Jan. 2014 Summary of Monthly Published Decisions

A Summary of the Published Decisions from the Kentucky Court of Appeals for the month of January 2014:

CIVIL PROCEDURE

Standard of review for denial of motion to set aside summary judgment (no appeal taken).
Edwards v. Headcount Management
Marion Cir Ct.
COA, PUB 1/31/2014

ACREE, CHIEF JUDGE: At issue is whether the Marion Circuit Court abused its discretion when it denied Appellant Debbie Edwards’s motion to set aside summary judgment under Kentucky Rule of Civil Procedure (CR) 60.02. Finding no abuse, we affirm.

Standing.
Branham v. Estate of James Owen Elkins
Pike Cir Ct
COA PUB 1/31/2014

MOORE, JUDGE: The above-captioned appellants petitioned the Pike Circuit Court to order the sale of a tract of land located in Pike County, Kentucky. The circuit court dismissed their petition on the ground that they failed to demonstrate title to the tract in question and therefore lacked standing to file their petition. They now appeal. Upon review, we affirm.

CRIMINAL LAW

20. Willoughby vs. Commonwealth of Kentucky COA Published 1/10/2014 Criminal case with the COA  which  involved illegal search and seizure.  “Because the trial court’s decision was based on testimony not in the record, on the limited issue of the initial stop, we reverse the denial of the motion to suppress. We, like the trial court, lack sufficient information regarding the reliability of the information upon which the officer relied in stopping Willoughby; therefore, we remand that matter to the trial court for a new evidentiary hearing and findings.”

21 Teague vs. Commonwealth of Kentucky
COA Published 1/10/2014 RCr 11.42.
Decision followed Smith v. Commonwealth, 400 S.W.3d 742 (Ky 2013).

22.  Hall vs. Commonwealth of Kentucky
COA Published 1/10/2014
Addressed postal search and motion to suppress it.

Rose Ann Childress v. Commonwealth of Kentucky
Hart Cir. Ct., Judge Charles Simms, III
COA, PUB, 1/24/2014, Judge Dixon Presiding Judge

COA vacated and remanded trial judge’s denial of defendant’s motion to void her drug conviction pursuant to KRS 218.275(8).  The trial judge erroneously relied upon the 2011 statute, not the 2012.

Criminal Law.  Sentencing.
Knuckles v.  Commonwealth of Kentucky
Rockcastle, Judge David Tapp
COA, PUB 1/31/2014

ACREE, CHIEF JUDGE: Alvin Knuckles appeals from the Rockcastle Circuit Court’s denial of his Kentucky Rule of Criminal Procedure (RCr) 11.42 motion to vacate his criminal convictions and the accompanying motions for an evidentiary hearing and appointment of counsel. We conclude an evidentiary hearing was necessary; we vacate the order in part and remand the matter for further proceedings. Because Knuckles’ collateral attack cannot succeed on the basis of a trial error, we affirm a portion of the order.

FAMILY LAW

Middleton V. Middleton
COA Published 1/3/2014
A family law case dealing with determination of marital property, interest in marital residence, allocation of debt, calculation of child support, attorneys fees and costs.

Donald G. Ellis v. Theresa Ellis
Appeal From Livingston Circuit Court,  Honorable Clarence A. Woodall, III, Action No. 12-Ci-00213
COA, PUB, 1/24/2014; Judge Maze Presiding

Donald Ellis appeals from an order of the Livingston Circuit Court which denied his petition to exercise jurisdiction to modify the provisions of an Indiana decree relating to custody and visitation with the parties’ son. We conclude that the specific home state provisions of KRS 403.822 and the factors set out in KRS 403.834(2) to determine the appropriate forum must control over the more general policy against splitting custody matters between two states. In the current case, only Kentucky has the relevant evidence relating to custody and visitation of the son. Therefore, we conclude that the trial court abused its discretion by declining to exercise jurisdiction in this matter. Hence, we reverse and remand.

Family Law.  Grandparent visitation.
Doane v. Gordon
Spencer Fam Ct.
COA PUB 1/31/2014

COMBS, JUDGE: Matthew Lee Doane was granted custody of M.D.D., a minor child, following a proceeding for dependency, neglect, and abuse. Doane and M.D.D. appeal an order of the Spencer Family Court holding that the natural mother of M.D.D. remained entitled to decide whether the child’s natural grandmother could exercise visitation with him. After our review, we reverse and remand.

Family Law. DVO.  Appeal Untimely Filed.
Erwin v. Cruz
Allen County
COA PUB 1/31/2014

VANMETER, JUDGE: Kenneth R. Erwin, Jr. appeals from the Allen Circuit Court order denying his motion to vacate the Domestic Violence Order (“DVO”) entered against him. For the following reasons, we dismiss this appeal as untimely filed.

