First College in the West – 1783. Centre College. Danville, Kentucky.
The Kentucky Court of Appeals announced 27 decisions on Sept. 12, 2014, with two opinions designated to be published – Grange v. Tennessee Farmers Mutual Ins. Co. (choice of law decision regarding Kentucky UM policy and Tennessee UM policy and applying the Tennessee rule of offsetting coverage); and Hack v. Commonwealth of Kentucky (criminal decision).
The two Court of Appeals opinions to be published are:
827. Choice of Law, Uninsured Motorist Benefits, Tennessee Offset, and Priority of Coverages
Grange Property & Casualty Co. v. Tennessee Farmers Mutual Ins. Co
COA Published 9/12/2014 PJ Clayton Affirming
THIS DECISION WAS MODIFIED ON 9/26/2014.
Pike County
CLAYTON, JUDGE: Grange Property and Casualty Company (hereinafter “Grange”) appeals the Pike Circuit Court’s order that granted the summary judgment motion of Tennessee Farmers Mutual Insurance Company (hereinafter “Tennessee Farmers”) and denied Grange’s motion for summary judgment.
Presented with a choice of law question, the trial court decided that under the modern test, that is, which state “has the most significant relationship to the transactions and the parties,” Tennessee law was applicable regarding the priority of the uninsured motorist (UM) coverage between Grange and Tennessee Farmers. Restatement (Second) Conflicts of Law § 188 (1971).
Further, the trial court determined that Grange’s UM policy provided primary coverage to the injured party and Tennessee Farmers’ policy provided secondary coverage. Additionally, based on Tennessee law, Tennessee Farmers’ secondary coverage for Ferlin Pruitt was extinguished since the injured party had collected over $100,000.00 in workers’ compensation benefits. After careful consideration, we affirm.
840. Criminal Law. Search and Seizure. “Knock and talk” rule. Curtilage examined.
Hack v. Commonwealth of Kentucky
COA Published 9/12/2014; PJ Clayton Reversing and Remanding
Graves County
CLAYTON, JUDGE: Donna Hack appeals the Graves Circuit Court’s opinion and order dated July 11, 2013, denying her motion to suppress evidence seized after a warrantless entry into her garage. The trial court denied in part and granted in part the motion to suppress. Hack subsequently entered an Alford plea, reserving the right to appeal the denial of her suppression motion. After careful review, we reverse the decision of the Graves Circuit Court and remand for further proceedings consistent with this opinion.
“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 (continue reading).
827. Insurance. Choice of Law. Priority of UM Coverage. Offset.
Grange v. Tennessee Farmers Mutual Ins. Co.
COA Published 9/12/2014 Affirming
Affirmed trial court on choice of law decision regarding Kentucky UM policy and Tennessee UM policy and applying the Tennessee rule of offsetting coverage. Tennessee had the most significant relationship; Grange’s UM policy provided primary coverage to the injured party and Tennessee Farmers’ policy provided secondary coverage. Additionally, based on Tennessee law, Tennessee Farmers’ secondary coverage for Ferlin Pruitt was extinguished since the injured party had collected over $100,000.00 in workers’ compensation benefits. [Note this was an “other insurance” company dispute between two insurers with the injured party settling with the primary UM carrier who now was seeking recovery on its cross claim against the Tennessee UM policy. It lost. Also, it is/was unclear to me since the “workers compensation” benefits collected was used for the offset and since many UM policies and Kentucky case law provides for no UM payments for workers compensation.]
830. Torts. Duty Owed to Patrons of store when altercation occurs
Rose vs. Wal-Mart
COA Not Published 9/12/2014; PJ Combs Affirming
Held Wal-Mart had no duty either to prevent or to intervene in a physical altercation involving several of its patrons under facts of this case.
834. Dismissal of interlocutory appeal.
Adams vs. Tokio Marine & Nichido Fire Ins. Co.
COA Not Published 9/12/2014; PJ Stumbo
Dismissed appeal of interlocutory appeal; however discussion of issues pertaining to UM/UIM coverage under policy on vehicle leased by employer with employee driving.
837. Dismissal of appeal.
Dehart vs. Lavit
COA Not Published 9/12/2014; PJ Maze affirming dismissal.
Observing no clear error in the issues DeHart raises on appeal, we affirm.
838. Premises Liability. Slip and Fall. Licensee treated differently on open and obvious.
Klinglesmith vs. Esate of Reba Pottinger
COA Not Published 9/12/2014; PJ Stumbo Affirming
STUMBO, JUDGE: Stella Klinglesmith appeals from an Order of the Jefferson Circuit Court dismissing via Summary Judgment her personal injury action against the Estate of Reba Pottinger. Klinglesmith contends that the court erred in concluding that the open and notorious doctrine barred her recovery, and that she would be unable to demonstrate causation if the matter proceeded to trial.
Klinglesmith contends that under Shelton, an open and obvious condition does not eliminate a landowner’s general duty to maintain premises in reasonably safe condition or the duty to warn of or eliminate unreasonably dangerous conditions, but, rather, is factor in determining whether landowner fulfilled his or her duty of care. Klinglesmith appears to contend that the Jefferson Circuit Court erred in absolving the Estate of liability because the defect in the
The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.
The parties agree and the record so demonstrates that Klinglesmith was a licensee when she entered upon the parcel then owned by Pottinger. She cannot properly be characterized as an invitee in that she was not connected with the owner’s business (as there was no business) nor did Klinglesmith engage in an activity of the type that the owner conducts or permits to be conducted on his land.
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