COA 2011 Minutes for Feb. 18, 2011 (Nos. 139 – 181)

COA 2011 Minutes for Feb. 18, 2011    (Nos. 139 – 181) 

  • 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:  43
  • Published Decisions: 4 (145; 146; 158; 160)
PUBLISHED DECISIONS (with link to full text at AOC):

145. FAMILY LAW.  SHARED CUSTODY. 
MCGREGOR (LISA) VS. MCGREGOR (ROBERT T)
OPINION AFFIRMING
WINE (PRESIDING JUDGE) ACREE (CONCURS) AND COMBS (CONCURS)
2009-CA-000614-MR
2009-CA-000632-MR
TO BE PUBLISHED JEFFERSON

WINE, JUDGE: This is an appeal and cross-appeal from findings of fact, conclusions of law and judgment by the Jefferson Family Court in an action dissolving the marriage of Lisa McGregor (“Lisa”) and Robert Todd McGregor (“Todd”). In her direct appeal, Lisa argues that the trial court abused its discretion by setting a shared-custody schedule for the children, by imputing income to her, by awarding an inadequate amount of child support and maintenance, and by its division of the parties’ debts. In his cross-appeal, Todd asserts that the amount and duration of maintenance was excessive. Finding no abuse of discretion on any of these issues, we affirm.

146.  CRIMINAL PROCEDURE.  SEARCH AND SEIZURE.
MATLOCK (BARRIE LESLIE) VS. COMMONWEALTH OF KENTUCKY
OPINION REMANDING
ACREE (PRESIDING JUDGE) STUMBO (CONCURS) AND LAMBERT (CONCURS)
2009-CA-000929-MR
TO BE PUBLISHED CHRISTIAN

ACREE, JUDGE: Appellant Barrie Matlock seeks reversal of the Christian Circuit Court’s order denying his motion to suppress without an evidentiary hearing. Matlock claims the circuit court erred in refusing to grant him an evidentiary hearing as required by Kentucky Rule of Criminal Procedure (RCr) 9.78. We agree and remand for a hearing on Matlock’s motion to suppress.

158. INSURANCE. UNINSURED MOTORISTS BENEFITS (UIM) EXCLUSION AND COVERAGE FOR INTENTIOAN ACTS CAUSED INSURED'S BOYFRIEND.
STAMPER (BARBARA ANN) VS. HYDEN (STEVEN GLEN), ET AL.
OPINION VACATING AND REMANDING
DIXON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2009-CA-002033-MR
TO BE PUBLISHED – KENTON

DIXON, JUDGE: Barbara Ann Stamper appeals from a judgment of the Kenton Circuit Court entered upon a jury verdict in favor of Steven Glen Hyden and the Standard Fire Insurance Company. After careful review, we vacate the judgment and remand for further proceedings.
The issue presented on appeal is whether Stamper was entitled to recover uninsured motorist (UM) benefits from Standard Fire pursuant to her automobile insurance policy for damages resulting from the intentional criminal conduct of Hyden, her former boyfriend.

[A]t issue was the language of the insuring agreement in Stamper’s UM policy, which stated in pertinent part:

A. We will pay damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of “bodily injury”:
1. Sustained by an “insured”; and 2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “uninsured motor vehicle.”

At the hearing, Standard Fire argued that the policy was inapplicable since Hyden’s conduct was intentional; therefore, Stamper’s damages were not caused by an “accident.” In contrast, Stamper opined that her UM policy must be viewed according to principles of contract rather than tort. The trial court ultimately concluded that the UM policy did not encompass any intentional act committed by Hyden against Stamper.

In the case at bar the following issues were established as a matter of law: Hyden’s liability, his status as an uninsured motorist, and the existence of a UM policy between Standard Fire and Stamper. The disputed issue arose over the interpretation of the policy, specifically whether Stamper’s damages were “caused by an accident.”

