SC: December 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

No decisions for month of November 2016.

Here are the December 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

  • Click here for the AOC Indexed Summaries by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.

Selected civil, torts, and insurance decisions that were published.

ATTORNEY FEES
Thomas K. Stone v. Pennie Dubarry (now Detorres), et al.
2015-SC-000040-DG December 15, 2016

Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Hughes and Cunningham, JJ., concur. Venters, J., concurs by separate opinion in which Wright, J., joins. Keller, J., concurs in result only by separate opinion. The Appellant, an attorney, represented the wife in a divorce dissolution proceeding. Unbeknownst to the husband, the Appellant’s employment contract with the wife granted the Appellant a lien “on all Client’s assets, now owned and hereafter acquired to secure payment” of attorney fees and costs. With the Appellant’s assistance in negotiations, the parties eventually entered into a property-settlement agreement. It provided that the husband would retain ownership of the marital residence and pay the wife $20,000 for her interest in the home. The agreement stipulated that those funds would come from refinancing the property. The Appellant never advised the husband during negotiations that he had a contractual lien against his client’s property as security for payment of his fee. The trial court entered a decree of dissolution incorporating the property-settlement agreement. Thereafter, the wife failed to pay the Appellant his fee, and he filed a notice of a lien in the amount of $7,142.82 against the marital residence. The trial court granted the husband’s motion to release the lien, and the Court of Appeals affirmed.

Having granted discretionary review, the Supreme Court affirmed. It held that the statute governing attorney-fee liens, KRS 376.460, does not apply to property assigned or divided in divorce proceedings. The Court further held that although an attorney may, in the alternative, obtain a contractual lien on marital property though a contract of employment, such liens will not be effective against property belonging to third parties unless they have timely notice of the lien. Because the Appellant gave the husband no notice of his contractual lien on the wife’s interest in the marital residence, the trial court was correct to release it once the husband became the property’s sole owner.

TRIAL  EVIDENCE.  SEPARATION OF WITNESSES RULE.

Kathy McAbee v. Darren C. Chapman, M.D.
2014-SC-000555-DG December 15, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. This medical malpractice action against a surgeon resulted in a jury verdict for the defendant. Upholding that result in an unanimous opinion, the Supreme Court agreed with the plaintiff/appellant that the trial court had misapplied the separation of witnesses rule (Kentucky Rule of Evidence 615) when it excepted from the rule two of the defendant’s expert witnesses without requiring an adequate showing of necessity for the expert witnesses’ presence in the courtroom during the testimony of other witnesses. The Supreme Court held, however, that having reviewed the trial testimony in its entirety the error was harmless.

GOVERNMENTAL IMMUNITY
Kentucky River Foothills Development Council, Inc. v. Cathy Phirman, Etc.., et al.
2015-SC-000244-DG December 15, 2016

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Cunningham, Noble and Wright, JJ., concur. Venters, J., concurs in result only by separate opinion in which Hughes, J., joins. Kentucky River is a community action agency which receives and distributes federal block grants in order to alleviate poverty by providing employment opportunities and improving living conditions of the poor. One of the entities Kentucky River administers is Liberty Place Recovery Center for Women, an in-house peer-based substance abuse treatment facility. Melissa Steffen, who suffered from bipolar disorder, had been approved for parole but could not be released from prison until she found a suitable residence. In order to facilitate Melissa’s release from prison, her mother arranged for Melissa to be placed at Liberty Place. While Melissa was at Liberty Place, she ran out of her medication and her mental state began to deteriorate to the point that she left the facility. Following a number of alleged mis-steps by Liberty Place staff, Melissa committed suicide. Her estate filed suit against Liberty Place and Kentucky River. Kentucky River filed a motion for summary judgment arguing that it was entitled to governmental immunity. Relying on Comair, Inc. v. Lexington-Fayette County Airport Corp., 295 S.W.3d 91 (Ky. 2009), the circuit court denied Kentucky River’s motion. The Court of Appeals affirmed, finding that Kentucky River could not pass Comair’s “parent test” because it had not been created by an immune parent.

