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

Here are the August 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.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Only one insurance decision – underinsured motorist benefits.

Countryway Insurance Company v. United Financial Casualty Insurance Company, et al.

2014-SC-000265-DG August 25, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. Auto insurers both providing uninsured motorist coverage to a person injured while a passenger in vehicle owned by another raised a priority issue in the trial court. That court resolved the issue by ruling that the companies’ competing “other insurance” clauses cancelled each other out and left the companies jointly liable on a pro-rata basis. Reversing, the Court of Appeals ruled that primary liability rested with the passenger’s personal carrier. Reversing the Court of Appeals, the Supreme Court held, in accord with Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803 (Ky. 2010), that the Motor Vehicle Reparations Act implicitly fixes primary uninsured motorist coverage on the vehicle owner’s insurer.

Here are all the summaries with link to full text of the published cases for this month:

August2016

COA: January 6, 2017 Court of Appeals Decisions (Minutes)(1 through 23)(5 opinions designated to be published)

The Court of Appeals posted  23 decisions this week, numbered 1 through 2 with 5 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.

3.  Lien Priority on Property
Hays v. Nationstar Mortgage LLC
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir. Ct.

STUMBO, JUDGE: Carroll L. Hays appeals from an In Rem Judgment and Order of Sale rendered by the Jefferson Circuit Court. Hays argues that the Court improperly applied Kentucky Legal Sys. Corp. v. Dunn, 205 S.W.3d 235 (Ky. App. 2006), to determine that the lien of Plaintiff/Appellee Nationstar Mortgage LLC is superior to a prior Judgment Lien filed by Hays. Finding error, we REVERSE AND REMAND the Order on appeal.

11.  Qualified Official Immunity for School Official’s Discretionary Acts
Turner v. Ritchie (this link has been corrected. link in minutes is broken)
Court of Appeals Published Opinion REVERSING AND REMANDING Breathitt Cir. Ct.

J. LAMBERT, JUDGE: Interlocutory appeal taken by officials in the Breathitt County school system from trial court order denying their request for qualified official immunity in their individual capacities. Having carefully considered the record and the applicable case law,  COA held  their actions were discretionary and that they were entitled to qualified official immunity.   School officials failed to report to law enforcement sexting and inappropriate text message between male school teacher and several of his students.  The teacher later pled guilty to rape, sodomy, sexual abuse, and distribution of pornographic images to minors, and he assumed that this was all related to  only one of students.  A civil suit was filed on behalf of the female student against the school officials for negligence; negligent hiring, training, supervision, and retention; violation of a special relationship; violation of the Restatement (Second) of Torts § 314A; negligent and intentional infliction of emotional distress; violation of §§ 1-3 of the Kentucky Constitution; and breach of contract.  At the relevant times in the matter before this Court, Breathitt County Schools had in place policies addressing the supervision of students.

12. Premises Liability.
McCoy v. Family Dollar Store of Kentucky
Court of Appeals Published Opinion AFFIRMING Martin Cir Ct

McCoy filed a complaint on May 13, 2014, seeking $1,312,327.46 damages from Family Dollar and R&J for injuries she sustained when she tripped on a wheel stop and fell in the parking lot of the Family Dollar store in Inez, Kentucky.  Family Dollar was a tenant with another Defendant the landlord who constructed the parking lot.   There was testimony that the wheel stops were marked yellow when built and unchanged until the fall.

First, the plaintiff’s expert’s report was never properly before the trial court.  Second,

“We agree with Family Dollar and R&J that the circuit court properly held that their duty of care was not breached by the presence of the wheel stop in the parking lot. The wheel stop was not defective or damaged, and it did not create an unreasonably dangerous condition necessitating the need to warn any invitees about, or correct, the condition. There was no evidence in the record that wheel stops were unreasonably dangerous, and McCoy failed to place into evidence any testimony, an affidavit, or even a report establishing this assertion. Accordingly, no duty arose on the part of either Family Dollar4 or R&J to warn McCoy or to correct the condition, and there is no evidence that the injury McCoy sustained was foreseeable. Additionally, McCoy testified that she was not distracted and that there was nothing slick or any debris in the parking lot. Therefore, the circuit court did not commit any error as a matter of law in granting summary judgment and dismissing McCoy’s complaint.”

