Case Notes: Watch out for the 1 year Statute of Limitations and Premises Liability – Landel vs. The Kroger Company (COA NPO 1/16/2015)

Not actual parking lot in this case.  Used solely for illustrative purposes.

Not actual parking lot in this case. Used solely for illustrative purposes.

The one-year state of limitations for most torts may be the law, and may work in many cases, but it can be way too short in this era of trying to figure out who the proper party is in this complex world of hide the ball from the Plaintiff.  The recent Court of Appeals’ decision in Landel vs. Krogers out of Russell County demonstrates this in relationship to whose parking lot is it anyway.

In this case, Vickie Landel was a Kroger customer who fell and injured herself in the parking lot.  She filed suit against Krogers since it was the parking lot outside of the Krogers’ store.  She fell on March 10, 2011, and filed her original complaint on November 2, 2011, but sought to amend the complaint to add the shopping center on March 21, 2012 – just eleven days after the one year anniversary and the expiration of the statute of limitation.  The shopping center obtained summary judgment dismissing the complaint against it for untimely filing (SOL), and Krogers obtained a dismissal of the complaint since it had no duty over the parking lot.

The plaintiff Landel claimed she did not know the identity of the shopping center, but Krogers had notified her by letter that the shopping center was responsible and provided her a copy of the lease.

Before discussing the issue of tolling as raised by the plaintiff in this case, let us take a look at some lessons to be learned in this case and those of a similar nature.

The identity of the “real” plaintiff can be difficult in the commercial context, and the identification of the real party can be fatal.  Most Krogers’ stores, however, have the actual name of the owner of the store location in black letters on the window near the door.  The name of the entity can be confirmed at the Secretary of State for the proper name for the style and the proper person for service.  However, this does not get you past possible problems, such as a the dangerous condition of the floor was the work of a vendor (eg., the Brown Hotel case and indemnity), or the mats were placed and cleaned by a contractor, or as in this case the parking lot is not the store’s responsibiilty.    The solution, unfortunately, is “fast filing with fast followup” since delay and deny and do nothing by the defendant does not inure a benefit to the plaintiff.

Some useful techniques for getting around this improperly denominated party defendant are:  correcting a misnomer “, and CR 15.03 involving relation back of amendments (eg., nexus between corporations and/or subsidiaries and the relating back (An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.”  Within this context, I would have suspected that Krogers would have notified it lessor of the lawsuit (and thus notice under 15.03(2)(a) who would have know from the filing of the original complaint that they/shopping center would have been the proper party.

However, these outs are not an adequate solution to what I believe are the real problems: a. who they are may not be who you think they are with a name hidden in corporate names, agreements; and b. the insurer/insured may not be forthright about the correct identity of the responsible party (delay has its benefits, especially as the statute’s expiration approaches; and c. the  one-year is just too darn short when you have ten years for written contracts with the defendant usually self-evident, but with defective products made in China and distributed under other’s names).

The solution? Some are file soon, notice the corporate-representative for his/her deposition per CR 30.02(6).  The better solution is a longer statute of limitations with an easier tolling/relation back doctrine to avoid hide the ball and to allow the potential of resolving these cases short of suit.  One year.  Seriously!

For other posts on this blog about the statute of limitations, click here.

Case Notes: Ward vs. Nationwide Assurance Co. COA NPO (non published opinion) 12/24/2014 Opinion Affirming; Jefferson County

The Supreme Court remanded the following case back to the Court of Appeals to render a decision consistent with State Farm Mutual Auto Insurance Company v. Hodgkiss-Warrick, 413 S.W.3d 875 (2013).

For what it’s worth and as a little background, here is a small summary of Ward’s earlier holding that went up to SCOKY before going back down for a different ruling:

Ward v. Nationwide Assurance Co.
COA Not Published 9/13/2013
Underinsured Motorist Benefits Offset Not Enforceable
COA applied the public policy exception to the conflicts of law test and held  the set- off provision contained in Ward’s insurance policy and authorized under Virginia law is contrary to Kentucky public policy.  The UIM set-off provision would have resulted in reducing the available UIM coverage under the out of state policy by the amount of liability insurance available.

Insurance.  Choice of Law. UIM (Underinsured motorist benefits).  Affirming trial court’s application of Virginia law and policy regarding offset for liability insurance.
Ward vs. Nationwide Assurance Co.
COA NPO (non published opinion) 12/24/2014
Opinion Affirming;  Jefferson County

ACREE, CHIEF JUDGE: This matter is before us on remand from the Kentucky Supreme Court to reconsider our previous opinion in light of the Supreme Court’s decision in State Farm Mutual Auto Insurance Company v. Hodgkiss-Warrick, 413 S.W.3d 875 (2013). Upon further consideration, we conclude the public-policy exception to our traditional conflicts-of-law analysis offers no safe harbor to the appellant under the specific facts of this case and, therefore, the circuit court correctly determined that Virginia law governs this dispute.

