Sept. 14, 2012 COA Minutes — Nos. 790-812 (23 decisions; 9 To Be Published)

The Court of Appeals issued 23 decisions on Sept. 14, 2012;   9 of which were to be published.

In the area of personal injury and torts, there were two published decisions and which should be of interest to Kentucky injury lawyers and insurance defense lawyers.

  • Greer v. Hook, in a decision authored by Judge Maze, the COA affirmed the dismissal of the plaintiff’s personal injury suit for failure to properly supplement their answers regarding liquidated damages even though a motion had been filed by plaintiff to supplement those interrogatory answers.
  •  Lovell v. St. Paul Fire and Marine –   The COA reversed the trial court’s dismissal in a claim involving the interpretation of an insurance policy where the trial court had denied uninsured motorist benefits under a fleet policy which had poorly drafted language.  A deputy was injured by an uninsured motorist and the COA held that there was UIM coverage even though deputy was not in the insured vehicle at time injured by the uninsured motorist.  Put another way, the policy offers first- class coverage but then defines protected persons in such a way that no one receives that coverage. We believe the language limiting coverage to second-class insureds is, within the context of the policy as a whole, unclear, equivocal, and internally inconsistent. Thus, the limiting language should be construed in favor of the insured. Doing so leads us to the conclusion that, to be entitled to UM coverage, Brett was not required to be “in a covered auto” at the time of the accident. Accordingly, we reverse the trial court.

LINKS:

  • Click on this link for the full text of these minutes with link to full text of each decision.
  • Click here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

790. DAMAGES.  FRATZKE APPLIED, DENYING PLAINTIFF’S MOTION AT TRIAL TO AMEND ANSWERS TO INTERROGATORIES.
GREER (LARRY), ET AL.
VS.
HOOK (HENRY), ET AL.
OPINION AFFIRMING
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND TAYLOR (CONCURS)
2010-CA-001767-MR
2010-CA-001806
TO BE PUBLISHED
PIKE

MAZE, JUDGE: Larry Greer and Diana Svacina (Appellants) appeal from the Pike Circuit Court’s dismissal of their personal injury suit for failure to properly supplement their answers to interrogatories regarding unliquidated damages. Oncross-appeal, Henry Hook (Hook) appeals the trial court’s May 2009 order setting aside its dismissal of the case for lack of prosecution, after which the case proceeded to trial before it was dismissed and appealed to this Court. Finding neither error nor abuse of discretion on the part of the trial court, we affirm its dismissal of Appellants’ case.

In the case at bar, Appellants made a motion for leave to amend their answers, placing it in closer factual proximity to Prater, but still under the rule of Fratzke and LaFleur. Thus, under Prater, the trial court had discretion to grant or deny Appellants’ motion. See also Fratzke at 272 (“We note that nothing in the rules precludes a trial court from entertaining a motion to supplement answers to interrogatories after trial has commenced.”). In citing to Prater, Appellants seem to confuse the court’s discretion to hear the motion with a duty to grant it. No such duty exists. If the trial court, like in Prater, had refused to even entertain Appellants’ motion, citing the mandatory language of CR 8.01(2), we might be inclined to find error in such a decision. However, with these facts before us, we read CR 8.01(2) and the above cases to mean that any reference by Appellants to unliquidated damages amounts above zero was properly excluded at trial.

795. CRIMINAL LAW.
DULIN (DERICK)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND TAYLOR (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000602-MR
TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: Derick Dulin brings this appeal from a March 3, 2011, order of the Jefferson Circuit Court denying his motion to vacate sentence pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We vacate the sentence and remand for action consistent with this judgment.

797.  UNINSURED MOTORIST BENEFITS.  COA FOUND INSURED OF FIRST CLASS ILLUSORY IN POLICY AND THUS PROVIDED COVERAGE TO DEPUTY NOT IN INSURED VEHICLE AS INSURED OF SECOND CLASS.
LOVELL (BRETT ALAN), ET AL.
VS.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, ET AL.
OPINION REVERSING
KELLER (PRESIDING JUDGE)
THOMPSON (CONCURS, AND FILES SEPARATE OPINION) AND TAYLOR (DISSENTS, AND FILES SEPARATE OPINION)
2011-CA-000699-MR
TO BE PUBLISHED
KENTON

KELLER, JUDGE: Brett Alan Lovell and Angela Lovell (collectively referred to as the Lovells) bring this appeal from the circuit court’s February 4, 2011, PartialSummary Judgment,1 and April 1, 2011, Order dismissing the Lovells’ claim for uninsured motorist benefits from St. Paul Fire & Marine Insurance Company (St. Paul). For the following reasons, we reverse.

