JUNE 15, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:29)
Summary of this week - Nos. 630 - 650; 21 decisions rendered with two published, and 5 reversed, remanded or vacated. Two earlier published decisions were modified this week.
PUBLISHED (COA).
PENNINGTON V. MEDWESTVACO CORP.This is a premises liability tort case which attempts to use the Kentucky Occupational Health and Safety guidelines to hold a premises owner liable to third party invitees, in this case Pennington, who was an employee of a contractor performing repairs at Midwestvaco. The Court held that Midwestvaco was not Pennington’s employer, and therefore OSHA standards did not apply to its duties to Pennington. The Court upheld the trial Court’s dismissal on summary judgment because Pennington was warned of the danger on Midewesvaco’s premises.
By
Peter Naake.
Two residential subdivision the developers sought declaratory judgments and damages from Appellants Georgetown Municipal Water & Sewer Services (GMWSS) and the City of Georgetown for costs the developers incurred installing water and sewer utility lines within the boundaries of a residential subdivision located within the service area of
GMWSS.
The circuit court granted the relief sought by the developers, ordering GMWSS and the City to reimburse the Appellees, from the collections of fees by GMWSS for connections or tap-on to the lines by homeowners, until Appellees were fully reimbursed for the cost of extensions to the water and sewer lines in excess of one hundred feet. At the time of the hearing, this amount was $230,800.00.
Water service and city appealed.
GMWSS is a utility owned by the City of Georgetown responsible for the management and maintenance of the water and sewer utility service in Scott County, Kentucky. The Appellees/developers developed two parcels of property for residential communities
where the water and sewer utilities were served by GMWSS.
The developers obtained the required pproval from GMWSS and the City to ensure that the utility lines conformed to established standards and codes and were compatible with the existing water and sewer infrastructure. However, the developers never entered into a contract with GMWSS and the City regarding the payments of the lines, and the developers never requested the same at the time they sought and received approval for the project. Importantly, neither GMWSS nor the City requested that the developers install the lines on their behalf
Neither document includes a provision for reimbursement or a refund to the developers of either subdivision for the utility lines. Nor is there a separate contract for reimbursement or a refund.
After the lines were dedicated to GMWSS and the City, they have full responsibility for the system, and the developers had no further cost or responsibility associated with the maintenance of the lines.
After their projects were approved, and after the developers received the appropriate certificates to begin construction, they came to believe they were entitled to a “cost recovery” for the costs associated with the installation of the water and sewer lines.
Because they had “footed” the bill, the developers later wanted to recover their costs from GMWSS and the City.
It is undisputed that there was no agreement or understanding beforehand for reimbursement or a refund for the utility lines.
According to the developers' theory, KRS 96.539 authorizes reimbursement to developers for their costs of installation of the water and sewer
lines claiming entitlement to the fees paid by the homeowners to GMWSS to tap
into the lines installed by the developer. City disagreed that the developers were entitled to reimbursement under KRS 96.539 because it does not apply to developers as they are not “customers” nor “applicants” under the facts of this case.
Ultimately, the circuit court ordered GMWSS and the City to reimburse the developers for the costs of the installation of the water and sewer lines in excess of one hundred feet, not to exceed the amount actually collected by GMWSS for connection or tap-on fees charged to customers who connected to the lines installed by the developers. GMWSS and the City appeal this decision.
COA agreed with the circuit court that it is mandatory that GMWSS and the City develop rules to govern extensions of service to unserved customers and areas pursuant to KRS
96.539, but disagreed that GMWSS and the City were required to include in these rules a provision for cost recovery such as that requested by the developers.
COA held that GMWSS and the City are NOT required to reimburse the developers for the costs associated with the installation of the water and sewer lines. KRS 96.539 does not apply in situations such as the one at hand for a variety of
reasons and reversed this portion of the circuit court's opinion.
The plain meaning of the term “customer” is “one that purchases a commodity or service.” Merriam-Webster's Collegiate Dictionary (10th ed. 2001).
The developers neither purchased water nor sewer service from GMWSS. Consequently, they cannot be considered as customers under KRS 96.539.
by Michael
Stevens
COM.
V. FIELDS
CRIMINAL: RCR 11.42 claim against counsel not barred when same
counsel at trial and direct appeal
2005-CA-000960
NOT PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND VACATING AND
REMANDING IN PART
Date: 6/15/2007
BLAIR
V. COM.
CRIMINAL: Substantial evidence to support court's findings; suppression
motion and inferences drawn by police per specialized training and
experience
2005-CA-002017
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
HENRY
V. COM.
CRIMINAL: DUI, second offense, guilty plea, and proof of prior DUI when
destroyed records
2006-CA-000759
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
EDWARDS
V. COM
CRIMINAL: Objections voiced to court over juror, palpable error
2006-CA-000839
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
COM.
V. NICHOLS
CRIMINAL: Discovery and production of expert reports by defense
examined to include oral vs. written
2006-CA-001558
NOT PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART
Date: 6/15/2007
MULLINS
V. THE BOARD OF ED. OF MARTIN COUNTY, KY
EDUCATION: School based decision making and council
representatives
2006-CA-001589
NOT PUBLISHED: REVERSING
Date: 6/15/2007
STEVENS
V. STEVENS
FAMILY LAW: Marital property division, award of maintenance affirmed
2006-CA-000456
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
RED
RIVER RANCH, LLC V. THE CITY OF STANTON, KENTUCKY
GOVERNMENT: Validity of local ordinance (commerce clause,
vagueness, economic protectionism, discrimination)
2006-CA-000448
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
COOPER
V. WEATHERLY
PROPERTY: Prescriptive easements to real property; standard of
review
2005-CA-002302
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
HILL
V. AMERICAN MINING AND MANUFACTURING
WORKERS COMP: Substantial evidence
2006-CA-001972
NOT PUBLISHED: AFFIRMING
Date: 6/15/2007
Thanks to Scott Byrd, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.