COA: July 18, 2014 Court of Appeals’ Decisions (632-661) – compulsory abitration and Ally Cat; reversal of family court order reinitiating mother’s contact with children; spousal waiver of UM applies to husband; post-Shelton slip and fall affirmance of “incredibly open and obvious” hazard

The Kentucky Court of Appeals announced 30 decisions this week, numbered 632-661, designating seven to be published and the the remainder not to be published but posted and available for your reading nonetheless.  

Some issues you may find of interest are  compulsory abitration and Ally Cat;  reversal of family court order reinitiating mother’s contact with children; spousal waiver of UM applies to husband; post-Shelton slip and fall affirmance of “incredibly open and obvious” hazard;  pro-se litigant obtains reversal of summary judgment holding her liable in subrogation claim against her by State Farm as uninsured motorist.

 

The published decisions for July 18, 2014 with name, link to full text, and key issue are:

632.  Criminal Law.  Hate Crime Conviction.
Burke v. Commonwealth of Kentucky
COA Published 7/18/2014 from Kenton County

633.  Arbitration.  COA affirmed lower court denial motion to compel arbitration applying Ally Cat v. Chauvin
HQM of Pikeville LLC v. Sherry Collins
COA Published 7/18/2014 from Pike County

635.  Torts. Premises Liability. Post-Shelton slip and fall with COA affirming summary judgment dismissal of an “incredibly open and obvious” hazard
Jannelle Dishman vs. C & R Asphalt LLC
COA Published 7/18/2014 from Fayette County

640.  Criminal Law.  Post conviction relief
Gene Smith v. Commonwealth of Kentucky
COA Published 7/18/2014 from Jefferson County

644.  Uninsured motorists benefits.  Waiver of statutory coverage by spouse.
Darryl K. Boarman vs. Grange Indemnity Ins. Co.
COA Published 7/18/2014 from Daviess County
Affirmed summary judgment in favor of insurer that insured need not personally waive statutory mandated UM coverage (his wife did).

649.  Property.  Boundary Line Dispute.
Champ Chaney vs. Ralph Justice
COA Published 7/18/2014 from Pike County

654.  Family Law.  Reversed order re-initiating contact of child with mother
Alan Oster vs. Paula Oster
COA Published 7/18/2014 from Jefferson County

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law.

 

635.  Torts. Premises Liability. Post-Shelton slip and fall with COA affirming summary judgment dismissal of an “incredibly open and obvious” hazard
Jannelle Dishman vs. C & R Asphalt LLC
COA Published 7/18/2014 from Fayette County

Interesting conclusions as Judge Lambert notes that “In McIntosh [Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010)], the Court softened the effect of the open and obvious doctrine and adopted Restatement (Second) of Torts, § 343A (1965). ” and “The [trial] court determined that the hazard was “incredibly open and obvious” and that everyone took every precaution and assumed the duty to warn. ”

644.  Uninsured motorists benefits.  Waiver of statutory coverage by spouse.
Darryl K. Boarman vs. Grange Indemnity Ins. Co.
COA Published 7/18/2014 from Daviess County
Affirmed summary judgment in favor of insurer that insured need not personally waive statutory mandated UM coverage (his wife did).

647.  Summary judgment in favor of State Farm that the uninsured motorist was at fault in response to its subrogation claim was reversed and remanded.
Sharon Embry vs State Farm Mutual Ins. Co.
COA Not to bePublished 7/18/2014 from Jefferson County (Judge James Shake)

State Farm filed suit to recover property damages and medical benefits it had paid to its insured who was struck by an uninsured motorist.   The uninsured motorist responded and denied liability, but summary judgement was granted in State Farm’s favor.  COA held that the uninsured motorist “Embry met her burden as the opposing party by contradicting State Farm’s proof that liability and damages could not be disputed through her detailed sworn answers to interrogatories that were part of the record.   See Id. at 482; Cont’l Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955). As a participant in the accident, her answers about her observations as to how the accident occurred, the cause of damages and the physical condition of Baxter and her passenger afterward, were sufficient to raise material issues of fact. Compare with O’Bryan v. Cave, 202 S.W.3d 585, 587-588 (Ky. 2006). There is no requirement that Embry’s statements be restated in the form of an affidavit to be sufficient to defeat a motion for summary judgment. Whether Embry’s account or Baxter’s account should be believed is a question for the jury. We conclude the circuit court erred in determining that there were no material issues of fact remaining and granting summary judgment. Accordingly, we reverse and remand the Jefferson Circuit Court’s opinion and order granting summary judgment. ”