Sept. 28, 2012 Court of Appeals Minutes – Includes cases on immunity, UM, coverage, settlement rejection, accident vs. intentional

Sept. 28, 2012 Court of Appeals Minutes
Nos. 844 – 879 (36 decisions; 7  To Be Published)

Synopsis of Tort, Insurance and Civil Procedure Decisions:

Jenkins Ind. Schools v. Doe (PUB) – government immunity; school board not waive immunity by purchase of liability insurance.

Peacock v. KFBM (Not Pub) – availability of UM or uninsured motorist benefits examined in policy and applying Stamper v. Hyden

Pollard v. CSX (Not pub) – Federal Employees Liability Act.

State Auto v. Crenshaw (not pub) – insurance coverage and vehicle ownership with refusal to accept insurer’s offer to settle considered a rejection.

  • 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:

844.  CRIMINAL LAW
KING (PHILLIP A.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2010-CA-000394-MR
2010-CA-000481; 2010-CA-000566
TO BE PUBLISHED
JEFFERSON

850.  FAMILY LAW.  SETTING ASIDE ADOPTION.
M. (B. L.), ET AL.
VS.
CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
VANMETER (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000333-ME
TO BE PUBLISHED
JEFFERSON

853. CRIMINAL LAW
PADILLA (JOSE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
DIXON (CONCURS) AND MOORE (CONCURS)
2011-CA-000553-MR
TO BE PUBLISHED
HARDIN

864. CRIMINAL LAW
COMMONWEALTH OF KENTUCKY
VS.
MATTHEW DEAN BALLINGER
OPINION REVERSING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MAZE (CONCURS)
2011-CA-001248-MR
TO BE PUBLISHED
WARREN

868.  EMPLOYEES, GOVERNMENT OVERTIME.
CITY OF BOWLING GREEN, KENTUCKY
VS.
HELBIG (SHAWN)
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001660-MR
TO BE PUBLISHED
WARREN

870.  DEFENSES.  GOVERNMENT IMMUNITY.
JENKINS INDEPENDENT SCHOOLS, ET AL.
VS.
DOE, AS BIOLOGICAL PARENT (JANE), ET AL.
OPINION VACATING IN PART AND REMANDING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2011-CA-001965-MR
TO BE PUBLISHED
LETCHER

COMBS, JUDGE: Jenkins Independent Schools, Deborah Watts, Larry Maggard, Steven Holbrook, and Joe Colwell appeal this interlocutory ruling from the order of the Letcher Circuit Court, which found that none of them possessed immunity from the lawsuit filed by Jim and Jane Doe as next friend of their minor child John Doe. Following our review, we vacate in part and remand.

We first note that Kentucky Rule[s] of Civil Procedure (CR) 54.01 limits appealable judgments to final orders. Although the court’s order overruling the motion to dismiss based on immunity is not final, our Supreme Court has held that such an interlocutory order is properly subject to appeal in order to avoid preemptively the costs and burdens of defending an action that may have been properly barred by immunity. “We . . . agree . . . that an order denying a claim of substantial immunity is immediately appealable even in the absence of a final judgment.” Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). Therefore, we have jurisdiction to consider the merits of this appeal.

The Appellants argue that the trial court erred in finding that the Jenkins

school board did not have governmental immunity. We agree.
The doctrine of immunity is “a bedrock component” of our law. Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009). Sovereign immunity allows the “state, legislators, prosecutors, judges, and others doing the essential work of the state” a shield from fear of lawsuits affecting their ability to perform their official functions. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky. 2007).

School boards and their employees are not entitled to sovereign immunity; rather, as agencies of the state, it is settled law that they enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875, 903 (Ky. App. 2002).
, Governmental immunity is granted to state agencies in their performance of governmental functions. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). Individuals who are sued in their official capacities as government employees are also entitled to governmental immunity. Autry, supra. The doctrine arises in part from the doctrine of separation of powers (§§ 27 and 28 of the Constitution of Kentucky), with the result that it is inappropriate for courts to:

pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political, or economic policy. Put another way, “it is not a tort for government to govern.”  Yanero, 65 S.W.3d at 519. (Internal citations omitted).

