COA: April 2016 Summaries of Published Decisions for Court of Appeals

Sovereign immunity and Kentucky's Model Procurement Code; Firefighters Rule and on the job; Medical exams and workers compensation

Here are selected published decisions dealing with torts, insurance, and civil matters of note from the Court of Appeals of Kentucky as summarized by the AOC.

Please note some have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

IMMUNITY

University of Louisville v. Rothstein
2014-CA-000997 04/01/2016 2016 WL 1267992 DR Pending

Opinion by Judge Nickell; Chief Judge Acree and Judge Jones concurred. The University of Louisville challenged the Franklin Circuit Court’s denial of its motion for summary judgment. U of L had asserted it was entitled to sovereign immunity on appellee’s claims relating to an alleged breach of his written employment contract. The circuit court concluded immunity had been waived under the Kentucky Model Procurement Code (KMPC), KRS 45A.005 et seq. On appeal, U of L asserted the waiver of sovereign immunity contained in KRS 45A.245 did not apply to employment contracts. The Court disagreed, concluding the statute waived the defense of sovereign immunity in all written contract actions against the Commonwealth – including those subject to the KMPC. Because U of L is a state agency and the employment contract between U of L and appellee was written, the Court determined the waiver provisions of KRS 45A.245 were applicable. Thus, it was held, the circuit court correctly determined appellee’s action was not barred by the defense of sovereign immunity, and the denial of summary judgment was affirmed.

NEGLIGENCE

Johnson v. Norfolk Southern Railway Company
2014-CA-001298 04/15/2016 2016 WL 1534275 DR Pending

Opinion by Judge Dixon; Judges Combs and D. Lambert concurred. In a premises liability action brought by a police officer against a railway company, the Court of Appeals reversed a directed verdict in favor of the railway company entered on the grounds that the Firefighter’s Rule barred the officer’s recovery as a matter of law. Under the Firefighter’s Rule, firefighters and public protection agents such as police officers are required to assume the ordinary risks of their employment, a dangerous occupation, to the extent necessary to serve their public purpose; the Rule operates as a defense for those who are the owners or occupiers of the property the agents are employed to protect. Sallee v. GTE South, Inc., 839 S.W.2d 277 (Ky. 1992), sets forth three prongs necessary to the application of the Firefighter’s Rule as adopted in Kentucky: (1) the purpose of the policy is to encourage owners and occupiers, and others similarly situated, in a situation where it is important to themselves and to the general public to call a public protection agency, and to do so free from any concern that by so doing they may encounter legal liability based on their negligence in creating the risk; (2) the policy bars public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk; and (3) the policy extends only to that risk. The Court concluded that in this case appellee did not fit within the first prong of the Rule. Appellant had responded to a call about an individual acting in a disorderly manner at the end of a street adjacent to Centre College. After the individual fled the scene, appellant and another officer chased him on foot across a field and through a tree line located on appellee’s property. At the end of the pursuit, appellant fell to the bottom of a steep embankment located on the other side of the tree line, suffering injuries to her wrist and eye. The Court noted that there was no evidence that appellee had placed the call regarding the suspect or was even aware of the incident, the company did not create the risk that necessitated or caused appellant’s presence on the property, and appellant was injured by a risk different in both kind and character than the one she was called upon to engage. Ultimately, appellant’s entering onto the property and subsequently falling down the embankment was the result of wholly independent factors not involving appellee. Although appellant assumed all of the risks inherent with being a police officer, she “was not injured by the risk [s]he was called upon to engage, but by a risk different in both kind and character.” Sallee, 839 S.W.2d at 279. Accordingly, on remand determination of appellee’s liability for appellant’s injuries would depend not upon the Firefighter’s Rule, but rather upon those considerations which generally govern the relationship between possessors of real property and those who are injured on it.