It was ultimately determined that neither the driver of the truck nor the truck was covered by an automobile liability insurance policy. However, the Kenton County Sheriff’s Department provided automobile liability insurance coverage on all its police cruisers, including uninsured motorist (UM) benefits, through St. Paul.

The Lovells initiated the underlying action in an attempt to recover UM benefits from St. Paul.2 Both the Lovells and St. Paul filed motions for summary judgment. The trial court granted St. Paul’s motion, concluding that Brett was not entitled to recover UM benefits. In so deciding, the trial court initially determined that Brett was not a “named insured” but was an insured of the “second class.” As an insured of the second class, the trial court believed that Brett was not “occupying the vehicle” per the four-prong test adopted in MGA Insurance Co., Inc. v. Glass, 131 S.W.3d 775 (Ky. App. 2004) and Ky. Farm Bureau Mut. Ins. Co. v. McKinney, 831 S.W.2d 164 (Ky. 1992). Therefore, the trial court found that Brett was not covered under the UM provision of the policy. This appeal followed.

Based on the definitions in the insurance policy, there does not appear to be an insured of the first class. Specifically, there is no first-class coverage because the named insured, the Kenton County Fiscal Court, would have to be in a “covered auto.” As set forth in Dupin v. Adkins, 17 S.W.3d 538, 543 (Ky. App. 2000), “[t]he insured’s status as an insured is alone a sufficient nexus for a claim of [UM] benefits without the insured’s actually being in a motor vehicle covered for [UM] under the policy.” Kentucky courts have repeatedly stated that “[UM] coverage is personal to the insured and not connected to a particular vehicle.” Id. Therefore, UM coverage “must follow the insured regardless of whether theinsured is injured as a motorist, a passenger in a private or public vehicle, or a pedestrian, and is only limited by the actual, valid exclusions of each insurance policy.” Id. Because there is not a first-class insured in this case, the provisions for first-class coverage under the policy are illusory.

“In Kentucky, the exclusionary or limiting language in policies of automobile insurance must be clear and unequivocal and such policy language is to be strictly construed against the insurance company and in favor of the extension of coverage.” Nationwide Mut. Ins. Co. v. Hatfield, 122 S.W.3d 36, 39 (Ky. 2003). The policy appears to offer first-class coverage; however, it does not. The language limiting coverage to those “in a covered auto,” makes all covered persons second-class insureds. That limiting language is in conflict with the language extending coverage to first-class insureds. Put another way, the policy offers first- class coverage but then defines protected persons in such a way that no one receives that coverage. We believe the language limiting coverage to second-class insureds is, within the context of the policy as a whole, unclear, equivocal, and internally inconsistent. Thus, the limiting language should be construed in favor of the insured. Doing so leads us to the conclusion that, to be entitled to UM coverage, Brett was not required to be “in a covered auto” at the time of the accident. Accordingly, we reverse the trial court.

803.  FAMILY LAW. EPO/DVO.
GUENTHER (KEITH GREGORY)
VS.
GUENTHER (RACHEL MARIE)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
THOMPSON (CONCURS) AND KELLER (CONCURS IN RESULT ONLY IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION)
2011-CA-001165–ME [NOTE: the link in the minutes is incorrect, containing an extra “-” in it.  this link will take you to the full text]
TO BE PUBLISHED
KENTON

CAPERTON, JUDGE: Keith Gregory Guenther appeals from the entry of a Domestic Violence Order (“DVO”) entered by the Kenton County Family Court for the protection of Rachelle Marie Guenther. On appeal, Keith argues that the trial court lost jurisdiction by continuing the EPO/DVO hearing per the parties’ agreement to continue for more than fourteen days after the filing of theEmergency Protective Order (“EPO”) and that the trial court erred in entering the DVO without sufficient factual basis to establish that acts of domestic violence and abuse did occur and may occur again. Upon a thorough review of the parties’ arguments, the record, and the applicable law, we conclude that the trial court did have jurisdiction to enter the DVO but erred in entering the DVO sub judice, as the record does not support by a preponderance of the evidence that domestic violence may occur again. Accordingly, we reverse the entry of the DVO and remand this matter for further proceedings.

804.  REAL PROPERTY.  NUISANCE LIEN ENFORCEMENT BY CITY.
UTTERBACK (EDITH)
VS.
CITY OF EARLINGTON, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001418-MR
TO BE PUBLISHED
HOPKINS

LAMBERT, SENIOR JUDGE: Edith Utterback appeals from an order of the Hopkins Circuit Court denying her motion to vacate a summary judgment and order of sale. The judgment and order of sale allowed the City of Earlington to enforce and foreclose nuisance liens filed against Utterback’s properties. Upon a thorough review of the record, we reverse and remand to the Hopkins Circuit Court.

