William N. Tipton v. St. Joseph Health Systems, Inc. ( 2022 )

RENDERED: JULY 8, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0985-MR
WILLIAM N. TIPTON AND
JOANN K. TIPTON APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JULIE M. GOODMAN, JUDGE
ACTION NO. 20-CI-02904
ST. JOSEPH HEALTH SYSTEM, INC.;
CHI NATIONAL HOME CARE, INC.;
SCOTT LESLIE; TONJA LITTLE; AND
COMMONWEALTH OF KENTUCKY
EX REL. DANIEL CAMERON,
ATTORNEY GENERAL APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND GOODWINE, JUDGES.
GOODWINE, JUDGE: William and Joann Tipton appeal an August 5, 2021 order
of the Fayette Circuit Court summarily dismissing various civil claims they
asserted against the St. Joseph Health System, Inc., CHI National Home Care,
Scott Leslie, and Tonja Little (collectively the appellees). Upon review, we affirm.
The relevant background of this appeal is as follows. On September
29, 2020, the Tiptons filed suit in Fayette Circuit Court against St. Joseph Health
System, Inc.; and by March 9, 2021, they had amended their complaint to add, as
defendants, home-health service provider CHI National Home Care, Inc.; and two
of its employees, physical therapist Scott Leslie and licensed practical nurse Tonja
Little. The claims the Tiptons asserted against these individuals were “breach of
warranty,” “breach of contract,” “negligence,” “negligent supervision and
entrustment,” “estoppel,” “strict liability,” and an alleged violation of Kentucky’s
Consumer Protection Act, Kentucky Revised Statutes (KRS) 367.170 et seq.
Despite the different labels given to their claims, however, each of their claims
were of the same type.
To explain, each of the Tiptons’ claims sought to hold Leslie and
Little directly liable for damages – and St. Joseph and CHI National (Leslie’s and
Little’s ostensible employers or principals) indirectly liable – based upon the same
set of operative facts: as their complaint alleged, (1) Leslie provided “physical
therapy care in the Tiptons’ home” on July 15, 2020, and Little “provided nursing
care in the Tiptons’ home” on July 20, 2020 – dates that occurred after the
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COVID-19 emergency was declared in the Commonwealth,1 but before the
declaration expired; (2) when they cared for the Tiptons, Leslie and Little were
positive for and therefore exposed the Tiptons to the COVID-19 virus; and (3) due
to the exposure, the Tiptons contracted the virus. Because each of their asserted
claims sought to hold the appellees liable for their resulting harm, what the Tiptons
asserted against the appellees was, undisputedly, an array of what KRS 39A.275
deems “COVID-19 claims.” See KRS 39A.275(1)(a), (b), and (c).
That said, the appellees were each, undisputedly, “businesses and
service providers” engaged at all relevant times in the provision of “home-based
care and services” and “health care.” See KRS 39A.275(9)(a)6. and (b).
Accordingly, the appellees were what KRS 39A.275 deems “essential service
providers,” and each was entitled to be “considered an agent of the Commonwealth
of Kentucky for the limited purpose of providing essential services arising from
COVID-19[,]” per KRS 39A.275(9). The operative effect of KRS 39A.275
therefore rendered the appellees immune to any “COVID-19 claim[s]” not
stemming from “gross negligence, or wanton, willful, malicious, or intentional
misconduct.” See KRS 39A.275(8)(a) and (b); KRS 39A.275(9).
1
The declaration of emergency in Kentucky relating to the COVID-19 pandemic occurred on
March 6, 2020.
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As such, pursuant to KRS 39A.275, the appellees ultimately moved
for summary dismissal of the Tiptons’ claims. Responding, the Tiptons offered
several arguments in opposition that are addressed more fully below.
Notwithstanding, the circuit court granted the appellees’ motions. This appeal
followed.
We now proceed to our analysis. In its dispositive order of August 5,
2021, the circuit court determined that the health care services provided by the
appellees – the focus of the Tiptons’ claims – were discretionary functions, i.e.,
carried out “in the face of a pandemic” and thus “in a legally uncertain
environment.” It also determined KRS 39A.275 provided at least a form of
qualified official immunity to each of the appellees with respect to the Tiptons’
COVID-19 claims. And indeed, by exempting “essential service providers” from
liability for any such claims that do not involve “gross negligence, or wanton,
willful, malicious, or intentional misconduct[,]”2 that is precisely the thrust of the
statute. To explain,
[W]hen an officer or employee of the state or county (or
one of its agencies) is sued in his or her individual
capacity, that officer or employee enjoys qualified
official immunity, which affords protection from
damages liability for good faith judgment calls made in a
legally uncertain environment.
