May 4, 2012 COA Minutes — Nos. 379-400 (22 decisions; 2 “to be published”)

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PUBLISHED DECISIONS OF COA:

379. DEFENSES. SOVEREIGN IMMUNITY. WAIVED.
MARK BLANKENSHIP PLAINTIFFS
VS.
LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT, ET AL.
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: This case comes before us on remand from the Kentucky Supreme Court pursuant to an order of the Court entered February 15, 2012. In our original opinion, we held that the trial court was correct in finding that Lexington- Fayette Urban County Government (LFUCG) was entitled to sovereign immunity in this action. After reviewing the recent decision in Madison County Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572 (Ky. 2011), we conclude that the trial court was in error.

In an opinion affirming, on August 20, 2010, we found the trial court correctly held that LFUCG was protected by sovereign immunity. As set forth above, on February 15, 2012, the Kentucky Supreme Court remanded this case to this Court after ordering that we further consider the case in light of the recent decision of Madison County, 352 S.W.3d 572.

In Madison County, the Court restated the law that while “a waiver of sovereign or governmental immunity will be found only where provided in a statute by the most express language or by such overwhelming implications from the text as to leave no room for any other reasonable construction.” Citing Withers v. University of Kentucky, 939 S.W.2d 340, 346 (Ky. 1997). The Court went on to hold that Kentucky Revised Statutes (KRS) Chapter 337 implied:

that the legislature did not intend to cloak city or county governments with governmental or sovereign immunity from the very liability that the statutes expressly placed upon them. A statute directing a governmental unit to pay its employees in a prescribed manner necessarily and overwhelmingly implies a waiver of immunity from liability to the employees for non-payment. Otherwise, the statute requiring such overtime pay is a nullity.

Based upon this holding, we must find that sovereign immunity has been waived in this action and that the trial court erred in dismissing the actionbased upon this defense. As a result, we and remand this action.

391. MANDAMUS. PROPERLY DENIED.
STUDOR, INC.
VS.
OFFICE OF HOUSING, BUILDINGS AND CONSTRUCTION, ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2011-CA-000474-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE: Studor, Inc. (“Studor”) appeals from the Franklin Circuit Court’s December 15, 2010, order denying its petition for a writ of mandamus and its related motion for summary judgment and granting summary judgment in favor of the Commonwealth of Kentucky’s Office of Housing, Buildings and Construction and the Commonwealth of Kentucky’s Board of Housing, Buildings and Construction (hereinafter collectively referred to as “Appellees”). For the following reasons, we affirm.

On appeal, Studor contends that the court erred by denying its petition for a writ of mandamus and its related motion for summary judgment, claiming that Appellees’ actions were arbitrary and capricious because their determination was not supported by substantial evidence and denied Studor the minimum standards for procedural due process. Studor also claims that Appellees’ determination denied it equal protection and favored special legislation. We disagree.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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Not to be published:

386.  PIP. STATUTE OF LIMITATIONS.
DICKEY (LISA)
VS.
LIBERTY MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-002320-MR
NOT TO BE PUBLISHED
FAYETTE

VANMETER, JUDGE: Lisa Dickey appeals from the Fayette Circuit Court order granting Liberty Mutual Insurance Company’s (“Liberty Mutual”) motion for a judgment on the pleadings and denying Lisa’s motion for partial summary judgment. For the following reasons, we affirm.

On July 4, 2005, Lisa was involved in a motor vehicle accident. Pursuant to her insurance policy with Liberty Mutual, Lisa received Personal Injury Protection (“PIP”) benefits. On March 23, 2007 and April 16, 2007, Lisa was treated for injuries resulting from the accident at Bauman Physical Therapy (“Bauman”). Liberty Mutual issued a check on October 5, 2007 to cover those expenses. The check was received by Bauman on October 12, 2007. Lisa received additional treatment on October 9, 2009 by Clayton Elswick, D.C. Liberty Mutual denied payment for the treatment, claiming the statute of limitations on Lisa’s benefits had expired. On February 16, 2010, Lisa brought the underlying action seeking to recover costs of Dr. Elswick’s treatment from Liberty Mutual under her PIP claim.

KRS 304.39-230(1), a provision of the Motor Vehicle Reparations Act, states that if reparation benefits have been paid, an action for further benefits “may be commenced not later than two (2) years after the last payment of benefits.” This court previously held that the date of payment made by the PIP provider is the date the PIP provider issued the check. Wilder v. Noonchester, 113 S.W.3d 189, 191 (Ky.App. 2003) (citing Lawson v. Helton Sanitation, Inc., 34 S.W.3d 52, 57 (Ky. 2000)).