The Supreme Court affirmed. The majority noted that the Comair test contains two parts: whether the agency is the “child” of an immune “parent;” and whether the agency performs an integral state function. The majority noted that the circuit court and the Court of Appeals focused on Kentucky River’s parentage when the primary problem is Liberty Place’s function. The majority noted that Kentucky River argued it was performing a governmental function – alleviating poverty. However, the majority held that, if the alleviation of poverty is a governmental function, providing drug rehabilitation is not because providing drug rehabilitation alleviates substance abuse, not poverty. Therefore, Kentucky River did not meet the second prong of the Comair test. In his separate concurring opinion, Justice Venters stated that none of Kentucky River’s operations would be entitled to immunity because Kentucky River was performing a federal function not a state function.

December2016

SC: October 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the October 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

PREMISES LIABILITY, SLIP AND FALL (MCINTOSH REVISITED)

Ralph M. Goodwin v. Al J. Schneider Company D/B/A Galt House & Galt House East 

2015-SC-000380-DG October 20, 2016 

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Venters, J., concurs in result only. Cunningham, J., dissents without opinion. Mr. Goodwin, who was staying with his wife at the Galt House, slipped and fell while getting into the shower. Goodwin filed suit alleging that the Galt House failed to warn of the dangerously slippery condition and/or to take reasonable care to eliminate the condition by, in pertinent part, providing a bathmat. The Galt House moved for summary judgment arguing that it was not an insurer of Goodwin’s safety and that he had failed to exercise ordinary care to prevent his injury from an open and obvious condition. The circuit court granted the Galt House’s motion and Goodwin appealed to the Court of Appeals, which affirmed.

The Supreme Court reversed the Court of Appeals. In doing so, the Court noted the evolution of the law regarding the “open and obvious” affirmative defense that began with Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) and continued through Shelton v. Kentucky Easter Seals Society, Inc., 43 S.W.3d 901 (Ky. 2013) and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015). After summarizing the preceding cases, the Court held that “a landowner has a duty to take reasonable steps to eliminate unreasonably dangerous conditions on its land. The question for the court on summary judgment is whether the landowner breached that duty, a duty that exists whether the conditions are open and obvious or hidden. Thus, in determining whether the landowner has breached that duty, the court does not look to whether the conditions were open and obvious but to whether the landowner took reasonable steps to eliminate the risks created by the conditions.” Applying the preceding to the Galt House, the Court noted that the circuit court, in granting summary judgment, and Court of Appeals, in affirming, focused on a lack of industry standards setting forth a duty to provide bathmats. The Court held that the issue was not whether the Galt House had a duty to provide bathmats but whether the failure to provide bathmats breached the Galt House’s duty of care.

October2016

SC: September 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the September 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Insurance Law:

Samantha G. Hollway v. Direct General Insurance Company of Mississippi, Inc. 
2014-SC-000758-DG September 22, 2016

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Hollaway was involved in a low speed collision in a parking lot with Direct General’s insured. Direct General arguably assumed liability for causing the accident, but later recanted and disputed liability. Hollaway filed a multitude of claims, including a bad faith claim against Direct General for failing to fairly negotiate her claim. The trial court awarded Direct General summary judgment and the Court of Appeals affirmed.

A unanimous court affirmed the Court of Appeals. Though it is debatable whether the insurance company admitted causing the accident, it never conceded liability for the injuries she claims she sustained from the accident—Hollaway’s profession rendered itself to injuries of this type. But even if Direct General conceded liability, Hollaway failed to establish that the insurer acted with the level of intent necessary to prove a bad-faith claim. Notably, the Court removed the word “evil” from consideration in this aspect of the analysis.

Malicious Prosecution:

Gary Martin v. Stephen O’Daniel 
2014-SC-000373-DG 
Mike Sapp v. Stephen O’Daniel 
2014-SC-000389-DG
Bobby Motley v. Stephen O’Daniel 
2014-SC-000394-DG
September 22, 2016

Opinion of the Court by Justice Venters. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Cunningham, J., dissents by separate opinion in which Keller, J., joins. Police officers sued for malicious prosecution arising from their investigatory activities which led to the indictment and trial of the plaintiff for forgery, arising from his effort to obtain legal title to a stolen vehicle. Issues presented: 1) Whether police officers have governmental immunity from suit for malicious prosecution; 2) whether officers who turned over evidence to the prosecutor, who in turn made the prosecutorial decision to seek indictment, could be liable for malicious prosecution upon plaintiff’s acquittal. Held: 1) the doctrine of governmental immunity does not protect government employees for malicious conduct. Plaintiff asserting claim of malicious prosecution must prove malice, which if proven, negates the defense of governmental immunity; 2) “procuring” a criminal or civil judicial proceeding is synonymous with being the proximate and efficient cause of putting the law in motion against another person; 3) abrogating 4

