Civil Law Decisions: Court of Appeals - Dec. 16, 2005

PUBLISHED.

BISCHOFF V. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT
CIVIL PROCEDURE - Demand for Jury Trial
2004-CA-002545
Not Published
VACATING AND REMANDING
PJ:SCHRODER
Date: 12/16/2005

The holding in Bischoff v. LJCMSD that jury trial was not waived by failure to make timely request was specific to eminent domain actions, where right to jury trial on damages is guaranteed by both Ky. Constitution and statute.

In the absence of a timely demand under 38.02 (in cases other than eminent domain or any other type of action in which the right to jury trial could be deemed automatic under the constitution or statute), the court still has discretion to allow trial by jury under 39.02.

[thanks to David Kramer for cleaning up my summary of this decision.  this posting now reflects entirely his comments!]

STATE AUTO MUT. INS. CO. V. GREENROSE
INSURANCE - Pollution Exclusion and broken basement pipe
2005-CA-000607
Not Published
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
PJ: DYCHE
Date: 12/16/2005

CA affirms in part, vacates in part, and reverses (Jefferson Cir. Ct., Hon. Martin F. McDonald, Judge, presiding).

Renter tripped in landlord's basement, dislodging an old diesel heating oil pipe and spilling old oil into the basement. Renter sued landlord for damage to his personal property; landlord sued carrier for coverage and a defense. Carrier had denied under a "pollution" exclusion. TC ordered coverage and attorney fees to landlord.

On appeal, CA holds that the exclusion is ambiguous as applied to the facts of the case, and affirms. CA vacates and remands attorney fee award because the record does not indicate the basis of such an award.

 

NOT PUBLISHED.

MARKOVICH V. FISCHER SINGLE FAMILY HOMES, LTD.
CIVIL PROCEDURE - Summary Judgment 
2004-CA-001793
Not Published 41 kb
Date: 12/16/2005

COA found no issue of material fact and affirmed summary judgment dismissing claim.

QUICK DELIVERY OF KYL. V. PAYLESS SHOE SOURCE, INC.
INDEMNITY -  Extent of agreement
2003-CA-001230
Not Published 66 kb
Date: 12/16/2005

This was an appeal of a summary judgment dismissing the plaintiff's claim that a genuine issue of material fact exists as to whether the indemnity provision of the contract intended to cover alleged negligence and cost of defense in a civil action solely against Payless on allegations of premise liability. Quick Delivery had agreed to deliver good to Payless Shoes Stores with an indemnity agreement regarding performance. One of the delivery men slipped and fell at a store and sued. Quick Delivery claimed the indemnity agreement applied, but the COA disagreed finding that “[A]n indemnity contract creates a direct, primary liability between the promissor and the promissee that is original and independent of any other obligation” In a contractual indemnity claim, an indemnitor’s liability “shall be determined by the provisions of the indemnity agreement itself.” This agreement did not cover the negligence from a slip and fall. Here is an extract of the indemnity agreement: You agree to indemnify, defend, and hold harmless from and against any and all claims (whether valid or not), losses, damages, liabilities, costs (including attorney’s fees), and expenses arising in any way out of your performance of this Agreement, including acts or failures to act of your employees and contractors, except that you are not responsible for damages caused solely by negligence or the willful conduct of Payless.

GRIMES V. SMITH
INSURANCE - Coverage (insured, member of household)
2004-CA-001756
Not Published 41 kb
Date: 12/16/2005

Daughter did not come within the definition of member of household for coverage under her mother's  homeowner's policy.

HARGROVE V. HALL
PROPERTY - Real Property Boundary Line Dispute (boundary by inaction)
2002-CA-002027
Not Published 75 kb
Date: 12/16/2005

The court applied the legal doctrine of “boundary by inaction” in determining that the fence line was the actual boundary between Dr. Hall and the Hargroves’ property.

Thanks to Chad Kessinger, Cherry Hennault, Mike Stevens, and John Hamlett for assisting in digesting our torts, insurance and procedure summaries.

Comments

[David Kramer]

Sorry to whip this horse again, but my prior post could use a footnote. In the absence of a timely demand under 38.02 (in cases other than eminent domain or any other type of action in which the right to jury trial could be deemed automatic under the constitution or statute), the court still has discretion to allow trial by jury under 39.02.

[David Kramer]

The holding in Bischoff v. LJCMSD that jury trial was not waived by failure to make timely request was specific to eminent domain actions, where right to jury trial on damages is guaranteed by both Ky. Constitution and statute.

KLB: Thanks for the additional info, and it was accordingly updated based on David's comment.