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Kelley v. Apria Healthcare, LLC.

United States District Court, E.D. Tennessee, Knoxville

February 3, 2017

Kenneth Kelley, as the son, next of kin, and heir at law of JIMMY KELLEY, deceased, Plaintiff,
v.
APRIA HEALTHCARE, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

         Before 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.

         I

         Jimmy 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.

         Kenneth 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 fire.

         On 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.

         II

         A

         Apria 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.

         B

         If 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, 2015).

         1

         When 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.

         To 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).

         Second, 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.

         2

         Summary 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).

         The 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. at 249.

         III

         A

         On 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.

         There 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 here.

         Plain 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.” Id.

         This 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 intent. Id.

         No one 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.

         Kelley's 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 scope.

         B

         Apria 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.

         A suit 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 care services.

         1

         The 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.

         (A) § 29-26-101(a)(2)(B)

         Under 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 questions:

1. Whether Apria is an “institution, place or building”;
2. Whether it provides healthcare services at those institutions, places or buildings; and
3. Whether it must be licensed under title 68, chapter 11.

         On 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).

         (i) Apria Is Not an Institution, Place or Building

         A 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.

         The 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 services.

         This is 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.

         Similarly, 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.

         This 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.

         The 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.

         Under 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.

         (ii) Apria Is Not an Institution, Place or Building Providing Health Care Services

         The 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.

         For two 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.

         Second, 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 ...


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