GARY W. BENTLEY V. HON. R. CLETUS MARICLE, SPECIAL JUDGE, HARLAN CIRCUIT COURT, AND STELLA MAE MORRIS, INDIVIDUALLY, ET AL. ()

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IMPORTANT NOTICE NOT TO BE PUBLISH ED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. '$uyrrutr (~Vurf of RENDERED : MAY 21, 2009 ELF'-i, 2008-SC-000347-MR H 8s D MINING, INC . AND RANDALL FLEMING V. ON APPEAL FROM COURT OF APPEALS CASE NO . 2008-CA-000049-OA HARLAN CIRCUIT COURT NO . 07-CI-00168 HON . R. CLETUS MARICLE, SPECIAL JUDGE, HARLAN CIRCUIT COURT; AND STELLA MAE MORRIS, INDIVIDUALLY ; STELLA MAE MORRIS, ADMINISTRATRIX OF THE ESTATE OF DAVID SHERMAN MORRIS, JR. ; AND STELLA MAE MORRIS, PARENT AND NEXT FRIEND OF LANDEN JAYCOB MORRIS, A MINOR APPELLEE REAL PARTY IN INTEREST AND 2008-SC-000357-MR GARY W. BENTLEY V. APPELLANT ON APPEAL FROM COURT OF APPEALS CASE NO . 2008-CA-000048-OA HARLAN CIRCUIT COURT NO . 07-CI-00168 HON. R. CLETUS MARICLE, SPECIAL JUDGE, HARLAN CIRCUIT COURT ; AND STELLA MAE MORRIS, INDIVIDUALLY ; STELLA MAE MORRIS, ADMINISTRATRIX OF THE ESTATE OF DAVID SHERMAN MORRIS, JR. ; AND STELLA MAE MORRIS, PARENT AND NEXT FRIEND OF LANDEN JAYCOB MORRIS, A MINOR APPELLEE REAL PARTY IN INTEREST MEMORANDUM OPINION OF THE COURT AFFIRMING This appeal is before us from the denial of a petition for writ of prohibition by the Court of Appeals. Appellants, H 8. D Mining, Inc . and Randall Fleming, sought a writ to bar the Harlan Circuit Court from proceeding without jurisdiction in a tort action related to a workers' compensation claim. The circuit court did not adjudicate petitioners' motions for summary judgment, but provided six additional months to conduct discovery. Appellant, Gary W. Bentley, in a separate writ petition, also sought to bar the Harlan Circuit Court from proceeding in that action . The parties filed a motion to consolidate the petitions, which was granted by the Court of Appeals . The Court of Appeals then denied the writ. Background The facts as developed thus far in this case, when matched with the applicable statutory language, appear on the surface to raise serious questions about the lower court's jurisdiction to litigate the claims . David Morris, Jr. ("Bud") worked as a shuttle car operator for H 8s D Mining, Inc . (hereinafter H 8v D) . On December 30, 2005, Bud was working on the "Number 3" mine . As he stood by his own shuttle car, Bud was struck from behind by a coal hauler that was overloaded with coal . The car was driven by fellow mine worker, David Allen . The coal on Allen's car was piled so high that he did not see Bud before impact. Allen was under the influence of illegal drugs at the time the accident occurred . The impact from the collision severed both of Bud's legs beneath the knees. 2 Immediately after the accident, the mine owner and Mine Emergency Technician ("MET"), Gary W. Bentley, was called to the accident scene . An ambulance was also called. Bentley, despite being the only MET on site, did not administer any aid to Bud . Rather, two non-trained mine workers attempted to administer aid to Bud . They tied makeshift tourniquets on Bud's legs in an attempt to stop the bleeding, but as they had no medical training, Bud continued to bleed excessively. Bentley did not touch Bud or instruct the other mine workers on how to tie the tourniquets. The mining crew put Bud in a buggy and drove him to the mine's surface . The ambulance company was called again . As they waited for the ambulance to arrive, it became clear that Bud was bleeding to death. The crew, desperate to do something, put Bud in the back of a pickup truck and began to drive towards the hospital . Once they reached the bottom of the hill outside the mine, they saw the ambulance . The ambulance stopped and the crew put Bud on a stretcher and he was transported to the hospital. Bud was pronounced dead just seventeen minutes after arriving at the hospital . The complaint alleges that the emergency room doctor stated Bud's life could have been saved if basic first-aid treatment had been provided to him in a timely manner. The decedent's family filed an action in the Harlan Circuit Court alleging negligence on the part of H 8s D (and its officers and directors) ; negligence on the part of Gary W. Bentley; and negligence on the part of the ambulance company (Johnson Life Care) . The complaint also alleges wrongful death, loss of parental consortium, and loss of consortium . The family also claims that the 3 ambulance company did not treat the call as an emergency. It is alleged that the paramedic at Johnson Life Care who took the call instructed the ambulance crew to deliver a patient for a routine medical appointment before driving to the mine. The complaint further states that illegal drug use occurred regularly at the mine, and that management was aware of, and even condoned the drug use . Apparently, drug use was so rampant at the mine that one of the buildings at the mine was referred to as "the crack house." The negligent acts or omissions of all the defendants were characterized in the complaint as grossly negligent, reckless, wanton, and/or willful. Analysis The Appellants ask this Court to reverse the denial of the writ by the Court of Appeals . We review the Court of Appeals' denial of the writ for abuse of discretion, while we review the questions of law de novo. Fletcher v. Graham, 192 S.W.3d 350, 356 (Ky. 2006) . Before addressing the merits, we note that writs of prohibition and mandamus are extraordinary in nature. Bender v. Eaton , 343 S.W.2d 799, 800 (Ky . 