WORKERS’ COMPENSATION

Finke v. Comair, Inc.
2014-CA-000624 04/29/2016 2016 WL 1719311

Opinion by Judge Jones; Chief Judge Acree and Judge J. Lambert concurred. Appellant challenged the determination of the Workers’ Compensation Board that she did not have an unfettered right to have her father present during an Independent Medical Examination, and that the Administrative Law Judge did not abuse his discretion in determining that appellant failed to present a “compelling reason” why she could not submit to the examination without her father present. The Board also upheld the ALJ’s decision that appellant was not entitled to receive any benefits during the time of her noncompliance. The Court of Appeals affirmed, holding that upon request an ALJ has discretion to order deviations in IME protocol so long as the examinee demonstrates a “good cause” basis for the requested deviation. However, vague allegations of “general discomfort,” as offered here, are insufficient to show good cause. If the examinee has privacy concerns, she may request an ex parte communication with the ALJ or leave to file her concerns under seal. Finally, the Court held that benefits properly suspended under KRS 342.205(3) cannot be retroactively restored.


Click here for the AOC’s archived summaries of monthly published decisions for the Court of Appeals.

Click here for the monthly summaries of published decisions tagged in the Kentucky Court Report’s posts.

This month’s summary of published decisions:

Download (April2016.pdf, PDF, Unknown)

SC: June 2016 Monthly Summaries of Published Opinions and Attorney Disciplinary Actions from Supreme Court of Ky

A quiet month for SCOKY in the area of civil decisions relating to procedure, torts, and insurance, but there was a workers comp case noted with the usual other cases in criminal law etc.

Here are the June 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

No tort, insurance or civil decisions, but we had one published workers compensation case which I am including for your reading enjoyment.

Toyota Motor Manufacturing Kentucky, Inc. v. Jason Tudor, et al.

2015-SC-000381-WC June 16, 2016

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and Venters, JJ., concur. Wright, J., concurs in part and dissents in part by separate opinion in which Noble, J., joins. The ALJ found that Toyota failed to pay TTD benefits when due and that Toyota’s in-house physician misled Tudor about the true nature of his injury thus tolling Tudor’s statute of limitations. The Board and the Court of Appeals affirmed.

The Supreme Court vacated and remanded. As to the TTD issue, the Court noted that Tudor had not missed any time from work and that he had been paid at his usual rate. Because the Court recently rendered an opinion clarifying entitlement to TTD in such situations (Trane Commercial Systems v. Tipton, 481 S.W.3d 800 (Ky. 2016)), it remanded to the ALJ for further review consistent with that opinion.

As to whether Toyota misled Tudor, the Court noted the ALJ found that the in-house physician told Tudor he only had bulging discs when a radiologist’s report stated the discs were herniated. According to the ALJ, this amounted to misleading Tudor about his “true condition.” However, as the Court noted, a neurosurgeon agreed with the in-house physician’s assessment that the discs were only bulging. In that circumstance, the Court held the ALJ’s finding that Tudor “possibly” had herniated discs was not sufficient to support his finding that Toyota had misled Tudor about his true condition. In order to make a finding that Toyota misled Tudor about his true condition, the ALJ was required to definitively find what the condition was, not what it possibly was. The Court also noted that the ALJ made several other factual findings which were not supported by the record. Therefore, the Court remanded to the ALJ with instructions to review the evidence and make a determination as to Tudor’s true condition, to correct any factual misstatements, and to make findings accordingly. The Court did not foreclose the ALJ from ultimately reaching the same conclusion, as long as that conclusion was based on a correct reading of the record


Download (June2016.pdf, PDF, Unknown)

SC: May 2016 Monthly Summaries of Published Opinions and Attorney Disciplinary Actions from Supreme Court of Ky

Two tort and insurance decisions: affirmed award of punitives against hospital for violations of Emergency Medical Treatment and Active Labor Act; no notice of availability of UIM coverages required on renewals

Here are the May 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

Tort and insurance cases include:

  • Damages. Punitives.  EMTALA.

    Saint Joseph Healthcare, Inc., Etc. v. Larry O’Neil Thomas, Etc., et al.

