COA 2011 Minutes for Feb. 11, 2011 (Nos. 119 – 138)

120. DISTRICT COURT, JURISDICTION, PROBATE MATTERS; DOES APPEAL PRECLUDE SEPARATE CIRCUIT COURT ACTION?
MARATTY (DEVIN), ET AL.
VS.
PRUITT (VERA MAE), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND STUMBO (DISSENTS AND WILL NOT FILE SEPARATE OPINION)
2009-CA-000695-MR
TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE: District courts in Kentucky, as courts of limited jurisdiction, have subject matter jurisdiction over probate, except adversarial matters which by statute are required to be brought in circuit court. The issue we must resolve in this case is whether a district court’s final judgment as to a probate settlement, albeit appealed by the administratrix, precludes a subsequent, separate circuit court action over estate administration matters which were or could have been raised in the district court. We hold that that the subsequent circuit court action is barred, and we therefore affirm the Jefferson Circuit Court’s summary judgment in favor of the administratrix of the estate.

124.  SUDDEN EMERGENCY; INSTRUCTIONS; MOTION FOR DIRECTED VERDICT; INSTRUCTIONS (BAREBONED AND C.F.R.)
MCALPIN (JANET)
VS.
DAVIS CONSTRUCTION INC.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND SHAKE (CONCURS)
2009-CA-002154-MR
TO BE PUBLISHED
MARSHALL

VANMETER, JUDGE: Janet McAlpin appeals from the order and judgment of the Marshall Circuit Court dismissing with prejudice her negligence claim against Davis Construction, Inc. (Davis), following a unanimous jury verdict in favor of Davis. For the following reasons, we affirm.

First, McAlpin argues that the trial court erred by instructing the jury that Hurley’s duties were subject to a “sudden emergency” qualification because no sudden emergency existed. We disagree.

The rule is well settled that “[e]ach party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957) (citations omitted). Whether Hurley was confronted with a sudden emergency is a question of fact for the jury, and if the evidence supports such a finding, the jury will be given a sudden emergency instruction. Brown v. Todd, 425 S.W.2d 737, 739-40 (Ky. 1968).
In this case, the submitted proof entitled Davis to a sudden emergency instruction qualifying Hurley’s duties. Hurley testified he was traveling at a lawful speed of 55 mph and applied his brakes immediately upon seeing McAlpin enter his path. In addition, Davis submitted evidence that the typical response of a driver reacting to an unexpected object entering his path from the right is to veer left, as Hurley did in this instance. Thus a reasonable jury could have deduced from the evidence that Hurley did not create the emergency situation and had little to no time for deliberation of alternative courses of action. Accordingly, the evidence supports the tendering of a sudden emergency instruction and the jury’s conclusion that Hurley conformed to his duties under such circumstances. The trial court did not err in this regard.

Next, McAlpin argues the trial court erred by denying her motion for a directed verdict. We disagree.

Finally, McAlpin argues the trial court erred by failing to instruct the jury according to the Code of Federal Regulations (“CFR”). We disagree.
As an initial matter, McAlpin fails to direct this court to any law requiring a jury to be instructed according to the CFR in negligence actions involving large trucks in Kentucky. Moreover, Kentucky law only requires trial courts to give “bare bones” jury instructions, thereby providing counsel the opportunity to flesh out the legal nuances within the instructions during their closing arguments. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 230 (Ky. 2005). On appeal, the question is whether the instructions that were given misstated the law. Id. at 229.
Here, the instruction stating that Hurley was under the duty “to exercise ordinary care to avoid collision with other persons or vehicles using the highway” was proper in this instance. Further detail concerning his duties to maintain the vehicle in a safe condition could have been “fleshed out” during McAlpin’s closing statements. Since we are unable to conclude that the instructions given in this case were a misstatement of the law, the trial court did not err by declining to instruct the jury based on duties contained in the CFR.

