COA 2011 Minutes for January 28, 2011 (Nos. 75 – 96))

 77.  FAMILY LAW.  DE FACTO MARRIAGE.
PINKHASOV (DANIEL)
VS.
PETOCZ (ANNA)
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2008-CA-002420-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Daniel Pinkhasov appeals from two orders of the Jefferson Circuit Court, Family Court Division, holding that he and Anna Petocz had entered into a legally valid de facto marriage on July 10, 2005. The trial court found “no statutes relating to marriage that would indicate that the legislature intended that the validity of a marriage is conditioned on applying for, obtaining, signing, or filing a certificate of marriage license” and held “a failure to obtain and/or return for filing with the county clerk a license or certificate of marriage does not void or invalidate an otherwise valid marriage.” Further, even though Pinkhasov and Petocz had failed to obtain a marriage license and had excluded solemnization of a civil1 marriage from their religious marriage ceremony, the trial court held they had nevertheless established a valid and legally recognized “de facto marriage.” On appeal, Pinkhasov argues no valid civil marriage was ever intended and none ever existed between Petocz and himself under Kentucky law because the parties did not meet the requirements of the Kentucky Revised Statutes (KRS). Pinkhasov further argues the trial court erred in holding that a legally valid de facto marriage had been established on July 10, 2005, because the term “de facto marriage” is synonymous with a common-law marriage and Kentucky does not recognize common-law marriage. After careful review of the briefs, the record and the law, we reverse and remand for entry of an order consistent with this Opinion.

86. FELA, FRSA. PREEMPTION.
BOOTH (LARRY W.)
VS.
CSX TRANSPORTATION, INC.
OPINION REVERSING AND REMANDING
ISAAC (PRESIDING JUDGE)
ACREE (CONCURS) AND HENRY (CONCURS)
2009-CA-002103-MR
TO BE PUBLISHED
JEFFERSON

ISAAC, SENIOR JUDGE: Larry W. Booth appeals from a Jefferson Circuit Court order granting summary judgment to CSX Transportation, Inc. Booth allegedly injured his knees while employed as a railroad carman for CSX. The Jefferson Circuit Court ruled that Booth’s claims for damages under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”) were preempted by regulations promulgated under the Federal Railway Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”). We conclude that although a regulation promulgated under the FRSA may preclude a FELA claim, it did not do so in this case because the regulation at issue does not cover or substantially subsume the subject matter of the suit. The summary judgment of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings in accordance with this opinion.

87.  TORTS.  LIBEL.
AKINS (DERRICK D.)
VS.
THE NEWS ENTERPRISE
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-002188-MR
TO BE PUBLISHED
HARDIN

THOMPSON, JUDGE: Derrick D. Akins appeals from the Hardin Circuit Court’s dismissal of his complaint for libel against The News Enterprise, a newspaper. For the reasons stated herein, we affirm.

On February 13, 2009, Akins filed an action for libel against The News Enterprise, alleging that the newspaper’s use of the term “carjacking” in an article describing his criminal case constituted an incorrect, inflammatory, and reckless statement of fact. Although he acknowledged being charged with rape, kidnapping, possession of a firearm by a convicted felon, and being a persistent felony offender in the first degree, he stated that he had been acquitted of the rape and kidnapping charges and was only found guilty of the remaining two offenses. Most notably, he contended that he had never been charged with carjacking.

“Four elements are necessary to establish a defamation action, whether for slander or libel, to wit: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation.” McBrearty v. Kentucky Community and Technical College System, 262 S.W.3d 205, 213 (Ky.App. 2008). A writing is defamatory when it subjects a person to public hatred, causes a person to be shunned, or injures a person’s occupation. Id. at 214. Notwithstanding, Kentucky adheres to the legal principle that the truth is an absolute defense for an action of libel regardless of the intent of the publishers. Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84, 87 (Ky. 1966).

After reviewing the record, we conclude that The News Enterprise did not commit the tort of libel by publishing the article regarding Akins.

91. INSURANCE.  SUBROGATION AND INSOLVENT COMPANY.  KRS 304.36-050.
ONE BEACON INSURANCE COMPANY
VS.
KIGA
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND ISAAC (CONCURS)
2010-CA-000220-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: One Beacon Insurance Company (One Beacon) appeals from the January 5, 2010 order of the Jefferson Circuit Court granting summary judgment in favor of Kentucky Insurance Guaranty Association (KIGA). After careful review, we affirm.

