COA 2011 Minutes for March 25, 2011 — Nos. 290 – 312

COA 2011 Minutes for March 25, 2011 –  Nos. 290 – 312

  • 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:  23 decisions this week
  • Published Decisions:2 published (292; 295)
PUBLISHED DECISIONS (with link to full text at AOC):

292. ADMINISTRATIVE LAW.  PROFESSIONS. TIMELY FILING APPEAL FOR JUDICIAL REVIEW REQUIRED WITHIN 30 DAYS.
GALLIEN (WRENDA B.) VS. KENTUCKY BOARD OF MEDICAL LICENSURE
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND WINE (CONCURS)
2009-CA-000694-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Wrenda B. Gallien, M.D., appeals from an order of the Jefferson Circuit Court dismissing her petition for judicial review of an adverse determination of the Kentucky Board of Medical Licensure. The single issue before us is whether the trial court correctly dismissed Appellant’s petition because it had not been filed within the 30 days prescribed by statute. After our review, we hold that the court did not err in this respect. Thus, we affirm.

In this case, the Order of Suspension was mailed to Appellant on April 25, 2007. However, she did not file her petition for judicial review until August 18, 2008 – nearly 18 months later. This delay is fatal to Appellant’s appeal. Our precedent holds that “[w]here an appeal is filed in the circuit court by grant of a statute, as in this case, the parties must strictly comply with the dictates of that statute.” Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007). This is because “[a]n appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal.” Id.; see also Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978); Ky. Unemployment Ins. Comm’n v. Providian Agency Group, Inc., 981 S.W.2d 138, 139-40 (Ky. App. 1998); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). The circuit court concluded that it lacked jurisdiction to consider Appellant’s petition for judicial review because the petition had not been timely filed within the statutory 30-day period; thus, dismissal was merited. This conclusion was the correct one.

295.  BUSINESS LAW.  SURETY. FORECLOSURE. BANKRUPTCY.
OWEN (KIMBERLY D.) VS. DCR MORTGAGE III SUB I, LLC.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
ACREE (CONCURS) AND SHAKE (CONCURS)
2009-CA-001788-MR
TO BE PUBLISHED
FAYETTE

NICKELL, JUDGE: Kimberly D. Owen and her husband, Jeffrey R. Owen, appeal from the Fayette Circuit Court’s award of summary judgment to DCR Mortgage III Sub I, LLC (DCR Mortgage) on August 31, 2009. Having reviewed the briefs, the record, and the law, we affirm.

The Owens raise two issues on appeal: 1) summary judgment was
improvidently granted to DCR Mortgage because it did not establish the commercial reasonableness of the sale of the collateral; and 2) DCR Mortgage did not show the sale of the three parcels of land was reasonable under the UCC since the offer for the collateral exceeded the claimed debt.

We hold the trial court’s award of summary judgment to DCR Mortgage was correct for the following reasons. The record shows Kimberly and Jeffrey Owen personally guaranteed the note and mortgages; and, but for Clarkson’s and Cox’s filing late claims, and Jeffrey Owen’s urging recognition of the late claims, the sales proceeds would have satisfied the debt owed to DCR Mortgage.

The absence of the Owens’ names from the list of creditors is directly attributable to Jeffrey Owen, for it is the duty of the debtor to file a list of creditors with the bankruptcy court. 11 U.S.C.A. § 521(a)(1)(A). It is undisputed that Jeffrey Owen was at the helm of O.M. Enterprises when bankruptcy was filed, and we will not shift the blame to someone else for his failure to list himself and his wife as creditors. Moreover, we are confident the Owens were apprised of all events in the bankruptcy proceedings by their attorney, O.M. Enterprises, and the Owen Family Trust – all of which were part of the mailing matrix and directly linked to Kimberly and Jeffrey Owen.

