COA 2010 Minutes for December 10  , 2010 (Nos. 1150-1184)

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  • Total number of decisions:  35
  • Published Decisions:  4 (1151; 1164; 1172; 1183)

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

1151. CRIMINAL; PROBATION.
MILLER (ELMER DAVID)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND WHITE (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-000296-MR
TO BE PUBLISHED
LINCOLN

THOMPSON, JUDGE: Elmer David Miller appeals an order of the Lincoln Circuit Court extending his probation beyond the maximum statutory two-year period for a misdemeanor conviction. For the reasons stated, we reverse and remand.

1164. REGULATORY LAW.  HOUSING CODES; MAXI CODES.
KENTUCKY ASSOCIATION OF FIRE CHIEFS, INC., ET AL.
VS.
KENTUCKY BOARD OF HOUSING, BUILDINGS AND CONSTRUCTION, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2009-CA-001476-MR
2009-CA-001945-MR
TO BE PUBLISHED
FRANKLIN

WINE, JUDGE: The Appellants, consisting of several non-profit associations of fire chiefs throughout Kentucky (hereinafter referred to collectively as “the Fire Chiefs”), appeal from two orders of the Franklin Circuit Court. The Fire Chiefs sought a declaratory judgment against the Kentucky Board of Housing, Buildings and Construction (“the Board”) and the Kentucky Office of Housing, Buildings and Construction, which is now the Kentucky Department of Housing Buildings and Construction (“the Department”). The Fire Chiefs argued that the Board and the Department exceeded their statutory authority by interpreting the state Building and Residential Codes as a “maxi code,” which prohibits local governments from enacting construction standards exceeding those required by the state codes. The Fire Chiefs specifically challenged the Board’s attempt to enjoin enforcement of an ordinance adopted by the City of Indian Hills, and they further argued that the Board’s interpretation would affect the enforceability of ordinances adopted by fifteen other local governments.

The trial court concluded that the state codes preempt local regulation of construction standards and that the Board properly enjoined enforcement of the Indian Hills Ordinance. In a separate order, the trial court dismissed the declaratory claims involving the fifteen other ordinances, concluding that they were not ripe for review. On the first issue, we agree with the trial court that the Board acted within its authority by adopting an interpretation of the Building and Residential Codes which would preclude enforcement of the Indian Hills
Ordinance. On the second issue, we agree that the trial court properly dismissed the remaining claims as not ripe for review. Hence, we affirm in both appeals.

1172. CRIMINAL.   PROBATION.
MILLER (SHAWN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
HENRY (CONCURS)(SENIOR STATUS JUDGE) AND TAYLOR (CONCURS IN RESULT ONLY)
2009-CA-002027-MR
TO BE PUBLISHED
MADISON

LAMBERT, JUDGE: Shawn Miller appeals from an order of the Madison Circuit Court revoking his probation. For the following reasons, we affirm.

1183. WORKERS COMPENSATION. INDEPENDENT CONTRACTOR.
STEINROCK (TERRY), ET AL.
VS.
COOK (HOWARD C.), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-001136-WC
TO BE PUBLISHED
WORKERS' COMP

LAMBERT, JUDGE: Terry Steinrock and Glen Coke, d/b/a Glen Coke General Contracting, petition us to review an opinion of the Workers’ Compensation Board (“Board”) entered May 14, 2010, reversing the Administrative Law Judge’s (“ALJ”) opinion holding that Howard Cook was an independent contractor and not an employee of Terry Steinrock. For the reasons stated herein, we affirm the Board’s decision.

On August 12, 2009, Cook was working on a roof with Steinrock on his day off from Haverty’s when he fell off a roof and was injured. The occurrence of the injury is not at issue in this case. The ALJ bifurcated the proceedings in order to determine if there was an employer-employee relationship between Cook and Steinrock. After consideration of the evidence and the factors set forth in Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965), the ALJ determined that Cook was an independent contractor rather than an employee of Steinrock. Accordingly, the ALJ dismissed Cook’s claim on November 17, 2009. ***

