COA: March 24, 2017 Court of Appeals Decisions (Minutes) (267-295) 29 Decisions with 5 decisions designated to be published)

Published decisions for March 24, 2017:

275.  Criminal Law.  Search and Seizure.  DUI arrest.
Commonwealth of Kentucky v. Hon. Jerry Crosby
AFFIRMING – Oldham

282.  Exhaustion of administrative remedies.
Lee v. Commonwealth of Kentucky 
REVERSING & REMANDING – Fayette

29o.  Divorce.  No jurisdiction to add previously dismissed parties.
Etscorn v. Etscorn
DISMISSING – Jefferson

295. Workers Compensation.
Voith Industrial Services v. Gray
AFFIRMING – WCB


Selected cases that were not designated for publication in tort, insurance and civil law.

270.  Dram Shop.
Watson v. Roof Brothers Wine & Spirits, Inc.
AFFIRMING – McCracken

283.  Defamation claim against Louisville Mayor Greg Fischer
Morgan v. Fischer
AFFIRMING – Jefferson


MNT03242017

COA: March 17, 2017 Court of Appeals Decisions (Minutes) (238-266 with 7 decisions designated to be published)

27 appellate decisions were post with 5 decisions have designated for publication by the Kentucky Court of Appeals for March 17, 2017.

Here are direct links to each of the published cases:

238.  Administrative Law   Request for Adjustment to Medicaid Reimbursement Rate
Northern Kentucky Mental Health Mental Retardation, Inc. v. Commonwealth of Kentucky, Cabinet for Health and Family Services
Court of Appeals Published Opinion REVERSING AND REMANDING – Franklin County

246.  Contracts.   Claim for reimbursement of unpaid real estate commissions.
Miniard v. L.G.S. Holdings, LLC
Court of Appeals Published Opinion AFFIRMING- Jessamine

249.  Zoning.  Cell towers.
Robbins v. Lexington Fayette Urban County Planning Commission
Court of Appeals Published Opinion AFFIRMING – Fayette

250.  Qualified official immunity.  Not given for ministerial duty during police pursuit.
City of Brockville v. Warner
Court of Appeals Published Opinion  AFFIRMING – Bracken

251.  Criminal Law.  Withdrawing guilty plea
Banton v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING – Boone

257.  Criminal Law.  Possession of dangerous contraband.
Commonwealth of Kentucky  v. Kenley
Court of Appeals Published Opinion REVERSING AND REMANDING -Fayette

264.   Interpersonal protective order.  Stalking.
Calhoun v. Wood
Court of Appeals Published Opinion AFFIRMING – Hancock

Selected cases that were not designated for publication in tort, insurance and civil law.

None selected.


MNT03172017
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.

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

COA: March 10, 2017 Court of Appeals Decisions (Minutes) (222 to 237 with 5 decisions designated to be published)

The Court of Appeals posted  16 decisions on Mar. 10, 2017, numbered 222-237 with 5 decisions designated for publication.

Here are direct links to each of the published cases:

223.  Fiduciary duty and joint and several liability involving attorneys.  A Fen-phen case
Stanley M. Chesley v. Mildred Abbott
Court of Appeals Published Opinion AFFIRMING – Boone County

Stanley Chesley appeals the Boone Circuit Court’s October 22, 2014 summary judgment in favor of Appellees on their breach of fiduciary duty claims arising from his involvement with the 1998 “Fen-Phen” litigation and settlement.1 The judgment additionally holds Chesley jointly and severally liable with his co-defendants, William J. Gallion, Shirley Cunningham, and Melbourne Mills, who were previously held liable to Appellees, for $42,000,000.00 in compensatory damages. We affirm.

224.  Misappropriating trade secrets, interfering with existing or prospective business relationships, conversion, breach of contract, breach of fiduciary duty, and fraud.
Alph v. Kaufman, Inc. v. Cornerstone Industries Corp.
Court of Appeals Published Opinion AFFIRMING IN PART, VACATING IN PART, AND REMANDING

228. Claims for improper garnishment by bank
Nether wood v. Fifth Third Bank, Inc.
Court of Appeals Published Opinion AFFIRMING – Jefferson

230.  Termination of school employment for conduct unbecoming a teacher
Mike v. Department of Education
Court of Appeals Published Opinion AFFIRMING – Jefferson

237.  Criminal Procedure.  Motion to Suppress.
Greer v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING – Fayette

Selected cases that were not designated for publication in tort, insurance and civil law

211.  Premise liability (slip and fall) in public parking facility owned by PARC
Martin v. Parking Authority of River City, Inc.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson

231.  Insurance. Commercial policy – ‘missing property’ or ‘mysterious disappearance exclusion
Khaki Rug Gallery, LLC v. State Auto Property and Casualty Inc. Co.
Court of Appeals Not to Be Published Opinion  AFFIRMING – Jefferson


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.