    2014-SC-000008-DG May 5, 2016

    Opinion of the Court by Justice Venters. All sitting. Minton, C.J.; Hughes, Keller, Noble, Venters, and Wright, JJ., concur. Cunningham, J., concurs by separate opinion. Plaintiff, Estate of James Milford Gray, filed suit against Saint Joseph Hospital alleging that Gray died after the hospital’s emergency room employees and independent contractor physicians violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd (EMTALA) by twice releasing Gray from the hospital in a medically unstable condition. Issues presented: 1) Whether the conduct of the hospital staff, as shown by evidence at trial, justified an award of punitive damages; 2) Whether evidence at trial sufficiently proved that the hospital had ratified the conduct of the emergency room personnel, as required by KRS 411.184(3) for imputing punitive damages to their employer; 3) Whether the hospital is liable for EMTALA violations committed by independent contractor physicians employed at the hospital; 4) Whether the punitive damage award of $1.45 million was unconstitutionally excessive in light of the fact that the hospital’s share of compensatory damages was $3750.00; 5) Whether trial court abused its discretion by failing to remove sleeping juror. Held: 1) Evidence that emergency room discharged Gray from the hospital in severe pain, and had him removed from the premises in an ambulance, and then upon his return, left at unattended at a motel, and upon his second return released him again, still in pain, with threat of arrest of he returned supported an award of punitive damages. 2) Ratification under KRS 411.184(3) may be established by circumstantial evidence from which it may be inferred that the employer approved of employees tortious conduct. Threat of hospital’s Director of Emergency Room Services to have Gary arrested if he returned to the hospital was conduct explicitly ratifying the previous release of Gray by emergency room staff. 3) EMTALA places statutory duties on the hospital. The hospital does not escape liability for EMTALA violation committed by independent contractor physicians and other nonemployees affiliated with hospital to provide emergency room services. 4) An award of punitive damages “must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff” with “reasonableness” being the decisive measure.” There is no “mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case.” Factors include the reprehensibility of the conduct, the ratio of the punitive damages to compensatory damages, and applicable civil or criminal penalties. A punitive to compensatory damage ratio in excess of single digits may be justified when plaintiff’s circumstances warrant little by way of compensatory damages but tortious conduct of defendant was particularly egregious. Thus, the Supreme Court concluded that punitive damage award of $1.45 million despite compensatory ward of $3750.00 was not excessive. 5) Trail court did not abuse its discretion when it allowed sleeping juror to remain on the panel.

  • UIM.  Notice of UIM Benefits and Coverages.  Renewals.

    Allstate Insurance Company v. Craig T. Smith

    2013-SC-000732-DG May 5, 2016

    Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Cunningham, Hughes, Keller, Venters, and Wright, JJ., concur. Noble, J., concurs by separate opinion and states that in reality, the purchaser of insurance places reliance on the insurance agent selling a policy to provide information about available coverages, and there is no valid logic in requiring notice of available coverages on “first renewal” but not on the initial purchase of the policy, particularly here, when it was purchased before the prevalence of UM and UIM coverages.

    Smith suffered injuries in a motor vehicle accident and settled his injury claim with the adverse driver’s insurer for policy limits. Smith then submitted a UIM claim to his insurer, Allstate Insurance Company, claiming loss from injuries in excess of the amount recovered from the adverse driver’s insurer. Allstate denied the claim because Smith’s policy did not provide for UIM coverage and Smith sued Allstate for breach of contract and a declaration of rights as to UIM coverage. He also sought punitive damages for Allstate’s alleged bad faith in denying him UIM coverage. Allstate counterclaimed to have its rights declared under the policy. The trial court granted summary judgment in favor of Allstate because Smith had not paid a premium for UIM or requested UIM coverage.

    The Court of Appeals reversed the trial court’s judgment even though it rejected the bulk of Smith’s arguments, holding that Allstate had a duty under a specific provision of the MVRA to advise Smith of possible UIM coverage. The Supreme Court granted discretionary review and reversed the Court of Appeals, holding that Allstate was under no obligation to remind Smith of possible UIM coverage with each renewal of his policy. No such obligation has ever been imposed on an insurer and no provision of the MVRA alters this fact. Further, UIM is an option coverage to be requested by the insured and it must be mentioned by the insurer only when giving the insured “notice of first renewal.”