806.  KENTUCKY OPEN RECORDS ACT.  POA TO THIRD PARTY TO OBTAIN RECORDS NOT UNAUTHORIZED PRACTICE OF LAW.
TAYLOR (CHESTER L.) JR
VS.
BARLOW (ROGER), ET AL.
OPINION REVERSING AND REMANDING
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001779-MR
TO BE PUBLISHED
MONROE

MAZE, JUDGE: Appellant, Chester Taylor, appeals the Monroe Circuit Court’s sua sponte dismissal of his suit seeking records requested from the Appellee, Monroe County Sheriff and seeking damages pursuant to Kentucky’s Open Records Act (“KORA”) for that agency’s failure to disclose the documents in a timely manner. We reverse and remand, finding that the trial court erred indismissing Taylor’s case for lack of standing and in finding that Taylor was engaged in the unauthorized practice of law.

807. PRISON SENTENCES.  EDUCATIONAL GOOD TIME CREDIT.
ROBERTS (DONALD)
VS.
THOMPSON, COMMISSIONER (LADONNA)
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND DIXON (CONCURS)
2011-CA-001950-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE: Donald Roberts, an inmate at the Kentucky State Reformatory, appeals, pro se, from an order of the Franklin Circuit Court dismissing his petition for a declaration of rights seeking Educational Good Time(“EGT”) credit towards his sentence. For the following reasons, we reverse and remand.

810. WORKERS COMPENSATION.
JUSTICE (DAVID)
VS.
KIMPER VOLUNTEER FIRE DEPARTMENT, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
MAZE (CONCURS) AND TAYLOR (CONCURS)
2012-CA-000417-WC
TO BE PUBLISHED
WORKERS’ COMP

CLAYTON, JUDGE: David Justice petitions for review of a decision of the Workers’ Compensation Board (“Board”). The Board affirmed an Administrative Law Judge’s (“ALJ”) determination that Justice was not entitled to an award of permanent disability benefits because he had no “regular employment” from which an average weekly wage (“AWW”) could be computed. After careful review, we affirm.

812. WORKERS COMPENSATION. PREMISES RULE AND PAID BREAKS.  ACCIDENTS OFF PREMISES DURING A PAID BREAK IN CASE OF FIRST IMPRESSION IN KY.
US BANK HOME MORTGAGE
VS
SCHRECKER (ANDREA)
OVERFIELD, HON (J. LANDON), ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2011-CA-002253-WC
TO BE PUBLISHED
WORKERS COMP

CLAYTON, JUDGE: This is an appeal from a decision of the Workers’ Compensation Board (the Board) affirming the decision of the Administrative Law Judge (ALJ) awarding Appellee Andrea Schrecker benefits. Based upon the following, we affirm the Board’s decision.

In this case, the Board found that while the other employees confirmed Schrecker’s testimony that the accident occurred off work premises and that lunch breaks were unpaid, none of them contradicted Schrecker’s testimony that she was actually on her paid afternoon break when she was injured. Neither did they contradict Schrecker’s assertion that it was common practice to cross the street for food during the paid breaks and that it was condoned by US Bank.

US Bank asserts that if she had required refreshment, Schrecker should have simply gone to the vending machine area that was located on premises. There was no requirement, however, that an employee take her unpaid breaks on premises. The facts are that Schrecker clocked out for a paid break. She crossed the street for a “refreshment” which is a condoned and common practice among US Bank employees. Given these facts, the Board did not err in finding that Schrecker was on a paid break at the time of her accident and was, therefore, within the course and scope of her employment entitling her to benefits for her injuries. Thus, we affirm the decision of the Board.

 

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED:

790. DAMAGES.  FRATZKE APPLIED, DENYING PLAINTIFF’S MOTION AT TRIAL TO AMEND ANSWERS TO INTERROGATORIES.
GREER (LARRY), ET AL.
VS.
HOOK (HENRY), ET AL.
OPINION AFFIRMING
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND TAYLOR (CONCURS)
2010-CA-001767-MR
2010-CA-001806
TO BE PUBLISHED
PIKE

SEE ABOVE.

