Curtis et al v. Coast To Coast Healthcare Services, Inc. et al

Filing 70

MEMORANDUM OPINION & ORDER: 1. Coast to Coast Health Care Services' Motion for Summary Judgment 48 is GRANTED; 2. Plaintiffs claims are dismissed, with prejudice, as to Defendant Coast to Coast Healthcare Services, Inc.; and 3. The instant action remains set for final pretrial conference on August 29, 2017, and trial on September 11, 2017, as to Defendant Richard Pretorius, M.D.. Signed by Judge Gregory F. Van Tatenhove on 8/11/2017.(CBD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
CHRISTOPHER A. CURTIS and
CHRISTINA CURTIS,
Plaintiffs,
and
HUMANA HEALTH PLAN, INC.,
Intervening Plaintiff,
v.
COAST TO COAST HEALTHCARE
SERVICES, INC. and RICHARD
PRETORIUS, M.D.,
Defendants.

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Civil No. 3:15-cv-070-GFVT

MEMORANDUM OPINION
&
ORDER

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This matter is before the Court on the Defendant Coast to Coast Health Care Services’
(hereinafter referred to as “Coast to Coast”) Motion for Summary Judgment. [R. 48.] Coast to
Coast requests that the Court enter Summary Judgment with prejudice, pursuant to FRCP 56, in
their favor on all claims brought against them by the plaintiffs. After an extensive review of the
record and applicable case law, Defendant Coast to Coast’s Motion for Summary Judgment [R.
48] is GRANTED.
I
In the instant action, Plaintiffs brought allegations against Defendant Richard Pretorius,
M.D. for medical negligence and Coast to Coast under a theory of respondeat superior. [R. 1-1
at 4.] This suit is properly before this court pursuant to the court’s diversity jurisdiction.

Plaintiffs Christopher A. Curtis and Christina Curtis are residents of Owenton, Kentucky. [Id. at
2 ¶1-2.] Defendant Coast to Coast is incorporated in Ohio with its principle place of business in
New Albany, Ohio. [Id. ¶3-4.] Defendant Pretorius is a resident of New York. [Id. ¶5.]
Although no estimate was provided in the initial complaint or any subsequent document, the
amount in controversy will almost certainly exceed $75,000. [R. 1 at 3, ¶2.] None of the parties
suggest that this court lacks personal or subject matter jurisdiction.
On October 1, 2013, Defendant Coast to Coast, a health care staffing service, entered into
a contractual agreement with New Horizons Medical Center to provide staffing, including
doctors such as Defendant Pretorius, to service New Horizon’s Owenton, Kentucky, medical
facility. [R. 41-1.] Coast to Coast entered into a contract with Dr. Pretorius on February 18,
2014, for Dr. Pretorius to practice medicine and subsequently assigned him to the New Horizons
Medical Center in Owenton. [Id.] On September 12, 2014, Plaintiff Christopher A. Curtis
visited the New Horizons Medical Center emergency room complaining of an abscess in his right
buttocks. [Id. at 2; R. 1-1 at 4 ¶14-15.] Dr. Pretorius performed a medical evaluation and treated
Mr. Curtis by means of an incision, abscess drain, and packing of the wound. [R. 48-1 at 2; R. 11 at 4 ¶16.] Plaintiff was advised to return to New Horizons within two days if his conditions
showed signs of worsening. [R. 48-1 at 2.]
On September 14, 2014, having waited two days while still suffering from his condition,
Plaintiff returned to New Horizons, where he was seen by Dr. Betty Mitchell. [Id.] Following a
medical evaluation, Mr. Curtis was admitted to the hospital and was given an antibiotic IV
treatment. [Id.; R. 1-1 at 5 ¶21.] The next day, Dr. Robert Hicks performed an additional
evaluation and suspected that Mr. Curtis had developed Fournier’s Gangrene. [R. 48-1 at 2.]

