Cynthia S. Woodall v. AAA Ambulance Service

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CA-02124-SCT
CYNTHIA S. WOODALL, INDIVIDUALLY, AS
ADMINISTRATRIX OF THE ESTATE, AND ON
BEHALF OF ALL WRONGFUL DEATH
BENEFICIARIES, OF CLIFTON WOODALL,
DECEASED
v.
AAA AMBULANCE SERVICE, INC.
DATE OF JUDGMENT: 11/04/2013
TRIAL JUDGE: HON. MICHAEL M. TAYLOR
TRIAL COURT ATTORNEYS: JAMES F. NOBLE, II
MICHAEL J. TARLETON
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES F. NOBLE, III
ATTORNEY FOR APPELLEE: MICHAEL J. TARLETON
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 04/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. In this wrongful-death suit, the circuit judge found that, because the defendant was
an instrumentality of governmental entities, the suit was controlled by the Mississippi Tort
Claims Act. And because the plaintiff failed to file her complaint within the one-year statute
of limitations, the circuit judge granted the defendants summary judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Cynthia Woodall filed this wrongful-death action in the Pike County Circuit Court
against AAA Ambulance Service, Inc., and Phillip McKey, AAA emergency medical
technician-paramedic.
¶3. On July 3, 2010, Cynthia Woodall’s husband suffered a cardiac arrest while working
as a heating and cooling contractor at a home in McComb, Mississippi. The homeowner
promptly called 911 at 11:54 a.m., and the Pike County Civil Defense/Emergency
Management Agency transferred that call to AAA at 11:55 a.m. Woodall alleges that AAA
then failed to respond and arrive in a timely manner, and that the ambulance crew, including
McKey, failed to follow established protocol for cardiac-arrest response and made minimal
attempts to provide Mr. Woodall proper care.
¶4. On February 24, 2012, Woodall filed this wrongful-death action. AAA and McKey
responded with a combined answer and motion to dismiss for failure to timely file, arguing
that they were protected governmental entities, and that the Mississippi Tort Claims Act
provided the sole procedural avenue for Woodall’s claim. They further argued that Woodall
had failed to file within the Act’s one-year statute of limitations, and that Woodall had failed
to provide the Act’s required ninety-day pre-suit notice.
¶5. The circuit judge denied the motion without prejudice, allowing the parties to conduct
discovery about whether the defendants were entitled to Tort Claims Act protection. The
parties renewed their arguments in a motion for summary judgment and response. Following
2
a hearing, the circuit judge determined that AAA and McKey were entitled to the Act’s
protections and dismissed Woodall’s complaint. Woodall appealed.
ANALYSIS
¶6. This sole question for our review is whether AAA is entitled to Tort Claims Act
protections. The parties agree that if AAA is an instrumentality of a governmental entity,
McKey shares its protection, and this claim was untimely filed. The parties likewise agree
if AAA is not an instrumentality of a governmental entity, this case was timely filed, and
summary judgment was improper.
¶7. On a motion for summary judgment, the movant is entitled to a judgment “if the
pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”1 “In considering a motion for
summary judgment, courts view the evidence in the light most favorable to the nonmoving
party,”2 but whether an entity is subject to Mississippi Tort Claims Act protection is a
question of law reviewed de novo.3
¶8. The Mississippi Tort Claims Act provides the exclusive civil remedy against any
governmental entity or its employee,4 and all claims brought under the Act are subject to a
1
Miss. R. Civ. P. 56(c).
2
Anderson v. LaVere, 136 So. 3d 404, 409 (Miss. 2014).
3
Bolivar Leflore Med. Alliance, LLP v. Williams, 938 So. 2d 1222, 1226 (Miss.
2006) (quoting Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 945 (Miss. 2000)).
4
Miss. Code Ann. § 11-46-7(1) (Rev. 2012).
3
one-year statute of limitations.5 The Act defines “governmental entity” as “the state and [its]
political subdivisions.”6 And, under the statute, a “political subdivision” includes
any . . . body corporate other than the state responsible for governmental
activities only in geographic areas smaller than that of the state, including, but
not limited to, any . . . instrumentality of the state, whether or not the . . .
instrumentality has the authority to levy taxes or to sue or be sued in its own
name.7
AAA claims it is an instrumentality of governmental entities.
