KTR 2013:06. Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of JUNE 2013

KTR2013.06Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of June 2013.

Synopsis of this month’s tort report of selected decisions on civil procedure, torts, appeals, insurance.

  • Abuse of Process. KRS 376.270. Issues include whether a claim for abuse of process was properly dismissed, and whether such a claim can defeat the mechanics’ lien created by KRS 376.270.  Garcia vs. Whitaker, SCOKY, PUB.
  • Last date of actual PIP payment is actual date for SOL even if reparations obligor mistakenly notifies insured of wrong date! Beaumont vs. Muluken, COA, NPO
  • Dismissal for failure to prosecute and statute of limitations Bradley vs. Creech COA NPO
  • Invitee vs. licensee distinction results in dismissal of premises liability claim Rozeboom v. Hugh Jass Bugers, LLC COA NPO
  • Summary Judgment, Additional Discovery.  Negligent Hiring, Training, Supervision
    Carberry vs. Golden Hawk Transportation Co.
  • Immunity.  Mattingly vs. Mitchell
    Affirmed COA decision denying police officer qualified official immunity.
  • UIM.  Identification and other procedural issues when UIM identified at trial after advancement to preserve subrogation claim.  Psihounakis vs. Moore
  • Last date of actual PIP payment is actual date for SOL even if reparations obligor mistakenly notifies insured of wrong date!  Beaumont vs. Muluken
  • FELA (Federal Employer’s Liability Act).  Downs vs. CSX Transportation Inc.

CIVIL PROCEDURE

Dismissal for failure to prosecute and statute of limitations
Bradley vs. Creech
COA NPO (non published opinion) 6/28/2013
As noted by the appellants, because the statute of limitations had expired, the dismissal, even though it was without prejudice, acted to extinguish their cause of action. Therefore, the dismissal had the same impact as if it had been with prejudice. When a dismissal acts to extinguish a claim, whether the dismissal is with or without prejudice, the lower court must undertake an analysis consistent with Ward v. Housman, 809 S.W.2d 717, 719 (Ky. App. 1991). That is, the court must consider the following factors: (1) the extent to which the party is personally responsible for the failure to prosecute; (2) the history of dilatoriness; (3) the extent to which the conduct of the dilatory party’s attorney was willful and in bad faith; (4) the extent to which the claim has merit; (5) the extent to which the party seeking dismissal has been or will be prejudiced; and (6) whether alternative sanctions are available.

Summary Judgment, Additional Discovery.  Negligent Hiring, Training, Supervision
Carberry vs. Golden Hawk Transportation Co.
COA NPO 6/21/2013
COA affirmed summary judgment dismissing claims.

Summary judgment “is proper only after the party opposing the motion has been given ample opportunity to complete discovery and then fails to offer controverting evidence.” Sut er v. Mazyck, 226 S .W.3d 837, 841 (Ky. App. 2007). “Absent a sufficient opportunity to develop the facts . . . summary judgment cannot be used as a tool to terminate the litigation.” I d. a t 842. There is no requirement that discovery be completed, only that the non-moving party have “had an opportunity to do so.” Hartford Insurance Group v. Citizens Fidelity Bank & Trust Company, 579 S.W.2d 628, 630 (Ky. App. 1979). Carberry was in the midst of taking depositions when the order awarding summary judgment to Golden Hawk was entered. Carberry had been unable to depose Ivey due to the criminal prosecution. Carberry claims he needed more time to depose eyewitnesses; investigating officers; and Ivey, his coworkers and former employers. However, the fact of the assault is no longer disputed and no amount of discovery would change the fact that Ivey did not assault Carberry in the course and scope of his job as a long-haul trucker for Golden Hawk. Thus, the mere fact that Ivey and Sexton arrived at the Knights Inn parking lot in a Golden Hawk truck was insufficient to make Golden Hawk liable for the assault committed by Ivey and Carberry’s resulting medical bills. Therefore, we cannot conclude summary judgment was entered prematurely.

-14-n Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946), a commercial bus driver stopped his vehicle, alighted and assaulted another motorist. Wood’s attempt to recover damages for the assault from the bus line was thwarted because: the master is liable only for the acts of his servant committed in the course or scope of the latter’s employment and not for the acts of the servant committed by him while not serving the master and outside of the scope of his employment. Hines v. Wall, 194 Ky. 379, 239 S.W. 451. Wood, 302 Ky. at 113, 194 S.W.2d at 82. Just as the bus driver in Wood did not assault the other driver in furtherance of the bus company’s interests, Ivey did not assault Carberry in furtherance of Golden Hawk’s interests. Therefore, the trial court’s order awarding summary judgment to Golden Hawk is affirmed.

DEFENSES

Qualified Official Immunity.
Mattingly vs. Mitchell
Affirmed COA decision denying police officer qualified official immunity.
COA Pub 6/21/2013

William Mattingly filed this interlocutory appeal from an order of the Jefferson Circuit Court determining that he was not entitled to qualified official immunity and that a question of fact remained regarding whether Mattingly’s actions were the proximate cause of an accident in which Latonia Mitchell was killed. Daisy Mitchell, as Administrator of the Estate of Latonia Mitchell, (the Estate) cross-appealed from that portion of the court’s order granting summary judgment in favor of Mattingly in his official capacity as a Louisville Metro Police Department Officer and on the Estate’s 42 U.S.C. § 1983 claim. We affirm the circuit court’s determination that Mattingly is not entitled to qualified official immunity in his individual capacity. Because the remaining portions of the circuit court’s order are not subject to immediate appeal, we do not address those issues.

