The Court of Appeals posted 27 decisions this week, numbered 1021 through 1047 with 6 decisions designated for publication.
Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.
1023. Torts. Legal Malpractice. Statute of Limitations and Tolling.
Applegate v. Dickman Law Offices, PSC
Court of Appeals Published Opinion AFFIRMING Kenton Cir. Ct.
Affirmed trial court’s dismissal of legal malpractice claim against his lawyer following criminal representation with court holding that the collateral attack on the criminal conviction does not toll the statute of limitations of the civil action for malpractice.
1025. Insurance. Choice of law. UIM Coverages.
Lacrosse v. Owners Insurance Company
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING AND REMANDING Calloway Cir. Ct.
VANMETER, JUDGE: Carl M. LaCrosse appeals from the Calloway Circuit Court’s order granting summary judgment in favor of Owners Insurance Company (“Owners”) and Progressive Northern Insurance Company (“Progressive”). Owners cross-appeals. In this case we must decide whether, under Illinois law, the failure of an insurance company to provide evidence of a written rejection of underinsured motorist (“UIM”) coverage in an amount equal to the bodily injury liability limits renders the policy declaration amounts of UIM coverage equal to the declared liability limits under 215 ILCS1 5/143a-2. We must also decide whether Kentucky public policy prohibits the set off of UIM benefits with collateral sources, including liability coverage from the tortfeasor, workers’ compensation benefits, and no-fault benefits. For the following reasons, we affirm in part, reverse in part and remand.
1032. Torts. Negligent Misrepresentation.
Wilburn, Inc. v. K. Norman Berry Associates, Architects, PLLC
Court of Appeals Published Opinion REVERSING AND REMANDING Oldham Cir. Ct. Summary Judgment in favor of Norman Berry Associates
The issues presented are: (1) whether Wilburn can maintain a claim for negligent misrepresentation based on allegations that KNBA failed to properly prepare plans and specifications, and otherwise obtain permit approvals; (2) whether Wilburn’s claim for purely economic loss against KNBA is barred by the economic loss rule; and (3) whether change orders and an application for final payment approval preclude Wilburn’s claim against KNBA based on waiver or release. We conclude Wilburn has alleged facts sufficient to sustain a claim for negligent misrepresentation and that the economic loss rule does not apply. We further hold that Wilburn’s claim is not barred based on waiver or release.
1037. Criminal Law. Retroactive application of change in law.
Pomeroy v. Commonwealth of Kentucky
Court of Appeals Published Opinion REVERSING AND REMANDING Campbell Cir Ct
Ryan Pomeroy was charged with first-degree possession of a controlled substance and possession of drug paraphernalia for acts committed on December 21, 2014. He filed a motion to dismiss the indictment on the basis of Kentucky Revised Statutes (KRS) 218A.133(2), effective March 25, 2015, which provides that a person shall not be charged with or prosecuted for possession of a controlled substance or possession of drug paraphernalia when medical attention is required to assist with a drug overdose. The trial court denied the motion ruling that KRS 218A.133(2) could not be retroactively applied.
The fact that the controlled substances and drug paraphernalia were found while the officer was responding to a call for medical assistance for Pomeroy’s drug overdose is not a defense to the charges but precludes prosecution on the charges. The statute creates “a new exception to the general rule that trial courts may not dismiss indictments prior to trial.” Id. at 753. By stating that “[a] person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia[,]” KRS 218A.133(2), the General Assembly created an immunity from prosecution. It is a “new procedural bar to prosecution” and one that applies retroactively. Rodgers, 285 S.W.3d at 753.
REVERSED and REMANDED.
1044. Family Law. De facto custodian, joint custody. Interlocutory appeal.
Cherry v. Carroll
Court of Appeals Published Opinion REVERSING and REMANDING Wayne Cir Ct.
NICKELL, JUDGE: Charles Cherry, the biological father of three minor boys, appeals the Wayne Circuit Court’s designation of Stacy Randall Carroll, the children’s maternal grandfather, as de facto custodian and the award of joint custody to him and Carroll. This appeal presents two questions. Whether an award of de facto custodian status is interlocutory and whether a court may designate a person a de facto custodian solely because the Cabinet for Health and Family Services (CHFS) placed a child with him. For reasons expressed below, we deem this appeal properly before us and hold the trial court erroneously designated Carroll a de facto custodian when the three children, all over the age of three—had lived with him less than seven months rather than the year required by KRS2 403.270(1)(a). Reversal and remand for an appropriate order are necessary. [Amanda Taylor is the natural mother of the three minors in this appeal. She is not a party to the appeal and did not appear—neither personally nor by counsel—in the trial court proceedings. As of March 9, 2015, she was in a residential drug recovery program in Lexington, Kentucky, and had rarely seen her sons. She has three other children of whom she does not have custody.]
1047. Appeals. Failure to name indispensable party.
Fink v. Fink
Court of Appeals Published Opinion and Order DISMISSING Jefferson Cir Court
VANMETER, JUDGE: On September 15, 2016, this Court directed James Michael Fink, the appellant, to show cause why this appeal should not be dismissed for failing to name an indispensable party to this appeal. On September 30, 2016, James filed a document titled “Appellant’s Motion to Amend Notice of Appeal and Response to the September 15, 2016 Show Cause Order,” and tendered an Amended Notice of Appeal. Elizabeth Fink, the appellee, did not respond to the show cause order. [1 When final disposition of an appeal is made by an “Opinion and Order,” as in this case, the party adversely affected may move for reconsideration as provided by CR 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).]
