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Court of Appeals of Kentucky.


NO. 2010–CA–001600–MR

Decided: January 13, 2012

BEFORE:  COMBS, STUMBO, AND WINE, Double JUDGES. BRIEF FOR APPELLANTS:  Kyle Ray Salyer Paintsville, Kentucky BRIEF FOR APPELLEE:  David J. Porter Paintsville, Kentucky



This is an appeal from a defense verdict in favor of Palimar Electric, Inc., in an action involving damage to real property.   Bobby James and Sondra Jones James, the plaintiffs below, contend that they are entitled to a new trial based upon the court's failure to properly instruct the jury.   After reviewing the entire record and the relevant law, we affirm.

In 2005, Jefferson Gas, LLC, was planning the installation of a natural gas pipeline to run approximately twenty-nine miles across Magoffin County and Johnson County.   Jefferson Gas contracted with Palimar Electric, Inc., for the excavation and installation of the entire length of the line.

In September 2005, Jefferson Gas paid $10,000.00 to the Jameses and agreed to bury their existing water line in exchange for a gas-line easement across the Jameses' mountain-top property in Johnson County.   Later, the Jameses requested Jefferson Gas to relocate the gas-line easement to a point higher on the mountain (and closer to their home) so that their water line could be better accommodated.   Jefferson Gas agreed to the change in location.

In October 2005, pursuant to the specifications (and under the constant inspection) of Jefferson Gas, Palimar Electric installed the underground lines on a natural bench on the side of the mountain below the Jameses' home.   The Jameses were not satisfied with the installation of the water line.

In April 2006, the soil in front of the Jameses' residence began to subside.   They attributed this condition to the installation of the gas line.   They notified Jefferson Gas, and Jefferson Gas contacted Palimar Electric.   Palimar Electric returned to the site and examined the mountainside.   While it disclaimed any responsibility for the destabilization, Palimar Electric agreed to supply one laborer and to deliver some heavy equipment to the site for the use of Jefferson Gas. According to the Jameses, the efforts to remedy the subsidence proved unsuccessful, and more of the soil began to slip and sink over time.   While Jefferson Gas returned to the property at least twice to undertake repair, Palimar Electric refused to re-enter the Jameses' property.

In February 2007, Bud Rife Construction prepared an estimate for the repairs that it believed were necessary to stabilize the Jameses' property.   Bud Rife estimated that the repairs would cost $130,000.00.   In April 2007, the Jameses' residence caught fire and was declared a total loss.   Although the house was insured, the Jameses were reluctant to rebuild until the subsidence issue had been resolved.

On July 31, 2007, the Jameses filed a complaint in Johnson Circuit Court alleging that Jefferson Gas had negligently caused damage to their real property.   They sought compensatory damages in the amount of $130,000.00.

On November 14, 2007, Jefferson Gas filed a motion for leave to file a third-party complaint against Palimar Electric.   Jefferson Gas contended that it was entitled to be indemnified by Palimar Electric for any loss or damage caused by Palimar Electric's allegedly negligent performance at the Jameses' property.   The trial court granted the motion, and Jefferson Gas filed its third-party complaint against Palimar Electric in December 2007.

In March 2008, Jefferson Gas was released from liability by an agreement with the Jameses, who immediately filed an amended complaint naming Palimar Electric as the sole defendant.   The Jameses alleged that Palimar Electric had failed to lay the gas pipeline in a workman-like fashion and that, as a result of its negligence, the Jameses had suffered damages in an amount no less than $130,000.00.   The Jameses also alleged that Palimar Electric had unlawfully interfered with the use and enjoyment of their property.   For this claim, they sought compensatory and punitive damages in undisclosed amounts.

A trial was conducted on July 7 and 8, 2010.   Following the presentation of evidence, the circuit court instructed the jury concerning the separate obligations imposed by law upon Palimar Electric and upon Jefferson Gas. The jury rejected the Jameses' contention that Palimar Electric had failed to exercise ordinary care to excavate and to install the gas pipeline and/or that such failure was a substantial factor in causing the subsidence.   Instead, the jury found that Jefferson Gas had failed to exercise ordinary care in locating and/or maintaining its pipeline and that its failure to do so was a substantial factor in causing harm to the Jameses' property.   The jury found that the Jameses had suffered damage to their property in the amount of $65,000.00 and attributed fault entirely to Jefferson Gas.

Since the jury had determined that Palimar Electric was not responsible for any part of the damage and since Jefferson Gas had already been released from liability, the court's judgment awarded the Jameses nothing.   Their subsequent motion for a new trial was denied, and this appeal followed.

On appeal, the Jameses contend that the trial court erred by permitting the jury to apportion fault between Palimar Electric and Jefferson Gas. They argue that Palimar Electric undertook the project as an independent contractor and agreed to assume responsibility and all risks associated with the project.   They contend that under these circumstances, Jefferson Gas could not have been at fault and that the court's instructions served merely to confuse the jury.   In the alternative, the Jameses contend that the trial court's charge concerning the duty of care imposed upon Jefferson Gas was overly specific and that it violated Kentucky's “bare-bones” approach to jury instructions.   We disagree with both contentions.

At trial, Palimar Electric presented evidence to show that it had absolutely no discretion with respect to where the water and gas lines would be installed across the Jameses' property.   The uncontradicted evidence indicated that Jefferson Gas (after consultation with the Jameses) decided where the easement would be located and flagged the location for Palimar Electric's excavation and installation of the water and gas lines.   Bud Rife (the Jameses' witness) admitted in his testimony that he had no way of knowing whether the water and gas lines installed by Palimar Electric had been installed incorrectly or in an unworkman-like fashion.  (Rife inspected the site in February 2007.)   However, he candidly admitted that the location of the lines was not ideal and that the bad location had permitted water to accumulate beneath the soil.   Rife testified that locating the lines to a place on the property having better drainage could have prevented the subsidence.

The provisions of Kentucky Revised Statute(s)(KRS) 411.182 require an apportionment of fault among potential tortfeasors even where one of the defendants has been released from liability by settlement.   In light of the evidence presented at the trial, the trial court had a duty to instruct the jury to consider the potential liability of both Jefferson Gas and Palimar Electric and to apportion a specific share of the total liability to each of them.   Furthermore, the trial court's instructions and interrogatories – which were relevant and specific as to each potential tortfeasor – were entirely proper in form and substance.

Finally, the Jameses contend that the trial court erred by refusing to instruct the jury concerning their claim of loss of use and enjoyment and their request for punitive damages.   Because the jury found that Jefferson Gas was wholly at fault in this matter, we conclude that that alleged error is moot.

We affirm the judgment of the Johnson Circuit Court.