16.  Nursing Home Admission and Mandatory Arbitration Agreement
Diversicare LeasingCorp. v. Adams, Executor of Est. of Pearl Adams
Court of Appeals Published Opinion AFFIRMING Elliott Cir Ct.
COA held  the circuit court properly declined Diversicare’s request to reform Readmission Agreement 2 to incorporate an earlier admission agreement that contained an arbitration clause. It is purely speculative as to which document was meant to be incorporated into Readmission Agreement 2, be it one of the earlier admission agreements or an admission agreement dated November 29, 2006, which was never produced. Because Diversicare was unable to establish with any certainty which document was intended to be incorporated by reference in Readmission Agreement 2 and because the admission agreement did not otherwise contain an arbitration clause, we must hold that the circuit court did not err as a matter of law in declining to enforce an arbitration agreement purportedly referenced in an unspecified document.

17.  Wrongful death. 911 Dispatcher.  Duty of public official and relationship test.
McCuiston, Adm’or of Est. of Joyce McCuiston v. Butler
Court of Appeals Published Opinion AFFIRMING Henderson Cir Ct

Ms. McCuiston can appropriately be classified as a member of the general public with whom Butler interacted as a 911 dispatcher. Without a special relationship, Butler’s action fell under the “public duty” doctrine, which does not make public officials guarantors of public safety with a universal duty of care to protect the general public from harm or accident. Butler did not establish a “special relationship” with Ms. McCuiston, and therefore, he did not have a duty of care to her and was protected from liability by the public duty doctrine. Without any legal duty, there can be no wrongful death action. Although Ms. McCuiston’s death is a tragedy, it is not one for which Butler or the City of Henderson can be held liable.

Having determined that Butler had no special relationship with Ms. McCuiston, and thus, cannot be liable in a wrongful death action, the remaining issues are rendered moot.


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure

2.  Peremptory challenges and involuntary plaintiff.
Cayce v. Sumner
COA Not to Be Published Opinion AFFIRMING Christian Cir. Ct.

“The Court of Appeals should not substitute its judgment for that of the trial judge in determining whether antagonistic interests exist for the purpose of awarding peremptory challenges in the absence of an abuse of discretion.” Sommerkamp v. Linton, 114 S.W.3d 811, 814-15 (Ky. 2003). “On appeal, the question is not whether the reviewing court would have decided the issue differently, but whether the findings of fact are clearly erroneous, the opposite result is compelled or the trial judge abused his discretion.” Id. at 815 (citations omitted). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Although Sommerkamp concerned medical negligence and co-defendants, the factors are illustrative for our purposes.

Generally, there are three elements to be considered in determining if coparties have antagonistic interests.
They are 1) whether the coparties are charged with separate acts of negligence; 2) whether they share a common theory of the case; and 3) whether they have filed cross-claims. Additional important factors are whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment. All of these factors are to be weighed by the trial court in determining if the defendants have antagonistic interests and thus are entitled to separate peremptory challenges.

In the case at hand, Ms. Gonzales and Ms. Sumner pled different tort claims than Ms. Wasson and these parties were represented by separate legal counsel. Also, the court found as relevant that the Cayces would only have a finite amount of personal resources to use to satisfy any judgment entered against them individually; therefore, some parties might not be able to recover any damages. We agree with the trial court that these factors indicate that Ms. Gonzalez and Ms. Sumner had antagonistic interests against Ms. Wasson at the time of jury selection, thereby justifying the allocation of separate peremptory challenges.

13.  Heirs bound by estates property settlement.
Sullivan v. McCown
COA Not to Be Published Opinion AFFIRMING Pike Cir Ct.

