Gold Cross EMS, Inc. v. Children's Hosp. of Ala.

• Decision Date: 08 January 2015
• Docket Number: No. CV 113–081.,CV 113–081.
• Citation: 79 F.Supp.3d 1316
• Parties: GOLD CROSS EMS, INC., Plaintiff, v. The CHILDREN'S HOSPITAL OF ALABAMA, Defendant.
• Court: U.S. District Court — Southern District of Georgia

79 F.Supp.3d 1316

GOLD CROSS EMS, INC., Plaintiff

v.The CHILDREN'S HOSPITAL OF ALABAMA, Defendant.

No. CV 113–081.

United States District Court, S.D. Georgia, Augusta Division.

Signed Jan. 8, 2015.

J. Robert Persons, Steven D. Henry, Smith Moore Leatherwood LLP, Atlanta, GA, for Plaintiff.

Alexander H. Booth, Mark W. Wortham, Hall, Booth, Smith & Slover, PC, Atlanta, GA, Jasper P. Juliano, Mark W. Lee, Parsons, Lee & Juliano, P.C., Birmingham, AL, for Defendant.

ORDER

J. RANDAL HALL, District Judge.

This case comes before the Court following the settlement of various negligence claims against both Gold Cross EMS, Inc. (“Gold Cross” or “Plaintiff”) and the Children's Hospital of Alabama (“Children's” or “Defendant”). The underlying action involved an accident where a two-year-old girl was paralyzed after her stretcher tipped over during transport to Children's. Gold Cross settled the suit and filed the instant action seeking contribution from Children's and alleging breach of a joint defense agreement. The Court now considers Children's motion for summary judgment (Doc. 43), and for the reasons stated herein, that motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

A. Factual Background

On March 4, 2009, Zia'Kiera Threatts (“Threatts”), a two-year-old burn victim, was transferred from Doctor's Hospital of Augusta to Children's following the discovery of a heart condition. (Doc. 25 (“Compl.”) ¶¶ 12–13, 17.) While transporting Threatts from the ambulance at Doctor's Hospital to the plane, her stretcher tipped over and Threatts was paralyzed from the waist down. (Doc. 54 ¶ 13.) Two lawsuits were brought alleging negligence against Gold Cross and Children's by Threatts's father and her guardian ad litem, and all claims were eventually settled. (Doc. 44, Ex. 12 (“Bell Dep.”) at 76; Doc. 60.) Specifically, Gold Cross settled all underlying tort claims for $9 million,¹ but reserved the right to seek contribution from Children's. (Id.; Doc. 54 ¶ 24; Doc. 60.)

Sometime prior to March 4, 2009, the date of Threatts's transfer, Doctor's Hospital contacted Dr. Leslie Hayes² —a pediatric critical care specialist—to see if she would agree to care for Threatts. (Doc. 44, Ex. 1 (“Hayes Dep.”) at 10–14.) Dr. Hayes then contacted Laura Demmons, UAB's transport coordinator, to arrange transport.³ (Doc. 53, Ex. 2; Doc. 44, Ex. 2 (“Demmons Dep.”) at 21.) Ms. Demmons in turn contacted Gold Cross to arrange for ambulance transport for Threatts from Doctor's Hospital to the airport. (Doc. 53, Ex. 2.) After the travel arrangements were in place, Children's sent two employees to Augusta to oversee Threatts's treatment—Suzanne Key, a nurse, and Michael Mardis, a respiratory therapist. (Doc. 53, Ex. 2; Doc. 44, Ex. 4 (“Key Dep. I”) at 19–20.) The ambulance was driven by Gold Cross employees Alima Mims and Jacques A. Johnson. (Doc. 44, Ex. 8 (“Mims Dep.”) at 39–41.)

It is undisputed that during transport Key and Mardis remained responsible for all of Threatts's medical care.⁴ (Key Dep. I at 29–41.) In fact, the Children's team took custody of Threatts at the hospital, put her on a transport ventilator, retained control of the IV and medication, and placed Threatts into a child seat attached to a “sled,”⁵ both of which were brought with Key and Mardis on the trip. (Id. ) The sled locked into a stretcher, which was provided by Gold Cross. (Id. at 31–33.)

Following the initial medical exam, Threatts, Key, Mardis, and the two Gold Cross employees made their trip to the airport.⁶ (Key Dep. I at 23–25, 36.) Key and Mardis rode in the back of the ambulance with Threatts, who was chemically paralyzed and sedated, and the Gold Cross employees were in the front of the ambulance. (Mims Dep. at 52; Key Dep. I at 39.) Upon their arrival at the airport, Mims and Johnson exited the ambulance and proceeded to remove the stretcher. (Key Dep. I at 39; Mims Dep. at 53–54.) Key also exited the ambulance at this time, but Mardis stayed inside to ensure all tubing remained connected as the stretcher was removed. (Key Dep. I at 39–40.) It was at this time that the stretcher tipped over. (Mims Dep. at 54.) Immediately thereafter the stretcher was uprighted, though it is unclear from the record whether all four individuals lifted the stretcher or whether Mims and Johnson did so alone. (Compare Key Dep. I at 46 (suggesting that all four individuals assisted) with Mims Dep. at 54 (claiming that Mims and Johnson uprighted the stretcher).) Once the stretcher was upright, Key and Mardis checked the functioning of all tubes and medication, Threatts was put onto the aircraft where she could be secured and any injuries assessed, and then Threatts, Key, and Mardis traveled to Birmingham.⁷ (Doc. 44, Ex. 5 (“Key Dep. II”) at 41; Key Dep. I at 63.) Approximately two days after the accident, a CT scan revealed a hematoma on Threatts's spine. (See Hayes Dep. at 51–52.)

Following the accident, the two aforementioned lawsuits were filed against Gold Cross and Children's (“the underlying litigation”). Throughout the underlying litigation, Gold Cross and Children's maintained separate defense strategies, but the two did agree to share expert witnesses as co-defendants. (Doc. 54 ¶ 18; Doc. 53, Ex. 7.) Additionally, following an oral conversation, Children's sent Gold Cross a letter via e-mail proposing that the two negotiate jointly with the plaintiff. (Doc. 53, Ex. 7.) In that proposal, Children's and Gold Cross agreed not to enter pro tanto settlements or high/low agreements with the plaintiff, and they agreed not to disclose the contents of the letter. (Id. ) With the letter, Children's provided a scale that delineated the portion of any settlement Children's would cover if the settlement exceeded $7.5 million. (Id. ) A formal joint defense agreement, however, was never reduced to writing. (Doc. 54 ¶ 19.) During the pendency of settlement discussions, an e-mail was disclosed by counsel for Children's to Threatts's counsel that included the range of settlement options listed in the above-mentioned proposal. (Compl. ¶¶ 35–38.) And although Threatts's attorney testified that the e-mail had no impact on the valuation of his client's claim, Gold Cross claims this breach led to a higher settlement than would have been reached otherwise.⁸ (Bell Dep. at 106–08.)

B. Procedural Background

Gold Cross filed the instant complaint in the State Court of Richmond County, which Children's removed to this Court on May 17, 2013. (Doc. 1.) In its complaint, Gold Cross alleges that Children's owes it contribution from the settlement and that Children's breached a joint defense agreement. (Doc. 25 (Gold Cross Amended Complaint).)

Following Gold Cross's complaint, Children's filed its answer and counterclaims for (1) attorney's fees and expenses and (2) medical expenses written off by Children's for Threatts's care. (Doc. 4.) Children's then filed the current motion for summary judgment on April 3, 2014 (Doc. 43). Gold Cross, in its response, asks this Court to sua sponte grant partial summary judgment in its favor on the issue of contribution liability, finding either that (1) Children's owed a non-delegable duty with respect to the child's transport or (2) Mims and Johnson were solely or jointly under the control of Children's at the time of the accident. (Doc. 53.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Facts are “material” if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw “all justifiable inferences in [its] favor.” U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways—by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606–08 (11th Cir.1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex, 477 U.S. 317, 106 S.Ct. 2548 ). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir.1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.

If—and only if—the movant carries its initial burden, the non-movant may avoid summary judgment only by “demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment.” Id. When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant “must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated.” Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of...