    Download (May2016.pdf, PDF, Unknown)

SC: March 2016 Monthly Summaries of Published Opinions and Attorney Disciplinary Actions from Supreme Court of Ky

Three tort decisions - statute of limitations in UIM cases; bullying and immunity regarding school teachers and administrators; discoverability and production by hospital of post-occurrence and peer-review process records in med-mal case.

Here are the March 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

Tort and insurance cases include:

  • UIM SOL.
    State Farm v. Riggs upholding the statute of limitations provisions in the State Farm policy corresponding to the tort statute of two years after the the MVA or last PIP payment, whichever is later, was reasonable.

    State Farm Mutual Automobile Insurance Company v. Lonnie Dale Riggs 2013-SC-000555-DG March 17, 2016

    Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Cunningham, Hughes, JJ., concur. Noble, J., concurs by separate opinion. Keller, J., dissents by separate opinion in which Venters and Wright, JJ., join. Riggs was injured in an automobile accident and sued the adverse driver for negligence. He settled the claim for the driver’s automobile-liability-insurance policy limits. Before dismissing the suit, Riggs asserted a claim against his own automobile liability insurer, State Farm, for underinsured motorist benefits (UIM). Riggs filed his UIM claim three years to the day after the date of the automobile accident. State Farm denied UIM liability because Riggs’s insurance policy contained a limitation provision that gave Riggs two years from the date of the accident or date of the last basic reparation benefit (BRB) payment, whichever occurred later, within which to make a UIM claim.

    The trial court granted summary judgment for State Farm but the Court of Appeals reversed, holding that the State Farm policy provision limiting the time for making the UIM claim was void because it was unreasonable. The Supreme Court reversed the Court of Appeals and reinstated the judgment of the trial court, holding that State Farm’s limitation provision was reasonable. The Court noted that the provision tracked nearly verbatim the two-year statute of limitations for tort claims found in Kentucky’s Motor Vehicle Reparations Act (KMVRA) and that two years was not an unreasonable period of time for an insured to discover whether a tortfeasor is underinsured or uninsured.

  • Bullying case and the application of immunity to teachers and administrators.

    Sheila Patton, as Administratrix of the Estate of Stephen Lawrence Patton v. David Bickford, et al.

    2013-SC-000560-DG March 17, 2016

    Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Hughes, Keller, Noble, Venters, and Wright, JJ., concur. Cunningham, J., concurs in result only. Stephen Patton was an eighth-grader at Allen Central Middle School (ACMS) when he committed suicide, allegedly because he was bullied at school. His estate filed suit against various teachers and administrators claiming they knew, or should have known, that Stephen was being bullied. The trial court granted summary judgment in favor of the defendants, ruling that they were entitled to the protection of qualified official immunity and that Patton’s suicide was an intervening cause interrupting any potential liability by the teachers and administrators.

    The Court of Appeals upheld the summary judgment solely on the intervening-cause issue. But the Court of Appeals disagreed with the trial court’s ruling on qualified official immunity, holding that neither the administrators nor the teachers were immune from liability because their duties were ministerial in nature.

    The Supreme Court affirmed the Court of Appeals’ result on different grounds. The Court agreed that the trial court erred when it ruled that the teachers were cloaked with qualified immunity but disagreed with the Court of Appeals regarding the administrators, holding that they were protected by qualified immunity and entitled to summary judgment on those grounds. Despite finding that the teachers were not immune from suit, the Court ultimately concluded that the trial court did not err by granting summary judgment because the Estate presented no credible evidence that Patton was bullied because the teachers were negligent either in their duty to supervise their pupils or their duty to handle bullying reports appropriately. As a result, the Court found no reason to address the issue of whether Patton’s act of suicide was an intervening cause.

  • Medical malpractice. Post-occurrence review and peer review records.

    Norton Hospitals, Inc., D/B/A Norton Hospitals v. Honorable Barry L. Willett, Judge, Jefferson Circuit Court, Division 1, et al.

