Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 1 of 64
`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 1 of 64
`
`SUMMONS
`
`COMPLAINT FOR WRONGFUL DEATH
`
`Fi‘S‘JudiCial Dim“ C011“
`County of Santa Fe
`225 Montezuma Ave.
`
`Santa Fe, NM 87501
`Phone: 505.455.8250
`
`Case Number: D-101-CV-2020-01781
`
`Judge: Honorable Kathleen McGarry
`
`Defendants.
`
`TODD LOPEZ, As Personal
`
`Representative
`of the ESTATE OF DOROTHY M.
`,
`DUGGINS
`
`T0:
`
`Life Care Center of Farmington
`1101 W. Murrary Drive
`Farmington, New Mexico 87401
`
`Plaintiff,
`
`LIFE CARE CENTERS OF
`
`AMERICA, INC.
`LIFE CARE CENTER OF
`
`FARMINGTON,
`PHILLIP NICKSE, in his Individual
`and Official
`
`Capacities,
`
`TO THE ABOVE NAMED DEFENDANT(S): Take notice that:
`
`A lawsuit has been filed against you. A copy of the lawsuit is attached. The Court issued this
`Summons.
`
`You must respond to this lawsuit in writing. You must file your written response with the Court
`no later than thirty (30) days from the date you are served with this Summons. (The date you are
`considered served with the Summons is determined by Rule 1—004 NMRA) The Court’s address
`is listed above.
`
`You must file (in person or by mail) your written response with the Court. When you file your
`response, you must give or mail a copy to the person who signed the lawsuit.
`
`If you do not respond in writing, the Court may enter judgment against you as requested in the
`lawsuit.
`
`AJury Trial has already been requested and you are also being serviced with the lug Dem and
`and Plaintiff’s First Discoverv Instrument no later than forty-five (45) days from the date
`
`EXHIBIT A
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 2 of 64
`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 2 of 64
`
`you are served with this Summons.
`
`If you need an interpreter, you must ask for one in writing.
`
`You may wish to consult a lawyer. You may contact the State Bar of New Mexico for help
`finding a lawyer at www.nmbar.org; 1—800—876—6227; or 1—505—797-6066.
`
`6.
`
`7.
`
`Dated at
`
`Santa Fe
`
`, New Mexico, this 14th day of August
`
`, 20fi.
`
`KATHLEEN VIGIL
`CLERK OF DISTRICT COURT
`
`fi/Jmafirm K. Chm-mgr
`Joshua K. Conaway
`3301 San Mateo Boulevard
`
`
`
`Albuquerque, New Mexico 87110
`Telephone: 505.243.6045
`Facsimile: 505.243.6642
`
`jconaway@fchclaw.com
`
`and
`
`Nichole Henry
`WHITENER LAW FIRM PA
`
`4110 Cutler Avenue NE
`
`Albuquerque, New Mexico 87110-3896
`Telephone: 505.242.3333
`Fax: 505.242.3322
`
`nichole@whitenerlaw.com
`
`ATTORNEYS FOR PLAINTIFFS
`
`THIS SUMMONS IS ISSUED PURSUANT TO RULE 1—004 NMRA OF THE NEW MEXICO
`RULES OF CIVIL PROCEDURE FOR DISTRICT COURTS.
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 3 of 64
`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 3 of 64
`
`RETURN1
`
`ss
`
`) )
`
`)
`
`STATE OF NEW MEXICO
`
`COUNTY OF
`
`I, being duly sworn, on oath, state that I am over the age of eighteen (18) years and not a party to this
`lawsuit, and that
`I served this summons in
`county on the
`day of
`, by delivering a copy of this summons, a copy of the discovery, with a copy of
`,
`complaint attached, in the following manner:
`
`(check one box and fill in appropria te blanks)
`
`(med when defendant acceptr a cop} oftnmmonr, dirconegi,
`to the defendant
`[]
`and complaint or raft/rel to accent the 511mmonr, dirconegl, and complaint)
`
`to the defendant by [mail] [courier service] as provided by Rule 1—004 NMRA (med when .tercice is
`[]
`by mail or commercial courier Jen/ice).
