Ex parte VEL, LLC

225 So. 3d 591, 2016 Ala. LEXIS 147, 2016 WL 7488254
CourtSupreme Court of Alabama
DecidedDecember 30, 2016
Docket1150542
StatusPublished
Cited by3 cases

This text of 225 So. 3d 591 (Ex parte VEL, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte VEL, LLC, 225 So. 3d 591, 2016 Ala. LEXIS 147, 2016 WL 7488254 (Ala. 2016).

Opinions

PARKER, Justice,

VEL, LLC (“VEL”); Montgomery Drug Co., Inc. (“MDCI”); Robert Stafford; and Erica Greene (hereinafter collectively referred to as “the petitioners”) petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order of January 12, 2016, denying the petitioners’ respective motions for a summary judgment and to enter an order granting the petitioners’ respective motions for a summary judgment.

Facts and Procedural History

On June 16, 2011, William Henry Kil-gore sought to fill his prescription for ropi-nirole, a drug used to treat the symptoms of Parkinson’s disease, at the Adams Drugs pharmacy located at 35 Mitchell Drive, Montgomery, Alabama (“the Adams Drugs pharmacy”). Instead .of filling Kil-gore’s prescription with ropinirole as prescribed, the employees working at the Adams Drugs pharmacy filled Kilgore’s prescription with risperidone. On June 20, 2011, after having taken risperidone instead of ropinirole for several days, Kil-gore began experiencing negátive health consequences and sought medical assistance at the emergency room of Baptist Medical Center South (“Baptist South”) in Montgomery. Medical personnel at Baptist South - discovered that Kilgore had been taking risperidone instead of the prescribed ropinirole. It was alleged that Kil-gore suffered injuries and damages as a result of ingesting risperidone rather than ropinirole for more than four days.

At the time Kilgore’s prescription was improperly filled at the Adams Drugs [594]*594pharmacy, VEL and MDCI each owned and operated at least one Adams Drugs pharmacy in Montgomery. It is undisputed that the Adams Drugs pharmacy is owned and operated by MDCI. The affidavit testimony of Terrell Lankford, a member of and the registered agent for VEL, indicates that, “[s]ince its formation in 1997, V[EL] ... has not been known as or used the name ‘Montgomery Drug Company, Inc.,’ or any variation thereof.” The affidavit testimony of Michael Vinson, a shareholder and registered agent of MDCI, indicates that, “[s]ince its formation in 1960, [MDCI] has not been known as or used the name ‘V[EL], LLC,’ or any variation thereof.” VEL and MDCI do have common ownership.

On May 30, 2012, one of Kilgore’s trial counsel, J.B. Perrine, sent a letter to Lankford “c/o VEL, LLC d/b/a Adams Drugs” in order to “discern whether [VEL] has any interest in a pre-litigation resolution of Mr. Kilgore’s claims.” In that letter, Perrine asserted that VEL “negligently refilled Mr. Kilgore’s prescription for ropinirole with risperidone.” Perrine was under the mistaken impression that VEL, instead of MDCI, owned and operated the Adams Drugs pharmacy; there is no evidence indicating why Perrine failed to determine that MDCI, rather than VEL, owned and operated the Adams Drugs pharmacy. Nor is there any evidence indicating what steps, if any, Perrine took to ascertain the identity of the owner of the Adams Drugs pharmacy before sending the May 30, 2012, letter. Perrine requested that, if Lankford was interested in reaching a settlement, Lankford “forward this letter to your insurance carrier and have your insurance carrier contact us.” Apparently, Lankford forwarded the May 30, 2012, letter to VEL’s insurer.

VEL and MDCI have the same insurer, Penn National Insurance Company (“Penn National”). On June 6, 2012, Shari Campbell, an employee in Penn National’s claims department, sent Perrine an e-mail informing him that Penn National was the insurer “for [the] Adams Drug store for the date Mr. Kilgore filled his prescription there” and that Kilgore’s medical records were needed in order to further investigate Kilgore’s claim that he had suffered damages as a result of his injuries. Campbell’s June 6, 2012, e-mail to Perrine made no reference to either VEL or MDCI. Kilgore provided Penn National with the requested medical records.

