Taylor County Judicial Center. Photo by Michael Stevens using iPad and HDR photo option.
The Kentucky Court of Appeals announced 54 decisions on May 15, 2015, with seven (7) of their opinions designated to be published.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals). AOC version of this week’s decisions can be accessed by clicking here.
For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.
Of interest to injury lawyers, are the nonpublished decisions with the Court of Appeals seemingly ignoring Three Rivers, Shelton and other slip and falls cases attempting to lay to rest the open and obvious doctrine.
Published appellate cases for week of May 15, 2015:
382. Qualified official immunity not a defense to custodian responsible for removing snow and ice from school sidewalks when not done
Marian Mucker vs. Eulene Brown
Published COA 5/15/2015; Affirming Jefferson Cir Ct
THOMPSON, JUDGE: The matter is before us on remand from the Kentucky Supreme Court. Our Supreme Court vacated this Court’s opinion rendered on June 7, 2013, and directed that we consider the issue of qualified official immunity in light of its decisions in Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014). We have done so and conclude that qualified official immunity does not apply to the claims asserted against Marian Mucker, in her individual capacity as an employee of the Jefferson County Board of Education, and affirm an order of the Jefferson Circuit Court denying her motion for summary judgment.
Clearing the snow and ice was the act Mucker was required to perform at the school facilities and was ministerial. Whether she performed that act unreasonably is a question properly to be resolved by the jury. As our Supreme Court emphasized in Marson, the focus of the inquiry is on the act itself. “If we do not focus on the act, we risk limiting ministerial acts to almost nothing except those acts that are directly compelled by an order or rule.” Marson, 438 S.W.3d at 302. The rule that “an act can be ministerial even though it has a component of discretion” would be undermined. Id.
Because we conclude that Mucker’s duties were ministerial in nature, we do not need to determine whether she acted in good faith. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011). Mucker is not entitled to qualified official immunity.
388. Medicaid Managed Care Contract and provision of certain services
Kentucky Spirit Health Plan, Inc. vs. Commonwealth of Kentucky
COA Published 5/17/2015; Affirming, Franklin County
389. Eminent Domain Act, Condemnation
Commonwealth of Kentucky vs. Bryan G. Guess
COA Published 5/17/2015; Vacating and remanding; Crittendon County
394. Priority of creditors on promissory note and value of an equitable lien created by stock purchase agreements. Affirming
Fifth Third Bank vs. Ann Simms Rogers
COA Pub 5/17/2015; Affirming; Marion County
The award of summary judgment in Estate’s favor and the award of judgment against Bank in the amount of $256,912.00 are affirmed.
396. Criminal Law, Procedure
Sean Adams vs Commonwealth of Kentucky
COA Pub 5/17/2015; Affirming conviction; Madison
412. Family Law
Troy Hudson vs. Ashley Cole
COA Pub 5/17/2015; Affirming ; Campbell County
414. Workers Compensation, Enforcement of Settlement Agreement Affirmed
Cross Maintenance LLC vs. Mark Riddle
COA Pub 5/17/2015; Affirming Workers Compensation
Tort Report – Insurance, Civil, Tort Decisions – 5/15/2015
382. Qualified official immunity not a defense to custodian responsible for removing snow and ice from school sidewalks when not done
Marian Mucker vs. Eulene Brown
Published COA 5/15/2015; Affirming Jefferson Cir Ct
384. Affirmed Summary Judgement on dismissing claim based on alleged Bar Assault, No genuine issue of material fact
Andrew Howell vs. Ryan Kessling
COA Not published opinion (NPO) 5/17/2015 Affirming dismissal per SJ; Jefferson
385. Immunity
Jason Stearman vs. William Knight, Individually and In Official Capacity
COA NPO 5/17/2015; Affirming Dismissal of claim; Metcalfe
397. Affirmed summary judgment dismissing fee claims
Melbourne Mills vs. David Helmers
COA NPO 5/17/2015; Affirming; Fayette
405. Board of Claims, Department of Transportation Defective Highway Claim
Commonwealth of Kentucky vs. Estate of Dustin H. Franklin
COA NPO 5/17/2015 Affirming award for the Estate
408. Motion to compel arbitration of personal injury claim, applying Ping v. Beverly Enterprises and power of attorney authority to execute document compelling arbitration
Kindred Healthcare, Inc. vs. Perrie Goodman
COA NPO 5/17/2015; Affirming and remanding; Jefferson
MAZE, JUDGE: Kindred Healthcare, Inc. and affiliated entities (collectively, “Kindred”) appeal from an order of the Jefferson Circuit Court denying its motion to compel arbitration of personal injury and wrongful death claims brought by Perrie Goodman, executor of the Estate of Linda Bruce, Deceased (“the Estate”). The trial court denied Kindred’s motion to compel arbitration based upon the holding of Ping v. Beverly Enterprises, 376 S.W.3d 581 (Ky. 2012), concluding that a general power of attorney was insufficient to bind Bruce or her Estate to an optional arbitration agreement. Kindred argues that the trial court erred in finding that Bruce’s power of attorney did not have the authority to execute an arbitration agreement on Bruce’s behalf. In the alternative, Kindred also contends that the restrictive interpretation of an agent’s authority to enter into arbitration contracts violates the Kentucky Uniform Arbitration Act (“KUAA”) and the Federal Arbitration Act (“FAA”). Finding no error on either ground, we affirm.
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