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky.1981), the Supreme Court restated the elements of malicious prosecution action as follows: 1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff; 2) the defendant acted without probable cause; 3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based; 4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and 5) the plaintiff suffered damages as a result of the proceeding.

Medical Malpractice Discovery.  Writ of Prohibition.

Baptist Health Richmond, Inc. v. Hon. William G. Clouse, Jr., Judge, Madison Circuit Court, Division 1, et al.
2015-SC-000657-MR September 22, 2016 

Opinion of the Court by Justice Keller. All sitting. Keller, Cunningham, Noble and Venters, JJ., concur. Hughes, J., concurs by separate opinion in which Minton, C.J., and Wright, J., join. The issue before the court involved the interaction of Kentucky’s discovery rules in medical malpractice cases and the federal Patient Safety and Quality Improvement Act (the Act). Note that the Court had previously addressed this interaction in Tibbs v. Bunnell, 448 S.W. 3d 796 (Ky. 2014), a plurality opinion.

Congress enacted the Act to encourage hospitals to engage in self-analysis. It therefore provides that certain information obtained during that self-analysis and contained in the hospital’s safety evaluation system is protected from discovery. However, the Act also states that its intent was not to interfere with existing state reporting requirements and discovery rules. Thus, information mandated by state requirements and otherwise discoverable would not be protected by the Act. The plaintiff in this case requested a number of documents which Baptist Health refused to produce claiming protection under the Act.

The Court, based on recently generated guidance from the Department of Health and Human Services, noted that the Commonwealth requires hospitals to collect certain information which has traditionally been discoverable. A hospital cannot, 6

based on the Act, claim that such otherwise discoverable information is protected by the Act. Furthermore, a hospital cannot take otherwise discoverable information, place it in a protected safety evaluation system, and claim that the information is not discoverable. As long as a hospital is complying with its state mandated reporting requirements, the trial court has no reason to examine the information in the protected safety evaluation system. However, if a hospital is not complying with state mandates, the court can conduct an in camera review of the information in the protected safety evaluation system to determine if any state mandated information is contained therein.

In her concurring opinion, Justice Hughes further delineates the procedure a court should undertake in determining whether and to what extent contested information is discoverable.

 

September2016

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

Here are the August 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Only one insurance decision – underinsured motorist benefits.

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

2014-SC-000265-DG August 25, 2016

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

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

August2016

COA: 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

COA: June 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.

Download (PDF, Unknown)

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

Appeals real part in interest includes owner of property; law of the case; attorneys fees and discovery violations; immunity and supervisors; qualified immunity and discretionary acts to close schools for snow; two year SOL strictly applied in claim against employer's UIM; homeowner insurance exclusion for criminal acts; title transfer impact in MVA case liability; tortious interference with contractual relations in legal contract

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.  However, here are selected published decisions dealing with torts, insurance, and civil matters of note from the Court of Appeals of Kentucky as summarized by the AOC.

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.

APPEALS.

Icon-Lex Development, LLC v. REI Real Estate Services, LLC
2014-CA-001643 05/13/2016 2016 WL 2855298

Opinion and order dismissing by Judge VanMeter; Judges Combs and J. Lambert concurred. Upon review of an order granting judgment on the pleadings in a case involving an easement, the Court of Appeals dismissed the appeal, finding that the Court had no jurisdiction. The Court held that when an easement has been judged to be appurtenant, and thus benefits a specific piece of land rather than a specific person, the current owner of the benefitted parcel is undoubtedly affected by the Court’s decision on appeal and, therefore, is an indispensable party to the appeal. Under the appellate civil rules, failure to name an indispensable party on appeal is an incurable jurisdictional defect requiring dismissal. Consequently, because the current owner of the subject property was not made a party to the appeal, dismissal was merited.

COURTS.

