COA: January 19, 2018 Court of Appeals Decisions (Minutes)

Nos. 34-48: 15 Decisions Posted with 1 decision designated for publication

PUBLISHED DECISIONS:

42.  Family Law.
Duffy v. Duffy
Affirmed trial court that husbands unvested restricted stock units were marital property and subject to division.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

43.  Torts.  Statute of Limitations.  Defendant dies before service.
Romano v. Estate of Ben Johnson
Appellant/plaintiff did not obtain service on defendant driver in car accident prior to defendant driver’s death.  An administrator was appointed for the estate before statute of limitations expired.  Appellant plaintiff amended complaint in original service and argued the amended complaint related back. Trial court applied Alsabi v. Gailor, but Court of Appeals REVERSED and REMANDED holding the amended complaint related back and not filed untimely in violation of statute of limitations.

“Contrary to the trial court’s interpretation herein, Gailor did not hold that a suit originally filed against a deceased defendant could never be amended past the limitations period. Rather, it held that CR 15.03 does not permit relation back where the proper party did not exist during the limitations period. However, the facts herein are clearly distinguishable. Unlike the administrator in Gailor, the executrix of Johnson’s estate had been appointed almost one year prior to the date Romano filed his original complaint. Thus, this is not a case of a non-existent party at the time suit was originally filed. In fact, the trial court’s conclusion that Gailor supports dismissal even where the Estate (the proper party) actually exists would act to vitiate the specific purpose of the relation back rule. Therefore, unlike Gailor, there remains a question as to whether the Estate knew or should have known about Romano’s action during the limitations period. Accordingly, Romano was entitled to conduct further discovery on the issue of whether the Estate “(a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him” so as to satisfy the requirements of the relation back rule under CR 15.03.”

45.  Underinsured Motorist Benefits.  Held no UIM coverage for LLC member in commercial auto policy 
Metzger v. Auto-Owners Ins. Co.
Appellants argue that Ms. Metzger was covered by a commercial automobile insurance policy, which included UIM coverage, when she was struck by a vehicle while out walking. Owners argues that since Ms. Metzger was a pedestrian when she was struck by the automobile, she was not covered under the terms of their UIM coverage. We agree with Owners and affirm.
Note.  This case has a good discussion on commercial policies and policy language for applicability of UIM coverage to owners of LLC, members of partnership, and members of an organization.

******************

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

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.”)

MNT01192018

COA: January 12, 2018 Court of Appeals Decisions (Minutes)

Nos. 23-33: 11 Decisions Posted with 1 decision designated for publication

PUBLISHED DECISIONS:

25.  Appeals.
Steffan v. Smyzer
Appellant, Donald Steffan in his individual capacity as an employee of the Jefferson County Board of Education, appeals from an opinion and order of the Jefferson Circuit Court denying his motion for summary judgment based on immunity under the Paul D. Coverdell Teacher Liability Protection Act of 2001, 20 U.S.C.A. §§ 6731-6738. We conclude that the trial court’s order was interlocutory in nature and, as such, Appellant’s appeal must be dismissed.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

26.  Torts. Negligent misrepresentation, and intentional interference with a prospective contractual relationship.
Turner v. Kentucky River Community Care

30.  Automobiles. Ownership and certificate title;  not equitable title.
Houston v. Barker

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

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.”)

MNT01122018

COA: January 5, 2018 Court of Appeals Decisions (Minutes)

Nos. 1 - 22 --- 22 Decisions Posted with 5 decisions designated for publication

PUBLISHED DECISIONS:

6.  Medical negligence.
Quattrocchi v. Nicholls
Appeal of jury verdict in favor of Paul Nicholls, M.D., and dismissing the medical negligence claim brought by Ann Quattrocchi. Ann argues that the trial court improperly excluded evidence of a surgical incident which led to her sciatic nerve palsy. As the evidence of record shows exclusion of the evidence and the failure to grant a continuance amounted to an abuse of discretion, we reverse and remand.

9.  Criminal Law.  DNA and Daubert.
Commonwealth of Kentucky v. Baldwin
The Commonwealth of Kentucky brings this appeal from an interlocutory order excluding expert testimony regarding DNA1 evidence. The Commonwealth offered the evidence during Robert L. Baldwin’s murder trial. After reviewing the record and observing that the Trimble Circuit Court did not conduct a Daubert hearing regarding the analytical technology used to further test blood from the crime scene, we vacate the order and remand.