1961) . Our courts "have always been cautious and conservative both in entertaining petitions for and in granting such relief." Id. Upon review of a writ claim, we must first determine whether the writ remedy is available . Hoskins v. Maricle , 150 S .W.3d 1, 10 (Ky. 2004) . A writ of prohibition may be granted where (1) the lower court is acting outside of its jurisdiction and there is no remedy readily available through application to an intermediate court; or (2) the lower court is acting erroneously, although within its jurisdiction, and there is no remedy by appeal. Id . This second class of 4 writs requires that great injustice and irreparable injury occur if the petition is denied. Id . The Court is not compelled to grant a writ in either circumstance. Id . Appellants claim that this case falls under the first class of writs (lack of jurisdiction) . They argue that the circuit court had no jurisdiction to hear the decedent's family's tort claims because the family is receiving workers' compensation benefits. Exclusive Remedy Provision The Kentucky Workers' Compensation statute (KRS 342 .0011 et. seq.) provides the exclusive remedy to employees injured in the workplace . KRS 342.690(1) states as follows: 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, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages . . . . However, an exception to the exclusive remedy provision is as follows : [T]he exemption from liability given an employee, officer or director or an employer or carrier shall not apply in any case where the injury or death is proximately caused by the willful and unprovoked physical aggression of such employee, officer or director. KRS 342 .690(1) (emphasis added) . Thus, employers are not provided the protections of the Workers' Compensation Act where an injury is caused by "willful and unprovoked physical aggression ." KRS 342 .690(1) . The trial court abstained from ruling on the summary judgment motions until the discovery process had been completed. This writ action makes its way to this Court under the claim that the trial court was acting outside its jurisdiction . Appellants claim that KRS 342 .0011 strips the trial court of its 5 subject matter jurisdiction under the facts of this case. They filed summary judgment motions arguing the trial court had no jurisdiction (subject matter) to hear the case . The judge declined to rule on the motions until further discovery was done. Apparently, because the complaint alleged willful or reckless conduct (notice pleading), the judge felt that he could not decide the jurisdiction question until some discovery was done to establish whether the plaintiff could prove "unprovoked physical aggression ." This is proper since on summary judgment the facts of record must be viewed in the light most favorable to the non-moving party. He could have denied the motion for summary judgment at that time . At any rate, he has jurisdiction to rule on the jurisdiction question, and has not yet done so . It is premature for us to address the merits of the summary judgment motions challenging jurisdiction which are still pending in the circuit court. It is not beyond the realm of possibilities that, through a reasonably timed discovery process, other facts may be fleshed out which would substantially affect the issue of subject matter jurisdiction under KRS 342 .690(1) . Often, if not always, a determination as to whether a trial court has subject matter jurisdiction is one of fact-finding . Such is the case here . Trial courts must give cases an opportunity to breathe before they are declared dead. Therefore, we find that the trial court did not abuse its discretion in allowing some discovery prior to making its ruling on the summary judgment motions. Lastly, we are mindful that whether to grant any writ is discretionary under Section 110(2)(a) of the Kentucky Constitution . We essentially hold today that granting the writ in this instance would be premature . 6 For all the foregoing reasons, we affirm the Court of Appeals' denial of the writ. All sitting. All concur. COUNSEL FOR APPELLANTS, H AND RANDALL FLEMING : 8s D MINING, INC . Gillard B . Johnson, III Bowling 8v Johnson, PLLC 1010 Monarch Street Suite 250 Lexington, KY 40513 COUNSEL FOR APPELLANT, GARY W. BENTLEY: Gene Smallwood, Jr. 127 Main Street, Suite C P. O . Box 786 Whitesburg, KY 41858 COUNSEL FOR APPELLEE, HON. R. CLETUS MARICLE: R . Cletus Maricle 393 Circle Drive Manchester, KY 40962 COUNSEL FOR REAL PARTY IN INTEREST, STELLA MAE MORRIS, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF DAVID SHERMAN MORRIS, JR. ; AND AS PARENT AND NEXT FRIEND OF LANDEN JAYCOB MORRIS, A MINOR : Tony Oppegard P. 0 . Box 22446 Lexington, KY 40522 Ronald Sheffer Phillip Lynn Monhollen Sheffer Law Firm, PLLC 101 South Fifth Street Suite 1600 Louisville, KY 40202 Kellie Denise Wilson-Lee 118 N. 1st Street P. O . Box 1470 Harlan, KY 40831

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