This week’s decisions announced and posted by the Court of Appeals in their weekly minutes may not yet be final. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.
652. For profit colleges.
Thomerson v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING Franklin Cir Ct.
ABC, Inc. a/k/a National College of Kentucky, Inc. (“College”) and James L. Thomerson, Albert F. Grasch, Jr. and Grasch Law, PSC (“Thomerson and Grasch”) bring these separate appeals from orders of the Franklin Circuit Court imposing sanctions on the College pursuant to KRS1 367.290 and on the attorneys pursuant to CR2 37.02. Since both appeals emanate from the same circuit court case number, we have associated the two cases for judicial economy.
Finally, appellants object to the trial court faulting them for the inability of the parties to resolve litigation through the normal course of negotiation and compromise of disputed discovery issues. They argue National College had the right to litigate the validity and scope of the CID, and they had no ability to compel any party to settle on any issue. They also object to the trial court’s references to the lengthy delay in the case caused by College’s pursuit of an appeal. As we stated earlier when addressing a similar argument raised by the College, the delay caused by the appeal did not justify imposition of sanctions. Nonetheless, the Court of Appeals’ Opinion became final on April 17, 2013. The College did not fully respond to the CID until February 11, 2014. Although the trial court fully recognized and acknowledged the legal skill and ability of the attorneys and their duty to zealously represent their clients, the trial court did not abuse its discretion in attributing much of the unnecessary delay in the case to their litigation tactics.
660. Medicaid.
Commonwealth of Kentucky Cabinet for Health and Family Services v. Owensboro Medical Health Systems, Inc.
Court of Appeals Published Opinion AFFIRMING Franklin Cir Ct. opinion and order denying Owensboro Medical Health System reimbursement for Medicaid services.
661. Res Judicata.
The Cadle Company v. Gasbusters Production I Limited Partnership
Court of Appeals Published Opinion AFFIRMING Lawrence Cir Ct. order applying res judicator from bankruptcy judgement.
669 Workers Compensation
Ready Electric v. Scharringhausen
Court of Appeals Published Opinion AFFIRMING Workers Compensation Board decision that employer intentionally failed to comply with safety regulation the intent of which was inferred per Chaney from the fact that a safety violation did occur.
Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:
662. Insurance. Auto. Intentional Act Exclusion and duty to defend and indemnify insured
Coleman v. State Farm Fire and Casualty
COA Not to Be Published Opinion AFFIRMING Warren Cir Ct. summary judgement holding insurance company did not have duty to defend or indemnify plaintiff under policy exclusion for intentional acts (shooting).
663. Premises liability. Open and Obvious Dismissal reversed and remanded to trial court to follow Carter v. Bullit Host
Shirrell v. The Kroger Company
COA Not to Be Published Opinion REVERSING and REMANDING Taylor Cir Ct summary judgment dismissing plaintiff’s claims of negligence in their entirety. Plaintiff was with his granddaughter and slipped and fell on posters left on the floor for a Coca Cola Powerade display, and Plaintiff sued both Krogers and Coca Cola Distributor who defended claiming plaintiff was invitee and the posters constituted an open and obvious hazard. Trial court granted summary judgment dismissing the claims, but thereafter the Kentucky Supreme Court held in Carter v. Bullit Host, LLC, 471 S.W.3d. 288 (Ky. 2015) which clarified the law concerning open and obvious rule in premises liability cases involving invitees, and even though Bullit Host involved an outdoor natural hazard, the COA quoted and applied the following:
The open-and-obvious nature of a hazard is, under comparative fault, no more than a circumstance that the trier of fact can consider in assessing the fault of any party, plaintiff or defendant. Under the right circumstances, the plaintiffs conduct in the face of an open-and-obvious hazard may be so clearly the only fault of his injury that summary judgment could be warranted against him, for example when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable.
Carter, 471 S.W.3d at 297 (citations omitted). The Supreme Court emphasized that the open and obvious nature of a hazard is generally a question of fact for the jury to consider in allocating fault rather than a question of duty of care for the court to decide. Thus, according to the Supreme Court, an open and obvious hazard is now to be considered by the jury in allocating fault between the landowner and the invitee unless it is “beyond dispute that the landowner had done all that was reasonable” or the hazard “cannot be corrected by any means.” Id. at 297.
It is clear that Shirrell was an invitee at the time of his injury at the Kroger store. See Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013). The posters were an open and obvious hazard, but it is not beyond dispute that appellees did all that was reasonable to fulfill their duty of care to Shirrell. As in Carter, 471 S.W.3d 288, the open and obvious nature of the posters is an issue to be considered by the jury in allocating fault between the parties. Accordingly, we are duty bound to reverse the summary judgment entered February 10, 2015, and remand for proceedings consistent with the Supreme Court’s holding in Carter, 471 S.W.3d 288.
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