Angela R. Huff Individually v. Southern States Somerset Cooperative, Incorporated ( 2021 )

RENDERED: AUGUST 13, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1524-MR
ANGELA R. HUFF, INDIVIDUALLY;
AND AS EXECUTRIX OF THE
ESTATE OF DAVID W. HUFF APPELLANTS
APPEAL FROM MERCER CIRCUIT COURT
v. HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 17-CI-00194
SOUTHERN STATES SOMERSET
COOPERATIVE, INCORPORATED APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: Appellant, Angela Huff, individually and as Executrix of the
Estate of David W. Huff, appeals from an order of the Mercer Circuit Court which
held that the Appellee, Southern States Somerset Cooperative, Incorporated, was
entitled to up-the-ladder immunity under the Kentucky Workers’ Compensation
Act, KRS1 Chapter 342. After our review, we affirm in part, reverse in part, and
remand.
David W. Huff was employed by Southern States Cooperative, Inc.
On August 4, 2016, Mr. Huff was killed on his employer’s premises at its
Harrodsburg location while operating a Willmar Wrangler 4500 front-end loader
which overturned.2
On August 2, 2017, Angela Huff, individually and as Executrix of the
Estate of David Huff (Huff), filed a complaint in Mercer Circuit Court asserting
claims of product liability, breach of warranty, failure to warn, and negligence
against the Defendants, AGCO Corporation and Cargill, Incorporated, which Huff
alleged had designed, marketed, manufactured, sold, and distributed the front-end
loader.
On August 25, 2017, Defendants AGCO and Cargill filed a joint
notice removing the case to the United States District Court for the Eastern District
of Kentucky. On September 1, 2017, Defendant Cargill filed a motion to dismiss
for failure to state a claim. Cargill attached a report from the Kentucky Labor
1
Kentucky Revised Statutes.
2
Mr. Huff’s employer, Southern States Cooperative, Inc., is not a party to this case. The
Appellee, Southern States Somerset Cooperative, Incorporated, is a separate entity that was the
original purchaser of the subject front-end loader.
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Cabinet Occupational Safety and Health Program (Kentucky OSH),3 which had
conducted an inspection due to the fatality.
The Kentucky OSH report reflects that the accident occurred on
August 4, 2016, at 1:00 p.m. Mr. Huff was operating a Willmar Wrangler 4500
articulated front-end loader and was filling an order of fertilizer at his employer’s
Harrodsburg store when the loader tipped over, pinning Mr. Huff underneath and
causing his death. According to the report, the Appellee, Southern States Somerset
Cooperative, Incorporated (Somerset), was the original purchaser of the front-end
loader and had sold it to Mr. Huff’s employer in 2002.4
Huff then filed an amended complaint in federal District Court joining
Somerset as a defendant. Huff identified Somerset as a Virginia business entity
based upon a report from the Kentucky Secretary of State. Huff alleged that
Somerset was negligent in maintaining the Willmar Wrangler 4500 used by David
Huff. In its answer and Rule 7.1(a) corporate disclosure, Somerset stated that it is
incorporated in Virginia with its principal place of business in Somerset, Kentucky.
3
A copy of the Kentucky OSH report is attached as Exhibit “C” to Defendant Cargill’s
memorandum in support of its May 21, 2018, motion to dismiss Plaintiff’s amended complaint
filed in Mercer Circuit Court (Record on Appeal (ROA) at 85).
4
At page 2, footnote 1 of its Appellee’s Brief, Somerset clarifies that it purchased the loader as a
new piece of equipment in 2000 and that it owned it until 2007 – not 2002 as erroneously
reported.
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Somerset filed a motion to dismiss, arguing that the claims against it
are barred by the exclusive remedy provision of the Kentucky Workers’
Compensation Act. Huff filed a motion for remand based upon lack of subject
matter jurisdiction. By opinion and order dated May 8, 2018, the federal District
Court explained as follows:
Huff’s intent in filing the amended complaint was
not to defeat diversity jurisdiction. . . . Huff did not seek
remand until . . . Somerset filed its answer and corporate
disclosure statement stating that its principal place of
business was in Kentucky.
Huff v. AGCO Corp., No. 5:17-CV-354-KKC, 2018 WL 2113195, at *4 (E.D. Ky.
