The Court of Appeals of Kentucky (COAKY) announced 15 decisions this week of January 24, 2014. 3 were designated “to be published”. Click here for complete list of all archived Court of Appeals’ Minutes that you can download from the Administrative Office of the Courts’ web site.
For you tort lawyers, this was a busy little week from our COA addressing treble trespass damages, appeals dismissed for no magic language and omitting a party, piercing the corporate veil for owner liability, a non-McIntosh case affirmed on evidentiary issues and not open and obvious, and potholes and proximate cause problems in a wrongful death claim. The published decision by Judge Allison Jones is a thought-provoker on UM primary-excess coverage.
Last week I may have erroneously placed the numbering confusion of the decisions in each set of minutes, but the confusion may have rested on me since it appears the COA has abandoned there sequential numberer of decisions for each year and simply numbered them for each set of minutes. Whether this is an oversight, a clerical change or a conscious move by those in charge remains to be discerned. But it is what it is 1-16 this week, three published. Next.
TORT, INSURANCE AND PROCEDURE HIGHLIGHTS:
1. Treble damages in trespass action.
Barbara Delong v. Larry C. Penix
COA, NPO (Nonpublished Opinion), 1/24/2014, Judge Taylor
Martin Cir. Ct., Judge John David Preston
COA vacated and remanded appeal; affirmed cross-appeal.
3. Appeal. Torts, dog bite appeal dismissed in case against landlord and summary judgment was not final and appealable.
Katie McCormick et al vs. James Scott Reed Revocable Trust et al
Fayette Cir Ct., Judge Kimberly Bunnell
COA, NPO, 1/24/2013 Judge Taylor Presiding
COA appeal dismissed appeal of summary judgement which was in effect a partial summary judgment and did not dismiss all claims of all parties AND did not contain the finality language (eg., the “magic language” of final and appealable with no just cause of delay wording.)
4. Appeal. Dismissed appeal since party not named and no jurisdiction.
Griffin v. Linden
Jefferson Cir Ct., Judge Cunningham
COA, NPO 1/24/2013; Judge Moore Presiding
Although this was an appeal of a stay or arbitration, appeal was dismissed for failure to name a party.
6. Premises liability case that is not a McIntosh Open and Obvious issue but rather a defense verdict appealed on evidentiary issues at trial. COA affirmed verdict.
Wright v. James A. Brown Enterprises, LLC
Johnson Cir Ct. , Trial Judge John David Preston
COA, NPO, 1/24/2013, Presiding Judge Moore
10. Corporate veil of LLC pierced and liability against owner affirmed by COA.
Mountain Paving and Construction LLC v. Workman
Pike Cir Ct, Trial Judge Eddy Coleman
COA NPO 1/24/2014, Presiding Judge Taylor
12. COA affirmed summary judgment dismissing estate’s negligence claim against road construction company’s work on highway because claimant failed to meet burden showing the potholes were the cause of the one-car accident.
Rita Barrett, Adm’x of Estate vs. Elmo Greer and Sons LLC
Jackson Cir Ct, Trial Judge Oscar House
COA, NPO 1/24/2014 Presiding Judge Taylor
13. See the Contryway decision below which provides a bright line rule that the um policy on the car in the collision is primary.
8. Criminal Law.
Rose Ann Childress v. Commonwealth of Kentucky
Hart Cir. Ct., Judge Charles Simms, III
COA, PUB, 1/24/2014, Judge Dixon Presiding Judge
COA vacated and remanded trial judge’s denial of defendant’s motion to void her drug conviction pursuant to KRS 218.275(8). The trial judge erroneously relied upon the 2011 statute, not the 2012.
13. Uninsured motorist benefits and priority between two policies
Countryway Ins. Co. v. United Financial Casualty Co.
Warren Cir. Ct., Judge John R. Grise
COA, PUB 1/24/2014, Presiding Judge Allison Jones
The Warren Circuit Court determined that the policies contained mutually repugnant excess coverage provisions and, therefore, damages should be prorated between the two policies. On appeal, Countryway asserts that the trial court should have deemed United’s policy primary because it covered the vehicle involved in the accident. For the reasons more fully explained below, we hold that the policy covering the injured person should be deemed primary to the policy covering the vehicle. Accordingly, we reverse the Warren Circuit Court’s order prorating the coverage.
While we agree with Countryway that Shelter’s underlying logic in favor of a bright-line rule should be adopted with respect to UM coverage, we do not agree that Shelter compels us to follow the same order of priority when dealing with UM coverage as when dealing with general liability coverage. After a review of the applicable statutes and relevant case law dealing with UM coverage, we conclude that because UM coverage is first-party coverage, it should follow the person, not the vehicle, as a matter of priority.
In conclusion, we hold that under Shelter the repugnancy rule and apportionment are no longer applicable where two excess/other insurance UM provisions clash. Instead, the UM policy covering the injured person, in this case, Countryway’s policy, will be deemed primary as a matter of public policy and judicial economy.
14. Family Law
Donald G. Ellis v. Theresa Ellis
Appeal From Livingston Circuit Court, Honorable Clarence A. Woodall, III, Action No. 12-Ci-00213
COA, PUB, 1/24/2014; Judge Maze Presiding
Donald Ellis appeals from an order of the Livingston Circuit Court which denied his petition to exercise jurisdiction to modify the provisions of an Indiana decree relating to custody and visitation with the parties’ son. We conclude that the specific home state provisions of KRS 403.822 and the factors set out in KRS 403.834(2) to determine the appropriate forum must control over the more general policy against splitting custody matters between two states. In the current case, only Kentucky has the relevant evidence relating to custody and visitation of the son. Therefore, we conclude that the trial court abused its discretion by declining to exercise jurisdiction in this matter. Hence, we reverse and remand.
For a brief summary of some decisions dealing with torts, insurance, and civil procedure issues: