COA 2011 Minutes for April 8, 2011 — Nos. 347-386

COA 2011 Minutes for April  8, 2011 –   Nos. 347-386

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  40 decisions this week
  • Published Decisions:5 published
  • ORDER GRANTING PETITION FOR REHEARING:
    JAVIER TORREZ 2009-CA-000410-MR SCOTT VS.COMMONWEALTH OF KENTUCKYENTERED: 04/08/2011
  • Nonpublished decisions now ordered to be published
    • Nathan Wilkerson vs. Aaron  Z. Williams – BULLITT
      TORTS, SOCIAL HOST RESPONSIBILITY FOR DRUNKEN GUEST

      ISAAC, SENIOR JUDGE: Nathan A. Wilkerson and Keisha M. Wilkerson appeal from a Bullitt Circuit Court order entered on November 24, 2009, which denied their motion for a new trial.

      The Wilkersons raise the following issues on appeal: (1) that the trial court erred in granting the motion in limine to exclude the testimony about Aaron drinking moonshine; (2) that the jury failed to follow the instructions; and (3) that Kentucky should make social hosts liable to third parties who are injured by the negligent acts of intoxicated guests.

      Since the publication of Vosnick, the Kentucky Supreme Court rendered its opinion in Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky. 2005), which addressed whether a national fraternal organization had a duty to exercise reasonable care to control one of its local chapters so as to prevent the death of a minor who was killed in a car accident after consuming alcohol served on the premises of the local chapter. Although the Carneyhan court did not rule directly on the issue of social host liability, its analysis is directly pertinent to the existence of a duty on Jeffrey’s part.

      The Court began by citing the general rule that “an actor whose own conduct has not created a risk of harm has no duty to control the conduct of a third person to prevent him from causing harm to another.” Carneyhan, 169 S.W.3d at 849. It then acknowledged that there was an exception to the rule and that a duty could arise to exercise reasonable care to prevent harm by controlling a third person’s conduct where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Id. (citations omitted.) The Court observed that in order for liability to attach, “the defendant’s ability to control the person who caused the harm must be real and not fictional and, if exercised, would meaningfully reduce the risk of the harm that actually occurred.” Id. at 851. The Court then surveyed cases where courts have found that such a special relationship exists, including a
      Supreme Court of Texas opinion which addressed a social host’s liability for harm caused by an intoxicated guest. See Graff v. Beard, 858 S.W.2d 918 (Tex. 1993).

      Similarly, in this case, Jeffrey had no effective means of control over Aaron, an adult guest, to prevent him from driving, much less from assaulting another guest.

      Furthermore, “[t]he foreseeability of the injury defines the scope and character of a defendant’s duty.” Norris v. Corrections Corp. of America, 521 F.Supp.2d 586, 588 (W.D.Ky. 2007). “The most important factor in determining whether a duty exists is foreseeability.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003)(citation omitted). “[C]ourts have held that, except under extraordinary circumstances, individuals are generally entitled to assume that third parties will not commit intentional criminal acts.” James v. Meow Media, Inc. 300 F.3d 683, 693 (6th Cir.2002).

      Even though physical assaults would appear to be more foreseeable in bars than in parties at private homes, Kentucky courts have refused to impose liability on bar owners for such assaults. See Murphy v. Second Street Corp., 48 S.W.3d 571; Isaacs v. Smith, 5 S.W.3d 500 (Ky. 1999). “Whether the defendant owed a duty is a question of law for the court to decide.” Lee v. Farmer’s Rural Elec. Co- op Corp., 245 S.W.3d 209, 212 (Ky.App. 2007). In light of the foregoing case law, the trial court did not err as a matter of law in dismissing Jeffrey as a defendant.

      The judgment of the Bullitt Circuit Court is affirmed.

PUBLISHED DECISIONS (with link to full text at AOC):

362. TORTS, CHILD'S LOSS OF PARENTAL CONSORTIUM NOT RECOGNIZED IN KENTUCKY UNLESS WRONGFUL DEATH CLAIM OF PARENT
AESTHETICS IN JEWELRY, INC., ET AL.
VS.
ESTATE OF ROBINSON S. BROWN, JR. BY AND THROUGH ITS COEXECUTORS, J. MCCAULEY BROWN AND ROBINSON S. BROWN, III
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2009-CA-002056-MR
2009-CA-002135-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Jennifer Leigh Turner, as next best friend of Nathan Michael Dean Turner, appeals an order of the Harlan Circuit Court that dismissed Nathan’s claim for loss of parental consortium. The sole issue presented is whether a minor child can recover for loss of consortium of a parent when not accompanied by an action for the parent’s wrongful death. Based on existing precedent, we conclude that Kentucky law limits the loss of parental consortium to wrongful death claims and, therefore, affirm.

