CASE NO.

09-CI-008713 JEFFERSON CIRCUIT COURT

DIVISION III

BAYBERRY CO-OWNERS ASSOCIATION, INC. PLAINTIFF

v. NOTICE-MOTION-ORDER

LORRAINE MURPHY DEFENDANT

*****
NOTICE

Please take notice that the undersigned will on Tuesday, 6 July 2010 at

9:45 AM., or as soon thereafter as Counsel may be heard, make the Motion

below and tender the attached proposed Order in the courtroom of the above

Court.

MOTION FOR PARTIAL SUMMARY JUDGMENT

Comes the Plaintiff, Bayberry Co-Owners Association, Inc., by and through

Counsel, and respectfully moves this Court, pursuant to CR 56, to grant Summary

Judgment an the issues set forth in Plaintiff’s Complaint for the reasons set forth

in the Memorandum attached hereto.

Respectfully submitted,

_______________________
C. Dodd Harris, IV
HAYDEN & CRAIG, PLLC
718 West Main St.
Louisville, KY 40202
Phone: 502-638-2836
Fax: 502-805-0705

Counsel for Plaintiff

 CERTIFICATE OF SERVICE

It is hereby certified that a true copy of the foregoing was sent on this ___ day of
June, 2010 by first class mail, postage pre-paid, to the following:

Hon. Aaron J. Silletto Unknown Spouse of Lorraine D. Murphy,

Goldberg Simpson LLC If Any
9301 Dayflower St. 8714 Bayberry Pl. #6
Louisville, KY 40059 Louisville, KY 40242

Hon. Mark H. Gaston Unknown Occupants of 8714 Bayberry

436 S 7th St., 1st Fl. Pl., #6, If Any
Louisville, KY 40203 8714 Bayberry Pl., #6
Louisville, KY 40242
Hon. David S. Davis
3503 Vale Cr. Hon. Becky Peak, Mayor
Louisville, KY 40241 City of Plantation
P.O. Box 22698
Hon. Mike O’Connell Louisville, KY 40252
County Attorney
Fiscal Court Building
531 Court Place, Suite 900
Louisville, KY 40202

______________________
C. Dodd Harris, IV

Counsel for Plaintiff

CASE NO. 09-CI-008713 JEFFERSON CIRCUIT COURT
DIVISION III

BAYBERRY CO-OWNERS ASSOCIATION, INC. PLAINTIFF

v. ORDER

LORRAINE MURPHY DEFENDANT

*****
Motion having been made and the Court being sufficiently advised,

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s

Motion for Partial Summary Judgment should be, and hereby is, GRANTED.

SO ORDERED this ______ day of _________________ 2007.

_____________________________
JUDGE, JEFFERSON CIRCUIT COURT

Tendered By:

__________________________
C. Dodd Harris, IV
HAYDEN & CRAIG, PLLC
718 West Main St.
Louisville, KY 40202
Phone: 502-638-2836
Fax: 502-805-0705

Counsel for Plaintiff

CASE NO. 09-CI-008713 JEFFERSON CIRCUIT COURT
DIVISION III

BAYBERRY CO-OWNERS ASSOCIATION, INC. PLAINTIFF

v. MEMORANDUM IN SUPPORT

LORRAINE MURPHY DEFENDANT

*****

PLAINTIFF’S MEMORANDUM IN SUPPORT

OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Comes the Plaintiff, Bayberry Co-Owners Association, Inc. (the

“Association”), by and through Counsel, and hereby submit this Memorandum in

Support of Plaintiff’s Motion for Partial Summary Judgment.

I. STATEMENT OF RELEVANT FACTS

Defendant resides in the Unit No. 6 (“Subject Unit”) of the subject

horizontal property regime (“Bayberry Place”) located in Jefferson County,

Kentucky. (See Complaint, ¶ 2) On or about 26 November, 2008, Defendant was

burned in a fire in the Subject Unit and hospitalized. (See Complaint, ¶ 7) Then,

on or about 29 April, 2009, the Subject Unit again caught fire due to an explosion

caused by a cigarette, resulting in Defendant’s hospitalization. (See Complaint, ¶

9; Exhibit A, attached hereto and hereby incorporated by reference). At the time

of the latter incident, several other residents encountered Defendant and

concluded that she was inebriated. (See Complaint, ¶ 11; Exhibit B, attached

hereto and hereby incorporated by reference; Exhibit C, attached hereto and

hereby incorporated by reference; Exhibit D, attached hereto and hereby

incorporated by reference)
 Subsequently, the Association lost its liability insurance coverage and was

forced to secure high risk insurance from Lloyd’s of London at a significantly

higher rate. (See Deposition of Don Keeling (“Keeling Depo”), attached hereto as

Exhibit E and hereby incorporated by reference, p. 5) The Association will

continue to be charged this higher rate as long as Defendant owns and/or resides

in the Subject Unit.