20.  Failure to have experts in med mal case result in dismissal by court and affirmed on appeal.
Hall v. Harreld
COA Not to Be Published Opinion AFFIRMING Jefferson Cir Ct

22. Statute of limitations expired in claim again home inspector
Rabe v Frohn
COA Not to Be Published Opinion  AFFIRMING Boone Cir Ct.


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  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.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

For the index to archived minutes at the official AOC page, then click here.

MNT01062017

COA: January 2017 Oral Argument Calendar for Court of Appeals

Dates: Jan. 27 & 27, 2017

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY. And here is a link to the AOC page containing their index to all Court to Appeal oral argument calendars. with names, litigants, issues, and the dates/times/locations for each argument – Oral Arguments Calendar.

Some issues for the month of January 2017 are:

*1. Property restrictions on rental property-did the trial court err by finding the weekly and nightly rentals of property violated the applicable property restrictions. 2. Permanent injunction entered. 3. Did circuit court improperly dismiss harassment claim

*Appeal from grant of summary judgment. Did the court err in holding that Appellant’s former law firm was his alter-ego and that Appellant remained in control of the entity?

*Appeal from Circuit Court order reversing BOL’s penalty as issued by the BOL. Issue is whether BOL erred failing to grant a hearing and arguments as directed by Supreme Court in remanding the matter on its first appeal.

* Whether the trial court erred when it granted summary judgment in favor of Appellees and dismissed Appellant’s claim that tAppellees violated the garnishment order served each of them.

* Appeal of circuit court order granting summary judgment to Appellees in an action for damages cause to Appellant while shopping for a horse.

* Whether the trial court properly overruled the Appellant’s motion for summary judgment based on the “up the Ladder” immunity which the Appellant claims.

* Whether circuit court properly rendered summary judgment interpreting a reservation in a deed as including oil and gas mineral rights.

*  Whether circuit court erred by dismissing appellant’s claim as time-barred.

January2017

Gerry Spence: “Art, Life and the Law” Part Ii from the Wyoming Chronicle

Also a little on the Trial Lawyer's College

The story of the lawyer who could not lose. In part one of our interview with Gerry Spence, host Richard Ager speaks with Spence about his life and famous cases and with 50 attorneys from around the country who are enrolled in Spence’s Trial Lawyer’s College located outside Dubois, Wyoming. Be prepared to be surprised by some of the teaching methods at the college.

“Find Your Passion”, A TEDx Video Talk by Gerry Spence

Gerry Spence is not just an awesomely successful trial lawyer, but a true believer in justice, the jury system, and fighting to protect the people.

Famed trial attorney and Founder of the Trial Lawyers CollegeGerry Spence, knows a little about passion. Passion for life. Passion for a cause. A “passion for fighting for the people.”

Here is a share of a video, I found today about his TEDx talk at TEDxJacksonHole. There are more talks on “passion” and other topics [http://www.tedxjacksonhole.org]; but his talk on passion addresses justice, trial lawyers, and providing a voice to the powerless in his fight for the people and representing the less fortunate against the rich and powerful.

I supply this post because Gerry is an excellent speaker even after all these years and at this age. He’s a motivation speaker on justice and trial lawyers.

I had the privilege a few years back to meet him and speak with him. I even have a picture taken with him when we were both a little younger.

But consistent with this post is a little more on the motivational side of the house at the beginning of a new year. The beginning of a new year with a host of resolutions. And an end of year when we look back and reflect. A time to look to the future and see where and what we want to be and how we wish to get there, be there, and stay there.

Every business should have a “noble purpose”. Something more than making money, but covers your passion. By passion, I am not talking about the common meanings associated with love and ardor for a person, but a less common meaning. A meaning used often but not sure exactly what it means. By the way, “noble purpose” is not my slogan. It was key to a book by Lisa Earle McLeod whose web page with more details on her books is http://www.mcleodandmore.com/…/noble-purpose-strategy-not-…/. BTW this is a link to her about page which summarize what I am saying. You can figure out in more detail why I feel this is a fitting post at the start of 2017.

