Hicks v. Universal Health Servs., A22A0204

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtDoyle, Presiding Judge.
Decision Date17 June 2022
Docket NumberA22A0205,A22A0204

HICKS et al.

HICKS et al.

Nos. A22A0204, A22A0205

Court of Appeals of Georgia, Third Division

June 17, 2022


Doyle, Presiding Judge.

These appeals arise following the partial dismissal of wrongful death claims brought by parents in their individual and estate administrator capacities against Universal Health Services, Inc. ("UHS"); UHS of Delaware, Inc. ("UHS Delaware"); UHS of Anchor, LP, d/b/a Crescent Pines Hospital and Anchor Hospital ("the Hospital"); Psychiatric Solutions, Inc.; Dr. Arun Kantamneni; and Arun K. Kantamneni MD, Inc. The claims are based on the deaths of the plaintiffs' adult children, Matthew Hicks, Destiny Olinger, and Sophia Bullard, who were shot and killed by Jacob Kosky after he allegedly received improper mental health treatment


from the defendants.[1] In Case No. A22A0204, the plaintiffs appeal from the dismissal of their survivor/non-estate wrongful death claims, arguing that the trial court erred by ruling that the two-year statute of limitation was not tolled by OCGA § 9-3-99 ("the Tolling Statute"), which pauses the statute of limitation for tort claims brought by crime victims while the criminal prosecution is pending. In Case No. A22A0205, defendant UHS cross-appeals the trial court's denial of its motion to dismiss for lack of personal jurisdiction under Georgia's Long Arm Statute.[2] For the reasons that follow we affirm in Case No. A22A0204, and we reverse in Case No. A22A0205.

Factual and Procedural Background

The record shows that in January 2021, the parents initiated the present actions seeking damages arising from the shooting deaths of their children.[3] The complaints alleged that in October 2016, 24-year-old Kosky, who had a mental health history that


included suicidal and homicidal ideations, was involuntarily admitted to Crescent Pines, an in-patient mental health treatment facility owned and operated by certain corporate defendants, and evaluated by Dr. Kantamneni. According to the complaint, despite Dr. Kantamneni's recognition that Kosky was a danger to himself and others, Kosky was discharged three days later without adequate supervision or treatment. On October 26, 2016, 11 days after his discharge, Kosky attended a bonfire gathering with his sister, and following a dispute, he briefly left the gathering, later returning with a firearm; Kosky then shot and killed Hicks, Bullard, Olinger, and Gibson.[4]Kosky pleaded guilty but mentally ill on February 8, 2019.[5]

More than four years after the shooting, on January 5 and 6, 2021, the parents of Hicks, Bullard, and Olinger filed the present actions, which later were consolidated for purposes of this appeal. The parents sued in their capacities as individuals (i.e., surviving parents) and as administrators of their children's estates, enumerating claims for ordinary and professional negligence, negligence per se, and wrongful


death.[6] The complaints, in part, broke down the damages sought: (a) based on the children's estates' claims for pre-death pain and suffering, hospital bills, and funeral expenses ("Estate claims"); and (b) based on the parents' wrongful death claims as survivors seeking the full value of the lives of their children ("Survivor claims").[7]

After the defendants filed answers, in February 2021, Kantamneni moved to dismiss as untimely the Survivor claims for wrongful death but not the Estate claims. UHS Delaware and the Hospital joined Kantamneni's motion. The moving defendants noted that the complaints were not filed within the two-year statute of limitation for personal injury torts, [8] and the statute of limitation was not tolled by OCGA § 9-3-99. That Code section extends the statute of limitation "with respect to any cause of


action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of"[9] the crime.

Following the parties' briefing of the issue, the trial court granted the motion to dismiss the Survivor claims, noting that the Estate claims remained viable. The trial court explained that the parents could not invoke the Tolling Statute because they were not victims of a crime. The trial court certified its ruling for immediate review, and the parents now appeal that ruling in Case No. A22A0204.

Meanwhile, in March 2021, UHS appeared specially and moved to dismiss for lack of personal jurisdiction.[10] Finding that UHS and its operations met the criteria for Georgia Long Arm jurisdiction and that Due Process notions of fairness were not violated, the trial court held that it had personal jurisdiction over UHS. UHS appeals that ruling in Case No. A22A0205.

Case No. A22A0204


1. The parents contend that the trial court erred by ruling that OCGA § 9-3-99 does not toll the two-year statute of limitation with respect to the Survivor claims. That Code section provides in full:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years, except as otherwise provided in Code Section 9-3-33.1 [pertaining to childhood sexual abuse].[11]

The parents argue that the trial court too narrowly defined the term "victim," and incorrectly concluded that their Survivor claims fall outside the scope of those claims covered by the Tolling Statute. We disagree.

Our analysis is governed by the familiar rules of statutory construction.
When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we
must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.[12]
The common and customary usages of the words are important, but so is their context. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law - constitutional, statutory, and common law alike - that forms the legal background of the statutory provision in question.[13]

"When we construe [a statute] on appeal, our review is de novo."[14]

The dispositive question on appeal is whether a wrongful death claim brought by a surviving parent to recover the value of the life of a child who was fatally shot is a "cause of action in tort that may be brought by the victim of an alleged crime."[15]This statutory language appears in an article of the Code that sets out the various types of tolling provisions generally applicable to statutes of limitation in civil


actions.[16] The Code does not define the term "victim" in this area, "so we look to the ordinary meaning of that word in context."[17]

In ordinary usage, the word "victim" is defined as "one that is acted on and usually adversely affected by a force or agent," and "one that is injured [or] destroyed . . . under any of various conditions [such as a car crash or murder]."[18] Black's Law Dictionary defines the term as "[a] person harmed by a crime, tort, or other wrong."[19]In a vague sense, it could be said that the harm of a shooting extends beyond the person shot, [20] but the ordinary dictionary definition is consistent with a natural and


reasonable understanding of the term as referring to the person who is "acted on," i.e., the person shot by the shooter. Put succinctly, the crime at issue here is murder, and the parents have not been murdered. Under this natural construction, the parents are not victims of the crime of murder.

Looking to other Code sections, we note that when the term is used elsewhere and not specifically defined, the word "victim" is used in its ordinary sense - referring to the person acted on - and is distinct from family members or others who may nevertheless experience indirect harm. For example, with respect to victim notification in OCGA § 17-10-1.1 (a), "[a] prosecuting attorney bringing charges against a defendant shall notify, where practical, the alleged victim or, when the victim is no longer living, a member of the victim's family of his or her right to submit a victim impact form."[21] And in OCGA § 17-10-1.2, "[i]n all cases in which the death penalty may be imposed, . . . the court shall allow evidence from the family of the victim."[22] The "victim" is distinct from "the family of the victim."


Similarly, with respect to victim compensation under OCGA § 17-15-7 (b), "[a] surviving spouse, parent, step-parent, child, or step-child who is legally dependent . . . upon a deceased victim shall be entitled to file a claim under this chapter if the deceased victim would have been so entitled. . . ."[23] In each of these instances, reading the word "victim" to include people not directly acted upon is unnatural and would render the references to surviving family members mere surplusage, which is a construction that we avoid.[24] So, when not otherwise defined, the word "victim" has been used by the General Assembly in the ordinary sense and has not included people who were not the direct objects of the crime, particularly if the victim is deceased. In these other instances in which the General Assembly intended to include people indirectly impacted such as family members or dependents, it made explicit...

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