`
`After attempting to serve the summons and complaint on the defendant by personal service or by mail
`or commercial courier service, by delivering a copy of this summons, a copy of the discovery, with a
`copy of complaint attached, in the following manner:
`
`, a person over fifteen (15) years of age and residing at the
`to
`[]
`_. (med when the defendant it notpretenth/ atplace of
`usual place of abode of defendant
`ahode) and by mailing by first class mail to the defendant at
`(imert defendant? laIt
`known media; addn‘tif] a copy of the summons and complaint.
`
`, the person apparently in charge at the actual place of business or
`to
`[ ]
`employment of the defendant and by mailing by first
`class mail
`to the defendant at
`
`(imert dryendant’r hminem i-zdrhi-Ji] and by mailing the summons and complaint
`by first class mail to the defendant at
`(insert defindant’t laJt known mailing addrem).
`
`
`
`[]
`
`to
`
`, an agent authorized to receive service of process for defendant
`
`to
`[]
`defendant
`
`, [parent] [guardian] [custodian] [conservator] [guardian ad litem] of
`(med when defendant t! a minor or an incompetentperson).
`
`, (title of
`(name ofperxon),
`to
`[]
`permn authorized to receioe ~cert/ice. UJe thix alternative when the defi’ndant if a corporation or an amociation Jnhject to a
`ruit under a common name, a land<grant hoard oftrmteex, the State ofNew Mexico or my political thhrfti.'i.iien).
`
`Fees:
`
`
`
`
`
`Signature of person making service
`
`Title (ifmy)
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 4 of 64
`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 4 of 64
`
`Subscribed and sworn to before me this
`
`day of
`
`,
`
`.2
`
`Judge, notary or other officer
`authorized to administer oaths
`
`Official title
`
`USE NOTE
`
`Unless otherwise ordered by the court, this return is not to be filed with the court prior
`1.
`to service of the summons and complaint on the defendant.
`2.
`If service is made by the sheriff or a deputy sheriff of a New Mexico county, the
`signature of the sheriff or deputy sheriff need not be notarized.
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 5 of 64
`
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`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 6 of 64
`
`FILED 1st JUDICIAL DISTRICT COURT
`
`Santa Fe County
`8/14/2020 9:09 AM
`KATHLEEN VIGIL CLERK OF THE COURT
`
`Jorge Montes
`
`STATE OF NEW MEXICO
`
`COUNTY OF SANTA FE
`
`FIRST JUDICIAL DISTRICT COURT
`
`TODD LOPEZ, As Personal Representative
`of the ESTATE OF DOROTHY M. DUGGINS,
`
`Plaintiff,
`
`vs.
`
`No. D-101-CV-2020-01781
`
`Case assigned to Ellenwood, Kathleen McGarry
`
`LIFE CARE CENTERS OF AMERICA, INC.
`LIFE CARE CENTER OF FARMINGTON,
`
`PHILLIP NICKSE, in his Individual and Official
`
`Capacities,
`
`Defendants.
`
`MOTION FOR APPOINTMENT OF PERSONAL REPRESENTATIVE
`
`TO PURSUE WRONGFUL DEATH CLAIM
`
`IN ACCORDANCE WITH SECTIONS 41-2-1, et seq.
`
`COME NOW, Plaintiff, Todd Lopez, as Personal Representative of the Estate of Dorothy
`
`M. Duggins, by and through his attorneys of record Fadduol, Cluff, Hardy & Conaway, P.C. (Joshua
`
`K. Conaway) and Whitener Law Firm (Nichole Henry), and file this Motion for Appointment of
`
`Personal Representative to Pursue Wrongful Death Claim in Accordance with Section 41—2—1 et seq.
`
`and in conformity with Section 41—2—3, Todd Lopez moves the Court for an Order Appointing him
`
`as Personal Representative of the Estate of Dorothy M. Duggins for the purpose of prosecuting this
`
`wrongful death action and as grounds for said Order states:
`
`1.
`
`Dennis Duggins, son of Dorothy M. Duggins, and Sharon Duggins, daughter of
`
`Dorothy M. Duggins, are the sole wrongful death beneficiaries to her wrongful death estate. Dennis
`
`Duggins consents to the appointment of Todd Lopez as personal representative of the Estate of
`
`Dorothy M. Duggins for purposes of prosecuting this wrongful death action.
