COA 2010 Minutes June 25, 2010 (Nos. 618 – 634) (plus the “Tort Report” of decisions)

COA 2010 Minutes June
25,
2010 (Nos. 618 – 634)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • Total number of decisions:  17
  • Published Decisions: 2 (618; 620)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

618.GOVERNMENT CONTRACTS.
CARTER (ARNOLD W.) VS. SMITH (JAMIE D.), ET AL
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE) LAMBERT (Senior Judge Joseph E. Lambert sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and KRS 21.580.)CONCURS) AND VANMETER (CONCURS IN RESULT IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION)
2007-CA-001853-MR
2007-CA-001891-MR
2007-CA-001892-MR
BOURBOn
TO BE PUBLISHED

NICKELL, JUDGE: This opinion consolidates one appeal and two cross-appeals stemming from a complaint filed by Jamie Smith, a parent and concerned citizen, against the Bourbon County Board of Education on December 3, 2002, and amended on February 4, 2003. The thrust of the amended complaint was that the Board went into executive session on December 19, 2002, to discuss “pending litigation and personnel,” and upon emerging from the closed session, took a vote and announced it had accepted the resignation of Arnold W. Carter as school superintendent, effective December 30, 2002, and had awarded him a twelve-month personal services contract (PSC) to commence on January 1, 2003. Smith alleged negotiation of the PSC during executive session violated Kentucky’s Open Meetings Act (OMA).2    The trial court agreed finding Carter was an independent contractor under the PSC, not an employee, and as such the consulting contract was not a personnel matter that could be legally discussed in executive session. As a result, Carter appeals from the order of the Bourbon Circuit Court entered on May 31, 2007, voiding his consulting contract due to the OMA violation as well as from an order entered on August 10, 2007, denying his motion to alter, amend or vacate the previously entered order. Smith and the Board have cross-appealed from the same two orders in an attempt to recoup the $20,536.92 paid to Carter under the consulting contract. We affirm.

620. CRIMINAL PROCEDURE.  SEARCH & SEIZURE; VEHICLE SEARCH, ANONYMOUS TIP.
GARCIA (JORGE), ET AL VS. COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS AND FILES SEPARATE OPINION) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2008-CA-001729-MR
2008-CA-001786-MR
2009-CA-000306-MR
FAYETTE
TO BE PUBLISHED

KELLER, JUDGE: Jorge Garcia, Jose Hernandez, and Anicasio Ramon Lopez (the Appellants) appeal from the order of the Fayette Circuit Court denying their motion to suppress evidence obtained during a vehicular stop. Having reviewed the parties’ arguments, the record, and the applicable law, we agree with the Appellants and accordingly reverse and remand. * * *

Because the tip in this case is from a truly anonymous informant, we agree with the Appellants that this case fits more into the category of J.L. and Collins. As in J.L. and Collins, the tip in this case, standing alone, did not carry sufficient indicia of reliability because it consisted of information readily available to a casual bystander and failed to provide any predictive information. Moreover, Officer May did not independently observe any illegal activity or suspicious behavior by the Appellants to corroborate the tip. It appears from the record that Officer May was acting in good faith and with the protection of the public in mind. However, given the totality of the circumstances, there was not sufficient indicia of reliability to justify the stop of the Appellants.

For the foregoing reasons, we reverse the order of the Fayette Circuit Court and remand this matter for further proceedings consistent with this opinion.

TORT REPORT – CIVIL, TORTS, INSURANCE CASES. 
IN ADDITION TO ANY TORT DECISIONS ABOVE THAT ARE PUBLISHED, THE FOLLOWING NPO DECISIONS ARE ADDED:

628.  STATUTE OF LIMITATIONS. TOLLING AGREEMENTS. AMBIGUITY.
LESLIE (DAFFERE) VS. LCA-VISION, INC , ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2009-CA-000899-MR
NOT TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE: Daffere Leslie appeals from an order of the Jefferson Circuit Court that granted summary judgment to the appellees, Dr. Jason Greenberg and LCA-Vision, Inc., d/b/a Lasikplus Vision Center (“LCA-Vision”) in an action for medical negligence. The trial court concluded that Leslie’s claims were time- barred. We affirm.

The parties agree that Leslie was last treated by Dr. Greenberg at Lasikplus Vision Center in Louisville on February 20, 2007. She then consulted with an attorney. The day before the statute of limitations was to run on her claims, the parties executed a written document styled: Tolling Agreement. In the agreement, the parties acknowledged that Leslie’s claims were subject to a period of limitations that “would expire before all of the causes of action, claims, and damages could be fully investigated.” Referring to the provisions of Kentucky Revised Statute(s) (KRS) 413.265,1 the parties declared in paragraph D of the agreement that the limitations period for the filing of Leslie’s civil action would be extended until midnight on May 20, 2008.