366. APPEALS.  Timely but defective motion to vacate (no grounds stated) does not toll period for filing appeal. Pro se appeal dismissed.
MATTHEWS (KENNETH R.), ET AL.
VS.
VIKING ENERGY HOLDINGS, LLC
OPINION AND ORDER DISMISSING APPEAL
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2010-CA-000048-MR
2010-CA-000070-MR
TO BE PUBLISHED
WARREN

ACREE, JUDGE: Viking Energy Holdings, LLC has filed a motion to dismiss the appeal of Kenneth R. and Linda F. Matthews, asserting they filed their notice of appeal more than thirty days after entry of the judgment and that their pro forma post-judgment motion failed to toll the running of time in which to do so. For the following reasons, we grant Viking’s motion and dismiss.

Before this Court, Viking filed the instant motion to dismiss the Matthews’ appeal for want of jurisdiction. The argument Viking presents is essentially this: A motion nominally filed pursuant to CR 59.05 that fails to “state with particularity the grounds therefor” as required by CR 7.02(1) is an invalid motion and therefore does not effectuate the tolling provision of CR 73.02(1)(e).2 Consequently, the Matthews were required to file a notice of appeal no later than December 2, 2009. Because they did not, argues Viking, their appeal is not timely, and this Court cannot entertain it.

The Matthews’ failure to state even one ground to support their CR 59.05 motion rendered the motion incomplete and therefore invalid under CR 7.02(1); their failure to supplement that incomplete motion within the ten-day limit rendered the motion untimely, or to borrow the term used in Newdigate, the motion was “dilatory.” The circuit court thereafter lacked jurisdiction to entertain it, and the faulty motion did not toll the thirty-day period within which to file their appeal. Because no valid CR 59.05 motion was filed, the Matthews were required to file a notice of appeal to this Court within thirty days of the November 2, 2009 judgment, and not within thirty days of the circuit court’s resolution of their dilatory CR 59.05 motion. Cain v. City of Elsmere, 440 S.W.2d 259, 260 (Ky. 1969). They failed to do so; their notice of appeal filed January 5, 2010, was untimely and this Court is required to dismiss the appeal. CR 73.02(2); Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc., 37 S.W.3d 713, 716 (Ky. 2000) (“CR 73.02(2) describes automatic dismissal as the penalty for failure of a party to file a timely notice of appeal”).

For the foregoing reasons, Viking’s motion to dismiss is GRANTED. It is hereby ORDERED that this appeal be, and it is DISMISSED.

370.  CRIMINAL LAW.
COMMONWEALTH OF KENTUCKY
VS.
BUSHART (MICHAEL)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
KELLER (CONCURS) AND SHAKE (CONCURS)
2010-CA-000290-MR
TO BE PUBLISHED
GRAVES

LAMBERT, JUDGE: The Graves Circuit Court dismissed a reckless homicide indictment after determining there was no probable cause to believe the shooting was not justified as self-defense. The Commonwealth appeals as a matter of right.  After careful review, we reverse and remand for proceedings consistent with this opinion.

371.  CRIMIMAL LAW
INGRAM (TERRY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING
MOORE (PRESIDING JUDGE)
COMBS (CONCURS) AND ISAAC (CONCURS)
2010-CA-000463-MR
TO BE PUBLISHED
SCOTT

MOORE, JUDGE: On March 4, 2009, the Scott Circuit Court sentenced the Appellant, Terry Ingram, to a two-year term of imprisonment, probated for a period of five years, pursuant to Ingram’s guilty plea regarding a felony charge of flagrant non-support in the case at bar, 08-CR-00009.  This appeal followed, and Ingram restates the argument he posed before the circuit court. Ingram’s argument is well taken, and we now reverse the circuit court’s decision to deny the credit he requested.  The face of the circuit court’s order reflects three errors.

376.  UNDERINSURED MOTORIST BENEFITS.  CONFLICTS OF LAW.
HODGKISS-WARRICK (KAREN)
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000603-MR
TO BE PUBLISHED
ROCKCASTLE

CAPERTON, JUDGE: Karen Hodgkiss-Warrick appeals from the trial court’s
grant of summary judgment to defendant, State Farm Mutual Automobile. On appeal, Karen Hodgkiss-Warrick (hereinafter “Karen”) argues that the trial court improperly applied Pennsylvania law in denying her underinsured motorist coverage in violation of the public policy of Kentucky. After a thorough review of the parties’ arguments, the applicable law, and the record, we agree with Karen and, accordingly, reverse the trial court’s grant of summary judgment and remand this matter for further proceedings.