It appears that the facts of this case raise an issue of first impression in Kentucky: On a claim for UM benefits, whose point of view determines whether an accident occurred – the perspective of the insured-victim or the perspective of the uninsured motorist-tortfeasor? Our Court has previously noted that “the legislative intent of KRS 304.20-020 is to make whole – to the extent possible – an injured party who would otherwise not receive compensation from an at-fault uninsured party.” [CITATIONS OMITTED]

In the case at bar, Stamper was an insured-victim of the intentional criminal
conduct perpetrated by Hyden, an uninsured motorist. The record indicates that the incident was unexpected by Stamper and not her plan, design, or intent. After careful consideration, we conclude that the November 17, 2003, incident was an “accident” within the meaning of her UM policy; consequently, the jury instructions were erroneous on this issue.

160. REAL PROPERTY. LOANS. PRIORITY OFLIENS.
W.M. SPECIALTY MORTGAGE, LLC. VS. COMMUNITY TRUST BANK, INC., ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE) KELLER (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002091-MR
TO BE PUBLISHED – PULASKI
TAYLOR, CHIEF JUDGE: W.M. Specialty Mortgage, LLC, (Specialty Mortgage) brings this appeal from a September 14, 2009, summary judgment of the Pulaski Circuit Court adjudicating the priority of liens upon a tract of real property owned by David Floyd and Kim Floyd (the Floyds). We affirm.

Some selected nonpublished decisions relating to civil, torts, insurance:


139.  Medical negligence; class action settlement agreement for drug redux.
EDWARDS (EMMITT RAY) VS. BAEHLER M.D. (RICHARD); AND
NEPHROLOGY ASSOCIATES, INC.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE) ACREE (CONCURS) AND DIXON (DISSENTS WITHOUT SEPARATE OPINION)
2008-CA-000637-MR
2008-CA-000838-MR
NOT TO BE PUBLISHED – FAYETTE
KELLER, JUDGE: Emmett Ray Edwards (Edwards) appeals from the circuit court's order dismissing his medical malpractice claims against Dr. Richard W. Baehler and Nephrology Associates, Inc. (Dr. Baehler). On appeal, Edwards argues that the circuit court based its dismissal on a misinterpretation of a settlement agreement from the multidistrict class action litigation involving the drug Redux.
For the following reasons, we affirm.

140. Torts, fraud, damages;  Legal malpractice
KELLER (SCOTT), ET AL. VS. WOODS (TOM), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE) TAYLOR (CONCURS) AND ISAAC (CONCURS)
2008-CA-002047-MR
NOT TO BE PUBLISHED – SPENCER

148
KING (JANET K.) VS. RATLIFF (BYRAM) II
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001095-MR
NOT TO BE PUBLISHED – MONTGOMERY

NICKELL, JUDGE: Janet King has appealed from the Montgomery Circuit Court’s May 12, 2009, verdict and final judgment dismissing her claims against Byram N. Ratliff, II, M.D. following a jury trial. We affirm.

150.  Premises liability, open and obvious
MALAPELLI (AMANDA) VS. BROADDUS (ROBERT)
OPINION AFFIRMING
WINE (PRESIDING JUDGE) ACREE (CONCURS) AND VANMETER (CONCURS)
2009-CA-001147-MR
NOT TO BE PUBLISHED – CAMPBELL

WINE, JUDGE: Amanda Malapelli appeals from a Campbell Circuit Court order granting summary judgment in favor of her landlord, Robert Broaddus. Finding that a landlord is ordinarily not liable for personal injuries caused by open and obvious conditions on a leased premise, we affirm the order of the trial court.