2

Mr. Curtis was subsequently transferred to St. Elizabeth Medical Center, where Dr. Michael K.
Davenport diagnosed Plaintiff with Fournier’s Gangrene and performed surgical procedures to
further treat the affected area. [Id.; R. 1-1 at 5 ¶23-25.]
On September 1, 2015, Plaintiffs filed a complaint against Defendants in the Owen
County Circuit Court in the Commonwealth of Kentucky alleging negligent treatment and care
provided by Defendant Pretorius and vicarious liability for said treatment and care against
Defendant Coast to Coast. [R. 1.] The case was subsequently removed to this Court on the
grounds of diversity jurisdiction. [Id.] On September 7, 2016, Humana Health Plan, Inc. joined
the suit as a plaintiff by means of an Intervening Complaint. [R. 48-1 at 3.]
Defendant Coast to Coast filed a Motion for Summary Judgment, pursuant to FRCP 56
requesting that the Court find that Defendant Pretorius is an independent contractor and not an
employee, thus Coast to Coast cannot be held liable under the respondeat superior theory
espoused by Plaintiffs. [R. 48.] In response, Plaintiffs argue that Defendant Pretorius’
employment status is a genuine issue of material fact in dispute and ask the Court to deny
Defendant Coast to Coast’s Motion for Summary Judgment. [R. 55 at 2, 15.] Now, the Court
must determine whether there is a genuine issue of material fact in dispute and, if not, whether
the Defendant is entitled to summary judgment.
II
A
When sitting in diversity, a federal court applies the substantive law of the state in which
it sits. Hayes v. Equitable Energy Resources Co., 266 F.3d 560, 566 (6th Cir. 2001) (citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). However, when considering

3

summary judgment arguments, a federal court applies the standards of Federal Rule of Civil
Procedure 56 rather than Kentucky’s summary judgment standard as expressed in Steelvest, Inc.
v. Scansteel Serv. Ctr. Inc., 807 S.W.2d 476 (Ky. 1991). See Gafford v. Gen. Elec. Co., 997 F.2d
150, 165 (6th Cir. 1993). Under Rule 56, summary judgment is appropriate where the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56. A fact’s materiality is determined by the
substantive law, and a dispute is genuine if “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986).
Summary judgment is inappropriate where there is a genuine conflict “in the evidence,
with affirmative support on both sides, and where the question is which witness to believe.”
Dawson v. Dorman, 528 F. App’x 450, 452 (6th Cir. 2013). “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge. . . . The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Morales v. American Honda Motor Co., Inc.,
71 F.3d 531, 535 (6th Cir. 1995) (quoting Liberty Lobby, 477 U.S. at 255). The Court is under
no duty to “search the entire record to establish that it is bereft of a genuine issue of material
fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Rather, “the nonmoving party has an
affirmative duty to direct the court’s attention to those specific portions of the record upon which
it seeks to rely to create a genuine issue of material fact.” Id.

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B
Defendant Coast to Coast asserts that they cannot be held vicariously liable for the
actions of Defendant Pretorius as the contractual language clearly defines Dr. Pretorius as an
independent contractor. [See R. 48.] Plaintiffs, however, argue that the contract establishing the
relationship between Defendant Coast to Coast and Defendant Pretorius is not determinative and
there is a genuine issue of material fact as to whether Dr. Pretorius was an employee of Coast to
Coast Healthcare Services, Inc. [R. 55 at 13.] As both sides cite extensively to the contract
language, an in-depth review of the contract and circumstantial evidence is necessary to resolve
this issue.
Respondeat superior, or vicarious liability, is a doctrine that holds an employer
responsible for the wrongful actions of one of their employees or agents in certain circumstances.
Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005). Actions of independent contractors,
however, generally do not impart liability on their employers. Foncannon v. Southeastern
Emergency Physicians, LLC, 2017 WL 1362029, *3 (E.D. KY 2017) (citing Miles Farm Supply
v. Ellis, 878 S.W.2d 803, 804 (Ky. Ct. App. 1994)). The parties stipulate that the factors test
espoused in Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 756–57 (Ky. 1955)
is controlling; however, a more recent decision by the Kentucky Supreme Court added an
additional factor to the analysis. In Kentucky, the determination of whether a person is an
independent contractor or an employee is accomplished through a ten factor test:
(a) the extent of control which, by the agreement, the master may exercise over
the details of the work; (b) whether or not the one employed is engaged in a
distinct occupation or business; (c) the kind of occupation, with reference to
whether, in the locality, the work is usually done under the direction of the
employer or by a specialist without supervision; (d) the skill required in the
particular occupation; (e) whether the employer or the workman supplies the

