COA: July 3, 2014 Court of Appeals’ Decisions (588-609) – Re: taxation for 911 services; qualified official immunity in police arrest; relation back of amendments and estoppel arguments rejected in statute of limitations dismissal of complaint

This week’s Court of Appeals decisions numbered 590-609 (no 598, 599),  with 20 decisions; 1 of which has been designated “to be published”.  COA addressed taxation for 911 services; qualified official immunity in police arrest; relation back of amendments and estoppel arguments rejected in statute of limitations dismissal of complaint.

Stone Fence Row running along the Paris Pike, Bourbon County, Kentucky. Color picture, but looks almost black and white. Photo by Michael Stevens, 4/2/2014.

Stone Fence Row running along the Paris Pike, Bourbon County, Kentucky. Color picture, but looks almost black and white. Photo by Michael Stevens, 4/2/2014.

The published decisions for July 3, 2014 with name, link to full text, and key issues are:

606.  Revenue & Taxation.  COA reversed and remanded summary judgment dismissing city’s suit against county opposing water meter tax to fund 911 emergency phone services in county of Garrard.
City of Lancaster, Kentucky vs. Garrard County, Kentucky

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law.

596.  Qualified official immunity and police arrest.
Matt Jones vs. Larry Bennett, Russell County Sheriff
COA Not Published 7/3/2014
Affirming trial courts summary judgment dismissing complaint against individual police officers under qualified official immunity.

Immunity from suit is not only available to a state, but “…also  extends to public officials sued in their representative (official) capacities…” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001). Qualified official immunity is an affirmative defense that must be specifically pled. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).

Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity… Similarly, when an officer or employee of a governmental agency is sued in his/her representative capacity, the officer’s or employee’s actions are afforded the same immunity, if any, to which the agency, itself, would be entitled… But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. 63C Am.Jur.2d, Public Officers and Employees, § 309 (1997). Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment, Id. § 322; (2) in good faith; and (3) within the scope of the employee’s authority. Id. § 309; Restatement (Second) Torts, supra, § 895D cmt. g.

Yanero, supra, at p. 521.

In determining whether a government official is entitled to qualified immunity, a court must look at the alleged facts to see whether the defendant’s actions are discretionary or ministerial. “[W]e have continued to recognize the distinction between discretionary and ministerial acts and have held that the wrongful performance of a ministerial act can subject the officer or employee to liability for damages. Kea–Ham Contracting, Inc. v. Floyd County Dev. Auth., Ky., 37 S.W.3d 703 (Ky. 2000).” Yanero, supra at pp. 523.

[A]n act is not necessarily taken out of the class styled “ministerial” because the officer performing it is vested with a discretion respecting the means or method to be employed.

Franklin County, Kentucky v. Malone, 957 S.W.2d 195, 201 (Ky. 1997) (quoting Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959)). “[I]n the final analysis, the decision as to whether a public official’s acts are discretionary or ministerial must be determined by the facts of each particular case…” Caneyville Volunteer Fire Dept. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790 (Ky. 2009).

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COA: June 27, 2014 Court of Appeals’ Decisions (558-587) – Re: PIP carrier’s use of medical doctors to review chiropractors; absolute immunity and qualified immunity of county road supervisors

This week’s Court of Appeals decisions numbered 558-587,  with 30 decisions; 3 of which have been designated “to be published”.  COA addressed PIP carrier’s use of medical doctors to review chiropractors; absolute immunity and qualified immunity of county road supervisors.   The published decisions for June 27, 2014 with name, link to full text, and key issuesContinue ReadingContinue Reading

COA: June 20, 2014 Court of Appeals’ Decisions (537-557) – Re: another post-Shelton remand back to the trial court on the open and obvious issue in an ice in the parking lot case; affirmed trial court’s order denying “John Doe” subpoena against internet provider for identity of defaming party; affirmed denial of nursing home’s motion to compel arbitration of a springing durable power of attorney

This week’s Court of Appeals decisions numbered 537-557,  with 21 decisions; 5 of which have been designated “to be published”.  COA addressed another post-Shelton remand back to the trial court on the open and obvious issue in an ice in the parking lot case; affirmed trial court’s order denying “John Doe” subpoena against internet provider forContinue ReadingContinue Reading

COA: June 13, 2014 Court of Appeals’ Decisions (505-536) – Re: Legal malpractice and Statute of Limitations; Dismissal of appeal for deficient brief; police immunity; child abuse reporting immunity; Post-Shelton Premises Liability; Bad Faith’s “evil motives” and jury question

This week’s Court of Appeals decisions numbered 505 through 536,  with 32 decisions; 6 of which have been designated “to be published”.  COA addressed  Legal malpractice and Statute of Limitations; Dismissal of appeal for deficient brief; police immunity; child abuse reporting immunity; Post-Shelton Premises Liability; Bad Faith’s “evil motives” and jury question.    The published decisions for June 13, 2014Continue ReadingContinue Reading

