PUBLISHED:
LEON MANUFACTURING CO. V. WILSON KUBOTA, LLC
CONTRACTS - Franchising Agreements
2004-CA-002256
PUBLISHED
REVERSING AND REMANDING (TAYLOR)
DATE: 2/17/2006
The CA overturned the Trial Court Judgment and found that under the law at the time of the contract there was no Franchise Agreement and thus the Defendant didn't have to repurchase snow blades.
CITIZENS BANK OF NORTHERN KENTUCKY, INC. V. PBNK, INC.
PROPERTY - LIENS (EQUITABLE; PRIORITY)
2004-CA-001351
PUBLISHED
AFFIRMING (MILLER)
DATE: 2/17/2006
It a general rule that where a mortgagor has previously disposed of property, his subsequent execution of a mortgage, the description of which included the land disposed of, does not create a lien upon it. Miller v. Williams, 137 S.W. 779 (1911).
GILLIAM V. PIKEVILLE UNITED METHODIST HOSPITAL OF KENTUCKY, INC.
TORTS - Defamation (elements of compensable damage, failure to prove and summary judgment)
2004-CA-001573
PUBLISHED
AFFIRMING (VANMETER)
DATE: 2/17/2006
Affirmed summary judgment to Pikeville United Methodist Hospital of Kentucky, Inc. (Hospital) and Danny Briscoe dismissing dismissed Gilliam’s complaint, which alleged that appellees made defamatory statements about him and breached a contractual duty of confidentiality by causing his personnel and employment records to be made public and cast in a false light because Gilliam could not establish damages in connection with the defamatory statements.
As Gilliam failed to identify compensable damages in his deposition testimony, he failed to meet this element of his defamation case. Furthermore, Gilliam’s failure to set forth his damages during his deposition constitutes a judicial admission which forecloses further dispute on the issue.
SEE: Kentucky Employment Law Blog Note addressing this decision - Ky. COA Affirms Dismissal Of Defamation Claim That Arose In The Context Of A Labor Dispute.
NOT PUBLISHED:
CHIARAMONTE V. SEXTON
APPEALS - Final and Appealable
2004-CA-002582
NOT PUBLISHED
DISMISSING (JOHNSON)
DATE: 2/17/2006
The CAs have jurisdiction only over final orders or judgments of circuit courts. Here, several parties were arguing as to whom should be considered a de facto custodian of an orphaned child. The trial court made a judgment on that issue and included within it the "magic" final and appealable language. CAs held that this language alone does not constitute finality, that the CA must determine for itself whether an order or judgment is truly ripe for review, and that the issue of custodianship was merely an intermediate issue ancillary to the parties' various custody claims. Appeal dismissed.
CIVIL PROCEDURE - Constitutional Challenges and notice to Attorney General
2004-CA-001178
NOT PUBLISHED / AFFIRMING (BUCKINGHAM)
DATE: 2/17/2006
KRS 418.075 mandates that in any proceeding involving the validity of a statute or the constitutional validity of a statute, the Attorney General shall be served with a copy of the petition and given an opportunity to be heard. Since the inmate who filed this petition for a declaration of rights failed to notice the AG, the CAs declined to rule on the constitutionality of the statutes he argued were not so.
WILLIAMS V. FARMERS INSURANCE EXCHANGE
INSURANCE - Exclusion (water damaged to house from ruptured liner)
2004-CA-002554
NOT PUBLISHED
AFFIRMING (TACKETT)
DATE: 2/17/2006
COA affirmed declaratory judgment action to determine whether homeowner’s insurance policy covered water damage to his house resulting from the rupture of a swimming pool liner. Homeowner contended the rupture should be regarded as a covered event, and thus the exclusion for water damage in the policy should not apply. COA disagreed.
MOTORISTS MUTUAL INS. CO. V. HOWARD
INSURANCE - Years of protracted litigation and estoppel to deny coverage risked punitives
TORTS - Insurance Bad Faith (punitive damages)
2004-CA-001174
NOT PUBLISHED / AFFIRMING (BARBER; W/JOHNSON FILING SEP. DISSENT)
DATE: 2/17/2006
CA affirms jury verdict in favor of insured in bad faith action. (Shelby Cir. Ct., Hon. William F. Stewart, judge, presiding).
The facts of the case date back to 1991. Insured's auto policy had lapsed for nonpayment. She sent a check on advice of her local agent, which was received and cashed. Insured assumed her policy was in effect. Some weeks later, insurer sent a refund check to the agent with a notice of no coverage; the insurer sent nothing to the insured. The agent forwarded the check and letter to the insured, but it was not received before an accident occurred. Insurer denied coverage and refused to cooperate with defense counsel for 6 years as the case wound its way through Kentucky courts. The S.Ct. ultimately held in 1997 that the insurer was estopped by its actions from denying coverage and that the insured was covered as a matter of law and that this decision bound all parties. The bad faith claim was remanded; a jury verdict of $425K was returned.
On appeal, insurer tried to argue the issue already decided by the S.Ct., i.e., that coverage existed. CA held that punitives and compensatories were properly claimed and awarded.
CAUDILL, DMD V. KENTUCKY BOARD OF DENTISTRY
PROFESSIONS - Dentists; Licensure (Alford plea constitutes criminal conviction)
2004-CA-001595
NOT PUBLISHED / AFFIRMING (VANMETER)
DATE: 2/17/2006
B450 PROPERTIES, LLC V. EAP CONCEPTS, INC.
PROPERTY - Rental Agreement
2004-CA-002229
NOT PUBLISHED
AFFIRMING (MINTON)
DATE: 2/17/2006
Stranger to lease not obligated to agreement he is not a party.
POIRIER, M.D. V. OUR LADY OF BELLEFONTE HOSPITAL, INC.
TORTS - Defenses (Immunity of members on hospital review board ); Findings of administrative review board
2004-CA-002335
NOT PUBLISHED
AFFIRMING (BARBER)
DATE: 2/17/2006
Affirmed trial court's dismissal of doctor's complaint against hospital peer review board. The law provides that members of a hospital review board are immune from claims for monetary damages by the Health Care Quality Improvement Act of 1986, 42 U.S.C Section 11111 if the action taken by the board is reasonable, and a fair hearing is provided to the affected physician. Meyers v. Columbia/HCA Health Care Corp., 341 F.3d 461 (6th Cir. 2003).
The findings of an administrative body cannot be set aside unless the evidence presented by the plaintiff is so persuasive that the determination must be made in favor of the plaintiff. Kentucky Unemployment Insurance Commission v. Murphy, 539 S.W.2d 293, 294 (Ky. 1976).
VANNOVER V. VANNOVER
WILLS, TRUSTS, AND PROBATE - Fraudulent transfers and survivor's marital rights
2004-CA-001475
NOT PUBLISHED / REVERSING AND REMANDING (EMBERTON)
DATE: 2/17/2006
Reversed and remanded lower court decision that certain transfers of funds by her husband shortly before his death did not constitute fraud on her dower interest in that property. The undisputed facts of this case fall within the purview of well-established caselaw holding that such transfers raise a rebuttable presumption of a fraud on the survivor’s marital rights. It is clear that the trial court failed to give effect to the long-standing law of this Commonwealth that the non-probate transfer of the bulk or a substantial portion of the spouse’s property, which has the effect of diminishing the surviving spouse’s share, raises a rebuttable presumption of fraud on the survivor’s marital rights.
Thanks to John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's CIVIL appellate decisions.
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