Opinion
NO. 2016-CA-001576-MR NO. 2016-CA-001684-MR
12-14-2018
CORRECT CARE SOLUTIONS, LLC; AND KIMBERLY S. DUVALL APPELLANTS v. TERRI TIGUE APPELLEE
BRIEF FOR APPELLANTS: Griffin Terry Summer Kathleen B. Wright Kyle D. Johnson Louisville, Kentucky BRIEF FOR APPELLEE: Earl M. McGuire Prestonsburg, Kentucky
NOT TO BE PUBLISHED APPEALS FROM ELLIOTT CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 15-CI-00082 OPINION AND ORDER
DISMISSING APPEALS
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BEFORE: KRAMER, J. LAMBERT, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: Correct Care Solutions, LLC, and Kimberly S. Duvall (the defendants or the appellants) have appealed from two orders of the Elliott Circuit Court ruling on their motion for a judgment on the pleadings in which they sought immunity from former employee Terri Tigue's claims for negligence and defamation based upon the exclusive remedy provision of Kentucky Workers' Compensation Act, Kentucky Revised Statutes (KRS) 342.690(1). Because we agree with Tigue that the appeals are improper, we must dismiss the above-styled appeals.
Tigue was employed as a nurse for Correct Care Solutions, LLC (CCS), and her job was to provide patient care for inmates at the Little Sandy Correctional Complex. Kimberly Duvall, also employed by CCS, was her supervisor. CCS has personnel policies and procedures in place, including a system of progressive discipline. Rather than apply the progressive discipline system, Tigue contends that Duvall slandered and libeled her to Little Sandy's warden, Joseph Meko, who then terminated Tigue's security clearance. Warden Meko ordered her not to return to the property and added her name to a list of people who could not be employed at any jail or prison in the Commonwealth. This effectively ended her employment with CCS. As a result, Tigue filed a complaint against the defendants in September 2015, seeking damages for defamation and for negligent hiring/supervision. She sought both punitive and compensatory damages for the loss of her employment as well as her mental anguish and embarrassment. In their answer, the defendants disputed her claims and specifically presented a defense that her claims were barred by the exclusive remedy provision in KRS 342.690(1). Tigue served a request for production of documents on the defendants shortly thereafter seeking documentation supporting their claimed defenses, her employment records, and email communications.
Shortly thereafter, the defendants filed a motion for a judgment on the pleadings pursuant to Kentucky Rules of Civil Procedure (CR) 12.03. They argued that Tigue's claims were barred by the exclusive remedy provision of KRS 342.690(1) as it had secured workers' compensation coverage and, in the alternative, that her complaint lacked the factual allegations necessary to support either claim. The defendants also sought a stay of the proceedings pending a ruling on the motion. In response, Tigue argued that the exclusive remedy provision of the Workers' Compensation Act did not bar relief when the actions taken were intentional and malicious, as she asserted was the case. She also asserted that genuine issues of material fact existed. In response, the defendants point out that Tigue did not address her negligent hiring/supervision claim in her response and therefore conceded that that claim was barred. Tigue disputed that she had conceded this claim in a sur-reply.
The court entered an order on October 3, 2016, denying the defendants' motion for a judgment on the pleadings, which it treated as a motion for summary judgment. The court stated that discovery had been held in abeyance and that "[w]ithout some discovery, this Court cannot even properly evaluate the allegations given the state of the pleadings, for the bare bones of the pleadingS do not provide the Court with any information regarding the defamatory conduct alleged." The court concluded that the merits of the legal arguments could be renewed once discovery had been conducted. The defendants filed a notice of appeal from this order and, separately, moved the court to stay the proceedings pending the outcome of the appeal. In response, Tigue suggested that the sole purpose of the motion was to delay the defendants from having to respond to her discovery requests.
On October 31, 2016, the circuit court entered a subsequent order to clarify the October 3rd order because it failed to distinguish between Tigue's defamation and negligent hiring/supervision claims. The court clarified that discovery would be necessary to flesh out the defamation claim and did not change that ruling, but the negligent hiring/supervision claim failed as a matter of law because it was founded in negligence and was therefore barred by the exclusive remedy provision. Therefore, the court granted the motion for a judgment on the pleadings on the negligent hiring/supervision claim and permitted the defamation claim to continue for limited discovery. The defendants filed a separate notice of appeal from this ruling, along with another motion to stay the proceedings pending the appeals, which the circuit court granted.
