Kyser v. Vel, LLC (In re Vel, LLC)
Decision Date | 30 December 2016 |
Docket Number | 1150542. |
Citation | 225 So.3d 591 |
Parties | EX PARTE VEL, LLC, et al. (In re: Patricia Kilgore Kyser, as administrator ad litem of the Estate of William Henry Kilgore v. VEL, LLC, et al.) |
Court | Alabama Supreme Court |
William H. Webster, D. Mitchell Henry, and Kayla W. Frisby of Webster, Henry, Lyons, Bradwell, Cohan & Speagle, P.C., Montgomery, for petitioners.
David L. Selby II, Matthew J. Ford, and David A. Felice of Bailey & Glasser, LLP, Morgantown, West Virginia, for respondent.
VEL, LLC ("VEL"); Montgomery Drug Co., Inc. ("MDCI"); Robert Stafford; and Erica Greene (hereinafter collectively referred to as "the petitioners") petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order of January 12, 2016, denying the petitioners' respective motions for a summary judgment and to enter an order granting the petitioners' respective motions for a summary judgment.
On June 16, 2011, William Henry Kilgore sought to fill his prescription for ropinirole, a drug used to treat the symptoms of Parkinson's disease, at the Adams Drugs pharmacy located at 35 Mitchell Drive, Montgomery, Alabama ("the Adams Drugs pharmacy"). Instead of filling Kilgore's prescription with ropinirole as prescribed, the employees working at the Adams Drugs pharmacy filled Kilgore's prescription with risperidone. On June 20, 2011, after having taken risperidone instead of ropinirole for several days, Kilgore began experiencing negative health consequences and sought medical assistance at the emergency room of Baptist Medical Center South ("Baptist South") in Montgomery. Medical personnel at Baptist South discovered that Kilgore had been taking risperidone instead of the prescribed ropinirole. It was alleged that Kilgore suffered injuries and damages as a result of ingesting risperidone rather than ropinirole for more than four days.
At the time Kilgore's prescription was improperly filled at the Adams Drugs pharmacy, VEL and MDCI each owned and operated at least one Adams Drugs pharmacy in Montgomery. It is undisputed that the Adams Drugs pharmacy is owned and operated by MDCI. The affidavit testimony of Terrell Lankford, a member of and the registered agent for VEL, indicates that, "[s]ince its formation in 1997, V[EL] ... has not been known as or used the name ‘Montgomery Drug Company, Inc.,’ or any variation thereof." The affidavit testimony of Michael Vinson, a shareholder and registered agent of MDCI, indicates that, "[s]ince its formation in 1960, [MDCI] has not been known as or used the name ‘V[EL], LLC,’ or any variation thereof." VEL and MDCI do have common ownership.
On May 30, 2012, one of Kilgore's trial counsel, J.B. Perrine, sent a letter to Lankford "c/o VEL, LLC d/b/a Adams Drugs" in order to "discern whether [VEL] has any interest in a pre-litigation resolution of Mr. Kilgore's claims." In that letter, Perrine asserted that VEL "negligently refilled Mr. Kilgore's prescription for ropinirole with risperidone." Perrine was under the mistaken impression that VEL, instead of MDCI, owned and operated the Adams Drugs pharmacy; there is no evidence indicating why Perrine failed to determine that MDCI, rather than VEL, owned and operated the Adams Drugs pharmacy. Nor is there any evidence indicating what steps, if any, Perrine took to ascertain the identity of the owner of the Adams Drugs pharmacy before sending the May 30, 2012, letter. Perrine requested that, if Lankford was interested in reaching a settlement, Lankford "forward this letter to your insurance carrier and have your insurance carrier contact us." Apparently, Lankford forwarded the May 30, 2012, letter to VEL's insurer.
VEL and MDCI have the same insurer, Penn National Insurance Company ("Penn National"). On June 6, 2012, Shari Campbell, an employee in Penn National's claims department, sent Perrine an e-mail informing him that Penn National was the insurer "for [the] Adams Drug store for the date Mr. Kilgore filled his prescription there" and that Kilgore's medical records were needed in order to further investigate Kilgore's claim that he had suffered damages as a result of his injuries. Campbell's June 6, 2012, e-mail to Perrine made no reference to either VEL or MDCI. Kilgore provided Penn National with the requested medical records.
