we conclude that KRS Chapter 216 merely codifies common law liability and does not create a new theory of liability. We find as controlling the one or two-year period of limitation for personal injury actions set out in KRS 413.140 or KRS 413.180, rather than KRS 413.120(2)'s five-year period of limitation for statutory actions. Accordingly, we Affirm in Part and Reverse in Part the Amended Order and Declaratory Judgment on appeal.

The facts are not in dispute. HHCC is a health care facility located in Harrodsburg, Kentucky, which provides a range of services from short term rehabilitation to long term care. On March 5, 2002, Lula Belle Gordon ("Mrs. Gordon") was admitted to HHCC for long term care. She died as a resident of the facility on May 17, 2008.

Slightly over three years after Mrs. Gordon's death, James Overstreet filed the instant action against HHCC in his capacity of Administrator of Mrs. Gordon's estate. Overstreet's action alleged that HHCC's treatment of Mrs. Gordon during her residency at the facility violated Kentucky's Resident Rights Statute (KRS 216.515). Specifically, Overstreet alleged that Mrs. Gordon suffered physical injuries to her person by "accelerated deterioration of her health and physical condition beyond that caused by the normal aging process, as well as the following injuries: a) pressure sores; b) urinary tract infections; c) upper respiratory infection; d) infections; e) falls; f) bruising; g) skin tears; h) fracture; i) weight loss; j) dehydration; k) subdural hematoma; and l) death." The complaint also alleged that Mrs. Gordon suffered "unnecessary loss of personal dignity, extreme pain and suffering, hospitalizations, degradation, mental anguish, disability, disfigurement and loss of life, all of which were caused by the wrongful conduct of [HHCC.]"

On October 5, 2011, HHCC filed an Amended Answer and Counterclaim for Declaratory Relief, along with a CR 12.02(1) Motion to Dismiss. As a basis for the motion, HHCC argued that Overstreet was prosecuting a personal injury action which must be brought, if at all, within either one or two years of Mrs. Gordon's death.[1] Conversely, Overstreet argued that the one or two-year period of limitation was not applicable. He maintained that KRS 413.120's five-year period of limitation was applicable as the cause of action was created by statute. After a hearing on the matter was conducted, the Mercer Circuit Court denied HHCC's motion upon determining that Overstreet was asserting a statutory action which was governed by the five-year period of limitation. The court granted the remaining Kindred defendants' motion to dismiss.

On December 12, 2011, HHCC moved the court to alter or amend its Order. To preserve its right to appeal, HHCC also filed a Notice of Appeal on December 16, 2011. Overstreet cross-appealed. On January 12, 2012, the Mercer Circuit Court declined to consider HHCC's motion to alter or amend the Order on the basis that the court lost jurisdiction. Thereafter, on February 17, 2012, a panel of the Court of Appeals directed the parties to file a motion in Mercer Circuit Court seeking a written Order disposing of the issues raised in HHCC's Motion to Alter or Amend.

The matter was remanded to Mercer Circuit Court, whereupon the court rendered an Amended Order and Declaratory Judgment on March 12, 2012. The Judgment held in relevant part that Overstreet was entitled to exercise the five-year statute of limitation for statutory actions rather than the one or two-year period for personal injury and wrongful death actions, that he had standing to prosecute the action, and that the Kindred co-defendants were not long term care facilities and were therefore dismissed. This appeal followed.

HHCC now argues that the Mercer Circuit Court erred in denying its Motion to Dismiss Overstreet's action as time-barred. At the heart of HHCC's claim of error is its contention that Overstreet's action - though characterized by Overstreet as a statutory claim asserting residents' rights - is in fact nothing more than a classic common law personal injury and wrongful death action and is therefore subject to the one or two-year periods of limitation for personal injury claims rather than the five-year period for statutory claims. While acknowledging that Overstreet sought to assert a KRS Chapter 216 action (residents' rights), HHCC notes that the underlying damage claims set out in the complaint are merely personal injury allegations such as bruising, infection, fractured bone, dehydration and death. HHCC cites case law it contends is supportive of the proposition that the true nature of the cause of action depends on the allegations set out in the complaint considered as a whole, rather than the plaintiff's subjective characterization of the complaint. Moreover, HHCC notes that the nature of the relief sought - money damages - demonstrates that this is clearly an action arising from bodily injury. Finally, HHCC alleges that an action under KRS Chapter 216 may be brought for two purposes: 1) to enforce resident rights, and 2) to recover actual and punitive damages. Since Mrs. Gordon is no longer a resident at HHCC, it argues that Overstreet clearly is not seeking "to enforce" Mrs. Gordon's rights under ...


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