797.  UNINSURED MOTORIST BENEFITS.  COA FOUND INSURED OF FIRST CLASS ILLUSORY IN POLICY AND THUS PROVIDED COVERAGE TO DEPUTY NOT IN INSURED VEHICLE AS INSURED OF SECOND CLASS.
LOVELL (BRETT ALAN), ET AL.
VS.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, ET AL.
OPINION REVERSING
KELLER (PRESIDING JUDGE)
THOMPSON (CONCURS, AND FILES SEPARATE OPINION) AND TAYLOR (DISSENTS, AND FILES SEPARATE OPINION)
2011-CA-000699-MR
TO BE PUBLISHED
KENTON

SEE ABOVE.
NOT PUBLISHED:
796.  PREMISES LIABILITY.  LANDLORD LIABILITY.  MCINTOSH REVIEWED.
MARTIN (DANETTI)
VS.
ST JOSEPH HEALTH SYSTEM, INC., ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
TAYLOR (CONCURS IN RESULT ONLY) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000645-MR
NOT TO BE PUBLISHED
FAYETTE

ELLER, JUDGE: Danetti Martin (Martin) appeals from the trial court’s summary judgment in favor of Congleton-Hacker, Co.1 On appeal, Martin argues that a genuine issue of material fact exists, making the court’s judgment inappropriate. Congleton-Hacker argues to the contrary. Having reviewed the record, we reverse and remand.

The parties agree that a land owner, in this case St. Joseph, has the duty to maintain property in a reasonably safe condition. See Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385, 393 (Ky. 2010). However, the parties do not agree whether, or to what degree, that duty extended to Congleton- Hacker. Martin argues that Congleton-Hacker had a duty to provide adequate lighting for the stairway and liability for damages related to its failure to fulfill that duty.

On the other hand, Congleton-Hacker argues that its only duty was to construct the stairway in a workmanlike manner. Furthermore, Congleton-Hacker argues that, if it had a duty to provide lighting, it was free to rely on St. Joseph’s lighting; and if that lighting failed, the liability was St. Joseph’s.

Having determined that Congleton-Hacker had the same duty with regard to the stairway as St. Joseph, we must determine if that duty included providing adequate lighting. We have not found, and the parties have not cited, any cases directly on point. However, we note that there are a number of cases in which the courts of the Commonwealth have held that a landowner may have a duty to provide adequate lighting. See Phelps Roofing Co. v. Johnson, 368 S.W.2d 320 (Ky. 1963); Urban v. Walker, 403 S.W.2d 11 (Ky. 1966). Based on these holdings and Congleton-Hacker’s recognition that providing adequate lighting was essential, we hold that Congleton-Hacker had a duty to provide adequate lighting.

Having determined that Congleton-Hacker had a duty to provide adequate lighting, we next look to whether Congleton-Hacker breached that duty. In doing so, we must construe the facts in a light most favorable to Martin and resolve all doubts in her favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).

Martin agrees that, to fulfill its duty, Congleton-Hacker was free to rely on the parking lot lighting provided by St. Joseph. However, Martin argues that Congleton-Hacker cannot avoid liability if that reliance was misplaced. On the other hand, Congleton-Hacker argues that, because it had no ability to maintain or control the parking lot lighting, it could not, as a matter of law, have any liability when that lighting failed.

We disagree with Congleton-Hacker. Certainly, Congleton-Hacker was free to rely on the parking lot lights to fulfill its duty to provide adequate lighting. However, whether Congleton-Hacker’s reliance solely on St. Joseph was a breach of that duty is a question of fact for the jury, not a question of law. See Pathways, 113 S.W.3d at 89. Therefore, we must remand this matter so that the parties can proceed to trial.

Having reviewed the record, and based on the facts of this case, we reverse the circuit court’s summary judgment and remand for trial.

THOMPSON, JUDGE, DISSENTING: I respectfully dissent. The

majority’s holding broadly expands a contractor’s potential liability and imposes a duty not contemplated by the parties’ contract. Martin conceded that the stairway was constructed in a workmanlike manner. Further, when operational, there was sufficient lighting provided by the existing lights located in the parking lot. Congleton-Hacker did not control the parking lot lights, and there is no evidence that it was aware that the lights were not operating on the date Martin fell. In the absence of a contractual duty, Congleton-Hacker did not have the means or the ability to control the operation of the parking lot lights.

The majority’s reliance on the Restatement (Second) of Torts, § 384, is misplaced. Congleton-Hacker did not create a dangerous condition on the hospital premises. Again, there is no dispute that the stairway was properly constructed and lighting was available. Although it is not clear why the lights were not operating when Martin fell, it is clear that the operation of the lighting was not within Congleton-Hacker’s control.