GOVERNMENT / REGULATORY / ADMINISTRATIVE LAW

Regulatory Law.  Marketing an unauthorized insurance product.
Deans & Homer, Inc. v . Commonwealth of Kentucky, Public Protection Cabinet
Franklin Cir Ct
COA PUB 1/31/2014

ACREE, CHIEF JUDGE: The appellant, Deans & Homer, Inc., appeals the Franklin Circuit Court’s opinion and order affirming an administrative determination of the Kentucky Department of Insurance that the appellant had engaged in the promotion of an unauthorized insurance policy. The circuit court also rejected appellant’s argument that the Department had violated Kentucky Revised Statutes (KRS) 304.14-130 by failing to follow the procedure for withdrawing approval of a previously approved form of insurance. Because we find the appellant did not promote an unauthorized insurance product, we reverse.

INSURANCE

Murphy  vs. Travelers Cas. and Surety Co.
COA Published 1/17/2014.  Pulaski County
Here the COA stated the obvious and affirmed the dismissal of a claim of violation of the Unfair Claims Settlement Practices Act because the underlying insurance policy had lapsed and was not in force at the time of the alleged conduct.  Or as stated much better than I

The courts of this Commonwealth have continually held that absent a contractual obligation, i.e., an insurance policy, there can be no bad faith cause of action and no violation of the UCSPA. See Davidson v. American Freightways, Inc., 25 S.W.3d 94 (Ky. 2000); Wittmer v. Jones, 864 S.W.2d 885 (Ky. 1993); Kentucky Nat. Ins. Co. v. Shaffer, 155 S.W.3d 738 (Ky. App. 2004). We are bound by those decisions.

34. Leamon v. Phillips –
COA Published 1/3/2014
COA affirmed trial court’s determination that government workers were entitled to absolute or qualified immunity for their roles in reporting suspected child abuse and neglect and/or removing the children.

35. Ohio Cas. Ins. Co. vs. City of Providence, Ky
COA Published 1/10/2014
COA dealt with purchase of surety bonds for clerks and language of policy pertaining to the extent of coverage.

Uninsured motorist benefits and priority between two policies
Countryway Ins. Co. v. United Financial Casualty Co.
Warren Cir. Ct., Judge John R. Grise
COA, PUB 1/24/2014, Presiding Judge Allison Jones

The Warren Circuit Court determined that the policies contained mutually repugnant excess coverage provisions and, therefore, damages should be prorated between the two policies. On appeal, Countryway asserts that the trial court should have deemed United’s policy primary because it covered the vehicle involved in the accident. For the reasons more fully explained below, we hold that the policy covering the injured person should be deemed primary to the policy covering the vehicle. Accordingly, we reverse the Warren Circuit Court’s order prorating the coverage.

While we agree with Countryway that Shelter’s underlying logic in favor of a bright-line rule should be adopted with respect to UM coverage, we do not agree that Shelter compels us to follow the same order of priority when dealing with UM coverage as when dealing with general liability coverage. After a review of the applicable statutes and relevant case law dealing with UM coverage, we conclude that because UM coverage is first-party coverage, it should follow the person, not the vehicle, as a matter of priority.

In conclusion, we hold that under Shelter the repugnancy rule and apportionment are no longer applicable where two excess/other insurance UM provisions clash. Instead, the UM policy covering the injured person, in this case, Countryway’s policy, will be deemed primary as a matter of public policy and judicial economy.

SETTLEMENTS & RELEASES

 Wagner vs. Bevins.
COA Published 1/17/2014; Pike County
The COA addressed the enforcement of a settlement agreement, but within the context of a real estate dispute rather than a personal injury claim.  Judge Lambert’s analysis started with Clark v. Burden, 917 S.W.2d 574 (Ky. 1996), and the COA  found no error with the trial court’s conclusion that Ms. Wagner authorized the settlement at issue in this case and then later determined that it was not in her best interest and tried to revoke that authority.

TORTS

Murphy  vs. Travelers Cas. and Surety Co.
COA Published 1/17/2014.  Pulaski County
Here the COA stated the obvious and affirmed the dismissal of a claim of violation of the Unfair Claims Settlement Practices Act because the underlying insurance policy had lapsed and was not in force at the time of the alleged conduct.  Or as stated much better than I

The courts of this Commonwealth have continually held that absent a contractual obligation, i.e., an insurance policy, there can be no bad faith cause of action and no violation of the UCSPA. See Davidson v. American Freightways, Inc., 25 S.W.3d 94 (Ky. 2000); Wittmer v. Jones, 864 S.W.2d 885 (Ky. 1993); Kentucky Nat. Ins. Co. v. Shaffer, 155 S.W.3d 738 (Ky. App. 2004). We are bound by those decisions.

Discrimination in termination from tenured faculty position.
Charalambakis v. Asbury College
Jessamine Cir Ct.
COA PUB 1/31/2014

THOMPSON, JUDGE: John Charalambakis, a former professor at Asbury College, sued for employment discrimination, breach of contract and defamation. Charalambakis appeals from summary judgment on his discrimination and retaliation claims, dismissal of his defamation claim, the jury verdict on breach of contract claim and the final judgment awarding costs.   Affirmed.