Civil Decisions: Court of Appeals - Jan. 13, 2006

CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Jan. 13, 2006

PUBLISHED:

COM. V. MORRIS
BOARD OF CLAIMS - Jurisdiction (settlement and release of employee)
2005-CA-000370
PUBLISHED   
REVERSING
BUCKINGHAM
DATE:  1/13/2006

A release of the tortfeasor (cabinet employees) for personal injuries constitutes a release of the government in a board of claims action.  The cabinet  was relieved of any liability in connection with the claims due to the claimants having executed releases to its employee, Lancaster. Citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67 (Ky.App. 1989).  The claimants’ settlements with Lancaster inured to the benefit of the employer, the Labor Cabinet, notwithstanding attempts by the claimants in their releases to reserve the right to file claims against the Labor Cabinet.

FORD V. RATLIFF
CIVIL - INSURANCE (Settlement, release, assignment)
2004-CA-000022 PUBLISHED 
AFFIRMING
VANMETER
DATE:  1/13/2006

CA affirms TC dismissal of direct action against insurance company, citing release of tortfeasor.

In this auto collision case, plaintiff settled with tortfeasor, signing a settlement agreement and release (in exchange for policy limits under a Kentucky Farm Bureau policy) that attempted to leave open the option to sue general liability insurer Scottsdale Insurance. An agreed order dismissing "any and all" claims against the tortfeasors, with prejudice, was entered. After, plaintiff amended complaint to include general liability carrier. Carrier moved to dismiss, arguing that, under Kentucky law, plaintiff must file against tortfeasor, not directly against his carrier. Plaintiff claimed he had an executed assignment of rights, but was unable to produce it. Plaintiff moved the court to require plaintiff to sign a new one, which it declined, citing the language of the agreement. Plaintiff cannot proceed against the insurer directly; dismissal affirmed.

NOT PUBLISHED:

GREENE V. CHIPPENDALE SQUARE ASSOCIATION, INC.
APPEALS - Timeliness (no extensions per CR 60.02 to set aside, etc.)
2004-CA-000202 NOT PUBLISHED 
DATE:  1/13/2006

CAs noted plaintiff was attempting to address issues in her 60.02 motion that could have been heard in earlier motion for summary judgment, which is impermissible under CR 73.02.  That rule states that parties may not resort to 60.02 to gain an additional extension of time to prevent the application of 73.02, i.e., 30 days to appeal from a judgment.  CAs also note that issues must be preserved for appellate consideration and that 60.02 rulings will not be disturbed unless clearly erroneous.

HUTCHISON V. COWAN
CIVIL PROCEDURE - Summary Judgment (opposing evidence)
2004-CA-002279 NOT PUBLISHED 
DATE:  1/13/2006

Wayne Circuit Court, Hon. Vernon Miniard, Jr.

 

Hutchinson appealed TC's entry of SJ in a dispute between abutting landowners over the location of the boundary line. North side of property was owned by Hutchinson while south side was owned by the Cowan's who had obtained the property through a foreclosure proceeding instituted by the bank against the prior owner (Hutchinson's son to whom the property had been deeded). As part of the sale, the bank had the parcel of property surveyed. This survey revealed a boundary line that was more favorable to the south parcel that the bank ultimately sold to the Cowan's.

 

The COA upheld the entry of SJ, finding that Hutchinson had failed to identify what evidence he could have provided that would arguably have required a trial. The boundary line contained in the deed granting the south property to the son made reference to the line as determined in an earlier lawsuit, but the TC found a lack of evidence to this effect and the COA agreed.

CASE V. ISRATEX, INC.
CONTRACTS - Failure of consideration
2004-CA-002095 NOT PUBLISHED 
DATE:  1/13/2006

The trial court did not  improperly grant partial summary judgment on the failure of consideration claim because of an improper reliance on the forcible detainer proceeding. In this case.  It is clear that the trial court did not rely on the prior proceeding so as to give it a res judicata effect, but merely reached the same conclusion that the November agreement constituted a sale.  Neither failure of consideration nor default upon review of the record. Summary judgment on this issue was proper.

PRESTON V. DEPT. OF VOCATIONAL REHAB.
EMPLOYMENT - Government
2004-CA-001716 NOT PUBLISHED 
DATE:  1/13/2006

Affirmed Kentucky Personnel Board's decision for suspension as applied the law correctly and substantial evidence to support decision.

LEWIS V. C & C ENTERPRISES
EVIDENCE - Res Ipsa Loquitor
2004-CA-001936 NOT PUBLISHED 
DATE:  1/13/2006

CA affirms jury verdict for the defense in this carnival ride negligence case. (Jefferson Cir. Ct., Hon. Geoffrey P. Morris, Judge, presiding).

Child's finger was severely injured on ride that had been cited as needed repair, but OK for operation. Appellants argue the TC erred in failing to instruct the jury on res ipsa loquitur per their tendered instruction. CA holds that, as res ipsa loquitur is an evidentiary doctrine creating a rebuttable presumption, appellants could request its application to avoid or win a directed verdict, but not to instruct the jury.

MOLLETT V. WRIGHT and GRANGE MUTUAL INS. CO.
INSURANCE - Coverage (underinsured motorist benefits, resident relative)
2004-CA-001797 NOT PUBLISHED 
DATE:  1/13/2006

Mother was driving son's car with permission when injured by third party.  Settled with tortfeasor  for policy limits and made claim for UIM against son's insurer (Grange).  Grange's definition of insured for UIM benefits was restrictive and only included "you or any family member", and family member must live in the household.  Since mother did not live with her son, the COA held the UIM coverage was not available to the mother.

Comment.  Looks like Grange is following a trend started by Safe Auto of including non-standard exclusions in policies.  Most ISO policies in Kentucky include UIM benefits for those occupying the car (insured's of the second class as referred to in many cases).  This case is not one of exclusion, but one of a restrictive inclusion such that there is no insureds of the second class.  Subtle changes in policy definitions which deny or limit coverage substantially (eg., stacking, single premium, motor cycles) from previous policies should require an affirmative notice by the insurer with a documented acknowledgement by the insured.  However, this stealthy change in expectations does not seem to require confirmation.  This is not published and not binding and not to be cited in any court in this commonwealth.  This panel consisted of Judges Combs, McAnulty, and Johnson.

WILLIAMS V. STURGEON
PROPERTY - Boundary Disputes (clearly erroneous rule)
2003-CA-002281 NOT PUBLISHED 
DATE:  1/13/2006

Neighboring property owners dispute.   Master Commissioner recommends a boundary line after evidentiary hearing and TC adopts.   Williams appeals claiming numerous errors.  In order to overturn verdict, appellant must prove that decision was clearly erroneous and not supported by substantial evidence. CA upholds TC ruling finding that the Master Commissioner relied on substantial evidence, noting that Sturgeon provided testimony from expert surveyor and Williams did not.

MAGINNIS V. COM.
TORTS - Immunity (judges)
2005-CA-000256
NOT PUBLISHED   
DATE:  1/13/2006

McGinnis complains only of actions taken by Judge Horne in his official capacity when the judge, sua sponte, researched his driving record and provided the jury with information showing that he had prior traffic offenses. This was noted as grounds for reversal in the circuit court opinion vacating and remanding the conviction. The COA dismissed the claims against the judge as a  judge is immune for personal liability for acts taken while he has jurisdiction over a case. Vaughn v. Webb, 911 S.W.2d 273, 275 (Ky.App. 1995). Even where such action may be contrary to law, judicial immunity still applies. City of Louisville v. Bergel, 610 S.W.2d 292, 293 (Ky. 1980).

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.