# Sullins v. American Medical Response of Oklahoma, Inc.

> Supreme Court of Oklahoma · February 20, 2001 · 72 O.B.A.J. 573

URL: https://www.frixlaw.com/law-library/cases/9786298

## Case

- **Full name:** Lloyd SULLINS, Plaintiff, v. AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC., a Delaware Corporation, and Warren Properties, Inc., a Delaware Corporation, Defendants
- **Court:** Supreme Court of Oklahoma
- **Decided:** February 20, 2001
- **Citations:** 72 O.B.A.J. 573; 23 P.3d 259; 2001 OK 20; 2001 Okla. LEXIS 21; 2001 WL 171316
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Boudreau
- **Judges:** Boudreau, Hargrave, Watt, Lavender, Kauger, Summers, Opala, Hodges, Winchester
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BOUDREAU, Justice:
1 1 In August of 1998, Lloyd Sullins dove into the shallow end of a swimming pool at an apartment complex in Oklahoma City. He injured his spinal cord and nearly drowned. EMSA, the 911 emergency medical service in Oklahoma City, was called to the scene. According to Sullins, the ambulance personnel dropped Sullins on his head, exacerbating his injury.
2 On October 21, 1999, more than a year after the accident, Sullins filed a negligence action in the United States District Court for the Western District of Oklahoma against American Medical Response of Oklahoma, Inc. (AMR) and Warren Properties, Inc 1 AMR raised a statute of limitations defense, alleging that the tort claim is barred because Sullins failed to give notice of the claim within one year of the date of the injury as required by the Governmental Tort Claims Act (GTCA) 2 In support of its defense, AMR contended that as the designated operations contractor for EMSA, a public trust and a political subdivision under the GTCA, it qualified as an agency of a political subdivision protected by governmental immunity under the GTCA.
13 The United States District Court for the Western District of Oklahoma certified the governmental-immunity question to this Court, pursuant to the Revised Uniform Certification of Questions of Law Act. 3 The federal district court framed the legal question as follows: 4
1. Whether a private entity, such as AMR, may be cloaked with immunity under the Oklahoma Governmental Tort Claims Act when acting as an "agency" of a public trust, such as EMSA?
T4 In the certification order, the federal district court set forth the facts relevant to the legal question. EMSA is a public trust created to provide emergency medical services in Oklahoma. Its trust indenture requires that EMSA select an operations contractor to operate the dispatching and field *261 operations of the emergency medical services. EMSA, a public trust, and AMR, a private entity, entered into a contract under which AMR became the operations contractor. AMR was the operations contractor at the time of Sulltins' injury.
T5 Although the certified question relates to AMR's immunity from tort liability when "acting as an 'agency' of a public trust, such as EMSA," the certified facts do not include a determination or stipulation that AMR was acting as an "agency" of a public trust. Rather, the certified facts provide that EMSA selected AMR as its operations contractor. AMR's claim that it is immunized from tort lability, as a matter of law, rests squarely on its contract with EMSA, a public trust, under which EMSA selected it as operations contractor to operate the dispatching and field operations of the emergency medical services. Accordingly, we reformulate the question within the bounds of the certified facts as follows: 5
For purposes of the Governmental Tort Claims Act, is a private entity an "agency" of a public trust merely because the private entity contracts with the public trust to provide the services which the public trust is authorized to provide?
T6 We answer the reformulated question in the negative.
THE EMS SYSTEM
17 The municipalities of Tulsa and Oklahoma City jointly established an emergency medical services system (EMS system) through an Inter-local Agreement. 6 Pursuant to the agreement, both municipalities accepted beneficiary status of the Emergency Medical Services Authority, 7 a public trust created for the purpose of providing the emergency medical services, and they also adopted a uniform code for emergency medical services (EMS code). 8 The agreement «and the EMS code delineated three areas of responsibility for the EMS system.
