Downing v. Lawrence Hall Nursing Ctr.

• Decision Date: 15 April 2010
• Docket Number: No. 09–621.,09–621.
• Parties: Brenda DOWNING, Appellant, v. LAWRENCE HALL NURSING CENTER, Lawrence Memorial Hospital, and St. Paul Fire & Marine Insurance Co., Appellees.
• Court: Arkansas Supreme Court

2010 Ark. 175

369 S.W.3d 8

Brenda DOWNING, Appellant,

v.LAWRENCE HALL NURSING CENTER, Lawrence Memorial Hospital, and St. Paul Fire & Marine Insurance Co., Appellees.

No. 09–621.

Supreme Court of Arkansas.

April 15, 2010.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, Greenbrier, and David A. Couch, PLLC, by: David A. Couch, Little Rock, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Jeffrey W. Hatfield, Little Rock, for appellees.

ELANA CUNNINGHAM WILLS, Justice.

This is the second appeal taken to this court by appellant Brenda Downing. In the first case, Downing v. Lawrence Hall Nursing Center, 368 Ark. 51, 243 S.W.3d 263 (2006), this court dismissed Downing's appeal for lack of a final order because the circuit court had not entered an order dismissing the “John Doe” defendants Downing named in her original complaint. In the present appeal, Downing challenges the circuit court's orders granting the motion to dismiss filed by appellees Lawrence Hall Nursing Center (“Lawrence Hall”) and Lawrence Memorial Hospital (“Lawrence Memorial”) and the motion for summary judgment filed by appellee St. Paul Fire & Marine Insurance Co.

The procedural history of this case is somewhat lengthy. On June 10, 2002, appellantBrenda Downing brought a wrongful death action ¹ on behalf of the Estate of Robert Harris against Lawrence Hall; Lawrence Memorial; St. Bernard's Hospital, doing business as St. Bernard's Regional Medical Center; Dr. Robert Quevillon; and John Doe Insurance Companies A through Z. Dr. Quevillon and St. Bernard's were dismissed without prejudice in October 2005 and September 2005, respectively. Lawrence Hall and Lawrence Memorial filed a motion to dismiss on October 19, 2005, arguing that Downing lacked authority to file a complaint on behalf of the estate because letters of administration had not been filed at the time the complaint was filed. The circuit court granted the motion to dismiss the complaint in an order filed on November 22, 2005.

Downing filed a notice of appeal on December 2, 2005, and attempted to appeal the circuit court's decision to this court; however, as noted above, we dismissed the appeal for lack of a final order because there was no order dismissing the John Doe defendants in the record. Downing v. Lawrence Hall Nursing Ctr., 368 Ark. 51, 243 S.W.3d 263 (2006).

About a year after the dismissal of Downing's appeal, in November 2007, this court handed down the case of Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), which held that, pursuant to Act 438 of 2007, letters of administration are not necessary to empower a person appointed to act for an estate, as long as there is an order appointing that person administrator. On January 17, 2008, Downing filed a motion to set aside the November 2005 order of dismissal that had been based on her lack of letters of administration. The circuit court entered an order on February 13, 2008, granting her motion and setting aside the previous order of dismissal.

On January 29, 2008, Downing filed an amended complaint again naming Lawrence Hall and Lawrence Memorial and adding St. Paul Fire & Marine Insurance Co. as the liability carrier for those entities. Downing's complaint alleged that both Lawrence Hall and Lawrence Memorial were “non-profit/government entit[ies] owned and controlled by Lawrence County, Arkansas.” The complaint further asserted that St. Paul, as the liability carrier, was “made a defendant to the extent its insureds are all immune from suit for tort pursuant to Ark.Code Ann. § 21–9–301 and Ark.Code Ann. § 16–120–101 et seq.” ²

Lawrence Hall and Lawrence Memorial answered the amended complaint on February 7, 2008. In the answer, the defendants admitted that they were insured by St. Paul, but affirmatively asserted that the statute of limitations barred Downing's complaint against St. Paul. St. Paul moved for summary judgment on the same date, arguing that the amended complaint, which attempted to substitute St. Paul for the John Doe defendants, could not relate back to the original complaint so as to defeat the statute of limitations. In its accompanying brief, St. Paul argued that its existence had been known to Downing since January 2003,³ and Downing's failure to amend her complaint to name it as a defendant precluded relation back pursuant to Ark. R. Civ. P. 15(c).

