Kentucky

TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes for August 13, 2010 (Nos. 765-785)

By Michael Stevens

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:

COA 2010 Minutes for August 13, 2010 (Nos. 765-785)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Link to AOC Page with current minutes and archived minutes links
• Total number of decisions:  21
• Published Decisions:  2 (770; 781)

DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

PUBLISHED -------

770. Insurance.  Homeowners. Application of business pursuits exclusion relative to dog mauling on homebased day care centers premises.
HOLZKNECHT (SARAH) VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (CONCURS)
2009-CA-001022-MR
TO BE PUBLISHED
HARDIN

COMBS, JUDGE: This case involves a dispute as to coverage under a homeowner?s insurance policy. Sarah Holzknecht, as mother and next friend of Meghan Holzknecht, appeals from a summary judgment entered by the Hardin Circuit Court in favor of Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau). The trial court held that the policy was unambiguous in excluding coverage for injury arising out of an insured?s ?business pursuit.? The court concluded that the exclusion applied to bar coverage under the circumstances of this case, a result challenged by Holzknecht on appeal. In the alternative, Holzknecht contends that the exclusion clause is subject to the policy?s severability provision. After our review of counsels? arguments and the pertinent law, we affirm.

Sarah Holzknecht filed a complaint against the Mays and their homeowners? insurance carrier, Kentucky Farm Bureau Mutual Insurance Company.    Holzknecht alleged that the Mays were liable for their daughter?s injuries when a dog kept at their home-based childcare center mauled her. Holzknecht asserted that the Mays failed to exercise ordinary care for the safety of her child. Additionally, she argued that they were liable under the provisions of KRS 258.235(4), which provides that the keeper of a dog shall be responsible for the damage that it causes. Holzknecht alleged that since Meghan was under two years of age at the time of the attack, she was incapable of comparative negligence as a matter of law. Farm Bureau defended the action under a reservation of rights.

It is undisputed that a home day care business was being operated from the insured premises but that the Mays had informed Farm Bureau that there would be no business pursuits conducted on the premises. Because they had had previous experience with securing a home day care coverage endorsement, the Mays were aware that their homeowner?s policy lacked such an endorsement to secure added coverage for their business.

It is true that the Mays? liability did arise from their statutory duty as keepers of a dog. However, the policy expressly provides that the business pursuits exclusion is not limited to injuries resulting from an act or omission ?involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business(.)? Instead, the policy exclusion is much more broadly drafted to encompass injuries ?arising out of or in connection with a business engaged in by an insured.? We agree with the trial court?s observation as follows:

It should not be discounted that Holzknecht would not have been on this property and therefore not bitten by the dog were it not for the conduct of the day care business on the property. It is the increased risk associated with conducting such a business, including the presence of a number of children that calls for a specific rider or endorsement to provide appropriate commercial coverage.

NOTE:  This decision arose from a dog owned by the insured which mauled a child at the insured's day care business.  The insured contended that the dog was not related to the day care  business of the homeowner and thus should be covered.  KFBM contended the child would not have been on the homeowner's premises 'but for' the day care business. In holding the business pursuits exclusion applicable, it should also be noted that the following published decision addressing liability by the homeowner  under the 'dog bite' statute of KRS 258.235.(4) was applied in the 'companion' case.

781. Torts.  Dog bite statute and 'strict liability'.
MAY (JOHN DAVID), ET AL. VS.HOLZKNECHT (SARAH), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (CONCURS)
2009-CA-001905-MR
TO BE PUBLISHED
HARDIN

COMBS, JUDGE: Sherri May and John David May appeal from a partial summary judgment and a subsequent trial order and judgment of the Hardin Circuit Court in favor of Sarah Holzknecht, as mother and next friend of Meghan Holzknecht. The Mays contend that the trial court erred by concluding that they were strictly liable under the provisions of Kentucky Revised Statutes[s](KRS) 258.235(4), the dog-bite statute, by failing to direct a verdict in favor of John David May at trial, and by permitting the jury to award damages for future pain and suffering. After our review, we affirm.

KRS 258.235(4) provides that any dog owner (and every person who keeps or harbors the dog) ?whose dog is found to have caused damage to a person . . . shall be responsible for that damage.?2    The trial court did not interpret the provisions of KRS 258.235 to impose strict liability upon the keepers of dogs under all circumstances. In fact, the court specifically rejected this notion. However, from the undisputed facts of this case, the trial court concluded that the Mays, and the Mays alone, were liable for the damages caused by the dog that they kept. Again, neither Meghan, the victim, nor any intervening third party was at fault to arguably exculpate the Mays. Carmichal, 251 S.W.3d at 327.