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instrumentalities, tools, and the place of work for the person doing the work; (f)
the length of time for which the person is employed; (g) the method of payment,
whether by the time or by the job; (h) whether or not the work is a part of the
regular business of the employer; (i) whether or not the parties believe they are
creating the relationship of master and servant; and (j) whether the principal is or
is not in business.
Ky. Unemp. Ins. Comm'n v. Landmark Cmty. Newspapers of Ky., Inc., 91 S.W.3d 575, 579 (Ky.
2002) (quoting Restatement (Second) of Agency, § 220(2) (1958)). While the factor of control
has traditionally been the most important consideration for courts in deciding employment status,
Ky. Unemp. Ins. Comm’n held that control is not “of greater importance than the others” and thus
“each case must be decided on its own particular facts.” 91 S.W.3d at 580 (quoting Locust Coal
Co. v. Bennett, 325 S.W.2d 322, 324 (1959)). The following weighing of the factors, including
the contractual language and the circumstantial evidence, demonstrates that summary judgment
for the defendant is appropriate in this instance.
C
1
In Kentucky, the factor of control has traditionally been most informative when
determining whether a person is an independent contractor or an employee. The extent of
control over an independent contractor is defined as the rendering of services which “represents
the will of the employer only as to the result of his work and not as to the means by which it is
accomplished.” City of Winchester v. King, S.W.2d 343, 345 (Ky. 1954) 1; see also Nazar v.
Braham, 291 S.W.3d 599, 607 (Ky. 2009)(holding that “[i]f . . . an individual is free to determine
how work is done and the principal cares only about the end result, then that individual is an
independent contractor.”) In contrast, one who is considered an employee or agent submits

1

Until 1976, the Court of Appeals of Kentucky was the highest court in the Kentucky state judiciary.

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themselves to an employer’s “power or responsibility to control the method, manner, and details
of the agent’s work.” Nazar, 291 S.W.3d at 606-07.
The parties primarily disagree over the degree of control exercised by Coast to Coast over
Dr. Pretorius. Plaintiffs rely on the contractual language and surrounding circumstances of the
relationship between Coast to Coast and New Horizons to argue that Coast to Coast retained
ultimate control over Dr. Pretorius’ actions. Unsurprisingly, Coast to Coast points to other
provisions of the contract to suggest that, despite the fact that they had some limited oversight of
Dr. Pretorius’ medical care, they had no direct control over Dr. Pretorius’ day-to-day activities.
Specifically, Plaintiffs cite to contract language such as “he/she will personally evaluate all
emergency department patients in less than 30 minutes from the time Provider is notified by
Client of the need to see a particular patient” and Paragraph 9 (“Removal”) to underscore the
extent of control Coast to Coast wielded. [Id. at 4-5 (citing 48-2 at 3-4).] While the timing
requirement may appear to place some semblance of control of the schedule that Dr. Pretorius
must keep, it does not specify the manner in which Dr. Pretorius must behave once he begins the
diagnosis and treatment of patients. Based on the preceding sentence of the clause that Plaintiffs
cite for the “less than 30 minutes” requirement, the contract clarifies that healthcare facilities are
“required by the Centers for Medicare and Medicaid (CMS) to provide emergency medical care
in a timely manner.” [R. 48-2 at 3.] Thus, the establishment of a specific response time would
be an appropriate measure to ensure compliance with regulations as opposed to direct control
over Dr. Pretorius’ behavior.
Paragraph 9 (“Removal”) of the contract between Coast to Coast and Dr. Pretorius spells
out how complaints, discipline, and removal of a Provider will be handled. [R. 48-2 at 4.] The