Downing responded to St. Paul's motion for summary judgment on February 29, 2008. In her response, she pointed out that, during the pendency of the lawsuit, the law in this state regarding charitable immunity had changed radically. She argued that at the time she filed her initial complaint on June 10, 2002, this court had, on May 9, 2002, handed down Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002), which held that there was no direct action against liability insurers for nonprofit corporations. That decision was affirmed in Scamardo v. Jaggers, 356 Ark. 236, 149 S.W.3d 311 (2004), which was handed down on February 26, 2004. As mentioned above, the circuit court dismissed Downing's complaint on November 22, 2005, because she did not have letters of administration. Three weeks later, however, this court decided the case of Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), which overruled both Clayborn and Scamardo and held that a plaintiff could bring a direct action against a liability carrier.

Downing also noted in her response to St. Paul's motion for summary judgment that, when this court dismissed Downing's appeal for lack of a final order on November 16, 2006, her counsel was aware that the Steward v. Statler case, dealing with the letters-of-administration issue, was pending before this court. Very shortly after that opinion came down on November 1, 2007, Downing successfully had the earlier order of dismissal set aside and filed her amended complaint that named St. Paul, the liability carrier for Lawrence Hall. Downing argued that her decision not to add St. Paul up to that point was not a “strategic decision,” as argued in St. Paul's summary-judgment motion, but was based on the law of charitable immunity at the time she filed her complaint and amended complaint. Therefore, she contended, she had complied with Rule 15(c), and her amended complaint naming St. Paul should relate back to the filing of the original complaint.

After a hearing on April 3, 2008, the circuit court entered an order on May 16, 2008, granting St. Paul's motion for summary judgment, finding that the statute of limitations had run against St. Paul. The court's order thus dismissed St. Paul with prejudice. Lawrence Hall and Lawrence Memorial subsequently filed a motion to dismiss, asserting that, as charitable institutions, they were completely immune from being sued in tort. Because they had admitted in their answer that they were “non-profit corporations/government entities,” they urged that the complaint against them should be dismissed with prejudice. Downing responded that Lawrence Hall and Lawrence Memorial had not proven that they were charitable entities entitled to immunity. In addition, Downing alleged that their immunity was legislatively abrogated or waived with respect to her Residents' Rights Act claims and that the courts should abrogate the doctrine of charitable immunity in any event.

After a hearing on January 21, 2009, the circuit court entered an order on February 19, 2009, dismissing Lawrence Hall and Lawrence Memorial with prejudice. Downing filed a motion for reconsideration on February 26, 2009, pointing out that this court handed down the case of Jackson v. Sparks Regional Medical Center, 375 Ark. 533, 294 S.W.3d 1 (2009), on February 12, 2009. Downing described Jackson as “discuss[ing] the whipsaw effect on the plaintiff caused by the Clayborn, Scamardo, and Low decisions,” and she asserted that the “same whipsaw effect” was the cause of the dismissals entered against her. The trial court did not rule on Downing's motion for reconsideration, and it was thus deemed denied on March 30, 2009. Downing filed a timely notice of appeal on April 8, 2009. On appeal, she raises two main points: 1) charitable immunity does not bar some or all of her suit; and 2) the complaint against St. Paul was not time-barred.

In her first argument on appeal, Downing contends that the circuit court erred in concluding that Lawrence Hall was entitled to charitable immunity. She raises three separate arguments under this point heading. First, Downing claims that Lawrence Hall and Lawrence Memorial did not prove their entitlement to charitable immunity. Second, she urges that her claim under the Arkansas Residents' Rights Act is not barred by charitable immunity. Finally, Downing asks this court to abrogate the doctrine of charitable immunity.

In reviewing a court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Dollarway Patrons for Better Schs. v. Morehead, 2010 Ark. 133, 361 S.W.3d 274;Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Dollarway Patrons, supra. However, when a complaint is dismissed on a question of law, this court conducts a de novo review. Id. (citing Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007)).

In her first subpoint, Downing argues that the trial court should not have granted Lawrence Hall and Lawrence Memorial's motion to dismiss on charitable-immunity grounds because there was no proof of their status as charitable entities. She urges that, because charitable immunity is an affirmative defense, it was the defendants' burden to prove that they were entitled thereto. Lawrence Hall and Lawrence Memorial respond that Downing initially pled that they...