COA 2010 Minutes May 28, 2010 (Nos. 519-533)(PLUS TORT REPORT)

COA 2010 Minutes May
28, 2010 (Nos.519-533)

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

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

521
ABEL (BARBARA A)  vs. AUSTIN (J. BRENT)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
NICKELL (CONCURS) AND KNOPF (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-000465-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Barbara A. Abel and forty-nine other plaintiffs in the underlying action appeal the Fayette Circuit Court's order granting appellees’ motions for summary judgment. After a careful review of the record, we affirm the Fayette Circuit Court's order.

FACTUAL AND PROCEDURAL BACKGROUND
Appellants herein, Barbara A. Abel and forty-nine other plaintiffs, filed suit against J. Brent Austin (“Austin”); Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. (“Beasley Allen”); and Langston, Sweet, and Freese, P.A. (“Langston”), alleging breach of fiduciary duty, misrepresentation, and violation of the Kentucky fraudulent conveyance statute. In addition, the appellants sought an accounting and disgorgement in the original action. Austin, Beasley Allen, and Langston represented appellants and many other plaintiffs in an Alabama state court action styled Mary C. Stevens, et al. v. American Home Products, et al. (hereinafter referred to as the “Stevens” case). Beasley Allen is a law firm located in the state of Alabama, and Langston2 is a law firm located in the state of Mississippi. Austin’s law firm is located in Kentucky.
This lawsuit derives from the infamous diet drug fen-phen litigation. It concerns the alleged mishandling or misappropriation of the settlement funds by Austin, Beasley Allen, and Langston. Initially, all the appellants brought claims in Kentucky in the Boone Circuit Court fen-phen litigation styled Moore, et al. v. American Home Products, et al. (hereinafter, the “Moore” case) and were originally clients of Kentucky attorneys William Gallion, Shirley A. Cunningham, or Melbourne Mills. Following the settlement of the Moore case, which occurred
on May 1, 2001, a majority of the settling plaintiffs filed another lawsuit, Abbott, et al. v. Chesley, et al. (hereinafter, the “Abbott” case) in Boone Circuit Court. This second lawsuit alleged breach of fiduciary duty and fraudulent misrepresentation by Gallion, Cunningham, and Mills. During the discovery phase of the Abbott case, it was determined that some plaintiffs’ cases had been finalized prior to the Moore settlement. This group of plaintiffs, who are the appellants herein, had been referred by Cunningham and other counsel in the Moore case to the appellee trial counsels for the Stevens case. Afterward, they were included in the settlement of the Stevens case, which is the previously mentioned Alabama fen- phen case.

528
WEST (ROGER) VS. KENTUCKY RETIREMENT SYSTEMS
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2009-CA-001176-MR
TO BE PUBLISHED
FRANKLIN

WINE, JUDGE: Roger West appeals from an order of the Franklin Circuit Court affirming the denial of his claim for disability retirement benefits by the Board of Trustees (“the Board”) of the Kentucky Retirement Systems (“the Systems”). Upon review, we reverse and remand.

TORT REPORT IS BELOW THE FOLD – CIVIL, TORTS, WORKERS COMP

522 – UNINSURED MOTORIST BENEFITS (UM)
ALLSTATE INSURANCE COMPANY
VS.
HATFIELD (WINONA MARIE), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND MOORE (CONCURS)
2009-CA-000604-MR
NOT TO BE PUBLISHED
WHITLEY

VANMETER, ACTING CHIEF JUDGE: Allstate Insurance Company appeals from a summary judgment entered by the Whitley Circuit Court, in favor of Winona Marie Hatfield, in a matter relating to uninsured motorist insurance benefits. For the reasons stated hereafter, we affirm.