We are not persuaded that the Jenkins school board is any less entitled to governmental immunity than are county school boards. We hold that the court erred in failing to accord immunity to the Jenkins school board. We vacate and remand on this issue.

We also hold that the trial court erred when it found that the school board waived its immunity by purchasing liability insurance. Our Supreme Court has held that a school board’s liability insurance does not represent a waiver of immunity. Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201 (Ky. 2005). This court ruling has been reaffirmed and codified by the General Assembly: “the purchase of liability insurance . . . shall not be construed as a waiver of sovereign immunity or any other immunity or privilege thereby held.” KRS 44.073(14). (This statute was held unconstitutional on other grounds by Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)). (Emphasis added).

In its order dismissing, the trial court also impliedly rejected the claim of

immunity asserted by the individual appellants. We first note that the complaint does not name the defendants in their official capacities — although all of the allegations in the complaint refer to actions and responsibilities relating to their jobs. Recently, when confronted with a similar situation, our Court determined that if a complaint does not specify that a defendant is being sued in his official capacity, he is being sued only as an individual. Bolin v. Davis, 283 S.W.3d 752, 756 (Ky. App. 2008). When agency employees are sued in their individual capacities, they may possess qualified official immunity. Id. at 757.

n this case, because no discovery was conducted, the lower court was unable to undertake the proper analysis to determine whether Superintendent Watts had failed to enact rules or whether the coaches had completely failed to supervise the football team. The record is devoid of these necessary facts. Thus, it is impossible to analyze whether the coaches were entitled to qualified official immunity. Additionally, the trial court did not have any facts to enable it to determine whether Watts had acted in good faith.

Therefore, we must vacate the order as it pertains to the individual actors and remand for the issue to be reconsidered by the trial court following discovery.

To summarize, we vacate the orders pertaining to the Jenkins Independent Schools and remand for entry of an order sustaining the governmental immunity of the school board. As to the individual appellants, we can neither affirm nor vacate; we remand for consideration of their claims of immunity after sufficient discovery has been conducted.

877. WORKERS COMPENSATION
GSI COMMERCE
VS.
THOMPSON (MICHELE), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2012-CA-000510-WC
TO BE PUBLISHED
WORKERS’ COMP

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

854.  UNINSURED MOTORIST BENEFITS (UM).  COVERAGE FOR INTENTIONAL ACTIONS OF UNNAMED TORTFEASOR (NOT ACCIDENT!) RELYING ON STAMPER V. HYDEN
PEACOCK (THOMAS)
VS.
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS) AND TAYLOR (CONCURS)
2011-CA-000732-MR
NOT TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: Thomas Peacock appeals from the trial court’s entry of summary judgment in favor of Kentucky Farm Bureau Mutual Insurance Company, hereinafter “KFB,” finding that Peacock was not entitled to uninsured motorist benefits because Peacock’s injuries were due to the intentional actions of the unnamed tortfeasor and not an “accident.” In light of this Court’s recentdecision, Stamper v. Hyden, 334 S.W.3d 120 (Ky.App. 2011), we believe such conclusion to be in error. Accordingly, we reverse and remand this matter for further proceedings.

After our review of the parties’ arguments, we believe that the determinative issue on appeal is whether Peacock’s injuries were caused by an “accident” for the purpose of uninsured motorist (UM) coverage in light of thisCourt’s recent decision in Stamper v. Hyden, 334 S.W.3d 120.

Recently, in Stamper, supra, this Court addressed whose point of view determines whether an accident occurred on a claim for UM benefits, the insured- victim or the perspective of the uninsured motorist (tortfeasor). In holding that “the protective purpose of the statute is achieved by interpreting “accident” from the perspective of the insured-victim…” this Court noted that “the legislative intent of KRS 304.20–020 is to make whole—to the extent possible—an injured party who would otherwise not receive compensation from an at-fault uninsured party.” Stamper at 124 (internal citations omitted).

