Louisville Gas and Electric Company v. Jose Ramirez Galvan ( 2021 )

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0961-MR
LOUISVILLE GAS AND ELECTRIC
COMPANY APPELLANT
ON REMAND FROM THE KENTUCKY SUPREME COURT
(FILE NO. 2020-SC-0552-DG)
v.
APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00099
JOSE RAMIREZ GALVAN;
PETROCHEM INSULATION, INC.;
ARTIC SLOPE REGIONAL
CORPORATION; AND THOMPSON
INDUSTRIAL SERVICES, LLC APPELLEES
OPINION AND ORDER
DISMISSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
ACREE, JUDGE: This case is before the Court of Appeals on remand from the
Kentucky Supreme Court for further consideration in light of Sheets v. Ford Motor
Company, ___ S.W.3d ___, 2021 WL 2618203 (Ky. Jun. 17, 2021). Because this
Court lacks jurisdiction to review the circuit court’s interlocutory order, we dismiss
and remand this matter for further proceedings.
When the case was first before the Court, we exercised appellate
jurisdiction in reliance on Breathitt County Board of Education v. Prater, 292
S.W.3d 883 (Ky. 2009), as interpreted in Ervin Cable Construction, LLC v. Lay,
461 S.W.3d 422, 423 (Ky. App. 2015), overruled by Sheets, supra. Sheets noted
that since Prater, the Supreme Court has refined interlocutory jurisdiction based on
the collateral order doctrine exception to the finality rule.
In accord with current jurisprudence, “merely being denied a claimed
‘immunity’ [i]s not necessarily sufficient to invoke the doctrine as an exception to
the final order rule.” Sheets, ___ S.W.3d at ___, 2021 WL 2618203, at *2. The
Court explained that:
three elements of the collateral order doctrine . . . must be
met before an appellate court has jurisdiction to review an
interlocutory order. . . . : the interlocutory order must (1)
conclusively decide an important issue separate from the
merits of the case; (2) be effectively unreviewable
following final judgment; and (3) involve a substantial
public interest that would be imperiled absent an immediate
appeal. . . . [I]n instances when no governmental entity or
official is a party to the case and there is no concern with
“preserving the efficiency of government,” it is unlikely
-2-
that a denial of a party’s claim of immunity will meet this
final element.
Id. at *4 (citations omitted).
Applying this framework, the Supreme Court concluded that “the trial
court’s denial of up-the-ladder immunity . . . does not meet the three-element test
. . . [when] it does not involve a substantial public interest that would be imperiled
absent an immediate appeal.” Id. Here, as in Sheets:
[n]o governmental entity or official is a party to the action.
There is no concern with government efficiency, the
disruption of government services due to the costs and
burden of litigation, or public coffers placed at risk. The
interests at stake in this case are purely personal to [the
parties] without an impact on the greater public interest.
Because the interlocutory order at issue in this case does
not meet the requirements of the collateral order doctrine,
the Court of Appeals lacked jurisdiction to hear the
appeal[.]
Id.For these reasons, we conclude this Court lacks jurisdiction to review
the circuit court’s denial of Louisville Gas and Electric Company’s claim of “up-
the-ladder” immunity. The appeal is DISMISSED and remanded for further
proceedings.
ALL CONCUR.
-3-
ENTERED: September 10, 2021
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Travis Aaron Crump Randal A. Strobo
Jeremiah A. Byrne Clay A. Barkley
Griffin Terry Sumner Michael Todd Copper
Casey Wood Hensley Louisville, Kentucky
Louisville, Kentucky
-4-