    2015-SC-000606-MR March 17, 2016

    Opinion of the Court by Chief Justice Minton. All sitting; all concur. During the course of routine discovery in a medical negligence action, the plaintiff requested production from Norton of various hospital documents relating to patient safety. Norton argued the documents were protected under federal law but the trial court granted the plaintiff’s motion to compel Norton to produce the documents. The trial court then conducted an in-camera review of the documents and determined they were not privileged. Norton filed a petition for a writ of prohibition and a request for emergency relief in the Court of Appeals. The plaintiff then sought and received an emergency hearing with the trial court before the emergency hearing before the Court of Appeals could be scheduled. After hearing arguments, the trial court ruled that the disputed documents should be provided to the Estate and handed the copies of the disputed documents Norton had submitted for in-camera review directly to counsel for the plaintiff, in open court and on the record. The Court of Appeals later dismissed Norton’s writ petition as moot and Norton sought discretionary review before the Supreme Court.

    Noting that it had never dealt with similar conduct by a trial court, the Supreme Court held that the responsibility to produce documents lies with the parties and the parties alone. A trial court cannot itself participate in discovery and produce documents that a party alleges are privileged, especially in the face of a writ challenging the trial court’s determination that they are not privileged. The Court further held that Norton’s writ was not moot because relief could still be afforded, even if the disputed documents had been provided to the plaintiff.

Click here for the AOC’s archived summaries of monthly published decisions for the Kentucky Supreme Court.

Click here for the monthly summaries of published decisions of the Kentucky Supreme Court tagged in the Kentucky Court Report’s posts.

This month’s summary of published decisions:

Download (March2016-1.pdf, PDF, Unknown)

COA: July 1, 2016 Court of Appeals Decisions (Minutes)(528-550). 23 decisions posted with 3 of them designated “to be published”

PUBLISHED CASES - Complaint substantially complied with verfication requirement for unemployment compensation benefits; res judicata applied in state court following federal complaint; workers compensation claim reopened for worsening condition. NOT TO BE PUBLISHED - Pedestrian injured while leaning in window etc. was an "occupant" entitled to UIM benefits through the vehicle when struck and injured by another vehicle; two premises liability cases (dismissal affirmed holding Shelton v. Ky Easter Seal not apply; dismissal reversed after applying Carter v. Bullitt Host in snow and ice accumulation).

Here are the decisions announced and posted by the Court of Appeals in their weekly minutes.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.

533. Unemployment Benefits.  Substantial compliance with filing action for benefits.
Wilson v. Kentucky Unemployment Insurance Commission
Court of Appeals Published Opinion REVERSING and REMANDING Jefferson Cir Ct’s denial of unemployment compensation benefits because the complaint was not properly verified.  COA concluded applicant had substantially complied with the statute and reversed and remanded.

542 Res judicata and federal claim
Hashemian v. Louisville Regional Airport Authority
Court of Appeals Published Opinion AFFIRMING Jefferson Cir Ct summary judgment in favor or airport authority.  Appellant argues that the doctrine of res judicata does not apply in this case because the claims raised in the state action were not raised in the federal action and that the federal action was not complete. We disagree and believe the trial court properly granted summary judgment.

550.  Workers Compensation.
LKLP CAC Inc. v. Fleming
Court of Appeals Published Opinion AFFIRMING Workers Comp Board AFFIRMING ALJ’s reopening claim and finding worsening condition


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

532.  Underinsured motorist benefits. Coverage. Who is an occupant?
Jackson v. State Farm Fire and Casualty Co.
COA Not to Be Published Opinion REVERSING & REMANDING Graves Cir Ct summary judgment in favor of State Farm dismissing his complaint on basis he did not qualify for underinsured motorist benefits because he was not an “occupant” of a vehicle.

Immediately before the accident, Jackson was leaning his head into the passenger window of Doyle’s vehicle with his arms on the door. At the time of the accident, Jackson raised his head out of the window and had his hands on the passenger door when he was struck by Jones’s vehicle, which pushed him against Doyle’s vehicle.   Jackson applied for basic reparation benefits (BRB) from GEICO as a pedestrian and received those benefits. He also applied for and received liability benefits from GEICO in the amount of $25,000 which was the maximum available under its liability policy on the Doyle vehicle that hit Jackson. Jackson then filed suit against State Farm for UIM coverage claiming he was an “occupant” of Doyle’s vehicle under its policy. The State Farm policy defines “insured” as including “any other person while occupying a car that: (a) is owned by you [Doyle].” The policy states: “Occupying means in, on, entering, or exiting.”