¶9. An instrumentality is “something that serves as an intermediary or agent through
which one or more functions of a controlling force are carried out: a part, organ, or subsidiary
branch esp. of a governing body.”8 In past cases, we have found that independently
incorporated entities can constitute instrumentalities of governmental entities subject to the
Mississippi Tort Claims Act.
¶10. In Bolivar Leflore Medical Alliance, LLP v. Williams, we considered whether a
family medical clinic created as a joint venture between a community hospital and several
doctors constituted an instrumentality of that hospital subject to Tort Claims Act protection.9
We discussed the fact that the hospital created and oversaw the medical practice; appointed
two-thirds of the practice’s executive committee, which controlled the practice’s business
5
Miss. Code Ann. § 11-46-11(3)(a) (Rev. 2012).
6
Miss. Code Ann. § 11-46-1(g) (Supp. 2014).
7
Miss. Code Ann. § 11-46-1(i) (Supp. 2014) (emphasis added).
8
Williams, 938 So. 2d at 1228 (quoting Webster’s Third New Int’l Dictionary 1172
(3d ed. 1986)).
9
Williams, 938 So. 2d at 1223.
4
affairs; and owned a ninety-eight percent interest in the practice.10 We also considered that
the practice was created to assist the hospital’s mission of providing healthcare services to
the public.11 These facts led us to the conclusion that the practice was an instrumentality12
and, in so finding, we rejected the plaintiff’s contention that the practice lost instrumentality
status by delegating some powers from the hospital-controlled trustees to officers in the
practice.13
¶11. Likewise, in Estate of Grimes v. Warrington, we concluded that a similar medical
practice was an instrumentality of another community hospital.14 Relying heavily on
Williams, we noted that the community hospital held a ninety-six percent interest in the
practice while the remaining interest was divided among individual doctors.15 We explained
that this partnership agreement differed from that in Williams because its executive
committee actions required a unanimous vote, effectively giving the individual doctors a
veto.16 But we concluded that this fact cut both ways because that same veto power rested
with the hospital, giving a governmental entity substantial control.17
10
Id. at 1228.
11
Id. at 1231.
12
Id. at 1232.
13
Id. at 1231-32.
14
Estate of Grimes v. Warrington, 982 So. 2d 365, 370-71 (Miss. 2008).
15
Id. at 368.
16
Id.
17
Id.
5
¶12. Here, AAA supported its motion for summary judgment with exhibits showing that
governmental entities entirely own AAA and exercise substantial control over its
operations.18 In 1967, Harvel Smith informed the City of Hattiesburg and other interested
entities that he intended to terminate his for-profit ambulance service, which had provided
the only ambulance service in that area. Recognizing the need for a replacement, the
Hattiesburg Board of Mayor and Commissioners adopted a resolution to enter a joint venture
with Forrest County, Forrest County General Hospital, and Methodist Hospital to own,
operate, and maintain a nonprofit ambulance service. That venture—AAA—had been
incorporated by Forrest County General Hospital.
¶13. AAA’s original bylaws limit the corporation’s membership to the City of Hattiesburg,
Forrest County, Forrest County General Hospital, and Methodist Hospital. They were later
amended to remove Methodist Hospital. The bylaws vest AAA’s management and control
in a board of directors. The board has four directors appointed by Forrest County General
Hospital, one appointed by Forrest County, and one appointed by the City of Hattiesburg.
Vacancies are filled by the member whose seat is vacant.
¶14. The board elects and may remove AAA’s officers. The board may hire a general
manager who runs AAA’s operations. The board sets the compensation for officers and the
general manager, but the president or general manager sets the employees’ compensation.
The president executes policies and programs that the board approves, and the board may
confer other powers on the president and other officers beyond their traditional roles.
18
AAA is owned by the City of Hattiesburg, Forrest County, and Forrest County
General Hospital, a community hospital.
6
¶15. Each member receives monthly financial operating statements. The board must
employ auditors to audit AAA’s books, records, and operations yearly and provide the results
to the members. Members may also demand additional audits at their own expense. The
board determines where AAA will provide ambulance services, sets rates and charges, and
promulgates regulations that govern AAA’s operations. And AAA may be dissolved only
by a unanimous member vote.
