May 23, 2008 -  KENTUCKY COURT OF APPEALS DECISIONS (2008:26)

PUBLISHED (COA).

BEARDEN V. MAULDIN
FAMILY LAW:  Permanent custody and grandparents
2007-CA-001888
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: LAMBERT PRESIDING; MOORE,BUCKINGHAM CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 5/23/2008

Mom appealed from TC’s order denying her motion to set aside TC's judgment awarding permanent custody of Daughter to Paternal Grandparents. Mom further appealed from TC’s order denying her motion for visitation, where TC found that it lacked jurisdiction to consider visitation. 

FACTS: 
Paternal Grandparents filed a petition for custody and an emergency motion for temporary custody of Daughter four days after birth of Daughter due to the abuse of alcohol by and mutual domestic violence between Mom and Dad. TC entered temporary custody order that day and referred the matter to CFC for investigation. CFC subsequently filed DNA action a few days later, and the following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. TC awarded temporary custody to Paternal Grandparents in the custody action and reaffirmed that decision in the dependency action. Mom and Dad were allowed supervised visitation and were ordered to participate in a course of rehabilitative treatment and testing.

Paternal Grandparents filed an amended petition for custody seeking permanent custody of Daughter, which was served on Mom and Dad. Neither filed a response, and Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed anything to object to the entry of the order granting permanent custody of Daughter to Paternal Grandparents. TC entered an order granting Paternal Grandparents permanent custody. Paternal Grandparents then initiated proceedings in Alabama, their home state, to formally adopt Daughter. Those proceedings were still pending when this Opinion was rendered.

Almost one year after the default hearing, Mom filed a motion to set aside the default custody decree entered against her pursuant to CR 60.02(d) and (f). In support of her motion, Mom filed affidavits signed by herself and Dad. Dad's affidavit indicated that he told Mom if she intervened in the custody case, she would suffer further bodily harm, including death. Dad also stated that he had access to the only vehicle and telephone and that he prevented Mom from using either during this period. Further, Dad explained that Paternal Grandparents colluded with him to prevent Mom from protecting herself in any way during the custody case. Mom's affidavit listed the same facts but also admitted that she and Dad were alcoholics but that she was presently clean and sober. 

TC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents and had not documented collusion occurring between Dad and Paternal Grandparents to prevent her from attending or participating in the custody proceedings. TC further found that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02. TC denied Mom's motion to alter, amend or vacate, but stated no grounds for the denial, and declined to exercise jurisdiction concerning the visitation issue, finding that Kentucky was no longer the home state of the child. This appeal followed. 

Analysis:
Mom argued that TC improperly denied her 60.02 motion without an evidentiary hearing. CA held that a 60.02 movant is entitled to an evidentiary hearing if she affirmatively alleges facts, which if true, justify vacating the judgment and further alleges special circumstances that justify 60.02 relief. CA found that the contents of the affidavits in support of Mom’s motion are clear examples of Mom's allegations of fraud on the proceedings and collusion on the part of Dad and Paternal Grandparents and thus are allegations of facts, which if true, would justify vacating the judgment under CR 60.02(f) and possibly (d). CA recognized that affidavits can be a useful tool in the service of judicial economy, but on such a critical matter as fraud and collusion involving the custody of a child they are simply insufficient to form the basis of a decision. CA found that TC should have held an evidentiary hearing to allow Mom to present her claims through testimony rather than basing its decision on the affidavits presented by Mom. 

Mom also argued that TC improperly found that it lacked jurisdiction to modify her visitation rights. Paternal Grandparents argued that TC properly declined to exercise jurisdiction over the issue of modification of Mom’s visitation rights pursuant to KRS 403.824. CA stated that under KRS 403.824, the state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met, and that since Kentucky’s adoption of the UCCJEA, continuing jurisdiction trumps home state jurisdiction. In the instant case, Kentucky had original jurisdiction over custody. Despite the fact that Daughter had acquired a new home state, Kentucky is still the home state of Daughter’s mother, Mom, who is alleging that Paternal Grandparents obtained custody by fraud and then transported Daughter to their home state, which subsequently asserted jurisdiction. Accordingly, despite the Alabama court’s finding that Kentucky was no longer the home state of Daughter, Mom, a contestant, still resided in Kentucky and Kentucky was the initial state to make the custody determination. CA found that Kentucky therefore has continuing jurisdiction under the UCCJEA to determine visitation. 