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language stipulates that a Client [New Horizons] must “provide to Company [Coast to Coast]
immediate written notice” when there is a complaint about a Provider’s work and that Coast to
Coast will investigate the Provider’s actions through a “peer review committee.” [Id.] However,
for there to be disciplinary action taken, Coast to Coast and the Client must “concur there is a
bona fide concern that patient or staff harm may occur if Provider remains on site.” [Id.]
Plaintiffs also cite the relationship between Coast to Coast and New Horizons, wherein Coast to
Coast allegedly threatened to terminate their supply of medical staff when New Horizons
requested Dr. Pretorius’ reassignment or termination. [R. 55 at 6-11.] While it does appear that
Coast to Coast exercised a large amount of control over the discipline and termination of Dr.
Pretorius, it does not enjoy “unilateral” control, as Plaintiffs’ argue. [See id. at 5.] Coast to
Coast and New Horizons held dual power to “investigate the validity of the complaint by means
of appropriate mechanisms and then arrive at a resolution of the complaint that is mutually
acceptable to both Client and Company.” [Id. at 4.] This dual responsibility existed for review
of “the performance of Provider,” “professional incompetence or personal misconduct,” and
“lesser concerns or complaints.” [R. 48-2 at 4.]
The issue of control is not solely based upon disciplinary review, but also includes
“power or responsibility to control the method, manner, and details of the agent’s work.” Nazar,
291 S.W.3d at 606-07. Plaintiffs point to no evidence, outside of the thirty minute emergency
room response time, that Coast to Coast attempted to control the actual day-to-day activities of
Defendant Pretorius. The contract itself states that “Company shall not provide any clinical
training, clinical instruction, or any other directives of any kind that direct the manner in which
Provider is to perform said services.” [R. 48-2 at 2.] The contract also stipulates that, though

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“Company shall have control with regard to the time and place in which Provider performs such
services”, the “selection of hours or days the Provider will be available to perform services with
be at the sole discretion of the Provider.” [Id.] Thus, it appears that Coast to Coast provided
little, if any, direction to Dr. Pretorius’ provision of medical care. Since Coast to Coast had little
to no discretion to control the daily care provided by Dr. Pretorius, with the exception of
establishing his working hours and location and ad hoc review of alleged misconduct, the control
factor of this multi-factor test strongly indicates the existence of an independent contractor
status.
2
The second factor in Kentucky’s test for agency requires an examination of whether a
person is “engaged in a distinct occupation or business.” Ky. Unemp. Ins. Comm’n, 91 S.W.3d at
579. This factor asks whether a person has their own independent business, thus has multiple
clients, or is performing work for an individual entity. See Sam Horne, 279 S.W.2d at 757.
Another court in the Eastern District of Kentucky has interpreted this factor to include
contemplation of the degree of skill required for, and complexity of, the individual’s occupation.
See Foncannon v. Se. Emergency Physicians, LLC, 2017 WL 1362029, at *3 (E.D. Ky. Apr. 11,
2017).
The provider independent contractor agreement between Dr. Pretorius and Coast to Coast
clearly allows Dr. Pretorius to seek gainful opportunities separate from his placement on Coast to
Coasts’ behalf. A clause, titled “Other Services”, indicates that “[s]ubject to the limitations set
forth in Paragraph 12, during the term of this Agreement Provider shall be able to perform other
medical and professional services for whomsoever Provider desires, and Company warrants that