18 First, the municipalities were required to create an administrative agency with regulatory powers to oversee the clinical aspects of the EMS system. Accordingly, the municipalities created the Emergency Physicians Foundation (EPF). The EPF membership consists of board-certified emergency medicine physicians in the Tulsa and Oklahoma City areas. The EPF also has a nine-member board of directors, the Medical Control Board, consisting of board-certified emergency medicine physicians engaged full-time in the practice of emergency medicine. The Medical Control Board sets the standard of care for emergency medical services in Tulsa, Oklahoma City, and other regulated areas. To assure compliance with its standard of care, the Board hires a Medical Director.
T9 Second, the agreement and the EMS code provide that EMSA is responsible for the overall financial affairs of the EMS system. EMSA controls the rate structure, subsidy, and all billing and collections. EMSA is also responsible for acquiring, as owner, all EMS vehicles, equipment and other property necessary to provide dispatching and ambulance services in the regulated areas. 9
T10 Third, to comply with its general charge to provide ambulance services to the citizens in the regulated areas, the agreement and the EMS code obligate EMSA to select an operations contractor to operate the EMS control centers and to provide dispatching and in-field services under EMSA's name and EMS license. 10 EMSA must select the *262 operations contractor through competitive bid. 11 The operations contractor supplies the personnel necessary to operate the ambulance service throughout the regulated areas at the price fixed by the competitive bid. 12
THE GOVERNMENTAL TORT CLAIMS ACT
[111 AMR's immunity from liability turns on our construction of the GTCA. In enacting the GTCA in 1984, 13 the Oklahoma Legislature expressly adopted the doctrine of sovereign immunity, freeing the "state, its political subdivisions, and all their employees acting within the seope of their employment, whether performing governmental or proprietary functions," 14 from liability for torts. However, following the modern trend, 15 the Legislature also waived sovereign immunity by extending "governmental accountability to all torts for which a private person or entity would be liable subject only to the act's specific 'limitations and exceptions.'" 16 In waiving sovereign immunity, the Legislature restricted the waiver "only to the extent and in the manner prescribed in the act". 17
{12 The GTCA prescribes the manner in which any person asserting a claim against the state or a political subdivision must proceed. Among other things, a claimant must present written notice of a claim within one year of the date the loss occurs. 18 If a person asserting a claim against the state or a political subdivision fails to present timely notice, the claim is forever barred. 19
113 AMR describes itself as a private corporation that has contracted with EMSA, a public trust, to operate the dispatching and field operations of the emergency medical services. AMR contends that by virtue of the contract it has become the "designated operations contractor" for EMSA and thus an "agency" of EMSA, a political subdivision under the GTCA. AMR takes the position that as an "agency" of EMSA, it must be sued in conformity with the requirements of the GTCA and therefore it is entitled to notice of the claim within one year of the date the loss occurs under § 156 of the GTCA. 20
114 Sullins, on the other hand, responds that the Oklahoma Legislature did not extend the status of an "agency," with its concomitant immunity, to a private entity solely on the basis that the entity provides services to or for a public trust. Sullins argues that AMR is an independent contractor under common law theories of agency. Accordingly, Sullins maintains that AMR is a nongovernmental entity and not entitled to notice under the GTCA.
A PRIVATE ENTITY IS NOT AN "AGENCY" OF A PUBLIC TRUST UNDER THE GOVERNMENTAL TORT CLAIMS ACT MERELY BECAUSE IT *263 CONTRACTS WITH A PUBLIC TRUST TO PROVIDE THE SERVICES WHICH THE PUBLIC TRUST IS AUTHORIZED TO PROVIDE.
115 In considering AMR's contention that it is an "agency" of EMSA, our analysis must begin with the definitional portion of the GTCA, § 152(8) which defines a political subdivision. That subsection defines a political subdivision to include, among other entities, "a public trust where the sole benefi-clary or beneficiaries are a city, town, school district or county. 21 The definition of a political subdivision also embraces all its "institutions, instrumentalities or agencies." 22
{ 16 Since the definition of a political subdivision includes its "agencies," we must turn to another subsection of the definitional portion of the GTCA. Subsection 152(2), defines agency as follows:
As used in this act, Section 151 et seq. of this title:
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2. "Agency" means any board, commission, committee, department or other instrumentality or entity designated to act in behalf of the state or a political subdivision.
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(Emphasis added.)