What is your passion in life? That which is a strong enthusiasm for something or anything that means something to you. My added point to this is do you have a passion that energizes you, brings that smile, puts pep in that step? Few do…. Many want.

#GerrySpence#TedXJacksonHole#TortReform

And as Thomas Jefferson so eloquently stated – “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

This video on passion and trial warriors protecting each of us from the powerful is an eloquent and persuasive argument against voting away your right to a jury trial and the protection if afford your family and friends and others for the putative promise of saving a few pennies on your insurance premiums and a few more bucks for your doctors.

COA: December 22, 2016 Court of Appeals Decisions (Minutes)(1021 to 1047)(6 opinions designated to be published)

PUBLISHED CASES -- legal malpractice claim not tolled pending collateral attack on criminal conviction; UIM and choice of law case; tort of negligent misrepresentation case; retroactive application of criminal statute; de facto custody and joint custody addressed in same case; appellant response to show cause to name indispensable party on appeal not good enough. NOT PUBLISHED CASES re Torts --- Challenges for cause, preserving error, and using perempts; long term care claims for failure to give notice of moving patient; newspaper delivery car and real owner plus employee vs independent contractor issues.

The Court of Appeals posted  27 decisions this week, numbered 1021 through 1047 with 6 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.

1023.   Torts.  Legal Malpractice.  Statute of Limitations and Tolling.
Applegate v. Dickman Law Offices, PSC
Court of Appeals Published Opinion AFFIRMING Kenton Cir. Ct.
Affirmed trial court’s dismissal of legal malpractice claim against his lawyer following criminal representation with court holding that the collateral attack on the criminal conviction does not toll the statute of limitations of the civil action for malpractice.

1025.  Insurance.  Choice of law.  UIM Coverages.
Lacrosse v. Owners Insurance Company
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING AND REMANDING Calloway Cir. Ct.

VANMETER, JUDGE: Carl M. LaCrosse appeals from the Calloway Circuit Court’s order granting summary judgment in favor of Owners Insurance Company (“Owners”) and Progressive Northern Insurance Company (“Progressive”). Owners cross-appeals. In this case we must decide whether, under Illinois law, the failure of an insurance company to provide evidence of a written rejection of underinsured motorist (“UIM”) coverage in an amount equal to the bodily injury liability limits renders the policy declaration amounts of UIM coverage equal to the declared liability limits under 215 ILCS1 5/143a-2. We must also decide whether Kentucky public policy prohibits the set off of UIM benefits with collateral sources, including liability coverage from the tortfeasor, workers’ compensation benefits, and no-fault benefits. For the following reasons, we affirm in part, reverse in part and remand.

1032.  Torts.  Negligent Misrepresentation.
Wilburn, Inc. v. K. Norman Berry Associates, Architects, PLLC
Court of Appeals Published Opinion REVERSING AND REMANDING Oldham Cir. Ct. Summary Judgment in favor of Norman Berry Associates

The issues presented are: (1) whether Wilburn can maintain a claim for negligent misrepresentation based on allegations that KNBA failed to properly prepare plans and specifications, and otherwise obtain permit approvals; (2) whether Wilburn’s claim for purely economic loss against KNBA is barred by the economic loss rule; and (3) whether change orders and an application for final payment approval preclude Wilburn’s claim against KNBA based on waiver or release. We conclude Wilburn has alleged facts sufficient to sustain a claim for negligent misrepresentation and that the economic loss rule does not apply. We further hold that Wilburn’s claim is not barred based on waiver or release.

1037.  Criminal Law.  Retroactive application of change in law.
Pomeroy v. Commonwealth of Kentucky
Court of Appeals Published Opinion REVERSING AND REMANDING Campbell Cir Ct

Ryan Pomeroy was charged with first-degree possession of a controlled substance and possession of drug paraphernalia for acts committed on December 21, 2014. He filed a motion to dismiss the indictment on the basis of Kentucky Revised Statutes (KRS) 218A.133(2), effective March 25, 2015, which provides that a person shall not be charged with or prosecuted for possession of a controlled substance or possession of drug paraphernalia when medical attention is required to assist with a drug overdose. The trial court denied the motion ruling that KRS 218A.133(2) could not be retroactively applied.

