MICAH NOELLE LEWELLEN, ET AL.
COVENANT HEALTH, ET AL.
April 13, 2015 Session
Appeal from the Circuit Court for Anderson County No. B4LA0018 Donald R. Elledge, Judge
John D. Agee, Clinton, Tennessee, for the appellants, Micah Noelle Lewellen, individually and Cale Ryan Lewellen, a minor by Micah Noelle Lewellen.
F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellee, Covenant Health.
Howard E. Jarvis, Dean T. Howell, and April A. Carr, Knoxville, Tennessee, for the appellee, Rentenbach Engineering Company.
R. Loy Waldrop, Jr., W. Paul Whitt, and Janet S. Hayes, Knoxville, Tennessee, for the appellee, TEG Architects, LLC.
D. Michael Swiney, J., delivered the opinion of the court, in which John W. McClarty and Thomas R. Frierson, II, JJ., joined.
D. MICHAEL SWINEY, JUDGE
The background facts of this case are relatively straightforward. Plaintiffs, along with several other similarly situated parties, filed a complaint in January 2014 against Defendants alleging that they were exposed to excessive radiation from the radiology facilities at Methodist Hospital. Defendants were involved with the construction project at Methodist Hospital, including the radiology facilities, in some capacity. Micah Noelle Lewellen alleged that portions of walls lacked the necessary lead shielding, and that this defect led to her and her gestating child's exposure to excessive radiation while she worked at the hospital. Defendants filed answers in opposition. Certain of Defendants raised comparative fault against Methodist Medical Center of Oak Ridge ("MMC"), or, alternatively, that Covenant Health owned the facilities. Defendants later filed motions for summary judgment in which they asserted that the construction statute of repose was a complete defense. Plaintiffs filed a Motion for Leave to File Amended Complaint and Motion to Quash Notices of Hearing. Plaintiffs sought to add MMC as a Defendant to the complaint. The Trial Court granted Plaintiffs' Motion to Quash, allowing additional time to take discovery on the issues of substantial completion and the statute of repose.
In June 2014, the Trial Court heard Defendants' motions for summary judgment as well as Plaintiffs' motion to add MMC as a party. The Trial Court granted Defendants' motions for summary judgment and denied Plaintiffs' Motion to Amend. The Trial Court incorporated its oral ruling into its order, which we quote from:
We're here today on the case of Michael Phillips, Case No. B4LA0014, Connie Raby, B4LA0015, Mary Ridenour, et al., B4LA0016, Keith Gillis, B4LA0017, and Micah Lewellen, et al., B4LA0018, all versus Covenant Health, Rentenbach Engineering, doing business as Rentenbach Constructors, Inc., and TEG Architects, LLC.
We're here as a result of a motion for summary judgment being filed under Rule 56 and, would advise counsel, under Rule TCA 20-16-101, which basically reversed the finding in Hanna[n] vs. Alltel where the parties who do not bear the burden of proof, it reversed - - it went from putting it on - - or reversing it to trial. And I was a part of that. Martin vs. Southern Railroad and Hanna[n] vs. Alltel were both debated on the floor. But it takes us back to what it was before Hanna[n] vs. Alltel. It's back to "put up or shut up." That's the language that's used in the discussion.
It is uncontroverted that litigation in each of these cases was filed on or about January 13, 2014, or thereafter. It is uncontroverted that in each of these litigations, specifically in paragraph 9, that the emergency department was substantially completed and opened in February of 2006.
I read the complaint again twice yesterday, and nowhere in the complaint could I find any allegation of fraud or wrongful concealment. It is undisputed that this is a construction lawsuit, and when you read the allegations set out in the complaint, it's a construction lawsuit. It's an errors and omissions lawsuit, where one panel of lead-lined Sheetrock was left out of the x-ray room.
And it's uncontroverted and undisputed that the imaging center was substantially complete to the point of making it available for its intended use as an emergency room no later than March 23, 2006. That's the affidavit of Anthony Pettitt that attached the Certificate of Compliance under Exhibit A. It's undisputed that the code enforcement supervisor, Danny Boss, for the City of Oak Ridge issued a use permit for the emergency room on or about April 4, 2006. But, factually, the emergency room was in fact being used at the end of March through December of 2013, at which time the lead-lined wall was then constructed. December 2013, they added lead shielding that was omitted. That's in the deposition of David Newman, page 11, line 3 through 6, page 15, line 5 through 9.
I have read the report of Roy Osborne. I find that that report and several of the items submitted by Plaintiff in response to the statement of facts and their allegations of additional statements of facts do not comply with Tennessee Rules of Civil Procedure 56.06. But even taking into consideration Roy Osborne's report, it does not set out and does not mention the absence of any lead-lined wall or knowledge - - and that's important, knowledge - - that the lead-lined wall was not appropriately built. To the contrary, it said it had adequate lead-lined shielding. So even if I took it into consideration, it doesn't rise to the effect of fraud or concealment, which hasn't been pled.
We're here on the statute of repose, and I'll remind counsel, and it becomes a part of my ruling today, that under 28-3-201 under "Definitions, " "Substantial completion means that degree of completion of a project, improvement, or a specified area or portion thereof (in accordance with the contract documents, as modified by any change orders agreed to by the parties) upon attainment of which the owner can use the same for the purpose for which it was intended." It also says, "The date of substantial completion may be established by written agreement between the contractor and owner."
We had a notification, pursuant to the statute, that was filed and is considered by the Court a notice of substantial completion on March 23, 2006, between the contractor and the owner. We had the fact that from March of 2006 till December of 2013, it was used for the purpose for which it was intended. It was an x-ray room, it was a CT room, and that's what it was used for.
Then we look at "Limitation of Actions, " and this is where the statute of repose comes in, TCA 28-3-202. "All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property must be" -- it goes on - - "must be brought against the person performing or furnishing the design, planning, supervision, construction within four years after substantial completion of such an improvement."
TCA 28-3-203 says if you suffer the injury in the fourth year, then, of course, it adds a year to it.
And then 28-3-205 specifically sets out "Limitation not defense for party in possession, guilty of fraud, who conceals cause of action." Under subparagraph (b), "The limitation provided shall not be available as a defense to any person who shall have been guilty of fraud in performing or furnishing the design, planning, supervision, observation of construction, ...