Vacated and remanded TC’s order denying CR 60.02 motion with instruction that TC conduct an evidentiary hearing, and reversed the portion of TC’s order indicating that it does not have exclusive and continuing jurisdiction and remand for proceedings consistent with Mom’s motion for visitation. 

Digested by Michelle Eisenmenger Mapes, DIana L. Skaggs + Associates.

JEWELL V. JEWELL
FAMILY LAW:  Funeral Expenses For Child, Doctrine Of Necessaries 
2007-CA-000420
PUBLISHED: REVERSING AND REMANDING
PANEL: LAMBERT PRESIDING; MOORE, WINE CONCUR
COUNTY: HARDIN
DATE RENDERED: 5/23/2008

Mother appealed from a judgment which found that the father was not liable for any portion of their son’s funeral expenses. Parties divorced in 1990 and the mother was granted sole custody of the parties’ only child. Their son was diagnosed with cancer in 2005 and died in 2006. The total funeral costs were $8,538.93. Upon their son’s death, the father received $10,000 in proceeds from a death benefit policy. Trial court found that the father had no obligation to pay any portion of the funeral expenses since the mother had sole custody. COA reversed based on KRS 406.011 and the doctrine of necessaries. The Court likened the non-religion-specific funeral expenses to costs related to pregnancy and child birth, which the father is required to contribute to under KRS 406.011. COA also cited to KRS 403.211, because it viewed the action as a proceeding to modify or interpret the support order. COA found it unjust for the father to collect $10,000 on a death benefits policy, but not require the father to pay half of the child’s funeral expenses. 
REVERSED. 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

 

NOT PUBLISHED (COA)

3 ARCHER V. POCKER
2005-CA-002098
NOT PUBLISHED: 106
DATE RENDERED: 5/23/2008
3 EDGE V. COM
2006-CA-000360
NOT PUBLISHED: 98
DATE RENDERED: 5/23/2008
3 2006-CA-000840
NOT PUBLISHED: 108
DATE RENDERED: 5/23/2008
3 2006-CA-001180
NOT PUBLISHED: 101
DATE RENDERED: 5/23/2008
3 DOUGLAS V. UNIV. OF KY HOSP
CIVIL PROCEDURE:  Not properly served
2006-CA-002149
NOT PUBLISHED: 116
DATE RENDERED: 5/23/2008

Douglas initially filed a complaint with the Fayette Circuit Court Clerk on February 7, 2006. At that time, Douglas attempted service on the U.K. Physicians via certified mail through the office of the circuit clerk, as set forth in Kentucky Rule of Civil Procedure 4.01(a).

In this instance, the certified mail was delivered to the University’s Obstetrics and Gynecology Department, but was not delivered directly to the U.K. Physicians named as defendants 

The University asserts that Lally was never appointed or designated by the U.K. Physicians to accept service of process on their behalf. In support of their position, the University of Kentucky (U.K.) filed the May 2, 2006, affidavit of John Allen, Department Administrator for the University of Kentucky Department of Obstetrics and Gynecology.

We do believe that there is nothing in the record to dispute that Douglas made a good faith attempt to serve the U.K. Physicians. Unfortunately, neither CR 4 nor the case law provides a good faith exception to proper service under the civil rules. The law is clear that a summons is delivered to a person only when placed within his reach and he accepts it. Fleishman v. Goodman, 67 S.W.2d 691 (1934).

We believe that this failure forms a proper basis for the trial court’s order of dismissal.

In light of the foregoing, we find that the trial court did not abuse its discretion in dismissing this action for insufficiency of service of process. 