11.  Underinsured Motorist Benefits and Stacking.
Consolidated Ins. Co. v. Slone
Consolidated Insurance Company appeals from an order of the Magoffin Circuit Court declaring that the appellees are entitled to stack the underinsured motorist coverages (UIM) provided in a vehicle insurance policy issued to the Magoffin County Board of Education. The primary issue presented is whether an anti-stacking provision in the Consolidated policy limits the total UIM coverage available to $500,000. We conclude that the provision precludes the appellees, who are insureds of the second class, from stacking the UIM coverages. We further conclude that any alleged misrepresentation made by a Consolidated insurance agent regarding stacking to the Magoffin County Board of Education does not estop Consolidated from enforcing the anti-stacking provision.

16.  Revenue and Taxation.  Ad valorem re county library.
Coleman v. Campbell County Library Road
Charlie Coleman, John P. Roth Jr. and Erik Hermes (hereinafter “the taxpayers”) bring this appeal from the Campbell Circuit Court’s grant of summary judgment to the Campbell County Library Board of Trustees (hereinafter “the Board”). The primary issue is whether the holding of an opinion(hereinafter “the Opinion”) of the Court of Appeals, which harmonized statutes relating to public library ad valorem tax rates, is to be applied retroactively or prospectively only.

20.  FELA.  Jury instructions.
Boggs v. CSX Transportation, Inc.
Larry M. Boggs appeals from the judgment of the Jefferson Circuit Court entered upon a jury verdict in favor of CSX Transportation, Inc., (CSX). Boggs presents numerous issues for our review. However, our disposition of the appeal turns upon our resolution of a single issue: whether the trial court erred in its instructions to the jury panel. After our review, we reverse and remand for further proceedings.

 

Selected cases that were not designated for publication in tort, insurance and civil law. None.

 

 

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT01052018

COA: December 22, 2017 Court of Appeals Decisions (Minutes)

Nos. 1051-1071 -- 18 Decisions Posted with 2 decisions designated for publication

PUBLISHED DECISIONS:

1054.  Declaratory Judgment.  Participation in County Employees Retirement System (CERS)
County Employees Retirement System v. Frontier Housing
Affirmed dismissal of motion to dismiss on sovereign immunity.

1066.  Torts.  duty of care.
Mitchell v. Commonwealth of Kentucky 
Affirmed dismissal of claim against state for escaped convict who was evading police and struck Mitchell.  The trial court concluded CTS did not have a special relationship with Brenda triggering a duty of care, and it was not foreseeable Mace would walk away from CTS, travel from Jefferson County to Floyd County, steal a car, and, while attempting to evade police in a high-speed car chase cause a collision with Brenda which would result in her death.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

1063.  Appeal.  Dismissed untimely notice of appeal.
Henderson v. Oliver

1065.  Torts.  Negligent supervision of children. Lays out elements etc. in case where child hit plaintiff in back of head with water balloon.
Thomas v. Bottoms

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12222017

COA: December 15, 2017 Court of Appeals Decisions (Minutes)

Nos. 1037 - 1053 -- 17 Decisions Posted with 3 decisions designated for publication

PUBLISHED DECISIONS:

1038.  Rule 11.  Affirmed trial court’s Rule 11 sanctions.
Large v. Oberson

1039.  Torts.  Defamation.  Affirmed summary judgment dismissing defamation  action .  No discovery.
National College of Kentucky, Inc. v. Wave Holdings, LLC

1045.  Negligent hiring/retention.  Higher standard for carriers.
Kendall v. Godbey

Since genuine issues of material fact exist as to whether Community Cab properly vetted Abukar prior to employing him, we hold that summary judgment was improperly granted and remand this matter to the trial court for a continuation of the litigation concerning the legal malpractice. In making this determination, we are proffering no opinion as to the ultimate result of the litigation but merely indicating that summary judgment was premature.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

1037.  Summary judgment and timing of discovery
Krohn v. Meuser

1044.  Affirmed dismissal of wrongful use of civil process.
The Getty Law Group v. Bowles, Rice, McDavid, Graff & Love

1046.  Tresspass.  Affirmed award of $19,402.22 in damages on claims of trespass to chattel and trespass to personal property.
Stanley v. Knuckles

1047.  Wrongful death claim when decedent fell into a septic tank sinkhole and died presented a host of issues from wrongful death, municipal immunity, independent contractor etc.
Estate of Dorothy Brown v. Louisville/Jefferson County Metropolitan Sewer District

1048.  Torts. Workplace sexual harassment, hostile work environment, and retaliatory discharge.
Gibson v. H&J Restaurants, LLC

1051.  Immunity and negligence claim against prison security officers.
Collins v.  Vandiver

1052.  Premises liability, immunity and schools.
Sergent v. Murphy

1053.  Claims of breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED)
Watson v. Jargoe Homes

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12152017

COA: December 8, 2017 Court of Appeals Decisions (Minutes)

