Case Information
*1
[Cite as
Erickson v. Mgt. & Training
,
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
CHRISTOPHER S. ERICKSON, : O P I N I O N
Plaintiff-Appellant, :
CASE NO. 2012-A-0059 - vs - :
MANAGEMENT & TRAINING :
CORPORATION, et al.,
:
Dеfendants-Appellees. Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2009 CV 247.
Judgment: Affirmed.
Michael J. Drain , 147 Bell Street, #202, Chagrin Falls, OH 44022 (For Plaintiff- Appellant).
Adam W. Martin and Christina J. Marshall, Sutter O’Connell, 3600 Erieview Tower, 1301 East 9th Street, Cleveland, OH 44114 (For Appellee-Management & Training Corporation).
Tammy Kastre, M.D., pro se, First Correctional Medical-Ohio, LLC, 13000 N. Lindbergh Drive, Tucson, AZ 85755 (Appellee).
DIANE V. GRENDELL, J. Plaintiff-appellant, Christopher S. Erickson, appeals the Judgment of the
Ashtabula County Court of Common Pleas, granting defendant-appellee, Management & Training Corporation’s, Motion for Judgment on the Pleadings and dismissing all claims against First Correctional Medical-Ohio, LLC. The issue before this court is *2 whether a claim for negligent hiring/retention may be pled as a claim for breach of contract. For the following reasons, we affirm the decision of the court below. On February 26, 2009, Erickson filed a Complaint against Management &
Training Corporation (“MTC”), First Medical Management, LLC, and John Doe, D.D.S. The Complaint alleged that, on February 27, 2008, John Doe, D.D.S., negligently performed dental services on Erickson while he was incarcerated at Lake Erie Correctional Institution, which was operated by MTC by contract with the State of Ohio. The Complaint further alleged that the services were rendered “on behalf of Defendant Management & Training Corporation and/or Defendant First Medical Management LLC, either as an independent contractor, employee, or agent of Defendant Training [&] Management Corporation and/or First Medical Management LLC.” On October 1, 2009, Erickson filed an Amended Complaint against MTC, First Correctional Medical-Ohio, LLC, Intellicore, LLC, and Edward Francis Norton, DDS. The Amended Complaint alleged that MTC “owns and controls a subsidiary entity known as First Correctional Medical-Ohio, LLC that provides medical and dеntal services to inmates at the Lake Erie Correctional Institution.” The Amended Complaint further alleged that, on February 27, 2008, Dr. Norton negligently performed dental services on Erickson “on behalf of Defendant First Correctional Medical-Ohio, LLC and/or Intellicore, LLC, either as an independent contractor, employee, or agent of Defendant First Correctional Medical-Ohio, LLC and/or Intellicore, LLC.” On March 11, 2010, the trial court issued a Judgmеnt Entry. The court granted summary judgment in favor of First Medical Management, based on undisputed *3 evidence that First Medical Management does not operate in Ohio and has never provided medical services at Lake Erie Correctional Institution.
{¶5} The trial court dismissed MTC from the action, without prejudice, as the Amended Complaint failed to state a cause of action against MTC. The court noted that the Amended Complaint did not claim that any medical service was performed on behalf of MTC, and that judgment was prayed for against First Correctional Medical-Ohio, Intellicore, and Dr. Norton, but not MTC.
{¶6} The trial court noted that First Correctional Medical-Ohio and Intellicore were in default of answer, and ordered Erickson to move for default within thirty days or the Amended Complaint would be dismissed for failure to prosecute.
{¶7} On March 15, 2010, Erickson filed a Motion for Default Judgment against First Mediсal Management.
