September 2013 – Topical Summary of Kentucky Court of Appeals Published Decisions with Digests and Links to Full Text (prepared by the AOC)

JCUP Demo 2013.09

JCUP – Jefferson Courtroom Upgrade Project 2013
Demonstration showing the video displays, computers
Photo by Michael Stevens

Click here for September 2013 monthly summaries.

Click here  for entire listing of archived COA Monthly Summaries of Published Decisions.

Here are some of the tort, insurance and civil decisions of interest dealing with:

II.  ARBITRATION 

Ison v. Robinson 

2010-CA-000898 09/20/2013 2013 WL 5297153

Opinion by Judge Taylor; Judges Combs and Nickell concurred. Homeowners, who owned property located on a mine bench, brought an action against a developer alleging that excavation on the developer’s property located below the bench undermined the slope of the mountainside, resulting in landslide damage to homeowners’ property and access road. Following arbitration, the circuit court affirmed the arbitration award and entered judgment in favor of homeowners in the amount of $732,500. On appeal, the Court of Appeals affirmed this decision. The Court held that a homeowner’s submission of a memorandum to the arbitrator that included damage claims against the developer for loss of credit rating and evidence regarding those claims, without service on opposing counsel, did not rise to the level of undue means or fraud necessary to vacate the arbitration award. The developer agreed to the procedures and terms for the arbitration, including the submission of concurrent memoranda to the arbitrator, and was aware of the fact that the homeowner was seeking lost profits and other business-related damages. The Court also held that the circuit court did not err in its award of pre- and post-judgment interest.

III.  ATTORNEY AND CLIENT 

Ruby v. Scherzer 
2012-CA-001724 09/27/2013 2013 WL 5423067 DR Pending

Opinion by Judge Lambert; Judges Moore and VanMeter concurred. The Court of Appeals affirmed the dismissal of a foreclosure action brought by an attorney against his former client in an effort to enforce an attorney’s lien filed pursuant to KRS 376.460. The Court held that KRS 376.460 was not applicable to dissolution actions such as the one in which the attorney had represented the former client, when there was nothing “recovered” or obtained in that case to which a lien could properly attach. The former client’s marriage was dissolved, and she was merely assigned her non-marital property and awarded her share of the marital property. The Court noted that to properly seek his attorney’s fees, the attorney should have filed a suit against the former client to obtain a judgment, which could then be enforced. This would have permitted the parties to litigate the attorney’s entitlement to fees and afforded due process to the former client.

VIII.  IMMUNITY

Transit Authority of River City v. Bibelhauser
2011-CA-002039 09/27/2013 2013 WL 5423061

Opinion by Judge VanMeter; Judges Clayton and Combs concurred. In a negligence action, the Court of Appeals affirmed the denial of Transit Authority of River City (TARC)’s motion for summary judgment on grounds of immunity. The Court held that TARC was not entitled to sovereign immunity by virtue of KRS 67C.101(2)(e) and KRS 96A.020(1) since, under those statutes, TARC’s authority is more corporate than governmental. TARC was also not entitled to governmental immunity under the two-prong test set forth in Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91 (Ky. 2009). The Court noted that TARC is an agency of the consolidated Louisville Metro, which enjoys immunity from suit, but concluded that TARC had failed to show that it performs a “function integral to state government,” as is required to satisfy the Comair test.

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