`
`
`Lopez a. Lie Cm Cem‘m ofA/izm'm, Ina, er 4!.
`1 Motion for Appointment of Personal Representative to Pursue Wrongful Death Claim in Accordance with
`Sections 41—2—1, er reg.
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 7 of 64
`
`2.
`
`To the best of Dennis Duggins’ knowledge,
`
`there are no other wrongful death
`
`beneficiaries or heirs to Dorothy M. Duggins’ estate.
`
`3.
`
`The best interests of the Estate of Dorothy M. Duggins would be served by the
`
`appointment of Todd Lopez as Personal Representative of the Estate.
`
`4.
`
`5.
`
`Todd Lopez has filed this wrongful death claim pursuant to Sections 41—2—1, ez‘ req.
`
`As set out by the New Mexico Court of Appeals in I” re the Erz‘m‘e offemzler, 2003—
`
`NMCA—030, 133 N.M 319, 62 P.3d 776, this Court may appoint the Wrongful Death Personal
`
`Representative. The court in that case stated the following:
`
`Cases interpreting our wrongful death act have made it clear that it is improper to
`equate a personal representative under the Wrongful Death Act with a personal
`representative as defined by the Probate Code .
`.
`. We take this opportunity to re—
`emphasize that appointment as the personal representative of a decedent’s estate is
`neither necessary nor sufficient authority for a person to serve as a Section 41—2—3
`personal representative: the power to enter a judgment appointing a Section 41—2—3
`personal representative “flows from the wrongful death statute itself and not from
`the probate, or estate, laws.” Henkel, 49 N.M. at 47, 156 P.2d at 791 .
`.
`. In view of
`the Supreme Court’s holding that appointment as a Section 41—2—3 personal
`representative is not a jurisdictional prerequisite to bringing a wrongful death action,
`Chavez v. Regents of the Universigz of New Mexico, 103 N.M. 606, 711 P.2d 883
`(1985), we see no reason Why a petition for appointment of a Section 41-2-3
`personal representative may not be brought with the wrongful death action
`itself, see Rules 1—002 and 1—018(A) NMRA 2002; NMSA 1978 § 44—6—4 (1975),
`assuming that all necessary parties, NMSA 1978 § 44—6—12 (1975), are subject to
`joinder in the forum where the wrongful death action is brought.
`
`1% re the Erz‘m‘e offemzler, 2003—NMCA—30, llll 2, 9—10 (bolding supplied).
`
`5.
`
`Pursuant to New Mexico law, in particular Section 41—2—3, a statutory wrongful death
`
`claim is to be pursued by a personal representative or representatives possessed of authority to
`
`pursue such a claim. Our Court of Appeals in Mae/ée} e. Bemée, has determined:
`
`1) Plaintiffs powers as administrator of the estate were unrelated to his alleged
`authority as a personal representative since that power flows from the wrongful
`death statutes, not probate law. 2) A wrongful death action has no relation to the
`estate. 3) The Legislature assigned the rights of action to the personal representative
`merely because someone had to be designated, not because such action would
`automatically have fallen within his duties. 4) “The term ‘personal representative’ is
`used simply to designate the agency, the trustee, the person, who may prosecute this
`
`
`Lopez 9. L9? C677? Cem‘m ofA/izeez'm, Ina, er 4!.
`2 Motion for Appointment of Personal Representative to Pursue Wrongful Death Claim in Accordance with
`Sections 41—2—1, er reg.
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 8 of 64
`
`particular character of statutory action.” 5) The personal representative is a “nominal
`party” in the sense that he acts as a trustee for the statutory beneficiaries, and not in
`any capacity for the estate, in pursuing the wrongful death action.
`
`the importance of the personal
`that
`Cases after Hen/eel make clear
`representative in the statute is
`to distinguish a person from the statutory
`beneficiaries, to set someone apart from the beneficiaries, and enable that person to
`prosecute the wrongful death suit.
`.
`.
`. Status as a potential statutory beneficiary is
`not the test for authority to bring a wrongful death action. If each potential
`beneficiary was considered as personal representative, the suits could be unending
`and contradictory. The Legislature has given the personal representative power to
`sue as ‘the statutory trustee for the discoverable and identifiable beneficiaries named
`in the statute.’