{¶8} On April 7, 2010, Intellicore filed its Answer to the Amended Complaint with leave of court. On August 30, 2010, Dr. Norton and Intellicore filed a Joint Motion for
Summary Judgment. On August 31, 2010, Intellicore filed a separate Motion to Dismiss and
Motion for Summary Judgment. On October 13, 2010, Erickson responded to Dr. Norton’s and Intellicore’s
dispositive motions. On January 10, 2011, Erickson filed a Second Amended Complaint with
leave of court, adding Healthcare Benefits, Inc. as a new party defendаnt. The Second Amended Complaint contained two counts. Under Count I, it was alleged that Dr. *4 Norton was “an agent of Management & Training Corporation within the terms of [a] contract with the State of Ohio.” It was further alleged: On February 21, 2008, Defendant Edward Francis Norton, DDS,
acting as an agent for Management & Training Corporation, performed a dental procedure on Plaintiff. * * * In doing so, said Defendant dentist fell below the standard of care and committed dental malpractice, and Management & Training Corporation breached its contract with the State of Ohio to provide safe, competent, and effective medical treatment to the inmates at Lake Erie Correctional Institution. Under Count I, it was alleged that, “[a]s a direct and proximate result of all
the Defendants’ combined and individual negligence, and their breach of contract with the State of Ohio, Plaintiff Christopher S. Erickson has experienced great pain and suffering and emotional distress,” in addition to medical expenses. Under Count II, it was alleged that MTC “was charged with the duty of
providing safe, competent, and effective medical and dental services * * * to inmates housed at Lake Erie Correctional Institution pursuant to its agreement with the State of Ohio.” It was further alleged that MTC breached this duty by selecting Healthcare Benefits, Inc., an Ohio corporation wholly owned and operated by Dr. Norton, to provide dental services without “properly investigat[ing], vet[ting], and/or properly examin[ing] Defendants Healthcare Benefits, Inc.’s and Dr. Norton’s backgrounds and ability to perform prior to awarding them the dental contract,” or “monitor[ing] Defendant Dr. Norton’s acts and/or omissions while performing dental services in its behalf.”
{¶16} Under Count II, it was alleged that, “[a]s a direct and proximate result of the combined negligent acts and omissions of Management & Training Corporation * * *, including, but not limited to, the failure of Management & Training Corporation to abide by the terms of its contract with the State of Ohio, the negligent hiring and/or retention of Healthcare Benefits, Inc. and Dr. Norton, and/or the award of said contract to Healthcare Benefits, Inc. and Dr. Norton, [Erickson] has sustained permanent brain damage.” On January 11, 2011, the trial court issued a Judgment Entry, ruling on Dr.
Norton and Intellicore’s Joint Motion for Summary Judgment. Applying the discovery rule, the court determined that Erickson’s cause of action did not accrue “until * * * at least March 1, 2008.” Since Dr. Norton and Intellicore were not named as defendants until the Amended Complaint was filed on October 1, 2009, the claims against these defendants were time-barred. Accordingly, their Motion for Summary Judgment was granted. On March 22, 2011, MTC filed its Answer to the Second Amended
Complaint. On April 21, 2011, MTC filed a Motion for Judgment on the Pleadings,
pursuant to Civil Rule 12(C). MTC argued that it could not be held liable as a principal when the claims against its alleged agent (Dr. Norton) were time-barred. On April 26, 2011, the trial court issued a Judgment Entry, dismissing the
claims against Healthcare Benefits, Dr. Norton’s personal corporation and employer, as time-barred. *6 On May 31, 2011, Erickson filed his response to MTC’s Motion for
Judgment on the Pleadings. On November 16, 2012, the trial court issued a Judgment Entry, granting
MTC’s Motion for Judgment on the Pleadings. With respect to the claims against MTC dependеnt “upon the plaintiff’s right or ability to secure a judgment against the dentist, Dr. Norton,” judgment was warranted since Dr. Norton, as the agent and/or primary actor is immune from liability by application of the statute of limitations. With respect to Erickson’s claims based on breach of contract, judgment was warranted since, “[a]s an inmate in a State penal institution[,] he did not enjoy a contractual relationship with either the State of Ohio or Management and Training, the private operator of the prison.” With respect to the claims for negligent hiring, supervision, and retention, judgment was warranted based on the two-year statute of limitations for such actions. The court noted that Erickson’s cause of action accrued in March 2008. The Complaint and Amended Complaint named MTC as a defendant, but did not state any identifiable cause of action against MTC. The Second Amended Complaint wаs filed on January 10, 2011, well after the expiration of the two-year statute of limitations. The November 16, 2012 Judgment Entry also dismissed all claims against
First Correctional Medical-Ohio for failure to prosecute, since Erickson had failed to move for default as ordered by the court in March 2010. On December 10, 2012, Erickson filed his Notice of Appeal. On appeal,
Erickson raised the following assignments of error:
{¶25} “[1.] The trial court erred to the prejudice of plaintiff-appellant in entering a judgmеnt on the pleadings in favor of defendant-appellee Management & Training Corporation.”
{¶26} “[2.] Where the trial court chooses to consider evidence or materials outside the complaint, the court must convert the motion to dismiss into a motion for summary judgment and give the parties notice and a reasonable opportunity to present all materials made pertinent to such motion by Civ.R. 56. To do otherwise is prejudicial error.” “[3.] The trial cоurt committed prejudicial error in dismissing First
Correctional Medical-Ohio LLC for failure to prosecute.” In its brief, MTC raised the following cross-assignment of error: “[1.] The trial court ruled correctly in dismissing Appellant’s case, but
should also have dismissed all claims for the additional reason that the Appellant’s claims against MTC were brought beyond the one-year statute of limitations for medical claims.” “After the pleadings are closed but within such times as not tо delay the
trial, any party may move for judgment on the pleadings.” Civ.R. 12(C). A Civil Rule 12(C) motion “presents only questions of law, and determination of the motion for judgment on the pleadings is restricted solely to the allegations in the pleadings.” Peterson v. Teodosio , 34 Ohio St.2d 161, 166, 297 N.E.2d 113 (1973). The party defending against the motion is entitled to “to have all the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in her favor as true.” Id. at 165-166.