Qualified Official Immunity
Mucker vs. Brown
COA PUB 6/7/2013
THOMPSON, JUDGE: Marian Mucker, in her individual capacity as an employee of the Jefferson County Board of Education, appeals from an order of the Jefferson Circuit Court denying her motion for summary judgment on the basis of qualified official immunity. She argues that the circuit court erred when it ruled she had a ministerial duty to remove ice from a sidewalk located on the grounds of Minors Lane Elementary School, a public school where she worked as a plant operator. We affirm.

INSURANCE

 UIM.  Identification and other procedural issues when UIM identified at trial after advancement to preserve subrogation claim
Psihounakis vs. Moore
COA PUB 6/28/2018
COA held uim carrier was sufficiently identified per Earle V. Cobb.  (Suggested reading for those interested in a discussion of the extent of the “identification” of the UIM carrier and the claims.

The issue in this appeal concerns whether an underinsured motorists (UIM) carrier was sufficiently identified at trial and whether the participation of the UIM carrier and the alleged tortfeasor at trial was so prejudicial that a new trial is required. We affirm.

The Psihountakis contend that Moore should not have been permitted to participate in the trial because the participation of Moore and Auto-Owners unfairly denied them a fair trial. This argument strikes this Court as disingenuous in light of the Psihountakis’ withdrawal of their motion to dismiss Moore as a party. Moreover, we can find no authority that would preclude Moore, a defendant and responsible to pay Auto-Owners in subrogation if the jury found against her, from participating in the trial.

MOTIONS

New Trial
Crawford vs. Marshall Emergency Services, Boyle Cir. Ct.
COA PUB 6/18/2013
Affirmed trial court on appeal of new trial motion following defense verdict in med-mal trial
MOORE, JUDGE: Jean Crawford appeals the decision of the Boyle Circuit Court to deny her a new trial regarding her medical malpractice claims against appellees, Marshall Emergency Services Associates, PSC, and Dr. Mark Spanier. After careful review, we affirm.

STATUTE OF LIMITATIONS

Last date of actual PIP payment is actual date for SOL even if reparations obligor mistakenly notifies insured of wrong date!
Beaumont vs. Muluken
COA, NPO 6/28/2013
COA affirmed dismissal of automobile negligence claim that was filed greater than two years after the date of a reissued PIP check payment even though the reparations obligor misinformed the claimant of the wrong date!

TORTS

Abuse of Process.  Malicious Prosecution. Advice of Counsel Defense.
Garcia vs. Whitaker
SCOKY, 6/21/2013

Appellant, Bobby Garcia, d/b/a Autobahn Automotive, appeals the Pulaski Circuit Court’s order directing a verdict in favor of the Appellee, Larry Whitaker, on the charges of malicious prosecution and abuse of process.

In this appeal, we will focus on the element of probable cause (for malicious prosecution)  since the trial court granted a directed verdict on the sole basis of its existence. Probable cause is that which “would induce a man of ordinary prudence to believe that the person prosecuted had committed the crime charged.” Louisville & N.R. Co. v. Sharp, 282 Ky. 758, 140 S.W.2d 383, 385 (1940).

Upon a closer inspection of the record, we find the advice of counsel defense is not available to Whitaker due to his blatant concealment of material facts in his sworn criminal complaint.

Invitee vs. licensee distinction results in dismissal of premises liability claim
Rozeboom v. Hugh Jass Bugers, LLC
COA NPO 6/28/2012
The resolution of this appeal revolves solely upon the issue of whether Rozeboom was an invitee at the time of his injury. Rozeboom believes he was an invitee; conversely, Hugh Jass Burgers argues he was not an invitee but rather was a licensee. For the following reasons, we conclude that Rozeboom was a licensee and was not an invitee.  Rozeboom asked permission to enter the restaurant for the sole purpose of repairing a leaky pipe for eCampus.com. For this limited purpose, the manager of Hugh Jass Burgers consented to Rozeboom’s entry. Rozeboom was not employed by Hugh Jass Burgers and performed no repairs at the behest of Hugh Jass Burgers. Additionally, Rozeboom entered the restaurant at 8:00 a.m., well before it opened to the general public and did not dine at the restaurant.

FELA (Federal Employer’s Liability Act)
Downs vs. CSX Transportation Inc.
COA NPO 6/21/2013
Affirmed jury verdict dismissing negligence claims against CSX. Sole issue on appeal was re instructions regarding standard of care.

Although these jury instructions were erroneous, the jury ultimately found that neither GE nor CSX breached any duties of care to Downs. It is axiomatic that a finding of fault necessarily precedes apportionment of fault; consequently, a jury’s finding that a defendant did not breach the standard of care naturally eliminates the question of apportionment of fault, as there is no fault to apportion. Since the jury found that neither GE nor CSX breached their respective duties of care, the error in the jury instructions apportioning fault to LG was effectively cured by the jury’s ultimate verdict. See People’s Bank of N. Ky., Inc. v. Crowe Horwath, 390 S.W.3d 830 (Ky. App. 2012). Accordingly, we are constrained to conclude that the erroneous jury instructions as to LG did not prejudice Downs’ substantial rights, thus resulting in mere harmless error. See CR 61.01; Miller, 296 S.W.2d 684. For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.

Premises Liability, COA decision following Post-McIntosh Remand
Lewis vs. Faulkner Real Estate Corp., Jefferson Count
COA PUB 6/14/2013

Products Liability Claim arising from death of child falling out of window
McCarthy vs. Ritescreen Co., Inc.
Jefferson Cir. Ct. (Gibson, J)
COA Not To Be Published 6/14/2013

Legal malpractice claim barred by statute of limitations
William C. Eriksen PSC vs. Kerrick, Stivers, Coyle & Van Zant, PLC
Hardin Cir Ct (George, Special Judge)
Not To Be Published

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