United States District Court, E.D. Kentucky, Central Division, Frankfort
CHRISTOPHER A. CURTIS and CHRISTINA CURTIS, Plaintiffs,
COAST TO COAST HEALTHCARE SERVICES, INC. and RICHARD PRETORIUS, M.D., Defendants. and HUMANA HEALTH PLAN, INC., Intervening Plaintiff,
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge.
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.
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.
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.]
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.]
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
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.
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).
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.
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.
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
(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
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