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Thomas v. Perkins

Court of Appeals of Kentucky

January 3, 2020

JULIE G. THOMAS AND DONALD F. THOMAS, INDIVIDUALLY AND AS NEXT FRIENDS FOR S.T., A MINOR APPELLANTS
v.
BESSIE PERKINS; JERRY PERKINS; AND STATE FARM FIRE AND CASUALTY COMPANY APPELLEES AND ELIZABETH RENNER AND JEFFERY RENNER, AS NEXT FRIENDS AND PARENTS OF C.R., A MINOR APPELLANTS
v.
BESSIE PERKINS; JERRY PERKINS; AND STATE FARM FIRE AND CASUALTY COMPANY APPELLEES

          APPEAL FROM MADISON CIRCUIT COURT HONORABLE JEAN CHENAULT LOGUE, JUDGE ACTION Nos. 16-CI-00169, 16-CI-00133

          BRIEF FOR APPELLANTS: Zachary L. Taylor Louisville, Kentucky

          ORAL ARGUMENT FOR APPELLANTS: Michael F. Eubanks Richmond, Kentucky Co-Counsel Zachary L. Taylor Louisville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE STATE FARM FIRE AND CASUALTY COMPANY: David T. Klapheke Louisville, Kentucky

          BEFORE: COMBS, JONES AND L. THOMPSON, JUDGES.

          OPINION

          THOMPSON, L., JUDGE:

         In this consolidated appeal, Julie Thomas, Donald Thomas, Elizabeth Renner, and Jeffery Renner ("Appellants") appeal from declaratory judgments of the Madison Circuit Court applying insurance policy exclusions in favor of State Farm Fire & Casualty Company ("Appellee"). Appellants argue that the circuit court erred in concluding that these exclusions shield Appellee from liability for the alleged negligence of Jerry Perkins. We find no error, and AFFIRM the judgments on appeal.

         Facts and Procedural History

         In approximately 2000, Bessie Perkins began working in the child care business. She was employed at ABC Daycare as a teacher of two- and three-year-old children until she was terminated in 2015. After she was unable to find other child care employment, Mrs. Perkins began providing child care at the residence she shared with her husband, Jerry Perkins.

         Jerry Perkins knew Donald Thomas from their place of employment. When Mr. Thomas' wife, Julie Thomas, was pregnant, Jerry and Donald discussed the possibility of Mrs. Perkins providing child care for the Thomas baby at the Perkins' residence. The Thomases' daughter, S.T., [1] was born in February 2015. About five months after the birth, Mrs. Thomas returned to work and Mrs. Perkins began caring for S.T. during the day at the Perkins' residence.

         Jeffery Renner was a friend of Mr. Thomas and asked Mrs. Perkins if she would be willing to provide child care for the Renners' baby boy, C.R. The baby's mother, Elizabeth Renner, spoke with Mrs. Perkins, who agreed to provide the child care. The Thomases and the Renners each paid Mrs. Perkins $80 per week to watch their children. The parents provided baby formula, diapers and wipes, while Mrs. Perkins provided toys, a swing and a walker. The Thomases and the Renners would later testify that they expected their children to receive the level of care normally provided by a daycare, including feeding, attention, playtime, and the changing of diapers.

         On November 12, 2015, baby C.R. began exhibiting symptoms of illness including lethargy and fever. Mrs. Renner took C.R. to the pediatrician the following day. C.R. presented with additional symptoms including a "twitching" arm and a bulging soft spot on his head. Based on these symptoms, the pediatrician recommended that C.R. be taken immediately to University of Kentucky Hospital. At the hospital, C.R. began experiencing increasingly worsening seizures. MRI and CT scans, in addition to a spinal tap and other investigative measures, led to the diagnosis of "shaken baby syndrome," i.e., neurological trauma associated with physical abuse. Physicians told the Renners that C.R. showed signs of both old and new acute injuries.

         A police detective interviewed Mrs. Perkins on November 15, 2015. Mrs. Perkins initially stated that she accidentally dropped C.R., then admitted that she had shaken him on at least three occasions because he would not stop crying.

         Based on the police investigation of Mrs. Perkins, a social worker and a detective contacted the Thomases and asked them to bring S.T. to the hospital to determine if S.T. was also injured. S.T. was examined on November 17, 2015. The following day, the Thomases were informed that S.T. had two spiral fractures of the left tibia which were about four and nine weeks old ...


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