Whaley v. Sharp
| Decision Date | 24 December 2014 |
| Docket Number | 107,776. |
| Citation | 301 Kan. 192,343 P.3d 63 |
| Parties | Janet WHALEY, Coexecutor of the Estate of Ann L. Krier, Deceased, Appellant, v. Chad E. SHARP, M.D. Appellee. Janet Whaley, Surviving Adult Daughter and Heir–at–Law of Ann L. Krier, Deceased, Appellant, v. Chad E. Sharp, M.D., Appellee. |
| Court | Kansas Supreme Court |
Lynn R. Johnson, of Shamberg, Johnson, Bergman, Chtd., of Kansas City, Missouri, argued the cause, and David R. Morantz, of the same firm, was with him on the briefs for appellant.
Jerry D. Hawkins, of Hite, Fanning & Honeyman L.L.P., of Wichita, argued the cause and was on the briefs for appellee.
It is well established that anyone wishing to bring a lawsuit against a municipality under the Kansas Tort Claims, K.S.A. 75–6101 et seq., must give that municipality prior written notice of the claim. K.S.A.2013 Supp. 12–105b(d) ; Sleeth v. Sedan City Hospital, 298 Kan. 853, 317 P.3d 782 (2014) ; Continental Western Ins. Co. v. Shultz, 297 Kan. 769, 304 P.3d 1239 (2013). This case questions whether that statutory notice is required when the lawsuit is filed only against a municipal employee. We hold notice is not required. We reverse the Court of Appeals majority, which held to the contrary. Whaley v. Sharp, No. 107,776, ––– Kan.App.2d ––––, 2013 WL 1149750, at *1 (Kan.App.2013) (unpublished opinion). The case is remanded to the district court for further proceedings.
On May 15, 2008, Ann Krier sought treatment in the emergency department of Ashland Health Center (Ashland). Dr. Chad Sharp, M.D., and Jonathan Bigler, a physician's assistant, cared for her. Ashland is a municipal hospital that employed both Sharp and Bigler. The day after being admitted, Krier died in transit to Wichita for further treatment.
Janet Whaley, Krier's adult daughter, was appointed coexecutor for the estate. On May 6, 2010, Whaley's attorneys submitted a notice of claim to Ashland, referencing K.S.A. 12–105b(d), asserting claims against the hospital for the alleged negligence of its employees, including nursing staff, Sharp, and Bigler. This notice alleged negligence by these hospital employees and claimed the hospital was negligent in hiring, credentialing, supervising, and retaining Sharp. Whaley demanded combined damages of $1,250,000.
On May 10, 2010, just 4 days after submitting the notice of claim to the hospital, Whaley commenced two lawsuits, each naming Sharp and Bigler as defendants. The first was a wrongful death action filed in Whaley's capacity as coexecutor. The second was a survivor action filed in her individual capacity. Both claims have a 2–year statute of limitations, which were about to expire. See K.S.A. 60–513(a)(5), (a)(7). The lawsuits alleged Sharp negligently misdiagnosed Krier's condition and that Sharp and Bigler negligently managed and treated her. The hospital was not named as a defendant. The suits against Bigler were later dismissed with prejudice for reasons not appearing in the record.
Sharp moved for summary judgment, arguing Whaley failed to comply with the notice requirements in K.S.A.2013 Supp. 12–105b by not waiting to file the lawsuits until the statutorily required time had elapsed after submitting the written notice to the hospital. See K.S.A.2013 Supp. 12–105b (d) (“Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.”); Sleeth, 298 Kan. at 870–71, 317 P.3d 782 .
Whaley responded that compliance with the 120–day rule was not necessary because the statute's plain language did not require notice prior to suing a municipal employee—as distinguished from a municipality. She further noted Ashland could not be liable for Sharp's alleged negligence under K.S.A. 40–3403, which eliminates vicarious liability among health care providers as part of the Health Care Provider Insurance Availability Act, K.S.A. 40–3401 et seq. The parties stipulated that both Sharp and the hospital were health care providers under the applicable law.