After considering James’ response to the show cause order and having been otherwise sufficiently advised, this Court fails to find sufficient cause. The motion to amend the notice of appeal is denied and the appeal is dismissed.
Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:
1021. Trial. Jurors. Challenges for cause, preserving the objection, and using peremptory challenges.
Jackson v. Roland Wall, CRNA
COA Not to Be Published Opinion AFFIRMING Warren Cir Ct
VANMETER, JUDGE: Patricia and Richard Jackson appeal from a jury trial in the Warren Circuit Court. The Jacksons argue that the several jurors in their trial should have been excused for cause, and that they had to exercise peremptory strikes to excuse those jurors. Because we hold that the Jacksons waived any objection concerning the one juror who sat on the jury, and that their objections concerning the jurors who did not sit on the jury were not preserved, we affirm.
1038. Torts. Foreseeability. Nursing home liability under statute regarding long term patient rights. Summary judgment premature.
Wilson, Adm’trix of the Est. of Chester Gray v. Spring View Health & Rehab Center
COA Not to Be Published Opinion AFFIRMING IN PAERT, REVERSING IN PART, AND REMANDING Grayson Cir Ct.
In case where nursing home resident was being transferred by ambulance for inpatient psychiatric evaluation, she was dropped and injured by the EMTs. A complaint was filed against the the nursing home (Springview) and the ambulance. Mr. Gray died later, an estate was opened, and the suit was timely revived.
The court found there was no foreseeability by the nursing home regarding the fall which was a superseding cause which is an issue of law for the court, and further discovery would not be helpful.
However, the COA agreed that the trial court erred in granting summary judgment on the KRS 216.515 claim regarding patient in long term care facility and their rights and a cause of action for those rights. Specifically section (4) provides that ”
The resident shall be transferred or discharged only for medical reasons, or his own welfare, or that of the other residents, or for nonpayment, except where prohibited by law or administrative regulation.
Reasonable notice of such action shall be given to the resident and the responsible party or his responsible family member or his guardian.”
Administrative regs also came into play in the analysis.
It was clear that Mr. Gray’s daughter was not given notice. Other issues raised were:
Mr. Gray’s transfer, that the transfer was unnecessary, and that Mr. Gray was too sick to be transferred.
The COA Believed genuine issues of material fact still exist.
In addition, she alleged the psychiatric evaluation was unnecessary and that Spring View was simply trying to get rid of her father by transferring him to another facility. She presented evidence that other doctors at Spring View had declined to send Mr. Gray for inpatient psychological evaluations. Finally, she alleged Mr. Gray’s health was too fragile to be transferred.
Based on the above, Ms. Wilson’s argument that Spring View violated KRS 216.515 has potential merit. At the very least, there are genuine issues of material fact that preclude summary judgment.
For the foregoing reasons, we affirm the trial court’s grant of summary judgment as it relates to the negligence cause of action. We also reverse the judgment as to the KRS 216.515 issue and remand for further proceedings.
Charles Armstrong, Adm’or Estate of Craig Armstrong v. Martin Cadillac, Inc.
COA Not to Be Published Opinion AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART Warren Cir Ct summary judgment in case of wrongful death of passenger in newspaper delivery’s car running a stop sign. Driver and passenger both killed. Settled for $1,000,000 with estate of negligent driver.”Charles Armstrong, the administrator of Craig Armstrong’s estate, appeals summary judgment motions entered in his wrongful death lawsuit. Jonathan Elmore delivered newspapers to earn money. He had a contract with News Publishing, LLC (“News Publishing”) to deliver the Daily News. On April 5, 2014, Elmore and Craig Armstrong were in the same vehicle delivering newspapers. Elmore was driving his 1996 Chevrolet Cavalier when it appears he ran a stop sign and pulled into the path of another vehicle that had the right of way. The collision killed Elmore and Armstrong. Armstrong’s father, as administrator of the estate, filed wrongful death claims against multiple defendants, including the current appellees.”
“Three issues were principally before us. The first issue concerned who maintained ownership of Elmore’s vehicle. On that issue, we reverse and remand the trial court’s order granting summary judgment to Martin Cadillac and Travelers for further proceedings concerning whether Martin Cadillac and/or DeWalt Auto complied with the promptness requirement of KRS 186A.215(3) and Ellis v. Browning Pontiac-Chevrolet-GMC Truck-Geo, Inc., 125 S.W.3d 306 (Ky. App. 2003).
The second issue concerned the bad faith claim against Travelers. Having found the legal issue underlying Travelers refusal to negotiate is not a novel issue nor is it debatable that dealers must strictly comply with the statutes, and having reversed and remanded for further factual development on the promptness requirement of KRS 186A.215(3), we also reverse and remand the trial court’s grant of summary judgment for Travelers on the bad faith claim. Though we reverse and remand, our Opinion should not be construed as addressing the merits of the claim.
The final issue concerned the respondeat superior liability claim against News Publishing. We find the trial court correctly found that Elmore was an independent contractor. Accordingly, we affirm the trial court’s summary judgment order in News Publishing’s favor.
Therefore, for the foregoing reasons we affirm in part and reverse and remand in part.”
All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority. See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)
You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision. 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.
For links to all our posts on the minutes of the Court of Appeals, then click here. Click here for AOC minutes for this week.
For the index to archived minutes at the official AOC page, then click here.