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

MNT03102017

 

COA: March 3, 2017 Court of Appeals Decisions (Minutes) (206- 221 with 4 decisions designated to be published)

The Court of Appeals posted  16 decisions on Mar. 3, 2017, numbered 206-221 with 4 decisions designated for publication.

Here are direct links to each of the published cases:

207. Criminal Law.  Sentencing Evidence.
Palmer v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING – Campbell County

214.  Real Property.  Mineral estate ownership
Potter v. Blue Flame Energy Corp.
Court of Appeals Published Opinion REVERSING and REMANDING – Pike County

215.  Divorce.  Property Settlement.  Claim for diminution in value.
Harvey v. Robinson
Court of Appeals Published Opinion AFFIRMING – Fayette

221.  Family Law.  Grandparent visitation
Nein v. Columbia
Court of Appeals Published Opinion AFFIRMING – Clark

Selected cases that were not designated for publication in tort, insurance and civil law

206.  Underinsured motorist Statute of limitation
Hensley v. State Farm Mutual Automobile Ins. Co.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson County

We previously rendered an opinion reversing and remanding this matter to the trial court. The Kentucky Supreme Court granted discretionary review, vacated our decision, and remanded to us for further consideration in light of State Farm v. Riggs, 484 S.W.3d 724 (Ky. 2016). Having reviewed Riggs, we now affirm.

219.  The case of the removed walnut tree and attorneys fees and costs.
Dunaway v. Harrison
Court of Appeals Not to Be Published Opinion AFFIRMING – Estil

220.  Medical malpractice and missed sponges and suing the wrong party.  No relation back on case of mistaken identity.
Estate of Jeffrey Stevens v. Louisa Home Care Services
Court of Appeals Not to Be Published Opinion AFFIRMING – Lawrence


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.

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

MNT03032017

COA: Feb. 24, 2017 Court of Appeals Decisions (Minutes) (186 through 205 with 3 decisions designated to be published)

3 Published -- Lost OSHA appeal; judge abused discretion in ordering pre-litigation depositions; sole custody remanded for further proceedings. Selection Not to be Published -- Med-mal; UIM and coverage for loss of consortium claims; punitive damages affirmed on appeal

The Court of Appeals posted  20 decisions on Feb. 24, 2017, numbered 186  – 205 with 3 decisions designated for publication.

196.  UPS appealed and lost OSHA finding
Secretary of Labor, Commonwealth of Kentucky v. United Parcel Service, Inc.
Court of Appeals Published Opinion AFFIRMING – Franklin

197.  Insurance.  Reversed trial court judge (Mitch Perry) order granting insurance company request for pre-litigation depositions for abuse of discretion
Bryant v. Allstate Indemnity Co.
Court of Appeals Published Opinion REVERSING – Jefferson

Gary Bryant and Erica Brown appeal the Jefferson Circuit Court order compelling them to participate in pre-litigation depositions and produce documents to Allstate Property and Casualty Company1 (“Allstate”). Allstate filed the motion under Kentucky Civil Rules (CR) 27.01, which allows the taking of pre-action depositions and production of documents. Bryant and Brown maintain the trial court improperly granted the insurance company’s motion for pre-litigation depositions. After careful consideration, we reverse the trial court’s decision.

It is well-established that the “test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Kaminski v. Bremner, Inc., 281 S.W.3d 298, 304 (Ky. App. 2009)(citations omitted). Here, we hold that the trial court did abuse its discretion for not following the strictures of the civil rule. In particular, the trial court granted the petition without ascertaining whether Allstate had a cognizable action against Bryant and Brown; without determining whether any testimony was in danger of being lost, and thus, needed perpetuation pre-action; without insisting that the petition be verified; by granting the petition prior to notice being served on the adverse party; and finally, by its failure to decide whether a hearing was necessary.