* * *

In the case before us, the trial court concluded that the intention of the parties was not readily apparent from the face of the instrument and that it could not be enforced according to its terms. It observed as follows:

The dispute in this case, however, surrounds the interpretation of the tolling agreement. The pertinent language that gives rise to our present difficulty is found in section B and D of both tolling agreements [the original agreement and the amendment of May 15, 2008]. That language states as follows:

B. Limitations Defense
Greenberg and LCA shall not assert, plead, or rely upon any statute of limitations, period of limitations or the equitable doctrine of laches in the defense of any Subject Claim asserted in any civil action commenced after expiration of the period provided in Section D of this Tolling Agreement, unless the limitation period asserted, pled, or relied upon expired prior to the effective date of the Tolling Agreement.
D. Tolling Period

The parties hereto agree that the applicable period of limitations for the commencement of litigation with respect to any Subject Claim shall be tolled from the effective date until midnight on May 20, 2008. (Later amended to August 20, 2008).

The time limitations addressed in these paragraphs are mutually exclusive. When read separately, the trial court concluded that each paragraph is reasonable. However, when read together, the provisions render the agreement essentially nonsensical. We agree with the court’s observations and conclude that it did not err by determining that the parties’ agreement was ambiguous.

630.  SUMMARY JUDGMENT.  UNAUTHORIZED INSURER. BAD FAITH CLAIMS.
PERKINS (JOHN GERSTAL) VS. INTERSTATE FIRE AND CASUALTY COMPANY , ET AL.
OPINION AFFIRMING
WHITE (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
NICKELL (CONCURS) AND STUMBO (CONCURS)
2009-CA-001137-MR
NOT TO BE PUBLISHED
MCCREARY

WHITE, SENIOR JUDGE: John Perkins appeals from a McCreary Circuit Court summary judgment in favor of Interstate Fire and Casualty Company (Interstate).

Perkins claims that Interstate’s filings and motions should not have been considered by the trial court because Interstate is not an authorized insurer in Kentucky. Perkins further claims that Teresa Couch, Wayne Couch, and Mike Richards failed to meet their burden under the summary judgment standard. After a careful review of the record and the arguments of counsel, we conclude that both claims are without merit.

* * *

First, Perkins claims KRS 304.11-040 prevented the trial court from considering Interstate’s filings and motions because Interstate is an unauthorized insurer in Kentucky. Specifically, Perkins relied on KRS 304.11-040(7), which provides:

Before any unauthorized person or insurer
files or causes to be filed in any pleading in any court action, suit, or proceeding or in any notice, order, pleading, or process in such administrative proceeding before the executive director instituted against such person or insurer, by services made as provided in subsections (1) to (5), inclusive, of this section such person or insurer shall either:
(a) Deposit with the clerk of the court in which such action, suit, or proceeding is pending, or with the executive director in administrative proceedings before the executive director, cash or securities, or file with such clerk or executive director a bond with good and sufficient sureties, to be approved by the clerk or executive director in an amount to be fixed by the court or executive director sufficient to secure the payment of any final judgment which may be rendered in such action or administrative proceeding.

(b) Procure a certificate of authority to transact the business of insurance in this state.

Perkins claims that Interstate failed to take either action under the above statute.

Although the statute clearly requires unauthorized insurers doing business in Kentucky to take specific steps in order to defend themselves in legal actions, the statute does not apply to Perkins’ case. Perkins did not have a contractual relationship with Interstate. He did not own the property that Interstate insured. He had no claim to any coverage proceeds. Further, Perkins’ lawsuit against Interstate did not involve a business practice but a malicious prosecution claim. There is no requirement that an unauthorized insurer take the steps specified in KRS 304.11-040(7) when defending itself against a non-business claim.

COMMENT.  Just to make sure it is clear, the appellant herein was not a named insured, did not own the property damaged by the fire loss, was not entitled to collect any insurance proceeds on the claim and had no connection with the claim.  The appellant was the father of the insured with Interstate, but the insurer was not a party to the underlying law suit.  The essence of the appellant Perkins claim was the allegations raised by the Insurer to the fire loss relied upon allegations made that Perkins assisted in the arson.  When the arson charges were dropped, then Perkins went after Interstate. 

Thus, if the action had been such that it was a first party claim by the insurer, then the unauthorized insurer needed to post bond or get DOI approval.  If he had been a third party claimant, then Interstate would  be required to post bond to satisfy any judgment or become authorized to do business.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.