{¶31}
“Because the review of a decision to dismiss a complaint pursuant to
Civ.R. 12(C) presents only questions of law, * * * our review is de novo.” Rayess v.
Educational Comm. for Foreign Med. Graduates ,
within the Second Amended Complaint are sufficient to state a claim for relief as to each cause of action stated therein.” The Second Amended Complaint alleged that Dr. Nоrton, acting as an
agent for MTC, committed medical malpractice, and that Erickson was injured as a result of their “combined and individual negligence.” As a matter of law, MTC cannot be held liable for any malpractice
purportedly committed by Dr. Norton. “Although a party injured by an agent may sue
the principal, the agent, or both, a principal is vicariously liable only when an agent
could be held directly liable.” Natl. Union Fire Ins. Co. of Pittsburgh v. Wuerth , 122 Ohio
St.3d 594,
liability applies to all types of vicarious liability, including the doctrines of respondeat
superior, non-delegable duties, and agency by estoppel. Albain v. Flower Hosp ., 50
Ohio St.3d 251, 254-255,
expiration of the statute of limitations, MTC cannot be held vicariously liable for his alleged negligence. Comer at ¶ 2 and passim (holding that a hospital could not be held vicariously liable for the actions of an independent-contrаctor physician where the statute of limitations against the physician has expired). The Second Amended Complaint also alleged that MTC was liable for the
negligent hiring and/or retention of Dr. Norton. Liability under a theory of negligent hiring/retention (also known as negligent credentialing, selection, supervision, and/or training) is not vicarious liability. With respect to independent contractors, “an employer may be directly liable for injuries resulting from its own negligence in selecting or retaining an independent contractor.” Albain at 257; Browning v. Burt , 66 Ohio St.3d 544, 557, 613 N.E.2d 993 (1993) (“[n]egligent credentialing claims arise out of the hospital’s failure to satisfy its independent duty to grant and continue staff privileges only to competent physicians”). Negligent hiring/retention claims are subject to the two-year statute of
limitations contained in R.C. 2305.10(A). Browning at paragraph three of the syllabus;
Keisler v. FirstEnergy Corp. , 6th Dist. Ottawa No. OT-04-055,
2008. Erickson raised his claim of negligent hiring/retention against MTC for the first *10 time in his Second Amended Complaint, filed in January 2011. Accordingly, this claim is barred, as a matter of law, by the expiration of the statute of limitations. Erickson’s claim for negligent hiring/retention is also subject to dismissal
because it was not pled with particularity. In order to survive a motion for judgment on
the pleadings, a negligent hiring/retentiоn claim “must plead operative facts with
particularity.” Byrd v. Faber ,
was for breach of contract. Specifically, it was alleged that MTC “breached its contract with the State of Ohio to provide safe, competent, and effective medical treatment to the inmates at Lake Erie Correctional Institution,” by “neglect[ing] its duty to properly investigate, vet, and/or properly examine Defendants Healthcare Benefits, Inc.’s and Dr. Norton’s backgrounds and ability to perform prior to аwarding them the dental contract with Lake Erie Correctional Institution.” The fact that the same conduct was pled as a breach of contract, as well as a claim for negligent hiring/retention, does not entitle Erickson to avail himself of the statute of limitations for written contracts. “The ground of the action and the nature of the demand determine which
statute of limitation is applicable.” Peterson , 34 Ohio St.2d at 173, 297 N.E.2d 113.
Thus, “in determining which limitation period will apply, courts must look to the actual
nature or subject matter of the case, rather than to the form in which the action is
*11
pleaded.” Hambleton v. R.G. Barry Corp. , 12 Ohio St.3d 179, 183, 465 N.E.2d 1298
(1984). E.g. , Brittingham v. Gen. Motors Corp. , 2nd Dist. Montgomery No. 24517,
injury as the result of MTC’s negligent hiring/retention of Dr. Norton. The Ohio Supreme
Court has addressed this situation: “[w]hen bodily injury results from negligence, the
two-year statute of limitations, R.C. 2305.10, is the appropriate statute of limitations.”
