FROM JEFFERSON CIRCUIT COURT HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 18-CI-000327
ATTORNEYS FOR APPELLANT: John W. Walters Benjamin T. Harris
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
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.
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 413.241,
Kentucky's Dram Shop Act, on the basis that the statute
does not permit "first-party" claims against dram
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 54.02. Appellant filed a "Notice of
Interlocutory Appeal" on March 29, 2019. Appellee moved
to dismiss the appeal.
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).
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
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
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 ...