February 2013 – Topical Summary of Kentucky Court of Appeals Published Decisions with Digests and Links to Full Text (prepared by the AOC)

Courthouse Road Built Circa 1800 Running from the Salt River to Nashville

Courthouse Road Built Circa 1800 Running from the Salt River to Nashville

Not all roads lead to Rome; and not all roads to the courthouse are paved with stones and steps.  Why they called the way from Louisville to Nashville the Courthouse Road, I do not know, but this was the way until 1829 when the Louisville-Nashville Turnpike replaced it.  Imagine a trip to the courthouse without traffic lights, parking meters, and punching the clock to be on time.  However, a trip to the woodshed from the judge had a whole new meaning back then.  Taken using a Canon D60 Digital SLR.

Click here for February 2013 monthly summaries.

Click here for entire listing of COA Monthly Summaries of Published Decisions.

Here are the tort, insurance and civil decisions for this month.

Strict evidentiary standards not applied in small claims court.
NORTHERN TOOL AND EQUIPMENT, INC. v. DURBIN
2011-CA-000503 02/01/12
Opinion by Judge Thompson; Judges Combs and Maze concurred.
On discretionary review from a circuit court judgment affirming the decision of the district court in a small claims action, the Court of Appeals held that the strict evidentiary standards contained in the Kentucky Products Liability Act are not applicable in a small claims action. If the defendant desired to have this claim litigated in a forum where civil procedural rules are applicable, it could have sought removal to district court under KRS 24A.310.

Faxed orders accepted by clerk
McPHERSON v. FELKER
2009-CA-000901 02/15/13
Opinion by Judge Stumbo; Chief Judge Acree and Judge Nickell concurred.
Court of Appeals held that a faxed order which is signed by the judge must be considered a “signed” order under CR 58(1). Entry of a faxed order, which is regular on its face and which has not been challenged as not intended to be entered or not the signature of the judge, is a final judgment for purposes of calculating the timeliness of a subsequent motion to alter, amend, or vacate.

Notice of appeal not tolled by bare motion per CR 59.05
STANLEY, D/B/A APC, LLC v. C&R ASPHALT, LLC
2012-CA-001025 02/08/13
Opinion by Chief Judge Acree; Judge Caperton concurred; Judge Thompson dissented.
Appeal dismissed on basis that bare CR 59.05 motion, without stating with particularity the grounds therefore, is insufficient to toll the thirty-day period for filing notice of appeal. CR 59.05 motion which fails to state with particularity the grounds therefore is incomplete and therefore invalid.

Immunity and snow on courthouse steps
EDMONSON COUNTY, KENTUCKY v. FRENCH
2011-CA-000963 02/08/13
Opinion by Judge Lambert; Judges Dixon and Taylor concurred.
County, fiscal court, elected fiscal court members, and county judge were all entitled to defense of sovereign immunity on claim that ice accumulation of courthouse steps allegedly due to deficient guttering and drainage caused plaintiff to fall and suffer injuries. Defendant county and fiscal court, as well as individual fiscal court members and judge executive in their official capacities, were entitled to immunity. Because complaint failed to specify whether claims against judge executive and individual fiscal court members were in their individual capacities, complaint was construed to allege claim in official capacities only.

Immunity for Kentucky Recreational Use Statute
ROACH v. HEDGES
2011-CA-001856 02/15/13
Opinion by Judge Clayton; Judges Combs and Thompson concurred.
Trial court properly held that principals, plant operator, and maintenance worker were immune from suit under the Kentucky Recreational Use Statute, KRS 411.190(3)-(4), for injuries alleged sustained due to negligence in maintenance of school playground. By adopting a broad definition of “owner” to include those “in control of the premises,” Court of Appeals held that the legislature intended to eliminate negligence liability by removing the duty of care from individuals who have sufficient control to render them liable absent the statute’s application.

Immediate appeal available on issue of immunity
FARMER v. COMMONWEALTH
2012-CA-001659 02/15/13
Opinion by Judge Thompson; Judge Caperton concurred; Chief Judge Acree dissented.
Court of Appeals held that an order denying immunity from prosecution under KRS 503.085 is immediately appealable under the rationale of Breathitt County Bd. of Educ. v. Prater holding that an order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment.

Interpreting exclusion of commercial general liability policy
PRYOR v. COLONY INSURANCE
2012-CA-000227 02/01/13
Opinion by Judge Clayton; Judges Combs and Nickell concurred.
Language in a commercial general liability policy precluding coverage for liability arising out of injuries to employees, as well as language in an endorsement broadening the exclusion by barring coverage to anyone performing duties related to the conduct of the insured’s business, supported entry of summary judgment on claims related to the death of person hauling timber for the insured. Even if trial court had construed decedent to have been acting as an independent contractor at the time of his death, that status falls within scope of endorsement which precluded coverage for performing duties related to the conduct of the insured’s business.

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