Civil Decisions: Court of Appeals - Jan. 6, 2006

CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Jan. 6, 2006

PUBLISHED DECISIONS.

COMBS V. ALBERT KAHN & ASSOCIATES, INC.
CIVIL PROCEDURE - Statute of limitations (asbestos)
2004-CA-002178
Published  Affirming
Minton
Date: 1/6/2006

Combs appeals the TC's grant of SJ to Defendants, Albert Kahn and Turner Construction, due to expiration of statute of limitations. Combs had worked at GE's Appliance Park from 1973 to 1999, and was diagnosed with asbestosis in January 2000. He filed suit on July 27, 2000, alleging he was exposed to asbestos products at the Park and named a number of manufacturers and distributors as defendants. After being diagnosed with lung cancer in March 2003, Combs sought to amend his Complaint in April 2003 to add this to his personal injury claim and at the same time sought to add 2 new defendants, Kahn and Turner. Kahn was the architectural firm that designed the Park while Turner was a general contractor during the Park's initial construction. His claims against these defendants were that they negligently specified the use of asbestos products and/or failed to warn workers at the Park of such products' use. After allowing the amendment, the TC agreed with Kahn and Turner that Combs' cause of action against them began to accrue when he was diagnosed with asbestosis in January 2000, and that a 1-year SOL governed his claims.

 

Held: COA agreed with TC that 1-year SOL (KRS 413.140(1)) governed Combs' asbestos-related claims against Kahn and Turner. The COA dismissed the argument that these claims "related back" to the original, timely claims filed against the manufacturer and distributor defendants, as both Kahn and Turner were newly-added defendants not connected with the original defendants. As to when the cause of action began to accrue, the COA also agreed with the TC that January 2000 was the magic date. The COA reasoned that under the discovery rule, Combs first should have discovered that injury occurred from his asbestos exposure in January 2000, and it made no difference that the extent of the injury at that time (asbestosis) is not identical to the ultimate injury for which Combs seeks recovery from Kahn and Turner (lung cancer).  Combs need not fully appreciate the extent of the injury in order for a cause of action to begin to accrue, but rather only that some degree of injury has occurred. The COA recognized the application of this principle to asbestos exposure cases even though asbestosis and lung cancer are separate and distinct diseases that do not necessarily flow from one another. In this regard, Kentucky is a "one-disease" state where the first manifestation of an injury caused by toxic exposure begins a single statutory period rather than a "two-disease" state where a new cause of action accrues with each separate injury discovered. 

 

Among equitable considerations in upholding the TC's ruling, the COA noted that Combs was well aware of his increased risk of developing lung cancer upon being diagnosed with asbestosis, as this was specifically alleged in his original Complaint filed in July 2000. The COA also rejected Combs' argument that the cause of action against Kahn and Turner began to accure on July 19, 2002, the date Combs first learned of these defendants' involvement in the Park's construction, noting that Combs had offered no explanation why this information could not have been learned earlier if reasonable diligence had been employed.

DAVIS  V. DEPT. OF REVENUE OF THE FINANCE AND ADMINISTRATION CAB.
REVENUE AND TAXATION - Out of state bonds and taxability
2004-CA-001940
Published
MINTON - VACATING AND REMANDING
Date: 1/6/2006

Held Kentucky’s tax on the income derived from bonds issued outside Kentucky violates the Commerce Clause of the United States Constitution.

NOT PUBLISHED:

DARPEL V. ARNZEN
CIVIL PROCEDURE - Judgment Nunc Pro Tunc
2003-CA-001411
Not to be Published   
Date: 1/6/2006

Darpel, executor of wife's estate, appealed TC's judgment ordering partition of property held jointly by husband and wife, argung that dissolution decree could not affect wife's right to entire property upon her husband's death, which occurred prior to entry of the decree. While COA agreed with executor's argument, it held that the procedural posture of the case precluded granting him any effective remedy, and therefore affirmed the TC's judgment. The COA questioned the TC's entry of a decree nunc pro tunc, which is designed to record some act of the TC done at a former time that was not carrier into the record rather than to placing into record evidence of judical action that was not actually taken. The COA also noted that this rule cannot be used to enter an order that the TC might or should have made at some earlier time. The TC had held that the entry of the decree operated to terminate the survivorship rights of the wife by deed prior to her husband's death. The COA held, however, that the decree could not divest the wife of her interest in the property that immediately passed to her at the time of her husband's death. Procedurally, the dissolution judgment was now final and the property had already been partitioned and sold with the assets distributed. Thus, the COA was forced to affirm the TC's judgment even though the TC had improperly determined the legal effect of the entry of the dissolution decree.