COA: June 6, 2014 Court of Appeals’ Decisions (484-504) – Re: Qualified immunity and Lou Zoo Train Crash; “Owned but not scheduled” vehicle exclusion for UIM is “no go”; discovery rule for legal malpractice SOL; and attorneys, loans

This week’s Court of Appeals decisions numbered 484 to 504,  with 21 decisions; 4 of which have been designated “to be published”.  COA addressed the consolidated appeal in the Louisville Zoo train accident involving issues of sovereign and qualified official immunity of zoo director and others in personal injury claim;  the proper and timely filing of aContinue ReadingContinue Reading

COA: May 30, 2014 Court of Appeals’ Decisions (458-483)

This week’s Court of Appeals decisions numbered 458-483 with 26 decisions; 5 of which have been designated “to be published”.  COA addressed government budgetary furloughs, Retired Justice Graves’ expert testimony in will contest, indemnity, attorney lien, and Post-Shelton premises liability for a McDonalds’ icy parking lot… and more. The published decisions for week of May 30, 2014Continue ReadingContinue Reading

COA: May 23, 2014 Court of Appeals’ Decisions (437-457)

This week’s Court of Appeals decisions numbered 437-457 with 21 decisions; 6 decisions to be published. The published decisions can be directly accessed as follows: 415.  Chou vs. Chilton (real party in interest; LLC dissolution; breach of fiduciary duties, covenant of good and fair dealing; misrepresentation; misappropriation of funds) 439. Smith vs. Smith (marital property distribution; child supportContinue ReadingContinue Reading

FREE OnLine Webinar on July 17, 2014 — “The 4 Most Important Webpages In Your Business, And How To Tweak Them To Triple Your Revenue In The Next 12 Months” with Amy Porterfield and Tim Paige

For those of you interest in picking up some free information on on-line marketing, content management systems, social media from those in the know, I am sharing an email I received from Amy Porterfield.  She focuses on the Facebook context, but offers much, much more help for marketing the business.  All you need to doContinue Reading

DEFENSES: Qualified Official Immunity, Ministerial vs. Discretionary, County Roads, Fiscal Court & Road Forman, & Design, repairs and maintenance. Estate of Megan Morris vs. Tony Smith (COA,Published 5/9/2014)

A detailed analysis was undertaken by the Court of Appeals addressing responsibilities and duties of the fiscal court and county road official for the operation and maintenance of county roads within the context of official immunity and individual liability with a focus on discretionary acts (immune) and ministerial acts (not so immune). 421.  Official Immunity.Continue Reading

COA: May 16, 2014 Decisions for the Week from Court of Appeals (415 – 436) (official immunity’s discretionary vs. ministerial functions in county road maintenance; arbitration clause and Ping)

  This week’s Court of Appeals decisions numbered 415-436 with 22 decisions; 6 decisions to be published. The published decisions can be directly accessed as follows: 415.  B.B., A child under 18 vs. Commonwealth of Kentucky 421.  Estate of Megan Morris v. Tony Smith (official immunity, county roads). 429.  Wood vs. Commonwealth of Kentucky 432.  Kindred Healthcare vs. RickContinue Reading

COA: JULY 2014 Kentucky Court of Appeals Argument Calendar

The complete Kentucky Court of Appeals schedule for oral arguments in July 2014 with dates, locations, counsel, issues, etc. can found by clicking here for a direct link to the PDF at the Administrative Office of the Courts or by just scrolling down the page! Arguments are set for Shepherdsville on July 22 and Louisville on JulyContinue Reading

KBA: 2014 Annual Convention at Covington

June 18-20, 2014Northern Kentucky Convention CenterOne West RiverCenter Blvd.Covington, Kentucky  41011

SCOKY: June 11 & 12, 2014 Oral Argument Calendar

The Kentucky Supreme Court has scheduled oral arguments in the Capitol at Frankfort on June 11 & 12, 2014 (yes, I am tardy on this one! But here are the materials for archiving purposes). Click here for link for this month’s argument calendar posted at the official pages of the Administrative Office of the Courts (AOC). Click here for linkContinue Reading

COA: June 2014 Kentucky Court of Appeals Argument Calendar

The Court of Appeals has posted it calendar for oral arguments for the month of JUNE 2014.    The complete calendar with dates, locations, counsel, issues, etc. is below with a direct link to the PDF and a copy within this post. Arguments are set for Stanford on June 10; Newport on June 16;  Frankfort onContinue Reading

In Memoriam: Retired Justice James Keller (1942-2014)

The Kentucky Court of Justice was sorry to learn of the passing of Supreme Court Justice James E. Keller (ret.), who lost his battle with cancer this afternoon, June 2. Justice Keller was 71. There will be a memorial service on Saturday, June 7, 2014, at 2 p.m., at Kerr Brothers Funeral Home at 3421Continue Reading

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