Lisa maintains Wilder is not controlling and relies on KRS 355.4A-401 to argue that the date of receipt of payment is the date of payment for purposes of the statute of limitations. However, KRS 355.4A-401 applies to “direct fund transfers, commonly known as ‘wire transfers’ between banking institutions, rather than payment of medical bills by drafts issued by insurers.” See Wilder, 113 S.W.3d at 191.

In the case at bar, the record demonstrates that Liberty Mutual issued its last check to Bauman on October 5, 2007 to cover Lisa’s treatment costs. Thus, Lisa’s claim for PIP benefits to cover her treatment on October 9, 2009 is more than two years from her last benefits payment and, thus, her claim is time-barred.

The order of the Fayette Circuit Court is affirmed. ALL CONCUR.

389. UNDERINSURED MOTORIST BENEFITS (UIM). STATUTE OF LIMITATIONS (SOL).
PERRY (BRENDA)
VS.
KELTY (DAMON), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ACREE (CONCURS)
2011-CA-000160-MR
NOT TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: The Appellant, Brenda Perry, appeals the December 22, 2010, order of the Jefferson Circuit Court, granting summary judgment in favor of the Appellees, Damon Kelty and State Farm Mutual Automobile Insurance Company, concerning Perry’s claim for underinsured motorist coverage. On appeal, Perry argues that the court erred in granting summary judgment. Following a review of the record, the arguments of the parties, and the applicable law, we affirm.

Having reviewed the record and applicable law, we are compelled to affirm the court below in granting State Farm’s motion for summary judgment. A review of the law of this Commonwealth establishes that the two-year limitation to commence an action for underinsured benefits set forth in Perry’s policy is the same limitation as that set for an action against a tortfeasor in the Kentucky Motor Vehicle Reparations Act, as codified at Kentucky Revised Statutes (KRS) 304.39-230(6). As this Court has previously held, a two-year limitation of this nature for suits against an underinsured carrier is not unreasonable. See Elkins v. Kentucky Farm Bureau Mutual Ins. Co., 844 S.W.2d 423 (Ky.App. 1992).

Perry advises this Court that she did not receive a copy of the policy, or Endorsement 6126GP, nor was she aware of the terms and conditions contained therein, a contention disputed by State Farm. Without question, however, Perry paid the premiums on the policy and admitted receipt of the Declaration Page outlining the contents of the policy. In so doing, Perry bound herself to the terms of the policy, including the limitation for filing an action contained therein. Furthermore, our courts have clearly held that the lack of knowledge of the contents of a written contract of insurance cannot serve as a legal basis for voiding its provisions. Midwest Mutual Insurance Co. v. Wireman, 54 S.W.3d 177 (Ky. App. 2001).

Our review of the record reveals that the limitation contained in the policy is clearly set forth in Endorsement 6126GP, which was referenced in the Declaration Page that Perry admittedly received. Unawareness of the content of the provisions referenced therein cannot serve as a basis for invalidating same.

Wherefore, for the foregoing reasons, we hereby affirm the December 22, 2010, order of the Jefferson Circuit Court, granting summary judgment in favor of the Appellees.

390. BOARD OF CLAIMS.
GAITHER (VIRGINIA), ADMINSTRATRIX & PERSONAL REPRESENTATIVE
VS.
JUSTICE & PUBLIC SAFETY CABINET, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000185-MR
2011-CA-000199-MR
NOT TO BE PUBLISHED
FRANKLIN

KELLER, JUDGE: Virginia Gaither (Virginia), Administratrix and Personal Representative of the Estate of LeBron Gaither (LeBron), appeals from the opinion and order of the Franklin Circuit Court dismissing Virginia’s claim and reversing the finding by the Board of Claims (the Board) that the actions of state police detectives were ministerial and negligent. On appeal, Virginia argues that the court erroneously found that the actions of state police detectives were discretionary and not subject to Virginia’s claims of negligence. The Justice and Public Safety Cabinet and the Department of State Police (collectively the Appellees) argue that their actions were discretionary, thus entitling them to immunity. The Appellees argue on cross-appeal that the Board erred in finding that they had a duty to protect Lebron; that they breached any such duty; that, if they were negligent, superseding/intervening events relieved them of any liability; and, that the amount awarded by the Board was not supported by the evidence and in excess of the appropriate statutory maximum. Having reviewed the record and the arguments of the parties, both orally and in writing, we affirm.

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