EASTERN CRANE INC. V. KENTUCKY POWER CO.
CIVIL PROCEDURE - Dismissal for failure to prosecute
2004-CA-001676
Not to be Published
Date: 1/6/2006

CA held no abuse of discretion in trial court's grant of defendant's motion to dismiss for failure to prosecute under CR 41.02(1). CA's standard of review for such a decision is whether the trial court acted arbitrarily, unreasonably, unfairly or without sound legal principles.  Facts of the case revealed that the guidelines in Ward v. Housman, 809 S.W.2d 717 (Ky. App., 1991), which have been listed in the LawWire previously, warranted dismissal.

FOX V . FERNIHOUGH
CIVIL PROCEDURE - Pleadings (amendments, relating back, new parties, and statute of limitations)
2004-CA-001976
Not to be Published 
Date: 1/6/2006

Ron and Josh had an auto accident.  The last day of BRB payments was 1/14/02.  Ron sued Josh's dad Mark on 1/5/04, incorrectly alleging that JOSH, not Mark, was the father and owner of the car.  Mark was an out-of-state resident and was properly served by Ron's serving the KY Sec'y of State.  On 2/13/04, Ron moved to file an amended complaint naming Josh as a defendant.  Josh filed an answer and, later, a motion for summary judgment, arguing the amended complaint fell outside the two year SOL in KRS 304.39-230 and that the amended complaint did not "relate back" under CR 15.03.  The trial court granted summary, and this appeal followed.

 

The CA, noting the amended complaint definitely fell outside the 2 year SOL, looked to determine whether CR 15.03(2)'s notice requirement was satisfied:  an amended complaint adding a party only relates back if the new party received notice of the action within the SOL and knew or should have known of the action but for a mistake in identity of the proper party.  Here, Josh filed an affidavit stating he knew nothing of the action under 2/24/04, undisputed evidence that he had no actual notice of the suit.  Ron countered that actual notice is not necessary.  Halderman v. Sanderson Forklifts Co., Ltd., 818 S.W.2d 270, 273 (Ky. App., 1991), holds that the notice requirement can be satisfied by "actual, informal, imputed, constructive or a combination thereof, within the limitations period."  The trial court declined to find, and the CAs agreed, that the familial relationship between father and son, nor the alleged "business relationship, as owner and permitted driver" sufficed to impute notice.  Nor did the fact that Ron sent a courtesy copy of the amended complaint to Mark's insurance company, which was not a named party, suffice to impute notice to Josh of the suit.  See Gailor v. Alsabi, 990 S.W.2d 597 (Ky., 1999).   

 

CRAWFORD V. NATIONAL CITY BANK OF KENTUCY
CIVIL PROCEDURE - Law of Case
2005-CA-000247
Not to be Published 
Date: 1/6/2006

This was a pro se appeal of a foreclosure and eviction action by Marilyn W. Crawford.  Her first appeal of the lower court's decision was dismissed as untimely, and when the lower court began the eviction proceedings, she filed a second appeal.  The COA noted her status as a pro se litigant, but nonetheless dismissed the appeal noting  that as a result of the opinion and order entered by this Court in the earlier appeal, it was precluded by the law of the case doctrine from reviewing these issues in this subsequent appeal. See Grazini v. Ambrose, 201 Ky. 466, 257 S.W. 21 (1923).

