COA: October 6, 2017 Court of Appeals Decisions (Minutes)

Nos. 833-860: 28 Decisions Posted with a 3 decisions designated 'to be published' with links to full text of each decision


834.   Attorney Fees.
Kincaid v. Johnson, True & Guarnieri LLP
Affirmed amount of attorney fees awarded to law firm, and the manner in which those fees were calculated arising from trust litigation.

841.  Fellow-employee doctrine.  Torts.
Roach v. Wilson
Affirmed. Held fellow-employee immunity under the Workers Comp Act does not apply when an employee causes injury as a result of acts outside the scope and course of employment and there was sufficient evidence to support the jury’s finding that the bus driver was voluntarily intoxicated while operating the school bus involved in the crash.

849.  Home Owners Insurance.  Exclusions.  Water damage.
Comley v. Auto-Owners Insurance Company
Affirming.  Held Comley’s homeowner’s policy did not cover water damage to his house where water main owned and operated by Kentucky American Water Company burst, causing water to enter onto Comley’s land and into the residence, and damaging both his real and personal property.

Selected cases that were not designated for publication in tort, insurance and civil law.

833.  Torts.  Damages.  Admissibility of disability application.
Caschera v. Gladstone
Affirmed trial court’s denial of plaintiff’s motion for direct verdict and negligence per se on liability.  Affirmed ruling admitting disability application and ruled hearsay objection not raised at trial would not be considered on appeal.

844.  Insurance.  No fault.  Examinations under oath and medical examinations.
McGhee v. Allstate Northbrook Indemnity Co.

McGhee’s insurance contract specifically provides that she must authorize Allstate to obtain medical reports and other records pertinent to her claim. It also specifically provides that she may be required to submit to an examination under oath as often as Allstate reasonably requires and to undergo medical examinations by physicians of Allstate’s choosing as often as Allstate reasonably requires.

Under Allstate’s policy provisions, McGhee was required to submit to an examination under oath as a condition precedent to coverage. Instead of denying coverage outright when McGhee refused to cooperate, Allstate attempted to secure the circuit court’s assistance in obtaining information by way of deposition that Allstate reasonably believed was helpful to its claims decision. The circuit court agreed that Allstate was entitled to conduct a reasonable investigation to determine whether McGhee was entitled to receive BRB. Under the circumstances, McGhee’s resistance to Allstate’s efforts was inappropriate under her contract of insurance. The circuit court did not err by concluding that McGhee failed to provide reasonable proof of her claims until ordered to do so by the court. Nor did it err in determining that once she had provided the requisite proof, Allstate agreed promptly to pay the claims. Thus, McGhee asserted no viable claim against Allstate. The circuit court did not err by dismissing the proceedings.

845.  Arbitration.
Kindred Hospitals Limited Partnership v. White
The record does not support the Jefferson Circuit Court’s determination that Sherren lacked contractual capacity when she executed the ADR agreement. Therefore, the presumption of her capacity applied, and we REVERSE.

847.  Qualified Immunity given to detention center employees.
Lee v. Stone

851.  Automobile Insurance.  Coverage for vehicle not yet titled, etc.
Withers v. Kentucky Farm Bureau Mutual Ins. Co.


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For more information on unpublished decisions and obtaining case information, then continue reading below the fold.

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 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, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.