The collateral was sold with approval of and pursuant to order of the bankruptcy court. Thus, any objection to the sale should have occurred in the federal bankruptcy proceeding, not in the state court action to recoup the deficiency, since the bankruptcy court had jurisdiction “with respect to all matters involved in the scope of the proceeding.” Smith v. Decker, 374 S.W.2d 487, 489 (Ky. 1964) (citing Moore v. Waltman’s Adm’x, 288 Ky. 258, 156 S.W.2d 100 (1941).    However, no party questioned the reasonableness of the sale of the collateral at the appropriate moment and it is now too late and in the wrong forum for the Owens to mount such a challenge.

ORDER GRANTING MOTION TO PUBLISH OPINION:
DEPARTMENT OF LABOR, NOW 2010-CA-000193-MR FRANKLIN
KENTUCKY LABOR CABINET
VS.
MOREL CONSTRUCTION CO., INC.;
ET AL
ENTERED: 03/25/2011

Nonpublished Tort, Procedure, etc – AKA TORT REPORT


291.  ENFORCEMENT OF SETTLEMENT AGREEMENTS.  STATUTE OF FRAUDS RE REAL ESTATE.
VANHOOSE (CHARLES R.), ET AL.
VS.
CITY OF PIKEVILLE, KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (DISSENTS BY SEPARATE OPINION)
2009-CA-000429-MR
NOT TO BE PUBLISHED
PIKE

Gilbert argues that Payne was not entitled to equitable relief under the
"unclean hands" doctrine because he did not timely make all of the payments called for in the agreed judgment. "The unclean hands doctrine is a rule of equity that forecloses relief to a party who has engaged in fraudulent, illegal, or unconscionable conduct but does not operate so as to 'repel all sinners from courts of equity.'" Suter v. Mazyck, 226 S.W.3d 837, 843 (Ky. App. 2007) (citing Dunscombe v. Amfot Oil Co., 201 Ky. 290, 256 S.W. 427, 429 (1923)). Payne's failure to make timely payments amounted to a breach of contract. It did not amount to fraudulent, illegal, or unconscionable conduct; therefore, the unclean hands doctrine has no application to this case.

301.  TORTS. MEDICAL NEGLIGENCE. HOSPITAL. DUTY OF CARE – FIRE IN OPERATING ROOM.
WEISS (LINDA)
VS.
JEWISH HOSPITAL HEALTHCARE SERVICES, INC.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
TAYLOR (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000201-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: This is a medical negligence action involving an operating room fire in which Linda Weiss was injured. Weiss is appealing an order of the Jefferson Circuit Court granting summary judgment in favor of Jewish Hospital. The trial court found that Jewish Hospital did not have any duty to Weiss in this instance to provide ways to minimize the risk of or prevent operating room fires. Weiss argues that the trial court erred and that Jewish Hospital had a duty to implement procedures and protocols to help minimize the risk of operating room fires. We agree with Weiss and reverse and remand this case for further proceedings.

To maintain a negligence action, Weiss must show “(1) a duty on the
part of the defendant; (2) a breach of that duty; and (3) consequent injury.” Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992). Whether the defendant owed a duty is a question of law for the court to decide. Id. at 248. In the case at bar, the trial court found Jewish Hospital owed no duty to Weiss and granted summary judgment as a matter of law. We disagree.

The duty a hospital owes to its patients is that “degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances.” Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky. 1981). Weiss
argues that this degree of care includes providing fire prevention training to
hospital staff and to anyone who uses operating rooms or to establish some other fire prevention procedure. Jewish Hospital argues that it has no duty to educate medical providers about fire prevention.

We agree with Weiss that Jewish Hospital did have a duty to provide medical personnel with some degree of training or guidance in relation to operating room fires, or at least implement some other procedure or protocol concerning the issue. “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). Prior to Weiss’ operation, Jewish Hospital had experienced another operating room fire in which the patient did not survive. Also, in the modern realm of medicine where electronic devices, such as cauterizing instruments, are used in oxygen rich environments, even most lay persons realize there is a risk of fire.
Did Jewish Hospital owe a duty to minimize the risk of operating room fires to Weiss? We answer this question of law in the affirmative. What steps Jewish Hospital should have taken to satisfy this duty and whether that duty was breached are questions for the jury.

