RAYMOND HAYDEN v. PARAMEDIC EMERGENCY AMBULANCE SERVICE, INC.
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RENDERED: NOVEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002597-MR
RAYMOND HAYDEN
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 94-CI-00072
v.
PARAMEDIC EMERGENCY AMBULANCE SERVICE, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM AND MILLER, JUDGES.
BARBER, JUDGE:
We are asked to decide whether the trial court
erred in entering summary judgment in favor of the Appellee,
Paramedic Emergency Ambulance Service, Inc. (“PEASI”), on ground
that
no
contractual
relationship
existed
between
it
and
the
Appellant, Raymond Hayden (“Hayden”). Finding no error, we affirm.
On February 18, 1994, Hayden filed a complaint in the
Greenup Circuit Court against PEASI.
working
as
experienced
a
volunteer
pain,
and
firefighter
subsequently
Hayden alleged that while
on
February
suffered
a
23,
heart
1993,
he
attack;
further, that PEASI had refused to dispatch an ambulance to the
scene, breaching its contract with the Wurtland Volunteer Fire
Department.
Another ambulance service transported Hayden to the
local emergency room.
Hayden alleged that the delay resulted in
his increased injury and impairment.
On August 3, 1995, PEASI filed a motion for summary
judgment.
By order entered September 12, 1995, the trial court
denied that motion.
The court explained that Hayden’s case hinged
upon his ability to establish a contract, oral or written, between
the Wurtland Volunteer Fire Department and PEASI.
unable to do so.
Hayden had been
The court denied the motion to allow Hayden a
fair opportunity to completely develop his case.
On August 14, 2001, PEASI filed another motion for
summary judgment, contending that no valid and enforceable contract
existed between it and the Wurtland Volunteer Fire Department.
PEASI
asserted
that
although
it
had
a
contract
with
several
districts, including the City of Wurtland corporate limits, it did
not have a contract with the Wurtland Fire Service District, which
was larger that the city limits. PEASI also asserted that Hayden’s
arrival at the ER was timely and that he could not demonstrate any
damages caused by PEASI’s alleged breach.
On October 30, 2001, the trial court entered summary
judgment in favor of PEASI, finding that:
1.
There was no recorded evidence of any
written contract by and between the Defendant,
PEASI, and the Wurtland Volunteer Fire
Department.
2. The Plaintiff failed to show by any clear
and convincing evidence that an express oral
contract was formed between PEASI and the
Wurtland Volunteer Fire Department. . . .
3.
Even if this Court had found that some
contractual relationship existed, the evidence
is equally clear that the failure of PEASI to
-2-
respond to the ambulance call on February 23,
1993, was not the cause of the cardiac damage
sustained by Mr. Hayden. . . .
The Court dismissed the case with prejudice. On November
29, 2001, Hayden filed a notice of appeal to this Court.
On appeal, Hayden contends that the circuit court erred in
granting summary judgment,1 because genuine issues of material fact
exist with regard to: (1) an oral contract between the Wurtland
Volunteer Fire Department and PEASI; (2) an implied contract
between Wurtland Volunteer Fire Department and PEASI;
(3) whether
the thrombolytic (TPA) therapy administered at the ER dissolved the
clot; and, (4) causation of the damage to Hayden’s heart.
(1)
Hayden acknowledges that he bears the burden of proving the
existence of an oral contract by clear and convincing evidence.2
1
The standard for summary judgment is abundantly clear
in Kentucky. A movant must show that there is no genuine
issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law. CR 56.03.
The record must be viewed in a light most favorable to
the party opposing the motion for a summary judgment and
all doubts must be resolved in favor of that party.
Summary judgment should be used only when, as a matter
of law, it appears it would be impossible for the
respondent to produce evidence at trial warranting a
judgment in favor of the respondent and against the
movant. . . .
. . . .
[S]ummary judgment is proper when it is manifest that
the opposing party cannot strengthen the case at trial
and the moving party would be entitled ultimately to a
directed verdict. Com v. Whitworth, Ky. 74 S.W.2d
695, 698, 701 (2002).
2
“The general rule is that where the alleged expressed contract
is oral the evidence to support it must be clear and convincing.”
(continued...)
-3-
Hayden would have us believe that the testimony of a former
employee, Bruce Bowling, provides such proof of an “agreement” that
PEASI would provide emergency assistance to police officers and
volunteer firemen, outside of its service area.
paramedic, left PEASI “full time” in 1990.
Bruce Bowling, a
Bowling did not know if
PEASI’s alleged policy had changed after 1990.
When asked if
“[s]itting here today,” he could say PEASI’s policy in 1993 was to
respond to firemen and policemen down anywhere in the county,
Bowling testified:
“I can’t say that in 1993 it was.
I can only
testify to my full-time employment period.”
Hayden asserts that Donnie Wellman, the department chief,
testified that there was an agreement requiring PEASI to respond
outside the city limits for any downed fireman; however, a review
of Wellman’s testimony reveals that this was only an “impression.”
When
asked
about
where
this
“impression”
came
from,
Wellman
responded that it was “hearsay from some unknown source.”
Hayden
also
contends
contracts
between
PEASI
and
other
volunteer fire departments are somehow evidence of an oral contract
between PEASI and the Wurtland Volunteer Fire Department.
Neither
the Bowling/Wellman testimony, nor the existence of contracts with
other volunteer fire departments create a genuine issue of material
fact with regard to the existence of an oral contract.
(2)
Next, Hayden argues that an implied contract existed between
the Wurtland Volunteer Fire Department and PEASI.
PEASI explains
(...continued)
Corbin's Ex'rs v. Corbin, 302 Ky., 208, 194 S.W.2d 56, 58 (1946).
-4-
that it is a non-profit, private ambulance service, which receives
its funding through a particular service district and contracts
with municipalities to provide emergency ambulance care.
A.V.
Rash, the Board Chairman of PEASI, testified that the Eastern
Greenup County Tax District contracts ambulance service.
In
February 1993, the taxing district included the corporate limits of
the cities in eastern Greenup County, and those areas “embraced by”
the Raceland, Worthington, and Russell school systems.
PEASI’s
contract included the corporate limits of the City of Wurtland;
however, Wurtland’s fire district was larger than the City of
Wurtland’s corporate limits.
The evidence upon which Hayden relies falls far short of
establishing a genuine issue of material fact that an “implied”
contract existed between Wurtland Volunteer Fire Department and
PEASI to pick up firefighters outside the service area.
We agree with the trial court there is no genuine issue of
material
fact
with
regard
to
the
existence
of
a
contract.
Accordingly, we do not reach the other issues Hayden has raised.
We affirm the summary judgment of the Greenup Circuit Court.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND
APPELLEE:
William L. Mundy
Huntington, West Virginia
John G. McNeill
Lexington, Kentucky
-5-
ORAL
ARGUMENT
FOR
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