2
See KRS 39A.275(8)(b).
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Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (internal quotation marks and
citations omitted). However, the defense of qualified official immunity has no
application to torts such as gross negligence, which involve malice or willful
misconduct,3 because:
Acting with malice and acting in good faith are
mutually exclusive. . . . it is also a fact that defeats the
defendant’s assertion of qualified official immunity.
Official immunity is unavailable to public officers who
acted with the malicious intention to cause a deprivation
of constitutional rights or other injury[.]
Martin v. O’Daniel, 507 S.W.3d 1, 5 (Ky. 2016) (internal quotation marks and
citations omitted).
To be clear, the Tiptons do not take issue with any of these points.
Rather, their contentions on appeal are limited to the following: (1) KRS 39A.275
is unconstitutional because it is “special legislation;” (2) KRS 39A.275 is
unconstitutional because it violates the “jural rights doctrine;” and (3) summary
judgment was improper because, as they assert in their brief, “discovery is still
necessary to determine whether CHI, St. Joseph, and their employees, including
Defendants/Appellees Scott Leslie, and Tonja Little were grossly negligent.”
3
“Gross negligence” is defined “as being something more than the failure to exercise slight care.
We have stated that there must be an element either of malice or willfulness or such an utter and
wanton disregard of the rights of others as from which it may be assumed the act was malicious
of willful.” Cooper v. Barth, 464 S.W.2d 233, 234 (Ky. 1971) (citations omitted).
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With respect to their first argument, we disagree. The Tiptons argue,
in sum, that KRS 39A.275 qualifies as “special legislation” because section (9) of
the statute, which delineates the “essential services” to which immunity is
extended, applies to some types of businesses, but not others. Their argument
misunderstands the law. The appropriate test for determining whether a statute
qualifies as “special legislation” within the meaning of Sections 59 and 60 of the
Kentucky Constitution “is whether the statute applies to a particular individual,
object or locale.” Calloway Cty. Sheriff’s Dep’t v. Woodall, 607 S.W.3d 557, 573
(Ky. 2020). Simply put, KRS 39A.275 is not “special legislation” because it does
not relate to a particular individual, object, or locale. Rather, it applies statewide
to industries and types of businesses identified as essential-service providers, and it
applies equally to each business or individual within those industries and types of
businesses.4
With respect to their second argument, we likewise disagree that KRS
39A.275 violates the jural rights doctrine. We quote the circuit court and adopt its
analysis as follows:
4
The Tiptons’ assertion that KRS 39A.275 impermissibly differentiates between types of
businesses takes issue with classification, which could have been the subject of an equal
protection argument under Sections 1, 2, and 3 of the Kentucky Constitution. See Woodall, 607
S.W.3d at 573. However, the Tiptons never raised any such argument below or in their brief
before this Court, and it is not our prerogative to address that issue, as our review is limited to
issues specifically raised before the circuit court. Regional Jail Authority v. Tackett, 770 S.W.2d
225, 228 (Ky. 1989).
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The basic premise of the jural rights doctrine is that
Sections 14, 54, and 241 of the Kentucky Constitution,
when read together, preclude any legislation that impairs
a right of action that was recognized at common law
prior to the adoption of the 1891 Kentucky Constitution.
E.g., Caneyville Volunteer Fire Dep’t v. Green’s
Motorcycle Salvage, Inc., 286 S.W.3d 790, 800 (Ky.
2009). However, sovereign immunity, under Section 231
of Kentucky’s Constitution, prohibits suits against the
Commonwealth and its agents, absent its explicit consent.
Ky. Const. § 231.[FN]
[FN] The doctrine was first recognized in
Kentucky’s courts in 1828 “without question
or citation to authority” in Divine v.
Harvie[,] 23 Ky. (7 T.B. Mon.) 439 (Ky.
1828), Reyes v. Hardin County, 55 S.W.3d
337, 338 (Ky. 2001).
The doctrine “is a bedrock component of the American
governmental ideal[,] is a holdover from the earliest days
of the Commonwealth,” and “has been included in all
four of the Commonwealth’s constitutions and predates
each.” Id. at 799 (emphasis added; citing Ky. Ctr. for the
Arts Corp. v. Berns, 801 S.W.2d 327, 329 (Ky. 1990)).
