COA 2010 Minutes for December 29  , 2010 (Nos. 1202 – 1220)

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  192
  • Published Decisions:  6 (1204; 1205;1209; 1210; 1215; 1220)

Other actions by COA:

  • Lydian v. Com. – Pet for rehearing granted
  • Gardner v. Com – Pet for rehearing denied
  • Jones v. Judge Bowles – motion to reconsider denied
  • Correction – Harris v. Coffey – still pending

PUBLISHED DECISIONS (with link to full text at AOC):

1204. WORKERS COMPENSATION. INSURANCE POLICY INTERPRETATION. EXTRATERRITORIAL APPLICATION.  INDEMNITY. ESTOPPEL
PEABODY PAINTING & WATERPROOFING
VS.
KENTUCKY EMPLOYERS’ MUTUAL INSURANCE CO.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CLAYTON (CONCURS)
2008-CA-001914-MR
2008-CA-001940-MR
2008-CA-001971-MR
TO BE PUBLISHED
JEFFERSON
THOMPSON, JUDGE: This case involves a workers’ compensation insurance coverage claim between Peabody Painting & Waterproofing, Inc. and Kentucky Employers’ Mutual Insurance Company (KEMI), and Fusting Insurance Agency’s claim that it is entitled to indemnity from KEMI.  The Jefferson Circuit Court granted KEMI’s motion for summary judgment on the basis that the KEMI policy did not provide extraterritorial coverage for a Peabody employee injured in Louisiana. It subsequently denied summary judgment to Fusting Insurance Agency, finding that material issues of fact existed as to whether the agency owed a duty to Peabody and, if so, whether it breached that duty. After Fusting Insurance Agency filed a cross-claim against KEMI seeking indemnification, KEMI filed a motion to dismiss Fusting Insurance Agency’s cross-claim, which was granted. Peabody appealed the summary judgment granted to KEMI and KEMI filed a protective cross-appeal. Fusting Insurance Agency appealed the order dismissing its cross-claim against KEMI.
Because we conclude that the terms of the KEMI policy are unambiguous, we must enforce the policy as written without application of alternative rules of construction. Edwards v. Carlisle, 179 S.W.3d 257, 261 (Ky. App. 2004).
The policy states that “[T]his policy covers all your workplaces in the Commonwealth of Kentucky . . . .;” On the following page the policy states that the policy applies to bodily injury by accident or occupational disease to an employee if the employment is “necessary or incidental to your work in Kentucky.” Finally, under the extraterritorial coverage provision, it
unambiguously and conspicuously states that: “This policy provides coverage for benefits as provided by the extraterritorial provisions of the Workers’ Compensation Law.”
Klepadlo was injured outside Kentucky and was a Florida resident who had never performed work in Kentucky on Peabody’s behalf. Thus, in accordance with the policy, Klepadlo could be covered by the policy only if the extraterritorial coverage provisions provided by Kentucky law apply.
Because KEMI cannot be liable to Peabody under any theory alleged in the complaint, Fusting’s claim for indemnification must fail. “[B]oth indemnity and contribution depend upon liability by one or both parties to the original claimant who suffered the original loss. Without such liability, there is no independent right to indemnity or contribution.” ARA Services, Inc. v. Pineville Community Hosp., 2 S.W.3d 104, 107 (Ky. App. 1999). Because KEMI cannot be held liable to Peabody, it does not have an independent right to indemnity; thus, its cross-claim for indemnification was properly dismissed.
All other issues presented are rendered moot by our conclusion that KEMI has no liability.
Based on the foregoing, the judgments of the Jefferson Circuit Court are affirmed.
1205.  PREMISES LIABILITY. SAFE WORK PLACE.
JOSEPH GAINES, A MINOR BY AND THROUGH HIS PARENTS, ET AL
VS.
DIAMOND POND PRODUCTS, INC.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000848-MR
TO BE PUBLISHED
FAYETTE

TAYLOR, CHIEF JUDGE: Joseph Gaines, a minor, by and through his parents and guardians, Leslie Gaines and Candace Gaines (collectively referred to as appellants), bring this appeal from a May 4, 2009, order of the Fayette Circuit Court granting a directed verdict in favor of Diamond Pond Products, Inc., a/k/a Waterscapes (Diamond Pond) and dismissing appellants’ negligence claim. We affirm.