202.  Family Law.  Award of sole custody remanding for further proceedings
Barney v. Bingham
Court of Appeals Published Opinion VACATING and REMANDING – Estill

Selected not to be published decisions – torts, insurance and civil:

188.  Medical malpractice, colonoscopy.
Ida Arnold v. Jewish Hospital & St. Mary’s Healthcare, Inc.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson

193.  UIM Coverage Question on insured and loss of parental consortium claim
Hetter v. State Farm Mutual Automobile Ins. Co.
COA Not to Be Published Opinion

While Mariah is an insured under the above policy language, Mariah is not claiming that she suffered bodily injury due to a motor vehicle accident. Rather, Mariah is claiming loss of parental consortium as the result of her father’s death in the motorcycle accident. It is well-understood in Kentucky jurisprudence that a loss of consortium claim is a derivative claim. Daley v. Reed, 87 S.W.3d 247 (Ky. 2002). As a derivative claim, Mariah’s right to recover arises out of and is dependent upon Jason’s right to recover. Jason is not an insured under the plain provisions of the motor vehicle insurance policy issued by State Farm to Thelma nor was he driving or occupying a covered motor vehicle per said policy at the time of his fatal accident. Accordingly, Jason has no legal right to recover damages of any kind under the motor vehicle insurance policy issued by State Farm to Thelma. As a result, Mariah, likewise, is not entitled to recover for loss of parental consortium under said policy.

199.  Award of punitive damages affirmed on appeal.
Mercer v. Estate of John W. Dempster
COA Not to Be Published Opinion  AFFIRMING – Hardin

 


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.

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

MNT02242017

COA: Feb. 17, 2017 Court of Appeals Decisions (Minutes) (162-185 with 5 decisions designated to be published)

Five published decisions - discretionary personal long arm jurisdiction; impeachment with felony; doctor sued for failing to report child abuse resulting in death of child . Selected not to be published - whether doctor was covered as a worker and did exclusive provisions of workers compensation apply to injuries from fall at hospital

The Court of Appeals posted  19 decisions on Feb. 17, 2017, numbered 162 – 183 with 5 decisions designated for publication.

162.  Piercing the corporate veil
Roscoe v. Angelucci Acoustic, Inc. 
Court of Appeals Published Opinion AFFIRMING – Fayette County

169.  Discretionary Personal Long Arm Jurisdiction declined by trial court
Worrell v. Stivers
Court of Appeals Published Opinion VACATING and REMANDING – Fayette

171.  Evidence.  Trial.  Impeachment with a felony conviction under KRE 609 examined.
Dixon v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING – Bell

178.  Claim by estate against doctor for failure to report abuse by deceased child’s uncle – KRS 620.030
A.A. by and through next friend and mother Rhonda Lewis  Dr. Kristy Shutts
Court of Appeals Published Opinion REVERSING and REMANDING – Floyd County

185.  Workers Compensation.  Entitlement to medical benefits and injury exacerbation
Ford Motor Co. v. Curtsinger
Court of Appeals Published Opinion AFFIRMING – Workers Compensation Board

Selected not to be published decisions – torts, insurance and civil:

172.  Workers Compensation.  Exclusiveness remedy and premises liability injury.
Sattenburg v. University Radiological Associates
COA Not to Be Published Opinion REVERSING and REMANDING – Jefferson
Dr. slipped and fell at hospital.  Issue was exclusive remedy provisions under workers compensation and where applied in this incident.  COA noted actions filed in both circuit court and workers compensation and defenses seemed inconsistent.


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.

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

MNT02172017

COA: Feb. 10, 2017 Court of Appeals Decisions (Minutes) (143 through 161 with 3 decisions designated to be published)(143-161)

Three published decisions - UIM and statute of limitations; charitable exemption for taxes; deed restriction changes and HOA. Selected not to be published - hair salon business suit; CR 60.02 denial not an abuse of discretion

The Court of Appeals posted  19 decisions on Feb. 10, 2017, numbered 143-161 with 3 decisions designated for publication.

143.  UIM and Statute of Limitations
Weird vs. State Farm Mutual Automobile Ins. Co.
Court of Appeals Published Opinion AFFIRMING – Jefferson County
COA held that the amended complaint for underinsured motorist claims was NOT timely filed even though the underlying cause of action against the tortfeasor was timely filed but the limits were tendered after the statute of limitations had expired.

“In conclusion, we discern no error in the trial court’s grant of summary judgment. Weird’s complaint was filed outside the contractual two-year limitations period and the relation-back provisions of CR 15.03 were inapplicable. Thus, summary judgment was appropriately granted and dismissal of the complaint was necessary and correct.”