Considering the facts most favorably to Jackson under an expansive interpretation of the State Farm policy, we conclude the trial court erred by determining as a matter of law that Jackson was not “occupying” Doyle’s vehicle: (1) there was a causal relationship or connection between where Jackson was located when he received his injury and the use of the insured vehicle; Hayes’s action of calling to Jackson, Doyle’s action of stopping his vehicle behind Jones’s vehicle, and Jackson conversing with Hayes through the open passenger window with his back to Jones’s vehicle put him in a vulnerable position behind her vehicle and the impact of the two vehicles resulted in his injuries from being pinned between them and hitting his head on Doyle’s vehicle; (2) Jackson was in reasonably close geographic proximity to Doyle’s vehicle because he was in actual physical contact with it when he was hit by Jones’s vehicle; (3) Jackson was vehicle oriented because he had his hands on the vehicle and was talking to Hayes through the window; and (4) Jackson was arranging a ride which was an essential transaction to enable him to use the vehicle as a passenger and, although paused, the vehicle was still being driven which is also an essential use of the vehicle.1 Therefore, the trial court erred in granting summary judgment to State Farm.

536.  Premises Liability.  Shelton v. Kentucky Easter Seals Not Applicable.
Phillips v. Touchstone Properties LLC
COA Not to Be Published Opinion AFFIRMING Fayette Cir Ct summary judgment dismissing premises liability claim

537.  Premises Liability.  Carter v. Bullitt Host applied in snow and ice accumulation.
Reed v. Weber
COA Not to Be Published Opinion REVERSING & REMANDING Kenton Cir Ct summary judgment dismissing tort claim against building owner


Download (MNT07012016.pdf, PDF, Unknown)

COA: June 24, 2016 Court of Appeals Decisions (Minutes)(514-527). 14 decisions posted with 4 of them designated “to be published”

PUBLISHED CASES - Boundard dispute evolving out of action to recover coal royalties; Cross examinatin of witness in criminal case over his visa application; Tax recall petition; motion to vacate conviction. NOT TO BE PUBLISHED - Duties and Foreseeability Over by police officers to others

Here are the decisions announced and posted by the Court of Appeals in their weekly minutes.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.

517.  Boundary Dispute.
Wells v. C.W. Hoskins Heirs
Court of Appeals Published Opinion REVERSING & REMANDING Leslie Cir Ct Finding of Fact, Conclusions of Law and Judgment in bench trial in action to recover coal royalties from ICG for mined coal and evolved into boundary dispute.

519.  Criminal Law.  Cross Examination re pending visa application.
Romero-Perez v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct where criminal defendant appealed claiming he was denied his constitutional rights to cross-examination and to present a defense during his trial because the trial court refused to allow him to question one of the alleged victims, Gabriela Delarosa, about her pending U-Visa application.

524.  Elections.  Tax Recall Petition.
The Petition Committee v. Board of Education of Johnson County
Court of Appeals Published Opinion and Order REVERSING & REMANDING & DENYING MOTION TO DISMISS APPEAL (case out of Johnson County)

527.  Criminal Law. Motion to vacate conviction.
Stanfill v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING Calloway Cir Ct Order denying defendant’s motion to vacate conviction.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

518.  Appeals (not preserving issue and conforming to CR 76.12(4)(c)(v)).  Torts (foreseeability of harm and special duty owed when releasing intoxicated person who injured others)
Cohorn v. Carcamo
COA Not to Be Published Opinion AFFIRMING Woodford Cir Ct Order dismissing claims of the estate for wrongful death


Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

Download (MNT06242016.pdf, PDF, Unknown)

SC: July 2016 – No Oral Arguments Scheduled this month before Ky Supreme Court

No arguments set for month of July 2016.