The law governing the landlord-tenant liability is further summarized in Lambert v. Franklin Real Estate Co., 37 S.W.3d 770 (Ky. App. 2000).
[A] landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection. However, [i]t has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein. [T]he landlord is under no implied obligation to repair the demised premises in the absence of a contract to that effect, nor is he responsible to a tenant for injuries to persons or property caused by defects therein, where there has been no reservation on the part of the landlord of any portion of the rented premises. In such cases the law applies to the contract or lease the doctrine of caveat emptor.
Id. at 775 (internal citations omitted). When a tenant maintains complete control and possession over the premises
and the landlord has no contractual or statutory obligation to repair, the landlord is liable only for “the failure to disclose known latent defects at the time the tenant leases the premises.” Carver v. Howard, 280 S.W.2d 708, 711 (Ky. App. 1955). Only when a portion of the premises is retained by the landlord for the common use and benefit of numerous tenants, the landlord must exercise ordinary care to keep common areas in a reasonably safe condition. Id.
In this case, the defect was not latent. Malapelli testified she was aware of the defective carpet runner for more than two years prior to her fall. She and her boyfriend made repeated attempts to repair the carpet runner. Furthermore, the entirety of the premises was leased by Malapelli, and there were no shared common areas. Thus, Broaddus did not retain control over a portion of the premises for the common use of numerous tenants. Absent a contractual or statutory duty to repair, Broaddus did not have a duty to repair, or even to remove, the carpet runner.

165.  Torts, social host liability?; Motion for new trial
WILKERSON (NATHAN A.), ET AL. VS.WILLIAMS (AARON Z.), ET AL.
OPINION AFFIRMING
ISAAC (PRESIDING JUDGE) TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-000088-MR
NOT TO BE PUBLISHED – BULLITT

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 aNathan claims that he was punched in the face by Aaron Z. Williams at a party hosted by Aaron’s father, Jeffrey L. Williams. Alcoholic drinks were served at the party. According to the Wilkersons, Aaron, who was thirty-one years of age at the time, was visibly intoxicated at the party and admitted to them that he was consuming moonshine.new trial. 

Thirdly and finally, the Wilkersons argue that the trial court erred in dismissing Jeffrey as a defendant. They contend, in reliance on Estate of Vosnick v. JJJC, Inc., 225 F.Supp.2d 737 (E.D.Ky. 2002), that Kentucky law is silent on the subject of the liability of social hosts for third parties who are injured by intoxicated guests. They urge that we adopt the position of the New Jersey Supreme Court, which held that a social host who enables an adult guest at his home to become drunk is liable to the victim of an automobile accident caused by the drunken driving of the guest. See Kelly v. Gwinnell, 476 A.2d 1219 (N.J. 1984).

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).
The [Texas] court held that the social hosts had no duty to prevent their guest from consuming alcohol or later driving, in part because the hosts had no means of effective control over the guest: “we cannot assume that guests will respond to a host’s attempts, verbal or physical, to prevent the guests from driving.”
Carneyhan, 169 S.W.3d at 853 citing Graff, 858 S.W.2d at 921-22. 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).
The system of criminal liability has concentrated responsibility for an intentional criminal act in the primary actor, his accomplices, and his co-conspirators. By imposing liability on those who did not endeavor to accomplish the intentional criminal undertaking, tort liability would diminish the responsibility placed on the criminal defendant. The normative message of tort law in these situations would be that the defendant is not entirely responsible for his intentional criminal act. Id. at 694.

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.

168. Statute of Frauds
TOLSON (KELLY)  VS. ALLEN (KATHERINE)
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE) TAYLOR (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000400-MR
NOT TO BE PUBLISHED – BREATHITT

180. Workers Comp.
JUSTICE (DOUGLAS) VS. SOUTH AKERS MINING CO., ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE) NICKELL (CONCURS) AND SHAKE (CONCURS)
2010-CA-001573-WC
NOT TO BE PUBLISHED WORKERS' COMP

181. Workers Comp.
BAKER (ERIC) VS. KENTUCKY EMERGENCY MEDICAL SERVICE, ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE) NICKELL (CONCURS) AND SHAKE (CONCURS)
2010-CA-001730-WC
NOT TO BE PUBLISHED WORKERS' COMP

 

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