United States District Court, E.D. Tennessee, Knoxville
Kenneth Kelley, as the son, next of kin, and heir at law of JIMMY KELLEY, deceased, Plaintiff,
APRIA HEALTHCARE, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
the Court is Apria Healthcare LLC's motion for the Court
to reconsider its judgment. Apria previously moved for
summary judgment, and it was denied. Apria now asks the Court
to alter or amend the judgment according to Federal Rule of
Civil Procedure 59(e). For the following reasons, the motion
to reconsider is granted in part and denied in part. The
Court's previous Order is vacated and replaced with this
one. Apria's request to certify the Court's previous
Order under 28 U.S.C. § 1292(b) is denied. Apria's
motion for summary judgment is denied.
Kelley lived in a camper on property occupied by his son
Kenneth. Jimmy, in his early seventies, used medical oxygen.
The oxygen and equipment were provided by Apria. In February
2012, a fire broke out in the camper. Jimmy was killed.
sued Apria and others. After four years of litigation, Apria
is the only remaining defendant. Kenneth alleges that Apria
was negligent in how it provided the equipment, how it
maintained the equipment, how it taught Jimmy to use the
equipment, and how it inspected the environment. Apria denies
these allegations and claims that Jimmy contributed to the
September 1, 2016, Apria moved for summary judgment. The
Court denied the motion on November 22, 2016. Apria now asks
the Court to amend its judgment.
asks the Court to amend its judgment under Rule 59(e). A
court may grant a Rule 59(e) motion only if there is a clear
error of law, newly discovered evidence, a change in
controlling law, or a need to prevent manifest injustice.
Henderson v. Walled Lake Consol. Sch., 469 F.3d 479,
496 (6th Cir. 2006). Apria contends that the Court's
Order contains clear errors of law.
there is a clear error of law, then the Court must reevaluate
that part of its Order. Apria's motion for summary
judgment makes some arguments that are legal and others that
are factual. The Court thus construes it as a motion for
judgment on the pleadings or, alternatively, for summary
judgment. See Fed. R. Civ. P. 12(g)(2), (h)(2);
Hutchins v. First Fed. Credit Control, Inc., No.
2:14-cv-510, 2015 WL 11123314, at *1 (S.D. Ohio Aug. 20,
reviewing a motion for judgment on the pleadings, the court
looks at all the pleadings filed in the case. Gavitt v.
Born, 835 F.3d 623, 640 (6th Cir. 2016). Motions for
judgment on the pleadings under Rule 12(c) are reviewed under
the same standard as motions to dismiss under Rule 12(b)(6).
Id. The complaint will survive a motion to dismiss
only if, looking at the pleadings, they state a facially
plausible claim for relief. Id.
determine whether the pleadings state a facially plausible
claim, the Court takes a two-step approach. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). First, it separates the
pleadings' factual allegations from their legal
conclusions. All factual allegations, and only factual
allegations, are taken as true. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
the Court asks whether these facts amount to a plausible
claim for relief. Id. at 555. The plaintiff does not
need to make detailed factual allegations, but he must do
more than simply recite the elements of the offense.
Id. Specifically, the plaintiff must plead facts
permitting a reasonable inference that the defendant is
liable for the alleged conduct. Id. If this is not
done, the claim will be dismissed. Id. at 570.
judgment is proper only if there is no genuine issue on any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). A dispute is genuine if a
reasonable jury could find for the nonmoving party.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
A fact is material if it “might affect the outcome of
the suit under the governing law.” Id.;
Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834,
847 (6th Cir. 2016).
moving party bears the initial burden of showing that there
is no genuine issue of material fact on any element of the
other party's claim or defense. Stiles, 819 F.3d
at 847. In determining whether this burden is met, the Court
views all evidence in the light most favorable to the
nonmoving party and draws all inferences in his favor.
