Estate of Hicks v. URBAN EAST

• Decision Date: 25 May 2004
• Docket Number: No. 99,432.,99,432.
• Parties: The ESTATE OF Ilar HICKS, Deceased, by and through its Personal Representative, Rickie Dean SUMMERS, Petitioner, v. URBAN EAST, INC., d/b/a Edwards Redeemer Nursing Center, an Oklahoma corporation, Respondent.
• Court: Oklahoma Supreme Court

92 P.3d 88

2004 OK 36

The ESTATE OF Ilar HICKS, Deceased, by and through its Personal Representative, Rickie Dean SUMMERS, Petitioner, v. URBAN EAST, INC., d/b/a Edwards Redeemer Nursing Center, an Oklahoma corporation, Respondent.

No. 99,432.

Supreme Court of Oklahoma.

May 25, 2004.

Thomas J. Steece, Robert T. Kincaid III, Michael L. Velez, Oklahoma Legal Services, P.L.L.C., Oklahoma City, OK, for petitioner.

Inona Jane Harness, Michael J. Heron, Roe T. Simmons, Haven Tobias, Pierce Couch Hendrickson Baysinger & Green, L.L.P., for respondent.

HARGRAVE, J.

¶ 1 Petitioner (plaintiff) sued Respondent (defendant) for wrongful death of plaintiff's decedent under several theories of recovery.¹ Plaintiff alleged injuries and damages sustained as a result of the wrongful death of Ilar Hicks that were caused as a result of the acts, conduct and/or omissions of the defendant. The petition alleges that Ilar Hicks died as a result of sepsis, with a secondary condition of cardiac failure. Plaintiff alleges that the death is a direct result of the negligent acts, conduct and/or omissions to act, including negligent supervision and/or care and/or abuse by the defendant. Plaintiff states that Ilar Hicks was admitted to the nursing center on or about March 22, 1994, and that she left the nursing center on May 23, 1998, as a result of the alleged negligent actions. Ilar Hicks transferred to another nursing facility where she died on May 26, 1998.

¶ 2 Plaintiff pled causes of action under the Nursing Home Care Act, 63 O.S. § 1-1900.1 et seq., the Consumer Protection Act, 15 O.S. § 751, et seq., common law negligence and breach of contract. Plaintiff also seeks an award of punitive damages. Defendant moved to dismiss the claims brought under the Consumer Protection Act and for breach of contract, asserting that the contract claim was derivative of the underlying tort claim authorized by the Nursing Home Care Act and that the regulation of nursing homes does not fall within the scope of Oklahoma's Consumer Protection Act, and specifically falls within an exemption to the Consumer Protection Act. The trial judge dismissed the two claims and certified the matter for immediate interlocutory appeal under 12 O.S.2001 § 952(b)(3). We granted the petition to review the certified interlocutory order. Plaintiff filed a motion for oral argument. The motion for oral argument is denied.

¶ 3 The trial judge in this case ruled that:

a) The Act creates a statutory tort for private residents to redress violations of the rights conferred by the Act. As such, an action by residents or individuals entitled to bring private actions to redress the rights conferred by the Act sound in tort, not contract. Therefore, Defendant's Motion to Dismiss Plaintiff's breach of contract claim/cause of action is Sustained.

b) The Oklahoma State Department of Health, through the Oklahoma Nursing Home Care Act regulates the operation and licensing of nursing homes in the State of Oklahoma. As such, the provisions of the Nursing Home Care Act supercede the Oklahoma Consumer Protection Act. Accordingly, plaintiff has no remedy under the provisions of the Oklahoma Consumer Protection Act and Defendant's Motion to Dismiss Plaintiff's Consumer Protection Act claim/cause of action is Sustained.

¶ 4 The trial judge certified her rulings for interlocutory order to this Court to determine whether the trial court was correct to dismiss plaintiff's claim against a nursing home for breach of contract and whether the trial court was correct to dismiss plaintiff's Consumer Protection Act claim. The case is before us to review the trial court's rulings on a motion to dismiss, not on a motion for summary judgment. Our review is limited to the questions presented as a result of the trial court's ruling on the motion to dismiss: these are the only proper issues to be determined in this Court by our order granting certiorari.