May 8, 2018) (ROA at 239-40).
The District Court concluded that joinder was appropriate and granted
Huff’s motion to remand based on newly discovered lack of diversity. It also
denied all remaining motions as moot and remanded the case to the Mercer Circuit
Court.
On May 29, 2018, Defendant Somerset filed a motion to dismiss or, in
the alternative, for summary judgment in the Mercer Circuit Court on the ground
that the claims that Huff asserted against it are barred by the exclusive remedy
provisions of the Kentucky Workers’ Compensation Act (KWCA), KRS Chapter
342. In its supporting memorandum, Somerset explained that it is a member-
owned local cooperative. Somerset argued that it “is a ‘contractor,’ who
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contracted with Southern States Cooperative (a ‘subcontractor’) for the provision
of management and accounting services; accordingly, it is entitled to up the ladder
immunity” under KRS 342.690. Somerset submitted the affidavit of Anne
Clingenpeel, Vice President of Retail Operations of Mr. Huff’s employer, Southern
States Cooperative, Inc., which provides in relevant part:
3. Southern States Cooperative, Inc. owns and operates
the Southern States retail store and land located in
Harrodsburg, Kentucky, including the premises on which
the August 4, 2016 incident occurred. . . . Harrodsburg is
not a separate legal entity; it is one of the 13 locations
Southern States Cooperative operates in the state of
Kentucky. Southern States Cooperative, Inc. secured
workers’ compensation coverage for its own employees,
and a true and accurate copy of the declarations pages
reflecting said coverage is attached as Exhibit A.
4. At the time of the subject incident, August 4, 2016,
David Huff was employed by Southern States
Cooperative, Incorporated. . . . At the time of the
accident, David Huff worked . . . as a General Manager –
Retail, acting as general manager for six retail stores
located in Harrodsburg, Campbellsville, Danville,
Stanford, Liberty and Frankfort.
5. Southern States Cooperative, Inc. has relationships
with sixty member-owned local cooperatives (“Local
Cooperatives”), including [Somerset], in which Southern
States Cooperative, Inc. provides services and supplies to
the Local Cooperatives.
6. At the time of the subject incident, August 4, 2016,
the relationship between Southern States Cooperative,
Inc. and [Somerset] was governed by the management
agreement entered into on May 10, 1948, a true and
accurate copy of which is attached as Exhibit C. . . .
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7. Pursuant to Exhibit C, Southern States Cooperative,
Inc. obtained workers[’] compensation insurance for
[Somerset] through Southern States Insurance Exchange,
as it did for each Local Cooperative. A true and accurate
copy of the declarations pages applicable to the
workers[’] compensation coverage in place for
[Somerset] on August 4, 2016 is attached as Exhibit D.
8. Pursuant to its management agreements with the
Local Cooperatives (including [Somerset]), Southern
States Cooperative, Inc., managed the business affairs of
the Local Cooperatives and provided services and
supplies to the Local Cooperatives, including
management supervision, training, assistance with local
meetings and membership relations, publicity,
engineering, marketing, the payments of dividends, and
the procurement of supplies and commodities. Southern
States Cooperative, Inc. received a fee for these services
from the Local Cooperatives. Southern States
Cooperative, Inc. also procured insurance coverage,
including workers’ compensation coverage, for and on
behalf of the Local Cooperatives. Moreover, all capital
for each of the Local Cooperatives is obtained from
Southern States Cooperatives, Inc. on the basis of an
open account or negotiable notes.[5]
(ROA at 152-54) (underline original).
On June 19, 2018, Huff filed a response to Somerset’s motion and
argued that the motion should be treated as one for summary judgment and that
genuine issues of fact existed which precluded summary judgment as a matter of
law. Huff argued that Somerset failed to provide any information or proof as to the
5
The management agreement, Exhibit “C,” was filed under seal.
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nature of its business, or any proof that Mr. Huff performed any work for
Somerset. Additionally, she noted that the accident did not occur on Somerset’s
premises.
On July 23, 2018, the trial court nevertheless entered an order
granting Somerset’s motion for summary judgment, stating as follows:
At the time of the accident, the decedent Mr. Huff was an
employee of Southern States Cooperative and served as
general manager for six retail locations of Southern
States. The accident occurred on the premises of the
Harrodsburg retail location, which is owned and operated
by Southern States Cooperative and was one of the stores
Huff managed.
