Ky. Decisions: Published Court of Appeals for Nov. 23, 2005

MINUTES for Nov. 23, 2005

PUBLISHED DECISIONS OF KENTUCKY COURT OF APPEALS FOR Nov. 23, 2005

C. (C.M.)  V. W. (A.L.)
APPEALS - Adoptions vs. Involuntary Terminations
2004-CA-002015
Published
MINTON
AFFIRMING
Date: 11/23/2005

Although statutory prohibition against appeals from orders terminating involuntary terminations of parental rights, there is a conflicting but more specific statute allowing appeals from adoptions which must prevail so that the appeal may proceed.

DOALL LOUISVILLE CO. V. FERRANTE
CIVIL PROCEDURE - Penalties (Appeal)
2001-CA-000848
Not to be Published 
On remand from S. Ct.
Date: 11/23/2005

This matter was on remand from the Kentucky Supreme Court per The Elk Horn Coal Corporation, where the Supreme Court held that KRS 26A.300 is unconstitutional because it denies equal protection in violation of both the Kentucky and Federal Constitutions and the separation of powers provisions of the Kentucky Constitution.  COA reconsidered its prior opinion and now conclude that the imposition of the penalty must be vacated. The judgment of the Jefferson Circuit Court imposing a penalty under KRS 26A.300 is vacated.

UNITED STRUCTURAL SYSTEMS, LTD. V. ERI FALLS, INC.
TORTS - Indemntiy
2004-CA-002103
Published 
COMBS
VACATING AND REMANDING
Date: 11/23/2005

Claim for indemnity for negligent construction was premature until the alleged negligence was determined to be the proximate or contributing of the plaintiff's fall.  Accordingly summary judgment premature and inappropriate and the matter is remanded for a determination of the questions of fact pertaining to the causation of the accident.

Comment.  This presents an interesting aside in the context of the KFBM v. Ryan case decided by the Supreme Court this week which permitted an apportionment third party complaint against an unknown motorcyclist.  The heart of a third party claim in a negligence claim is usually alleged as contribution (now dead in the era of comparative negligence) or apportionment (a legal conclusion rather than a cause of action) such that why not move to dismiss the third party cause of action for failure to state a cause of action or not ripe (premature) until the determination of liability is made against the third party plaintiff.

SMITH V. HODGES
TORTS - Defenses (Absolute and qualified privilege, defamation)
2005-CA-000057
Published 
GUIDUGLI
AFFIRMING
Date: 11/23/2005

This case involved the application of the absolute privilege afforded to defamatory statements made by a witness in the course of a judicial proceeding.  A customer had sued Bob Smith dealership claiming  violation of Fair Credit Reporting Act as well as accessing his credit report during a dispute between the parties.  Bob Smith's former finance manager made statements during those proceedings as a witness that Smith found slanderous and sued over in this action. It was this second case that was the subject of this appeal for which COA found Kentucky still follows the American Rule and that the statements at issue were relevant and pertinent to the subject of inquiry and therefor absolutely privileged.

“The prevailing rule and the one recognized in this jurisdiction is is that statements in pleadings filed in judicial proceedings are absolutely privileged when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice.” Schmitt, 163 S.W.3d at 283 (citations omitted).

“On the other hand, statements which are not pertinent and material are only qualifiedly privileged, and immunity from the legal consequences of their being libelous depends on their being made in good faith.

Thanks to Scott Byrd, Patrick Bouldin,  Reed Ennis, John Hamlett, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Bryan Pierce, Richard Schiller, Paul Schurman, and James Worthington for their efforts in digesting Kentucky's appellate decisions.