COA 2010 Minutes May 7, 2010 (Nos.443-467)

COA 2010 Minutes May
7, 2010 (Nos.443-467)

  • Above link to minutes is full text of minutes with link to full text
    of each decision.
  • 25 decisions
  • Published Decisions:  5

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

443  – CIVIL PROCEDURE, DEFAULT JUDGMENT
DESKINS (WILLIAM) VS. ESTEP (IRENE), ET AL.
OPINION REVERSING AND REMANDING WITH DIRECTIONS
TAYLOR (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2007-CA-000514-MR
TO BE PUBLISHED
PIKE

TAYLOR, JUDGE: William Deskins d/b/a Deskins and Son Construction brings this appeal from a February 19, 2007, Judgment of the Pike Circuit Court awarding Irene Estep, Johnny Ramsey, and Timothy Ling, appellees herein, damages in the amount of $436,787.66 arising from breach of a construction contract and in conjunction with a default judgment for liability previously rendered by order entered January 12, 2007. For the reasons hereafter stated, we reverse and remand with directions.

The primary issue raised by Deskins is whether the circuit court
properly entered a judgment for damages in this action after granting a default judgment against him for liability. Specifically, Deskins believes that his hand- written motion for continuance of the hearing – filed on the day of the hearing – was not properly considered by circuit court and the hearing otherwise should not have been conducted at that time.
Deskins also argues that the default judgment for liability against him should be set aside. Deskins contends that since the motion for default judgment was not served upon him, the judgment should not have been entered against him. This issue was properly brought before the circuit court by Deskins pursuant to a CR 60.02 motion that was filed after the notice of appeal was filed in this action. The Court of Appeals abated consideration of this appeal while the circuit court considered Deskins’ CR 60.02 motion. The circuit court entered an order dated July 9, 2009, denying Deskins’ CR 60.02 motion. In that order, the circuit court correctly noted that for purposes of this action, the Secretary of State was deemed the agent for service of process of the complaint for Deskins. See KRS 454.210. The record reflects that the Secretary of State performed the duties as required by KRS 454.210 and made the statutorily required return to the circuit court showing that the acts contemplated under the long-arm statute were complied with by the Secretary of State. Apparently, Deskins refused to accept the certified mail containing the summons and complaint on three occasions. When the Secretary of State made its statutorily required return to the circuit court, the time for answering the complaint by Deskins began to run. KRS 454.210(3)(b).
Under CR 55.01, there is no requirement that the motion for default judgment be served upon Deskins if he has not appeared in the action at the time the motion is filed.

449 – WRONGFUL DEATH, DAMAGES
AULL (DANIEL L.), ET AL. VS. HOUSTON (JOHN T.), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND HARRIS (CONCURS)
2008-CA-001238-MR
TO BE PUBLISHED
DAVIESS

ACREE, JUDGE: Appellants seek reversal of the Daviess Circuit Court’s grant of partial summary judgment relating to certain elements of Appellants’ damages claim. For the following reasons, we affirm.

Appellants concentrate their challenge of the partial summary judgment on its elimination of their claim for the destruction of Blake’s future earning capacity. Appellants claim the trial court erred by finding that, even when the evidence is viewed in a light most favorable to them, they could not prove Blake suffered any destruction of earning capacity. The two arguments they present are: (1) Kentucky law presumes Blake, like every child, possesses the capacity to earn a living in the future, and (2) the destruction of the power to earn money should include loss of the decedent’s entitlement to receive state and federal disability benefits. The first of these arguments is, in essence, an argument that there was sufficient evidence to create a genuine issue of fact regarding Blake’s ability to earn wages. The second presents a legal argument that, for purposes of determining damages for wrongful death, the receipt of benefits from a government entitlement program is the equivalent of earning a wage. For the following reasons, we do not find Appellants’ arguments persuasive.

