Oct. 5, 2012 Court of Appeals Minutes
Nos. 880-907 (18 decisions; 7  To Be Published)

The Court of Appeals addressed three decisions in the torts, insurance and civil procedure areas:

Heffron v.  Royalty Company was a published decision re policy interpretation and the applicability of single limit liability coverage;

Branham v. Rock, was not published with the COA taking a look at medical negligence instructions and expert disclosure issues within the context of a failure to diagnose case and Deutsch v. Schein;

Construction Machinery Co. v. Netherlands Ins. Co. was not published.  COA examined third party beneficiaries of contract (insurance policy) and applied donee, incidental and creditor beneficiary analysis.

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PUBLISHED DECISIONS OF COA:

882.  GOVERNMENT.  CERTIFICATE OF NEED FOR HEALTHCARE FACILITY DENIAL APPEALED.
BAPTIST CONVALESCENT CENTER, INC., ET AL
VS.
BOONESPRING TRANSITIONAL CARE CENTER, LLC, ET AL
REVERSING NO. 2010-CA-001466-MR, AFFIRMING NO. 2010-CA-001505-MR, REVERSING AND REMANDING APPEAL NO. 2011-CA-000049-MR AND CROSS-APPEAL NO. 2011-CA-000094-MR
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001466-MR
2010-CA-001505-MR
2011-CA-000049-MR
2011-CA-000094-MR
TO BE PUBLISHED
FRANKLIN

884.  FORECLOSURE.  SUMMARY JUDGEMENT PREMATURE, DISCOVERY.
CROUSHORE (PAUL), ET AL
VS.
BAC HOME LOANS SERVICING, L.P.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS)
2010-CA-001866-MR
TO BE PUBLISHED
BOONE

885. FORECLOSURE.
U.S. NATIONAL BANK ASSOCIATION AS SUCCESSOR IN INTEREST TO WACHOVIA CUSTODIAN FOR SASS MUNI V DTR
VS.
AMERICAN GENERAL HOME EQUITY, INC., ET AL
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002081-MR
2010-CA-002082-MR
TO BE PUBLISHED
JOHNSON

891. FAMILY LAW.  CUSTODY.
WETHINGTON (JAMES M.)
VS.
COFFEY (MELISSA ANN), ET AL
OPINION VACATING AND REMANDING
NICKELL (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2011-CA-000555-ME
TO BE PUBLISHED
GREEN

899. FAMILY LAW. DOMESTIC VIOLENCE ORDER DVO.
STINSON (STEPHEN)
VS.
STINSON (TRACY)
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2011-CA-001312-MR
TO BE PUBLISHED
BARREN

903.  INSURANCE COVERAGE.  POLICY INTERPRETATION.  SINGLE LIMITS LIABILITY.
HEFFRON (WILLIAM), ET AL
VS.
ROYALTY COMPANY, INC., D/B/A ALL AMERICAN TAXI, ET AL
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS IN RESULT ONLY)
2011-CA-001528-MR [LINK CORRECTED FROM MINUTES]
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: James W. Gardner, Michelle M. Gardner, Wilson A. Gardner, William Heffron, Lori Molenaar, Ellen Heffron, and State Farm Mutual Automobile Insurance Company, appeal from the Fayette Circuit Court’s July 25, 2011, declaratory/summary judgment1 finding only a single combined limit of $100,000 liability coverage for the Gateway Insurance Company endorsement issued to the Defendant taxicab company, Royalty Company, Inc., d/b/a All American Taxi Company. After careful review of the record and the parties’ arguments, we affirm.

This consolidated lawsuit arises from a motor vehicle accident that occurred on June 29, 2008, on Winchester Road in Lexington, Kentucky. Taxicab driver Karen J. Sterling (Sterling) had been waiting for fares on Vine Street and had taken a call from dispatch to pick up a fare at a motel located off Winchester Road. Sterling testified that as she proceeded out Winchester Road, she dozed off and when she woke up, she was unable to stop before impacting other vehicles stopped at a traffic light.

Because this case turns on the interpretation of the Royalty Policy and the subsequent Endorsement, additional facts about the insurance coverage requested by Royalty are helpful.