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

COA: July 2016 Oral Argument Calendar for Court of Appeals

Scheduled dates for oral arguments: July 12 (Frankfort); July 27 (Leitchfield)

Going to be a quiet month with only two arguments set for the month of July.  One at Frankfort; and the other in Leitchfield.

No summaries of the issues were included with these minutes.

But we do have a courthouse photo for you.

This is the third courthouse in Breckinridge County and is still standing.

The newest one is just around the corner.

 

Download (July2016.pdf, PDF, Unknown)

COA: June 17, 2016 Court of Appeals Decisions (Minutes)(486-513). 28 decisions; 7 published decisions

PUBLISHED DECISIONS - Jeweler held liable for conversion after dismantling a diamond ring he purchased from a burglar; quasi-judicial immunity applied to court-appointed expert sued for malpractice for opinions expressed in custody dispute; designation of beneficiaries for IRA vs. will examined; quiet title action gets busted for failure to include the record owners of property; incarcerated inviduals, sodomy and KRS 510.090(1)(e) the subject of a case from detention; school board loses tuition reimbursement claim again children who resided outside of district; insurer permitted recoupment of attorney fees from disability award in workers comp case. SELECTED NOT TO BE PUBLISHED DECISIONS - Order denying compulsory arbitration of nursing home wrongful death affirmed and Ping'ed; civil procedure and CR 54.02 and 60.02 examined in business dispute; another qualified immunity case.

First Bullitt County Courthouse, Shepherdsville, Ky. Completed in 1804 at a cost of $3150 by Henry Crist as a two-story 28 x 46 foot brick structure. It was toppeds by a cupola containing a bell cast in Philadelphia. It was replaced in 1901 by the current courthouse at a cost of $11,500.

A group of appointed Justices of the Peace held the first court in the home of Benjamin Summer, later in the home of John Speed who was paid by the court 45 1/2 pounds sterling. Discussions were held that a permanent building was needed with the first Bullitt County Courthouse, Shepherdsville being completed in 1804 at a cost of $3150 by Henry Crist as a two-story 28 x 26 foot and 32 feet high brick structure. It was topped by a cupola and belfry containing a bell cast in Philadelphia. It was replaced in 1901 by the current courthouse at a cost of $11,500. Cannot tell you where I found this image, but the history was taken from “History of Kentucky Courthouses” by Elizabeth Headley Garr.

 

Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.

487.  Torts. Conversion.
Jasper d/b/a Creative Touch Jewelry v. Blair
Court of Appeals Published Opinion AFFIRMING Whitley Cir Ct trial order and judgment in favor of Blair for $15,000 in compensatory damages for conversion of diamond ring that Jasper received which had been burgled from Blair

Conversion is an intentional tort and is generally defined as “the wrongful exercise of dominion and control over the property of another.” Jones v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 (Ky. App. 2014) (citations omitted). In this Commonwealth, the elements of the tort of conversion are set forth in Jones as follows:

(1) the plaintiff had legal title to the converted property;

(2) the plaintiff had possession of the property or the right to possess it at the time of the conversion;

(3) the defendant exercised dominion over the property in a manner which denied the plaintiff’s rights to use and enjoy the property and which was to the defendant’s own use and beneficial enjoyment;

(4) the defendant intended to interfere with the plaintiff’s possession;

(5) the plaintiff made some demand for the property’s return which the defendant refused;

(6) the defendant’s act was the legal cause of the plaintiff’s loss of the property; and

(7) the plaintiff suffered damage by the loss of the property.

Jones, 454 S.W.3d at 853 (quoting Ky. Ass’n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 632 n.12 (Ky. 2005)).

494.  Child custody.  Quasi-judicial immunity for court-appointed expert’s opinion testimony in subsequent malpractice claim
Dr. David Feinberg v. Robin Keeton
Court of Appeals Published Opinion REVERSING Carter Cir Ct Order denying quasi-judicial immunity of court-appointed psychologist opinion testimony in child custody determination.

