The Kentucky Court of Appeals announced 39 decisions this week, numbered 662 through 700, designating two to be published. This week’s issues include piercing the corporate veil; indemnity agreement; domesticating foreign judgment; three compulsory arbitration motions by nursing homes found to be based upon POA without legal authority (Pinged again x 3); medical malpractice case and survey evidence; intentional acts exclusion in homeowners; and default judgment affirmed.
Duncan Tavern, Just Outside Bourbon County Court House in Paris, Kentucky. Built in 1788. Gathering place of Pioneers. Shrine, Museum, Library. Restored by Kentucky Daughters of the American Revolution. For more information, go to: http://www.duncantavern.com/ Photo by Michael Stevens, 4/2/2014.
The published decisions for July 25, 2014 with name, link to full text, and key issue are:
667. Business Law.
Piercing Corporate Veil – LLC vs. corporations. Contract terms.
Daniel D. Tayloe vs. Sellco Two Corporation
Affirming; Fayette County
686. Workers Compensation. PTD and PPD. ALJ PTD award must be based on adequate evidentiary standards.
Bluegrass Rehabilitation Center vs. Edna Miles
Reversing and Remanding; Workers Compensation Board
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.
669. Contractual Indemnification.
Galvamet America Corp. vs. The Norrenbrock Company, Inc.
COA Not to be Published 7/25/2014
Affirming in part, reversing in part and remanding; Judge Acree Presiding
Kenton County
670. Civil Procedure. Domesticating Foreign Judgment.
Robert Addington vs. Virgin Green Fund I, LP
COA Not Published 7/25/2014 Affirming, Judge Taylor Presiding
Fayette County
COA affirmed Fayette Circuit Court Order domesticating foreign judgment by default for $20+million.
675. Compulsory Arbitration (Ping again) and POA
Kindred Nursing Centers vs. Foley-Townsend
COA Not Published 7/25/2014; Judge Clayton Presiding
Affirming Circuit Court denial of nursing home’s motion to compel arbitration
Warren County
“[P]ower of attorney confers the power to handle financial and property decisions but does not mention any acts related to alternative dispute resolution. Consequently, the power of attorney instrument does not allow his attorney-in-fact, Linda, to enter into an arbitration agreement and waive his right to a bench or jury trial. As noted in Ping, “[a]bsent authorization in the power of attorney to settle claims and disputes or some such express authorization addressing dispute resolution, authority to make such a waiver is not to be inferred lightly.” Id. at 593. “
685. Compulsory Arbitration Agreement and POA. Ping again.
Kindred Nursing Centers vs. Dorothy Butler
COA Not Published 7/25/2014. Judge Clayton Presiding.
Affirming circuit court judge denial of Kindred’s motion to stay and to compel arbitration
Hardin County
POA with respect to all matters including real and personal property, financial affairs, legal affairs, and healthcare decisions did not include alternate dispute resolution; plus son signed agreement as “son” and not as POA noted on the agreement.
686. Compulsory Arbitration Agreement and POA. Pinged again.
COA Not Published 7/25/2014; Judge Taylor Presiding
Affirming trial judges order denying nursing home’s motion to stay and compel arbitration
Meade County
“The language set forth above clearly reflects the intention of Roettger to permit Sandage to maintain Roettger’s property and finances and to make decisions incident thereto. The power of attorney further permits Sandage to initiate litigation on her behalf to collect debts, but does not authorize the settling of claims and disputes on Roettger’s behalf as argued by Extendicare. Such an interpretation would take the express language totally out of context. And, granting Sandage the right to initiate legal action on Roettger’s behalf is totally in contradiction to any claim that Roettger intended to waive her right to initiate litigation in favor of arbitration or some other form of alternative dispute resolution. As noted, the power of attorney contains no express authorization by Roettger for Sandage to settle claims and disputes. While Extendicare certainly invites us to infer such a meaning from the language cited, we would have to effectively substitute our judgment as concerns the plain meaning of these words as determined by the circuit court, which would be contrary to the holding in Ping, 376 S.W.3d 581. The circuit court’s finding that the power of attorney does not grant Sandage the authority to settle claims is not clearly erroneous, and thus, will not be disturbed on appeal.”
689. Medical Negligence. Evidence of ASA Practice Survey Excluded. Expert Testimony
COA Not Published 7/24/2014, Judge Dixon Presiding
Affirming unanimous defense verdict in favor of hospital
Boyd County
691. Homeowners Insurance Policy. Exclusion for intentional acts. Summary Judgment and Genuine Issues of Material Fact Existed.
COA Not Published 7/25/2014. Judge Stumbo Presiding
Reversing and remanding Letcher County
692. Default Judgment NOT set aside finding no excusable neglect.
COA Not Published 7/25/2014. Judge Moore Presiding.
Affirming trial judge’s denial of Bradford White’s motion to set aside default judgment obtained by KFBM on subrogation claim against Bradford White for defective water heater which damaged insured’s home for which KFBM paid $27,000+ under homeowner’s policy.
[gview file=”http://apps.courts.ky.gov/Appeals/Minutes/MNT07252014.pdf”]