Love v. Port Clinton ,
where a statute, specific in terms, limits the time within which an
action for “injuries to the person” or “bodily injury” may be brought,
such statute governs all actions the real purpose of which is to
recover for an injury to the person, whether based upon contract or
tort, and a general statute, limiting the time for bringing an action
growing out of a contractual relationship, is without application.
Andrianos v. Community Traction Co. ,
(1951). *12 Based on the nature of Erickson’s claims, the two-year limitation period for
bodily injury, set forth in R.C. 2305.10(A), is applicable despite their denomination as a
breach of contract. This is the same limitations period that applies to the negligent
hiring/retention claim, which is the substance of Erickson’s cause of action, inasmuch as
the conduct underlying the negligent hiring/retention claim is the same conduct
underlying the breach of contract claim. Compare B&B Contrs. & Developers, Inc. v.
Olsavsky Jaminet Architects, Inc. , 7th Dist. Mahoning No. 12 MA 5,
in the Second Amended Complaint does not alter the outcome. The Ohio Supreme
Court has clarified that “the inclusion of damages for emotional distress in a complaint
alleging negligence does not automatically transform the claim into one alleging the
negligent infliction of emotional distress, nor does it automatically create a cause of
action separate and distinct from the negligence claim.” Loudin v. Radiology & Imaging
Servs., Inc. ,
pleadings was properly entered.” Peterson ,
{¶50} In the second assignment of error, Erickson argues that the trial court erred by considering evidence outside of the pleadings. Specifically, Erickson argues the court erred by finding that he did not enjoy a contractual relationship with the State оf Ohio or MTC. According to Erickson, the court must construe the allegations of the Second Amended Complaint in his favor and so “accept as true that MTC breached its contract thereby causing severe injury to appellant.” This assignment of error has been rendered moot by our resolution of the
first assignment of error. Any claims relating to the contract between the State of Ohio
and MTC are time-barred, as is evident from the face оf Complaint. App.R. 12(A)(1)(c).
In his third assignment of error, Erickson asserted that the trial court erred
by dismissing First Correctional Medical-Ohio for failure to prosecute. However, the
body of Erickson’s brief contained no argument regarding this assignment of error
beyond its inclusion in the statement of errors presented for review. Accordingly, this
assignment of error may be disregarded. Holeski v. Holeski , 11th Dist. Portage No.
2009-P-0007,
assignment of error, defending that judgment on alternative grounds, moot. In re
Annexation of Approximately 257 Acres from Brimfield Twp. , 11th Dist. Portage No. 91-
P-2286,
Common Pleas, granting MTC’s Motion for Judgment on the Pleadings and dismissing all claims against First Correctional Medical-Ohio, is affirmed. Costs to be taxed against the appellant.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion. _________________________ COLLEEN MARY O’TOOLE, J., dissents with Dissenting Opinion. I write to address the trial court’s finding that, as an inmate in a state penal
institution, appellant did not enjoy a contractual relationship with either the State of Ohio or Management & Training Corporation. Several states have held that prisoners are third party beneficiaries of
contracts between corrections institutions and private companies incarcerating inmates
or providing medical treatment to them. The Supreme Court of Virginia held that аn
inmate is “‘clearly and definitely’” an intended third party beneficiary of the contract
between the Virginia Department of Corrections and its medical service contractor.
Ogunde v. Prison Health Servs. Inc .,
state and Management & Training Corporation. In this case the contract in question was subject to a protective order and filed with the trial court judge. No copy of the contract is contained in the record provided to this court. “When a motion to dismiss is founded upon a written instrument attached
to the complaint, the complaint should not be dismissed under Civ.R. 12(B)(6) unless
the complaint and any attached written instruments on their face show the court to a
certainty that there is an insuperable bar to relief as a matter of law.” Cash v. Seery, 12th Dist. Butler No. CA97-10-194, 1998 Ohio App. LEXIS 871, *6 (March 9, 1998),
citing Slife v. Kundtz Properties ,
that appellant did not state a claim for breach of contract. However, paragraph ten of appellant’s complaint specifically alleges that appellant suffered damages as a result of appellees’ breaching their contract with the state . Civ.R. 8(A) requires that a complaint contain only a short and plain statement of the claim showing that the party is entitled to relief and a demand for judgment. Because Civ.R. 8 clearly establishes that Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative *16 facts with particularity. Cincinnati v. Beretta U.S.A. Corp ., 95 Ohio St.3d 416, 2002- Ohio-2480, ¶29. As appellee is a third party beneficiary of the contract between the state of
Ohio or Management and Training Corporation I would remand this matter to trial court for further proceedings. Thus, I respectfully dissent.