`
`1984—NMCA—028, llll 9—12, 102 N.M. 294, 694 P.2d 1359, eerz‘. quay/yea: 102 N.M. 293, 694 P.2d 1358
`
`(1985), overruled on other grounds by C/meeg e. Regent; 0f Um'e. 0fNM., 1985—NMSC—114, 103 N.M.
`
`606, 711 P.2d 883 (1985).
`
`6.
`
`Movant, Todd Lopez, is an appropriate person to act as Personal Representative in
`
`this wrongful death action. See C/meeg e. Regent; 0f Um'e. 0fNM., 1985—NMSC—114. Chavez instructs:
`
`It is merely ‘incidental’ that a ‘personal representative’ is named to bring a wrongful
`death action .
`.
`. The personal representative is only a nominal party who was
`selected by the Legislature to act as the statutory trustee for the individual statutory
`beneficiaries.
`
`Although a wrongful death action in New Mexico must be prosecuted by a personal
`representative .
`.
`. the cases have generally broadly construed who qualifies as a
`personal representative under the Wrongful Death Act.
`
`Id. llll 8—10. (citations omitted). The personal representative need only be “in some sense, a personal
`
`representative of the deceased, [to] meet the requirement.” Id. 1] 10.
`
`7.
`
`Movant, Todd Lopez, has been advised as to the requirements of the Wrongful
`
`Death Act, Sections 41—2—1, ez‘ teq, particularly as to the priorities regarding statutory beneficiaries of
`
`a wrongful death claim.
`
`8.
`
`Movant, Todd Lopez, recognizes his duties under the Wrongful Death Act and
`
`agrees to comply with them and to serve as a statutory trustee for discoverable and identifiable
`
`beneficiaries as required by law.
`
`
`:' Lopez 9. L9? C677? Cem‘m ofA/izeez'm, Ina, er 4!.
`Motion for Appointment of Personal Representative to Pursue Wrongful Death Claim in Accordance with
`Sections 41—2—1, er Jeq.
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 9 of 64
`
`9.
`
`To the best of Movant, Todd Lopez’s, knowledge, no other person has been
`
`appointed as a personal representative for the purpose of pursuing a wrongful death claim on behalf
`
`of the Estate, nor is any other Wrongful Death action now filed. Further, pursuant to Section 44—6—
`
`12, all interested parties are subject to joinder in this forum and have been given notice of this
`
`petition.
`
`WHEREFORE, Movant, Todd Lopez, prays that he be appointed personal representative
`
`for Dorothy M. Duggins, deceased, for the purpose of pursing a wrongful death action under the
`
`Wrongful Death Act, and for such other and further relief as may be proper.
`
`Respectfully submitted,
`
`FADDUOL, CLUFF, HARDY & CONAWAY, P.C.
`
`[M lay/ma K. Comtmy
`Joshua K. Conaway
`3301 San Mateo Boulevard
`
`Albuquerque, New Mexico 87110
`Telephone: 505.243.6045
`Facsimile: 505.243.6642
`
`jconaway@fchclaw.com
`
`and
`
`Nichole Henry
`WHITENER LAW FIRM PA
`4110 Cutler Avenue NE
`
`Albuquerque, New Mexico 87110—3896
`Telephone: 505.242.3333
`Fax: 505.242.3322
`
`nichole@whitenerlaw.com
`
`ATTORNEYS FOR PLAINTIPFS
`
`CERTIFICATE OF SERVICE
`
`As no Answer to the Original Complaint has been filed, Plaintiff has not conferred with any
`other party or attorney on this matter.
`
`[M lay/9m K. Comtmy
`Joshua K. Conaway
`
`
`': Lopez a. Lie Cm Cem‘m ofA/izm'm, Ina, er 4!.
`Motion for Appointment of Personal Representative to Pursue Wrongful Death Claim in Accordance with
`Sections 41—2—1, er reg.
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 10 of 64
`
`FILED 1st JUDICIAL DISTRICT COURT
`
`Santa Fe County
`8/14/2020 9:09 AM
`KATHLEEN VIGIL CLERK OF THE COURT
`
`Jorge Montes
`
`STATE OF NEW MEXICO
`
`COUNTY OF SANTA FE
`
`FIRST JUDICIAL DISTRICT COURT
`
`TODD LOPEZ, As Personal Representative
`of the ESTATE OF DOROTHY M. DUGGINS,
`
`Plaintiff,
`
`vs.