For entire text of decision, continue reading below:

COA Published Decision Modified on 9/26/2014 – Grange Property & Casualty Co. v. Tennessee Farmers Mutual Ins. Co

The following Court of Appeals decision ordered to be published on 9/12/2014 was modified by order on 9/26/2014.  Since I do not have a copy of the earlier decision for purposes of comparision, I am hopeful that a reader might post a comment to this post and let us know of the significance whether to correct a typo or a substantive change.  Our earlier post of the minutes for 9/12/2014 with a short synopsis can be found by clicking here.

827.  Choice of Law, Uninsured Motorist Benefits, Tennessee Offset, and Priority of Coverages
Grange Property & Casualty Co.  v. Tennessee Farmers Mutual Ins. Co
COA Published 9/12/2014 PJ Clayton Affirming
Modified 9/26/2014
Pike County

Cause of Action: Retail Store (Wal-Mart) Owed No Duty to Patrons of store when altercation occurs Rose vs. Wal-Mart COA Not Published 9/12/2014; PJ Combs Affirming Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons (Rose v. Wal-Mart, COA, NPO 9/12/2014)

Torts.  Duty Owed to Patrons of store when altercation occurs
Rose vs. Wal-Mart
COA Not Published 9/12/2014; PJ Combs Affirming
Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons under facts of this case.

Cause of Action: Premises Liability Open and Obvious Hazard Distinguished by COA for licensee (as opposed to invitee) (Klinglesmith vs. Estate of Reba Pottinger, COA, NPO 9/12/2014)

Klinglesmith vs. Esate of Reba Pottinger
Premises Liability.  Slip and Fall.  Licensee treated differently on open and obvious.
COA Not Published 9/12/2014; PJ Stumbo Affirming

[Although the issue of plaintiff’s failure to offer proof of causation was the basis to the lower court’s summary judgment and the Court of Appeals’ affirmance of the dismissal, Judge Stumbo in her opinion addressed a distinction on how open and obvious interplays with the landowner’s duties to an invitee (as in Shelton and McIntosh vs. a licensee in Klinglesmith.  This is why the case is noted under the topic causes of action.]

STUMBO, JUDGE: Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial.

As a basis for the Order granting Summary Judgment, the Court noted that Klinglesmith testified in her deposition that she did not observe any defect in the porch and was not sure why she fell. After discussing Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), and the exception to the open and obvious doctrine, the Court determined that Klinglesmith had over a year since the filing of this action to conduct discovery, and had not established that the condition of the porch was a substantial factor in causing her injury. The Court rendered Summary Judgment, and this appeal followed.

Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klinglesmith appears to contend that the Jefferson Circuit Court erred in absolving the Estate of liability because the defect in the

The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.

Defenses: Failure to revive cause of action upon defendant’s death dismissed as untimely and “equitable estoppel” not help the plaintiff under facts (Allen vs. Emily Conner, COA, NPO 2/28/2013)

Geraldine Allen vs. Emily Conner (now deceased) and Ohio Cas. Ins. Co.
COA NPO 2/28/2013
Jefferson County

COMBS, JUDGE: Geraldine H. Allen appeals the April 8, 2013, order of the Jefferson Circuit Court dismissing her personal injury action against her alleged tortfeasor, Emily M. Conner, for failure to revive it within one year of Conner’s death. After our review, we affirm.  Court rejected application of equitable estoppel defense under these facts.

Ephriam McDowell Home in Danville, Kentucky.  "Father of modern surgery" conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809.  Patient sang hymns during procedure, recovered and died in 1842.

Ephriam McDowell Home in Danville, Kentucky. “Father of modern surgery” conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809. Patient sang hymns during procedure, recovered and died in 1842.

This suit arose from a car collision in which Geraldine Allen sued Emily Conner.  Allen’s attorney gave Conner’s liability insurer an indefinite extension while preparing and submitting a demand; thus no attorney was retained by the Ohio Cas./Liberty Mutual adjuster to represent or defend Conner.  However, Conner died, and an estate opened (unbeknown to the Ohio Cas adjuster or the attorney.  After the demand was received and while invesigating the claim, Ohio Casualty/Conner’s attorney discovered Conner had died more than a year previously.  The insurance lawyer filed an answer to the complaint and asserted that her claim was barred by the provisions of Kentucky Revised Statute[s] (KRS) 395.278, since an application to revive the action had not been made within one year of Conner’s death. On January 10, 2013, Allen filed a motion to revive the action and requested leave to file an amended complaint that included allegations against Ohio Casualty for unfair claims settlement practices and violations of Kentucky’s Consumer Protection Act.