A biting concurrence was filed by Judge Acree which is on point noting the flawed reasoning of  State Farm v. Riggs.

No surprise that this decision is not now final since discretionary review was filed on Mar. 17, 2017.  I assume discretionary review will be granted to ferret out this flaw in Riggs’ decision.

PRACTICE TIP.  Even though it would seem the Supreme Court expressed concerns about the statute of limitations and wasted litigation, the Court of Appeals was undeterred.  To avoid this problem, you should not only file suit against all the tortfeasors, but also against all (and I do mean all) UIM carriers to avoid this trap.  This case result is unjust and unfair, but that is what you gotta do. I would also encourage you  not only assert a claim for UIM but include an alternative pleading for UM benefits in the event the insurer prevails on a coverage defense for liability.

156.  Taxation. Ad valorem and application of charitable exemption under Sec. 170 of the Kentucky Constitution
Grand Lodge of Kentucky Free and Accepted Masons v. City of Taylor Mill
Court of Appeals Published Opinion AFFIRMING in part, REVERSING in part, and REMANDING – Scott County

157.  Real Property. Homeowners association and deed of restrictions
Cane wood Homeowners Association, Inc. v. Wilshire Investment Properties, LLC
Court of Appeals Published Opinion REVERSING and REMANDING – Scott County

“It is well-established that the interpretation of a deed presents an issue of law. Phelps v. Sledd, 479 S.W.2d 894 (Ky. 1972). The terms of a deed are generally given their ordinary meaning, and a deed must be interpreted as a whole. Id.; C.W. Hoskins Heirs v. Boggs, 242 S.W.3d 320 (Ky. 2007).”

Selected not to be published decisions – torts, insurance and civil:

147.  Appeals and CR 60.02 – no abuse of discretion by judge denying 60.02
Rankin v. Naqvi
COA Not to Be Published Opinion AFFIRMING – Jefferson

153.  Torts.  Business dispute with claims of slander per se and invasion of privacy countered by breach of contact and tortious interference with contractual and prospective contractual relations
Modern Hair Salon, Inc. v. Calvin Mitchell, Inc
COA Not to Be Published Opinion AFFIRMING – Jefferson

 


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.

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

MNT02102017

 

COA: Feb. 3, 2017 Court of Appeals Decisions (Minutes) (120 through 141 with 2 decisions designated to be published)

PUBLISHED (2): pro se foreclosure appeal; Invasion of privacy, breach of fiduciary duty and malicious prosecution all wrapped up in one case. SELECTED NOT TO BE PUBLISHED - immunity in school case.

The Court of Appeals posted  22 decisions on Feb. 3, 2017, numbered 120-141 with 2 decisions designated for publication dealing with foreclosure and

Published Decisions (with topic and county indicated) for Jan. 27, 2017

120.  Foreclosure appeal by pro se litigant
BOWLING VS.  APPALACHIAN FEDERAL CREDIT UNION
Court of Appeals Published Opinion AFFIRMING in part, REVERSING in part and REMANDING Jackson Cir. Ct.

Torts. Invasion of privacy, breach of fiduciary duty and malicious prosecution all wrapped up in one case
VENTURA VS. CENTRAL BANK
Court of Appeals Published Opinion AFFIRMING – Powell County

Selected not to be published decisions – torts, insurance and civil:

122.  Immunity.
FARRIS V. COLUMBIA
COA Not to Be Published Opinion DISMISSING appeal – Clark


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.

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

MNT02032017

 

COA: Jan. 27, 2017 Court of Appeals Decisions (Minutes) (103 through 119 with 4 decisions designated to be published)

Published - DNA Testing; Search Warrant; City police liability and SOP compliance; waste dumping. Not Published - Premises liability; zero pain and suffering verdict, new trial granted, and intro of UIM contract all wrapped up in one case!; duty to remove snow not the same as snow & ice for scope of employment and immunity; another nursing home arbitration case with bad POA

The Court of Appeals posted  17 decisions on Jan. 27, 2017, numbered 103-119 with 4 decisions designated for publication.

