D. W. WILBURN, INC.; AND CONTINENTAL CASUALTY COMPANY APPELLANTS
THE PAINTING COMPANY; OK INTERIORS CORPORATION; AND COMMONWEALTH OF KENTUCKY APPELLEESANDTHE PAINTING COMPANYCROSS-APPELLANT
D.W. WILBURN, INC.;CONTINENTAL CASUALTY COMPANY;AND OK INTERIORS CORPORATIONCROSS-APPELLEES
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA R.
GOODWINE, JUDGE ACTION NO. 14-CI-01322
FOR APPELLANTS/ CROSS APPELLEES: Michael R. Eaves Morgan H.
Eaves Richmond, Kentucky
FOR APPELLEE/CROSS APPELLANT THE PAINTING COMPANY: Jon A.
Woodall Brendan R. Yates Lexington, Kentucky, BRIEF FOR
APPELLEE OK INTERIORS CORPORATION: Thomas M. Todd Lexington,
Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY: Stephen
E. Smith Aaron J. Silletto Prospect, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; LAMBERT AND MAZE, JUDGES.
Wilburn, Inc. (DWW), and Continental Casualty Company (CCC)
appeal from the Fayette Circuit Court's order awarding
attorney fees, costs, and prejudgment interest to The
Painting Company (TPC) and OK Interiors Corporation (OKI) for
their claims on contract balances due; and from the order
dismissing the appellants' claims against the
Commonwealth of Kentucky. (Appeal No. 2017-CA-000968-MR). TPC
cross-appeals from the portion of the order denying
prejudgment interest on its claims for extra work.
(Cross-Appeal No. 2017-CA-001131-MR). We affirm.
contractual relationships among the parties originated in
2009, when the Commonwealth of Kentucky awarded contracts for
construction of the Eastern Kentucky State Hospital in
Lexington, Kentucky. DWW became the managing contractor and
construction manager for the project; its duties included
coordinating subcontractors and suppliers and supervising the
construction site. CCC was surety for the project. TPC and
OKI were two of the subcontractors, with TPC under contract
to do painting work for $902, 650.00, and OKI to do exterior
insulation, interior framing, and drywall work for $7, 894,
590.00. The project reached substantial completion in May
was filed by TPC against DWW on April 9, 2014. DWW, joined by
its surety CCC, filed as third-party plaintiffs for indemnity
from the Commonwealth and from OKI (both of which DWW
insisted had caused the extra work on TPC's behalf). OKI
cross-claimed DWW and its surety (CCC) for payments due under
its contract. The Commonwealth's motion for summary
judgment was granted on August 30, 2016. The Fayette Circuit
Court held a five-day bench trial in October and November
2016, and entered its opinion and order on April 19, 2017.
All parties except the Commonwealth filed separate motions to
alter, amend, or vacate the order. TPC and OKI, as prevailing
parties, also sought attorney fees and costs. On June 1,
2017, the Fayette Circuit Court entered its final order in
favor of TPC and OKI, but it denied prejudgment interest to
first argues that the circuit court erred by dismissing the
Commonwealth as a party. DWW maintains that the project was
not able to be completed properly since the delays and
additional costs were incurred by the negligence of the
Commonwealth's architect. Therefore, DWW contends, the
Commonwealth was a necessary party to the litigation.
begin by stating the standard of review as it relates to
summary judgments, namely:
The standard of review on appeal when a trial court grants a
motion for summary judgment is "whether the trial court
correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to
judgment as a matter of law." Scifres v. Kraft,
916 S.W.2d 779, 781 (Ky. App. 1996); Kentucky Rules of Civil
Procedure (CR) 56.03. "The trial court must view the
evidence in the light most favorable to the nonmoving party,
and summary judgment should be granted only if it appears
impossible that the nonmoving party will be able to produce
evidence at trial warranting a judgment in his favor."
Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.
App. 2001), citing Steelvest v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480-82 (Ky. 1991).
"The moving party bears the initial burden of showing
that no genuine issue of material fact exists, and then the
burden shifts to the party opposing summary judgment to
present 'at least some affirmative evidence showing that
there is a genuine issue of material fact for
trial.'" Lewis, 56 S.W.3d at 436, citing
Steelvest, 807 S.W.2d at 482. The trial court
"must examine the evidence, not to decide any issue of
fact, but to discover if a real issue exists."
Steelvest, 807 S.W.2d at 480. The Kentucky Supreme
Court has held that the word "impossible," as set
forth in the standard for summary judgment, is meant to be
"used in a practical sense, not in an absolute
sense." Lewis, 56 S.W.3d at 436. "Because
summary judgment involves only legal questions and the
existence of any disputed material issues of fact, an
appellate court need not defer to the trial court's
decision and will review the issue de novo."
Lewis at 436.
West v. KKI, LLC, 300 S.W.3d 184, 188 (Ky. App.
Commonwealth correctly points out, it is immune, with only
express statutory exceptions, from liability. Ky. Const.
§231; see Withers v. University of Kentucky,
939 S.W.2d 340, 344 (Ky. 1997). We are aware of the Kentucky
Supreme Court's recent ruling that "the General
Assembly has specifically chosen to waive the defense of
governmental immunity in all cases based upon written
contracts with the Commonwealth." University of
Louisville v. Rothstein, 532 S.W.3d 644, 651 (Ky. 2017).
However, DWW's third-party claim against the Commonwealth
was not based on breach of contract. Rather it was a claim
for indemnity from the Commonwealth, for which there was no
provision in the contract, nor has there been a statutory
waiver of sovereign immunity. See Louisville Arena Auth.,
Inc. v. RAM Eng'g & Const., Inc., 415 S.W.3d
671, 681 (Ky. App. 2013) ("claims for monetary ...