None of the factors that might have absolved or limited the Mays? liability is involved in this case. There is no dispute that the Mays harbored the dog and that they knew or reasonably expected that the dog would have direct access to the children in their home, including Meghan Holzknecht. They had told Meghan?s mother that the dog would be kept outside ? contrary to actual practice. Under the circumstances, they violated their statutory duty to prevent the child from being mauled by the dog. Evidence of the dog?s temperament is irrelevant, and the child was not comparatively negligent; again, she was legally incapable of negligence in light of her tender years. See Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897 (1944) (a child under seven years of age is not chargeable with contributory negligence). No third party and no fortuitous circumstance existed to implicate any aspect of comparative negligence.

This case involves application of the statute to undisputed facts. Under these facts, the Mays were liable as the dog?s keepers for Meghan?s injuries as a matter of law, and the only question that remained was the extent of her damages.

Mays contend that John David May was entitled to a directed verdict since he did not operate the child care business, made no decisions with respect to Sherri?s care of the children, and was not even at home when the dog attacked Meghan. We disagree.
The Mays? argument wholly disregards the existence of KRS 258.235(4). As we have concluded, under the circumstances of this case, the Mays were liable as the dog?s keepers for Meghan?s injuries as a matter of law. Since the trial court granted Holzknecht?s motion for partial summary judgment, no evidence to prove John David?s negligence was introduced at trial, and none was necessary. John David?s liability does not arise from his activities at the home on the day that Meghan was mauled. Instead, under the undisputed facts of this case, he is liable by virtue of his status as keeper of the dog. John David fed, watered, and otherwise cared for the dog. As an owner of the home, he could have assured that the dog be kept outside or even removed from the premises. He knew or reasonably expected that the dog would likely have direct access to the children kept at his house, including Meghan. John David violated his statutory duty to prevent the child from being mauled by the dog, and he cannot claim the relief he seeks.

NOT TO BE PUBLISHED-----

767.  TORTS. JURY VERDICT. SUFFICIENCY OF EVIDENCE.
HARRELL (LEE ROY)
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND BUCKINGHAM (CONCURS)
2009-CA-000532-MR
2009-CA-000819-MR
NOT TO BE PUBLISHED
KNOX

KELLER, JUDGE: Lee Roy Harrell (Lee Roy) appeals from a Judgment of the Knox Circuit Court based upon a jury verdict in favor of State Farm Mutual Automobile Insurance Company (State Farm). Consolidated with that appeal is Louise?s Harrell (Louise) and Anna Harrell?s (Anna) appeal from an Order Granting Partial Summary Judgment in favor of Lee Roy. For the reasons set forth below, we affirm.

Although there was evidence to support each party?s position, when looking at the evidence as a whole, and in the light most favorable to State Farm, we believe the jury could reasonably have found that Lee Roy breached his duty to exercise ordinary care when he entered the intersection and that Clark did not. Gorman v. Hunt, 19 S.W.3d 662, 671 (Ky. 2000) (citing Lewis, 798 S.W.2d at 461)). Thus, we simply cannot conclude that the jury?s verdict was palpably and flagrantly against the weight of the evidence so as to be the result of passion or prejudice. Lewis, 798 S.W.2d at 462.

Having concluded that Louise?s and Anna?s deposition statements constituted judicial admissions, we turn to the question of whether Lee Roy was entitled to summary judgment. A judicial admission has a conclusive effect on the party who makes it that prevents that party from introducing further evidence to disprove or contradict the admitted fact. Zipperle v. Welsh, 352 S.W.2d 556 (Ky. 1962). In order to state a cause of action for negligence, a plaintiff must establish a duty on the part of the defendant, a breach of that duty, and a causal connection between the breach of the duty and the injury to the plaintiff. Lewis v. B&R Corp., 56 S.W.3d 432, 436-37 (Ky. App. 2001). The absence of any one of these three elements is fatal to a claim.

Louise?s and Anna?s statements that Lee Roy had the green light, proceeded at ten to fifteen miles per hour behind another vehicle when entering the intersection, and that they did not see Clark in the intersection prior to being hit by the vehicle Clark was driving, effectively negated any claim that Lee Roy breached his duty to handle his vehicle in a reasonable manner. Thus, there are no genuine issues of material fact and Lee Roy was entitled to judgment as a matter of law.