In addition to the thirteen store locations operated
by Southern States Cooperative, certain store locations are
operated by member-owned local cooperatives like
[Somerset]. For stores operated by local cooperatives,
Southern States Cooperative has management contracts in
place . . . .
In its motion to dismiss, [Somerset] argues that it is
entitled to workers[’] compensation immunity pursuant to
KRS 342.690(1). . . .
. . . General Electric Co. v. Cain, 236 SW3d 579 (Ky.
2007), . . . holds that, in order for a defendant to quali[f]y
for workers’ compensation immunity via the up-the-
ladder defense, same must provide 1) proof that it secured
workers[’] compensation coverage; and 2) proof that it is
a contractor as defined in KRS 342.610(2). The Court in
Cain held that immunity would apply if the work
performed was “customary, usual, normal, or performed
repeatedly and which the business or a similar business
would perform or be expected to perform.”
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...
In the instant action, this [c]ourt finds more than sufficient
evidence that there was workers[’] compensation
coverage. In addition to the policy provided by the
defendants, the record indicates that the decedent’s spouse
received a proposed settlement of workers[’]
compensation benefits through Southern States Insurance
Exchange.[6] With regard to the proof that [Somerset] was
a contractor of Southern States Cooperative, the
management agreement and the affidavit of A.
Clingenpeel clearly shows that [Somerset] meets the
definition of “contractor” under Kentucky law.
On July 25, 2018, the Defendants AGCO and Cargill filed a notice
again removing the case to federal court.
On August 1, 2018, Huff filed a notice of appeal to this Court from
the Mercer Circuit Court’s order of July 23, 2018. On March 21, 2019, Huff filed
a motion to dismiss that appeal.7 By an order entered on May 14, 2019, in Huff v.
6
Exhibit 4 to Somerset’s memorandum in support of its motion to dismiss/for summary
judgment is a copy of an unexecuted Workers’ Claims Agreement as to Compensation/ Form
110-F which reflects the Defendant/Employer is Southern States Cooperative, the Insurer is
Southern States Insurance Exchange, and that the injury/fatality occurred on August 4, 2016, at
1027 North College Street, Harrodsburg, Kentucky, which is listed as mailing address for the
Defendant/Employer. The description of the occurrence is “Decedent was operating a front-end
loader when it overturned pinning Decedent underneath it.” (ROA at 175).
7
In her motion to dismiss the earlier appeal to this Court, Huff explains that she filed it out of an
abundance of caution after Defendants Cargill and AGCO again filed a notice removing the case
to federal court. Thus, Huff had no avenue of relief because she was not a party to the federal
court action. On August 13, 2018, this Court entered a show cause order as to why the appeal
should not be dismissed as premature. The matter was subsequently passed to the merits panel.
Then on March 13, 2019, the United States District Court entered an order again remanding the
case to Mercer Circuit Court, which regained jurisdiction over the matter in its entirety. (ROA at
429-31).
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Southern States Somerset Cooperative, Incorporated, No. 2018-CA-001185, this
Court granted Huff’s motion. (ROA at 411). We dismissed the appeal as
interlocutory because the order granting summary judgment did not contain the
requisite finality language.
On July 12, 2019, Huff filed a notice of service of discovery requests
to the defendants in Mercer Circuit Court, including interrogatories, requests for
production, and a request for admissions to Somerset.
On July 15, 2019, Somerset filed a motion pursuant to CR8 54.02
requesting that the circuit court make final and appealable its July 23, 2018, order
dismissing Huff’s claims against it.
On August 7, 2019, Somerset filed a motion for a protective order
pursuant to CR 26.03 regarding Huff’s discovery requests. Somerset argued that
although the order dismissing the claims against it was not yet final and
appealable, the discovery requests were not proper because Somerset was no
longer a party to whom interrogatories, requests for production, and requests for
admission could be directed.
On August 9, 2019, Huff filed a response objecting to Somerset’s
motion to make the July 23, 2018, order final and appealable. On August 12, 2019,
Somerset filed a reply.