During the pendency of the appeals, the parties filed various motions related to the propriety of the appeals and whether one or both should be dismissed. And this Court issued a show cause order directing the appellants to demonstrate why the appeals should not be dismissed, to which the parties responded. A three-judge panel of this Court found sufficient cause not to dismiss the appeals but passed Tigue's motion to dismiss the first appeal to the merits panel. In that motion, Tigue sought a dismissal of Appeal No. 2016-CA-001576-MR on the grounds that the order was interlocutory and not yet subject to appeal as discovery was ongoing.
KRS 342.690 sets forth the exclusive remedy provision of the Workers' Compensation Act. That statute provides, in relevant part, "If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee[.]" KRS 342.690(1). In the present case, there is no dispute that CCS had secured workers' compensation insurance at the time in question. See General Elec. Co. v. Cain, 236 S.W.3d 579, 605 (Ky. 2007) ("A certification of coverage from the Department of Workers' Claims or an uncontroverted affidavit from the employer's insurer is prima facie proof that a company has secured payment of compensation for the purposes of KRS 342.690(1)."). While orders denying motions for summary judgment are generally not appealable, in Ervin Cable Construction, LLC v. Lay, 461 S.W.3d 422, 423 (Ky. App. 2015), this Court carved out an exception:
Ordinarily, a trial court's order denying summary judgment is not immediately reviewable on appeal since such an order is considered interlocutory. However, in this case Ervin Cable moved for summary judgment on grounds of absolute immunity, the denial of which is subject to immediate appeal since immunity is designed to free the possessor not only from liability, but also from the costs of defending an action. Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009). In other words, the denial of a substantial claim of immunity is an exception to the finality rule that interlocutory orders are not immediately appealable. Id.The appellants rely upon Ervin Cable and Prater to argue that the circuit court's ruling is immediately reviewable. We disagree.
Based upon our opinion in Chen v. Lowe, 521 S.W.3d 587 (Ky. App. 2017), rendered after the appeals and the passed motion in this case were filed, we hold that the appellants did not have the right to immediately seek an appeal of the circuit court's October 3, 2016, ruling that they were not immune from suit because the circuit court did not make a final ruling on immunity. In Chen, this Court considered a law school dean's motion to be dismissed from a lawsuit filed by a student who had been accused of violating the university's honor code. The circuit court denied the motion,
finding that genuine issues of material fact remained "as to whether [Dean] Chen acted outside the scope of his authority as Dean by conducting his own investigation of [Eric's] conduct, by circumventing the procedures set forth in the student handbook, and by rejecting the proposed settlement agreement he had helped induce . . ."
and, as such, "issues of material fact regarding Dean Chen's entitlement to [qualified] immunity."Id. at 590.
On appeal, we analyzed the issue as follows:
It is a well-settled principle that an order denying a dispositive motion is interlocutory and therefore generally not appealable. Gooden v. Gresham, 6 Ky.Op. 560 (Ky. 1873); Parton v. Robinson, 574 S.W.2d 679, 684 (Ky. App. 1978); Druen v. Miller, 357 S.W.3d 547, 549 (Ky. App. 2011). "The Court of Appeals has jurisdiction to review interlocutory orders of the Circuit Court in civil cases, but only as authorized by rules promulgated by the Supreme Court." KRS3 22A.020(2). One such instance in which we have jurisdiction to consider an interlocutory order is "an order denying a substantial claim of absolute immunity . . . even in the absence of a final judgment." Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). Therefore, if we were to determine that the circuit court actually denied Dean Chen's claim of immunity, we would have jurisdiction to hear his appeal. It is under this theory that Dean Chen has brought this appeal.
