COA: November 23, 2016 Court of Appeals Decisions (Minutes)(939-955)(6 to be published)

Published decisions addressing post-McIntosh premises liability; malicious prosecution and punitive damages; undue influence in executing documents nearly 20 years after the divorce; . SELECTED NOT TO BE PUBLISHED CASES: Liberty Mutual denied million dollar equitable subrogation claim by agency that failed to list truck in fleet policy later involved in collision; son who moved out, living with girlfriend, not in college and more does not make the cut as a "resident relative"

The Court of Appeals posted 17 decisions this week, numbered 939 through 955 with 6 cases designated for publication.

Interesting cases in the tort and insurance areas for this week include:

  • Another opinion addressing McIntosh and the subsequent decisions by the Supreme Court on premises liability.  Focusing this time on duty to warn vs. foreseeability with the latter being the controlling point in reversing and remanding Judge Burress’s summary judgment dismissal.
  • This time COA affirmed Judge Burress in a malicious prosecution case with punitive damages awarded.
  •  A divorced couple find themselves back in litigation when ex-husband sues ex-wife alleging that more than two decades after their divorce she unduly influenced him to: execute deeds conveying to her a half-interest in three pieces of property he owned individually; name her as his Attorney-in-Fact pursuant to a Power of Attorney; and, add her name to his single account at the Fort Knox Federal Credit Union from which she transferred more than $21,000 into her own account.
  • Insurance agency left off a Peterbilt truck on a fleet policy with Liberty Mutual with Liberty paying its $1,000,000 limits under the policy but then looking to the agency for equitable subrogation for NOT listing and insuring the truck in the collision.  COA said no to that one.
  • An adult son who (1) moved out of his parents’ home prior to the collision, (2) was working full-time, (3) was not in school, and (4) was renting and residing in an apartment with his girlfriend at the time of the accident did not qualify as a “resident relative” and was not listed as a named insured under the policy.  COA said no to that one too.

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.  CLICK ON THE “CONTINUE READING” BELOW THE LINE!

COA: November 18, 2016 Court of Appeals Decisions (Minutes)(907-938)(4 published)

Two cases involving attorney fees. Case involving enforcement of an agreed judgment addresses the judgment's terms and the enforcement of the agreement. Premises liability case reviews factual determinations highlighting location of spill and side-placement of the little yellow triangle sign and its visibility. Medical negligence claim arising from a surgical robotic arm called daVinci which was interesting as there was an episode on "Bull" this past week involving software updates to correct a mistake by a robot arm called "Atticus".

The Court of Appeals posted 32 decisions this week, numbered 907 through 938 with 5 cases designated for publication.  Looks like a bit of a double dose since no decisions were delivered during the week of the presidential election.

In this week’s minutes, there are some interesting cases dealing with:

  • Attorneys fees awarded in district court proceedings.
  • Attorney fees premised upon the enforcement of a note in what appears to be a bar disciplinary proceeding following a criminal conviction following a legal malpractice claim dismissed for ripeness and justiciability without getting to the merits.
  • Nursing home malpractice and statutes of limitation on claims, including pressure sores.
  • Medical negligence claim dismissed on discovery and expert disclosure issues arising from the use of a surgical robot arm called daVinci out of Owensboro.   I wonder if there is a disclosure requirement of this type of surgical assist, especially in the world of digitally designed software interplaying is analog digital metal fingers. Anyone watch “Bull” last week on the “Atticus” robot arm and a software patch hidden by the manufacturer.
  • Another premises liability case and factually determinative issues addressed involving the location of the spill in the store and the placement of the little yellow triangle warning sign.  All on video, and disagreement as to the spill’s location and thus whether the sign could be seen on the floor with the side facing the customer (who by the way was an employee at the store present at the manager’s request on a personal delivery.)  

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.

909.  Family Law.  Child support and social security retirement benefits.  Attorneys fees.
Seeger v. Lanham
Court of Appeals Published Opinion REVERSING and REMANDING Nelson Cir Ct.