The consequences of the majority’s opinion will be far reaching. As in this case where the premises owner has installed adequate lighting to ensure the structure built is not dangerous, the contractor will be required to ensure that the lights are properly maintained and operational. Alternatively, the contractor must provide his own lighting, an alternative that is costly, time-consuming and, in this case, beyond the scope of the work to be completed. Moreover, the majority has expanded the potential liability of every business owner. Under the majority opinion, liability will attach when a hail storm or other natural disaster causes a power loss to a commercial business and the owner does not immediately install backup lighting. I cannot agree that this Court should impose such an onerous duty on contractors and business owners.

For the reasons stated, I would affirm.

801. WRONGFUL DEATH.
PAULA TERRY, ADMINISTRATRIX
VS.
ELAM (JAMES), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
TAYLOR (CONCURS, IN RESULT ONLY) AND THOMPSON (CONCURS)
2011-CA-001006-MR
NOT TO BE PUBLISHED
CLARK

KELLER, JUDGE: Paula Terry, administratrix of the estate of Allen Terry, appeals from the Clark Circuit Court’s entry of summary judgment in favor of James and Barbara Elam, the defendants below, in a wrongful death action. After careful review, we affirm.

This appeal arises out of a single-vehicle automobile accident that occurred on October 7, 2009, on Bybee Road in Clark County, Kentucky. The driver of the vehicle, Allen Terry, died as a result of injuries sustained in the accident. The evidence reflects that Allen’s vehicle left the road and collided with a metal fence, several fence posts, and a brick mailbox. The accident occurred adjacent to rental property at 5235 Bybee Road that was owned by the Elams.

The Elams had rented the property to Daniel and Betty Ferguson for more than nine years, but the parties had never entered into a written lease agreement. At the time of the accident, the Fergusons owned two “outside” dogs and three “house” dogs. Although they are not mentioned in the police incident report, two of the “house” dogs – “Taco” and “Izzy” – were subsequently found dead on Bybee Road just north of the accident scene.

On June 10, 2010, Terry’s estate (“the Estate”) filed a wrongful death complaint against the Fergusons and the Elams in the Clark Circuit Court. The Estate alleged that the accident was the result of a collision with the Fergusons’ dogs, which were “running at large” on Bybee Road due to negligent ownership and control by both the Fergusons and the Elams. The complaint set forth that the Elams were liable for negligence per se pursuant to Kentucky Revised Statutes (KRS) 258.095 and 258.235, as well as local ordinance. The Estate also asserted a common-law negligence claim against the Elams.

The Estate contends that entry of summary judgment was inappropriate as to its negligence claim against the Elams. The Estate specifically contends that a landlord can be held liable in negligence for injuries caused by his tenant’s dogs where the landlord is aware of the dogs’ propensity to “run at large.” In considering this issue, we emphasize that we have been presented solely with the question of whether the trial court erred in granting summary judgment as to the Estate’s common-law negligence claim. The question of the applicability of KRS 258.095 and 258.235 – the dog-injury liability statutes – or any local ordinance in this case is not before us.1

“As a general proposition, it has been written often that a landlord is not liable for the negligence of his tenants in the use of leased premises.” McDonald v. Talbott, 447 S.W.2d 84, 85 (Ky. 1969). However, there are

exceptions to that rule. Id. Of particular relevance to this case, our courts have historically recognized that landlords may be held liable in negligence for injuries caused by a tenant’s dog, but only in very specific circumstances. In order to establish a duty on the part of a landlord with respect to a tenant’s dog for purposes of a common-law negligence action, the plaintiff must establish that the landlord had: (1) knowledge of the dog’s vicious or mischievous propensities and (2) control over the area where the incident in question occurred. See Benningfield, 367 S.W.3d at 573 (Schroder, J., dissenting in part but concurring in result); see also McDonald, 447 S.W.2d at 85-86; Ireland v. Raymond, 796 S.W.2d 870, 871- 72 (Ky. App. 1990).2

Here, there is no evidence that the Elams knew of any incidents where the Fergusons’ dogs had ever charged or chased vehicles on Bybee Road or impeded the flow of traffic. Nor is there evidence that they had received any complaints that the dogs had ever interfered with traffic on the road in any way. Had such proof been presented, we believe summary judgment would have been inappropriate. At most, the Estate produced evidence that some of the Fergusons’ dogs left the property – and perhaps crossed the road – from time to time. Such running at large, without more, is not enough to constitute a dangerous propensity. Moreover, in the absence of more substantive proof in this regard, there was nothing from which a trier of fact could reasonably infer that the Elams had actual knowledge of the dogs’ allegedly dangerous propensities so as to impose a duty of care. Consequently, summary judgment was appropriate. Having reached this conclusion, we need not address the additional grounds for affirming raised by the Elams.

Conclusion

For the foregoing reasons, the judgment of the Clark Circuit Court is affirmed.

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