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Recbar, LLC v. Drake

Court of Appeals of Kentucky

July 12, 2019

RECBAR, LLC APPELLANT
v.
JONATHAN DRAKE; AND HUMANA HEALTH PLANS, INC. APPELLEES

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 18-CI-000327

          ATTORNEYS FOR APPELLANT: John W. Walters Benjamin T. Harris Lexington, Kentucky.

          ATTORNEYS FOR JONATHAN DRAKE: Chauncey R. Hiestand Patricia Morris Louisville, Kentucky ATTORNEY FOR HUMANA HEALTH PLANS, INC.: Gregory G. Beck Dublin, Ohio.

          BEFORE: ACREE, KRAMER, AND NICKELL, JUDGES.

          OPINION AND ORDER

          NICKELL, JUDGE:

         This cause comes before the Court on Appellee Jonathan Drake's motion to dismiss the appeal. Having reviewed the record, and being otherwise sufficiently advised, IT IS HEREBY ORDERED that the motion to dismiss shall be, and hereby is, GRANTED.

         I. BACKGROUND

         Appellee Jonathan Drake was injured in a single-person motor vehicle accident. Appellee contends Appellant Recbar, LLC negligently served him alcoholic beverages when it knew or should have known he was intoxicated, resulting in his injuries. Appellant moved for summary judgment under KRS[1] 413.241, Kentucky's Dram Shop Act, on the basis that the statute does not permit "first-party" claims against dram shops.

         On March 1, 2019, the trial court entered an order denying Appellant's motion for summary judgment. The order provides: "[t]he Court finds there are genuine issues of material fact and that summary judgment is not appropriate." The order does not contain finality language under CR[2] 54.02. Appellant filed a "Notice of Interlocutory Appeal" on March 29, 2019. Appellee moved to dismiss the appeal.

         II. ANALYSIS

         "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." CR 54.01. Ordinarily, the denial of a motion for summary judgment is considered interlocutory and not appealable. Bell v. Harmon, 284 S.W.2d 812, 814 (Ky. 1955). In the absence of an exception to the general rule, this Court lacks jurisdiction over an interlocutory appeal. Wilson v. Russell, 162 S.W.3d 911, 913-14 (Ky. 2005).

         Appellant asserts that a defense under KRS 413.241 is similar to "claims of governmental immunity or workers' compensation immunity," two circumstances in which it is recognized that an interlocutory appeal may be had. We disagree.

         In Breathitt County Board of Education v. Prater, 292 S.W.3d 883 (Ky. 2009), Prater, a visitor to a residence owned by the county board of education ("Board"), brought an action when she was injured following the collapse of a structure at the residence. Prater asserted the Board was negligent in its maintenance of the residence. The Board filed a motion to dismiss the complaint "on the ground that it is absolutely immune from damages claims brought in court, as opposed to the Board of Claims." Id. at 885. The trial court denied the motion to dismiss. This Court concluded that it had jurisdiction to review the interlocutory order.

         In agreeing that jurisdiction existed, the Supreme Court of Kentucky noted that "immunity entitles its possessor to be free 'from the burdens of defending the action, not merely . . . from liability.'" Id. at 886 (quoting Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006)). Therefore, "an order denying a substantial claim of absolute ...


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