Minutes for Kentucky Court of Appeals for August 18, 2006

Minutes for Kentucky Court of Appeals for August 18,  2006

  • 28 decisions:  Nos. 845 – 872 (click on above heading for pdf of minutes)
  • THREE Published Decisions are as follows:
    (click on caser for link to full text of the published decision)
    • 848
      O’HAIR V. WELLS
      TORTS:  Premises liability (fall down stairs at funeral home)

      This is an appeal from a judgment pursuant to a jury verdict in a wrongful death case finding that the owner of a funeral home was not liable for the decedent’s fall down the stairs of the funeral home. Regarding appellant’s claim that the trial court erroneously failed to strike three potential jurors for cause, COA held that trial court’s error was harmless when it failed to strike two of the potential jurors since peremptory strikes were used to excuse the jurors, thus, they did not serve on the jury. The third juror was properly allowed to serve on the jury.  COA rejected  appellant’s arguments that causation was to be presumed because it was a negligence per se case and there was no other evidence of the cause of the fall other than the code violations. The trial court properly allowed in evidence that the decedent’s wife was continuing to receive income from certain rental properties.

    • 858
      JELLINICK V. CENTRAL INDEMNITY CORP.
      CIVIL PROCEDURE:  Res judicata and issue preclusion

      This appeal arose from an installment purchase of real property in which the seller was the loss payee on the buyer’s policy of insurance.  The buyer defaulted on the installments and the property was destroyed by fire.  The insurer paid the seller.  Insurer then files suit in federal court to resolve by declaratory judgment action asserting among several claims that the buyer was responsible for setting fire to the property and thus not entitled to any of the proceeds, and obtained a default judgment.  Meanwhile appeals followed on the federal action, an action was filed by the buyer in state court but held in abeyance pending the appeal, and then dismissed.

      The buyer then filed suit over the proceeds and seeking damages against the insurance company and its attorneys.  Trial court dismissed this claim relying upon issue preclusion.  COA agreed and affirmed.  The attorneys were not parties to the federal action but obtained the benefit of issue preclusion which is not the same as res judicata.

Clearly, the current proceeding is based on the same acts and controversies that previously were litigated. Issues  surrounding the insurance policy contract were fully adjudicated by a final judgment in the prior federal action. Issues surrounding the contract for deed were fully adjudicated by a final judgment in the prior state action. Because the suits “concern the same controversy, then the previous suit is deemed to have adjudicated every matter which was or could have been brought in support of the cause of action.”   Simply put, all of Jellinick’s claims should have been resolved in the two previous actions.

Although attorney Chastain [attorney for insurance company]was not part of the previous actions, the claim against him is barred by issue preclusion, which requires:

(1) identity of issues;
(2) a final decision or judgment on the merits;
(3) a necessary issue with the estopped party given a full and fair opportunity to litigate;
(4) a prior losing litigant.

Here, the issues raised as to Chastain are identical to those which were raised or could have been raised in previous actions concerning the same controversy. Those actions were fully litigated, and they resulted in final decisions against Jellinick. As the four requirements therefore have been satisfied, Jellinick [defaulting buyer] is barred from litigating them here. It follows that the trial court did not err by entering summary judgment for appellees.

  • 870
    MONUMENTAL LIFE INSURANCE CO. V. DEPT. OF REVENUE
    REVENUE AND TAXATION – Administrative record for proceedings for review

    COA granted Monumental Life Insurance Company’s motion to remand the administrative record to the Kentucky Board of Tax Appeals (KBTA) for proper organization and indexing.  KRS 13B.130 impliedly requires an administrative agency to create and maintain a complete and orderly official record of the proceedings that is readily capable of review. 

Minutes List all published and nonpublished decisions with links to the full text of the decision posted at www.Kycourts.net web site plus orders regarding dismissals, extraordinary writs, discretionary review.

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