DKM Coal Corporation, Inc. v. Crawford
2013-CA-001936 05/13/2016 2016 WL 2855871

Opinion by Judge J. Lambert; Judges Maze and Taylor concurred. Determining that no material issue of fact existed with regard to the ownership of coal tippling rights, the Court of Appeals affirmed the circuit court’s entry of summary judgment in favor of appellees. Notably, the Court held that a sublessee’s shareholders’ admission, in open court at a hearing before the circuit court, that they owed damages to a sublessor’s shareholder, was a judicial admission that could be used against sublessee’s shareholders under the Kentucky Rules of Evidence. The Court further held that its prior holding in the same matter that a sublease contract’s reference to “personal liability” imposed liability on the corporate sublessee’s individual shareholders was the law of the case on a subsequent appeal in the same case, regardless of any discussion of the applicability of the term “person” to corporations in the later-decided United States Supreme Court case of Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). The Court also held that a delay of approximately four years after the Court issued its opinion in a prior appeal did not require dismissal of sublessors’ breach of sublease action for failure to prosecute. Most of the delays were attributable to the sublessees, an extensive delay occurred when the sublessees appealed from an interlocutory order, and further delay occurred when the sublessees obtained a new attorney who later withdrew.

FEES AND COSTS.

Hencye v. White 
2013-CA-002079 05/27/2016 2016 WL 3050079

Opinion by Judge Thompson; Judge D. Lambert concurred; Judge Dixon dissented. Appellant challenged an order directing her to pay $8,000 of her ex-husband’s attorneys’ fees incurred as a result of alleged discovery violations after she requested appointment of a parenting coordinator. The Court of Appeals reversed, holding that under KRS 403.220, attorneys’ fees cannot be awarded absent a finding of a disparity in income between the parties and, further, that the conduct of the party seeking attorneys’ fees must be considered. Additionally, the Court held that CR 37 cannot justify an award of attorneys’ fees where there was not a “pending” action, and that a request for the appointment of a parenting coordinator, standing alone, did not satisfy this requirement in the absence of any motion to modify custody or parenting time. The Court also held that appellant could not be ordered to pay attorneys’ fees incurred as a result of her current husband’s noncompliance with the family court’s orders to produce a HIPPA release.

IMMUNITY.

Beward v. Whitaker
2013-CA-000773 05/06/2016 2016 WL 2609308

Opinion by Judge J. Lambert; Judges Jones and Stumbo concurred. On remand from the Supreme Court of Kentucky, the Court of Appeals reversed its original holding in which it affirmed the circuit court’s interlocutory decision that two high school principals were not entitled to qualified official immunity for injuries a student sustained in a hallway that was left unsupervised because the teacher assigned to supervise that station pursuant to the supervision schedule was absent that day. The Court originally held that the principals’ duty to enforce the supervision schedule and to supervise the hallway was ministerial, and thus they were not entitled to immunity. However, on reconsideration in light of the Supreme Court’s holding in Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014), the Court held that because the supervision schedule did not include any direction or rule to address when a teacher or administrator assigned to a post was absent, it did not create a ministerial duty to ensure that the station was manned in the absence of a teacher. The principals had a general supervisory duty to make the hallway assignments and to walk the hallways as part of their job requirements. In the absence of a clear directive as to what to do when a teacher assigned to a post was absent, it was left to the principals’ discretion as to how to proceed, entitling them to qualified official immunity.

Rasche v. Berman
2012-CA-001766 05/20/2016 2016 WL 2981636

Opinion by Judge J. Lambert; Judges Kramer and VanMeter concurred. On remand from the Supreme Court of Kentucky for further consideration in light of Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014), the Court of Appeals affirmed the circuit court’s determination that various employees of the Jefferson County Board of Education were entitled to qualified official immunity. The Court held that the employees’ decision as to whether to close school due to inclement weather and the manner in which school parking lots were cleared amounted to discretionary functions. As such, qualified official immunity attached.

INSURANCE.

