The Court of Appeals posted 17 decisions this week, numbered 939 through 955 with 6 cases designated for publication.

Interesting cases in the tort and insurance areas for this week include:

  • Another opinion addressing McIntosh and the subsequent decisions by the Supreme Court on premises liability.  Focusing this time on duty to warn vs. foreseeability with the latter being the controlling point in reversing and remanding Judge Burress’s summary judgment dismissal.
  • This time COA affirmed Judge Burress in a malicious prosecution case with punitive damages awarded.
  •  A divorced couple find themselves back in litigation when ex-husband sues ex-wife alleging that more than two decades after their divorce she unduly influenced him to: execute deeds conveying to her a half-interest in three pieces of property he owned individually; name her as his Attorney-in-Fact pursuant to a Power of Attorney; and, add her name to his single account at the Fort Knox Federal Credit Union from which she transferred more than $21,000 into her own account.
  • Insurance agency left off a Peterbilt truck on a fleet policy with Liberty Mutual with Liberty paying its $1,000,000 limits under the policy but then looking to the agency for equitable subrogation for NOT listing and insuring the truck in the collision.  COA said no to that one.
  • An adult son who (1) moved out of his parents’ home prior to the collision, (2) was working full-time, (3) was not in school, and (4) was renting and residing in an apartment with his girlfriend at the time of the accident did not qualify as a “resident relative” and was not listed as a named insured under the policy.  COA said no to that one too.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.  CLICK ON THE “CONTINUE READING” BELOW THE LINE!

939.  Torts.  Premises Liability.  Foreseeability distinguished from duty to warn in premises liability cases.
Resnick v. Patterson
Court of Appeals Published Opinion VACATING and REMANDING Bullitt Cir Ct. summary judgment dismissing on basis of duty claims for premises liability for holes in the back  yard whether the appellant Resnick fell and injured himself.  The COA reviewed the McIntosh line of decisions and held “the trial court granted summary judgment in Patterson’s favor, finding that he did not have a duty to warn Resnick of an open and obvious danger. Because the trial court analyzed the case in terms of a duty, its reasoning was not in line with the Supreme Court’s requirement that cases be considered in terms of foreseeability and comparative fault. Thus, we vacate the trial court’s order granting summary judgment and remand for further consideration of whether or not it was foreseeable to Patterson that Resnick might be on his property helping his mother move, might be distracted while carrying boxes from the storage shed, and might trip on a hole next to a tree stump. The trial court shall determine whether Patterson did everything he reasonably could under the circumstances and to what extent Resnick is responsible for his injuries.

940.  Torts. Malicious prosecution. Punitive damages.
Burkhead v. Davis
Court of Appeals Published Opinion AFFIRMING Bullitt Cir. Ct.
This lawsuit arose from a neighborhood dispute ending up in court. Burkhead sued on multiple claims for which he was awarded $1.00 on the nuisance claim with the remainder dismissed or rejected by the jury.  The Daviss had counterclaimed for malicious prosecution and obtained a jury award for $30,000 for punitives.

941.  Torts. Undue influence.
Thomas v. Thomas
Court of Appeals Published Opinion REVERSING AND REMANDING Hardin Cir Ct.

Kimberly Thomas appeals from a judgment and three orders entered by the Hardin Circuit Court. All four items are associated with a four-day jury trial resulting from a civil complaint filed against her by Louis Thomas, her ex-husband, alleging that more than two decades after their divorce she unduly influenced him to: execute deeds conveying to her a half-interest in three pieces of property he owned individually; name her as his Attorney-in-Fact pursuant to a Power of Attorney; and, add her name to his single account at the Fort Knox Federal Credit Union from which she transferred more than $21,000 into her own account. After careful review of the briefs, the law and the record, we reverse and remand for a new trial.

946.  Unemployment compensation.  Doctrine of Substantial Compliance.
Longshore v. Kentucky Unemployment Commission
Court of Appeals Published Opinion REVERSING AND REMANDING Campbell Cir. Ct. dismissal of Longshore’s petition for review of an administrative decision by the Kentucky Unemployment Insurance Commission (hereinafter, “the Commission”). Longshore argues he substantially complied with the verification requirements mandated by KRS 341.450(1), or in the alternative, that the trial court erred in denying his motion to file an amended petition. We find that Longshore exhibited sufficient effort to comply with the statutory provisions to trigger the application of the doctrine of substantial compliance, and therefore reverse.

949.  Government Retirement Pension Contributions
Puckett v. Lexington-Fayette Urban County Government
Court of Appeals Published Opinion REVERSING AND REMANDING  Fayette Cir Ct. summary judgment in favor of LFUCG dismissing the policemen’s petition to compel the LFUCG to make contributions to their retirement fund per the statute under KRS 67A.520 in existence in 2011.

955.  Workers Compensation. Agriculture exception.
Homestead Family Farm v. Perry
Court of Appeals Published Opinion REVERSING AND REMANDING Workers Comp Board reversal of the ALJ’s dismissal of the employee’s claim against Homestead


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

948.  Insurance and Equitable subrogation discussed as between insurance company and its agent who omitted truck in policy and resulted in million dollar liability claim for omitted truck in endorsement.
Liberty Mutual Ins. Agency v. Raymond Nelson Ins Agency
COA Not to Be Published Opinion AFFIRMING Perry Cir Ct. dismissal of Liberty’s complaint for equitable subrogation for it’s payments of $1 million on liability claim on truck the agency failed to list in fleet policy.

Turning to the heart of this case, Liberty claims it is entitled to recover from Appellees the one million dollars it paid in satisfaction of the Colwells’ claim pursuant to the doctrine of equitable subrogation. Liberty asserts that the insurance policy on the trailer provided that, in the event of an accident, the policy was excess to any policy in place on the subject tractor. But, because the tractor was uninsured due to Appellees’ negligence, Liberty’s insurance policy “dropped down” and became primary, thereby requiring Liberty to pay out sums to satisfy the claims stemming from the accident.

While equitable subrogation is commonly recognized and “highly favored” as it relates to the priority of liens, see Mortgage Electronic Registration Systems, Inc. v. Roberts, 366 S.W.3d 405, 411 (Ky. 2012), little has been said in this Commonwealth as to its applicability in other contexts. In fact, both parties cite primarily to cases outside this jurisdiction to support their respective positions. We are also mindful that our highest Court once acknowledged that, “[b]ecause of an increasing tendency to invoke its use as ‘a universal remedy for parties who have lost their money,’ the doctrine of equitable subrogation has been widely discredited, although it survives in this jurisdiction.” United Pac. Ins. Co. v. First Nat. Bank of Prestonsburg, 457 S.W.2d 833, 835 (Ky. 1970) (internal citation omitted). The Supreme Court advised that the doctrine should be applied with great caution and restricted in its application. Id. We heed that advice today.

The circuit court found, and we fully agree, that equity would not be served if Raymond Nelson and Ledford were required to subrogate Liberty for the entire one million dollars. Ledford admitted she made a mistake. She failed to include the Peterbilt tractor on the schedule of insured vehicles. But the trailer was insured under the Liberty policy. That policy required Liberty to defend Hall & Sons and potentially pay sums on Hall & Sons’ behalf.

952.  Insurance.  UIM (underinsured motorist benefits)
Riley v. State Farm Mutual Automobile Ins. Co.
COA Not to Be Published Opinion  AFFIRMING Jefferson Cir Ct denial of coverage that adult son who moved out was not a “resident relative” under the contractual terms of the policy


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.”)

You will find the complete list of this weeks 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, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click herefor AOC minutes for this week.

For the index to archived minutes at the official AOC page, then click here.