In denying Dean Chen's motion to dismiss, however, the circuit court did not make a final ruling on the issue of qualified immunity. Rather, the court found that there were disputed issues of material fact regarding Dean Chen's entitlement to qualified immunity. Therefore, the issue of Dean Chen's immunity remains unresolved, and the order denying his motion to dismiss is not immediately appealable. See Broughton v. Russell, No. 2009-CA-001753-MR, 2010 WL 4320436, at *2 (Ky. App. Oct. 29, 2010); Hyden-Leslie Water Dist. v. Jessie Hoskins & Perry Const., Inc., No 2010-CA-000599-MR, 2011 WL 919818, at *2 (Ky. App. Mar. 18, 2011); Adair Cty. v. Stearman, No. 2010-CA-001953-MR, 2011 WL 4103137, at *2 (Ky. App. Sept. 16, 2011).
Dean Chen argues that the circuit court's determination that there are issues of fact regarding his claim to immunity represents an incorrect view of his request for dismissal of Eric's claims against him. Dean Chen takes the position that, because he requested dismissal of Eric's claim by way of a CR 12.02 motion, it is impossible for there to be any genuine issues of material fact, as the only facts before the court were those in Eric's complaint, which were required to be taken as true. See Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007) ("It is well settled in this jurisdiction when considering a motion to dismiss under [CR 12.02] that the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true.").
We do not find this argument persuasive. A review of the circuit court's order indicates that the court considered matters outside of the pleadings. A trial court "may properly consider matters outside of the pleadings in making its decision [on a motion to dismiss]. However, reliance on matters outside the pleadings by the court effectively converts a motion to dismiss into a motion for summary judgment." D.F. Bailey, Inc. v. GRW Eng'rs, Inc., 350 S.W.3d 818, 820-21 (Ky. App. 2011) (citing McCray v. City of Lake Louisvilla, 332 S.W.2d 837, 840 (Ky. 1960); CR 12.02). Thus, when the circuit court considered matters outside of the pleadings, Chen's motion to dismiss was automatically converted into a motion for summary judgment. Accordingly, our review of the court's order denying Chen's motion to dismiss concerns whether the circuit court was correct in finding that there were genuine issues of material fact.
The circuit court's order found that it could not resolve the issue of Dean Chen's qualification for immunity based on the issues presented in the pleadings, even when construed in a light most favorable to Eric. Having reviewed the record, we agree with this
determination. At the current juncture, the factual issues remain unresolved and the immunity question remains open. We will not overstep our bounds by attempting to make findings of fact on those issues so we can determine an immunity question that the circuit court has not yet fully addressed.Chen, 521 S.W.3d at 590-91 (footnotes omitted). The appeal was ultimately dismissed as taken from a non-final and non-appealable order. Id. at 591.
In the present case, the circuit court stated in its October 3, 2016, order that "[w]ithout some discovery, this Court cannot even properly evaluate the allegations given the state of the pleadings, for the bare bones of the pleadings do not provide the Court with any information regarding the defamatory conduct alleged. Thus, at a minimum, the Plaintiff needs to be deposed or otherwise subjected to discovery herein." In the later order, the court again stated "that limited discovery is necessary to flesh out the defamation claim prior to addressing the Defendants' arguments[.]" As to the negligent hiring/supervision claim, the circuit court found the claim was founded in negligence and therefore subject to the dismissal based upon the exclusive remedy provision. In both orders, the court clearly found that some discovery had to be produced before it could rule on the immunity issue at least for purposes of Tigue's defamation claim. Therefore, based upon the holding in Chen, supra, we must hold that the circuit court has not yet entered a final ruling on the appellants' motion seeking immunity pursuant to KRS 342.690. Accordingly, we must grant the passed motion to dismiss. And because the circuit court should not have entered the October 31, 2016, order clarifying its earlier order while that order was on appeal, the second appeal must also be dismissed.
For the foregoing reasons, the above-styled appeals are hereby DISMISSED.
ALL CONCUR.
ENTERED: December 14, 2018
/s/ James H. Lambert
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANTS: Griffin Terry Summer
Kathleen B. Wright
Kyle D. Johnson
Louisville, Kentucky BRIEF FOR APPELLEE: Earl M. McGuire
Prestonsburg, Kentucky