COA 2010 Minutes May 14, 2010 (Nos.468-489)

COA 2010 Minutes May 14, 2010 (Nos.468-489)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • 22 decisions
  • Published Decisions:  2

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

477 – DEFAULT JUDGMENT, SETTING ASIDE
HUTCHERSON (JAMES W.), ET AL. VS. HICKS, M.D. (GLEN)
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2009-CA-000370-MR
TO BE PUBLISHED
JEFFERSON

TAYLOR, JUDGE: James and Sharon Hutcherson bring this appeal from a February 16, 2009, judgment of the Jefferson Circuit Court dismissing the Hutchersons’ medical malpractice action against Dr. Glen Hicks upon a jury verdict in his favor. We reverse and remand.

On May 18, 2000, the Hutchersons filed a complaint against, inter alios, Dr. Hicks and Cypress Medical Associates, P.S.C., alleging medical malpractice. At the time of the alleged malpractice, Dr. Hicks was employed by Cypress Medical. Although duly served with summons and a copy of the complaint, Dr. Hicks failed to file a responsive pleading, enter an appearance, or in any way respond thereto.

Almost three years later, on March 14, 2003, the Hutchersons filed a motion for default judgment pursuant to Kentucky Rules of Civil Procedure (CR) 55.01. By default judgment entered March 27, 2003, the circuit court granted a default judgment against Dr. Hicks as to liability only. A hearing was thereafter scheduled on June 24, 2003, to assess the amount of damages. A copy of the notice of hearing was sent to Dr. Hicks at his last known address, which was also his work address.1    Dr. Hicks failed to appear at the hearing to determine damages. By judgment entered July 17, 2003, the circuit court awarded the Hutchersons $211,953.39 in damages against Dr. Hicks. No appeal was taken from this judgment.

In January 2005, the circuit court denied Dr. Hicks’ motion to set aside the default judgment. After reconsideration, on March 16, 2005, the circuit court entered an order to set aside the judgment as to damages and further held that Dr. Hicks would be permitted to participate in a damages hearing. The default judgment for liability was not set aside. Subsequently, the circuit court conducted another damages hearing in 2005 and then a jury trial in 2009 upon the sole issue of damages. The jury was instructed that Dr. Hicks was legally liable and was only instructed to determine the proper amount of damages. The jury returned a verdict of “0” as to damages. A final judgment reflecting the jury verdict and dismissing this action was entered February 16, 2009. This appeal follows.

The Hutchersons contend that the circuit court erred by setting aside the judgment awarding $211,953.39 in damages and by proceeding with a hearing on damages before the jury. Simply stated, the Hutchersons argue that the circuit court abused its discretion in setting aside the judgment assessing damages against Dr. Hicks. For the reasons hereinafter stated, we agree

In consideration of the factors necessary to establish good cause to set aside a default judgment, we believe that Dr. Hicks failed to demonstrate a valid excuse for his default or establish the absence of prejudice to the Hutchersons. See PNC Bank, 139 S.W.3d 527.

Additionally, the record clearly reflects that the Hutchersons have been greatly prejudiced by setting aside the default judgment awarding damages. The Hutchersons filed this malpractice action on May 18, 2000, for a claim that arose in 1999. However, because of Dr. Hicks’ conduct that resulted in the default and a significant delay in the case, a jury trial to assess damages did not occur for almost nine years thereafter, in February 2009. A delay of almost nine years certainly put the Hutchersons at a disadvantage in preserving and presenting evidence to support their case at the jury trial in 2009, again for a claim that actually arose in 1999. Additionally, a judgment in favor of the Hutchersons in the amount of $211,953.39 for damages proven at an evidentiary hearing in 2003 was set aside and ultimately reduced to “0.”

Unfortunately, on the third bite at the apple, Dr. Hicks prevailed in a jury trial which he was not entitled to.

On review of a lower court’s decision to set aside a default judgment, an appellate court will not overturn a trial court’s decision “absent a showing that the trial court abused its discretion.” PNC Bank, 139 S.W.3d at 530 (citing Howard v. Fountain, 749 S.W.2d 690, 692 (Ky. App. 1988)). In this case, we are of the opinion that the circuit court abused its discretion in setting aside the July 17, 2003, judgment assessing $211,953.39 in damages against Dr. Hicks. Dr. Hicks failed to establish good cause to warrant setting aside the judgment. The judgment in favor of the Hutchersons entered on July 17, 2003, shall be reinstated upon remand.

For the foregoing reasons, the judgment of the Jefferson Circuit Court is reversed and this cause is remanded for proceedings consistent with this opinion.