If AMR is an entity designated to act in behalf of EMSA, a public trust, then it is an "agency" of EMSA, a political subdivision under the GTCA.
117 In resolving this question, we must construe the meaning of the statutory language "entity designated to act in behalf of the state or a political subdivision." The rules of statutory construction are well established. First and foremost, we must give effect to the Legislature's intent. 23 If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and no further construction is required or permitted. 24 However, when the meaning of a statutory provision is unclear or its application is uncertain, the language is to be given a reasonable and sensible construction. 25
T18 The statutory language in question, "entity designated to act in behalf of the state or a political subdivision", is not so clear as to be beyond interpretation. The meaning of the language is doubtful and uncertain because it is susceptible to multiple interpretations. Accordingly, rules of statutory construction may be used to ascertain the statute's meaning. 26
T19 In our attempt to discern the intended meaning of the language "entity designated to act in behalf of a political subdivision", we are guided by the legal maxim moscitur a sociis. Under the maxim, the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. 27 The definition of "agency" in § 152(2) expressly includes a board, commission, committee, or department of the state or a political subdivision. Each of these entities is either a body organized to execute a governmental function or a division of governmental administration. Stated otherwise, these are entities through which the *264 state or a political subdivision acts in the administration of government.
120 A private entity such as AMR is not an "entity designated to act in behalf of the state or a political subdivision" merely because it contracts with a public trust to provide services which the public trust is authorized to provide. Notwithstanding the fact that it may be providing a public service, a private entity such as AMR does not act in the administration of government. It is not charged by law with the responsibility of conducting any public business. It is organized by private citizens pursuant to general corporate laws. It is not controlled by or answerable to the public, but is governed by its own board of directors. Its employees are not governmental employees. Exeept as it has voluntarily obligated itself by contract, it is not required to provide services or remain in existence. In summary, it possesses all the attributes of a private business enterprise, a non-governmental entity.
%21 Other factors support our conclusion that a private entity such as AMR is not an "entity designated to act in behalf of the state or a political subdivision" merely because it contracts with a public trust to provide services that the public trust is authorized to provide. We observe that the terms "private corporation," "private entity" and "operations contractor" are absent from the statutory definition of "agency." Had the Legislature intended to include these entities, it could have specifically referenced them in defining "agency." It did not. We cannot divine immunity from a silent text, nor will we read immunity into doubtful and ambiguous legislative language. 28
122 Moreover, the GTCA expressly excludes "independent contractors" or "an employee of independent contractors" from the definition of "employee," indicating that the Legislature intended to exclude public contractors from the immunity provisions of the GTCA. 29 Expressions of doubtful meaning will be construed so as to promote harmony in the various provisions of a statute and give practical effect to the intention of the legislature if possible. 30
423 We find nothing in the statutory language of the GTCA to support the notion suggested by the dissent that the Legislature intended to allow a public trust, by public contract, to declare a private entity a public agency and thus confer immunity upon that private entity. We conclude that the Legislature did not intend to include a private entity such as AMR in the definition of "agency" merely because the entity contracts with a public trust to provide services to the public. Accordingly, we answer the reformulated certified question in the negative. A private entity is not an "agency" of a public trust under the Governmental Tort Claims Act merely because it contracts with the public trust to provide the services which the public trust is authorized to provide.
REFORMULATED CERTIFIED QUESTION ANSWERED.
1 24 HARGRAVE, C.J., WATT, V.C.J., and LAVENDER, KAUGER, and SUMMERS, JJ., concur.
11 25 OPALA, J., concurs in result.
126 HODGES and WINCHESTER, JJ., dissent.
. Sullins did not name EMSA as a defendant in the federal district court suit, however, this Court granted EMSA's request to file an amicus curiae brief on the certified questions. Warren Properties, Inc., the alleged owner of the apartment complex where Sullins' injury occurred, filed a waiver of the right to file a brief on the certified questions.
. 51 0.$.1991, §§ 151, et seq. The Oklahoma Legislature has amended various sections of the GTCA since the 1991 recodification. This opinion will reference the most recent version of the statute unless an earlier version is controlling.
. 20 0.$.Supp.2000, §§ 1601, et seq.
