COA: January 19, 2018 Court of Appeals Decisions (Minutes)

Nos. 34-48: 15 Decisions Posted with 1 decision designated for publication

PUBLISHED DECISIONS:

42.  Family Law.
Duffy v. Duffy
Affirmed trial court that husbands unvested restricted stock units were marital property and subject to division.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

43.  Torts.  Statute of Limitations.  Defendant dies before service.
Romano v. Estate of Ben Johnson
Appellant/plaintiff did not obtain service on defendant driver in car accident prior to defendant driver’s death.  An administrator was appointed for the estate before statute of limitations expired.  Appellant plaintiff amended complaint in original service and argued the amended complaint related back. Trial court applied Alsabi v. Gailor, but Court of Appeals REVERSED and REMANDED holding the amended complaint related back and not filed untimely in violation of statute of limitations.

“Contrary to the trial court’s interpretation herein, Gailor did not hold that a suit originally filed against a deceased defendant could never be amended past the limitations period. Rather, it held that CR 15.03 does not permit relation back where the proper party did not exist during the limitations period. However, the facts herein are clearly distinguishable. Unlike the administrator in Gailor, the executrix of Johnson’s estate had been appointed almost one year prior to the date Romano filed his original complaint. Thus, this is not a case of a non-existent party at the time suit was originally filed. In fact, the trial court’s conclusion that Gailor supports dismissal even where the Estate (the proper party) actually exists would act to vitiate the specific purpose of the relation back rule. Therefore, unlike Gailor, there remains a question as to whether the Estate knew or should have known about Romano’s action during the limitations period. Accordingly, Romano was entitled to conduct further discovery on the issue of whether the Estate “(a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him” so as to satisfy the requirements of the relation back rule under CR 15.03.”

45.  Underinsured Motorist Benefits.  Held no UIM coverage for LLC member in commercial auto policy 
Metzger v. Auto-Owners Ins. Co.
Appellants argue that Ms. Metzger was covered by a commercial automobile insurance policy, which included UIM coverage, when she was struck by a vehicle while out walking. Owners argues that since Ms. Metzger was a pedestrian when she was struck by the automobile, she was not covered under the terms of their UIM coverage. We agree with Owners and affirm.
Note.  This case has a good discussion on commercial policies and policy language for applicability of UIM coverage to owners of LLC, members of partnership, and members of an organization.

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You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

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