`
`No.
`
`D-101-CV—2020-01781
`
`Case assigned to Ellenwood, Kathleen McGarry
`
`LIFE CARE CENTERS OF AMERICA, INC.
`LIFE CARE CENTER OF FARMINGTON,
`
`PHILLIP NICKSE, in his Individual and Official
`
`Capacities,
`
`Defendants.
`
`W
`
`COMES NOW Plaintiff Todd Lopez, as Personal Representative of the Estate of Dorothy
`
`M. Duggins, by and through his attorney of record, FADDUOL, CLUFF, HARDY & CONAWAY P.C.
`
`(Joshua K. Conaway) and Whitener Law Firm (Nichole Henry) and for his cause of action against
`
`Defendants would state as follows:
`
`I. PARTIES, |URISDICTION, AND VENUE
`
`1.
`
`Plaintiff Todd Lopez is an attorney who was appointed the Personal Representative of the
`
`Estate of Dorothy M. Duggins. Plaintiff is a resident of the County of Santa Fe, State of New Mexico.
`
`2.
`
`Defendant Life Care Centers of America, Inc. is a foreign limited liability company engaged
`
`in the business of owning, operating, managing, and/ or maintaining healthcare facilities, including
`
`Life Care Center of Farmington, at times material to this lawsuit. The causes of action made the basis
`
`of this lawsuit arise out of such business conducted by said Defendant in the ownership, operation,
`
`management, and/ or control of that facility. Defendant Life Care Centers of America, Inc. may be
`
`served with process by serving its registered agent, Corporation Services Company, MC—CSCl, 726 E.
`
`
`
` Lopez a. Lie Can? Cem‘m ofA/izm'm, Ina, er 4!.
`Complaint for Wrongful Death
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 11 of 64
`
`Michigan Drive, Suite 101, Hobbs, New Mexico 88240.
`
`3.
`
`Upon information and belief, Defendant Life Care Center of Farmington is a wholly—owned
`
`subsidiary of Defendant Life Care Centers of America, Inc. and its principal place of business is 1101
`
`W. Murray Drive, Farmington, New Mexico 87401. The causes of action made the basis of this lawsuit
`
`arise out of such business conducted by said Defendant Life Care Center of Farmington facility.
`
`4.
`
`Upon information and belief, Defendant Philip Nickse is a New Mexico resident and is the
`
`Executive Director for Defendant Life Care Center of Farmington. Upon information and belief,
`
`Defendant Nickse is an individual resident of Farmington, New Mexico. Nickse may be served with
`
`process at his last known address, 1801 Illinois Street NE, Albuquerque, New Mexico, 87110—6901,
`
`in Bernalillo County, New Mexico.
`
`5.
`
`This Court has jurisdiction over this cause of action and venue is proper because Plaintiff
`
`Todd Lopez is a resident of Santa Fe County, New Mexico.
`
`II. FACTUAL BACKGROUND
`
`6.
`
`The allegations of the preceding and succeeding paragraphs are incorporated herein by this
`
`reference.
`
`7.
`
`In March and April, decedent Dorothy M. Duggins was a resident of Life Care Center of
`
`Farmington.
`
`8.
`
`At such time, Nickse was the Executive Director for Life Care Center of Farmington and, as
`
`such, was responsible for ensuring proper care at the facility was provided to an appropriate standard,
`
`including protecting residents from the threat of COVID—19.
`
`9.
`
`Life Care Center of Farmington was owned and/ or operated by Life Care Centers of America,
`
`Inc.
`
`10.
`
`Upon information and belief, Life Care Center of America first learned of the spread of
`
`COVID—19 in its facilities in March of 2020 from its Kirkland, Washington facility.
`
`2 Lopez a. Lie Cm Cem‘m ofA/izm'm, Ina, er 4!.
`
`Complaint for Wrongful Death
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 12 of 64
`
`11.
`
`Despite this advance notice, neither Life Care Center of America nor Life Care Center of
`
`Farmington did anything to institute an appropriate facility plan to prevent the spread of COVID—19.
`
`12.