The fact that the controlled substances and drug paraphernalia were found while the officer was responding to a call for medical assistance for Pomeroy’s drug overdose is not a defense to the charges but precludes prosecution on the charges. The statute creates “a new exception to the general rule that trial courts may not dismiss indictments prior to trial.” Id. at 753. By stating that “[a] person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia[,]” KRS 218A.133(2), the General Assembly created an immunity from prosecution. It is a “new procedural bar to prosecution” and one that applies retroactively. Rodgers, 285 S.W.3d at 753.

REVERSED and REMANDED.

1044.  Family Law.  De facto custodian, joint custody. Interlocutory appeal.
Cherry v. Carroll
Court of Appeals Published Opinion REVERSING and REMANDING  Wayne Cir Ct.

NICKELL, JUDGE: Charles Cherry, the biological father of three minor boys, appeals the Wayne Circuit Court’s designation of Stacy Randall Carroll, the children’s maternal grandfather, as de facto custodian and the award of joint custody to him and Carroll. This appeal presents two questions. Whether an award of de facto custodian status is interlocutory and whether a court may designate a person a de facto custodian solely because the Cabinet for Health and Family Services (CHFS) placed a child with him. For reasons expressed below, we deem this appeal properly before us and hold the trial court erroneously designated Carroll a de facto custodian when the three children, all over the age of three—had lived with him less than seven months rather than the year required by KRS2 403.270(1)(a). Reversal and remand for an appropriate order are necessary. [Amanda Taylor is the natural mother of the three minors in this appeal. She is not a party to the appeal and did not appear—neither personally nor by counsel—in the trial court proceedings. As of March 9, 2015, she was in a residential drug recovery program in Lexington, Kentucky, and had rarely seen her sons. She has three other children of whom she does not have custody.]

1047.  Appeals.  Failure to name indispensable party.
Fink v. Fink
Court of Appeals Published Opinion and Order DISMISSING Jefferson Cir Court

VANMETER, JUDGE: On September 15, 2016, this Court directed James Michael Fink, the appellant, to show cause why this appeal should not be dismissed for failing to name an indispensable party to this appeal. On September 30, 2016, James filed a document titled “Appellant’s Motion to Amend Notice of Appeal and Response to the September 15, 2016 Show Cause Order,” and tendered an Amended Notice of Appeal. Elizabeth Fink, the appellee, did not respond to the show cause order. [1 When final disposition of an appeal is made by an “Opinion and Order,” as in this case, the party adversely affected may move for reconsideration as provided by CR 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).]

After considering James’ response to the show cause order and having been otherwise sufficiently advised, this Court fails to find sufficient cause. The motion to amend the notice of appeal is denied and the appeal is dismissed.

 


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

1021.  Trial.  Jurors.  Challenges for cause, preserving the objection, and using peremptory challenges.
Jackson v. Roland Wall, CRNA
COA Not to Be Published Opinion AFFIRMING Warren Cir Ct

VANMETER, JUDGE: Patricia and Richard Jackson appeal from a jury trial in the Warren Circuit Court. The Jacksons argue that the several jurors in their trial should have been excused for cause, and that they had to exercise peremptory strikes to excuse those jurors. Because we hold that the Jacksons waived any objection concerning the one juror who sat on the jury, and that their objections concerning the jurors who did not sit on the jury were not preserved, we affirm.

1038.  Torts.  Foreseeability.  Nursing home liability under statute regarding long term patient rights. Summary judgment premature.
Wilson, Adm’trix of the Est. of Chester Gray v. Spring View Health & Rehab Center
COA Not to Be Published Opinion AFFIRMING IN PAERT, REVERSING IN PART, AND REMANDING Grayson Cir Ct.
In case where nursing home resident was being transferred by ambulance for inpatient psychiatric evaluation, she was dropped and injured by the EMTs.  A complaint was filed against the the nursing home (Springview) and the ambulance.  Mr. Gray died later, an estate was opened, and the suit was timely revived.