Published Decisions (with topic and county indicated) for Jan. 27, 2017

104.  Criminal Law.  Post-conviction DNA Testing.
Owens v. Commonwealth of Kentucky
Affirming – Simpson County

107.  Criminal Procedure.  Valid search warrant.
Lundy v. Commonwealth of Kentucky
Affirming – Nelson County

109.  Claim against city
Louisville Jefferson County Metro Gov’t v. Braden
Vacating and remanding, dismissing appeal –  Jefferson County

We hold that the trial court’s exclusive reliance upon Lewis’s compliance with Louisville Metro Police Department (LMPD) Standard Operating Procedures (SOPs) was misplaced. We further hold that, at the time of the accident, Lewis was not operating within the scope of his employment for purposes of triggering Louisville Metro’s statutory obligation to defend and indemnify him under CALGA. Therefore, we vacate the trial court’s order granting summary judgment in favor of the Estate; and we remand to the trial court for entry of an order granting summary judgment in favor of Louisville Metro.

112.  Regulatory Law. Waste dumping.  Easement.
South Central Kentucky Properties v. Commonwealth of Kentucky, Dept of Transportation
Affimring – Franklin County

Selected not to be published decisions – torts, insurance and civil:

105.  Premises liability.  Landlord tenant.
Carney v. Galt
Affirming in part, Reversing in part, remanding – Jefferson County

111.  Miller v. Swift, New Trial and Zero Pain and Suffering.  Introduction of UIM contract to jury not error.
Shelter Mutual Ins. Co. v. Sheffield
Affirming – Franklin County

Interesting case.  Judge granted new trial following zero pain and suffering verdict.  New trial awarded pain and suffering damages.  Insurance company appealed grant of new trial and COA affirmed as not clearly erroneous by trial judge.

We are not persuaded by Shelter’s argument that since interpretation of a UIM contract is strictly a matter of law for the court to decide, the introduction of the contract creates a risk of confusing the jury. First, the jury was aware that it was a contract case. Furthermore, it was not required to interpret the contract but rather to ascertain Loren’s damages. Finally, the trial court appropriately instructed the jury on its duties in the jury instructions.

We believe that the introduction of the contract permitted the jury to understand the reason for the case and their purpose in hearing the matter. Shelter’s claim of prejudice is unfounded. Consequently, the trial court did not abuse its discretion in admitting the contract into evidence. The document was relevant to the proceedings since a UIM claim is a contract claim.

115.  Immunity.  Distinction made in official duties on removal of snow vs. snow and ice.
Fields v. Baker
Reversing and Remanding – Laurel

In slip and fall case were two grounds crew members entitled to immunity in their individual capacities in removal of snow and ice?

The uncontested facts in this case are that: Fields and Rains plowed the snow off of the parking lot; it was not within the scope of their ministerial duties to remove ice from the student parking lots unless expressly directed to by the superintendent or assistant superintendent; and Baker slipped and fell on ice in the student parking lot.

As Baker’s injuries are alleged to have occurred by Fields and Rains failing to remove ice from the student parking lot, and it was not within the scope of their job duties to remove ice from the student parking lot, summary judgment is appropriate. Accordingly, we reverse and remand for proceedings consistent with this Opinion and Order.

Winter precipitation comes in many forms. As Yukon Cornelius so aptly perceived, “Terrible weather we’ve been havin’ . . . snow, and ice!” Rudolph, the Red-Nosed Reindeer (NBC, 1964). How you treat that snow and ice in parking lots can mean the difference between a treacherous path and a safe one.

118.  Nursing home.  POA not specifically address alternative dispute resolution.
LP Beattyville LLC v.  Estate of Dale Roger Brown
Affirming – Lee County

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.

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

MNT01272017

SC: March 2017 Decisions of the Supreme Court of Kentucky (Minutes)

Complete minutes with links to full text of all decisions posted by the Supreme Court this month.

Here are some of Mar. 2017 published cases:

  • Workers’ Compensation. Weekly permanent-partial disability benefits and lump-sum attorney’s fee payment. Application of a multiplier reflecting the future periodic payment of the attorney’s fee commuted to a present value.

  • Family Law. Maintenance. Unemployed Spouse. Reasonable Expenses. Whether the family court correctly included expenses that are fully or partially attributable to the parties’ children in the unemployed spouse’s reasonable expenses when calculating maintenance.

  • Premises Liability. Application of McIntosh and Shelton cases to a case involving a fall in a depressed area of the pavement in a parking lot. Is the condition “unreasonably dangerous” or “open and obvious?” Whether the business manager had sufficient control of the premises to be held jointly and severally liable.

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows.  Use the scroll arrows at the bottom left of the PDF document to scroll through the pages.

MNT032017