`
`Nickse held a meeting and specifically instructed staff not to wear face masks, because he did
`
`not want the residents frightened of COVID—19.
`
`13.
`
`All staff were ordered by Medical Director Jerry Monahan to obtain COVID—19 tests, but
`
`once Nickse learned of Mr. Monahan’s orders, Nickse ordered all testing swabs destroyed without
`
`being tested.
`
`14.
`
`When COVID—19 first arrived at Life Care Center of Farmington, there was no sterilization
`
`of any equipment, including stethoscopes or blood pressure monitors.
`
`15.
`
`Staff were required to wear N95 masks several days in a row without re—sterilization between
`
`shifts and to reuse nursing gowns.
`
`16.
`
`Although several staff members exhibited COVID—19 symptoms,
`
`they were required to
`
`continue to work.
`
`17.
`
`Even though residents who had tested positive for COVID—19 were quarantined, Life Care
`
`Center of Farmington continued to use the same HVAC system for quarantined and non—quarantined
`
`residents.
`
`18.
`
`When Life Care Center of Farmington contacted Life Care Center Corporate to ask for
`
`additional staffing, Life Care Center Corporate informed Life Care Center of Farmington staff that
`
`there was no money to provide additional staffing.
`
`19.
`
`Additionally, as a result of the short staffing, nurses would be assigned to the COVID—19 unit
`
`for a single day, but then would be reassigned to other units in the Life Care Center of Farmington,
`
`which resulted in an increased spread of COVID—19 throughout the nursing home.
`
`20.
`
`On April 17, 2020, Dorothy M. Duggins died as a result of rampant COVID—19 at the Life
`
`Care Center of Farmington.
`
`
`
` Lopez a. Lie Cm Cem‘m ofA/izm'm, Ina, er 4!.
`Complaint for Wrongful Death
`
`

`

`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 13 of 64
`
`Life Care Center of Farmington is the Alter Ego of Life Care Centers of America
`
`21.
`
`It is apparent that Life Care Centers of America controls Life Care Center of Farmington.
`
`22.
`
`Upon information and belief:
`
`0 Life Care Centers of America owns all, or the majority, of the capital stock in Life Care
`
`Center of Farmington;
`
`0 Life Care Centers of America and Life Care Center of Farmington corporations have
`
`common directors or officers;
`
`0 Life Care Center of America finances Life Care Center of Farmington and its budget;
`
`0 Life Care Centers of America subscribes to all the capital stock of Life Care Center of
`
`Farmington and/ or otherwise caused its incorporation;
`
`0 Life Care Center of Farmington has grossly inadequate capital;
`
`0 Life Care Centers of America pays the salaries and expenses and losses of Life Care
`
`Center of Farmington,
`
`including issuing pay checks to all Life Care Center of
`
`Farmington employees;
`
`0
`
`In the papers of Life Care Centers of America, and its statement of Life Care Centers
`
`of America officers, Life Care Center of Farmington is referred to as a subsidiary,
`
`department, or division of Life Care Centers of America;
`
`0 The directors and executives of Life Care Centers of Farmington do not act
`
`independently in the interest of Life Care Centers of Farmington but instead, only take
`
`direction from Life Care Centers of America;
`
`0 The formal legal requirements of Life Care Centers of Farmington as a separate and
`
`independent corporation are not observed;
`
`0 All of Life Care Centers of Farmington revenue goes to Life Care Centers of America;
`
`0 All capital expenditures are approved by Life Care Centers of America;
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`0 Life Care Centers of America negotiates employment contracts between Life Care
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`Center of Farmington and hired employees.
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`III. COUNT I
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`Alter Ego /Instrumentality
`(All Defendants)
`The allegations of the preceding and succeeding paragraphs are incorporated herein by this
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`reference.
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`Life Care Center of Farmington is the alter ego of Life Care Centers of America.
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`The shareholders of Life Care Centers of America have so manipulated Life Care Center of
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`Farmington, and other Life Care Centers of America subsidiaries, to serve their own individual
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`interests that the identity of Life Care Centers of America has merged with that of Life Care
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`Center of Farmington, and other Life Care Centers of America facilities.