The court found there was no foreseeability by the nursing home regarding the fall which was a superseding cause which is an issue  of law for the court, and further discovery would not be helpful.

However, the COA agreed that the trial court erred in granting summary judgment on the KRS 216.515 claim regarding patient in long term care facility and their rights and a cause of action for those rights.  Specifically section (4) provides that ”

The resident shall be transferred or discharged only for medical reasons, or his own welfare, or that of the other residents, or for nonpayment, except where prohibited by law or administrative regulation.

Reasonable notice of such action shall be given to the resident and the responsible party or his responsible family member or his guardian.”

Administrative regs also came into play in the analysis.

It was clear that Mr. Gray’s daughter was not given notice.  Other issues raised were:

Mr. Gray’s transfer, that the transfer was unnecessary, and that Mr. Gray was too sick to be transferred.

The COA Believed genuine issues of material fact still exist.

In addition, she alleged the psychiatric evaluation was unnecessary and that Spring View was simply trying to get rid of her father by transferring him to another facility. She presented evidence that other doctors at Spring View had declined to send Mr. Gray for inpatient psychological evaluations. Finally, she alleged Mr. Gray’s health was too fragile to be transferred.

Based on the above, Ms. Wilson’s argument that Spring View violated KRS 216.515 has potential merit. At the very least, there are genuine issues of material fact that preclude summary judgment.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment as it relates to the negligence cause of action. We also reverse the judgment as to the KRS 216.515 issue and remand for further proceedings.

1040.  Wrongful death with nine issues on appeal.  Transfer of title and ownership of auto purchased at auction and from dealer with issues of applicability of liability insurance.  Newspaper delivery, employee or independent contractor.
Charles Armstrong, Adm’or Estate of Craig Armstrong v. Martin Cadillac, Inc.
COA Not to Be Published Opinion AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART Warren Cir Ct summary judgment in case of wrongful death of passenger in newspaper delivery’s car running a stop sign. Driver and passenger both killed.  Settled for $1,000,000 with estate of negligent driver.”Charles Armstrong, the administrator of Craig Armstrong’s estate, appeals summary judgment motions entered in his wrongful death lawsuit.  Jonathan Elmore delivered newspapers to earn money. He had a contract with News Publishing, LLC (“News Publishing”) to deliver the Daily News. On April 5, 2014, Elmore and Craig Armstrong were in the same vehicle delivering newspapers. Elmore was driving his 1996 Chevrolet Cavalier when it appears he ran a stop sign and pulled into the path of another vehicle that had the right of way. The collision killed Elmore and Armstrong. Armstrong’s father, as administrator of the estate, filed wrongful death claims against multiple defendants, including the current appellees.”

“Three issues were principally before us. The first issue concerned who maintained ownership of Elmore’s vehicle. On that issue, we reverse and remand the trial court’s order granting summary judgment to Martin Cadillac and Travelers for further proceedings concerning whether Martin Cadillac and/or DeWalt Auto complied with the promptness requirement of KRS 186A.215(3) and Ellis v. Browning Pontiac-Chevrolet-GMC Truck-Geo, Inc., 125 S.W.3d 306 (Ky. App. 2003).

The second issue concerned the bad faith claim against Travelers. Having found the legal issue underlying Travelers refusal to negotiate is not a novel issue nor is it debatable that dealers must strictly comply with the statutes, and having reversed and remanded for further factual development on the promptness requirement of KRS 186A.215(3), we also reverse and remand the trial court’s grant of summary judgment for Travelers on the bad faith claim. Though we reverse and remand, our Opinion should not be construed as addressing the merits of the claim.

