Dec. 21, 2012 Court of Appeals Minutes (Appellate Decisions)

Court of Appeals Minutes Text OnlyPublished and Unpublished Decisions from the Kentucky Court of Appeals

December 21, 2012 Court of Appeals Minutes
Nos. 1182-1223; 42 decisions;  14  Cases To Be Published)

Click here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS:

1182.  TOXIC TORT.
BALLARD RAY (PLAINTIFFS), ET AL.
VS.
ASHLAND OIL, INC., ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2008-CA-000840-MR
2008-CA-000861-MR; 2008-CA-001011-MR; 2008-CA-001086-MR
TO BE PUBLISHED
LAWRENCE

1183.  TOXIC TORT.
MULLINS WILLIAM, ET AL
VS.
ASHLAND INC., ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2008-CA-000860-MR
TO BE PUBLISHED
JOHNSON

1186.  MEDICAL NEGLIGENCE.
RIES (BILLIE JO), ET AL.
VS.
OLIPHANT, M.D. (RICHARD C.), ET AL.
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
STUMBO (CONCURS) AND CLAYTON (CONCURS IN RESULT ONLY)
2011-CA-000100-MR
TO BE PUBLISHED
JEFFERSON

1187.  CRIMINAL LAW
MCELROY (KEVIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000235-MR
TO BE PUBLISHED
MADISON

1193. CRIMINAL LAW
JONES (BILLY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND NICKELL (CONCURS AND FILES SEPARATE OPINION)
2011-CA-001298-MR
TO BE PUBLISHED
GRAVES

1195.  APPEALS.  COA DISMISSED APPEAL FOR DEFECTIVE BRIEF!
OAKLEY (JAMES W.)
VS.
OAKLEY (DENISE MARIE)
OPINION AND ORDER STRIKING APPELLANT’S BRIEF AND DISMISSING APPEAL
NICKELL (PRESIDING JUDGE)
DIXON (CONCURS) AND MAZE (CONCURS IN RESULT ONLY)
2011-CA-001410-ME
TO BE PUBLISHED
LAUREL

NICKELL, JUDGE: James W. Oakley seeks to appeal a verbal order made by the Family Court Division of the Laurel Circuit Court during an evidentiary hearing on August 2, 2011. We strike James’s brief for noncompliance with the Kentucky Rules of Civil Procedure (CR) and dismiss the appeal for lack of jurisdiction.

1198.  BAD FAITH CLAIM.  JUDICIAL ESTOPPEL.
MARTINDALE (MICHAEL), ET AL.
VS.
FIRST NATIONAL INS. CO. OF AMERICA, ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
VANMETER (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2011-CA-001747-MR
TO BE PUBLISHED
WOODFORD

NICKELL, JUDGE: Michael Martindale, and his wife, Velicia Martindale, appeal from an opinion and order entered by the Woodford Circuit Court on August 29, 2011, dismissing them from a bad faith claim1 they had filed against First National Ins. Co. of America, Safeco Ins. Co. of America and insurance adjuster Laura Harp (referred to collectively as “Safeco”). Having reviewed the record, the briefs and the law, we affirm.

1201. ENFORCEMENT OF DIVORCE JUDGMENT.
FORTWENGLER (JEFFREY B.)
VS.
FORTWENGLER (SHANNON DOYLE)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-001833-MR
2011-CA-002077-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Jeffrey B. Fortwengler has appealed from two post-decree rulings by the Jefferson Family Court related to rights of third parties to enforce a judgment in a dissolution proceeding. Because we agree with the family court that a judgment had to be obtained or a collection attempted by a separate action before seeking enforcement, we affirm the orders on appeal.

1208.  IMMUNITY.
WALES (WALLACE) SR.
VS.
PULLEN (TED), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-002109-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Wallace Wales Sr. appeals the entry of summary judgment in favor of the appellees, Ted Pullen, individually and in his capacity as Director ofthe Louisville Metro Government Department of Public Works, and Richard Storm, individually and in his capacity as Jefferson County Engineer. Based on the reasons stated herein, we reverse in part, affirm in part, and remand.

1209.  FIREFIGHTER’S RULE.
RICE (ANDREA)
VS.
VANDERESPT (DAVID), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2011-CA-002152-MR
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE: Andrea Rice appeals the October 24, 2011, order of the Jefferson Circuit Court which granted a motion for summary judgment filed by David Vanderespt and Patricia Vanderespt, his wife. Rice is a police officer who responded to a call at the Vanderespts’ property and was injured in the process. The sole issue on appeal is whether Rice is barred by the public policyconsiderations of the Firefighter’s Rule from seeking recovery in tort. After our review, we conclude the trial court did not err in ruling that the Vanderespts cannot be held liable for Rice’s injuries.

1214. RELEASE EXCLUDED BY TRIAL COURT RE PROPERTY DAMAGE WHEN NOT PLED AS AN AFFIRMATIVE DEFENSE.
EDWARDS (ASHLEY N.)
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2012-CA-000033-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Ashley N. Edwards (now Torres) appeals the judgment of the Jefferson Circuit Court awarding State Farm Mutual Insurance Company (State Farm) damages in the amount of $13,970.91 for damage to property arising out of an automobile accident on May 7, 2010. After careful review, we affirm the trial court’s judgment.

1220
WOODLAWN SPRINGS HOMEOWNERS ASSOCIATION, INC.
VS.
YOUR COMMUNITY BANK, INC.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2012-CA-000439-MR
TO BE PUBLISHED
NELSON

COMBS, JUDGE: The Woodlawn Springs Homeowners Association, Inc., (Homeowners Association), appeals the order of the Nelson Circuit Court denying its motion to modify an order which granted summary judgment to Your Community Bank, Inc. (the Bank). After our review, we vacate and remand.

1221
M. (C. J.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2012-CA-000590-ME
2012-CA-000591-ME
TO BE PUBLISHED
GARRARD

CLAYTON, JUDGE: C.J.M. (“the mother”) and C.F.A. (“the father”) appeal in separate cases from the Garrard Circuit Court’s order and judgment terminating their parental rights. After a careful review, we affirm.

1223
MEUTH CONCRETE
VS.
KINDLE (DEREK), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2012-CA-001059-WC
TO BE PUBLISHED
WORKERS’ COMP

COMBS, JUDGE: Meuth Concrete petitions for review of an opinion of the Workers’ Compensation Board that vacated and remanded the decision of the Administrative Law Judge (ALJ). The ALJ had dismissed a claim filed by Derek

Kindle. Meuth Concrete contends that the Board erred when it concluded that the ALJ failed to make sufficient findings of fact and to account properly for rejecting the opinion of a university evaluator with respect to causation. We disagree with both contentions. Therefore, we affirm the Board’s decision remanding the claim for additional consideration.

 

 

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