Sub judice, the trial court interpreted “accident” from the viewpoint of the unnamed tortfeasor; clearly such was in error in light of Stamper and necessitates reversal. On remand the trial court, in light of Stamper, will need to determine whether the facts support a finding that from Peacock’s perspective an “accident” occurred for the purpose of UM coverage.

Last, we decline to address the parties’ remaining arguments because the trial court solely based its order of summary judgment on its determination that Peacock’s injuries were not accidental but rather the result of intentional conduct.

In light of the aforementioned, we reverse and remand for further proceedings.

ALL CONCUR.

855, FELA.
POLLARD (JIMMIE R.)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MAZE (CONCURS)
2011-CA-000773-MR
NOT TO BE PUBLISHED
PERRY

TAYLOR, JUDGE: Jimmie R. Pollard brings this appeal from a March 29, 2011, judgment of the Perry Circuit Court upon a jury verdict in favor of CSX Transportation, Inc., and dismissing Pollard’s complaint. We affirm.

Pollard instituted the underlying action against CSX under the Federal Employers’ Liability Act (FELA), codified in 45 U.S.C. §§ 51-60, and under the

Locomotive Inspection Act (LIA), codified in 49 U.S.C. §§ 20701-20703.1 Pollard was employed by CSX as a locomotive engineer. While so employed, Pollard claimed that excessive vibration due to insecure cab seats in the locomotive and placement of controls on the locomotive caused or contributed to development of osteoarthritis in his lower back and left shoulder. In particular, Pollard asserted that CSX was negligent in the construction or maintenance of locomotive cab seats and in the placement of certain controls in the locomotive. Pollard also maintained that the cab seats in the locomotive violated the LIA (49 CFR 229.119(a))2 as the seats were not securely mounted or braced and that such violation amounted to negligence per se. CSX denied all of Pollard’s claims and argued that Pollard’s osteoarthritis was not caused by any work-related activity.

The case was tried by a jury. During the jury trial, Pollard filed motions for directed verdict on the premise that the locomotive cab seats violated the LIA (49 CFR 229.119(a)) and that Pollard was not comparatively negligent under the FELA or the LIA. The circuit court denied both motions. CSX’s motions for directed verdict were also denied. Ultimately, the jury unanimously found in favor of CSX, and judgment was rendered dismissing Pollard’s complaint in its entirety. This appeal follows.

860.  INSURANCE COVERAGE AND OWNERSHIP.  REFUSAL TO ACCEPT OFFER WAS CONSIDERED A REJECTION.
STATE AUTO INSURANCE COMPANY
VS.
CRENSHAW (LINDA), ET AL.
OPINION REVERSING AND REMANDING APPEAL NO. 2011-CA-000932-MR AND AFFIRMING APPEAL NO. 2011-CA-000970-MR
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS)
2011-CA-000932-MR
2011-CA-000970-MR
NOT TO BE PUBLISHED
BARREN

MAZE, JUDGE: These consolidated appeals arise out of two summary judgment orders entered by the Barren Circuit Court in an action involving a motor vehicle accident between Elizabeth Boyd and Jeremy Smith. In a summary judgment order entered on June 13, 2008, the trial court determined that Compton’s Auto Sales remained the owner of the vehicle for insurance purposes because it failed to promptly file the paperwork transferring the vehicle’s title. Thereafter, Smith filed a claim against the Boyds’ insurer, State Auto Insurance Co., seeking to enforce a 2004 settlement offer for the limits of the Boyds’ policy. The trial court concluded that offer remained open and Smith’s acceptance of the offer in 2008 was valid.

In Compton’s appeal, we agree with the trial court that Compton’s failure to promptly file the title-transfer paperwork results in it being deemed the owner of the vehicle for insurance purposes. But in State Auto’s appeal, we conclude that Smith’s refusal to accept State Auto’s settlement offer in 2004 amounted to a rejection of the offer’s terms. Consequently the offer was terminated at that point and could not be accepted later. Hence, we affirm the trial court’s order in Appeal No. 2011-CA-00970-MR, and we reverse the trial court’s order Appeal No. 2011-CA-000932-MR and remand for entry of an order dismissing Smith’s claim against State Auto.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.