KRS 381.885 (“Insurance Statute”) provides that, “should the amount of

any insurance premium be affected by a particular use of a unit or units, the

owners of such units shall be required to pay any increase in premium resulting

from such use.” Also, the Bayberry Place Condominiums Master Deed and

Bylaws (hereinafter, collectively, the “Governing Documents”), the requirements

of which are binding upon Defendant, forbid anything being “done or maintained

in any Condominium Unit or upon the Common Elements which will increase the

rate of insurance on the Condominium Unit or any Common Elements or result

in the cancellation thereof.” (See Complaint, ¶¶ 14-15; Exhibit F, attached hereto

and hereby incorporated by reference; Exhibit G, attached hereto and hereby

incorporated by reference) Defendant has been billed a total of $12,629.83 for

the increase in the Association’s insurance premium, but has refused to pay. (See

Complaint, ¶¶ 21-23; Exhibit H, attached hereto and hereby incorporated by

reference) Further, Defendant is delinquent in payment of assessments and/or

condominium fees owed by her pursuant to the terms of the Governing

Documents totaling $4,090.75 despite demand having been made for same. (See

Complaint; ¶¶ 19-23, Exhibit H)

 II. ARGUMENT

A. SUMMARY JUDGMENT IS APPROPRIATE WHERE THERE IS

NO GENUINE DISPUTE AS TO THE MATERIAL FACTS

Under CR 56.01, the Association may move for summary judgment "upon

all or any part" of its claims against Defendant. Although summary judgment is

to be cautiously applied and not used to sever litigants from their right to trial

when they have viable issues, Steelvest, Inc. v. Scansteel Service Center, Ky., 807

S.W.2d 476, 483 (1991), summary judgment can be proper when the controlling

facts are not in dispute. In Steelvest, the Supreme Court reaffirmed the

appropriateness of summary judgment in such cases where the material facts are

not in dispute:

This court has consistently recognized that the original purpose of

summary judgment procedure is to expedite the disposition of cases and
to avoid unnecessary trials where no genuine issues of material fact are
raised.

Id. at 482. The Supreme Court has repeatedly upheld trial court’s grant of

summary judgment where no genuine issues of material fact exist. (See, e.g.,

Centre College v. Trzop, Ky., 127 S.W.3d 562 (2003)(citing Steelvest); Welch v.

American Publishing Co. of Kentucky, Ky., 3 S.W.3d 724 (1999)(citing Steelvest);

Hubble v. Johnson, Ky., 841 S.W. 2d 169, 171 (1992) (citing Steelvest); Mullins v.

Commonwealth Life Insurance Co., Ky., 839 S.W. 2d 245, 247 (1992) (citing

Steelvest); Mitchell v. Hadl, Ky., 816 S.W. 2d 183, 185-86 (1991), Brown

Foundation v. St. Paul Insurance Company, Ky., 814 S.W.2d 273, 277 (1991).

As more particularly set forth below, there is no genuine issue of material

fact herein. Defendant’s continued residence in, and ownership of, the Subject

Unit, and/or her negligence therein, is the direct and proximate cause of the
Association’s damages. Further, Defendant is delinquent in payment of

assessments and/or fees arising from and/or related to the Subject Unit.

Accordingly, the Association’s Motion for Summary Judgment should be

granted.

B. INSURANCE STATUTE

The Insurance Statute reads, in full, as follows:

The council of co-owners may acquire insurance protection for the regime,
including, but not exclusively, casualty, liability and employee workers'
compensation insurance, without prejudice to the right of each co-owner to
insure his own unit on his own account and for his own benefit. The
premiums on such insurance shall be considered common expenses,
enforceable under lien rights, provided, should the amount of any
insurance premium be affected by a particular use of a unit or
units, the owners of such units shall be required to pay any
increase in premium resulting from such use. [Emphasis added.]

Defendant’s ownership of, and residence in, the Subject Unit is a

“particular use” under the Insurance Statute. (See Keeling Depo, pp. 4-8) Absent

this one factor, the Association’s insurance premiums for its general liability

policy would be approximately one-fifth (1/5) the current amount. (See Keeling

Depo, p. 10)

Thus, pursuant to the plain terms of the Insurance Statute, Defendant is

liable for the full amount of the increased insurance premium charged to

Bayberry Place arising from her ownership of and residence in the Subject Unit.