When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

If an action is not revived against the administrator of the When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

INSURANCE & STATUTE OF LIMITATIONS: Second Panel of COA holds statute of limitations for UIM underinsured motorist benefits ACCRUES from date insurer denies the claim and not based upon date of accident of last PIP payment (Hensley v. State Farm, COA Published 8/15/2014)

Court of Appeals has now held in a second published decision that  the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage.  I have addressed this issue of accrual multiple times over the years in this blog and my earlier blog the Kentucky Law Review, all to no avail.  Click here for my most recent commentary which addresses some additional practical reasons in support of the decisions in Riggs and Hensley below.

When applying the statute of limitations to a contract action sounding in tort you are presented with a hybrid  of analytical frameworks, neither of which seem to look at it from the insured’s perspective – eg. tort law for car collisions (2 years from date of accident or date of last pip payment, whichever is later) vs. contract (written contracts are 15  years) coupled with the fuzzy standard that an insurance company can unilaterally shorten the period if it is reasonable and not a violation of public policy.  We  now have the Court of Appeals taking a look at the rules and conditions behind the statute of limitations and applying both common sense and legal analysis.

Supreme Court Justice John Marshall Harlan, born in Boyle County.  Marker outside of court house in Danville, Kentucky.

Supreme Court Justice John Marshall Harlan, born in Boyle County. Marker outside of court house in Danville, Kentucky.

In order to be time barred, you need a start date and and end date.  The end date is clear – suit filed, yes or no?  Start date until now has been applied illogically since the start date for a tort action is not the same as a contractual action, especially a contractual action premised upon an accrual date that has no reasonable relationship with the underlying tort.

Two panels and four Court of Appeals judges get it.  The first panel held  that the the contractual provisions of an insurance policy requiring any action for UIM benefits must be brought within 2 years of accident or last PIP payment paid was unreasonable (see, Riggs v. State Farm Mut. Ins. Co. , COA Published 7/19/2014 (Judges Acree writing the majority joined by Judge Taylor, with Judge Vanmeter dissenting), pending discretionary review 2013-SC-000555).  Counsel for Mr. Riggs is Louisville personal injury attorney Timothy McCarthy; counsel for State Farm at the Supreme Court is David Klapheke.

INSURANCE (UM): UM Policies. Do they follow the car or the named insured, and are they primary or subject to excess and pro rata provisions? Well, let the Supreme Court decide! (Countryway vs. United Financial Cas. Co., COA 1/24/2014 pending discretionary review)

A heretofore sacred cow rule for uninsured motorist benefits that the uninsured motorist benefits (UM) follows the car  was re-examined with a new rule emanating from the Kentucky Court of Appeals in Countryway Ins. Co. v. United Financial Casualty Co..  However, this decision is not final and is up at the Supreme Court.

The following fact pattern comes across the desk of Kentucky personal injury attorneys frequently on a question of both underinsured and uninsured motorist benefits.

The scenario:  two car collision with the at fault car having no liability insurance leaving injured parties in the other car looking to uninsured motorist benefits for compensation.  Sometimes the car of the driver that was not at fault has UM benefits, sometimes it does not; sometimes the driver is not the owner  and/or a passenger in the car has therir own policy of UM benefits.    But what happens when there is a UM policy covering the vehicle with the non-owner driver or passenger all having UM coverages.  That’s when “other insurance” clauses come into play.  Until today, the UM “followed” the car and/or looked at the “other insurance” clauses which in Countryway resulted in the trial judge pro-rating the policies.  However, the Countryway decision reversed the Warren Circuit Court decision pro-rating the UIM policies and held  the UM policy covering the injured person (eg., UM is first-party coverage) will be deemed primary as a matter of public policy and judicial economy.  Well, don’t go jumping the UM adjusters on this issue just yet,  because the Supreme Court granted discretionary review, and all the insurance lawyers and companies as well as the automobile injury lawyers a little concerned which way the Supreme Court will go on this.

Some practical considerations beyond the legal analysis is that the insured owner of the car who paid for the UM coverage now has claim against his or her policy which may or may not affect underwriting and the insured owner’s  future premiums; and this arises from a collision when she did nothing wrong!   Next, imagine the complications under the follow the car rule and “other insurance” clauses when the coverages are different and the adjuster’s damages assessment also different.  How many adjusters does it take to make a claim go on forever and encourage suit and not settlement?  Any number greater than one.

