Court of Appeals of Kentucky

Published and Unpublished Decisions from the Kentucky Court of Appeals:

November 9, 2012 Court of Appeals Minutes
Nos. 1032-1062 (and 1032-1038) (39 decisions;   5 Cases To Be Published)

The Tort Report –
This special extract of cases is designed for the Kentucky accident and injury lawyers, to include car collision lawyers, personal injury attorneys, from Lexington to Louisville, Bowling Green to Covington, and Pikeville to Paducah!

The Court of Appeals is located in Frankfort, Kentucky and addressed the following torts, insurance and civil procedure matters:

1063.  SMITH V. FLYNN. COA PUB:
Affirmed dismissal of motion to vacate default judgment.  Failed to show legal incompetence. All three factors for NOT setting aside default judgment were satisfied.

1034.    GLOBAL DATA V. CONSUMMATION TECHNOLOGIES . COA. NPO.
Motion to enforce alleged settlement agreement (not in car accident context). Reversed and remanded.

1044.    DREAM FURNITURE VS. BROW.  COA.  NPO.
Affirmed trial court’s denial of granting defendant an offset in the judgment for workers compensation subrogation benefits, finding that they had been assigned to the claimant/plaintiff.

1047.  GREENFIELD VS. MCMILLEN.  COA. NPO.
Affirmed dismissal of wrongful use of civil proceedings claim determining the out of state litigation had not been terminated in this plaintiff’s favor.

1050.    HARRISON VS. WRIGHT.  COA. NPO.
Affirmed and gave some black letter law on forum selection clauses of contracts.

1059.     MINIX VS. HOUCHENS FOOD GROUP.  COA. NPO.
Affirmed dismissal of amended complaint finding the additional party was not covered under the related back doctrine for statute of limitations purposes.

Links to copy of minutes and AOC page:

  • Click on  this link for the full text of these minutes with link to full text of each decision.
  • Click here for AOC page with current minutes and archived minutes links

Published Cases of Kentucky Court of Appeals 10/26/2012:
The “hot link” for each case is to the full-text of the decision.

1036.  CRIMINAL LAW
REYNOLDS (KEVIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING, VACATING AND REMANDING
CAPERTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND KELLER (CONCURS AND FILES SEPARATE OPINION)
2010-CA-002192-MR
TO BE PUBLISHED
BOONE

1056.  ZONING. REVERSE TAKING.
COMMONWEALTH OF KENTUCKY
VS.
COUNTY OF HARDIN PLANNING AND DEVELOPMENT COMMISSION, ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001553-MR
2011-CA-001632-MR
TO BE PUBLISHED
HARDIN

1063.  CIVIL PROCEDURE. MOTION TO VACATE DEFAULT JUDGMENT.
SMITH (HERBERT H.)
VS.
FLYNN (TIMOTHY W.) II
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2011-CA-002101-MR
TO BE PUBLISHED
RUSSELL

COMBS, JUDGE: Herbert Smith appeals from an order of the Russell Circuit Court that denied his motion to vacate a default judgment. Upon our review, we affirm.

Smith admits that he has never been adjudicated incompetent. There is no dispute that he was actually served with notice of the lawsuit. His daughter submitted an affidavit in which she averred that she has designated people who live close to Smith to look after his affairs. As his power of attorney, his daughter could have initiated proceedings to have Smith declared incompetent. Thus, as a matter of law, his alleged incompetence is not a valid excuse for failure to respond to the complaint in this case.

With respect to the second Perry criterion, Smith has not presented a meritorious defense. In fact, the record shows that Smith conceded liability for the loss of Flynn’s fence and trees in 2008 – two years prior to his diagnosis of dementia and Alzheimer’s. Additionally, Smith has not offered any reason or excuse for cutting down the trees and the fence.

The third of the Perry criteria entails the prejudicial impact on the other party. If the default judgment were reversed, Flynn would suffer the loss of his legal expenses in addition to the expense of replacing his fence and the destruction of his trees.

All three factors for not setting aside the default judgment were satisfied. Therefore, we cannot conclude that the court erred.

Smith also argues that the court should have conducted an evidentiary hearing. However, he does not support this argument with any legal authority. Furthermore, based upon the lack of any substantive defense for his actions in 2008, we conclude that a hearing was unnecessary.

We affirm the judgment of the Russell Circuit Court. ALL CONCUR.