On October 24, 2012, Campbell sent another e-mail to Perrine. The subject line of Campbell's e-mail stated: "Montgomery Drug Inc & Adams Dr."
On October 26, 2012, Campbell, on behalf of Penn National, sent a letter to Perrine offering to settle Kilgore's claim for $12,500. The letter that Campbell sent Perrine unequivocally identified MDCI as the insured on whose behalf Penn National was making the settlement offer. In all capital letters at the top of the letter, Campbell identified "MONTGOMERY DRUG INC" as the "[i]nsured." Kilgore rejected Penn National's settlement offer.
On February 27, 2013, Kilgore and Patricia Kilgore Kyser, as guardian and conservator of Kilgore (hereinafter collectively referred to as "the plaintiffs"), filed the original complaint in the action against "VEL, LLC, d.b.a. Adams Drugs, and/or Adams Drugs Good Neighbor Pharmacy," and several fictitiously named defendants, seeking damages for Kilgore's injuries that the plaintiffs alleged were caused by the defendants' alleged negligence and wantonness.1 The complaint defined VEL as an entity that owned and operated nine pharmacy locations, including the Adams Drugs pharmacy.
On the same day, one of the plaintiffs' trial counsel, David Selby, who was a member of the same law firm as Perrine, sent Campbell a letter informing her that the plaintiffs had filed a complaint against "Penn National's insured." The subject line of the letter stated: "Re: Montgomery Drug Inc., Adams Drug Company." There is no mention of VEL in the letter.
On March 5, 2013, Reba McLain, an attorney hired by Penn National to represent its insured, MDCI, e-mailed Selby to "confirm the agreement we reached today giving us an open extension to respond to the lawsuit filed against our insured Montgomery Drug Inc." The subject line of the e-mail stated: "Kilgore v Montgomery Drug Inc."
It is undisputed that the two-year statute of limitations on the plaintiffs' claims against MDCI expired in June 2013. See § 6–2–38(l ), Ala. Code 1975; see also Dorsey v. Bowers, 709 So.2d 51, 56 (Ala. Civ. App. 1998) ( ).
On July 18, 2013, VEL filed a motion to dismiss, asserting that it "has no relation or connection with any of the claims stated against it in [the plaintiffs'] complaint." VEL stated that it was "the wrong entity against which to assert these claims."
On July 19, 2013, after receiving VEL's motion to dismiss, Selby sent an e-mail to VEL's trial counsel, stating:
VEL's trial counsel responded:
On August, 13, 2013, the plaintiffs filed their first amended complaint, substituting MDCI for fictitiously named defendant "DD."2 The plaintiffs stated that "[MDCI] d.b.a. Adams Drugs and/or Adams Drugs Good Neighbor Pharmacy ... operates the ‘Adams Drugs' location at 35 Mitchell Drive in Montgomery, Alabama." The first amended complaint retained VEL as a defendant; MDCI was not substituted for VEL.
On September 16, 2013, MDCI filed a motion to dismiss the plaintiffs' claims against it. MDCI argued that the applicable statute of limitations had expired in June 2013. MDCI further argued that the plaintiffs had not amended their complaint to add MDCI as a defendant until August 13, 2013, nearly two months after the applicable statute of limitations had expired. MDCI argued that the amended complaint did not relate back to the date of the original complaint. In support of that argument, MDCI argued that the plaintiffs "had multiple documents and substantial information in their possession identifying [MDCI] as the proper defendant in this action before the statute of limitations expired" and, thus, that the complaint against MDCI was due to be dismissed.
On September 16, 2013, VEL filed a motion to dismiss the plaintiffs' first amended complaint, arguing that it "is the wrong entity against which to assert these claims." Both MDCI and VEL filed several subsequent motions to dismiss, in which they asserted the same basic arguments contained in their first motions to dismiss.
On November 12, 2013, the plaintiffs filed a response to MDCI's motion to dismiss. The plaintiffs argued that the circuit court "should deny [MDCI's] motion to dismiss because all of [the plaintiffs'] claims in the first amended complaint relate back under Alabama Rule of Civil Procedure 15(c)(3), the misnomer rule, and Alabama fictitious party practice." The plaintiffs argued that they had exercised due diligence in seeking to discover the identity of MDCI. In support of that argument, the plaintiffs presented the affidavit testimony of Matthew Ford, one of their trial counsel; Ford is an attorney at the same law firm as Perrine and Selby. Ford's affidavit stated, in...
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