Anderson, 477 U.S. at 255. Once the mo-vant has
satisfied this burden, the other party must identify specific
facts in the record that raise a genuine issue of material
fact. Stiles, 819 F.3d at 847. If this is not done,
summary judgment is granted. Fed.R.Civ.P. 56(a). The Court
does not weigh evidence, judge witnesses' credibility, or
decide the truth of the matter. Anderson, 477 U.S.
summary judgment, Apria's first argument was that Kelley
had released it from liability. Apria does not ask the Court
to reconsider this part of its Order, so the Court will leave
its reasoning as it was.
is a genuine issue of fact about whether Kelley released
Apria from liability. Under Tennessee law, when one signs a
release with some tortfeasors but not others, the release
does not apply to those other tortfeasors “unless its
terms so provide.” Tenn. Code Ann. §
29-11-105(a)(1). In March 2015, Kelley signed a release with
two companies. As the release states, it applies to those two
companies, their successors in interest, and “all other
persons, associations, and/or corporations, whether herein
named or referred to or not.” [D. 260 Ex. 1 at 1].
Apria, citing the language of § 29-11-105 and the
release, argues that Kelley has freed them from liability
language, however, does not always have the final say in
contract interpretation. Instead, what matters is the
parties' intent. Evans v. Tillett Bros. Contr. Co.,
Inc., 545 S.W.2d 8, 11 (Tenn. Ct. App. 1976). When the
contract at issue is a release, the parties' intent is
gleaned from the release's terms, “considered in
the light of all the facts and circumstances.”
requires a two-step approach. First, the Court looks at the
language of the release itself. Peatross v. Shelby
Cty., No. W2008-2385-COA-R3-CV, 2009 WL 2922797, at *4
(Tenn. Ct. App. Sept. 10, 2009). The Court looks at whether
the release was wrongly obtained or its language is unclear.
Id. Second, the Court considers the facts and
circumstances surrounding the release's execution.
Id. This includes the parties' conduct outside
litigation. Id. And if the release was wrongly
obtained or its language is unclear, then the Court can also
consider the parties' statements of their subjective
claims that the March 2015 release was wrongly obtained, and
its language is clear: the release applies to the two
companies who signed the release, their successors, and
“all other persons, associations, and/or corporations,
whether herein named or referred to or not.” The only
plausible interpretation of this passage is that all parties
responsible for Jimmy Kelley's death are released from
liability. In proceeding to step two, therefore, the Court
will not consider Kenneth Kelley's Declaration about his
intent in forming the release.
conduct since signing the release creates a genuine issue of
material fact about the release's intended scope. As both
Kelley and Apria note, Kelley signed three separate releases
with various parties. [D. 260 Exs. 1-3]. One of these
releases was signed after the one Apria relies on here. If
Kelley intended the release at issue here to apply to all
parties, it would make little sense for him to sign another
release freeing others from liability. Further, Kelley has
pursued this litigation since the release was signed. It
would likewise make little sense for him to do so if he
thought that he had already released Apria. Kelley has shown
a genuine issue of material fact about the release's
next argued that Kelley's suit falls under the Tennessee
Health Care Liability Act, Tennessee Code § 29-26-101 to
-122. Before filing a suit under the Act, plaintiffs must
meet certain notice and certification requirements. Tenn.
Code Ann. § 29-26-121 to -122. They must also prove
their case through experts who hold very specific
qualifications. Id. § 29-26-115. Kel-ley has
not met these requirements. So if his suit falls under the
Act, it must be dismissed.
falls under the Act only if it is a suit “alleging that
a health care provider or providers have caused an injury
related to the provision of, or failure to provide, health
care services to a person.” Id. §
29-26-101(a)(1). On summary judgment, Apria asserted that it
was a health care provider that gave Jimmy Kelley health care
services. The Court ruled that Apria was not a health care
provider because (1) it did not have to be licensed under
Tennessee Code title 68, chapter 11; and (2) its respiratory
therapists do not practice medicine. Apria contends that this
was clear error. On reconsideration, the Court finds for
different reasons that Apria is not a health care provider.
The Court also finds that Apria did not provide Jimmy health
first issue is whether Apria is a health care provider.
Health care provider is defined in §
29-26-101(a)(2). The two relevant definitions are in
subparagraphs (B) and (E). Apria meets neither.
subparagraph (B), a health care provider is a
“nongovernmental health care facility licensed under
title 68, chapter 11.” A facility, in turn, is
“any institution, place or building providing health
care services that is required to be licensed” under
title 68, chapter 11. Tenn. Code Ann. § 68-11-201(15).
