November 2012 SCOKY Monthly Case Summary of Published Decisions

Sorry, playing a little catchup here in the interest of having a complete set of SCOKY Minutes available on the Kentucky Court Report.

Click here for the November 2012 summaries of published decisions from the Supreme Court of Kentucky (SCOKY).

Click here for list of all summaries for SCOKY by year and month at AOC.

TORT REPORT (the following are summaries of selected decisions from this month dealing with torts, insurance, and civil procedure):  No tort decisions this month.

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Standards of Review: Of trial court’s denial of summary judgment re appealability of denial vs. granting vs. governmental immunity

The following decision summarizes the law regarding appeal of summary judgment ruling.

Although not an issue presented, we clarify a procedural point. A denial of summary judgment is generally interlocutory and not appealable. However, a denial of summary judgment that constitutes adjudication on the merits or based purely on a matter of law is reviewable on appeal. Ford Motor Credit Co. v. Hall, 879 S.W.2d 487, 489 (Ky.App. 1994). The questions presented in this case are purely questions of law and, therefore, the denial of summary judgment is properly before this Court.2

See Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), holding that a denial of summary judgment on the basis of governmental immunity is immediately appealable. Although that case involved governmental immunity, its reasoning is equally applicable to this case involving qualified official immunity.

647
GIBSON (CARLA)
VS.
HICKS (DONNA K.)
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER (CONCURS)
2011-CA-001090-MR
TO BE PUBLISHED
PERRY

Summary Judgment: NPO COA decision in Gant v. State Farm re PIP, wage loss, self employed, and opportunity to engage in discovery prior to summary judgment

In Gant v. State Farm, NPO, COA 4/22/2011, Judge Moore in a nonpublished COA decision dealt within the PIP context the proof needed to obtain lost wages by a self-employed claimant.  In this case, the claimaint presented a spreadsheet on lost income, but the PIP carrier requested tax returns.  The returns were never provided presuit or during suit.  State Farm obtained summary judgment, and the issues were the burden and the opportunity to present evidence.

The reason I am noting this decision is the fact that obtaining wage loss for self-employed persons is difficult. Although the tax returns were requested, they were not provided.   However,  if the tax returns had been provided, what would they have calculated the wage loss on gross sales/earnings or net earnings (after expenses etc)?

All too often, I encounter adjusters who want the net as the basis for calculating wage loss.  This is not correct (IMHO).  Why?  The expenses continue, and it is the wages/earnings that stop.  If the person was employed, then looking at net business income would be the same as looking at the claimant’s individual tax returns after deductions, exclusions, standard deductions, etc.  I just wanted to make that point since I am sometimes concerned that appellate decisions ignore the realities of the world.

The other issue which I thought was of interest is that summary judgment motions sometimes are fast and furioius and forego the opportunity to flesh out the facts.  This case has some good law regarding the standard of review on this point.  Please note that the COA held that the opportunity to engage in discovery and prove her point was amply given to the claimant/plaintiff.

The standard for summary judgment is as follows: “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  CR3 56.03.

Summary judgment is appropriate when it “appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Also, summary judgment cannot be avoided solely on the basis that a party hopes to obtain evidence in the future that will create a genuine issue of material fact. Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968). However, “summary judgment is only proper after a party has been given ample opportunity to complete discovery[.]” Pendleton Brothers Vending, Inc. v. Commonwealth Finance and Administration Cabinet, 758 S.W.2d 24, 29 (Ky. 1998). It is not necessary that a party actually complete discovery, only that they had an opportunity to do so. Hartford Insurance Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979). We review a grant of summary judgment de novo. Burton v. Kentucky Farm Bureau Mut. Ins. Co., 326 S.W.3d 474, 475 (Ky. App. 2010).