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`Life Care Center of Farmington, and other Life Care Centers of America facilities, are not
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`operated in a legitimate fashion to serve the valid goals and purposes of Life Care Center of
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`Farmington but, instead, function under the dominion, control of, and for the purposes of
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`Life Care Centers of America.
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`Life Care Center of Farmington, and other Life Care Centers of America facilities, are mere
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`business conduits for Life Care Centers of America.
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`There is such unity of interest and ownership that the individuality and/ or separateness of
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`Life Care Centers of America and Life Care Center of Farmington, as well as other Life Care
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`Centers of America facilities, has ceased.
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`Allowing acknowledgement of the separate corporate existence of Life Care Centers of
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`America from Life Care Center of Farmington, and its other Life Care Centers of America
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`facilities, would sanction fraud and/ or other improper purposes.
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`The determination that shareholders are the alter egos of the corporation describes the specific
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`23.
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`24.
`
`25.
`
`26.
`
`27.
`
`28.
`
`29.
`
`30.
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`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 15 of 64
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`situation here where the Life Care Centers of America shareholders have so manipulated Life
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`Care Center of Farrnirigtori to further their own individual interests that the identity of Life
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`Care Center of Farmington has merged into its Life Care Centers of America shareholders.
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`That is to say, that Life Care Centers of America and Life Care Center of Farmington have, in
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`fact, become so closely identified that a court in filling that the corporate entity should be
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`disregarded is merely recognizing reality.
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`31.
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`The Life Care Centers of America shareholders have manipulated Life Care Center of
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`Farmington to their own purposes, convenience, and benefit.
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`32.
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`Life Care Centers of America’s control exercised over Life Care Center of Farmington is so
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`complete as to render Life Care Center of Farmington the instrumentality of Life Care Centers
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`of America.
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`33.
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`Upon information and belief:
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`a. Life Care Centers of America owns all, or the majority, of the capital stock in Life Care
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`Center of Farmington;
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`b. Life Care Centers of America and Life Care Center of Farmington corporations have
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`common directors or officers;
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`c. Life Care Centers of America finances Life Care Center of Farmington and its budget;
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`d. Life Care Centers of America subscribes to all the capital stock of Life Care Center of
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`Farmington and/ or otherwise caused its incorporation;
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`e. Life Care Center of Farmington has grossly inadequate capital;
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`f. Life Care Centers of America pays the salaries and expenses and losses of Life Care Center
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`of Farmington,
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`including issuing pay checks to all Life Care Center of Farmington
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`employees.
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`g.
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`In the papers of Life Care Centers of America, and its statement of Life Care Centers of
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`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 16 of 64
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`America officers, Life Care Center of Farmington is
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`referred to as a subsidiary,
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`department, or division of Life Care Centers of America.
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`The directors and executives of Life Care Center of Farmington do not act independently
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`in the interest of Life Care Center of Farmington but instead, only take direction from
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`Life Care Centers of America;
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`The formal legal requirements of Life Care Center of Farmington as a separate and
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`independent corporation are not observed;
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`All of Life Care Center of Farmington’s revenue goes to Life Care Centers of America;
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`All capital expenditures are approved by Life Care Centers of America;
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`Life Care Centers of America negotiates employment contracts between Life Care Center
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`of Farmington and hired employees.
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`34.
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`Life Care Centers of America has complete dominion over Life Care Center of Farmington,
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`not only of finances, but also of policy and business practices so as to make it clear that life
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`Care Center of Farmington has not separate mind, will, or existence of its own.
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`35.
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`Life Care Center of Farmington was operated with an improper purpose, including direction
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`and participation by Life Care Centers of America in improper activities and joint improper
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`acts where, had Life Care Centers of America and Life Care Center of Farmington performed
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`these actions alone, would have created liability. Life Care Centers of America used Life Care
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`Center of Farmington to carry out unjust acts.
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`36.
`
`As a direct and proximate or legal result of Life Care Centers of America using Life Care
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`Center of Farmington has its alter ego, Dorothy M. Duggins died.
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`Negligence
`
`IV. COUNT II
`
`Negligence
`(All Defendants)
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`37.
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`38.
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`39.
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`40.
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`41.
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`The allegations of the preceding and succeeding paragraphs are incorporated herein by this
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`reference.
