Sykes v. Home Health Care Affiliates, Inc.


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Docket Number: 2011-CA-00913-COA
Linked Case(s): 2011-CA-00913-COA
Court of Appeals: Opinion Link
Opinion Date: 10-08-2013
Opinion Author: Griffis, P.J.
Holding: Reversed and Remanded
Additional Case Information: Topic: Personal injury - Respondeat superior - Joint and several liability - Acting in scope of employment - Release - Expiration of statute of limitations
Judge(s) Concurring: Lee, C.J., Irving, P.J., Barnes, Ishee, Roberts, Maxwell and Fair, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY
Trial Court: Date of Trial Judgment: 05-26-2011
Appealed from: Lowndes County Circuit Court
Judge: Lee J. Howard
Disposition: SUMMARY JUDGMENT TO APPELLEE
Case Number: 2010-0048-CV1 H
Note: The motion for rehearing is granted. The previous opinion of this Court is withdrawn, and this opinion is substituted therefor. The judgment of the Lowndes County Circuit Court is reversed, and this case is remanded for further proceedings consistent with this opinion.
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Dorothy Sykes




 CARTER DOBBS JR.



  
  • Appellant #1 Brief
    		•
    Appellee: Home Health Care Affiliates, Inc. JOHN LEWIS HINKLE IV  
    Synopsis provided by:

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    Topic: Personal injury - Respondeat superior - Joint and several liability - Acting in scope of employment - Release - Expiration of statute of limitations
    Summary of the Facts: The motion for rehearing is granted, and this opinion is substituted for the original opinion. Dorothy Sykes filed suit in the County Court of Lowndes County against Home Health Care Affiliates Inc. and its employee, Zelp Gambleton. The action arose from an automobile accident in which a vehicle driven by Gambleton collided with a vehicle occupied by Sykes. Sykes timely served Home Health in accordance with M.R.C.P. 4(h). Gambleton, however, was never served. Home Health filed a motion for summary judgment in the county court which the court granted. The court dismissed with prejudice the cause of action against Home Health and also dismissed the claims against Gambleton without prejudice. Sykes appealed to circuit court which affirmed. Sykes appeals.
    Summary of Opinion Analysis: Home Health asserts summary judgment was proper because Sykes’s claim is based upon respondeat superior, which is a derivative action imposing liability upon Home Health for Gambleton’s actions. And, because Gambleton was never served with process, and because the county court found good cause did not exist for failure to serve process, and because the statute of limitations has run as to Gambleton, Home Health argues Sykes cannot recover from either Gambleton or itself as a matter of law. The practical implication of joint and several liability is that a plaintiff in a respondeat superior action may sue either the employer or the employee, or both. There have been suits based upon respondeat superior in which the negligent employee was never made a party. There are exceptions to the general rule that an employer may be sued separately for the negligence of an employee acting in the scope of his employment. A plaintiff may not release either an employee or employer from any claim, and then pursue the same claim against the unreleased employee or employer. Another exception to the general rule that an employer may be sued without joinder of the negligent employee occurs when the statute of limitations expired as to the employee before suit was brought against the employer. This case, however, does not present any of these exigencies. There is no doubt Sykes’s suit was timely, and Home Health was properly served with a summons. There is no legal preclusion from litigating Gambleton’s alleged negligence; rather, the only legal preclusion present in this case is that Gambleton cannot be directly liable to Sykes. Assuming Sykes prevails in this respondeat superior action, nothing precludes Home Health from seeking indemnification from Gambleton. Thus, there is no legal authority to support Home Health’s assertion that as a matter of law it may not be sued unless Gambleton is a party to Sykes’s suit, and the circuit court erred in affirming summary judgment for Home Health.


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