Downing v. Lawrence Hall Nursing Center

2010 Ark. 175, 369 S.W.3d 8, 2010 Ark. LEXIS 213
CourtSupreme Court of Arkansas
DecidedApril 15, 2010
DocketNo. 09-621
StatusPublished
Cited by14 cases

This text of 2010 Ark. 175 (Downing v. Lawrence Hall Nursing Center) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Downing v. Lawrence Hall Nursing Center, 2010 Ark. 175, 369 S.W.3d 8, 2010 Ark. LEXIS 213 (Ark. 2010).

Opinion

ELANA CUNNINGHAM WILLS, Justice.

I, This is the second appeal taken to this court by appellant Brenda Downing. In the first case, Downing v. Lawrence Hall Nursing Center, 368 Ark. 51, 243 S.W.3d 263 (2006), this court dismissed Downing’s appeal for lack of a final order because the circuit court had not entered an order dismissing the “John Doe” defendants Downing named in her original complaint. In the present appeal, Downing challenges the circuit court’s orders granting the motion to dismiss filed by appellees Lawrence Hall Nursing Center (“Lawrence Hall”) and Lawrence Memorial Hospital (“Lawrence Memorial”) and the motion for summary judgment filed by appellee St. Paul Fire & Marine Insurance Co.

_JjThe procedural history of this case is somewhat lengthy. On June 10, 2002, appellant Brenda Downing brought a wrongful death action1 on behalf of the Estate of Robert Harris against Lawrence Hall; Lawrence Memorial; St. Bernard’s Hospital, doing business as St. Bernard’s Regional Medical Center; Dr. Robert Quevil-lon; and John Doe Insurance Companies A through Z. Dr. Quevillon and St. Bernard’s were dismissed without prejudice in October 2005 and September 2005, respectively. Lawrence Hall and Lawrence Memorial filed a motion to dismiss on October 19, 2005, arguing that Downing lacked authority to file a complaint on behalf of the estate because letters of administration had not been filed at the time the complaint was filed. The circuit court granted the motion to dismiss the complaint in an order filed on November 22, 2005.

Downing filed a notice of appeal on December 2, 2005, and attempted to appeal the circuit court’s decision to this court; however, as noted above, we dismissed the appeal for lack of a final order because there was no order dismissing the John Doe defendants in the record. Downing v. Lawrence Hall Nursing Ctr., 868 Ark. 51, 248 S.W.3d 263 (2006).

About a year after the dismissal of Downing’s appeal, in November 2007, this court handed down the case of Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710 (2007), which held that, pursuant to Act 438 of 2007, letters of administration are not necessary to empower a person appointed to act for an estate, as long as there is an order appointing that person [¡¡administrator. On January 17, 2008, Downing filed a motion to set aside the November 2005 order of dismissal that had been based on her lack of letters of administration. The circuit court entered an order on February 13, 2008, granting her motion and setting aside the previous order of dismissal.

On January 29, 2008, Downing filed an amended complaint again naming Lawrence Hall and Lawrence Memorial and adding St. Paul Fire & Marine Insurance Co. as the liability carrier for those entities. Downing’s complaint alleged that both Lawrence Hall and Lawrence Memorial were “non-profit/government entities] owned and controlled by Lawrence County, Arkansas.” The complaint further asserted that St. Paul, as the liability carrier, was “made a defendant to the extent its insureds are all immune from suit for tort pursuant to Ark.Code Ann. § 21-9-301 and Ark.Code Ann. § 16-120-101 et seq.”2

Lawrence Hall and Lawrence Memorial answered the amended complaint on February 7, 2008. In the answer, the defendants admitted that they were insured by St. Paul, but affirmatively asserted that the statute of limitations barred Downing’s complaint against St. Paul. St. Paul moved for summary judgment on the same date, arguing that the amended complaint, which attempted to substitute St. Paul for the John Doe defendants, could not relate back to the original complaint so as to defeat the statute of limitations. In its | .¡accompanying brief, St. Paul argued that its existence had been known to Downing since January 2003,3 and Downing’s failure to amend her complaint to name it as a defendant precluded relation back pursuant to Ark. R. Civ. P. 15(c).

Downing responded to St. Paul’s motion for summary judgment on February 29, 2008. In her response, she pointed out that, during the pendency of the lawsuit, the law in this state regarding charitable immunity had changed radically. She argued that at the time she filed her initial complaint on June 10, 2002, this court had, on May 9, 2002, handed down Clayborn v. Bankers Standard Insurance Co., 348 Ark. 557, 75 S.W.3d 174 (2002), which held that there was no direct action against liability insurers for nonprofit corporations. That decision was affirmed in Scamardo v. Joggers, 356 Ark. 236, 149 S.W.3d 311 (2004), which was handed down on February 26, 2004. As mentioned above, the circuit court dismissed Downing’s complaint on November 22, 2005, because she did not have letters of administration. Three weeks later, however, this court decided the case of Low v. Insurance Co. of North America, 364 Ark. 427, 220 S.W.3d 670 (2005), which overruled both Clayborn and Scamardo and held that a plaintiff could bring a direct action against a liability carrier.

Downing also noted in her response to St. Paul’s motion for summary judgment that, when this court dismissed Downing’s appeal for lack of a final order on November 16, 2006, her counsel was aware that the Steward v. Statler case, dealing with the letters-of-administration issue, was pending before this court. Very shortly after that opinion came |fidown on November 1, 2007, Downing successfully had the earlier order of dismissal set aside and filed her amended complaint that named St. Paul, the liability carrier for Lawrence Hall. Dovming argued that her decision not to add St. Paul up to that point was not a “strategic decision,” as argued in St. Paul’s summary-judgment motion, but was based on the law of charitable immunity at the time she filed her complaint and amended complaint. Therefore, she contended, she had complied with Rule 15(c), and her amended complaint naming St. Paul should relate back to the filing of the original complaint.

After a hearing on April 3, 2008, the circuit court entered an order on May 16, 2008, granting St. Paul’s motion for summary judgment, finding that the statute of limitations had run against St. Paul. The court’s order thus dismissed St. Paul with prejudice. Lawrence Hall and Lawrence Memorial subsequently filed a motion to dismiss, asserting that, as charitable institutions, they were completely immune from being sued in tort. Because they had admitted in their answer that they were “non-profit corporations/government entities,” they urged that the complaint against them should be dismissed with prejudice. Downing responded that Lawrence Hall and Lawrence Memorial had not proven that they were charitable entities entitled to immunity. In addition, Downing alleged that their immunity was legislatively abrogated or waived with respect to her Residents’ Rights Act claims and that the courts should abrogate the doctrine of charitable immunity in any event.

After a hearing on January 21, 2009, the circuit court entered an order on February 19, 2009, dismissing Lawrence Hall and Lawrence Memorial with prejudice.

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Bluebook (online)
2010 Ark. 175, 369 S.W.3d 8, 2010 Ark. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downing-v-lawrence-hall-nursing-center-ark-2010.