llstate first addresses issues of standing and preservation. The record shows Hatfield’s complaint was filed against both Berry and Allstate, and the partial summary judgment against Berry contained CR 54.02(1) language which resulted in the judgment’s finality. The trial court denied Allstate’s motion to alter, amend or vacate the partial summary judgment, and no timely appeal followed. Thus, the liability and damages issues were finally resolved by the partial summary judgment against Berry, and they are not properly before this court on appeal from the subsequent judgment against Allstate. Absent a timely appeal from the partial summary judgment against Berry, questions regarding Allstate’s standing to challenge that judgment are rendered moot. Thus, the merits of the judgment against Berry, including issues regarding liability and the amount of damages, shall not further be discussed on appeal. Similarly, the various issues raised by Allstate regarding the court’s failure to alter, amend or vacate the judgment against Berry are not properly before this court in this appeal and will not be addressed.

Next, Allstate makes a multi-faceted argument in support of its claim that the trial court erred by granting summary judgment against Allstate. More specifically, Allstate contends that genuine issues of material fact exist regarding the extent of Hatfield’s damages. It asserts that the court erred by relying on either Berry’s failure to respond to the request for admissions, or the partial summary judgment against Berry, as the basis for determining liability and damages. Finally, Allstate argues that it is not bound by Berry’s failure to respond to the request for admissions. We disagree.

Here, Allstate was involved in the proceeding from its inception.
Allstate therefore was on notice that Berry was uninsured, that he was not represented by counsel, that Hatfield claimed Berry was legally liable to her for damages in excess of $50,000, and that Hatfield sought uninsured motorist coverage under the terms of her insurance contract with Allstate. Nevertheless, Allstate elected to take no action when Berry was served and failed to respond to the critical requests for admission, despite Berry’s pro se status and the fact that under CR 36.01(2), Berry’s failure to respond necessarily resulted in the admission of fault and damages. Consistent with the “essential facts” approach described in U.S. Fidelity & Guar. Co. v. Preston, 26 S.W.3d 145 (Ky. 2000), Hatfield established through the request for admissions both that Berry was at fault, and that damages exceeded the policy limits of $50,000. As noted above, no appeal was taken from the partial summary judgment against Berry, and Berry is not a party to this appeal. Thus, any issues relating to the partial summary judgment’s impact on Berry are not properly before us. Further, although Allstate was a named party and an active participant in the proceedings below, it made no timely attempt to protect its own interests by ensuring Berry responded to the critical request for admissions. Once the partial summary judgment based on such admissions became final and legally enforceable against Berry, no factual issues remained for a jury’s determination in the claim against Berry. Allstate then was contractually obligated, under the terms of its policy, to pay “those damages” that its insured was “legally entitled” to recover from Berry as an uninsured driver, and the trial court did not err by failing to involve a jury in the determination of damages.

527 PREMISE LIABILITY, CITY
MISSINNE (JUNE) VS. CITY OF GLASGOW
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-001125-MR
NOT TO BE PUBLISHED
BARREN

CLAYTON, JUDGE: This is an appeal of a decision of the Barren Circuit Court dismissing appellant June Missinne’s claim against the City of Glasgow, Kentucky (“Glasgow”). Based upon the foregoing, we reverse the decision of the trial court and remand this case for further proceedings.
BACKGROUND INFORMATION Missinne was visiting a friend and the two were sightseeing in
Glasgow on September 21, 2006. At around 3:00 p.m., she fell while walking on the sidewalk. Missinne filed suit against Glasgow alleging that its failure to properly construct and maintain the sidewalk in question was the proximate cause of her fall and subsequent injuries.
Glasgow filed a motion for summary judgment asserting that it was not responsible as it did not own the property in question. Missinne’s accident occurred near the county courthouse. Glasgow contended that the property upon which Missinne fell was owned by Barren County (“County”). Missinne, however, argues that the County was not the one maintaining it, but Glasgow was. As a result, she asserts that once Glasgow assumed the responsibility, they could be liable for any negligence associated with the sidewalk.
The trial court granted summary judgment in favor of Glasgow and Missinne brought this appeal.

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