The absence of proper service of process renders a court without jurisdiction to enter a judgment against the non-responding party. Accordingly, the judgment of the Hon. Pamela Goodwine, Fayette Circuit Court, is affirmed.
3 2006-CA-002394
NOT PUBLISHED: 131
DATE RENDERED: 5/23/2008
3 2006-CA-002429
NOT PUBLISHED: 80
DATE RENDERED: 5/23/2008
3 2006-CA-002569
NOT PUBLISHED: 112
DATE RENDERED: 5/23/2008
3 2006-CA-002647
NOT PUBLISHED: 168
DATE RENDERED: 5/23/2008
3 2007-CA-000136
NOT PUBLISHED: 124
DATE RENDERED: 5/23/2008
3 2007-CA-000289
NOT PUBLISHED: 125
DATE RENDERED: 5/23/2008
3 OHIO CASUALTY INS.CO. V. DUCKWORTH
INSURANCE: No fault and assigned claims plan
2007-CA-000295
NOT PUBLISHED: 121
DATE RENDERED: 5/23/2008

Under KRS 304.39-160(3), “if a person receives basic reparation benefits through the assigned claims plan, all benefits or advantages he receives or is entitled to receive as a result of the injury . . . are subtracted in calculating net loss.” Ohio Casualty argues that summary judgment is premature in this case without discovery as to how much Duckworth’s private health insurance paid toward his medical expenses in connection with this accident. 

According to Ohio Casualty, if it does not know the amount paid by Anthem, then it cannot calculate its net loss with respect to the claim. Ohio Casualty believes this lack of information formed a reasonable foundation for its delay in paying Duckworth’s medical expenses.

KRS 304.39.210(1), the more specific and, thus, controlling statute, provides that the reparation obligor must pay benefits monthly as the claimant’s loss accrues. Loss accrues when medical expenses are incurred. These payments are considered overdue if not paid within thirty days of the insurer’s receipt of reasonable proof of
the amount of loss.

Noting that basic reparation benefits must be paid monthly and citing this statute, the Court of Appeals theorized in State Automobile Mutual Insurance Co. v. Outlaw, 575 S.W.2d 489 (Ky. App. 1978), that [a]ssuming that Outlaw [the claimant] had filed a claim for benefits soon after the accident and that the assigned claims bureau had promptly assigned her claim to State Auto [the reparation obligor], State Auto would not have had any right to make any deduction for any future medical assistance payments.

KRS 304.39-210(3) directs the reparations obligor to pay [basic reparation benefits] without deducting [the claimant’s other benefits as set forth in KRS
304.39-160(3)] if the benefits have not been paid to the claimant before [the basic reparation benefits] are paid.”Morrison v. Kentucky Cent. Ins. Co., 731 S.W.2d 822, 825 (Ky. App. 1987). 

This is because the assigned reparation obligor is entitled to reimbursement from the person obligated to make the payments or from the claimant who received the benefits. KRS 304.39-210(3).

Duckworth submitted copies of his medical bills to Ohio Casualty. According to KRS 304.39-020(5)(a), it is presumed that any medical bill submitted is reasonable. See also Outlaw, 575 S.W.2d at 493. 

Further, the submission of actual medical bills in connection with an accident is enough to satisfy the statutory requirement of reasonable proof of the fact and amount of the loss realized. Id.

where Ohio Casualty’s argument falls short is in its assumption that it was not obligated to pay benefits due to Duckworth until after discovery was conducted to secure the amount of net loss. 

This proposition is directly contradicted by KRS 304.39-210(3) which unequivocally mandates that the reparation obligor, in this case Ohio Casualty, must timely pay the claimant as his loss accrues. But, despite this statutory obligation, the reparation obligor is entitled to reimbursement from that claimant in the amount of any other benefits or advantages received. See also KRS 304.39- 160(1).

if Ohio Casualty could show that it had a reasonable foundation for delaying the payment of the claim, then it may avoid the penalties of interest and attorney’s fees. Automobile Club Insurance Co. v. Lainhart, 609 S.W.2d 692, 694 (Ky. App. 1980).