When reviewing one of the Board's decisions, this Court will only reverse the Board when it has overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). “It is well settled that a reviewing [body] may not substitute its judgment for that of [an administrative] [b]oard as a finder of fact.” Paramount Foods, Inc., v. Burkhardt, 695 S.W.2d 418, 420 (Ky. 1985); KRS 342.285. “An erroneous application of the law by an administrative board or by the circuit court is clearly reviewable by this Court. Also, where an administrative body has misapplied the legal effect of the
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facts, courts are not bound to accept the legal conclusions of the administrative body.” Abuzant v. Shelter Ins. Co., 977 S.W.2d 259, 260-61(Ky. App. 1998).
Applying the above to the instant case, in its opinion, the Board noted the nine factors set forth in Ratliff, supra, to be considered when determining whether an individual is an employee or independent contractor. These factors are: (1) the extent of control that the alleged employer may exercise over the details of the work; (2) whether the worker is engaged in a distinct occupation or business; (3) whether that type of work is usually done in the locality under the supervision of an employer or by a specialist, without supervision; (4) the degree of skill the work requires; (5) whether the worker or the alleged employer supplies the instrumentalities, tools, and place of work; (6) the length of the employment; (7) the method of payment, whether by the time or the job; (8) whether the work is part of the regular business of the alleged employer; and (9) the intent of the parties. The Board noted that the test in Ratliff was refined in Chambers v. Wooten’s IGA Foodliner, 436 S.W.2d 265 (Ky. 1969), to focus primarily on four of the nine factors: (1) the nature of the work as related to the business generally carried on by the alleged employer; (2) the extent of control exercised by the alleged employer; (3) the professional skill of the alleged employee; and (4) the true intentions of the parties.
The Board also noted that in Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116, 118 (Ky. 1991), the Kentucky Supreme Court addressed the issue of control over the details of the work, noting that Ratliff, supra, relied upon
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Professor Larson’s treatise, Larson’s Workermen’s Compensation Law, for the proposition that control of the details of the work can be provided by analysis of the nature of a claimant’s work in relation to the regular business of the employer.

Based on the above, the Board concluded that the ALJ’s interpretation of the factors concerning whether Cook was engaged in a distinct occupation or business and the extent of control exercised by Steinrock over the details of Cook’s work was clearly erroneous in the context of the evidence in the record. The Board concluded that the ALJ erred in finding Cook engaged in a “distinct occupation” or business under the Ratliff test at the time of the injury. The Board found that the ALJ’s holding suggested that being a roofer necessarily constitutes a “distinct occupation.” Under that analysis, according to the Board, any job with a recognized title would qualify as a “distinct occupation.” The Board concluded that the ALJ failed to recognize the phrase as a legal term of art and had instead accorded the words their lay meaning.

SOME TORT, INSURANCE, CIVIL PROCEDURE DECISIONS:


1150. ARBITRATION.
NETHERWOOD (SHELLEY)
VS.
KENNEDY (ELAINE), ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2008-CA-001508-MR
NOT TO BE PUBLISHED
JEFFERSON

1154.  APPEALS.  PARTIES.
GOHEEN (NAN), ET AL.
VS.
CARRICO (JAMES LEE)
OPINION AND ORDER DISMISSING APPEAL
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND LAMBERT (DISSENTS AND FILED SEPARATE OPINION)
2009-CA-000598-MR
NOT TO BE PUBLISHED
HENRY

1155.  SUMMARY JUDGMENT;  EXCLUSIVE REMEDY OF WORKERS COMP.
BLASKO (RUTH)
VS.
MERCY HEALTH PARTNERS – LOURDES, INC.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000742-MR
NOT TO BE PUBLISHED
MCCRACKEN

MOORE, JUDGE: Appellant, Ruth Blasko, brought a common-law personal injury claim against Appellee, Mercy Health Partners-Lourdes, Inc., d/b/a Lourdes Hospital, alleging that Lourdes’ negligence resulted in the injuries she sustained in a fall on Lourdes’ premises. Lourdes moved for summary judgment, asserting that Blasko’s tort claim was barred by the exclusive remedy provision of Kentucky’s Workers’ Compensation Act, Kentucky Revised Statute (KRS) 342.690(1). In a March 27, 2009 order, the McCracken Circuit Court granted summary judgment in favor of Lourdes. We affirm.

1156.  QUALIFIED OFFICIAL IMMUNITY.
THOMAS PUGH, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS A LOUISVILLE/JEFFERSON COUNTY METRO POLICE OFFICER
VS.
RANDOLPH (LATONYA), ET AL.
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2009-CA-000755-MR
NOT TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: Thomas Pugh, individually and in his official capacity as a Louisville/Jefferson County Metro Police Officer, has filed an interlocutory appeal from the Jefferson Circuit Court’s order determining that Pugh was not entitled to the defense of qualified official immunity. After a careful review of the record, we reverse the circuit court’s determination that he was not entitled to the qualified immunity defense because that determination was prematurely made. We remand for further proceedings.