8
Kentucky Rules of Civil Procedure.
-9-
On September 9, 2019, the circuit court entered an order granting
Somerset’s motions as follows in relevant part:
[T]he [c]ourt having reviewed the written record, heard
arguments of counsel, and being otherwise sufficiently
advised;
IT IS HEREBY ORDERED AND ADJUDGED as
follows:
1. The July 23, 2018 [o]rder dismissing the claims
against [Somerset] is hereby final and appealable, as
there is no just reason for delay;
2. [Somerset’s] Motion for Protective Order is hereby
SUSTAINED.
On October 8, 2019, Huff filed a notice of appeal to this Court from
the circuit court’s orders of July 23, 2018, and September 9, 2019.
Huff first argues that the circuit court erred in certifying the order of
July 23, 2018, as final and appealable. CR 54.02(1) provides as follows:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may grant a final judgment upon one or more
but less than all of the claims or parties only upon a
determination that there is no just reason for delay.
The judgment shall recite such determination and
shall recite that the judgment is final. In the absence
of such recital, any order or other form of decision,
however designated, which adjudicates less than all the
claims or the rights and liabilities of less than all the
parties shall not terminate the action as to any of the
claims or parties, and the order or other form of decision
is interlocutory and subject to revision at any time before
the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
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(Emphasis added.)
As Somerset notes, this is not a case where a judgment was made final
as a matter of routine. The issue was addressed in Somerset’s motion, in Huff’s
response, and in Somerset’s reply. The circuit court’s July 23, 2018, order
disposed of all claims Huff asserted against Somerset. The circuit court
determined that there was no just reason for delay. The September 9, 2019, order
contained the requisite recitals and made the July 23, 2018, order final and
appealable pursuant to CR 54.02. We find no abuse of discretion. Christie v. First
Am. Bank, 908 S.W.2d 679, 681 (Ky. App. 1995) (“[W]e see no reason to reverse
such a certification where the trial court has made a ‘determination that there is no
just reason for delay.’ CR 54.02. The trial court has broad discretion in such
matters.”). Thus, we reject Huff’s contention that the circuit court erred in making
the order of July 23, 2018, final and appealable. We affirm with respect to this
issue.
Huff next argues that reversal and remand are warranted on the
merits.9 She contends that although Somerset nominally filed its motion to dismiss
9
As Somerset notes at page 7 of its Appellee’s Brief, Huff relies upon deposition testimony
which is not properly in the record on appeal. Somerset explains that the corporate
representative’s deposition was taken by the remaining Defendant AGCO in October 2019, after
Somerset’s dismissal. We agree, and therefore, we have not considered any reference to this
deposition testimony in Huff’s Brief.
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pursuant to CR 12.02, the motion should instead be treated as one for summary
judgment. We agree.
Because the trial court considered matters outside the
pleadings, however, we shall review its decision as
though it were a summary judgment. CR 12.03; Old
Mason’s Home of Kentucky, Inc. v. Mitchell, [892
S.W.2d 304 (Ky. App. 1995)]. Because summary
judgments involve no fact finding, this Court reviews
them de novo, in the sense that we owe no deference to
the conclusions of the trial court. As did the trial court,
we ask whether material facts are in dispute and whether
the party moving for judgment is clearly entitled thereto
as a matter of law. Under this state’s rules of practice,
summary judgments are to be granted cautiously; they
are appropriate only when it appears impossible for the
non-movant to prove facts establishing a right to relief or
release, as the case may be. Steelvest, Inc. v. Scansteel
Service Center, Inc., [807 S.W.2d 476 (Ky. 1991)].
Blevins v. Moran, 12 S.W.3d 698, 700-01 (Ky. App. 2000).
In the case before us, the circuit court granted Somerset’s motion to
dismiss after determining that Mr. Huff’s employer had secured the payment of
workers’ compensation benefits – a fact which is not in dispute – and that
Somerset has met the definition of “contractor” under Kentucky law. However, we
are persuaded that the analysis and reasoning of the court misconstrued the law at
this juncture.
At the time of his death, Mr. Huff was performing work for his
employer, Southern States Cooperative, Inc., on his employer’s premises at its
Harrodsburg location. In fact, nothing in Ms. Clingenpeel’s affidavit or the 1948
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management agreement upon which the circuit court relied suggests that Mr. Huff
ever performed any work for Somerset anywhere – much less on Somerset’s
premises.