Here, the circuit court appointed Dr. Feinberg to give his recommendation as to the parental fitness of Keeton and Yates based on his interviews and psychological tests. Dr. Feinberg served in this capacity and offered his opinion, subject to cross-examination, for the circuit court to consider before making a final custody determination. Therefore, Dr. Feinberg was entitled to quasi-judicial immunity for his services, and the complaint must be dismissed. The decision of the Carter Circuit Court is reversed.

495.  IRA. Beneficiary designations.
Haste, Exector of Estate of David Peck v. The Vanguard Group, Inc.
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct summary judgment awarding IRA to beneficiaries designated on account following changes after spouse died.

500.  Quiet title.  Failure to include record owners in action.
Gilland v. Dougherty
Court of Appeals Published Opinion REVERSING and REMANDING Nelson Cir Ct order and judgment in quiet title action for failure to include record owners of property in action.

505.  Criminal Law.
Buckler v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING Carter Cir Ct

Sodomy in the third degree prohibits, among other things, subjecting incarcerated individuals to deviate sexual intercourse. KRS1 510.090(1)(e). The issue we must decide in this case is whether the Carter Circuit Court erred in overruling Earl Buckler’s pretrial motion to dismiss indictment on the grounds that as a deputy sheriff with the Carter County Sheriff’s Department transporting prisoners to and from a detention facility to the justice center, the terms of the statute did not apply to him. We hold that the trial court did not err, and therefore affirm the trial court’s judgment.

508. Schools.  Tuition.
Beechwood Board of Education v. Wintersheimer
Court of Appeals Published Opinion AFFIRMING Kenton Cir Ct order that family did not owe school board for two years tuition for children who did not reside in the Beechwood school district.

510.  Workers Compensation.  Attorney fees.
Mullins v. Leggett & Platt
Court of Appeals Published Opinion AFFIRMING Workers Comp Board affirming order of ALJ who concluded employer’s workers compensation carrier could reduce Mullins’ permanent partial disability benefit to recoup the present day value of the lump sum payment of attorney fees.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

486.  Arbitration.
Kindred Nursing Centers Limited Partnership v. Kleckner
COA Not to Be Published Opinion AFFIRMING Boyle Cir Ct order denying Kindred’s motion to compel arbitration of claims  related to the decedent’s stay at Kindred nursing facility in Danville.  Kindred argued that Ping was not dispositive regarding power of attorney language (“full power . . . to draw, make and sign any and all checks, contracts or agreements; . . . to institute or defend suits concerning my property or rights[.]”

496.  Civil Procedure.  CR 54.02 vs. CR 60.02.
Barrister Construction v. Rouck Plumbing Co.
COA Not to Be Published Opinion VACATING and REMANDING Jefferson Cir Ct.

In Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008), the Kentucky Supreme Court stated, “In any case presenting multiple claims or multiple parties, CR 54.02, like FRCP 54(b), vests the trial court —as the tribunal most familiar with the case—with discretion to ‘release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions.’” Id., citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).

In the instant case, the trial court’s July 2, 2012, and October 23, 2013, orders were not designated as final and appealable, and the underlying contract and damages claims were still pending before the court. Those orders, unlike the default judgment in Asset Acceptance, were interlocutory in nature and subject to revision or vacation by the trial court pursuant to CR 54.02(1) at any time prior to final judgment of all the claims. Because CR 60.02 applies to final judgments, and the orders the trial court set aside were not final and appealable, the trial court improperly evaluated Rouck’s claims for relief under that rule. We again emphasize that during oral arguments, Rouck’s counsel conceded he filed for relief under the wrong rule, and Barrister argued that it had not had an opportunity to present its arguments to the trial court under CR 54.02. Thus, we remand for a determination under CR 54.02 as to whether Rouck is entitled to the relief it requests.

Based on the foregoing, we vacate the Jefferson Circuit Court’s January 5, 2015, order and remand for consideration 54.02.

497. Qualified immunity
Kelso v. Allen
COA Not to Be Published Opinion AFFIRMING Lee Cir Ct order denying motion to dismiss complaint on qualified immunity to individual defendants and other grounds regarding medical treatment provided.  Government agencies were dismissed.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

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