The final issue concerned the respondeat superior liability claim against News Publishing. We find the trial court correctly found that Elmore was an independent contractor. Accordingly, we affirm the trial court’s summary judgment order in News Publishing’s favor.

Therefore, for the foregoing reasons we affirm in part and reverse and remand in part.”


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  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.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

For the index to archived minutes at the official AOC page, then click here.

MNT12222016

COA: December 16, 2016 Court of Appeals Decisions (Minutes)(994 – 1020)(2 opinions designated to be published)

Published --- knock and talk outside cop's jurisdiction affirmed; qualified immunity applied to jailer and deputies in death of prisoner from ingested drugs. Not to be published -- Malicious prosecution claim; fraud and CPA claim from auto sale; workers comp and coming and going rule

The Court of Appeals posted  16 decisions this week, numbered 994 through 1020 with 2 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.  

998.   Criminal Law.  Criminal Procedure.
Fischer v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING Fayette Cir. Ct.
VANMETER, JUDGE: Dwight Edward Fischer appeals the Fayette Circuit Court’s denial of his motion to suppress statements made to Lexington police detectives outside their jurisdiction during the course of a knock and talk. For the following reasons, we affirm.

1001.  Torts.  Government immunity.  Qualified immunity.
Peterson v. Dunbar  (note… link in actual minutes was bad. this one has been fixed).
Court of Appeals Published Opinion AFFIRMING Russell Cir. Ct.
ACREE, JUDGE: The issue we must decide in this case is whether the Russell Circuit Court erred in granting summary judgment in favor of Bobby Dunbar, the Russell County Jailer, and his deputies who were on duty when Peggy McWhorter was admitted to the Russell County Detention Center and died of an overdose due to drugs she had ingested prior to her reporting to the detention center. We hold the circuit court did not err and therefore affirm.


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

996.  Torts. Malicious Prosecution.
Williams v Cline
COA Not to Be Published Opinion AFFIRMING Rowan Cir Ct.  Summary Judgment dismissing malicious prosecution claims
JONES, JUDGE: The Appellant, Trisha Ann Williams (“Williams”), appeals from the August 26, 2014, order of the Rowan Circuit Court dismissing her claims of negligence and malicious prosecution against Appellees, Randy Cline and Keith McCormick. After a careful review of the record and applicable law, we affirm.

1005.  Torts. Fraudulent misrepresentation claim, Consumer Protection Act claims arising from auto sale.
Webb v. Dan Cummins Chevrolet-Buick, Inc.
COA Not to Be Published Opinion AFFIRMING Bourbon Cir. Ct.
JONES, JUDGE: Appellant, Robert Webb, appeals from the Bourbon Circuit Court’s order granting the motion filed by Appellee, Dan Cummins Chevrolet- Buick, for dismissal and summary judgment. For the reasons set forth below, we AFFIRM.

1011.  Pro se appeal from criminal defendant arising from contract hiring forensic examination in attempted murder case.
Rank v. Bobby Miller, M.D.
COA Not to Be Published Opinion AFFIRMING Kenton Cir Ct. Summary Dismissal of contract and fraud claims
KRAMER, CHIEF JUDGE: Douglas Rank, pro se, appeals the decision of the Kenton Circuit Court to summarily dismiss his breach of contract and fraud claims against appellee, Bobby Miller. Upon review, we affirm.

1020.  Workers Compensation.  Course of Employment, coming and going rule, and automobile collision
Caring People Services LLC v. Gray
COA Not to Be Published Opinion AFFIRMING WCB
JONES, JUDGE: This appeal arises out of an opinion issued by Kentucky’s Workers’ Compensation Board (“Board”) affirming an award of benefits to the Appellee, Mary Gray. The Appellant, Caring People Service, LLC (“Caring People”), contends that the Board erred because Gray’s injury occurred while she was in her personal vehicle during her commute from her home to her regular worksite, and therefore, is not work-related. Having reviewed the record in conjunction with the applicable legal authorities, we affirm.


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  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.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

For the index to archived minutes at the official AOC page, then click here.

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