128.  INSURANCE.  COA refused to invalidate as matter of law owned but not insured exclusion in UIM policy.
MOTORISTS MUTUAL INSURANCE COMPANY
VS.
HARTLEY (GLEN)
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000202-MR
TO BE PUBLISHED
WOODFORD

THOMPSON, JUDGE: Motorists Mutual Insurance Company appeals from an opinion and order of the Woodford Circuit Court declaring that an “owned but not scheduled for coverage” exclusion contained in a policy issued by Motorists to Glen Hartley is invalid and unenforceable and, therefore, entitling Hartley to underinsured motorists (UIM) benefits under the policy. The issue presented is whether the exclusion is ambiguous or against this Commonwealth’s public policy.

Although Motorists admits that Hartley was generally insured against bodily injury resulting from another’s use of an underinsured vehicle, its denial of coverage for Hartley’s injuries sustained while operating his motorcycle is premised on the following exclusion from UIM coverage:

We do not provide Underinsured Motorists Coverage for bodily injury sustained by any insured:
1. While occupying or when struck by, any motor vehicle owned by you or any family member who is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.

Under the general policy provisions “covered auto” is defined as “[a]ny vehicle shown in the Declarations,” “[a] newly acquired auto,” and certain types of trailers. Consequently, Motorists denied UIM coverage pursuant to the exclusion on the basis that the motorcycle was not an insured vehicle under the policy.

The exclusion in the Motorists policy unequivocally states that UIM coverage is not afforded for motor vehicles not covered under the policy. The declarations page of the policy lists the insured vehicles as the Expedition and the Frontier. The motorcycle involved in the accident is not listed as an insured motor vehicle.2    Thus, we fail to see how the exclusion could not be readily understood by the average person. The UIM coverage was dependent on the condition that Hartley’s injury not arise from his use of a vehicle he owned but voluntarily chose not to list and pay premiums for under the Motorists policy.

It is troubling that the Motorists policy contained an exclusion clause with language that our Supreme Court criticized over twenty years ago, and that Motorists could have avoided litigation if it had included in its policy an exclusion clause for motorcycles. Nevertheless, based on the caselaw and the Motor Vehicle Reparations Act, we cannot reasonably conclude that public policy is violated by the enforcement of the exclusion in the Motorists policy which precludes Hartley from recovering UIM coverage.
Hartley was offered UIM coverage for his motorcycles but rejected it because of the higher premiums. If we were to apply Chaffin to the present facts, Hartley would reap the benefit of the coverage he specifically rejected and for which he paid no premiums. In the context of mandatory liability coverage, this Court has previously recognized the potential windfall to an insured if an “owned but not scheduled for coverage” exclusion were not enforced:
The appellants also argue that the “owned but not scheduled for coverage” exclusion is invalid because “it explicitly hinges an exclusion of liability coverage upon ownership or regular use of a non-covered vehicle by a ‘family member.’” (Appellants' brief, p. 11.) However, that contention would allow an insured to obtain insurance and to pay premiums for one vehicle while exposing the insurer to liability for injuries arising from the use of multiple vehicles owned by other family members for which coverage had not been obtained. Extending coverage in this case would provide benefits which were neither paid for nor reasonably contemplated by the named insured or the members of his family.
Snow v. West American Ins. Co., 161 S.W.3d 338, 341 (Ky.App. 2004)

134. HABITUAL TRUANT.
L. (J.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-001090-ME
2010-CA-001091-ME
TO BE PUBLISHED
HARDIN

 NICKELL, JUDGE: J.L., a male child, and K.L., his minor sister, have appealed from separate orders entered on the same date by the Hardin Circuit Court, Family Division, finding them each to be habitual truants and imposing restrictions on their movements and school absences until graduation or until they reach the age of 21, whichever occurs first. After a careful review of the record and the law, we reverse and remand for further proceedings.

NON Published Decisions dealing with civil,torts, insurance, workers compensation:

126. WORKERS COMPENSATION
LUCAS (JASON)
VS.
COOK, ERNEST & SONS MINING, INC. , ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002379-WC
NOT TO BE PUBLISHED
WORKERS' COMP

137.  WORKERS COMPENSATION
PIEDMONT AIRLINES
VS.
BROWN (RICHARD), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001300-WC
NOT TO BE PUBLISHED
WORKERS' COMP

138.  WORKERS COMPENSATION
SARGENT & GREEN LEAF
VS.
QUILLEN (DONALD G.), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND SHAKE (CONCURS)
2010-CA-001612-WC
NOT TO BE PUBLISHED
WORKERS' COMP