On discretionary review from Nelson Circuit Court acting on the appeal from district court.
COA reversed and remanded  for further proceedings on both issues.
Held Nelson Circuit Court erred when it held that excess social security retirement benefits could only be applied as a credit toward the pre- petition child support liabilities from the date that the benefits began accruing. The Nelson District Court did not err by choosing to apply the excess benefits to the pre-petition child support liabilities that predated when the benefits were first received.

Held the Nelson Circuit Court and the Nelson District Court erred when they held that they could not consider awarding attorney’s fees to Mother. Though the paternity case was initiated under KRS Chapter 406, the trial court utilized KRS Chapter 403 when it determined Mother’s child support request; thus the trial court was proceeding under KRS Chapter 403 and could invoke, under its discretion, KRS 403.212 to award attorney’s fees.

912.  Enforcement of Agreed Judgment.
Goetz vs. Asset Acceptance LLC
Court of Appeals Published Opinion  REVERSING and REMANDING Kenton Cir. Ct.

913.  Discovery.  Required disclosures.  Summary judgement. Medical negligence. Surgical robot.
Brown v. Dr. Eric P. Griffin, M.D. 
Court of Appeals Published Opinion AFFIRMING Daviess Cir Ct.summary judgment in medical negligence claim in favor of the defendant doctor and medical facility arising from robotically-assisted daVinci surgical procedure.  The patient sustained unknown injuries from the surgery requiring additional surgical interventions to correct injury to her right distal ureter.  Dismissal of claims followed failure of plaintiff to provide required pre-trial and discovery disclosures, including experts on standard of care.

927.  Youthful offender and transfer to circuit court
S.S. v. Commonwealth of Kentucky  (Note: link in published minutes is broken. this link has been corrected).
Court of Appeals Published Opinion AFFIRMING Bullitt Cir. Ct.


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

908.  Nursing Home Negligence.  Pressure sores and statutes of limitation. Motion to dismiss.
Noles, Executrix of Est. of William Noles v. Consolidated Resources Health Care Fund I, L.P.
COA Not to Be Published Opinion AFFIRMING Nelson Cir. Ct. Order Dismissing Complaint

916.  Premises Liability.  Yellow warning signs of wet floor.  Additional claims of IIED and outrageous conduct.
Addison v. Traxx Management Company
COA Not to Be Published Opinion  AFFIRMING in part, VACATING, and REMANDING Fayette Cir. Ct.

In this case, the location of the hazard was in dispute. The issue is whether Traxx “acted reasonably under the given circumstances.” Shelton, at 908 (emphasis added). We agree with Addison that the “[c]onflicting photographs, witness credibility, [and] the camera angles of video footage and photographs” present a “classic factual dispute” for a jury. Therefore, we vacate the order granting summary judgment and remand on this issue.

938.  Attorneys fees.  Subject matter jurisdiction, ripeness, justiciability.
Bingham Greenbaum Doll LLP v.  Meredith Lawrence
COA Not to Be Published Opinion AFFIRMING Kenton Cir. Ct. dismissal of claim as not ripe or justiciable.


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 weeks 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.

mnt11182016

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

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

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

august2016

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

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.

This topical listing with individual summaries is prepared by the Kentucky Court of Appeals and posted at their web site with the Administrative Office of the Courts.  There is no regular publication date like those for the weekly minutes of decisions.

For a list of all archived monthly summaries, please click here for those at the AOC web site and click here for those posted here on this blog.

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

july2016

SC: Discretionary Review Grants by Supreme Court as of September 16, 2016

University of Louisville v. Lillard, 2016-SC-64-DG
Sovereign Immunity. Contract. Employment. KRS 45A.245. Issues include whether the University is immune from a former employee’s claim for breach of his written employment contract.

Big Sandy Regional Jail Authority v. Lexington-Fayette Urban County Government, 2016-SC-8-DG
Sovereign Immunity. KRS 441.025. At issue in this matter is whether sovereign immunity bars an action by a regional jail against a county to recover the costs of housing that county’s prisoners, after they were arrested and held pursuant to a warrant from courts of that county. In addition, at issue is whether KRS 441.025 obligates a county to pay for the incarceration of prisoners arrested and held on warrants issued by the courts of that county which are served in the county where the prisoner is incarcerated.

2016-09-16-discretionaryreview