¶16. AAA’s operations also are governed by AAA’s General Management Services
Agreement with Forrest County General Hospital. The Agreement appoints Forrest General
Hospital “as the sole and exclusive entity acting for and on behalf of AAA as manager in the
routine operations of Service.” The Agreement recognizes that AAA maintains “ultimate
control” over its “assets and affairs of Service.” But it requires Forrest General to obtain,
maintain, and renew all licenses and permits needed to operate AAA; to work with
accreditation and governmental entities on AAA’s behalf; to implement AAA’s operational
procedures and policies; and to prepare AAA’s budgets. Forrest General provides AAA’s
administrator, chief financial officer, and director of operations. Forrest General makes all
employment related decisions—hiring, firing, and promotions—regarding those positions and
sets their compensation. Forrest General also has access to AAA’s records. But the
Agreement provides that nothing in it should be construed to make Forrest General or AAA
an employee, partner, or joint venture in the other, and that Forrest General shall remain an
independent contractor.
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¶17. Under a second contract, AAA provides transportation from Forrest General’s main
hospital campus to its cancer center. Under that contract, AAA reports to Forrest General’s
Vice-President of Support Services, provides one ambulance for exclusive hospital use, and
must comply with Forrest General’s policies, procedures, and bylaws. That contract also
contains a disclaimer that it should not be construed to make AAA an agent, servant, or
employee of Forrest General or Forrest General an agent for AAA. Instead, the contract
states that “AAA is intended to be, and shall be, an independent AAA and not an agent,
servant or employee of Hospital.”
¶18. We find it clear that governmental entities control AAA. The city, the county, and the
hospital select the entire board of directors, and that board makes AAA’s strategic decisions.
Forrest County General Hospital controls AAA’s day-to-day managers. So governmental
entities entirely control both AAA’s big-picture and day-to-day decisions.
¶19. Despite this governmental control, however, Woodall argues that AAA’s
instrumentality status is defeated by the language in each contract suggesting that AAA is an
independent contractor providing services to Forrest County General Hospital.19 Woodall
contends that this case should be disposed of based on our opinions in Poppenheimer v.
Estate of Coyle and Flye v. Spotts, which held that volunteer fire departments did not derive
19
AAA was not providing services for Forrest County General Hospital when the acts
in question occurred. Instead, AAA’s operations include Pike County through a contract
with Southwest Mississippi Regional Medical Center. But AAA does not claim
instrumentality status through Southwest Mississippi Regional Medical Center.
8
instrumentality status from the counties they served as independent contractors.20 Those
cases “found ‘that a private company and its employees who provide “governmental
activities” via contract with a political subdivision are not immune from liability under the
MTCA.’”21 But we noted in Flye that the volunteer fire department never argued it was an
instrumentality and found that the department’s “operations are not controlled by the
county.”22 Here, AAA’s operations are overwhelmingly controlled by governmental entities,
and those entities own AAA.
¶20. Alternatively, Woodall argues that our decision should be guided by a 1998 letter from
AAA’s counsel to the Mississippi Tort Claims Board asserting that AAA was neither a
political subdivision nor a governmental entity as defined in the Tort Claims Act. Woodall
contends that this letter creates a genuine issue of material fact as to AAA’s instrumentality
status, precluding summary judgement. We disagree.
¶21. When the circuit judge considered the letter, he noted that it possessed limited
relevance because it predates our relevant caselaw. For that same reason, we find that the
letter fails to create a genuine issue of material fact. At the time AAA’s counsel wrote the
letter, we had not provided the now-dispositive control analysis from Williams and Grimes.
We fail to see how AAA’s view of its own status pre-Williams and Grimes can create a
genuine issue of material fact in the application of Williams and Grimes. And, in any case,
20
Poppenheimer v. Estate of Coyle, 98 So. 3d 1059, 1065 (Miss. 2012); Flye v.
Spotts, 94 So. 3d 240, 247-48 (Miss. 2012).
21
Poppenheimer, 98 So. 3d at 1065 (quoting Flye, 94 So. 3d at 247-48).
22
Flye, 94 So. 3d at 246.
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as we have said above, an entity’s claim to Mississippi Tort Claims Act protection is a
question of law that we review de novo.23 Stated another way, if we do not defer to a trial
judge’s opinion regarding this question, certainly we would not defer to the opinions
expressed by AAA’s counsel in a letter.
CONCLUSION
¶22. We agree with the circuit judge that AAA is an instrumentality of governmental
entities, and that it is entitled to Tort Claims Act protection. And because Woodall did not
file her complaint within the one-year statute of limitations, the circuit judge properly granted
summary judgment, so we affirm.
¶23. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.
23
Williams, 938 So. 2d at 1226 (quoting Amiker 796 So. 2d at 945).
10