The facts of this case are not in dispute. Karen, her daughter Heather Hodgkiss, Pamela Reynolds, and Heather Reynolds2 drove from Pennsylvania to Burnside, Kentucky, to purchase a special breed of puppy. As they were making their way back to Pennsylvania on May 17, 2008, Heather Hodgkiss was driving her 2007 Ford Fusion on highway U.S. 25 in Rockcastle County, when she attempted to turn left onto the ramp to enter Interstate 75 North and her car struck the vehicle operated by Natalie Bussell. As a result of the accident, claims were brought against Heather Hodgkiss and her insurance provider, GEICO, by all the occupants of her vehicle including Karen, and by Natalie Bussell and her husband.
Karen made additional claims against State Farm for underinsured motorist (“UIM”) coverage under a policy she has with State Farm and also under her husband’s separate UIM policy with State Farm. Karen and her husband are residents of the Commonwealth of Pennsylvania and purchased their State Farm policies in Pennsylvania. Karen had been insured with State Farm for over 25 years.

Karen filed a claim against State Farm seeking UIM benefits under both her policy and her husband’s. State Farm filed a counterclaim for the declaration of rights to determine if coverage existed under either policy. State Farm subsequently moved the trial court for summary judgment. In granting summary judgment to State Farm, the trial court determined that Pennsylvania law should be applied based on Saleba v. Schrand, 300 S.W.3d 177, 181 (Ky. 2009), which noted that Kentucky has consistently applied Restatement (Second) Conflict of Laws § 188(1) (1971), and the “most significant contacts” test to determine which state’s laws to apply to contract disputes. Saleba at 181. Restatement (Second) Conflict of Laws § 188(1) (1971)
Upon our review of our recent caselaw, we believe that the Kentucky
Supreme Court has directed a shift in our public policy in Marley,151 S.W.3d at 36, which renders Murphy and the jurisprudence it relied upon distinguishable from the case sub judice.
In Marley, the Kentucky Supreme Court noted that it “is clear that the public policy of Kentucky is to ensure that victims of motor vehicle accidents on Kentucky highways are fully compensated.” Id. Moreover, “[t]he purpose of UIM coverage is not to compensate the insured or his additional insureds from his own failure to purchase sufficient liability insurance.” Windham v. Cunningham, 902 S.W.2d at 841. We fail to see how Karen could have obtained more coverage than what she already had purchased through her UIM policy. Unlike Murphy, Karen had no control over the amount of insurance her adult daughter purchased through a separate insurance provider on her daughter’s vehicle.

Recently, the Kentucky Supreme Court declined to apply the regular- use exclusion in Williams v. State Farm Mut. Auto. Ins. Co., 255 S.W.3d 913, 915 (Ky. 2008), when it held that “A vehicle (the pickup) “owned” by the relative (Aaron/driver) in State Farm's Caravan policy is not a vehicle “furnished” by the policy holders (the parents) to the relative.” Williams at 915. While the regular-use exception in Williams was different than that in the case sub judice, we find that, in light of the Kentucky Supreme Court’s holdings in Williams and Marley, our public policy in Kentucky disfavors the application of the regular-use exclusion when the policy holder has no real control or ability to obtain greater liability coverage on the vehicle involved in the accident. As such, we agree with Karen that she was entitled to UIM coverage under her policy, and that the trial court erred in granting summary judgment.

Accordingly, we reverse and remand this matter to the trial court for further proceedings not inconsistent with this opinion.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT


361
TURNER (JENNIFER LEIGH), ET AL.
VS.
CLARK (SUSIE), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002005-MR
NOT TO BE PUBLISHED
HARLAN

 THOMPSON, JUDGE: Jennifer Leigh Turner, as next best friend of Nathan Michael Dean Turner, appeals an order of the Harlan Circuit Court that dismissed Nathan’s claim for loss of parental consortium. The sole issue presented is whether a minor child can recover for loss of consortium of a parent when not accompanied by an action for the parent’s wrongful death. Based on existing precedent, we conclude that Kentucky law limits the loss of parental consortium to wrongful death claims and, therefore, affirm.

368.  EQUITABLE AND PROMISSORY ESTOPPEL.
TRIM (LORALEE)
VS.
MERV PROPERTIES, LLC.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2010-CA-000152-MR
NOT TO BE PUBLISHED
FAYETTE

KELLER, JUDGE: Loralee Trim (Trim) appeals from the trial court's summary judgment in favor of Merv Properties, LLC (Merv). On appeal, Trim argues that summary judgment was improper because there are material issues of fact regarding the terms of the agreement between the parties and application of the doctrines of promissory and equitable estoppel. Merv argues that the trial court properly granted summary judgment because the agreement alleged by Trim was not in writing and therefore unenforceable. Having reviewed the record, we affirm.

378 WORKERS' COMP
HALL (EVA)
VS.
CINTAS CORPORATION, ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000751-WC
NOT TO BE PUBLISHED

385 WORKERS' COMP
C. A. & I., INC.
VS.
COOK (CHRISTOPHER E.), ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2010-CA-001306-WC
NOT TO BE PUBLISHED

 

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