Brown v. Mitsui Sumitomo Insurance Company
2013-CA-001191 05/06/2016 2016 WL 2609303

Opinion by Judge Nickell; Judges Dixon and Kramer concurred. Appellant was injured in a work-related motor vehicle accident while riding in his employer’s vehicle. Appellant filed for and received workers’ compensation benefits from his employer’s workers’ compensation carrier. Knowing the Workers’ Compensation Act provides an exclusive remedy, appellant mistakenly believed that his employer, Trim Masters, Inc., and its underinsured motorist (UIM) carrier, Mitsui Sumitomo Insurance Company, were immune from suit. However, KRS 342.690(1) does not prohibit suit against a UIM carrier after payment of a workers’ compensation claim. Two days shy of two years from the collision, appellant filed suit against the tortfeasor and against his own UIM carrier, State Auto; he did not file suit against Mitsui. In response, State Auto asserted that its UIM coverage was secondary to that provided by Mitsui and sought leave to file a third-party complaint against Mitsui. Appellant initially opposed the motion, but then conceded that Mitsui should have been named as a defendant and moved to file an amended complaint to add them. State Auto also moved for summary judgment. The circuit court sustained both motions and named Mitsui as a defendant. Mitsui answered the complaint asserting that Trim Masters’ insurance policy required a UIM claim to be filed within two years of accrual and moved for judgment on the pleadings since the amended complaint was filed nearly three years after the collision. The circuit court found that: (1) two years was a reasonable contractual window in which to file suit; (2) appellant’s failure to name Mitsui as a defendant when he filed against the tortfeasor and his own personal UIM carrier was fatal because he had to exhaust UIM benefits from Mitsui (the primary carrier) before he could pursue benefits from State Auto (the secondary carrier); and (3) as a third-party beneficiary under his employer’s policy, appellant could enforce the policy’s terms, but he had to enforce all of its terms and not only the ones that benefitted him. Thus, UIM benefits had to be claimed within two years of accrual. The Court of Appeals affirmed. Since appellant had filed suit against the tortfeasor and his own UIM carrier within two years, there was no reason he could not have filed against his employer’s UIM carrier at the same time. The Court noted that appellant’s counsel need not have waited until his investigation was complete before filing suit; so long as he did due diligence to believe Mitsui was potentially liable, the complaint could have been filed.

Eberle v. Nationwide Mutual Insurance Co.
|2013-CA-000898 05/06/2016 2016 WL 2609311

 Opinion by Judge Jones; Judges J. Lambert and Stumbo concurred. This appeal concerned coverage under a homeowner’s insurance policy issued by Nationwide Insurance Company to Michael Bishop. The circuit court determined that Nationwide was not obligated to provide coverage for injuries appellant sustained when Bishop shot him because the injuries were caused by conduct expressly excluded from coverage in Nationwide’s policy. On appeal, the Court of Appeals determined that Nationwide’s criminal acts exclusion applied to an “act or omission which is criminal in nature” such that it constituted a felony or misdemeanor under Kentucky’s Penal Code. Under this definition, offenses punishable only by a fine would not be covered by the criminal acts exclusion because such offenses are violations, not misdemeanors or felonies. See KRS 500.080; KRS 431.060. Traffic infractions are likewise excluded from Kentucky’s definition of a misdemeanor. See KRS 500.080. Bishop pled guilty to wanton endangerment in the first degree, a Class D felony. The Court noted that intentionally pointing a gun at an unarmed child is the type of conduct every citizen should know is wanton and criminal. The Court refused to accept that Bishop could have reasonably expected such core criminal conduct to fall outside of Nationwide’s criminal acts exclusion. Accordingly, the Court held that the exclusion applied in this case. The Court then determined that Bishop’s Alford plea collaterally estopped him from denying civil liability and that the conviction established Bishop’s factual guilt irrespective of the fact that the conviction was obtained through entry of an Alford plea.