“[S]overeign immunity is older than this
Commonwealth’s Constitution,” and the jural rights
doctrine “does not trump” sovereign immunity because
the Commonwealth had the power to immunize its agents
from suit prior to ratification of the 1891 Kentucky
Constitution. Garrison v. Leahy-Auer, 220 S.W.3d 693,
698 (Ky. App. 2006).
The legislature can enact law that extends
sovereign immunity to the private sector without running
afoul of the jural rights doctrine, when an essential
governmental function is at issue and especially to
protect the public health and safety of the
Commonwealth’s people under a police power. E.g.,
Caneyville, 286 S.W.3d at 799-806. The jural rights
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issue objection raised by the Tiptons has already been
addressed and resolved by the Kentucky Supreme Court
in 2009 in Caneyville. There, the court upheld the
extension of state sovereign – governmental, in that case
– immunity under KRS 75.070 to a local volunteer fire
department. Id[.] The statute read, in part, that when
answering a call for a fire, all “volunteer fire department
[sic] and the personnel of each . . . shall be considered an
agent of the Commonwealth of Kentucky and acting
solely in a governmental capacity [and] shall not be liable
in damages for any omission or act of commission or
negligence while answering an alarm . . . .” Id. at 795-96
(quoting Ky. Rev. Stat. Ann. § 75.070).
The plaintiff, an owner of a motorcycle business,
argued that KRS 75.070 was unconstitutional because it
violated the jural rights doctrine and wrongly barred his
lawsuit for common-law negligence against the volunteer
fire department and its personnel. Id. at 794-97. The
court framed the issue as whether the legislature “has the
right, through the enactment of legislation, to confer
immunity on . . . volunteer fire departments, or whether
jural rights preclude this grant of immunity as
constitutional.” Id. at 797. The court reasoned that “fire
departments perform a paradigmatic function of the
government in keeping the public safe from fire[.]” Id. at
799.
As to the motorcycle shop owner’s jural rights
argument, the court reasoned,
The reigning authority on the matter holds
that sovereign immunity (as embodied in
Ky. Const. § 231) will trump jural rights
(Ky. Const. §§ 14, 54[,] 241) because it is a
specific provision of the Constitution, rather
than a general provision. . . . Thus, the
crucial determination in sovereign immunity
analysis boils down to: whether the entity
being sued is the sovereign, its agency, or
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one who goes about the business of
conducting the sovereign’s work.
Therefore, if [the volunteer fire department
here] was an agent of the Commonwealth,
engaged in the Commonwealth’s work, KRS
75.070 is constitutional.
Id. at 801-02 (emphasis added). The court then reasoned
that governmental immunity would extend to an agency
of the Commonwealth when the agent performs “an
essential government function.” Id. at 804. Fire
departments were then determined to “engage in an
essential governmental function in providing for the
safety and well-being” of the Commonwealth’s citizens.
Id. at 805. “Significantly,” the Kentucky Supreme Court
further reasoned that KRS 75.070 expressly characterized
“volunteer fire departments as ‘an agent of the
Commonwealth’” that acts “in a governmental capacity.”
Id. (quoting statute). The court held that KRS 75.070
was constitutional, did not offend the jural rights
doctrine, conferred immunity to the volunteer fire
department and its personnel, and thus, precluded a suit
for damages. Id. at 807.[FN]
[FN] Other Kentucky opinions have held
that statutes conferring a form of sovereign
immunity – governmental or qualified
official – upon universities and physicians
from reporting suspected child abuse were
constitutional, satisfied an integral
government function pertaining to public
welfare, did not violate the jural rights
doctrine, and precluded lawsuits for
negligence. E.g., Garrison, 220 S.W.3d at
697-700 (construing KRS 620.050); Hazlett
v. Evans, 943 F. Supp. 785, 787-89 (E.D.
Ky. 1996) (same). Also, statutes originally
enacted in 1998 that were already within the
Statewide Emergency Management
Programs Act at KRS chapter 39A – and
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never challenged as violative of Section 59
or jural rights – grant power to the governor
to authorize the use of “the private sector” to
act as agents of the Commonwealth during
“any part of the response phase or
emergency[,]” Ky. Rev. Stat. Ann. §
39A.270(2), and also immunize private-
sector “agents or representatives of the
state” from claims of “personal injury or
property damage[,]” Ky. Rev. Stat. Ann. §
39A.280(2).
Here, the Defendants are immune from suit
because at the time of treating the Tiptons they were
agents of the Commonwealth assisting same as essential
service providers and providing an essential government
function requiring discretionary action in order to protect
the public’s health. See Caneyville, 286 S.W.3d at 804,
808; [KRS 39A.275; internal footnote omitted]. Health
care providers, health facilities, and home-based care and
services are all deemed essential service providers
carrying out the important governmental police power of
public health under the statute. [KRS 39A.275(9)(a)6.
and (b).] The Tiptons’ claims all arise from COVID-19.