We find the reasoning in McMillen v. Ford Motor Company, No.
3:07-CV-309-S, 2009 WL 5169871, at *1 (W.D. Ky. Dec. 20, 2009), applicable
and instructive. The facts are as follows:
Ford Motor Company operates a facility called the
Kentucky Truck Plant (KTP). For the past decade, it has
been party to a “construction commodity management”
(CCM) contract with Abel Construction Company.
Under this arrangement, Abel provides construction and
maintenance work at the KTP on a non-bid basis for
projects worth less than $1 million. Pursuant to this
agreement, Abel has designated Comstock as an “alliant
partner”–one of two electrical subcontractors hired to
perform work at the KTP under the CCM contract.
Comstock and Abel each maintain a permanent
construction trailer on KTP premises. Comstock
employed McMillen as an electrician; at the relevant
times his job title was Superintendent. He maintained an
office in the Comstock trailer at the KTP and did
virtually all of his work for Comstock at the Ford site.
Id. at *1.
McMillen was on Ford’s KTP premises reviewing a new project.
After meeting with Abel Construction’s vice-president to discuss the project,
McMillen stayed to take notes to prepare a price proposal. When McMillen was
finished, a co-worker offered him a ride out of the plant on a motorized cart.
McMillen was injured when he was a struck on the head by a high-speed roll-up
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door. McMillen sued Ford for negligence in maintaining the door and its safety
features. He had already received Kentucky workers’ compensation benefits from
the workers’ compensation carrier for his employer, Comstock. The federal
District Court discussed the applicable Kentucky law with respect to Ford in some
detail:
The exclusiveness provision, KRS 342.690(1),
provides: “If an employer secures payment of
compensation as required by this chapter, the liability of
such employer under this chapter shall be exclusive and
in place of all other liability of such employer to the
employee . . . .” Because McMillen has undisputedly
received workers’ compensation benefits through
Comstock’s insurance policy, this statute would bar him
from recovery in tort if Ford is considered his
“employer.”
As to this question, KRS 342.690(1) goes on to say
that “the term ‘employer’ shall include a ‘contractor’
covered by subsection (2) of KRS 342.610, whether or
not the subcontractor has in fact[ ] secured the payment
of compensation.” In turn, KRS 342.610(2) defines a
contractor as a “person who contracts with another . . .
[t]o have work performed of a kind which is a regular or
recurrent part of the work of the trade, business,
occupation, or profession of such person.”
The courts have read these sections together as
forming the basis for the “up the ladder” defense: “an
entity ‘up the ladder’ from the injured employee and who
meets all the qualifications of a ‘contractor’ under KRS
342.610(2) is entitled to the immunity provided by KRS
342.690.” Davis v. Ford Motor Co., 244 F. Supp. 2d
784, 786 (W.D. Ky. 2003) (citing Goldsmith v. Allied
Bldg. Components, Inc., 833 S.W.2d 378, 381
(Ky.1992)). But a contractor may only assert this
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defense if it was potentially liable under the workers’
compensation scheme; without such potential liability,
there is no sense in extending “up the ladder” protection.
See KRS 342.690(1); KRS 342.610(2). The question,
then, is whether McMillen qualified as a statutory
employee of Ford at the time of his injury.
Id. at *4.
The court explained that McMillen was employed by Comstock as an
electrician and superintendent. Comstock was contracted by Abel, which had been
hired by Ford under a management contract to provide certain services on a non-
bid basis. McMillen spent more than 99% of his time with Comstock at Ford’s
KTP and had an office in a trailer on Ford’s premises. As an electrician for
Comstock, McMillen worked almost exclusively on Ford projects.
However, at the time of the accident, it appears that
McMillen had been working for Comstock itself, and not
for Ford. Before getting into Reed’s golf cart and driving
out the door, he had been evaluating a proposed worksite
in preparation for writing up a bid. Before Comstock
undertook any work on the project, it was required to
submit the bid to Abel, which then used it to craft its own
proposal to Ford. Ford then had the option to accept or
reject the quoted terms.
...