JACKSON V. KY TRANSPORTATION CABINET
EMPLOYMENT LAW -  Resignations
2004-CA-001897
Not to be Published   
Date: 1/6/2006

This appeal stems from a Personnel Board (Board) action involving Steven Jackson (Jackson), and the Transportation Cabinet (Cabinet). Jackson’s employment with the Cabinet ended on July 25, 2001 after twelve years of service. The events leading up to and including July 25, 2001 are in dispute between the parties.

Jackson was issued a letter of suspension dated June 11, 2001 that stated his fifteen-day suspension was to begin June 12, 2001 and end on July 4, 2001.2 Jackson had been suspended on three prior occasions that year and was familiar with the procedure of returning to work at the end of a suspension.

The hearing officer concluded that Jackson’s July 25, 2005 resignation was moot because he could not resign from a position from which he had already been terminated. The finding by the Board that it was the intention of the Cabinet for its resignation to be effective at the close of business July 25, 2001 is not supported by substantial evidence. There was no testimony on this issue received from any witness.

A resignation pursuant to 101 KAR 2:102, Section 9(3) constitutes a penalization requiring appropriate notice be given to the employee in accordance with KRS 18A.095(9). The Board that the Cabinet’s July 25, 2001 letter failed to meet the requirements of KRS 18A.095(9).

MILLER V. CITY OF ANCHORAGE
PROPERTY - Arbitration Dispute Over Real Property (boundary line dispute)
2004-CA-000702
Not to be Published 
Date: 1/6/2006

The Millers make a convoluted argument on appeal, including that the award was obtained by fraud and that it violates public policy, and should therefore be vacated. Anchorage responds that the Millers are not entitled to relief on the grounds they claim, because the applicable statutes do not authorize setting aside an arbitration award for those reasons. The reasons alleged that are specifically authorized grounds for setting aside a reward, Anchorage argues, are not supported by the record. After a review of the record, the COA affirmed the circuit court’s decision.  The Uniform Arbitration Act provides no remedy for a violation of the deadline, and so the court made a determination that no prejudice to the Millers resulted. It was correct to do so, and that the Millers’ objection is a technical one only, which should not result in setting aside the order.

CORNETT V. EVERAGE
PROPERTY - Real Estate (Surface Rights and Mineral Rights)
2004-CA-002338
Not to be Published 
Date: 1/6/2006

COA affirmed as the trial court’s findings of fact are supported by substantial evidence.  Earlier in the proceedings the lower court had determined ownership of the surface rights, and the Cornetts did not dispute that the Everages owned the surface. The Cornetts dispute the mineral rights.  However, the Everages chain of title for the minerals is the same chain of title for the surface. The Cornetts have produced no probative evidence to challenge the Everage’s chain of title or establish that the two estates were ever severed.

PYLES V. WOODS
TORTS - Premises Liability (duties to invitees and dangerous conditions)
2004-CA-001872
Not to be Published 
Date: 1/6/2006

This is an appeal from a summary judgment granted to the Doll family in a civil action stemming from injuries Pyles received when he fell through a decayed hayloft floor in the Doll family’s barn. Held that the Doll family did not breach any duty owed to Pyles, and affirmed the dismissal.

The Doll family did not argue that Pyles was a trespasser into the barn loft. While general negligence law requires the existence of a duty, premises liability law supplies the nature and scope of that duty when dealing with injuries on realty. Thus, the duty the Doll family owed to Pyles is dependent upon the status Pyles occupied as invitee, licensee, or tenant at the time he climbed into the hayloft.

Accordingly, much of the litigation below and the arguments made on appeal concern Pyles’s status at the time of the accident. Pyles argues that he was an invitee at the time of the accident, whereas the Doll family contends that, at best, Pyles was a licensee or a tenant.

Under common law premises liability principles, the duty owed by the premises owner to an invitee is a general duty to exercise ordinary care to keep the premises in a reasonably safe condition and to warn invitees of dangers that are latent, unknown, or not obvious. The owner’s duty to invitees is to discover the existence of dangerous conditions on premises and either correct them or warn of them.

Thanks to  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger,  Stephen Keller,  Paul C. O'Bryan, Bryan Pierce,  Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's CIVIL appellate decisions.