The Court of Appeals posted 19 decisions on Feb. 10, 2017, numbered 143-161 with 3 decisions designated for publication.
143. UIM and Statute of Limitations
Weird vs. State Farm Mutual Automobile Ins. Co.
Court of Appeals Published Opinion AFFIRMING – Jefferson County
COA held that the amended complaint for underinsured motorist claims was NOT timely filed even though the underlying cause of action against the tortfeasor was timely filed but the limits were tendered after the statute of limitations had expired.
“In conclusion, we discern no error in the trial court’s grant of summary judgment. Weird’s complaint was filed outside the contractual two-year limitations period and the relation-back provisions of CR 15.03 were inapplicable. Thus, summary judgment was appropriately granted and dismissal of the complaint was necessary and correct.”
A biting concurrence was filed by Judge Acree which is on point noting the flawed reasoning of State Farm v. Riggs.
No surprise that this decision is not now final since discretionary review was filed on Mar. 17, 2017. I assume discretionary review will be granted to ferret out this flaw in Riggs’ decision.
PRACTICE TIP. Even though it would seem the Supreme Court expressed concerns about the statute of limitations and wasted litigation, the Court of Appeals was undeterred. To avoid this problem, you should not only file suit against all the tortfeasors, but also against all (and I do mean all) UIM carriers to avoid this trap. This case result is unjust and unfair, but that is what you gotta do. I would also encourage you not only assert a claim for UIM but include an alternative pleading for UM benefits in the event the insurer prevails on a coverage defense for liability.
156. Taxation. Ad valorem and application of charitable exemption under Sec. 170 of the Kentucky Constitution
Grand Lodge of Kentucky Free and Accepted Masons v. City of Taylor Mill
Court of Appeals Published Opinion AFFIRMING in part, REVERSING in part, and REMANDING – Scott County
157. Real Property. Homeowners association and deed of restrictions
Cane wood Homeowners Association, Inc. v. Wilshire Investment Properties, LLC
Court of Appeals Published Opinion REVERSING and REMANDING – Scott County
“It is well-established that the interpretation of a deed presents an issue of law. Phelps v. Sledd, 479 S.W.2d 894 (Ky. 1972). The terms of a deed are generally given their ordinary meaning, and a deed must be interpreted as a whole. Id.; C.W. Hoskins Heirs v. Boggs, 242 S.W.3d 320 (Ky. 2007).”
Selected not to be published decisions – torts, insurance and civil:
147. Appeals and CR 60.02 – no abuse of discretion by judge denying 60.02
Rankin v. Naqvi
COA Not to Be Published Opinion AFFIRMING – Jefferson
153. Torts. Business dispute with claims of slander per se and invasion of privacy countered by breach of contact and tortious interference with contractual and prospective contractual relations
Modern Hair Salon, Inc. v. Calvin Mitchell, Inc
COA Not to Be Published Opinion AFFIRMING – Jefferson
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.
For the index to archived minutes at the official AOC page, then click here.