While McMillen acted for workers’ compensation
purposes as a Ford employee during much of his time
with Comstock, he was not doing so at the time of his
injury. The critical issue is which of these roles matters
to this litigation. Is it more important that he was
frequently a Ford “employee,” or that he was not acting
as one at the time in question?
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. . . Ford did contract with Comstock to have work
performed, but McMillen’s injury occurred while he was
performing work for Comstock itself, and not (at least,
not directly) for Ford. The language of KRS 342.610
does not specify how to address this situation.
Id. at *5. The District Court explained that it took some guidance from Davis,
supra,10 and concluded that:
It matters, that is, exactly what an employee is doing at
the relevant time. What is important is whether the
plaintiff can rightly be considered an “employee” of the
defendant at the time he is injured. If so, the plaintiff can
recover workers’ compensation benefits without proof of
fault, and the defendant is protected from suit. If not, the
defendant is vulnerable in tort.
...
[W]e think Kentucky law limits the up-the-ladder
defense to injuries sustained during work performed in
the service of the entity seeking to assert the defense.
No-fault workers’ compensation benefits are available
only for a “work-related traumatic event or series of
traumatic events.” KRS 342.[0]011(1) (emphasis added).
Courts have interpreted “work-related” narrowly to mean
10
Davis worked for the Budd Company, which pressed roof panels for Ford trucks in
accordance with Ford’s specification. Ford supplied the shipping racks to transport the
completed panels. Davis was injured while closing a shipping rack which had jammed. After
receiving workers’ compensation benefits from Budd, Davis filed a negligence action against
Ford. Ford moved for summary judgment, asserting that it was an up-the-ladder contractor under
KRS 342.610. The Court concluded that it was not, noting that the injury happened at Budd, not
at Ford, in connection with the manufacture of goods, not the rendition of services. “Naturally,
different scenarios could produce different results.” Davis, 244 F. Supp. 2d at 790.
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“arising out of and in the course of employment.”
Seventh St. Rd. Tobacco Warehouse v. Stillwell, 550
S.W.2d 469, 470 (Ky. 1976). “The rule is that
compensation is not recoverable for injuries sustained by
reason of a cause independent of and unconnected with
the work of employment because such injuries are not
brought about by conduct growing out of and incident to
the employment.” Chesser v. Louisville Country Club,
Inc., 313 S.W.2d 410, 411 (Ky. 1958) (citing Hayes
Freight Lines, Inc., v. Burns, 290 S.W.2d 836 (Ky.
1956)). McMillen's injuries were not related (except
very tenuously through the bidding process) to any work
done for Ford, and Ford consequently was not
responsible for his statutory benefits. Instead, he
recovered those benefits from Comstock, the company
that actually employed him at the time of his injury. But
because the plaintiff’s injuries do not qualify for no-fault
benefits from Ford, Ford also does not qualify to assert
that it is immune from suit.
Id. at *6-7. (Emphases added.)
For the same reasons, we conclude that in the case before us, the
Mercer Circuit Court erred in granting Somerset’s motion for summary judgment
on grounds of immunity under KRS Chapter 342. Mr. Huff was not performing
any work for Somerset at the time of his death; rather, he was working for his
“own and only” employer Southern States Cooperative, Inc., on his employer’s
premises in Harrodsburg. Thus, we conclude that Somerset does not qualify to
assert that it is immune from suit, and we reverse the circuit court’s order granting
summary judgment.
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Huff also seeks reversal of the circuit court’s September 9, 2019,
protective order. Somerset responds that the issue was not preserved because Huff
did not raise it in her prehearing statement. We agree. The issue is not properly
before us. Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004) (“Since that
issue was not raised either in the prehearing statement or by timely motion seeking
permission to submit the issue for ‘good cause shown,’ CR 76.03(8), this matter is
not properly before this court for review.”).
Accordingly, we AFFIRM the decision of the trial court in its order of
September 9, 2019, electing to certify the order of July 23, 2018, as final and
appealable. However, we REVERSE the order of the Mercer Circuit Court
granting summary judgment in favor of Somerset and REMAND for further
proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
William D. Nefzger Kevin W. Weaver
Louisville, Kentucky Ernest H. Jones, II
Jamie Wilhite Dittert
Lexington, Kentucky
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