Opinion
NO. 2017-CA-001856-MR
06-07-2019
UPPER POND CREEK VOLUNTEER FIRE DEPARTMENT, INC. APPELLANT v. RONNIE KINSER AND AMANDA KINSER APPELLEES
BRIEF FOR APPELLANT: Jonathan Shaw Paintsville, Kentucky BRIEF FOR APPELLEE: Ron Diddle Pikeville, Kentucky
NOT TO BE PUBLISHED ON REMAND FROM KENTUCKY SUPREME COURT
(CASE NO. 2018-SC-000179-DG) APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 17-CI-00634 OPINION AND ORDER
DISMISSING
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BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES. COMBS, JUDGE: This case is before us on remand from the Supreme Court of Kentucky. Upper Pond Creek Volunteer Fire Department, Inc., (Pond Creek), appeals from an order of the Pike Circuit Court postponing its ruling on a motion to dismiss filed by the fire department. Pond Creek sought to dismiss the tort action of Ronnie Kinser and Amanda Kinser, his wife.
This case has a rather unique procedural background. Pond Creek filed a notice of appeal on November 15, 2017, from an order of the Pike Circuit Court that had been entered on November 8, 2017. The order contained no finality language and recited that discovery "shall continue" in order for the court to be able to ascertain if Pond Creek would be entitled to assert a defense of immunity.
Prior to assigning the case to a merits panel, our Court ordered Pond Creek to show cause why the appeal should not be dismissed as interlocutory. On February 15, 2018, the appeal was dismissed on the Court's own motion. Pond Creek filed a motion to reconsider, which was denied on March 13, 2018.
Pond Creek then filed a motion for discretionary review in the Supreme Court on April 12, 2018. After granting the motion, the Supreme Court remanded the case to us for our consideration on the merits, directing as follows: "for further consideration of whether there was sufficient evidence to warrant a summary judgment on immunity grounds."
With that directive in mind, we have carefully reviewed the record and we conclude that there is no evidence in the record whatsoever to warrant entry of summary judgment on the issue of immunity. Consequently, we are compelled to dismiss the appeal for lack of jurisdiction because the appeal has been taken from a non-final, non-appealable order. The decision as to Pond Creek's eligibility for an immunity defense remains pending and subject to more discovery prior to entry of a final, appealable order by the Pike Circuit Court.
On the morning of October 19, 2016, Kentucky State Police responded to a call to Stone in Pike County. Upon arriving at the scene, the trooper found Ronnie Kinser lying beside his car; Kinser's right arm was trapped under the front tire. Kinser was unable to explain what had happened, but he indicated that he had lain beneath the car all night. Members of the Upper Pond Creek Volunteer Fire Department responded -- as did Appalachian First Response Emergency Service, Inc., a private ambulance provider. Kinser suffered severe crush injuries. First aid was delivered at the scene, and he was taken by Appalachian First Response's ambulance to Pikeville Medical Center. Kinser was hospitalized for several weeks. Ultimately, his right arm was amputated. He suffered a stroke as well resulting in the loss of the use of his left arm.
On June 19, 2017, the Kinsers filed an action for damages against the fire department, Appalachian First Response, and unknown employees of both entities. They alleged that that each entity had negligently: failed to train its employees in accordance with the Kentucky Board of Emergency Medical Services protocols; failed to ensure that its employees followed applicable protocols; and failed to hire and retain qualified employees. They alleged that the unknown employees negligently failed to provide proper care.
The fire department filed a motion to dismiss based upon governmental immunity. The trial court granted the motion in an order entered on October 4, 2017. The Kinsers filed a motion to alter, amend, or vacate, and the trial court conducted a hearing.
In an order entered on November 3, 2017, the trial court granted the Kinsers 120 days in which to conduct discovery with respect to the availability of immunity to the fire department and/or its unknown employees. The cause was set for a further hearing scheduled for March 16, 2018. In an order entered on November 8, 2017, the trial court found that there was insufficient information and evidence in the record upon which:
to make a proper determination of immunity for [negligent hiring, retention, or training]. Similarly, as to the allegations pertaining to the unknown employees of the Upper Pond Creek Volunteer Fire Department, the Court finds that these individuals would only be entitled to qualified official immunity. This determination can only be made after a finding that the acts of the unknown employees was either administrative or discretionary. There is no evidence in the record at this point to allow the Court to make this determination. Therefore, a determination on immunity cannot be made.The trial court amended its prior order to indicate that the "parties shall continue to conduct discovery on this matter." It ordered that the fire department "may raise the issue of immunity after sufficient proof has been discovered to allow the Court to make sufficient findings on this issue." The fire department filed this appeal.
Upon our review, we must dismiss this appeal, sua sponte, for lack of jurisdiction. See Doe v. Golden & Walters, PLLC, 173 S.W.3d 260 (Ky. App. 2005). An order denying a motion for summary judgment is interlocutory in nature. It is not a final order, and it is, therefore, generally not appealable. See Battoe v. Beyer, 285 S.W.2d 172 (Ky. 1955) (citations omitted). There are some exceptions to this rule. For example, a circuit court's denial of a claim of immunity -- to the extent that it turns on an issue of law -- is an appealable "final decision . . . notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (adopted by Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886-87 (Ky. 2009)). However, in order to be subject to our review, the court order must "conclusively determine the disputed question," and that question must involve a "claim of right separable from, and collateral to, rights asserted in the action." Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816.
In this case, the circuit court did not conclusively determine any disputed question, resolve any right, or otherwise provide us with anything to review. Its interlocutory order denied a claim of immunity for the time being on the basis that further discovery was needed. The circuit court did not make a finding as a matter of law on the issue of governmental or qualified immunity which would be subject to our review. We can find no exception that would make this interlocutory order appealable. Consequently, it is not subject to the jurisdiction of this Court. See Chen v. Lowe, 521 S.W.3d 587, 2017 (Ky. App. 2017).
Therefore, the appeal must be, and hereby is, DISMISSED.
ALL CONCUR. ENTERED: June 7, 2019
/s/ Sara Walter Combs
SARA WALTER COMBS BRIEF FOR APPELLANT: Jonathan Shaw
Paintsville, Kentucky BRIEF FOR APPELLEE: Ron Diddle
Pikeville, Kentucky