483 – INSURANCE, PIP BENEFITS
STEWART (RONALD) VS. ELCO ADMINISTRATIVE SERVICES, INC. , ET AL.
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
NICKELL (CONCURS) AND KNOPF (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000828-MR
TO BE PUBLISHED
JEFFERSON

DIXON, JUDGE: Appellant, Ronald Stewart, Jr., appeals from an order of the Jefferson Circuit Court granting summary judgment in favor of Appellees, ELCO Administrative Services and Enterprise Rent-A-Car. The trial court ruled that Stewart “constructively waived” his right to basic reparations benefits despite the fact he was injured while riding as a passenger in a secured automobile. For the reasons set forth herein, we reverse and remand for further proceedings.

On appeal, Stewart argues that the trial court erred in finding that he constructively waived his right to BRB. Stewart points out that any “rejection” of benefits must strictly comply with the provisions of KRS 304.36-060(4), which was simply not done in this case. As a result, he was entitled to receive BRB from Enterprise since he was injured while riding as a passenger in its insured vehicle. Finally, Stewart contends that contrary to the trial court’s opinion, the Thomas and Shelter Insurance Company decisions have no applicability to this case.

Enterprise argued, and the trial court herein agreed, that despite the legislature’s expressed intent that “every person suffering loss from injury arising out of maintenance or use of a motor vehicle has a right to basic reparation benefits . . .,” Stewart’s failure to procure insurance on his own vehicle acted as a “constructive waiver” of his tort rights and liabilities. We disagree.

Under the MVRA all persons owning an automobile, whether insured or not, are subject to the limitations of “no-fault,” unless the owner actually rejects the limitation of his tort rights and liabilities under KRS 304.39-060. Atchison v. Overcast, 563 S.W.2d 736 (Ky. App. 1977).  Specifically, KRS 304.39-060 provides:

(4) Any person may refuse to consent to the limitations of his tort rights and liabilities as contained in this section. Such rejection must be in writing in a form to be prescribed by the Office of Insurance and must have been executed and filed with the office at a time prior to any motor vehicle accident for which such rejection is to apply.

The plain language of KRS 304.39-060(4) explicitly requires any rejection of one’s tort rights and liabilities to be in writing and filed with the Department of Insurance. Atchison 563 S.W.2d at 737. 

Certainly, we believe that public policy dictates that a motorist who voluntarily fails to comply with the insurance requirements of the MVRA should not be entitled to BRB if the accident and injury results from the operation or use of that uninsured vehicle. However, we simply cannot reach the same conclusion when the injury is not attributable to the motorist’s use or operation o
f the uninsured vehicle. Here, Stewart was not operating his vehicle, but was rather merely riding as a passenger in another vehicle. In fact, Stewart claims, and the trial court found, that his vehicle was not operable, which leads to an entirely separate inquiry of whether or not he was even required to maintain insurance on the vehicle. See KRS 304.39-020(7) and Auto-Owners Insurance Company v. Goode, 294 S.W.3d 32 (Ky. App. 2009).

Regardless, this Court is of the opinion that to create a blanket rule that one who is uninsured is prohibited from claiming BRB under any circumstances not only contravenes the language and intent of the MVRA, but violates the public policy of this Commonwealth. BRB follows the vehicle, not the person. And KRS 304.39-050(1) provides that “[t]he basic reparation insurance applicable to bodily injury . . . is the security covering the vehicle occupied by the injured person at the time of the accident . . . .” Stewart was occupying a car owned and insured by Enterprise at the time he was injured.

CIVIL/TORT DECISIONS:

471 – NEGLIGENCE
STEWART (SAMUEL) VS. TAFEL (GEORGE L.)
OPINION REVERSING AND REMANDING
KNOPF (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2009-CA-000225-MR
NOT TO BE PUBLISHED

JEFFERSON

KNOPF, SENIOR JUDGE: Samuel Stewart appeals from the Jefferson Circuit Court’s entry of summary judgment in favor of George L. Tafel. Stewart filed a negligence action against Tafel after falling into an uncovered water utility hole on a public right-of-way adjacent to Tafel’s property. The circuit court determined that Tafel did not owe any duty to Stewart since it was not Tafel’s responsibility to maintain that right-of-way. After our review, we reverse and remand for further proceedings.

482 – WORKERS COMP
CWI VS. CROTZER (RICHARD), ET AL.
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND HARRIS (CONCURS)
2009-CA-000616-WC
NOT TO BE PUBLISHED
WORKERS' COMP

487 – WORKERS COMP
KROGER VS. LIGON (JAPHETH), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001455-WC
2009-CA-001619-WC
NOT TO BE PUBLISHED
WORKERS' COMP

489 – WORKERS COMPENSATION
WEDDLE ENTERPRISES, INC.
VS.
JASPER (ROYCE), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001812-WC
NOT TO BE PUBLISHED
WORKERS' COMP

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.