One Beacon is clearly an insurer which now seeks to recover from KIGA
one-half of the amounts it paid on behalf of the injured employee for medical fees. One Beacon has admitted that it is an insurer and that its claim is a subrogation claim. By the clear language of the statute, One Beacon is not an insured making a first-party claim or a person seeking a liability claim. Thus, One Beacon is not a claimant under KRS 304.36-050. Further, One Beacon’s claim for subrogation of paid medical benefits is not a covered claim, as subrogation claims are specifically prohibited in the statute. Accordingly, the trial court’s holding that One Beacon’s claims are not covered claims was correct as a matter of law.

We note that this is a matter of first impression in the state of Kentucky, but that other states have dealt with the question in a decisive manner. See California Union Insurance Co. v. Central National Insurance Co. of Omaha, 117 Cal. App. 3d 729 (Cal.App.2.Dist. 1981) (court rejected insurer’s subrogation claim upon the grounds that the legislature chose to provide a very limited form of protection for the public rather than a fund for the protection of other insurance companies from insolvencies of fellow members of the Fund). See also Ferrari v. Toto, 402 N.E.2d 107 (Mass. App. 1980) (court held that in Massachusetts the Fund is excused from paying claims if the ultimate beneficiary is an insurance company).

In the instant case, One Beacon is not a claimant, as defined in KRS 304.36- 050(3), nor is a subrogation claim a “covered claim” for which KIGA is responsible under the statutory scheme. Accordingly, the trial court was correct as a matter of law and summary judgment was appropriate. Therefore, we affirm the January 5, 2010, order of the Jefferson Circuit Court.

94.  FAMILY COURT. JURISDICTION.  AGE, TRUANCY.
B. (J. K.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND NICKELL (CONCURS)
2010-CA-001062-ME
TO BE PUBLISHED
HARDIN

STUMBO, JUDGE: J.K.B., a minor (hereinafter referred to as Child), appeals from an order of the Hardin Family Court imposing certain educational requirements upon him until he reaches the age of 21. The order resulted after the court found Child to be a habitual truant and beyond the control of his parent.1 Child argues that the family court loses jurisdiction over him when he turns 18 [1 Child was not charged with habitual truancy and defense counsel objected to a finding of such; however, the educational requirements would still have been imposed under a sole finding of beyond the control of parent.] years old, and that as such, the educational requirements must end at that time. The Commonwealth did not file a brief in this matter. We agree that the family court loses jurisdiction over Child when he reaches the age of 18 and that the educational requirements terminate at that time. Accordingly, we reverse the order on appeal and remand the matter to the Hardin Family Court.

Other decisions of interest (not published):

76.  DEFAULT JUDGMENTS, PRISONERS/CONFINED DEFENDANTS, AND C R 17.04(1)
WEIRD (THOMAS)
VS.
EMBERTON (ERIC)
OPINION REVERSING IN PART AND REMANDING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2007-CA-000938-MR
NOT TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Thomas Weird appeals1 from the April 3, 2007, opinion and order of the Jefferson Circuit Court granting Eric Emberton’s motion to set aside an order entered on December 6, 2006, which had set aside a default judgment entered on December 6, 2005, and allowed Weird’s ex-wife, Cheryl, to intervene. [1    Whether this appeal was timely filed was the subject of a prior appeal to this Court, Weird v. Emberton, Case No. 2007-CA-000938-MR, in which the Supreme Court of Kentucky granted discretionary review. In Weird v. Emberton, 306 S.W.3d 67 (Ky. 2010), the Supreme Court determined the appeal was timely filed where the Jefferson Circuit Court Clerk’s Office was closed for observance of the Kentucky Derby Parade on the last day for filing the notice of appeal.] Due to noncompliance with CR2 17.04(1), relative to entry of the December 6, 2005, default judgment, we reverse in part and remand for proceedings consistent with this Opinion.

The limited focus of this appeal is the operation of CR 17.04(1) as it
pertains to the lack of filing a timely answer to a complaint and a subsequent motion for default judgment. Weird argues default judgment should never have been entered against him because he was an inmate throughout the twenty days he had to respond to the complaint, he failed to file an answer to the complaint, and no guardian ad litem was appointed by the trial court to represent him prior to entry of the judgment. In contrast, Emberton argues Weird was free on bond at the time default judgment was entered and therefore the appointment of a guardian ad litem required under CR 17.04(1) was not triggered. We agree with Weird and reverse in part and remand.