453 – INSURANCE
WESTERN LEASING, INC. VS. ACORDIA OF KENTUCKY, INC.
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS)
2008-CA-002237-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Western Leasing, Inc. appeals from the Jefferson Circuit Court’s entry of an October 27, 2008, summary judgment order in favor of Acordia of Kentucky, Inc. That order dismissed all of Western Leasing’s claims against Acordia.
At the heart of this dispute is whether Acordia is subject to any liability for the production and issuance of a certificate of insurance (“COI”) to Western Leasing’s predecessor-in-interest, Senstar Finance Company, which contained affirmative misrepresentations on the face of the document. For the reasons set forth herein, we hold that affirmative misrepresentations on the face of a COI can give rise to a claim of negligent misrepresentation in Kentucky.

462 – REVENUE AND TAXATION
HANCOCK (CONNIE), ET AL. VS. KENTUCKY BOARD OF TAX APPEALS , ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001144-MR
TO BE PUBLISHED
FLOYD

TAYLOR, JUDGE: Connie Hancock, Floyd County Property Valuation Administrator, and the Kentucky Revenue Cabinet, n/k/a the Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky (collectively referred to as appellants) bring this appeal from a May 22, 2009, Opinion, Findings of Fact, Conclusions of Law and Judgment of the Floyd Circuit Court determining that Prestonsburg Industrial Corporation was exempt from paying ad valorem taxes and reversing an order of the Kentucky Board of Tax Appeals to the contrary. We affirm.

467 – DOMESTIC VIOLENCE ORDER
FRALEY (DALE WAYNE) VS. RICE-FRALEY (GAIL ANN)
OPINION REVERSING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND WHITE(SENIOR STATUS JUDGE)(CONCURS)
2009-CA-002167-ME
TO BE PUBLISHED
BOURBON

MOORE, JUDGE: Dale Wayne Fraley appeals the Domestic Violence Order (DVO) that was entered by the Bourbon Family Court. After a careful review of the record, we reverse because the family court abused its discretion in entering the DVO.

TORTS/CIVIL PROCEDURE DECISIONS:


456 – CIVIL PRO

THE ESTATE OF JENNIFER GAYLE TRIPLETT, ET AL.
VS.
JAMISON (CHRIS), ET AL
OPINION VACATING AND REMANDING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND TAYLOR (CONCURS)
2009-CA-000257-MR
2009-CA-000283-MR
NOT TO BE PUBLISHED
BATH

VANMETER, JUDGE: Appellants, as the estates, administratrixes of the estates, and family members of Jennifer Gayle Triplett and Tuesday Nicole Helton, appeal from a Bath Circuit Court order granting Chris Jamison’s motion for summary judgment. For the following reasons, we vacate the order and remand the case for further proceedings consistent with this opinion.

463 – FELA
TUCKER (HENRY WAYNE)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
NICKELL (CONCURS) AND WHITE (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-001464-MR
NOT TO BE PUBLISHED
PERRY

STUMBO, JUDGE: Henry Wayne Tucker appeals from an Order of the Perry Circuit Court granting the Summary Judgment motion of CSX Transportation, Inc. Tucker was severely injured when a train car ran over his leg during the course of his employment. He argues that the circuit court erred in concluding that he was not a borrowed employee for purposes of the Federal Employers’ Liability Act (“FELA”) and therefore was not entitled to recover from CSX. We conclude that the circuit court properly determined that Tucker was not a borrowed employee, and accordingly affirm the Order on appeal.

465 – WORKERS COMP
HOSKINS (RONDA)
VS.
COMPUNET AMERICA , ET AL.
OPINION AFFIRMING
KNOPF (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2009-CA-001977-WC
NOT TO BE PUBLISHED
WORKERS' COMP

466 – WORKERS COMP
PEPSI COLA GENERAL BOTTLERS, INC.
VS.
MURRELL (JOHN), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
NICKELL (CONCURS) AND KNOPF (CONCURS)
2009-CA-002044-WC
NOT TO BE PUBLISHED
WORKERS' COMP

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