1034.  FAMILY LAW.  PARENTAL RIGHTS TERMINATION. MOTION TO DISMISS DENIAL APPEALED
H. (B. M.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2012-CA-000194-ME
TO BE PUBLISHED
JEFFERSON

1036.  WORKERS COMPENSATION.
HOMETOWN CONVENIENCE
VS.
MCCOY (BARBARA), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS)
2012-CA-000555-WC
TO BE PUBLISHED
WORKERS’ COMP

NICKELL, JUDGE: Hometown Convenience appeals from a decision of the Workers Compensation Board (Board) holding the Administrative Law Judge (ALJ) properly concluded that Hometown Convenience failed to carry its burden of proving the claimant, Barbara McCoy, unreasonably failed to follow medical advice. Hometown Convenience argues the ALJ misapplied the statutory requirements of its affirmative defense and the Board misconstrued the proper standard of review on appeal. We affir

Published Cases of Kentucky Court of Appeals 10/26/2012:
The “hot link” for each case is to the full-text of the decision.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP) – torts, insurance, civil procedure: 

1034.  MOTION TO ENFORCE ALLEGED SETTLEMENT AGREEMENT
GLOBAL DATA CORPORATION
VS.
CONSUMMATION TECHNOLOGIES, INC., ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MOORE (CONCURS)
2010-CA-001799-MR
NOT TO BE PUBLISHED
CARTER

1044.  INSTRUCTIONS.  ASSIGNMENT OF WORKERS COMPENSATION SUBROGATION BENEFITS NOT OFF SET AGAINST JUDGMENT.  PIP OFFSET ADDRESSED.
DREAM FURNITURE, INC., ET AL.
VS.
BROW (NOW ADCOCK)(REBECCA)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
VANMETER (PRESIDING JUDGE)
MOORE(CONCURS) AND STUMBO (CONCURS)
2011-CA-001063-MR
NOT TO BE PUBLISHED
HARLAN

VANMETER, JUDGE: Dream Furniture, Inc. and Skip Cooper (hereinafter collectively referred to as “Appellants”) appeal from the Harlan Circuit Court judgment awarding Rebecca Brow (now Adcock) $143,861.95 in damages on her personal injury claim. For the following reasons, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

Our review of alleged errors regarding the instructions tendered to the jury is de novo. Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citation omitted).

In all civil cases, Kentucky requires the use of “bare bones” jury instructions. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (citation omitted). Jury instructions are appropriate if they advise the jury as to what it must determine as true from the evidence in order to return a verdict in favor of the party with the burden of proof on that issue. Id. (citation omitted). To succeed on a claim of negligence, one must prove: “(1) a duty on the part of the defendant; (2) a breach of that duty; (3) a consequent injury, which consists of actual injury or harm; and (4) legal causation linking the defendant’s breach with the plaintiff’s injury.” West v. KKI, LLC, 300 S.W.3d 184, 190 (Ky. App. 2008) (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky. 2003)).

Here, the instructions given by the trial court adequately state the law. The instructions require the jury to determine whether Appellants violated their duty and if such failure caused the alleged accident for which Adcock seeks damages. The instruction does not presume Adcock was injured; if the jury did not believe Adcock was injured at the worksite of Dream Furniture, it would have answered the interrogatory in the negative. Appellants sufficiently argued before the jury its theory that Adcock was injured in Pikeville, rather than Dream Furniture’s worksite in Harlan, Kentucky. The jury instructions did not contradict Appellant’s defense theory. Accordingly, the trial court did not err in this regard.

With respect to the WCB, the record is clear that following a settlement with Adcock, the workers’ compensation insurance carrier assigned its subrogation rights to Adcock. Appellants point to a letter sent by the workers’ compensation insurance carrier dated May 7, 2009, in which a claim representative informed Adcock’s counsel that they had settled the workers’ compensation claim, and would not pursue any third party action to collect. Appellants argue the letter was sent after the statute of limitations had run for any subrogation claims, and thus, is a nullity in regards to assigning any subrogation rights. In doing so, Appellants overlook a prior assignment of subrogation rights, in which the insurance carrier assigned all subrogation rights to Adcock. KRS1 342.700(1) permits the employer or carrier to recover benefits paid on behalf of an injured employee from a third party tortfeasor responsible for the damages. Under Kentucky law, if the employer or insurance carrier assigns the right of subrogation, as it did here, and has a right to recover against the third-party tortfeasor, the recovery by the employee does not constitute a double recovery. Weinberg v. Crenshaw, 896 S.W.2d 22, 24 (Ky. App. 1995). Here, Adcock sought nothing more than what her employer or employer’s insurance carrier would have been entitled to recover. Accordingly, the trial court did not err by declining to offset Adcock’s jury award by the workers’ compensation benefits she received in her settlement.