. The federal district court certified two questions to this Court. Because we answer the first question in the negative, we need not answer the second question which concerned the factors to be considered in determining whether a private entity is an "agency" of a public trust for purposes of the GTCA.
. 20 0.$.Supp.2000, § 1602.1.
. The Inter-local Cooperation Agreement between Tulsa and Oklahoma City is authorized by 74 0.$.1991, §§ 1001, et seq.
. The Emergency Medical Services Authority (EMSA) is a trust created for the furtherance of a public function pursuant to 60 0.$.1971, §§ 176, et seq.
. The EMS code is a published ordinance in the Tulsa City Ordinances, Title 37A, §§ 100, et seq., and the Oklahoma City Municipal Corie, Chapter 6-1, et seq.
. 60 0.$.1991, § 176(a) authorizes a public trust "'to issue obligations and to provide funds for the furtherance and accomplishment of any authorized and proper public function or purpose ... or municipality or any combinations thereof, in real or personal property" for the benefit of the municipality.
. The operations contractor's personnel also use EMSA's vehicles and equipment. They also *262 are provided 24-hour access to qualified on-line medical control by an authorized emergency medicine physician who oversees the medical care being provided by the EMS personnel in the field at no cost to the operations contractor.
, 60 O.S.1991, § 176(h).
. The Inter-local Agreement defines "operations contract" as "the contract for purchase of ambulance services between EMSA and its then-contracted firm (the 'Operations Contractor') for provision of ambulance services throughout the Regulated Service Area."
. 1984 Okla.Sess.Laws, ch. 226, effective October 1, 1985.
. 51 O.S.1991,§ 152.1(A).
. Vanderpool v. State of Oklahoma ex rel. Oklahoma Historical Society, 1983 OK 82 , 672 P.2d 1153 ; and Newman v. State, 1971 OK 84 , 490 P.2d 1079 (Hodges, J., dissenting).
. Anderson v. Eichner, 1994 OK 136, ¶ 9 , 890 P.2d 1329, 1336 ; and 51 O.S.1991, § 153(A).
. 51 O.S.1991,§ 152.1(B).
. 51 O.S.Supp.2000, § 156(A) provides that any person having a claim shall present the claim to the state or a political subdivision for any appropriate relief; § 156(B) provides that a claim against the state or a political subdivision must be presented within one year after the loss occurs or be forever barred; and § 156(C) provides that a claim against a political subdivision shall be in writing and filed with the clerk of the governing body.
. Id.
. According to the certified order, it is undisputed that Sullins did not timely present written notice of his tort claim to either AMR or EMSA.
. 51 O.S.Supp.2000, § 152(8) reads in pertinent part:
8. "Political subdivision" means:
a. a municipality,
b. a school district,
c. a county,
d. - a public trust where the sole beneficiary or beneficiaries are a city, town, school district or county ...
and all their institutions, instrumentalities or agencies ....
(Emphasis added.)
. Id.
. Phillips v. Duke Manufacturing, Inc., 1999 OK 25 , 980 P.2d 137 .
. Community Bankers Association of Oklahoma v. Oklahoma State Banking Board, 1999 OK 24 , 979 P.2d 751 .
. City of Chandler v. State ex rel. Department of Human Services, 1992 OK 137 , 839 P.2d 1352 .
. Cox v. Dawson, 1996 OK 11, ¶ 6 , 911 P.2d 272, 276 .
. Application of Central Airlines, 1947 OK 312, ¶ 0 , 199 Okla. 300 , 185 P.2d 919, 920 , Syllabus by the Court.
. Gunn v. Consolidated Rural Water & Sewer, 1992 OK 131, ¶ 7 , 839 P.2d 1345, 1349 ; and Jarvis v. City of Stillwater, 1983 OK 88, ¶ 10 , 669 P.2d 1108, 1111 .
. 51 0.$.Supp.2000, § 152(5)(a)(1) provides that employee "... does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor...."
. Board of Education of Burbank Independent School Dist. No. 20 v. Allen, 1945 OK 18 , 195 Okla. 209 , 156 P.2d 596 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786298. Public record. Not legal advice.