AUGUST 3, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:37)
PUBLISHED DECISIONS
- MANNING V. WILKINSON
CIVIL PROCEDURE: DISMISSAL FOR LACK OF PROSECUTION
2005-CA-002491
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; MOORE AND TAYLOR CONCUR
COUNTY: FAYETTE
DATE RENDERED: 8/3/2007This legal malpractice case, initiated in 1994, was thrice subjected to the trial court's sua sponte 77.02 notice to dismiss for lack of prosecution. After exercising an abundance of patience, the trial court dismissed the case without prejudice on the third go-around in 2005. On appeal from that ruling, the CAs discussed the two different rules, 77.02 and 41.02, by which courts may dismiss cases for lack of prosecution, noting that the former is a "housekeeping rule" that results in a dismissal without prejudice. Conversely, 41.02 dismissals operate to dismiss with prejudice and operate as an adjudication upon the merits.In making a 41.02 ruling, which effectively deprives a litigant of an opportunity to pursue a claim, the trial court is bound to consider the factors in Ward v. Housman, 809 S.W.2d 717 (Ky. App., 1991), and should only so rule in the most extreme cases. Both rulings are reviewed under an abuse of discretion standard, and the CAs noted that a 77.02 dismissal serves a different function than a 41.02 dismissal and has its own distinct requirements. After considering the facts of this case, the CA held that 77.02 dismissal was proper, in that no work had been done on the case for over ten years, despite the issuance of three separate 77.02 notices. It refused to consider the appellant's arguments concerning a years-old ruling granting partial summary judgment, stating that its determination that dismissal was proper rendered any prior rulings by the trial court moot.
Digested by Cherry Henault
NONPUBLISHED TORT DECISIONS THIS WEEK
- SAFE AUTO INS. CO. V. VANHOOSE
APPEALS: FINALITY LANGUAGE NOT DETERMINATIVE; INTELOCUTORY ORDERS
2006-CA-001932
NOT PUBLISHED: 85
DATE RENDERED: 8/3/2007ONE-MINUTE CLE:
The well-established rule under CR 56.03 is that the denial of a motion for summary judgment is interlocutory and not appealable. Ford Motor Credit Co. v. Hall, 879 S.W.2d 487 (Ky.App. 1994).
There is an exception to this general rule that applies where: "(1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom." Transportation Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d 36, 37 (Ky.App. 1988);
However, the exception does not apply herein because the trial court has never entered a final judgment. “A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.”2 CR 54.01.
The mere recitation of finality language will not make an order appealable when it is interlocutory by its very nature. Preferred Risk Mutual Insurance Co. v. Kentucky Farm Bureau Mutual Insurance Co., 872 S.W.2d 469 (Ky. 1994); see also Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978). CAUDIL V. THOMAS
APPEALS: TARDY NOTICE OF APPEAL; CR 60.01;
2006-CA-000644
NOT PUBLISHED: 90
DATE RENDERED: 8/3/2007NORTHERN KY ELECTRIC SERVICE, INC. V. STONE
BUSINESS LAW: COVENANT NOT TO COMPETE
2006-CA-000306
NOT PUBLISHED: 112
DATE RENDERED: 8/3/2007LUDWIG V. BOARD OF REGENTS
CIVIL: JURISDICTION (JUSTICIABILITY; STANDING; CASE OF CONTROVERSY)
2006-CA-001002
NOT PUBLISHED: 92
DATE RENDERED: 8/3/2007FYI: Here are some black letter rules that do not come up often. Consider this a short one-minute CLE -
In order to prosecute a claim, “a party must have a judicially recognizable interest in the subject matter of the suit.” Healthamerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 947 (Ky. 1985)
“An ‘actual controversy’ is not one which involves a question which is academic or hypothetical or which calls for nothing more than an advisory opinion. Rather, it is a controversy over present rights, duties, and liabilities [citations omitted].” Bischoff v. City of Newport, 733 S.W.2d 762, 764 (Ky.App. 1987).
Further, a court “‘will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered.’” Veith v. City of Louisville, 335 S.W.2d 295, 297 (Ky. 1962) (quoting Black v. Elkhorn Coal Corp., 233 Ky. 588, 26 S.W.2d 481, 483 (Ky. 1930)).HAMILTON V. SEARS
CIVIL PROCEDURE: SUMMARY JUDGMENT IN NEGLIGENCE CLAIM WITH DISCUSSION OF THE ELEMENTS
TORTS: DUTY TO SUMMON EMERGENCY MEDICAL AID?
2006-CA-001080
NOT PUBLISHED: 99
DATE RENDERED: 8/3/2007ONE-MINUTE CLE:
Under negligence law, in order to prevail the plaintiff must prove (1) the defendant owed him a duty of care, (2) a breach of that duty, and (3) a causal connection between the breach and the plaintiff's consequent injury.
The existence of a duty is a question of law, a duty voluntarily assumed cannot be carelessly abandoned without incurring liability for injury resulting from the abandonment.”
Assuming that there may arise circumstances when the duty would be imposed upon a host to summon emergency medical aid when a houseguest is in need of such aid, those circumstances are not present here.
The existence of a duty is a question of law, Lewis v. B & R Corporation, 56 S.W.3d at 438, and is accordingly reviewed de novo. Brewick v. Brewick, 121 S.W.3d 524, 526 (Ky.App. 2003).