Accordingly, the Association’s Motion for Summary Judgment should be granted

and Defendant should be held liable for the full amount of said increased

premium from the date of said increase.

C. RES IPSA LOQUITUR

Commonwealth, Dep't of Highways v. Burchett, 419 S.W.2d 577, 578 (Ky.

1967)(citing Lewis v. Wolk, 312 Ky. 536 (Ky. 1950)) sets forth the three essential

elements for res ipsa loquitur:

(1) the instrumentality must be under the control or management of the

defendant, (2) the circumstances, according to common knowledge and
experience, must create a clear inference that the accident would not have
happened if the defendant had not been negligent, and (3) the plaintiff's
injury must have resulted from the accident.

Here, the fire department concluded that the fire in the Subject Unit that

resulted in the Association’s damages was caused by a cigarette. It is undisputed

that Defendant was in sole possession and control of the Subject Unit at the time

of the fire. The circumstances create a clear inference that Defendant was

negligent. To wit: The only reasonable conclusion to be drawn from the fact that

the fire was caused by a cigarette is that the Defendant was negligent in her

handling of said cigarette.

As said fire was the direct and proximate cause of the Association’s

damages, Defendant is liable for same. Accordingly, the Association’s Motion for

Summary Judgment should be granted and Defendant should be held liable for

the full amount of the increased insurance premiums from the date of said

increase.

D. MASTER DEED AND BYLAWS

Defendant is liable to the Association for her proportionate share of

Bayberry Place common expenses, which obligation creates a lien against the

Subject Unit prior to all other liens except tax liens and first mortgages. (See KRS

381.883; Governing Documents) Despite repeated demands, Defendant has

failed to pay said proportionate share. KRS 381.883 provides that “[s]uch lien

may be enforced by suit by the administrator or board of administration, acting

on behalf of the unit owners, in like manner as a mortgage of real property.”

Summary judgment is particularly proper where the Court will only be

resolving legal issues, such as the priority of liens. See Cornette v.

Commonwealth, 899 S.W.2d 502 (Ky. App. 1995). Here, the Association’s lien

has priority over any other obligation or liability other than tax liens and first

mortgages. No evidence has been presented that any such liabilities are owed,

save for 2010 ad valorem taxes not yet due. Thus, pursuant to KRS 381.883, the

Association’s lien is superior as a matter of law to any other liens extant, except

for said 2010 ad valorem taxes. Accordingly, the Association’s Motion for

Summary Judgment should be granted.

III. CONCLUSION

In assessing whether summary judgment is appropriate, the Court reviews

the material facts in a light most favorable to the party opposing the motion, and

all doubts are to be resolved in her favor. Steelvest, supra at 480. Viewing the

facts in the light most favorable to Defendant, there is no genuine issue of

material fact in dispute herein. Defendant negligently caused a fire, which was

the direct and proximate cause of the Association’s increased insurance costs.

Under the plain terms of both the Insurance Statute and the Governing

Documents, Defendant is liable for said increase. Further, Defendant is

delinquent in paying her proportionate share of the Association’s common

expenses, creating a lien on the Subject Unit enforceable under KRS 381.883.
 Accordingly, the Association’s Motion for Summary Judgment should be

granted.

WHEREFORE, Plaintiff, Bayberry Place Co-Owners Association, Inc.,

respectfully moves the Court:

a) That Plaintiff’s Motion for Summary Judgment be granted;

b) For Judgment against Defendant for compensatory damages

in an amount that is fair and reasonable as shown by the evidence;

c) That, to secure the Judgment, Bayberry be adjudged to have

a lien on the Subject Property pursuant to KRS 381.883, which lien

is first, prior, and superior to all other liens (except for other liens

for delinquent ad valorem taxes and first mortgages), if any, on the

Subject Property.

d) For pre-judgment and post-judgment interest against

Defendant;

e) For Bayberry’s costs expended herein, including but not

limited to reasonable attorney’s fees pursuant to the Governing

Documents;

f) And for any and all other legal and equitable relief in an

amount as properly established by the Court to which it may be

entitled and which to the Court may seem just and proper under the

Constitution.
Respectfully submitted,

_______________________
C. Dodd Harris, IV
HAYDEN & CRAIG, PLLC
718 West Main St.
Louisville, KY 40202
Phone: 502-638-2836
Fax: 502-805-0705

Counsel for Plaintiff