The Court of Appeals posted 20 decisions on Feb. 24, 2017, numbered 186 – 205 with 3 decisions designated for publication.
196. UPS appealed and lost OSHA finding
Secretary of Labor, Commonwealth of Kentucky v. United Parcel Service, Inc.
Court of Appeals Published Opinion AFFIRMING – Franklin
197. Insurance. Reversed trial court judge (Mitch Perry) order granting insurance company request for pre-litigation depositions for abuse of discretion
Bryant v. Allstate Indemnity Co.
Court of Appeals Published Opinion REVERSING – Jefferson
Gary Bryant and Erica Brown appeal the Jefferson Circuit Court order compelling them to participate in pre-litigation depositions and produce documents to Allstate Property and Casualty Company1 (“Allstate”). Allstate filed the motion under Kentucky Civil Rules (CR) 27.01, which allows the taking of pre-action depositions and production of documents. Bryant and Brown maintain the trial court improperly granted the insurance company’s motion for pre-litigation depositions. After careful consideration, we reverse the trial court’s decision.
It is well-established that the “test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Kaminski v. Bremner, Inc., 281 S.W.3d 298, 304 (Ky. App. 2009)(citations omitted). Here, we hold that the trial court did abuse its discretion for not following the strictures of the civil rule. In particular, the trial court granted the petition without ascertaining whether Allstate had a cognizable action against Bryant and Brown; without determining whether any testimony was in danger of being lost, and thus, needed perpetuation pre-action; without insisting that the petition be verified; by granting the petition prior to notice being served on the adverse party; and finally, by its failure to decide whether a hearing was necessary.
202. Family Law. Award of sole custody remanding for further proceedings
Barney v. Bingham
Court of Appeals Published Opinion VACATING and REMANDING – Estill
Selected not to be published decisions – torts, insurance and civil:
188. Medical malpractice, colonoscopy.
Ida Arnold v. Jewish Hospital & St. Mary’s Healthcare, Inc.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson
193. UIM Coverage Question on insured and loss of parental consortium claim
Hetter v. State Farm Mutual Automobile Ins. Co.
COA Not to Be Published Opinion
While Mariah is an insured under the above policy language, Mariah is not claiming that she suffered bodily injury due to a motor vehicle accident. Rather, Mariah is claiming loss of parental consortium as the result of her father’s death in the motorcycle accident. It is well-understood in Kentucky jurisprudence that a loss of consortium claim is a derivative claim. Daley v. Reed, 87 S.W.3d 247 (Ky. 2002). As a derivative claim, Mariah’s right to recover arises out of and is dependent upon Jason’s right to recover. Jason is not an insured under the plain provisions of the motor vehicle insurance policy issued by State Farm to Thelma nor was he driving or occupying a covered motor vehicle per said policy at the time of his fatal accident. Accordingly, Jason has no legal right to recover damages of any kind under the motor vehicle insurance policy issued by State Farm to Thelma. As a result, Mariah, likewise, is not entitled to recover for loss of parental consortium under said policy.
199. Award of punitive damages affirmed on appeal.
Mercer v. Estate of John W. Dempster
COA Not to Be Published Opinion AFFIRMING – Hardin
All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority. See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)
You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
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