The district court granted summary judgment to Sharp in both suits, ruling that Whaley was required to comply with the statutory notice requirements and the waiting period mandated by K.S.A.2013 Supp. 12–105b(d). In doing so, the court relied on King v. Pimentel, 20 Kan.App.2d 579, 890 P.2d 1217 (1995). In that case, a Court of Appeals panel held that compliance with the statutory requirements was a prerequisite to filing suit against a municipal employee for acts within the scope of employment. King, 20 Kan.App.2d at 590, 890 P.2d 1217. Whaley appealed.
A divided Court of Appeals panel affirmed the district court. The panel majority agreed King resolved the case. It also rejected Whaley's bid to overrule King, reasoning that the legislature had not acted in response to King and because numerous subsequent cases in state and federal courts had relied on King in suits against municipal employees. In addition, the panel majority believed King 's statutory interpretation served all litigants well because it gave claimants the benefit of the statute of limitations tolling provisions, as well as allowing municipalities an opportunity to review and investigate claims against their employees before being entangled in litigation. See K.S.A.2013 Supp. 12–105b(d). Finally, the panel majority argued reversing King could require some plaintiffs to bring separate tort claims actions—one against the municipal employee and the other against the municipality. Whaley, 2013 WL 1149750, at *4–5.
The panel majority also rejected Whaley's alternative argument that the notice requirement did not apply because Ashland was not vicariously liable for Sharp's acts under state law. Whaley, 2013 WL 1149750, at *6.
Chief Judge Thomas E. Malone dissented. He argued K.S.A.2013 Supp. 12–105b's plain language does not require notice before filing suit against a municipal employee. He relied on Bradford v. Mahan, 219 Kan. 450, 548 P.2d 1223 (1976), a case decided before the Kansas Tort Claims Act was enacted, which held that a previous, but similar, statute did not require notice before suing municipal employees. He further argued this outcome was justified in this case because Ashland could not be vicariously liable for Sharp's acts. Whaley, 2013 WL 1149750, at *7.
Whaley timely petitioned this court for review, which we granted. Jurisdiction is appropriate under K.S.A. 60–2101(b) (). We reverse the panel majority and remand to the district court for further proceedings.
K.S.A.2013 Supp. 12–105b(d)Does Not Apply
Whaley argues K.S.A.2013 Supp. 12–105b(d)'s notice requirement plainly does not apply to suits against municipal employees because the statute is silent in that regard. Sharp argues the statute may be extended to any lawsuit against a municipal employee for acts within the employee's scope of employment—even if the municipality is not named a defendant.
The relevant facts are undisputed. The question is whether, as a matter of law, Whaley was obligated to satisfy K.S.A.2013 Supp. 12–105b(d) before commencing these lawsuits against Sharp. See K.S.A.2013 Supp. 60–256(c)(2) (). Resolving this issue requires the court to interpret K.S.A.2013 Supp. 12–105b.
Statutory interpretation is a question of law subject to de novo review. In re A.M.M.-H., 300 Kan. 532, 535, 331 P.3d 775 (2014). When interpreting a statute, the court first attempts to discern the legislature's intent through the language enacted, giving common words their ordinary meanings. When statutory language is plain and unambiguous, the court does not speculate as to legislative intent, and does not read into the statute words not readily found there. It is only when the language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute's meaning. 300 Kan. at 535, 331 P.3d 775.
A person bringing a claim against a municipality under the Kansas Tort Claims Act (KTCA) must provide that municipality with prior written notice of the claim. Sleeth, 298 Kan. at 863, 317 P.3d 782; Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, 639, 205 P.3d 1265 (2009). Notice is a prerequisite to filing an action against a municipality. Sleeth, 298 Kan. at 863, 317 P.3d 782. The statute provides:
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