Kentucky Court of Appeals - Unpublished
Sovereign Immunity - Sheriffs
Harlan County v. Browning, 2013 WL 657880 (Ky.App. February 22, 2013), motion for discretionary review denied February 12, 2014

This is a wrongful death case brought by the estate of Browning, who was murdered while a candidate for Harlan County Sheriff. Hall was a deputy at the time and was involved with the murder. The estate claimed that the sheriff at the time, Duff, was negligent with regard to the hiring, training and supervision of Hall. Duff claimed he was immune from suit in his official capacity. As a constitutional officer, the sheriff is entitled to immunity unless waived.

A sheriff's immunity is, however, waived by KRS 070.040, to the extent he is liable in his official capacity for the acts or omissions of his deputies. However, he retains immune in his official capacity for his own acts. The Court did not reach the issue of whether the sheriff was liable for the act of deputy Hall.

Kentucky Supreme Court
Defamation - Privilege Judicial
Stilger v. Flint, 391 S.W.3d 751, 2013 WL 646169 (Ky. February 21, 2013)

Flint was a condominium owner who became suspicious that association funds were being misappropriated and requested access to the books. Stilger, as attorney for the association, advised Flint that his request was unreasonable. Flint wrote to the attorney general's office asking that the office prosecute his claim. Stilger responded by letter to the attorney general's office, and included in his response some unflattering observations about Flint. Flint filed suit alleging libel, and the trial Court dismissed the claims on the ground that the publication was absolutely privileged.

The Court held that it was error for the trial Court to have treated the response as being part of a judicial proceeding. Instead, the response was to be treated as a report to law enforcement, which enjoys only a qualified privilege. The Court reversed, and did not address whether the qualified privilege protected Stilger.

Kentucky Supreme Court
Arbitration - FAA Agreements do not Require In-State Proceedings
MHC Kenworth - Knoxville/Nashville v. M & H Trucking, LLC, 392 S.W.3d 903, 2013 WL 646250 (Ky. February 21, 2013)

The Alley Cat requirement that the arbitration agreement require that the arbitration occur within Kentucky does not apply to an arbitration provision which is based on the federal Act.

Kentucky Court of Appeals
Premises - Recreational Use Statute
Roach v. Hedges, ___ S.W.3d ___, 2013 WL 562877 (Ky.App. February 15, 2013), motion for discretionary review denied February 12, 2014

The plaintiff was making use of a playground, after school hours, with his minor daughter when a swing gave way and he fell, injuring his ankle. The playground was on the premises of the Alfred Binet School, which shared a premises with Seneca High School. The defendants were employees of the schools.

The Court held that the defendants were entitled to the immunities provided by KRS 411.190, known as the Recreational Use Statute. While the statute applies to an owner, the term owner is broadly defined to include, among other entities, a person in control of the premises. Since each defendant's liability, if any, was directly related to his or her employment and the control afforded thereby, they were held to be within the definition of owner and were entitled to the protections of the statute.

Kentucky Court of Appeals - Unpublished
Arbitration - Authority to Agree
Kindred Hospitals Limited Partnership v. Clark, 2013 WL 593883 (Ky.App. February 15, 2013)

This was another nursing home case, and the arbitration agreements were included in the admission paperwork. The paperwork was not signed by the patient, but by a person who was authorized to act as a medical surrogate. The Court found that the arbitration agreement was invalid.

Kentucky Court of Appeals
Insurance - Employer Liability Exclusion
Pryor v. Colony Insurance, ___ S.W.3d ___, 2013 WL 386880 (Ky.App. February 1, 2013), motion for discretionary review denied December 11, 2013 (2013-SC-144-D).

The plaintiff's decedent was hauling lumber for Colony's insured (Newcastle) when a skidder rolled over on him, killing him. He was not an employee in the traditional sense of the word. The CGL policy contained a standard employer liability exclusion, but also contained a "contractors coverage limitations" endorsement broadening that exclusion. That endorsement excluded bodily injury to an employee or temporary worker while performing duties relating to the conduct of the insured business. The exclusion also defined the term temporary worker as a person furnished to the insured, who is a short term worker, or who is not an employee or volunteer worker. The Court held that the exclusion clearly applied.

