The Court of Appeals posted 20 decisions this week, numbered 854 through 873 with 1  cases designated for publication.

Case of the week in torts was  Kindred Healthcare, Inc. v. Cherolis as Executrix of Estate of Thelma Fuqua, Deceased involving mandatory arbitration agreement entered into by nursing home patient’s power of attorney who did not have express authority to enter into an option arbitration agreement.

However, please read this decision in light of The Center for Medicare and Medicaid Services (CMS) recent rules change updating their long term care requirements in participating facilities, to wit; Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities.

LINK: https://s3.amazonaws.com/public-inspection.f…/2016-23503.pdf.

“Binding Arbitration Agreements: We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements.”

All decisions regardless of publication are posted and can be read, but just cannot be cited as legal authority.    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.  For the index to archived minutes at the official AOC page, then click here.

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.

858.  Workers Compensation.
Podgursky d/b/a Modern Woodworking v. Decker
Court of Appeals Published Opinion AFFIRMING Workers Comp Board decision that Decker was exempted from coverage for workers comp benefits.

Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

854.  Arbitration and Power of Attorney
Kindred Healthcare, Inc. v. Cherolis as Executrix of Estate of Thelma Fuqua, Deceased
COA Not to Be Published Opinion AFFIRMING Daviess Cir Ct. order that mandatory authorization was not required and was not included in power of attorney of nursing home patient.

Kindred Healthcare, Inc. and associated entities (collectively, “Kindred”) appeals from an order of the Daviess Circuit Court denying its motion to compel arbitration of claims brought by Artie Cherolis, as Executrix of the Estate of Thelma Fuqua, Deceased. Based on the holding in Whisman, we find that the power of attorney did not specifically and explicitly authorize Cherlois to execute an arbitration agreement on her mother’s behalf. In the absence of such a specific authorization, Cherlois could not bind her mother or her mother’s estate to arbitrate personal injury, negligence, or statutory claims. We have also previously found that Cherlois could not bind the wrongful death beneficiaries to arbitrate wrongful death claims, and that conclusion remains applicable. Consequently, the trial court properly denied Kindred’s motion to compel arbitration of these claims. Hence, we affirm.

In Whisman, our Supreme Court addressed the same issue presented in the present case: the extent of an agent’s authority under a power of attorney to enter into an agreement binding her principal to arbitrate wrongful death, personal injury, negligence, and statutory claims. As an initial matter, the Court re- emphasized that a wrongful death claim is a distinct interest in a property right that belongs only to the statutorily-designated beneficiaries. Consequently, neither a decedent, acting as a principal, nor her agent, have any authority to bind the wrongful death beneficiaries to an arbitration agreement. Whisman, 478 S.W.3d at 314.  On the other hand, the Court also recognized that a principal does have the authority to enter into a contract requiring arbitration of personal injury and statutory claims. However, the Court went on to clarify the holding in Ping concerning when an agent, such as a power of attorney, has the authority to select arbitration and its concomitant waiver of the constitutional right of access to the courts. In Ping, our Supreme Court held that “[a]bsent authorization in the power of attorney to settle claims and disputes or some such express authorization addressing dispute resolution, authority to make such a waiver is not to be inferred lightly.” 376 S.W.3d at 593.

In Whisman, the Supreme Court emphasized that that the rights to access to the courts, a jury trial, and appeal to a higher court are “fundamental” and “sacred,” and “involate” under the Kentucky Constitution. Whisman, 478 S.W.3d at 328-29, citing Ky. Const. §§ 7, 14, and 115. Therefore, the Court held that “the power to waive generally such fundamental constitutional rights must be unambiguously expressed in the text of the power-of-attorney document in order for that authority to be vested in the attorney-in-fact.” Id. Such powers will not be inferred from a broad or even comprehensive grant of authority unless the document explicitly endows the attorney-in-fact to enter into an arbitration agreement. Id. at 328-30.

But notwithstanding this “extraordinarily broad grant of authority,” Id. at 327, the Court in Whisman ultimately found that the instrument must explicitly and specifically authorize the attorney-in-fact to waive the principal’s fundamental constitutional rights. Id. at 328–29. The language used in the Fuqua power of attorney is nearly identical to that in the Clark instrument discussed in Whisman. Nevertheless, the majority in Whisman held that the authority to waive the principal’s right of access to the courts may not be inferred lightly in the absence of an explicit grant of such authority.

We find no meaningful distinction between the Clark power of attorney addressed in Whisman, and the power of attorney which Fuqua granted to Cherolis. Based on the holding in Whisman, we must conclude that Cherlois lacked the authority to execute the ADR Agreement. Therefore, the trial court properly denied Kindred’s motion to compel arbitration.

857.  Whistleblower Act.
University of Louisville v. Harper
COA Not to Be Published Opinion REVERSING Jefferson Cir Ct. Judgement

The University of Louisville appeals the Jefferson Circuit Court’s November 15, 2013 judgment affirming the jury’s verdict in favor of Laurel Harper and the award of damages with respect to her claim under the Kentucky Whistleblower Act,1 as well as the March 20, 2014 opinion and order Harper’s attorney’s fees and costs. Additionally, Harper cross-appeals the circuit court’s opinion and order denying her motion for front-pay damages. After review, we reverse.

873.  DVO.  Judicial notice of out of state records was harmless error.
Marchese v; Abersold
COA Not to Be Published Opinion AFFIRMING Jefferson Cir. Ct.

Stephen Marchese (Stephen) brings this appeal of a Domestic Violence Order (DVO) filed against him by Allison Abersold (Allison) and issued in the Jefferson Family Court. He alleges that the trial court erred when it sua sponte took judicial notice of out-of-state court records. Because we find that the trial court erred in doing so, but that the error was harmless, we affirm the entry of the DVO.

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