9

it will not interfere in such activity of Provider.” [R. 48-2 at 4.] The “Paragraph 12” language
that sets the limitations in the “Other Services” simply mandates that a Provider is not to seek out
agreements with direct competitors of Coast to Coast and also acts as a non-compete clause. [Id.
at 4-6.] Dr. Pretorius was engaged in a distinct occupation and provided highly skilled medical
care as an emergency room physician and hospitalist. [R. 48-1 at 1.] Although there is nothing
in the record to indicate that Dr. Pretorius sought out other opportunities during the term of his
contract with Coast to Coast, the language of the contract is persuasive in weighing the distinct
occupation or business factor in favor of an independent contractor status.
3
Similar to the control factor, Kentucky Courts asks whether “the work is usually done
under the direction of the employer or by a specialist without supervision.” Ky. Unemp. Ins.
Comm’n, 91 S.W.3d at 579. Specialists are recognized as individuals that have “unusual training
or skill.” Sam Horne, 279 S.W.2d at 757. The work of a specialist is generally judged upon
completion whereas laborers engaged in more tedious activities would likely be supervised by
the employer or master during the operative stage. See 91 S.W.3d at 579.
The parties do not dispute that Dr. Pretorius is a specialist. It is evident to the Court that a
medical doctor, regardless of their focus or specialty, has acquired knowledge and experience far
beyond that of a layperson. As for the oversight exercised by Coast to Coast, the contract states
that “Company shall not provide any clinical training, clinical instruction, or any other directives
of any kind that direct the manner in which Provider is to perform said services.” [R. 48-2 at 2.]
Coast to Coast appears to have provided minimal management of Dr. Pretorius’ day-to-day
affairs and he was significantly free to utilize his special knowledge and training. As such, the

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specialty factor weighs in favor of finding the existence of an independent contractor
relationship.
4
Closely associated to the preceding discussion, is the factor that asks whether “skill [is]
required in the particular occupation.” Kentucky Unemployment Ins. Comm'n v. Landmark Cmty.
Newspapers of Kentucky, Inc., 91 S.W.3d 575, 579 (Ky. 2002). Kentucky courts place some
emphasis on the distinction between one who has a skill that has to be learned and practiced,
thereby indicating an independent contractor status, and a task that can be performed without
significant training or experience, indicating an employer/employee relationship. See Sam
Horne, 279 S.W.2d at 757; see also Ky. Unemp. Ins. Comm’n, 91 S.W.3d at 580.
The parties do not dispute that Dr. Pretorius’ position required skills well beyond that of
an untrained or inexperienced layperson. In fact, the contract specifically requires that Dr.
Pretorius be “licensed to practice medicine in any and all states in which he or she chooses to
work,” is “experienced and competent in the operation and use of medical care facilities and
procedures,” and is “qualified to render the professional services required of a physician.” [R.
48-2 at 1.] Due to the level of skill necessary to perform highly individualized patient care, it
would be difficult for Coast to Coast to monitor and dictate the manner in which Dr. Pretorius
practiced medicine on a daily basis. Ultimately, Dr. Pretorius was given the conclusive authority
(and duty as the treating physician) to diagnose and treat his patients and his work would only be
subject to post hoc review for malpractice. [See id. at 4.] Since a high level of skill is needed to
practice as a physician and they are not generally subject to direct supervision, this factor weighs
significantly in favor of finding an independent contractor status.

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5
A strong indicator of a master/servant or employee/employer relationship is whether the
necessary instrumentalities, tools, and place of work are provided. Sam Horne, 279 S.W.2d at
757. By providing the necessary equipment and location, a master or employer would
theoretically exercise more control over both the means and outcome of the laborer’s work,
whereas one who supplies their own tools would exercise more independence and may not need
additional instruction regarding instrument use. Id.; see also Restatement (Second) of Agency, §
220 cmt. k (1958).
When applied to the circumstances of this case, the analysis concerning supply of
instrumentalities draws an inconclusive result. On the one hand, Coast to Coast did not directly
control the tools or places that Dr. Pretorius used; the devices and hospital were owned and
operated by New Horizons, the client. [R. 48-1 at 7.] But, Coast to Coast did provide Dr.
Pretorius with services such as billing, job placement, and scheduling. [R. 48-2 at 2; R. 55 at 45.] Another benefit that can be construed as a tool or instrumentality is Coast to Coast’s
provision of malpractice insurance to Dr. Pretorius. [R. 48-2 at 3.] Since there are strong
indicators for both an employee status and an independent contractor status, the supply factor
analysis does not weigh in favor of either interpretation.
6
The length a person is contracted to perform work is another indicator of the relationship
between a master and servant. Generally, an independent contractor is more likely to be
contracted for a shorter, more distinct duration than a regular employee. See Restatement
(Second) of Agency, § 220 cmt. j (1958). The parties do not dispute Defendant’s length of