1159.  INSURANCE.  WAIVER OF CONTRACTUAL CLAIMS LIMITATION PERIOD.
FARMERS CROP INSURANCE ALLIANCE, INC.
VS.
GRAY (RONNIE)
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (DISSENTS AND FILES A SEPARATE OPINION)
2009-CA-000969-MR
NOT TO BE PUBLISHED
CLINTON

MOORE, JUDGE: Farmers Crop Insurance Alliance, Inc., appeals an April 30, 2009 order and judgment from the Clinton Circuit Court in favor of Ronnie Gray, awarding damages for breach of two insurance contracts and violation of Kentucky Revised Statute(s) (KRS) 304.12-230, the Unfair Claims Settlement Practices Act.

Farmers also argues the May 14, 2008 order of the trial court denying its motion for summary judgment and the trial court’s holding, in that denial, that Farmers had waived any right to assert a contractual claims limitations period as an affirmative defense in the underlying proceedings was in error.

The resolution of the issue of whether Farmers waived its right to assert the limitations period is dispositive to the resolution of all other issues in this appeal. As such, we include only those facts from the underlying matter necessary to develop this issue. We find that it was an abuse of discretion for the trial court to hold that Farmers had waived its right to assert the limitations period, we reverse that part of the trial court’s May 14, 2008 order, and we remand this matter to the trial court for further proceedings not inconsistent with this opinion.

1169. DAMAGES. LOST OF DIMINISHED CHANCE.
STEVENSON (KAREN), ET AL.
VS.
CLARK REGIONAL MEDICAL CENTER, INC., ET AL.
OPINION AFFIRMING
HENRY (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001913-MR
NOT TO BE PUBLISHED
CLARK

HENRY, SENIOR JUDGE: Karen Stevenson, individually and as the executrix of the estate of her late husband, Wayne Stevenson, appeals from a summary judgment of the Clark Circuit Court in this medical negligence action. The circuit court held that Stevenson’s claim under the doctrine of lost or diminished chance was precluded by the recent decision of the Kentucky Supreme Court in Kemper v. Gordon, 272 S.W.3d 146 (Ky. 2008). Because we are bound to follow the precedent established by our Supreme Court, we affirm.

1171.  ADR AGREEMENT.  NURSING HOME.
KINDRED NURSING CENTERS
LIMITED PARTNERSHIP D/B/A HARRODSBURG HEALTH CARE CENTER; KINDRED HEALTHCARE, INC.; KINDRED HEALTHCARE OPERATING, INC.; AND KINDRED HOSPITALS LIMITED PARTNERSHIP
VS.
JOHN DAVID LANE, ADMINISTRATOR OF THE ESTATE OF WANDA LANE, DECEASED
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT, JOSEPH (CONCURS)
2009-CA-001985MR
NOT TO BE PUBLISHED
MERCER

MOORE, JUDGE: On June 12, 2001, Wanda Lane became a resident at Harrodsburg Health Care Center, a facility owned and operated by Kindred Nursing Centers Limited Partnership; Kindred Healthcare, Inc.; Kindred Healthcare Operating, Inc.; and Kindred Hospitals Limited Partnership (collectively “Kindred”). On December 22, 2006, her son, John David Lane, executed a document entitled “Alternative Dispute Resolution Agreement Between Resident and Facility (Optional),” purportedly on her behalf, pursuant to a power of attorney. As the name implies, this document provided for all disputes between Kindred and Wanda, relating to or arising out of her tenure as a resident in Kindred’s nursing care facility, to be submitted to arbitration rather than a trial. The following provisions of this agreement are relevant to our review:

I. ALTERNATIVE DISPUTE RESOLUTION (ADR) AGREEMENT PROVISIONS
A. . . . Except as expressly set forth herein or in the Rules of Procedure, the provisions of the Uniform Arbitration Act, [Kentucky Revised Statutes] KRS 417.045 et seq., shall govern the Arbitration. . . .
.. .
H. Location, Date & Time of mediation or arbitration. The parties may mutually agree on the place for the proceeding. If there is no mutual agreement, or if a party objects to the place, the neutral shall have the power to determine the place in accordance with the Dispute Resolution Process and due process considerations. Unless otherwise agreed by the parties, the neutral shall set the date and time for each proceeding.
.. .
O. If for any reason there is a finding that the Uniform Arbitration Act KRS 417.045 et seq., cannot be applied to this Agreement, then the parties hereby make clear their intent that their disputes/claims be resolved pursuant to the Federal Arbitration Act and that the parties do not want their disputes/claims resolved in a judicial forum.
.. . III. SEVERABILITY PROVISION
If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, the remaining provisions, and partially invalid or unenforceable provisions, to the extent valid and enforceable, shall nevertheless be binding and valid and enforceable.