1047. TORTS. WRONGFUL USE OF CIVIL PROCEEDINGS.
GREENFIELD (GRETCHEN)
VS.
MCMILLEN (JEFFREY W.), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001200-MR
NOT TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: Gretchen Greenfield appeals from an order of summary judgment of the Jefferson Circuit Court dismissing her claim of wrongful use of civil proceedings against Appellees Jeffrey McMillen and Rey De Los Santos. Finding no error, we affirm.

In the light most favorable to Greenfield, the evidence fails to demonstrate that when the Texas litigation terminated, the circumstances surrounding its termination reflected upon either her innocence of or responsibility for the conduct alleged in McMillen’s petition. At best, it is indicative of an abandonment “out of mercy requested or accepted by the accused,” which the Restatement (Second) of Torts § 660(c) describes as insufficient to meet the “favorable termination” element of a claim of wrongful use of civil proceedings. On this basis, we affirm the circuit court’s summary dismissal of Greenfield’s wrongful use of civil proceedings claims against McMillen and De Los Santos.

 

1050. FORUM SELECTION CLAUSE.
HARRISON (JAMES NICK)
VS.
WRIGHT (SONYA), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001265-MR
2011-CA-001266-MR
NOT TO BE PUBLISHED
MORGAN

MOORE, JUDGE: James Nick Harrison appeals the orders of the Morgan Circuit Court dismissing his 42 U.S.C. §1983 and state constitutional claims and granting summary judgment regarding his Open Records Act (KRS1 61.870 et seq.) claim. After a thorough review of the record, we affirm.

The trial court relied on the forum-selection clause contained in the parties’ Joint Venture Agreement and dismissed Midnight Terror’s action against Winterland. In its analysis, the court concluded as follows:

The terms of §16 of the agreement are not unconscionable as defined in Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 341 (Ky.App. 2001) and (sic) therefore fully enforceable. A fundamental rule of contract law holds that, absent fraud in the inducement, a written agreement duly executed by the party to be held, who had an opportunity to read it, will be enforced according to its terms. Conseco at 341.

Forum selection clauses are presumed to be valid and enforceable in Kentucky unless the party opposing enforcement can demonstrate that circumstances render the clause unfair or unreasonable. Prezocki v. Bullock Garages, Inc., 938 S.W.2d 888 (Ky. 1997). In making this determination, the trial court must apply Kentucky law and consider a number of factors, including the following: the inconvenience to the parties, witnesses, and other access to proof created by holding the trial in the specified forum; the disparity of bargaining power that existed between the two parties at the time the contract was executed; and whether the state in which the incident occurred has at least a minimal interest in the action. Id. at 889.

We cannot grant the relief sought by either party. Instead, the trial court must conduct an evidentiary hearing, evaluate the proof in light of the relevant Prudential factors, and determine whether Midnight Terror has met its burden of demonstrating that the forum-selection clause should be set aside. See Wilder v. Absorption Corp., 107 S.W.3d 181 (Ky. 2003). Only then can the trial court properly evaluate Winterland’s motion to dismiss the action.

Consequently, we vacate the order of dismissal of the Jefferson Circuit Court and remand for additional proceedings. If, following the hearing, the trial court concludes that the forum-selection clause of the Joint Venture Agreement is unenforceable, the action filed by Midnight Terror should be permitted to proceed. If it concludes that the forum-selection clause is enforceable, it may re-issue an order dismissing.

1059.  CIVIL PROCEDURE.  AMENDING COMPLAINT AND RELATION BACK DOCTRINE. .  AFIRMING DISMISSAL PERS STATUTE OF LIMITIATIONS.}
MINIX (PANSY)
VS.
HOUCHENS FOOD GROUP, INC.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001893-MR
NOT TO BE PUBLISHED

MOORE, JUDGE: Pansy Minix appeals an order of the Boyd Circuit Court dismissing her negligence action against Houchens Food Group, Inc., on the basis of the statute of limitations. After careful review, we affirm.