"The most important factor in determining whether a duty exists is foreseeability." Pathways, Inc. v. Hammons, 113 S.W.3d at 89. Foreseeable risks are determined in part on what the defendant knew at the time of the alleged negligence. (Holding that liability for negligence is based on what the defendant was aware of at the time of the alleged negligent act and not on what the defendant should have known in hindsight); Pathways, Inc. v. Hammons, 113 S.W.3d at 90. Moreover, “a duty voluntarily assumed cannot be carelessly abandoned without incurring liability for injury resulting from the abandonment.” Johnson v. Brey, 438 S.W.2d 535, 536 (Ky. 1968).
Assuming that there may arise circumstances when the duty would be imposed upon a host to summon emergency medical aid when a houseguest is in need of such aid, those circumstances are not present here.Hamilton has failed to plead facts or adduce evidence through discovery that Seals was aware of his perilous brain injury during the relevant time and thus could foresee the need to summon medical aid.
KELLEY V. NATIONWIDE AUTO RESTORATION, LLC
JURISDICTION: CIVIL; DISTRICT COURT NOT HAVE EQUITABLE JURISDICTION
TORTS: ABANDONMENT OF PROPERTY AND OWNERSHIP
2006-CA-001343
NOT PUBLISHED: 89
DATE RENDERED: 8/3/2007ONE-MINUTE CLE:
District courts are prohibited from entertaining “matters of equity.” However, the Jefferson District Court did not violate this prohibition when it found that Kelley had abandoned the Jaguar parts at issue because in so ruling it did not exercise equitable powers.
“Abandonment” is the relinquishment of property with the intention of not reclaiming it or reassuming its ownership or enjoyment.More specifically, under Kentucky law abandonment consists of a voluntary relinquishment of possession along with an intent to repudiate ownership.
The intent to repudiate ownership may be inferred when the facts justify it, and the lapse of a long period of time following relinquishment of possession constitutes significant evidence of the intention to abandon property.
Equitable issues are clearly not triable by juries.
Property which is abandoned becomes subject to appropriation by the first taker or finder who reduces it to possession.H. (J.) V. COM.
EVIDENCE: OUT OF COURT SOCIAL WORKER'S STATEMENTS INADMISSIBILITY; RELAXED STANDARDS AT REMOVAL HEARING NOT APPLICABLE AT ADJUDICATION
CIVIL PROCEDURE: AVOWALS (WITHOUT ONE, NO WAY TO DETERMINE PROFFERED TESTIMONY)
2006-CA-002525
NOT PUBLISHED: 112
DATE RENDERED: 8/3/2007ALLIED COLLECTION SERVICES INC. V. BRYD
TORTS: CONSUMER; FEDERAL DEBT COLLECTION PRACTICE ACT
CIVIL: RULE 11 SANCTIONS
2006-CA-000420
NOT PUBLISHED: 90
DATE RENDERED: 8/3/2007CRAIG V. HITACHIE AUTOMOTIVE PRODUCTS USA
WORKERS COMP: ESTOPPEL AND APPLICABILITY OF UCSPA TO WORKERS COMPENSATION PER KRS 342.267
2007-CA-000139
NOT PUBLISHED: 100
DATE RENDERED: 8/3/2007
Adjuster had incorrectly advised claimant he had two years from termination date to file claim. When he did file claim, employer moved to dismiss as untimely and ALJ and WCB agreed. COA determined employer was equitably estopped to plea timeliness of filing and ruled UCSPA incorporated into workers comp via KRS 342.267.Estoppel is appropriate because Hitachi’s insurer, Liberty, violated regulations intended to promote the fair settlement of workers' compensation claims and because the violations led him to believe that his claim would be settled without litigation.
Agreeing with Craig that Liberty engaged in conduct proscribed as unfair claims settlement practices under Kentucky statutes and regulations, COA reversed and remanded so that Craig’s claim may proceed.
As Craig notes, KRS 342.267 incorporates within the Workers’ Compensation Act the provisions of KRS 304.12-230, which outlaws certain acts and omissions by insurers or their adjusters as “unfair claims settlement practice[s],” including the insurer’s “fail[ure] to affirm or deny coverage of claims within a reasonable time.” KRS 304.12-230(5).
Pursuant to those statutes and to KRS 342.260(1), the Department of Workers’ Claims promulgated 803 KAR 25:240, which imposes duties on workers’ compensation carriers with respect to the fair settlement of compensation claims.
Carriers are obliged to “diligently investigate a claim for facts warranting the extension or denial of benefits.” Section 4. They must “attempt in good faith to promptly pay a claim in which liability is clear.” Section 6. And, under Section 5 of 803 KAR 25:240:
The adjuster did not inform Craig that she needed additional information, nor did she thereafter provide him with written notice specifying reasons for denying his claim.
Clearly, the adjuster violated her statutory and regulatory duties (1) to inform Craig that additional information was needed to process his claim; (2) to affirm or deny his claim as soon as reasonably practicable; and (3) to provide written reasons for a denial if that was Liberty's position. Arguably she also failed to investigate the claim diligently, when she failed to follow-up her unanswered May 2005 letter to the surgeon, and perhaps, as Craig insists, she improperly denied Craig’s entire claim where at least some liability was reasonably clear.
As the Ky Supreme Court has observed, estoppel is an equitable remedy often invoked to prevent a party from benefiting from its own misconduct. Akers v. Pike County Board of Education, 171 S.W.3d 740 (Ky. 2005).
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