In its final order of October 15, 2009, the trial court held that because the arbitration agreement at issue failed to specify that the arbitration must be held in Kentucky, it had no subject matter jurisdiction to compel the parties to arbitration under either the KUAA or the FAA. In reaching this conclusion, the court relied solely upon Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 455-6 (Ky. 2009), wherein the Kentucky Supreme Court held that courts of this
Commonwealth do not have jurisdiction to enforce arbitration agreements that fail to specifically designate Kentucky as the site for arbitration.
This appeal followed.

Generally, once litigation commences, the burden is on the party seeking to enforce an arbitration agreement to present prima facie evidence that an arbitration agreement exists between the parties. Valley Const. Co., Inc. v. Perry Host Management Co., Inc., 796 S.W.2d 365, 368 (Ky. App. 1990). Once the existence of an arbitration agreement is established, the burden shifts to the party seeking to avoid arbitration to present evidence that the agreement is unenforceable. Id.; see also 9 U.S.C. § 2; KRS 417.050. We review a trial court’s factual findings in an order denying enforcement of an arbitration agreement to determine if the findings are clearly erroneous, but we review a trial court’s legal conclusions under a de novo standard. Conseco Fin. Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001).

As a preliminary matter, we agree that the arbitration agreement at issue in this matter is unenforceable under the KUAA. As the trial court held, a prerequisite to enforcing an arbitration agreement under the KUAA is that the agreement itself must specifically provide for arbitration to occur in this state. Ally Cat, LLC, 274 S.W.3d at 455; see also KRS 417.200. And, as Kindred concedes in its brief, “There is no dispute that the ADR Agreement at issue here does not contain stand-alone language explicitly requiring the arbitration to occur in this Commonwealth.”

The Supreme Court of Kentucky has held that the FAA applies “to actions brought in courts of this state where the purpose of the action is to enforce voluntary arbitration agreements in contracts evidencing transactions in interstate commerce.” See Fite and Warmath Construction Company, Inc. v. MYS Corp., 559 S.W.2d 729, 734 (Ky. 1977); see also Kodak Mining Company v. Carrs Fork
Corp., 669 S.W.2d 917 (1984). As a caveat, though, we re-emphasize that the FAA could apply.2    The FAA requires “that we rigorously enforce agreements to arbitrate.” Shearson/Am. Exp. Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987)). But, § 2 of the Federal Arbitration Act, which relates to the enforceability of arbitration agreements, provides that:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2 (emphasis added). Thus, as a threshold matter, the trial court must determine whether the parties’ arbitration agreement falls within the provisions of §2 of the FAA.

Here, the trial court did not consider the applicability of the FAA and instead disposed of Kindred’s motion on jurisdictional grounds. We believe the court erred as a matter of law by denying Kindred’s motion without considering the applicability of the FAA to the arbitration agreement between Kindred and Lane. As such, we remand for the trial court to make that determination. We do not address the validity of the arbitration agreement or Lane’s defenses to enforcement of the arbitration agreement, including the validity of Lane’s power of attorney, as these issues are for the trial court to consider on the merits.
For the reasons stated herein, we reverse the order of the Mercer Circuit Court and remand this case for further proceedings consistent with this opinion.

1177
NEURODIAGNOSTICS, P.S.C., ET AL.
VS.
MODERN RADIOLOGY, PLLC
OPINION REVERSING IN PART, VACATING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002413-MR
2010-CA-000068-MR
NOT TO BE PUBLISHED
FAYETTE

1178. WORKERS COMPENSATION
BOONE (MICKEY)
VS.
DAWAHARES, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
THOMPSON (CONCURS) AND SHAKE (CONCURS)
2010-CA-000327-WC
NOT TO BE PUBLISHED
WORKERS' COMP

1180
WHEAT (ROBERT D.)
VS.
SWEENEY (KEVIN), ET AL.
OPINION AFFIRMING
PER CURIAM: TAYLOR, COMBS, AND NICKELL (ALL CONCUR)
2010-CA-000588-WC
NOT TO BE PUBLISHED
WORKERS' COMP

1181
GLENN BUICK, INC.
VS.
GOODLETT (GARY), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000621-WC
NOT TO BE PUBLISHED
WORKERS' COMP

1182
TRIM MASTERS, INC.
VS.
RICHARDSON (RITA), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
TAYLOR (CONCURS) AND SHAKE (CONCURS)
2010-CA-001080-WC
NOT TO BE PUBLISHED
WORKERS' COMP

1183
STEINROCK (TERRY), ET AL.
VS.
COOK (HOWARD C.), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-001136-WC
TO BE PUBLISHED
WORKERS' COMP