For the foregoing reasons, we affirm the Judgment of the Knox Circuit Court and its Order Granting Partial Summary Judgment.

768.  WORKERS COMPENSATION.  INDEPENDENT CONTRACTOR.
KC TRANSPORTATION, INC.
VS.
THOMPSON (BILLY), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND HARRIS (CONCURS)
2009-CA-000617-WC
NOT TO BE PUBLISHED
WORKERS' COMP

NICKELL, JUDGE: KC Transportation, Inc., has appealed from a decision of the Workers? Compensation Board affirming the award of benefits to Billy Thompson.  KC argues: (1) Thompson was an independent contractor and not its employee; (2) the Administrative Law Judge (ALJ) failed to make specific findings of fact; and (3) Thompson failed to establish work-related causation of his lower back injury. After reviewing the record and briefs, we affirm.

773. PREMISES LIABILITY. 'OPEN AND OBVIOUS' DANGER AND INVITEE.
LEWIS (PHILLIP)
VS.
FAULKNER REAL ESTATE CORPORATION , ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001224-MR
NOT TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: While walking his dog, Phillip Lewis was injured when he stepped into a hole on the retail property of Faulkner Real Estate Corporation, Central Retail, LLC, and Central Retail Outlot, LLC (hereinafter ?Faulkner?). Lewis appeals from the grant of Faulkner?s summary judgment motion wherein the
trial court determined, as a matter of law that he would be unable to prove that Faulkner breached a duty of care owed to him. After careful consideration, we affirm the decision of the trial court.

775. INSURANCE. DROP DOWN PROVISIONS OF LIABILITY POLICY FOR PERMISSIVE USER.
BIDWELL (DANIELLE N.)
VS.
SHELTER MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (DISSENTS AND FILES SEPARATE OPINION) AND HENRY (CONCURS)
2009-CA-001298-MR
NOT TO BE PUBLISHED
KENTON

THOMPSON, JUDGE: Danielle N. Bidwell appeals a summary judgment of the Kenton Circuit Court finding that a provision of a Shelter Mutual Insurance Company motor vehicle insurance policy purporting to limit coverage to the legal minimum coverage for permissive users of an insured vehicle is sufficiently conspicuous, plain and clear to be enforceable. We affirm.

780. WORKERS COMPENSATION Retaliatory Discharge
BIHL (JERRY)
VS.
GRIFFIN INDUSTRIES
OPINION AFFIRMING
HARRIS (PRESIDING JUDGE)
KELLER (CONCURS)(SENIOR STATUS JUDGE) AND THOMPSON (CONCURS)
2009-CA-001567-MR
NOT TO BE PUBLISHED
CAMPBELL

HARRIS, SENIOR JUDGE: This appeal is from the Campbell Circuit Court?s award of summary judgment to Griffin Industries on Jerry Bihl?s cause of action for workers? compensation retaliation. For the reasons stated herein, we affirm.

As a preliminary matter, Griffin argues that the Court should strike Bihl?s brief for failure to comply with Kentucky Civil Rule (CR) 76.12(8)(a). CR 76.12(8)(a) provides that ?[a] brief may be stricken for failure to comply with any substantial requirement of Rule 76.12.? Griffin argues that Bihl failed to support his statement of the case and argument sections with ?ample supportive references to the record? as required by CR 76.12(4)(c)(iv) and (v). We note that Bihl?s brief is devoid of specific references and citations to the record as required by the rules. Although noncompliance with the provisions of CR 76.12 is not automatically fatal to a party?s appeal, this Court would be well within its discretion to strike Bihl?s brief for these omissions. We decline to do so, however, and choose to address Bihl?s appeal on the merits.

784. WORKERS COMPENSATION
MAGOFFIN COUNTY BOARD OF EDUCATION
VS.
OWENS (DELORES), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-002128-WC
NOT TO BE PUBLISHED
WORKERS' COMP

NICKELL, JUDGE: The Magoffin County Board of Education (Magoffin) appeals from an opinion of the Workers? Compensation Board (Board) affirming the Administrative Law Judge?s (ALJ) opinion finding causation and ordering Magoffin to pay for Delores Owens?s total shoulder replacement surgery. On appeal, Magoffin claims the Board erred in affirming the ALJ?s decision because there was no objective medical proof of causation and two orthopaedic surgeons attributed Owens?s need for surgery to a preexisting condition rather than the workplace slip and fall. We disagree and affirm.

Full post as published by Kentucky Cases on August 15, 2010 (boomark / email).