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employment but, as discussed in the control factor, Plaintiffs contest that Defendant was an
employee of Coast to Coast because of the Defendant’s dual responsibility with New Horizons in
reviewing Dr. Pretorius quality of service and continued employment. Nevertheless, the contract
between Dr. Pretorius and Coast to Coast states that the term ran for a period of one year from
the signing date and would be automatically renewed unless terminated by either Coast to Coast
or Dr. Pretorius. [R. 48-2 at 1.] Either party could submit a written notice that indicated the
intent to discontinue the contract at any time, with or without cause. [Id. at 1, 8.] Since the term
indicated in the contract was defined for a set date with an automatic renewal as opposed to a
job-by-job basis and either party could terminate the contract at-will, the length of employment
factor suggests that an employee/employer relationship existed.
7
The means of determining pricing and the regularity of payment factor into the
employment relationship analysis. Generally, one who is paid per task would more likely be
considered an independent contractor, whereas a worker that was paid a salary or hourly rate
would predictably be considered an employee. See Sam Horne, 279 S.W.2d at 757; see also
Restatement (Second) of Agency, § 220 cmt. j (1958). Based upon a review of the record, it
would appear as though Coast to Coast handled the billing for and payment of Dr. Pretorius
throughout his tenure at New Horizons. The contract specifically addresses this fee structure:
8. Charging for Fees. The Client for whom Provider is providing services shall be
entitled to charge for and receive all fees generated by Provider. If requested by
Company, Provider shall execute and deliver to Company and/or Client
assignments of his or her rights to receive payment for locum tenens services so
that Client may bill on behalf of Provider using Q6 Modifier.
[R. 48-2 at 3-4.]

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However, in this case, Plaintiffs provided evidence that Coast to Coast handled the billing
of medical services provided by Dr. Pretorius and other medical staff. [R. 55 at 4-5.]
Additionally, the contract stipulates that “[i]n exchange for Provider [Dr. Pretorius]
providing in a timely manner the services as described in the Placement Confirmation
Email, Company agrees to pay Provider for the provision of said services the amount
calculated in the manner and at the rate(s) as set forth in the Confirmation Letter sent for
each individual shift.” [R. 48-2 at 2.] Since the billing for services and actual payment to
Dr. Pretorius were handled by Coast to Coast, the factor for method of payment weighs in
favor of an employee/employer relationship.
8
Next, the Court must consider the regular business of the employer. If a person is hired
to perform a job that is within the same industry in which the employer operates and the person
is in a subservient role, then they are more likely to be considered an employee. Sam Horne, 279
S.W.2d at 757. The parties agree, Coast to Coast regularly contracts with medical providers such
as Dr. Pretorius to provide their services to hospitals. It is clear from both the record and the
provider independent contractor agreement that Coast to Coast acted as an entity that “engages in
the business of contracting with medical care facilities . . . to provide locum tenens medical
staffing and services at the facilities operated by the Clients.” [R. 48-2 at 1.] Since these
agreements are within Coast to Coast’s regular course of business, this factor weighs in favor of
finding an employee/employer relationship.