We therefore reverse and remand this case back to the Jefferson Circuit Court for further proceedings.

302. INSURANCE. NO FAULT ACT. PIP. MOTORCYCLE.WAIVER.
JONES (ROBERT)
VS.
GEICO INDEMNITY COMPANY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
TAYLOR (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000302-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Robert Jones appeals from a Summary Judgment of the Jefferson Circuit Court in favor of Geico Indemnity Company. Jones maintain offer or furnish a written no-fault waiver arising from its motorcycle insurance coverage with Jones, and incorrectly determined that Geico had no duty to file any such written no-fault waiver with the Office of Insurance. We conclude that the Motor Vehicle Reparations Act does not require Geico to do more than merely offer optional basic reparations benefits to a purchaser of motorcycle coverage, and accordingly affirm the Summary Judgment on appeal.

307.  WORKERS COMP.  EXCLUSIVE REMEDY PROVISIONS AND DISMISSAL OF CIVIL ACTION.  UP THE LADDER AND REGULAR AND RECURRENT WORK.
KENNEY (MARK)
VS.
CEMEX, INC.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND WINE (CONCURS)
2010-CA-000665-MR
NOT TO BE PUBLISHED
JEFFERSON

In its motion for summary judgment, Cemex argued that Kenney was barred from bringing any tort claim against it because he received workers’ compensation benefits from HS Construction’s insurance carrier. Cemex relied on the exclusivity provision of the Kentucky Workers’ Compensation Act, KRS 342.690(1). In relevant part, the exclusivity provision states:
If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term “employer” shall include a “contractor” covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact secured the payment of compensation.

“The statute makes it plain that if [a company] is a contractor, it has no liability in tort to an injured employee of a subcontractor.” Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 461 (Ky. 1986). This is referred to as “up-the-ladder” immunity. If a company meets the definition of “contractor” provided in the workers’ compensation statutes, then it is deemed to be an “up-the- ladder” employer of its subcontractors’ employees and, like any employer, is entitled to immunity from its employees’ tort actions. The statutes define a “contractor” as a “person who contracts with another . . . [t]o have work performed of a kind which is a regular or recurrent part of the work of the [person’s] trade, business, occupation, or profession.” KRS 342.610(2)(b).

Accordingly, the dispositive issue in this matter, and the focus of Kenney’s disagreement with Cemex, is whether the repairs Kenney was assigned to perform on the splitter gate at the 526 Ball Mill qualified as work that is a “regular” and “recurrent” part of Cemex’s business, per KRS 342.610(2)(b).
Kentucky jurisprudence further defines these terms. In General Elec. Co. v. Cain, 236 S.W.3d 579 (Ky. 2007), our Supreme Court held that, as used in the statute, “regular” and “recurrent” work
is work that is customary, usual, or normal to the particular business (including work assumed by contract or required by law) or work that the business repeats with some degree of regularity, and it is of a kind that the business or similar businesses would normally perform or be expected to perform with employees.” Id. at 588.

The Court also stated that “‘regular’ means that the type of work performed is a ‘customary, usual or normal’ part of the premises owner’s ‘trade, business, occupation, or profession,’ including work assumed by contract or required by law.” Cain, 236 S.W.3d at 586-7. “Recurrent” means that the work is repeated, though not “with the preciseness of a clock.” Id. (quoting Daniels v. Louisville Gas and Elec. Co., 933 S.W.2d 821, 824 (Ky. App. 1996)).

The Sixth Circuit has held that work being done “periodically,” as an “ordinary part of plant maintenance,” is regular or recurrent. Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1257 (6th Cir. 1987). In Daniels, a panel of this Court held that emissions testing was a regular or recurrent part of a contractor’s business on the basis of its manager’s affidavit stating that testing had occurred on fourteen occasions in 28 years. Daniels, 933 S.W.2d at 824.

 

 

 

 

 

 

 

 

 

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