MOTORCYCLE SAFETY FOUNDATION, INC., ET AL. V. HON. IRV MAZE, JUDGE, JEFFERSON CIRCUIT COURT AND CATHERINE LACKS, ET AL.
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : JANUARY 20, 2011
NOT TO BE PUBLISHED
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MOTORCYCLE SAFETY FOUNDATION, INC . ;
KENTUCKY DRIVING SCHOOL, INC. ;
JAMES EPLEY; JACK HOWARD ; AND
UNKNOWN DEFENDANT
V
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-002120-OA
JEFFERSON CIRCUIT COURT NO . 05-CI-005890
HON . IRV MAZE, JUDGE,
JEFFERSON CIRCUIT COURT
AND
CATHERINE LACKS AND
TIMOTHY LACKS
APPELLEES
REAL PARTIES IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Motorcycle Safety Foundation, Inc., the Kentucky Driving School,
Inc., James Epley, and Jack Howard appeal from an Order of the Court of
Appeals denying their petition for a writ directing Judge Irv Maze of the
Jefferson Circuit Court to dismiss a personal injury suit brought against them
by the real parties in interest, Timothy and Catherine Lacks. The Court of
Appeals ruled that Appellants are not entitled to relief under CR 81 because
the errors they allege may be reviewed by appeal in the ordinary course of
litigation . We agree and so affirm.
Catherine was injured while participating in a motorcycle operator
training program provided by the Kentucky Driving School through its
instructors Epley and Howard . The Lackses allege that the school and its
instructors negligently provided her with a motorcycle that malfunctioned,
resulting in Catherine's injuries . When she registered for the course, Catherine
executed a waiver form which contains a release of the school, its instructors,
and the Motorcycle Safety Foundation "from any and all liability . . . [for] bodily
injuries and property damage arising out of participation in this motorcycle
training course." Relying on this waiver, Appellants moved for summary
judgment . In their motion they noted that in an unpublished opinion,
Broughton v. Motorcycle Safety Foundation, Inc., 2006-CA-001839-MR, 2007 WL
3317792 (Ky. App . Nov. 9, 2007), a unanimous panel of the Court of Appeals
upheld the validity of an identical waiver and affirmed the dismissal of a similar
personal injury suit brought against the Motorcycle Safety Foundation and
another provider of a motorcycle operator's training program .
Notwithstanding Broughton, the trial court denied Appellants' summary
judgment motion . The court explained that it did not consider itself bound by
the Court of Appeals' unpublished decision and indicated that it deemed the
waiver form invalid under the test this Court set out in Hargis v. Baize, 168
S .W.3d 36 (Ky . 2005) . Appellants thereupon petitioned the Court of Appeals
for a writ compelling the trial court to dismiss the Lackses' complaint. They
argued before the Court of Appeals, as they now argue before us, that the trial
court erred with respect to both the binding effect of Broughton and the validity
of the waiver under Hargis. As the Court of Appeals correctly noted, however,
allegations of error alone do not justify extraordinary relief under CR 81 . On
the contrary, as we have many times recited, a writ for extraordinary relief may
be granted only
upon a showing (1) that the lower court is proceeding
or is about to proceed outside its jurisdiction and there
is no remedy through an application to an
intermediate court; or (2) that the lower court is acting
or is about to act erroneously, although within its
jurisdiction, and there exists no adequate remedy by
appeal or otherwise and great injustice and irreparable
injury will result if the petition is not granted.
Estate of Cline v. Weddle, 250 S .W .3d 330, 334 (Ky. 2008) (quoting from
Hoskins v, Maricle, 150 S .W.3d l, 10 (Ky. 2004)) . Where, as here, the trial
court is proceeding within its jurisdiction, "a showing of no adequate remedy
by appeal is `an absolute prerequisite' to obtaining a writ for extraordinary
relief." Id. at 335 (quoting from Independent Orders of Foresters v. Chauvin,
175 S.W .3d 610, 615 (Ky. 2005)) .
Whether Broughton, although unpublished, was nevertheless binding
upon the trial court, and if not whether the waiver Catherine executed is
enforceable under Hargis are ordinary questions of law of the sort that trial
courts must routinely decide . With a few narrow exceptions, under our rules
such interlocutory trial court decisions are not subject to immediate appellate
review . Cf., Breathitt County Board of Education v. Prater, 292 S .W.3d 883 (Ky .
2009) . They are reviewed rather with other assertions of error in the appeal
from the final judgment . CR 54 .