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9
Besides the issue of control, Kentucky courts often emphasize the intent of the parties in
establishing their relationship as a significant factor for consideration. This determination
requires examination of the contractual language used when the relationship was struck and
analysis of extrinsic factors such as the surrounding circumstances, actions taken once the
contract was in operation, and customs of the relevant industry. See Sam Horne, 279 S.W.2d at
758; see also Ky. Unemp. Ins. Comm’n, 91 S.W.3d at 581 and Restatement (Second) of Agency,
§ 220 cmt. i, m (1958). The relationship between Coast to Coast and Dr. Pretorius was explicitly
established in the contract, which was titled “PROVIDER INDEPENDENT CONTRACTOR
AGREEMENT.” [R.48-2 at 1.] Furthermore, in three separate paragraphs, the contract
specifically refers to the signatory agreeing to become a Provider that would be considered an
independent contractor. [R.48-2 at 1, 4.] Coast to Coast sets out their business goal as a
company that “provides staffing and servicing by contracting with individual Providers, as
independent contractors, who agree to make their professional services available…” [Id. at 1.]
Two paragraphs later, Dr. Pretorius states his goal as being “desirous of contracting with
Company to provide his or her services as an independent contractor…” [Id.] The contract then
contains a separate clause that makes clear any ambiguity regarding the relationship established
by the contracting parties:
10. Independent Contractor Status. The parties hereto mutually acknowledge that
Provider is an independent contractor of Company and not its employee, agent, or
servant. Provider acknowledges that he or she is not entitled to be provided any
employee benefits whatsoever, either by Company or by the Client for whom
Provider is providing services. Provider agrees that, as an independent contractor,
he or she is fully and completely responsible for payment of all self-employment
taxes, as well as income and social security taxes and any other required taxes.

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[Id. at 4.]
Plaintiffs argue that the contract contains phrasing that contradicts and prevents
establishment of an independent contractor relationship. Specifically, Plaintiffs point to the
language in paragraph 12(c)(iv) that contains such phrasing as “[d]uring his period of
employment” and “following his or her termination of employment” as proof that the contract is
inconsistent in regards to the relationship status of the parties. Thus, Plaintiff believes there is a
credible question as to intent and a genuine issue of material fact in dispute. [R. 55 (citing to 482, ¶12(c)(iv).] While using the words “employment” and “termination” can serve as indicators
demonstrating an employer / employee relationship, the use of these words, in this independent
contractor agreement, taken as a whole, appear to be succinct descriptors for the period of time in
which Dr. Pretorius would provide services for Coast to Coast and not legally significant phrases
suggesting that Dr. Pretorius and Coast to Coast wished to engage in a master and servant
relationship. Plaintiffs fails to raise additional arguments or circumstances that challenge the
parties’ otherwise unambiguously stated intent. Accordingly, the intent of the parties, as
determined from the agreement itself and the surrounding circumstances, support a finding that
Dr. Pretorius was an independent contractor.
10
The Kentucky Supreme Court added one additional factor to this analysis that examines
whether the principal is still in business. Ky. Unemp. Ins. Comm’n decision, 91 S.W.3d at 580.
While the Kentucky Supreme Court did not provide extensive analysis of this factor, a common
reading would suggest that courts examine whether the employer or principal’s business is still
operating, and if so, the relationship was more likely the product of an independent contract. See

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Id.; see also Restatement (Second) of Agency, § 220(2) (1958). Nothing in the record indicates
that Coast to Coast has become insolvent or that Dr. Pretorius’ contract was void. Even though
significant analysis by Kentucky Courts is lacking, this factor has been considered by this Court
and suggests that there was an independent contractor relationship.
III
While length of employment, payment scheme, and the regular nature of the parent
business suggest Dr. Pretorius is an employee, these factors are not as persuasive as the strong
findings on the issues of control, skill, specialty and intent. After a careful weighing of the
evidence in the record, filings, relevant precedent, and multiple factors, the Court finds that there
is no genuine issue of material fact and that Coast to Coast and Dr. Pretorius enjoyed an
independent contractor relationship. Having made the determination that, as a matter of law, Dr.
Pretorius is an independent contractor, Coast to Coast cannot be held vicariously liable under
Kentucky law for the allegedly negligent care provided to Plaintiff Christopher A. Curtis.
Accordingly, for the reasons stated above and the Court being otherwise sufficiently advised, it is
hereby ORDERED as follows:
1. Coast to Coast Health Care Services’ Motion for Summary Judgment [R. 48] is
GRANTED;
2. Plaintiffs’ claims are dismissed, with prejudice, as to Defendant Coast to Coast
Healthcare Services, Inc.; and
3. The instant action remains set for final pretrial conference on August 29, 2017, and
trial on September 11, 2017, as to Defendant Richard Pretorius, M.D.

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This the 11th day of August, 2017.

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