Considering the above, we believe the uncontroverted facts demonstrate that Diamond Pond provided Gaines a reasonably safe place to work. Any injury Gaines suffered was caused by his violation of Diamond Pond’s rules and occurred while Gaines was engaged in activities outside the proper scope of his employment. Thus, we conclude that the circuit court correctly concluded that Diamond Pond breached no duty of care owed to Gaines as an employee.

In summation, the uncontroverted facts indicate that Gaines was injured by his own conduct in contravention of Diamond Pond’s rules, regardless of whether he was an employee or invitee. We reject appellants’ arguments that Diamond Pond breached various duties owed to Gaines and that breach of such duties caused Gaines’ injury. Under the facts of this case, there was no forseeability of the self-inflicted injury that was incurred by Gaines while a participant in Terror.

Viewing the evidence in a light most favorable to appellants, we believe Diamond Pond was entitled to a directed verdict, which was properly granted by the trial court in favor of Diamond Pond.

For the foregoing reasons, the Order Granting Directed Verdict entered by the Fayette Circuit Court is affirmed.

[Note that this case also examined the McIntosh decision by the SCOKY and distinguished it.  3 The applicability of the Workers’ Compensation Act was neither pleaded below nor raised as an issue in this appeal. As such, it is deemed waived. See Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660 (Ky. App. 2006).]

1209.  EMT'S SOVEREIGN IMMUNITY. GOOD SAMARITAN STATUTE. RELATION BACK DOCTRINE FOR AMENDING COMPLAINT ADDING PARTIES.
PHILLIPS (LAURA)
VS.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-001613-MR old link which has error in it to coa decision
2009-CA-002101-MR corrected link to coa decision (has an "(" in link)
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: Laura Phillips appeals from the Fayette Circuit Court’s August 3, 2009, order granting summary judgment in favor of the Lexington-Fayette Urban County Government and its October 8, 2009, order dismissing an amended complaint filed against Nicholas Bodkin and Jason Kirby. After careful review, we affirm both orders.

An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03.

Our review of the record indicates the same. Obviously Bodkin and Kirby did not receive actual notice within the statutory period that a suit was filed against them, nor did they receive constructive notice that suit was filed against LFUCG. The implied “should have known” notice referred to in CR 15.03(2)(b) applies only when the plaintiff has mistakenly sued the wrong party and the right party “knew or should have known of that fact.” Schwindel v. Meade Co., 113 S.W.3d 159, 170 (Ky. 2003)(internal citation omitted). It does not apply here, where Phillips “knew when the original complaint was filed that the tortious conduct was committed by the same servants, agents, and employees that they sought to hold liable in their amended complaint.” Id.    Accordingly, as a matter of law the trial court properly determined that under CR 15.03, Phillips’ amended complaint did not relate back to the filing of her original complaint.

1210. DVO
PASLEY (JEFFREY)
VS.
PASLEY (VENITA)
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND ISAAC (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-001857-ME
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Jeffrey Pasley appeals from the Jefferson Family Court’s September 3, 2009, domestic violence order (DVO). Because the DVO was entered in error, we reverse.

1215. CRIMINAL PROCEDURE.  SEARCH AND SEIZURE. WARRANT PROBABLE CAUSE ON ANONYMOUS TIP.
RUSTIN (ANTHONY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
DIXON (CONCURS) AND ISAAC (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-002250-MR
TO BE PUBLISHED
CALDWELL

BEFORE: COMBS AND DIXON, JUDGES; ISAAC,1 SENIOR JUDGE.
COMBS, JUDGE:    Anthony Rustin appeals from an order of the Caldwell Circuit Court denying his motion to suppress evidence seized during a search conducted pursuant to a warrant. After our review of the record and the pertinent law, we vacate the order and remand.

1220.  FAMILY LAW.  PATERNITY.  CIRCUIT COURT JURISDICTION.
H. (N.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS)
2010-CA-000955-ME
TO BE PUBLISHED
SIMPSON

CLAYTON, JUDGE: This is an appeal from Simpson Circuit Court regarding a paternity determination. Finding there were no marital relations between the husband and wife in this action for more than ten months around the birth of the child, we conclude that the Simpson Circuit Court had subject-matter jurisdiction over this paternity action.