The Defendants are “deemed essential service providers
and shall be considered an agent of the Commonwealth
of Kentucky for the limited purpose of providing
essential services arising from COVID-19.” [KRS
39A.275(9)]. As an agent of the Commonwealth, the
Defendants “shall not be liable for any COVID-19
claim,” absent [“gross negligence, or wanton, willful,
malicious, or intentional misconduct.” See KRS
39A.275(8)(b).]
Lastly, the Tiptons argue summary judgment was improper because
“discovery is still necessary to determine whether CHI, St. Joseph, and their
employees, including Defendants/Appellees Scott Leslie, and Tonja Little were
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grossly negligent.”5 As this tends to indicate, the Tiptons are not asserting that
they presented any evidence of gross negligence capable of withstanding summary
judgment. See Kentucky Rule of Civil Procedure (CR) 56. Indeed, they cite no
such evidence. Instead, the crux of their argument is that they would like more
time to gather more evidence in support of their claims.
However, “[t]he trial court’s determination that a sufficient amount of
time has passed and that it can properly take up the summary judgment motion for
a ruling is reviewed for an abuse of discretion.” Blankenship v. Collier, 302
S.W.3d 665, 668 (Ky. 2010). Here, absent from the Tiptons’ argument is any
contention that the circuit court abused its discretion in this regard. Furthermore,
no such abuse is apparent from the record. Questions of immunity should be
addressed promptly at the outset of a suit, considering that immunity is not just
5
As an aside, the circuit court disposed of the Tiptons’ “gross negligence” claims in two separate
ways. First, it concluded its order by stating, “The Tiptons have not alleged gross negligence in
their Second Amended Complaint.” Second, in disposing of the Tiptons’ claims based upon the
qualified immunity granted by KRS 39A.275, the circuit court effectively determined the record
only sustained that the appellees acted in good faith – which would run contrary to any assertion
of malice or gross negligence. See Martin, 507 S.W.3d at 5; see also Yanero v. Davis, 65
S.W.3d 510, 523 (Ky. 2001) (explaining it is the plaintiff’s burden, for purposes of defeating a
claim of qualified immunity, to adduce evidence that good faith was lacking); see also Furlow v.
Sturgeon, 436 S.W.2d 485, 486 (Ky. 1968) (citation omitted) (explaining “effect must be given
to that which is unavoidably and necessarily implied in a judgment, as well as that which is
expressed in the most appropriate language,” and that where claims in an action are mutually
exclusive, “adjudicating in favor of one is negating the other”). On appeal, the Tiptons argue the
circuit court misconstrued their complaint as not asserting a “gross negligence” claim and assert
error in this regard. However, it is unnecessary to address this point; as discussed, the circuit
court properly utilized CR 56 to dismiss any “gross negligence” claims the Tiptons may have
raised.
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immunity from an eventual adverse judgment but from the ordeal of being a party
to a suit at all. As the appellees note, the Tiptons initiated their suit on September
29, 2020, and summary judgment was entered on August 5, 2021 – nearly a year
later. “There is no requirement that discovery be completed, only that the non-
moving party have ‘had an opportunity to do so.’” Carberry v. Golden Hawk
Transp. Co., 402 S.W.3d 556, 564 (Ky. App. 2013) (citation omitted). Moreover,
a period of six months for discovery has been deemed an appropriate opportunity
to do so. See Hartford Ins. Group v. Citizens Fidelity Bank & Trust Co., 579
S.W.2d 628 (Ky. App. 1979).
In conclusion, we have addressed the breadth of the Tiptons’
arguments and have found no reversible error. We therefore AFFIRM.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Andre F. Regard B. Todd Thompson
Lexington, Kentucky Chad O. Propst
Abbie C. O’Brien
Louisville, Kentucky
BRIEF FOR THE
COMMONWEALTH OF
KENTUCKY:6
Daniel Cameron
Attorney General of Kentucky
Matthew F. Kuhn
Solicitor General
Brett R. Nolan
Principal Deputy Solicitor General
Daniel J. Grabowski
Assistant Solicitor General
Frankfort, Kentucky
6
Because the validity of KRS 39A.275 was at issue in this matter, the Kentucky Attorney
General was served and filed a brief in support of the statute’s constitutionality. See KRS
418.075(1).
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