The coverage issue was briefed, and the trial court held a hearing on May 6, 2011. The trial court entered a declaratory order on July 25, 2011, holding that the Royalty Policy provided limits of $100,000 per accident regardless of the number of vehicles involved or the claims made. Thus, the limit of Gateway’s liability under the Royalty Policy was a combined single limit of $100,000 for all claims. The trial court also ordered and declared that the underinsured motorist coverage provided by Liberty is superior to or first in priority to the underinsured motorist coverage provided by State Farm. Finally, the trial court denied the Plaintiffs’ cross-motion for summary judgment. This appeal by State Farm and the individual plaintiffs (hereinafter the appellants) now follows. The remaining issue of damages has been stayed in the Fayette Circuit Court, by agreement of counsel, pending the decision on coverage presented in this appeal.

On appeal, the Plaintiffs argue that the Gateway Endorsement to the Royalty Policy provides $100,000 per person coverage rather than the combined single limit of $100,000. In the alternative, they argue that the Gateway Endorsement is ambiguous and the higher coverage must be afforded. Gateway counters both of these arguments, arguing that the Royalty Policy provides a single limit of $100,000 total per accident. Gateway argues that the Endorsement is not ambiguous, and when read in conjunction with the Royalty Policy, it is clear that the parties intended for Taxi #92 to be included on that policy with a single coverage limit of $100,000 per accident.

A review of the Endorsement indicates that under the coverages section, Bodily Injury Liability is marked $100,000 “each person” and immediately underneath that box, the box by “each accident” is blank. While the appellants argue that this creates an ambiguity in the policy, we agree with the trial court that no ambiguity exists. The evidence indicates that Chris Martha requested that Taxi #92 be added to the Royalty Policy. Gateway added Taxi #92 to the Royalty Policy, and neither party testifies that anyone ever had any intention of adding Taxi #92 to the Detroit/Coney Island Policy. Furthermore, a higher premium was charged for the two or three vehicles covered under the Detroit Coney Island Policy. There is nothing in the record to indicate that Royalty/American Taxi paid a higher premium for Taxi #92. When viewing the Royalty Policy as a whole, including the declarations and the Endorsement, it is not reasonable that Taxi #92 would be singled out of thirty other vehicles for higher coverage limits, despite the language indicating a combined single limit of $100,000.

905.  WORKERS COMPENSATION
ST. JOSEPH HOSPITAL
VS.
FRYE (ANGELA), ET AL
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2011-CA-001797-WC
TO BE PUBLISHED
WORKERS’ COMP

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

NONPUBLISHED:

886. MEDICAL NEGLIGENCE.  INSTRUCTIONS. FAILURE TO DIAGNOSE.
BRANHAM (IRA), INDIVIDUALLY, ET AL
VS.
ROCK (TROY C.), M.D., ET AL
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
2010-CA-002292-MR
2011-CA-000028-MR
NOT TO BE PUBLISHED
FAYETTE

ACREE, CHIEF JUDGE: Ira Branham appeals the Fayette Circuit Court’s November 29, 2010 judgment in favor of Appellees Troy C. Rock, M.D., Larry L. Britt, M.D., Calixto M. Pulmano, M.D., and Jason L. Keszler, D.O. (collectively the “Physician Appellees”); the judgment followed a six-day jury trial. Prior to trial, the circuit court dismissed Appellees University of Kentucky Medical Center (UKMC) and University Hospital at the Albert B. Chandler Medical Center (University Hospital) on sovereign immunity grounds. On appeal, Branham contends the circuit court committed numerous evidentiary errors, published improper jury instructions, and erroneously dismissed UKMC and University Hospital. Finding no error, we affirm.

The Physician Appellees cross-appeal the Fayette Circuit Court’s August 3, 2010 order prohibiting them from pursuing comparative fault defenses at trial. Because we have found no grounds warranting reversal of the judgment in favor of the Physician Appellees, the cross-appeal is denied as moot.

887. INSURANCE.  COVERAGE FOR CREDITOR, INCIDENTAL, AND DONEE BENEFICIARY EXAMINED
CONSTRUCTION MACHINERY COMPANY
VS.
THE NETHERLANDS INSURANCE COMPANY, ET AL
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS)
2011-CA-000188-MR
NOT TO BE PUBLISHED
JEFFERSON