Kentucky Court of Appeals
Insurance - Bad Faith - UCSPA
Pryor v. Colony Insurance, ___ S.W.3d ___, 2013 WL 386880 (Ky.App. February 1, 2013), motion for discretionary review denied December 11, 2013 (2013-SC-144-D).

A third party claimant sought to use the Unfair Claims Settlement Practices Act to determine coverage where a direct action could not be brought. The idea is that since the existence of coverage is an essential element, the UCSPA allows a claimant to establish coverage in this fashion. This panel held, however, that a claim under the UCSPA cannot be brought until coverage is either established or is not contested. While this makes sense, it is not so clear that the Kentucky Supreme Court will agree, so this case bears watching.

Kentucky Court of Appeals
Employment - Retaliation
University of Louisville Athletic Association, Inc. v. Banker, ___ S.W.3d ___, 2013 WL 375496 (Ky.App. February 1, 2013), motion for discretionary review granted November 21, 2013 (2013-SC-108-DG).

Banker was hired under a one-year contract as an assistant track and field coach, which ended on June 30, 2008. The contract included a provision requiring notice of renewal before April 30, 2008. On April 22, 2008, banker made an oral complaint to human resources that she had been subject to gender and sexual discrimination. On May 15, 2008, Banker was given notice of the decision to non-renew her contract. Banker filed suit claiming both discrimination and retaliatory discharge under the Kentucky Civil Rights Act. The jury found for the employer on the discrimination claim but made an award for retaliatory discharge.

The employer challenged the jury finding as to causal connection between the oral complaint and the decision to non-renew. The defense offered proof, uncontroverted by the employee, that concerns about banker's performance had been raised at a strategy meeting between the coach and assistant athletic director on April 16, 2008, a week before the complaint. There was testimony that the decision to non-renew was made that day, but notice was withheld due to an upcoming conference championship to following month.

The Court found the United States Supreme Court decision in Clark County School District v. Breeden, 532 U.S. 268, 121 S.Ct. 1508 (2001) to be controlling. In that case, the Court held that no causal connection could be implied where the employer was contemplating the adverse action prior to her taking the protected action. The Court of Appeals noted that Breeden did not require that the decision had been finally made when the protected action occurred, but only that it was contemplated. Accordingly, the employee had failed to make out a prima facie case and the retaliation claim should have been dismissed.

Kentucky Court of Appeals - Unpublished
Sovereign Immunity - Waiver by Statute
Knott County Fiscal Court v. Amburgey, 2013 WL 375484 (Ky.App. February 1, 2013), petition for rehearing denied July 14, 2013, motion for discretionary review denied June 11, 2014 (2013-SC-563-D)

This suit was brought against the Knott county Fiscal Court alleging that its employees failed to remove mud and debris from the roadway, which was alleged to have caused a one car accident. The county filed a motion for summary judgment asserting sovereign immunity, which was overruled. The trial Court held that the legislature had waived sovereign immunity to the extent of insurance procured by enacting KRS 67.180. The county brought an interlocutory appeal.

While the legislature did make a waiver by enacting KRS 67.180, it is a limited waiver, and applies to a suit against the county for damages arising out of an automobile accident. The Court concluded that this waiver extends to automobile accidents involving county vehicles. Since a county vehicle played no role in the accident, the Court held the county was protected by sovereign immunity.

Kentucky Court of Appeals
Small Claims Court - No Proof Needed
Northern Tool & Equipment v. Durbin, 392 S.W.3d 424, 2013 WL 375476 (Ky.App. February 1, 2013)

Plaintiff purchased a generator from defendant and installed it. It caught fire two to three months later. The defendant took the generator back and returned the purchase price. Plaintiff nonetheless filed a small claims complaint claiming some property damage to his mobile home and the credit card interest incurred on the purchase. No proof was offered as tot eh cause of the fire, but the trial judge found against the defendant because new generators don't usually catch on fire. The Court of Appeals affirmed this result on the ground that evidentiary and procedural rules are relaxed in small claims court. This opinion suspends the essence of due process, however, by holding that a defendant can be deprived of its property on not much more than a whim. Based on this case, any defendant sued in small claims court should request a jury trial and put the plaintiff to his proof. Apparently small claims court is designed to provide equity only to plaintiffs.