Nos. 1024 - 1036 -- 13 Decisions Posted with 5 decisions designated for publication

PUBLISHED DECISIONS:

1026.  Oral trust and real property.
Bickett v. Cecil

1031.  Criminal Law.  Motion to suppress.  DNA. Discovery violations.
Terry v. Commonwealth of Kentucky 

1032.   Civil Procedure.  Torts.  Reversed & remanded default judgment for slip and fall at Campbell House in Lexington .
HP Hotel Management v. Layne

1035.  Workers Compensation.  Reversed and remanded ALJ decision that Overstreet’s permanent partial disability benefits terminate when he reaches normal old-age Social Security retirement age pursuant to Kentucky Revised Statute (KRS) 342.730(4)
Overstreet v. American Printing House for the Blind

1036.  Family Law.  Vacated DVO and remanded to family court for full evidentiary hearing.
Allen v. Gueltzow

Selected cases that were not designated for publication in tort, insurance and civil law. None.

None

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12082017

COA: December 1, 2017 Court of Appeals Decisions (Minutes)

Nos. 1010-2023 -- 24 Decisions Posted with 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

1012.  Criminal Law.  Giving a police officer a false name.
Stephenson v. Commonwealth of Kentucky

1014. Discrimination. Vacated and remanded trial judge improperly dismissing.  discrimination complaint.
Taylor v, Middleton Fire Protection District

Selected cases that were not designated for publication in tort, insurance and civil law. None.

1010.  Reversed default judgement.  Long arm statute, service by SOS.
Cemerlic v. Verralab JA LLC
Appealed order denying motion to set aside a default judgment. They argud they showed good cause to set aside the default judgment: they have a valid excuse for their default because they were not properly served by the Secretary of State and were unaware of the lawsuit, they have a meritorious defense and there is no prejudice. Reversed & remanded. Note that NO brief was filed by appellee, and Judge Acree filed dissent.

MNT12012017

COA: November 22, 2017 Court of Appeals Decisions (Minutes)

Nos. 981-1009: 29 Decisions Posted with no decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

None.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

984.  Insurance Coverage.  Coverage re terms of “occurrence” and “intentional”.
Brown v. Kentucky Farm Bureau Mutual Ins. Co.
Affirmed summary judgment in favor of the defendant in the wrongful death claim that involved shooting and burial of the body. The mother of the decedent attempted to distinguish the shooting from the damages she sustained by the burial and hiding the body. This was not considered a covered “occurrence” under the policy.  In addition, the bodily injury was not covered since it was a harm expected or intended by the insured.

997.  Reversed dismissal of default judgment granted in favor of the insurance company.
Amica Mutual  Insurance  Company  v.  Marzette

1001.  Affirmed dismissal of claim for malicious prosecution.
O’Hara v. Marsh

MNT11222017

COA: November 17, 2017 Court of Appeals Decisions (Minutes)

Nos. 966-980: 15 Decisions Posted with a 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

976.  Insurance.  Captive health insurer exempt from Unfair Claims Settlement Practices Act
Merritt v. Catholic Health Initiatives, Inc.

978.  Criminal Law. Sentencing Evidence relating to uncharged misconduct, dismissed charges and unverified community complaints not error.
Snodgrass v.  Commonwealth of Kentucky

Selected cases that were not designated for publication in tort, insurance and civil law. None.

None.

MNT11172017

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

For more information on each of the published and unpublished decisions and obtaining case information, then continue reading below the fold.

COA: November 9, 2017 Court of Appeals Decisions (Minutes)

Nos. 942-965: 24 Decisions Posted with a 6 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

945.  Business.  Stock repurchase agreement.
Rogers v. Family Practice Associates of Lexington, PSC

949.  Criminal Law. Ineffective Assistance of counsel.
Ferguson v. Commonwealth of Kentucky
Reversed and remanded. Defendant received constitutionally ineffective assistance of counsel leading to his conviction for murder. We reverse and remand for new trial.

952.  Family Law.  Division of military retirement pay.
Priest v. Priest

953.  Business Law. Breach of contract and repayment of advances.
Bloomsz, LLC v. Van Bourgondien

954.  Flagrant nonsupport and diversion agreement.
Price v. Commonwealth of Kentucky  (link corrected from minutes)

955.  Flagrant nonsupport and diversion agreement.
Lainhart v. Commonwealth of Kentucky

Selected cases that were not designated for publication in tort, insurance and civil law. None.

942.  Retaliatory and wrongful termination
Hackney v. Mountain Comprehensive Care Center. Inc.

959.  Nursing Home Arbitration Case.
New Oaklawn Investments, LLC dab Oaklawn Health and Rehabilitation Center v. Stein, Executrix Est of June Lee

MNT11092017