Cary Grant looking a little perplexed in the movie, Gunga Din.

Cary Grant looking a little perplexed too in the movie, Gunga Din.

Many UM carriers use the “excess” language in their policies which means if two UM policies are deemed  “excess” then you go to pro-rata. Then add the “step down” language to minimum UM limits for second class insureds that Shelter uses, then the math gets a little complicated for some.  Although the Countryway decision does have some logic to it – “you bought it, you got it”, some fail to appreciate that UM and UIM coverages are nothing more than liability insurance purchased to protect yourself and your passengers against the possibility that the negligent vehicle has no or not enough liability insurance.  Thus, if you cut the labels of UM and UIM, you already have another car’s liability insurance being primary which works easily for UIM coverage but breaks down for UM coverage and which runs afoul of the number of cases that attempts treating UIM and UM benefits no differently. [if you can connect those dots in your head and follow my reasoning, then “You’re a better man than I am, Gunga Din!” from Rudyard’ Kipling’s poem Gunga Din.]

I like the “bought it, got it” rule since it’s easy to apply, only one adjuster at a time, and makes sense to the owner of the car who is not crazy about all those people making claims under his/her policy.

Again, the Supreme Court has this one.  Click here for the case information and status of the case at the Kentucky Supreme Court.

Uninsured motorist benefits and priority between two policies
Countryway Ins. Co. v. United FinancialCountryway Ins. Co. v. United Financial Casualty Co. Co.
Warren Cir. Ct., Judge John R. Grise
COA, PUB 1/24/2014, Presiding Judge Allison Jones

The Warren Circuit Court determined that the policies contained mutually repugnant excess coverage provisions and, therefore, damages should be prorated between the two policies. On appeal, Countryway asserts that the trial court should have deemed United’s policy primary because it covered the vehicle involved in the accident. For the reasons more fully explained below, we hold that the policy covering the injured person should be deemed primary to the policy covering the vehicle. Accordingly, we reverse the Warren Circuit Court’s order prorating the coverage.

While we agree with Countryway that Shelter’s underlying logic in favor of a bright-line rule should be adopted with respect to UM coverage, we do not agree that Shelter compels us to follow the same order of priority when dealing with UM coverage as when dealing with general liability coverage. After a review of the applicable statutes and relevant case law dealing with UM coverage, we conclude that because UM coverage is first-party coverage, it should follow the person, not the vehicle, as a matter of priority.

In conclusion, we hold that under Shelter the repugnancy rule and apportionment are no longer applicable where two excess/other insurance UM provisions clash. Instead, the UM policy covering the injured person, in this case, Countryway’s policy, will be deemed primary as a matter of public policy and judicial economy.


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.  Ministerial acts vs. discretionary acts.
Estate of Megan Morris vs. Tony Smith
Published, COA, 5/9/2014 from Graves County

ACREE, CHIEF JUDGE: The Estate of Megan Morris, by and through her personal representative, Diane Mobley (the Estate), and Diane Mobley, individually, appeal the August 15, 2012 order of the Graves Circuit Court granting summary judgment to each member of the Graves County Fiscal Court, including the county judge executive, individually, and Danny Travis, the road foreman, individually. The circuit court concluded the Appellees are each cloaked with, and protected by, official immunity. We agree and affirm.

* * *

in June 2007, Megan was one of seven teenagers riding in a car. She was a passenger. It was dark and raining, and the driver failed to negotiate a sharp curve on Dooms Chapel Road. The car struck a tree; Megan died from her injuries. Her estate sued alleging Graves County, the Graves County Fiscal Court, and the Graves County officials listed above were negligent in not providing warning signs at the curve, thus causing Megan’s death,

* * *

 “‘Official immunity’ is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions[.]” Yanero, 65 S.W.3d at 521. If a public officer “is acting in a discretionary manner, in good faith, and within the scope of his employment,” then he or she is entitled to the protections of qualified official immunity. Nelson Co. Bd. of Educ. v. Forte, 337 S.W.3d 617, 621 (Ky. 2011).

[W]hen an officer or employee of the state or county (or one of its agencies) is sued in his or her individual capacity, that officer or employee enjoys qualified official immunity, which affords protections from damages liability for good faith judgment calls made in a legally uncertain environment. Application of the defense, therefore, rests not on the status or the title of the officer or employee, but on the [act or] function performed.

Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (alteration in original) (citations omitted).

Because “qualified official immunity applies only where the act performed by the official or employee” is in its nature discretionary, we must first classify “the particular acts or functions in question” as either discretionary or ministerial. Id. Discretionary acts involve “the exercise of discretion and judgment, or personal deliberation, decision, and judgment.” Yanero, 65 S.W.3d at 522. These acts “require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.” Haney, 311 S.W.3d at 240.

Conversely, “ministerial acts or functions – for which there are no immunity – are those that require ‘only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.’” Id. (citing Yanero, 65 S.W.3d at 522). The official’s burden to ascertain those fixed and designated facts does not convert a ministerial act into a discretionary one. Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959). Classifying an act or function as discretionary or ministerial is an inherently fact-intensive inquiry necessitating a “probing analysis[.]” Haney, 311 S.W.3d at 240. It must not be made in haste for “few acts are ever purely discretionary or purely ministerial.” Id. Indeed, in carrying out his or her daily tasks, an official often engages in numerous acts, any of which may be classified as ministerial or discretionary depending on “the dominant nature of the act” or function in question. Id. (emphasis in original). With these standards as our guide, we turn to the specific case before us.

* * *

Kentucky law is clear that a fiscal court’s acts regarding improvement of county roads are discretionary. Madison Fiscal Court v. Edester, 301 Ky. 1,  190 S.W.2d 695, 696 (1945) (“[I]t is within the discretion of the fiscal court to determine the road or roads which shall be improved and the time and method of such improvements.”); see KRS 67.080(2)(b)(“[F]iscal court shall . . . , [a]s needed, cause the construction, operation, and maintenance of all county . . . structures, grounds, roads and other property.” (emphasis added)).

* * *

Judicial reasoning cannot turn a blind eye to the practicalities of a fiscal court’s decision-making. There is a cost attributable to the installation of signs and guardrails; discretion in the allocation of taxpayer/road-fund dollars is imperative. Kentucky has long recognized this:

The fiscal court of every county is, in effect, a legislative board, invested with the power by law of making appropriations in cases where the needs of the county require it; and while they may neglect their duties, or omit to improve the roads, or to make other appropriations necessary for that purpose, it is beyond the power of a judicial tribunal to interfere and determine what improvements should be made, and the extent of the expenditure necessary for that purpose. Madison Fiscal Court v. Edester, 301 Ky. 1, 190 S.W.2d at 696 (quoting Highbaught v. Hardin County, 99 Ky. 16, 34 S.W. 706, 707 (Ky. 1896)).

If we adopted the Estate’s argument, we would be fashioning a rule whereby every fiscal court or governing authority in Kentucky would have to conduct an engineering study and implement an engineering judgment as to every curve on every mile of every road in every county in the Commonwealth. And, if the engineering study or judgment found the placement of a warning sign warranted, the fiscal court would have no choice but to comply with that recommendation, regardless of policy considerations, fiscal concerns, and alternate safeguards. Such cannot possibly be the intent of the Department of Highways when it issued 603 KAR 5:050 directing the MUTCD be the guiding standard for the placement and maintenance of traffic control devices in Kentucky.

Again, a ministerial rule “must, at least, be sufficiently specific to restrict significant discretion in its enforcement. That cannot be said here.” Haney, 311 S.W.3d at 243. We are firmly convinced that the act of placing or not placing signs or a guardrail on county roads is a discretionary act on the part of the fiscal court, not a ministerial one.

Such discretion, of course, is not without limitation. One “qualification” of qualified immunity is that the discretionary act be one within the official’s authority. Forte, 337 S.W.3d at 621 (official must be acting “within the scope of his employment” to be entitled to official immunity). The Estate has never made an issue of the Fiscal Court’s authority; in fact, the Estate conceded it. The only other qualification is that the official will not be immune from prosecution if he fails to act in good faith, including his willful failure to act at all. “Once the officer or employee has shown prima facie that the act was performed within the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act was not performed in good faith.” Yanero, 65 S.W.3d at 523. The Estate has not met that burden.

The term “good faith” “is somewhat of a misnomer, as the proof is really of ‘bad faith.’ In fact, in most cases, ‘good faith’ is just a presumption that exists absent evidence of ‘bad faith.’” Sloas, 201 S.W.3d at 475. Bad faith encompasses both an objective and subjective component, and can be shown in one of two ways: (1) that the official “willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive, which requires a subjective analysis[,]” or (2) upon proof that a clearly-established right of the plaintiff was violated, which requires an objective analysis. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011) (quoting Yanero, 65 S.W.3d at 523).