This definition of facility presents three
1. Whether Apria is an “institution, place or
2. Whether it provides healthcare services at those
institutions, places or buildings; and
3. Whether it must be licensed under title 68, chapter 11.
summary judgment, the Court found that Apria did not meet the
third prong; it did not reach the other two. On
reconsideration, the Court finds that Apria meets the third
prong but not the first two. It is not a facility, and so is
not a health care provider under § 29-26-101(a)(2)(B).
Apria Is Not an Institution, Place or Building
facility is an “institution, place or building.”
Id. § 68-11-201(15). Apria argues that it is an
institution, place or building because it has physical
locations that support its in-home care efforts. Kelley
contends that Apria is not an institution, place or building
because it provides only in-home care.
Court agrees with Kelley. Tennessee law does not define
institution, place or building. The Court must look
for hints in Tennessee law. Pickard v. Tenn. Water
Quality Control Bd., 424 S.W.3d 511, 520 (Tenn. 2013).
The greatest hints are in § 68-11-201 itself. It uses
institution, place or building to define three other
terms: ambulatory surgical treatment center,
hospital, and nursing home. Tenn. Code Ann.
§ 68-11-201(3), (26)(A), (28)(A). These terms share one
defining feature: they are places where people go to receive
confirmed by § 68-11-201's other uses of
facility. An outpatient diagnostic center is
“a facility providing outpatient diagnostic
services.” Tenn. Code Ann. § 68-11-201(30)(A).
People go to outpatient diagnostic centers to receive
services, namely, outpatient diagnostic services.
a residential hospice is a “licensed homelike
residential facility designed, staffed and organized to
provide hospice or HIV care services.” Id.
§ 68-11-201(41). Finally, a traumatic brain injury
residential home is a “facility . . . in which
residential care . . . is provided in a homelike environment
to disabled adults suffering from the effects of a traumatic
brain injury.” Id. § 68-11-201(43). The
common feature among these treatment centers is that people
go to the location to receive the services offered.
definition of facility is further confirmed by the
definition of home care organization. It is
described not as a facility, institution, place, or building,
but rather as an “entity.” Id. §
68-11- 201(17)(A). Entity is broader than
institution, place or building. This reflects the
fact that home care organizations go to their customers, not
vice versa. See id.
parties make much of the fact that Apria has physical
edifices. But a physical edifice is not necessary for an
institution or a place-only a building. All that matters is
that patients go to the location to receive services. A
doctor could set up an office in an empty parking lot. As
long as patients come to him there, that parking lot is now
an institution, place or building.
this definition, Apria is not an institution, place or
building. As Apria admits, it offers only equipment for
in-home care. Its physical locations merely support its
in-home efforts. As a result, these locations are not
institutions, places or buildings. They are more like a
warehouse that stores equipment for an ambulatory treatment
surgical center. As a result, Apria fails the first part of
the definition of facility.
Apria Is Not an Institution, Place or Building Providing
Health Care Services
next question is whether Apria is an institution, place or
building “providing health care services.”
Id. § 68-11-201(15). This question is separate
from whether Kelley is suing Apria for failing to provide
healthcare services to Jimmy. Here, the Court is concerned
only with whether, in general, Apria is an institution, place
or building providing health care services.
reasons, Apria is not. First, Apria is not an institution,
place or building. As a result, it is not an institution,
place or building “providing health care
services.” The clause “providing health care
services” is a participle phrase that modifies
“institution, place or building.” It could be
rewritten as “an institution, place or building that
provides health care services.” Because Apria is not an
institution, place, or building, it cannot be an institution,
place, or building that provides health care services.
even if Apria were an institution, place or building, its
locations do not provide health care services. Health
care services is not defined in § 68-11-201. But
health care is defined in related regulations. It
means “Any care, treatment, service or procedure to
maintain, diagnose, treat, or otherwise affect an
individual's physical or mental condition, and includes
medical care as defined in T.C.A. § 32-11-103(5).”
Tenn. Comp. R. & Regs. 1200-08-01-.01(32). Section
32-11-103(5), in turn, describes medical care as including
“any procedure or treatment rendered by a physician or
health care provider designed to diagnose, assess or treat a
disease, illness or injury.” In other words, health
care services are services offered directly to a patient.
They do not include the steps that make those services
possible. For instance, while respiratory therapy might be a
health care service, performing quality control on ...