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`Defendants owed a duty to exercise ordinary care and act as a reasonable and prudent nursing
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`home would under the same or similar circumstances, including, but not limited to, ensuring
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`the safety of Dorothy M. Duggins. Defendants breached that duty and were negligent.
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`Defendants’ negligence was the sole proximate cause and/ or a proximate cause of Dorothy
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`M. Duggins’ injuries and death. Defendants’ negligence includes, but is not limited to, the
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`following:
`
`a.
`
`b.
`
`c.
`
`d.
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`Failing to properly assess Dorothy M. Duggins;
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`Failing to provide a safe environment, including proper protection from COVID—19,
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`for Dorothy M. Duggins;
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`Failing to hire a sufficient number of trained and competent staff;
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`Failing to enact proper policies and procedures for preventing spread of COVID—19;
`
`and
`
`e.
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`In other ways to be discovered.
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`As a direct and proximate result of the negligence of Defendants, Dorothy M. Duggins
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`suffered injury and died.
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`Further, Defendants’ acts and / or omissions described herein were malicious, willful, reckless,
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`and/ or wanton, displaying a conscious, deliberate, and/ or reckless disregard of, or utter
`
`indifference to, harmful consequences, including the health and safety of Dorothy M. Duggins,
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`resulting in Dorothy M. Duggins’ death, justifying an award of punitive damages.
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`A corporation may be held liable for punitive damages for a culpable mens rea demonstrated
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`by the actions and/ or omissions by its employees, when viewed in the aggregate. The actions
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`and/ or omissions of Defendants’ employees and/ or agents viewed in the aggregate determine
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`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 18 of 64
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`that Defendants had the requisite culpable mental state because of the cumulative conduct of
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`their employees and/ or agents. The culpable mental state of Defendants may be viewed from
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`the very fact that one employee and/or agent could be ignorant of the acts or omissions of
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`other employees with potentially disastrous consequences. The totality of the circumstances
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`indicates Defendants’ wanton and/ or reckless disregard for the lives, safety and/ or property
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`of other persons, including the life, safety, health, and well—being of Dorothy M. Duggins.
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`Respondeat Superior
`
`42.
`
`Defendants are vicariously liable for the death of Dorothy M. Duggins by virtue of the
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`negligent conduct of their employees. At the time of the incidents underlying this matter,
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`Defendants had employees who were acting within the course and scope of their employment
`
`with Defendants and were negligent. The negligence of these employees was a proximate cause
`
`of Dorothy M. Duggins’ death. Therefore, Defendants are vicariously liable to Plaintiff for the
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`negligent acts and/ or omissions for their employees on the basis of respondeat superior.
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`The agents and employees of Defendants had, and exercised, significant authority and control
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`over Dorothy M. Duggins.
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`Defendants conferred the authority over residents at its facility,
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`including Dorothy M.
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`Duggins, upon its agents and employees as part of their agency.
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`Defendants’ employees, including Phillip Nickse, were aided by their agency with Defendants
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`in the commission of the harms and injuries perpetrated against Dorothy M. Duggins.
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`Defendants are vicariously liable for any and all wrongful acts and conduct of their agents for
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`the injuries they caused Dorothy M. Duggins.
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`Defendants’ acts and omissions described herein were malicious, willful, reckless, or wanton,
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`displaying a conscious, deliberate or reckless disregard of, or utter indifference to, harmful
`
`43.
`
`44.
`
`45.
`
`46.
`
`47.
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`Lopez a. Lie Cm Cem‘m ofA/izm'm, Ina, er 4!.
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`Complaint for Wrongful Death
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`Case 1:20-cv-01083-KG-LF Document 1-1 Filed 10/19/20 Page 19 of 64
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`consequences, including the health, safety, and well—being of Dorothy M. Duggins, and other
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`persons, resulting in the harm and death suffered by Dorothy M. Duggins.
`
`48.
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`Furthermore, Defendants are vicariously liable for punitive damages based on the conduct of
`
`their employees, officers, and/ or principals. Defendants’ employees, officers, and/ or
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`principals were acting in the course and scope of their employment with Defendants and had
`
`sufficient discretionary authority to speak for them with regard to the conduct at issue,
`
`independent of higher authority.
`
`49.
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`Defendants’ acts and omissions described herein were malicious,