Knorp v. Albert, 85,317.

• Decision Date: 27 July 2001
• Docket Number: No. 85,317.,85,317.
• Citation: 28 P.3d 1024,29 Kan. App.2d 509
• Parties: INA KNORP, Appellant, v. DR. STEVEN E. ALBERT, D.O., Appellee.
• Court: Kansas Court of Appeals

29 Kan. App.2d 509

28 P.3d 1024

INA KNORP, Appellant, v. DR. STEVEN E. ALBERT, D.O., Appellee.

No. 85,317.

Court of Appeals of Kansas.

Opinion filed July 27, 2001.

James T. McIntyre, of Law Offices of James T. McIntyre, of Wichita, for the appellant.

James Z. Hernandez and Peter G. Collins, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for the appellee.

Before RULON, C.J., LEWIS, J., and STEPHEN D. HILL, District Judge, assigned.

LEWIS, J.:

This lawsuit was filed by Ina Knorp against Steven E. Albert, D.O., to recover damages caused when Albert allegedly misdiagnosed her condition as a diabetic episode when she had, in fact, suffered a stroke. The trial court granted summary judgment in favor of Albert, finding that Knorp had failed to give notice under K.S.A. 2000 Supp. 12-105b(d) to Albert's employer. Knorp appeals from the decision granting summary judgment in favor of Albert.

The controlling issue on appeal is whether Albert was an employee of the Harper Hospital District or an independent contractor. If he was an employee of the hospital, the trial court was correct. If, on the other hand, Albert was an independent contractor, the trial court's holding was erroneous. The question of Albert's negligence and the details of his treatment of Knorp are irrelevant on appeal, and those facts will not be reviewed.

Our focus is on the procedural course this case has taken. That course is somewhat complex and is of substantial importance in resolving the issues presented. Knorp filed two lawsuits. The first action was filed in 1998 and will be referred to as the "1998 lawsuit." The second action was filed in 1999 and is the action on appeal to this court. That action will be referred to as the "1999 lawsuit."

The issues on appeal cannot be resolved without turning our attention first to the 1998 lawsuit. Among the allegations set forth in that action was the following:

"10. Harriet Fox, Phyllis Shirk, Tom Giggy, Ken Salters and Kenna Teal, as directors and on behalf of Hospital District No. 5 of Harper County, Kansas, that entity is the employer of Dr. Steven E. Albert, and is responsible in response of superior [sic] for all damages caused by the fault of Dr. Steven E. Albert. In addition, these Defendants were negligent in ensuring that Dr. Steven E. Albert in a timely fashion examined all patients admitted to the Harper Hospital Medical Clinic on an emergency basis and that he was a competent physician." (Emphasis added.)

Obviously, the 1998 action was premised on the basis that Albert was an employee of the hospital. It named the directors of the hospital as defendants and sought recovery against the hospital via the doctrine of respondeat superior or on the theory of negligent supervision. The hospital, in responding to Knorp's allegations, alleged in its answer: "5. Answering the allegations contained in paragraphs 5, 6, 7, 9 and 10, of plaintiff's Petition, the same are expressly denied. These defendants expressly deny that they were negligent in any regard."

Albert filed a motion to dismiss the 1998 lawsuit on the ground that Knorp had failed to give the required notice to the hospital under K.S.A. 2000 12-105b(d). That statute refers to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., and requires that prior to filing suit against a municipality based on the negligence of one of its employees, written notice must be given to the municipality at least 120 days prior to the filing of a lawsuit. The parties appear to agree that the hospital was a municipality under K.S.A. 12-105a(a) and that Knorp had failed to give it the notice required by 12-105b(d).

Knorp apparently realized the error of her ways and before the trial court had an opportunity to act on the motion to dismiss, moved the court for an order dismissing the 1998 action without prejudice. This motion was granted, and Knorp filed the 1999 lawsuit within the 6-month period required by K.S.A. 60-518.

In 1999, Knorp filed the current action. Unaccountably, Knorp again made no effort to comply with 12-105b(d). Instead, she redrew her action, eliminated the directors of the hospital as defendants, and named Albert in his individual capacity only, inferring that he was an independent contractor of the hospital and not an employee. Albert again moved the court for summary judgment, contending that he was, in fact, an employee of the hospital and that no notice had been given under 12-105b(d). In response, Knorp argues that no notice was necessary since Albert was an independent contractor. She further maintained that Albert had either waived the right to raise the failure to give notice or was estopped to raise that issue because of the position he had taken in the 1998 litigation.

The trial court found neither of Knorp's arguments persuasive and granted Albert's motion for summary judgment. The propriety of granting summary judgment to Albert is the subject of this appeal.

WAS ALBERT AN EMPLOYEE OF THE HOSPITAL OR AN INDEPENDENT CONTRACTOR OF THAT ENTITY FOR THE PURPOSES OF THE KANSAS TORT CLAIMS ACT?

Our standard of review for summary judgment in cases of this nature is well established:

"The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when 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 judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]" Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).

The specific issue argued by Knorp is that the trial court erred in determining that Albert's written contract with the hospital made him an employee rather than an independent contractor. In this context, an appellate court may independently construe a written agreement to determine its legal significance. Anderson v. Employers Mutual Casualty Ins. Co., 27 Kan. App.2d 623, 629, 6 P.3d 918 (2000). There are at least two Kansas Supreme Court cases holding that the question of whether one is an employee or independent contractor is generally a question of fact. See Mitzner v. State Dept. of SRS, 257 Kan. 258, 261, 891 P.2d 435 (1995); Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 (1991). However, in this case, an unambiguous written contract controls the employment relationship, and we conclude the interpretation of that agreement is properly a matter of law subject to unlimited review.

As we indicated earlier, no one seriously questions whether the hospital is a municipality under K.S.A. 12-105a(a). That being the case, a tort claimant against a municipality on a claim covered by the KTCA must give the municipality notice of the claim and 120 days to either settle or deny the claim. On its face K.S.A. 2000 12-105b(d) only applies to municipalities and says nothing about having application to the employees of the municipalities. Despite this fact, we held in King v. Pimentel, 20 Kan. App.2d 579, 589, 890 P.2d 1217 (1995), that 12-105b(d) requires notice to the municipality even when the lawsuit only names municipal employees acting within the scope of their employment. The KTCA applies to both municipal entities and employees of municipal entities acting within the scope of their employment. K.S.A. 2000 Supp. 75-6104.

Certain claims which are based on the rendering or failure to render professional services by health care providers are excluded from coverage under the KTCA by K.S.A. 75-6115. However, there are five exceptions to this exclusion, and one of those exceptions is applicable to this case and that is "a hospital owned by a municipality and the employees thereof." K.S.A. 75-6115(a)(2). The KTCA has full applicability in the instant matter and includes a "governmental entity or an employee acting within the scope of the employee's employment."

Obviously an independent contractor is not an employee. Indeed, the KTCA definition of employee excludes independent contractors. K.S.A. 2000 Supp. 75-6102a(d). The result is, as pointed out earlier, if Albert is or was an independent contractor, then the KTCA does not apply to him, and the trial court's decision was erroneous.

On the issue of Albert's status, the trial court held that he was an employee within the definition of K.S.A. 2000 Supp. 75-6102a(d). In general, the test to be applied was set out by the Supreme Court in Falls v. Scott, 249 Kan. at 64 as follows:

"An independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. [Citation omitted.]"

In addition to the general rule, the Restatement (Second) of Agency § 220(2) sets out several relevant factors to be considered in deciding whether one is an employee or an independent contractor:

"(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

"(b) whether or not the one employed is engaged in a distinct occupation or business;

"(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the

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