A reasonable foundation for delay is defined as either the “assertion of a legitimate and bona fide defense by the reparation obligor” or, as relevant to this case, failure of the claimant to supply the obligor with reasonable proof of loss in a timely fashion. Id.at 695; see also Kentucky Farm Bureau Mutual Insurance Company v. Roberts, 603 S.W.2d 498, 499 (Ky. App. 1980); Outlaw, 575 S.W.2d at 494-495.

Ohio Casualty does not assert that it had a bona fide defense for delaying payment to Duckworth. Ohio Casualty instead argues that it delayed payment because it did not have the opportunity to discover how much of Duckworth’s medical expenses the coverage provided by Anthem has paid.6 This does not constitute a reasonable foundation to delay payment

Once Ohio Casualty received reasonable proof of loss, it was their obligation to pay these claims within thirty days. Ohio Casualty is entitled to seek reimbursement for any other benefits, such as those provided by health insurance, related to this accident later received by Duckworth.

Accordingly, once Duckworth furnished Ohio Casualty with the reasonable proof of loss, Ohio Casualty was then under a statutory obligation to pay those claims within thirty days. 

The grant of summary judgment by the circuit court is, therefore, affirmed.
3 2007-CA-000301
NOT PUBLISHED: 120
DATE RENDERED: 5/23/2008
3 2007-CA-000496
NOT PUBLISHED: 110
DATE RENDERED: 5/23/2008
3 2007-CA-000636
NOT PUBLISHED: 96
DATE RENDERED: 5/23/2008
3 2007-CA-000792
NOT PUBLISHED: 108
DATE RENDERED: 5/23/2008
3 2007-CA-000964
NOT PUBLISHED: 91
DATE RENDERED: 5/23/2008
3 2007-CA-000965
NOT PUBLISHED: 135
DATE RENDERED: 5/23/2008
3 MAY V. MOORE
PREMISES LIABILITY
2007-CA-000978
NOT PUBLISHED: 124
DATE RENDERED: 5/23/2008

Lorraine May, the appellant, appeals from a summary judgment entered against her in her lawsuit for personal injuries that she sustained on rental property owned by Dixie Moore. Dixie Moore, the original defendant/appellee, died on January 10, 2007, during the pendency of the case.

The circuit court allowed revival of the action against Jay Moore in his capacity as administrator of the estate of Dixie Moore.

Since the rental agreement governed, the court correctly determined that May could not recover for personal injuries and that her only sustainable claim for damages was the cost of repair to the electrical problem. Its reasoning was directly congruent with our decision in Pinkston, supra, which held as follows:

[A] landlord is not liable for injuries caused by breach of a covenant to make repairs to a leased premises. Rather, the remedy for breach of an agreement to repair is the cost of repair. (Emphases added.)

The evolution of Kentucky law as to the nature of this duty is ably recapitulated and summarized in Lambert v. Franklin Real Estate, Co., 37 S.W.3d 770, 775-776 (Ky. App. 2000)

The dangerous condition of the electrical fixtures was both open, obvious, and known to May. Therefore, under established precedent, Moore owed no duty to May as a matter of law. As there is no cause of action for negligence, the issue of proximate cause is a moot point. May’s own negligent actions in standing on a chair cannot be imputed to Moore under any viable legal theory.

Accordingly, we affirm the summary judgment of the Rowan Circuit Court.
3 2007-CA-001368
NOT PUBLISHED: 121
DATE RENDERED: 5/23/2008
3 2007-CA-001376
NOT PUBLISHED: 110
DATE RENDERED: 5/23/2008
3 FIELDS V. TILFORD
ATTORNEY FEE AGREEMENT
2007-CA-001547
NOT PUBLISHED: 103
DATE RENDERED: 5/23/2008
6 2007-CA-001598
NOT PUBLISHED: 99
DATE RENDERED: 5/23/2008
3 2007-CA-002057
NOT PUBLISHED: 90
DATE RENDERED: 5/23/2008
3 2007-CA-002141
NOT PUBLISHED: 118
DATE RENDERED: 5/23/2008
3 2007-CA-002511
NOT PUBLISHED: 104
DATE RENDERED: 5/23/2008

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