TORTS

Burchett v. Burchett 
2015-CA-000198 05/13/2016 2016 WL 2855384

Opinion by Judge D. Lambert; Judges Combs and VanMeter concurred. This appeal was brought from an order finalizing dismissal of a wrongful death suit against an automotive dealer and his insurer. Amanda Burchett and Erick Blair (Blair) bought an automobile from David Perry, d/b/a Louisa Auto Mart (Perry). Blair crashed the automobile six days later while driving intoxicated. Amanda Burchett and Benjamin Burchett II were riding with Blair at the time. Benjamin was killed in the crash. Sandra Burchett, as the representative of Benjamin’s estate, later filed a wrongful death action against Blair and Perry. In the complaint, she alleged: (1) that Perry violated KRS 186A.220 because he sold the automobile to Blair and Amanda and neither one had insurance; (2) that Perry violated KRS 186.620 by authorizing and permitting a person without a driver’s license to drive an automobile; (3) that Perry negligently entrusted the automobile to Blair and Amanda; and (4) that Perry remained the owner of the automobile because he sold it to individuals who did not have insurance in violation of KRS 186A.220. The circuit court granted Perry’s motion for summary judgment as to the violations of KRS 186A.220 and held a jury trial to decide two issues: whether Perry delivered title documents to Blair and Amanda on the day of the sale (yes), and whether Amanda had a driver’s license (no). Based on the jury’s determination, the circuit court ruled that title to the automobile transferred on the day of the sale, eliminated any issues relating to Perry’s alleged liability, and dismissed Perry from the action. On appeal, Sandra argued: (1) that Perry breached a statutory duty of care by authorizing or knowingly permitting Blair to drive the automobile because Blair did not have a driver’s license; (2) that Perry had a duty to verify that Blair and Amanda were insured; and (3) that a jury issue remained as to whether Perry negligently entrusted the vehicle to Blair and Amanda because he should have known that neither Blair nor Amanda had a driver’s license or insurance. The Court of Appeals rejected all three arguments and affirmed. Because Perry delivered the necessary title documents to Blair and Amanda on the day of sale, Blair and Amanda became the owners of the automobile on that day. Moreover, since Perry was no longer the owner, he was under no duty to prevent either Blair or Amanda from driving the automobile on the day of the accident. Finally, because Perry transferred the title documents to Blair and Amanda directly, and did not retain the certificate of title with the consent of the new owners to file it with the county clerk, he did not have to verify whether Blair or Amanda was insured. The Court further held that because the accident occurred after the sale, the negligent entrustment claim against Perry failed as a matter of law.

DeMoisey v. Ostermiller
2014-CA-001827 05/06/2016 2016 WL 2609321

Opinion by Judge Jones; Chief Judge Acree and Judge Clayton concurred. This appeal and cross-appeal arose out of a civil action wherein appellants/cross-appellees, J. DeMoisey Fox and the DeMoisey Law Office, PLLC (“DeMoisey”), asserted claims against appellee/cross-appellant, attorney Peter L. Ostermiller, for tortious interference with contractual relations, tortious interference with prospective contractual relations/business advantage, and abuse of process. The claims arose out of Ostermiller’s advice to and representation of Infocon Systems, Inc. (“Infocon”), a former client of DeMoisey. The Court of Appeals held that DeMoisey could not rely on an alleged contingency fee agreement that had previously been determined to violate the Kentucky Rules of Professional Conduct to support a tortious interference with contractual relations claim. The Court also held that DeMoisey had failed to allege a cognizable tortious interference with prospective contractual relations/business advantage claim because in the absence of a valid contingency fee agreement, his only expectancy was to receive a fee in quantum meruit. With respect to the cross-appeal, the Court determined that the abuse of process claim should have been dismissed with prejudice because it was time barred. The Court held that successful termination of the underlying action is not an element of an abuse of process claim and, therefore, the statute of limitations on such a claim begins to run when the conduct comprising the abuse takes place.

Goins v. Lafoe
2014-CA-001476 05/27/2016 2016 WL 305023

Opinion by Judge Dixon; Judges Combs and D. Lambert concurred. The Court of Appeals affirmed an order granting summary judgment for appellees on the grounds that appellant’s tort claims were time-barred. Appellant asserted that the five-year limitations period set forth in KRS 413.120(2) applied to her claims, which she characterized as statutory violations of the penal code. The Court held that appellant could not circumvent the applicable statute of limitations (KRS 413.140(1)(a)) by characterizing her tort claims in this manner. Appellant’s cause of action concerned physical injuries she allegedly suffered at the Lexington-Fayette Urban County Government Detention Center. Consequently, the one-year statute of limitations applicable to personal injury actions applied. Since appellant waited nearly five years before filing suit, her claims were time-barred. The Court also held that appellant’s plea agreement in a related criminal action barred her subsequent claim of malicious prosecution as a matter of law.

 

Download (PDF, Unknown)