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Curtis v. Coast to Coast Healthcare Services, Inc.

United States District Court, E.D. Kentucky, Central Division, Frankfort

August 11, 2017



          Gregory F. Van Tatenhove, United States District Judge.

         This matter is before the Court on the Defendant Coast to Coast Health Care Services' (hereinafter referred to as “Coast to Coast”) Motion for Summary Judgment. [R. 48.] Coast to Coast requests that the Court enter Summary Judgment with prejudice, pursuant to FRCP 56, in their favor on all claims brought against them by the plaintiffs. After an extensive review of the record and applicable case law, Defendant Coast to Coast's Motion for Summary Judgment [R. 48] is GRANTED.


         In the instant action, Plaintiffs brought allegations against Defendant Richard Pretorius, M.D. for medical negligence and Coast to Coast under a theory of respondeat superior. [R. 1-1 at 4.] This suit is properly before this court pursuant to the court's diversity jurisdiction. Plaintiffs Christopher A. Curtis and Christina Curtis are residents of Owenton, Kentucky. [Id. at 2 ¶1-2.] Defendant Coast to Coast is incorporated in Ohio with its principle place of business in New Albany, Ohio. [Id. ¶3-4.] Defendant Pretorius is a resident of New York. [Id. ¶5.] Although no estimate was provided in the initial complaint or any subsequent document, the amount in controversy will almost certainly exceed $75, 000. [R. 1 at 3, ¶2.] None of the parties suggest that this court lacks personal or subject matter jurisdiction.

         On October 1, 2013, Defendant Coast to Coast, a health care staffing service, entered into a contractual agreement with New Horizons Medical Center to provide staffing, including doctors such as Defendant Pretorius, to service New Horizon's Owenton, Kentucky, medical facility. [R. 41-1.] Coast to Coast entered into a contract with Dr. Pretorius on February 18, 2014, for Dr. Pretorius to practice medicine and subsequently assigned him to the New Horizons Medical Center in Owenton. [Id.] On September 12, 2014, Plaintiff Christopher A. Curtis visited the New Horizons Medical Center emergency room complaining of an abscess in his right buttocks. [Id. at 2; R. 1-1 at 4 ¶14-15.] Dr. Pretorius performed a medical evaluation and treated Mr. Curtis by means of an incision, abscess drain, and packing of the wound. [R. 48-1 at 2; R. 1-1 at 4 ¶16.] Plaintiff was advised to return to New Horizons within two days if his conditions showed signs of worsening. [R. 48-1 at 2.]

         On September 14, 2014, having waited two days while still suffering from his condition, Plaintiff returned to New Horizons, where he was seen by Dr. Betty Mitchell. [Id.] Following a medical evaluation, Mr. Curtis was admitted to the hospital and was given an antibiotic IV treatment. [Id.; R. 1-1 at 5 ¶21.] The next day, Dr. Robert Hicks performed an additional evaluation and suspected that Mr. Curtis had developed Fournier's Gangrene. [R. 48-1 at 2.] Mr. Curtis was subsequently transferred to St. Elizabeth Medical Center, where Dr. Michael K. Davenport diagnosed Plaintiff with Fournier's Gangrene and performed surgical procedures to further treat the affected area. [Id.; R. 1-1 at 5 ¶23-25.]

         On September 1, 2015, Plaintiffs filed a complaint against Defendants in the Owen County Circuit Court in the Commonwealth of Kentucky alleging negligent treatment and care provided by Defendant Pretorius and vicarious liability for said treatment and care against Defendant Coast to Coast. [R. 1.] The case was subsequently removed to this Court on the grounds of diversity jurisdiction. [Id.] On September 7, 2016, Humana Health Plan, Inc. joined the suit as a plaintiff by means of an Intervening Complaint. [R. 48-1 at 3.]

         Defendant Coast to Coast filed a Motion for Summary Judgment, pursuant to FRCP 56 requesting that the Court find that Defendant Pretorius is an independent contractor and not an employee, thus Coast to Coast cannot be held liable under the respondeat superior theory espoused by Plaintiffs. [R. 48.] In response, Plaintiffs argue that Defendant Pretorius' employment status is a genuine issue of material fact in dispute and ask the Court to deny Defendant Coast to Coast's Motion for Summary Judgment. [R. 55 at 2, 15.] Now, the Court must determine whether there is a genuine issue of material fact in dispute and, if not, whether the Defendant is entitled to summary judgment.



         When sitting in diversity, a federal court applies the substantive law of the state in which it sits. Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 566 (6th Cir. 2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). However, when considering summary judgment arguments, a federal court applies the standards of Federal Rule of Civil Procedure 56 rather than Kentucky's summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr. Inc., 807 S.W.2d 476 (Ky. 1991). See Gafford v. Gen. Elec. Co., 997 F.2d 150, 165 (6th Cir. 1993). Under Rule 56, summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. A fact's materiality is determined by the substantive law, and a dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

         Summary judgment is inappropriate where there is a genuine conflict “in the evidence, with affirmative support on both sides, and where the question is which witness to believe.” Dawson v. Dorman, 528 F. App'x 450, 452 (6th Cir. 2013). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Morales v. American Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir. 1995) (quoting Liberty Lobby, 477 U.S. at 255). The Court is under no duty to “search the entire record to establish that it is bereft of a genuine issue of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Rather, “the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.” Id.


         Defendant Coast to Coast asserts that they cannot be held vicariously liable for the actions of Defendant Pretorius as the contractual language clearly defines Dr. Pretorius as an independent contractor. [See R. 48.] Plaintiffs, however, argue that the contract establishing the relationship between Defendant Coast to Coast and Defendant Pretorius is not determinative and there is a genuine issue of material fact as to whether Dr. Pretorius was an employee of Coast to Coast Healthcare Services, Inc. [R. 55 at 13.] As both sides cite extensively to the contract language, an in-depth review of the contract and circumstantial evidence is necessary to resolve this issue.

         Respondeat superior, or vicarious liability, is a doctrine that holds an employer responsible for the wrongful actions of one of their employees or agents in certain circumstances. Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005). Actions of independent contractors, however, generally do not impart liability on their employers. Foncannon v. Southeastern Emergency Physicians, LLC, 2017 WL 1362029, *3 (E.D. KY 2017) (citing Miles Farm Supply v. Ellis, 878 S.W.2d 803, 804 (Ky. Ct. App. 1994)). The parties stipulate that the factors test espoused in Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756-57 (Ky. 1955) is controlling; however, a more recent decision by the Kentucky Supreme Court added an additional factor to the analysis. In Kentucky, the determination of whether a person is an independent contractor or an employee is accomplished through a ten factor test:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relationship of master and servant; and (j) whether the principal is or is not in business.

Ky. Unemp. Ins. Comm'n v. Landmark Cmty. Newspapers of Ky., Inc., 91 S.W.3d 575, 579 (Ky. 2002) (quoting Restatement (Second) of Agency, § 220(2) (1958)). While the factor of control has traditionally been the most important consideration for courts in deciding employment status, Ky. Unemp. Ins. Comm'n held that control is not “of greater importance than the others” and thus “each case must be decided on its own particular facts.” 91 S.W.3d at 580 (quoting Locust CoalCo. v. Bennett, 325 S.W.2d 322, 324 (1959)). The following weighing of the factors, including ...

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