Appellants complain that if the trial court has erred, a . correction of the
error at this juncture would spare them and the trial court the expense of trial .
We have many times held that CR 81 is not a substitute for an interlocutory
appeal and that under that rule "the ordinary expense of litigation does not
render an appeal inadequate ." Sunbeam Corporation v. Dortch, 313 S.W .3d
114, 117 (Ky. 2010) (citing Estate of Cline, 250 S.W.3d at 335) .
Appellants also seek to bring their case within one of the exceptions to
the final judgment rule by analogizing the waiver at issue to the immunity from
suit enjoyed by the State and its agencies. In Prater, we explained that because
the Commonwealth's immunity from suit is meant to shield it from the
distraction and burden of litigation as much as from liability for damages, a
trial court's denial of a good-faith immunity defense requires interlocutory
review lest the litigation shield be rendered meaningless . Appellants invoke
this litigation shield aspect of immunity, but we do not understand them to be
claiming that they are in fact immune from the Lackses' suit . Such a claim is
not sustainable . Appellants note that pursuant to KRS 15A.350, the Justice
and Public Safety Cabinet has been charged with establishing a motorcycle
safety education program for the Commonwealth and that in furtherance of
that mandate the Cabinet, through the Kentucky Motorcycle Safety Education
Program (KMSEP), has adopted training standards promulgated by the
Foundation and has contracted with training providers such as the Kentucky
Driving School. These facts, however, as Appellants more or less concede, do
not change the fact that Appellants are all private parties pursuing private
ends, public-spirited though they may be, and thus they have no claim to the
Commonwealth's immunity from suit. Yanero v. Davis, 65 S .W.3d 510 (Ky.
2001) (discussing immunity in, its various guises, all of which apply only to
state or governmental actors) .
We understand Appellants' argument to be rather that, like immunity,
the waiver Catherine executed was meant to give Appellants not only a defense
against liability but a shield against being sued at all, a shield all the more
appropriate because of the public interest in promoting motorcycle safety.
Appellants will lose this benefit of their bargain, they insist, if they are not
granted what in effect would be an interlocutory appeal from the denial of their
summary judgment motion. We disagree .
The Commonwealth's immunity from suit has traditionally been justified
on the ground that the public is entitled to a government zealously serving the
public good undeterred by the threat of damages suits and undistracted by
litigation . Yanero, 65 S .W.3d at 518-19 . As the United States Supreme Court
discussed in Richardson v. McKnight, 521 U .S . 399 (1997), a case in which the
Court held that guards at a private prison were not immune from suit under 42
U .S .C . ยง 1983, those concerns do not translate to private entities, which,
subject to market discipline, serve their own interests, interests sufficient to
overcome the deterrent effects of litigation and potential liability . Contracts not
to sue, therefore, implicate not immunity concerns but ordinary market
negotiating and may, like other contracts, be adequately enforced by an award
of damages for breach . Sonja A. Soehnel, Recovery of Attorneys' Fees and
Costs of Litigation Incurred as Result of Breach ofAgreement Not to Sue, 9 A . L. R.
Sth 933 (1993) . Even if it is ultimately determined, therefore, that Catherine
entered a valid contract not to sue Appellants and breached that agreement by
bringing the present action, Appellants have adequate means of vindicating
their bargain either by counter-claim in this litigation or by bringing a separate
action for breach of contract.
In sum, whether the trial court is bound by an unpublished opinion of
the Court of Appeals and whether it erred by refusing to give effect to
Catherine's purported waiver are interlocutory questions subject to the final
judgment rule . If the trial court has erred, Appellants have an adequate
remedy through an appeal and breach of contract claim, and thus are not
entitled to extraordinary relief. Accordingly, we affirm the Order of the Court of
Appeals denying the petition for writ.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Virginia Hamilton Snell
David Andrew Calhoun
Sara Christine Veeneman
Wyatt, Tarrant 8, Combs, LLP
500 W. Jefferson St., Suite 2800
Louisville, KY 40202-2898
APPELAEES :
Hon. Irv Maze, Judge
Jefferson Circuit Court
Jefferson County .Judicial Center
700 West Jefferson St ., Suite 901
Louisville, KY 40202
COUNSEL FOR REAL PARTIES
IN INTEREST, Timothy Lacks and
Catherine Lacks:
Grover Simpson Cox
Mussler 8s Associates
401 W. Main Street, Suite 1700
One Riverfront Plaza
Louisville, KY 40202
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