¶ 5 A trial court's dismissal of an action for failure to state a claim is reviewed de novo. Lockhart v. Loosen, 1997 OK 103 ¶ 4, 943 P.2d 1074. The function of a motion to dismiss is to test the law of the claims, not the facts supporting them. Zaharias v. Gammill, 1992 OK 149, 844 P.2d 137, 138. In assessing the sufficiency of a petition, the general rule is that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle her to relief. Id. The question, on a motion to dismiss, is whether, taking all of plaintiff's allegations as true, she is precluded from recovering as a matter of law. Patel v. OMH Medical Center, Inc., 1999 OK 33 ¶ 43, 987 P.2d 1185, 1202, reh. den., cert. den. 528 U.S. 1188, 120 S.Ct. 1242, 146 L.Ed.2d 100. The appropriate question in testing the sufficiency of the allegations in the complaint which is subject to a motion to dismiss is whether relief is possible under any set of facts that could be established consistent with the allegations. Boren v. Thompson & Associates, 2000 OK 3 ¶ 25, 999 P.2d 438, 447.

CONTRACT CLAIM

¶ 6 The district court determined that the Nursing Home Care Act created a statutory tort and that therefore all claims brought thereunder sound exclusively in tort. For that reason, the trial court determined that plaintiff's breach of contract claim must fail. The question is whether the Nursing Home Care Act is plaintiff's exclusive remedy for the breaches alleged. ¶ 7 The Nursing Home Care Act appears at 63 O.S.2001 § 1-1900.1 et seq.² The Act covers, among other things, the licensing and regulation of nursing homes. Section 1-1918 sets out the rights and responsibilities of nursing homes, and provides for remedies and penalties for violations. The section is referred to as the "Nursing Home Patients' Bill of Rights." Subsection (G) of Section 1-1918 provides that an action may be brought against an individual by any resident who is injured by any violation of the section. If damages are alleged and proved the plaintiff is entitled to recover the actual damages sustained by the plaintiff, and punitive damages may be assessed if it is proved that the defendant's conduct was willful or in reckless disregard of the rights provided by the section.³

¶ 8 In Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, 977 P.2d 357, this Court interpreted § 1-1918 as creating a statutory tort, with a private right of action for nursing home residents or their guardians to redress a violation of rights conferred by the Act. The issue was whether the victorious plaintiff was entitled to attorney fees allowed to a prevailing party under the Nursing Home Care Act. Galilean argued that the suit was tried as a common law negligence action and not as a claim for breach of duties imposed by the Nursing Home Care Act, and that, accordingly, the attorney fees allowed under the Nursing Home Care Act were not available to the plaintiff. We disagreed, on the ground that regardless of whatever the theory of plaintiff's lawsuit may have been at its inception, the jury verdict rested upon an instruction that incorporated the provisions of the Nursing Home Care Act.

¶ 9 The instruction in question in Galilean charged the jury that in addition to the duty to exercise ordinary care, there were also duties imposed by statutes. We said that in that instruction, the court charged that apart from the common-law duties owed to the resident, Galilean was also bound by certain statutory obligations. The action was submitted to the triers of fact not solely as a common law tort, but also as a breach of duties imposed by the Nursing Home Care Act. Because the parties settled the underlying judgment in that case, we could not, on appeal, look at the evidence to determine whether that instruction was warranted based on plaintiff's evidence.

¶ 10 We did not decide, in Galilean, that the statutory tort was a plaintiff's exclusive remedy. The defendant in Galilean had argued that no private right of action in tort was created by the Nursing Home Care Act, but rather that the Act only authorized private actions for injunctive or preventive relief. In rejecting that argument, we looked to subsection (F) of 63 O.S. Supp.1992 § 1-1918 and determined that it created a statutory tort. We said that the so-called Nursing Home Patients' Bill of Rights shapes the standard of care to govern in the nursing home setting and that a nursing home operator's breach of any enumerated duty gives rise to a private right of action under the Act. 977 P.2d at 361.

¶ 11 Galilean dealt with § 1-1918 of the Act. In addition to the remedies provided in section 1-1918, however, the Nursing Home Care Act specifically provides that the plaintiff may seek any recovery permitted by law. Section 1-1939 of the Act provides, in pertinent part:

§ 1-1939. "Liability to residents—Injunctive and declaratory relief-Damages—Waiver of rights—Jury trial-Retaliation against residents-Immunity—Report of abuse or neglect."

A. The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident....

B. A resident may maintain an action under this act for any other type of relief, including injunctive and declaratory relief, permitted by law.

C. Any damages recoverable under this section, including minimum damages as provided by the section, may be recovered in any action which a court may authorize to be brought as a class action. The remedies provided in this section, are in addition to and cumulative with any other legal remedies available to a resident. Exhaustion of any available administrative remedies shall not be required prior to commencement of suit hereunder. (emphasis added).

¶ 12 Section 1-1939 provides that a resident may maintain an action under the act for any other type of relief permitted by law. It also provides that the remedies in the section are in addition to and...