On October 24, 2012, Campbell sent another e-mail to Perrine. The subject line of Campbell’s e-mail stated: “Montgomery Drug Inc & Adams Dr.”

On October 26, 2012, Campbell, on behalf of Penn National, sent a letter to Perrine offering to settle Kilgore’s claim for $12,500. The letter that Campbell sent Perrine unequivocally identified MDCI as the insured on whose behalf Penn National was making the settlement offer. In all capital letters at the top of the letter, Campbell identified “MONTGOMERY DRUG INC” as the “[i]nsured.” Kilgore rejected Penn National’s settlement offer.

On February 27, 2013, Kilgore and Patricia Kilgore Kyser, as guardian and conservator of Kilgore (hereinafter collectively referred to as “the plaintiffs”), filed the original complaint in the action against “VEL, LLC, d.b.a. Adams Drugs, and/or Adams Drugs Good Neighbor Pharmacy,” and several fictitiously named defendants, seeking damages for Kilgore’s injuries that the plaintiffs alleged were caused by the defendants’ alleged negligence and wantonness.1 The complaint defined VEL as [595]*595an entity that owned and operated nine pharmacy locations, including the Adams Drugs pharmacy.

On the same day, one of the plaintiffs’ trial counsel, David Selby, who was a member of the same law firm as Perrine, sent Campbell a letter informing her that the plaintiffs had filed a complaint against “Penn National’s insured.” The subject line of the letter stated: “Re: Montgomery Drug Inc., Adams Drug Company.” There is no mention of VEL in the letter.

On March 5, 2013, Reba McLain, an attorney hired by Penn National to represent its insured, MDCI, e-mailed Selby to “confirm the agreement we reached today giving us an open extension to respond to the lawsuit filed against our insured Montgomery Drug Inc.” The subject line of the e-mail stated: “Kilgore v Montgomery Drug Inc.”

It is undisputed that the two-year statute of limitations on the plaintiffs’ claims against MDCI expired in June 2013. See § 6—2—38(1), Ala. Code 1975; see also Dorsey v. Bowers, 709 So.2d 51, 56 (Ala. Civ. App. 1998)(holding that § 6-2-38(1) applies to claims of negligence and wantonness).

On July 18, 2013, VEL filed a motion to dismiss, asserting that it “has no relation or connection with any of the claims stated against it in [the plaintiffs’] complaint.” VEL stated that it was “the wrong entity against which to assert these claims.”

On July 19, 2013, after receiving VEL’s motion to dismiss, Selby sent an e-mail to VEL’s trial counsel, stating:

“This follows receipt of V[EL]’s LLC d/b/a Adams Drugs Motion to Dismiss and our phone conversation yesterday regarding the Motion. Pursuant to our conversation it is my understanding that VEL LLC actually does not own and/or operate the Adams Drugs at 35 Mitchell Drive where our client’s prescription was filled, but that ‘Montgomery Drug Company, Inc.’ owns and operates the Adams Drugs located [at] 35 Mitchell Drive. Further, it is my understanding that Penn National has retained your firm on this matter and that Penn National is-the insurance carrier for both entities, V[EL] LLC and Montgomery Drug Company, Inc. With that in mind, I would ask if you would please accept service on behalf of Montgomery Drug Company, Inc. and confirm that Montgomery Drug Company, Inc. is the correct entity. Thank you.”

VEL’s trial counsel responded: ‘Tour email below is correct to the best of my knowledge at this time. I have been authorized by [MDCI] to accept service on their behalf.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hamilton v. MPB Corporation
Superior Court of Delaware, 2019

Cite This Page — Counsel Stack

Bluebook (online)
225 So. 3d 591, 2016 Ala. LEXIS 147, 2016 WL 7488254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-vel-llc-ala-2016.