RENDERED: JANUARY 9, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1523-MR
ARON TAYLOR AND TAYLOR EXCAVATING, LLC APPELLANTS
APPEAL FROM CLARK CIRCUIT COURT v. HONORABLE COLE ADAMS MAIER, JUDGE ACTION NO. 22-CI-00556
JOHN R. DIXON APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, KAREM, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Aron Taylor and Taylor Excavating, LLC (“Taylor”) appeal
from the Clark Circuit Court’s summary judgment entered in favor of John R.
Dixon (“Dixon”) on his indemnity claim. Finding no error, we affirm. BACKGROUND
The following facts are taken from Aron Taylor’s deposition. In
2021, Dixon employed Taylor to turn a “wet spot” on his property into a pond.
Taylor performs land clearing, site cleanup, grade work, “anything you could
pretty much do with a skid steer[.]” Shortly after Taylor broke ground, he
discovered a drainage pipe emptying onto Dixon’s property. Taylor temporarily
extended the pipe to divert the water so that he could dig out the pond without it
continually filling back up.
Believing Taylor’s skid steer was insufficient for the job, Dixon
rented a bulldozer from Bypass Rental Centers of Winchester, Inc. (“Bypass”). As
Taylor went to cut out the backside of the pond to “get everything drained out,” the
water flooded the bulldozer. Taylor told Dixon that he “got the bulldozer muddy
and it was in the radiator, and it got hot on me.”
Bypass delivered a second bulldozer and Taylor resumed clearing out
the pond. The second bulldozer also overheated. Although he could not remember
exactly what happened, Taylor thought he “might have slid down into the side of
the pond.” Ultimately, Taylor attributed the bulldozers’ overheating to “working
in those [wet] circumstances.” Taylor later finished the pond with a rented
excavator and his skid steer.
-2- Subsequently, Bypass discovered that both bulldozers’ engines needed
to be replaced. Bypass filed a lawsuit in Clark Circuit Court against Dixon to
recover the $66,667.72 it spent to repair the two bulldozers. Dixon filed a third-
party complaint against Taylor seeking indemnity. Bypass moved for summary
judgment, first on the issue of liability, and then on the issue of damages and both
motions were granted. Dixon then moved for summary judgment on his claim of
indemnity. Citing York v. Petzl America, Inc., 353 S.W.3d 349, 354 (Ky. App.
2010), the court found that Taylor was the “primary and efficient cause of damage
to the two bulldozers,” making indemnity an appropriate remedy. This appeal
followed.
STANDARD OF REVIEW
Our standard of review when a court grants a motion for summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” York, 353 S.W.3d at 352 (internal quotation marks and citation
omitted). The party opposing summary judgment must present “at least some
affirmative evidence showing that there is a genuine issue of material fact for
trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.
1991). If no genuine issues of fact exist, whether indemnity is proper is a question
-3- of law. See York, 353 S.W.3d at 353 (citing Robinson v. Murlin Phillips & MFA
Ins. Co., 557 S.W.2d 202, 204 (Ky. 1977)).
ANALYSIS
Indemnity is “an equitable remedy resting upon the concept that one is
responsible for the consequences of one’s own wrong.” Memorial Sports
Complex, LLC v. McCormick, 499 S.W.3d 700, 703 (Ky. App. 2016) (citing Union
Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 934 (Ky. App. 1980) (internal
quotation marks omitted)). “[T]he right to indemnity is of common law origin and
is available to one exposed to liability because of the wrongful act of another with
whom he/she is not in pari delicto.” Degener v. Hall Contracting Corp., 27
S.W.3d 775, 780 (Ky. 2000). It has been found fitting “where both parties have
been in fault, but not in the same fault, towards the party injured, and the fault of
the party from whom indemnity is claimed was the primary and efficient cause of
the injury.” Id. (quoting Louisville R.R. Co. v. Louisville Taxicab & Transfer Co.,
256 Ky. 827, 77 S.W.2d 36, 39 (1934) (internal quotation marks omitted)).
Taylor argues the circuit court erred in granting summary judgment on
Dixon’s indemnity claim and that genuine issues of material fact exist as “to who
directed the operation, who selected the equipment, whether or not the operation of
the equipment was negligent and finally, whether or not the equipment was
-4- damaged.”1 We disagree. As to who directed the operation and selected the
equipment, these facts are not material because Taylor was the primary and
efficient cause of the damage to the bulldozers.
It is uncontested that Taylor was operating the bulldozers when they
overheated and that he was the last person to operate them before Bypass picked
them up. According to Taylor, he was attempting to drain the area where the pond
would be when the first bulldozer got flooded because he could not outrun the
water. As to the second bulldozer, although Taylor “can’t remember exactly how
[it] happened[,]” he concedes that “he might have slid down into the side of the
pond.” Based upon Taylor’s testimony, he was directly responsible for the
bulldozers getting wet and overheating.
There is no evidence that Dixon told Taylor to operate the bulldozer in
a certain way, or that the wet conditions made the machines overheating
unavoidable. Taylor agreed that a bulldozer was appropriate for the job and that he
1 We note that Taylor’s appellate brief does not comply with Kentucky Rules of Appellate Procedure 32(A)(4), which requires “at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” Our rules require a preservation statement to assure the reviewing court that “the issue was properly presented to the trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). When a party fails to abide by the Rules of Appellate Procedure, we may choose “(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions . . . ; or (3) to review the issues raised in the brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted); see also Ford v. Commonwealth, 628 S.W.3d 147, 153-55 (Ky. 2021). At our discretion, we will ignore the deficiency and proceed with the review.
-5- was familiar operating bulldozers.
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RENDERED: JANUARY 9, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1523-MR
ARON TAYLOR AND TAYLOR EXCAVATING, LLC APPELLANTS
APPEAL FROM CLARK CIRCUIT COURT v. HONORABLE COLE ADAMS MAIER, JUDGE ACTION NO. 22-CI-00556
JOHN R. DIXON APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, KAREM, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Aron Taylor and Taylor Excavating, LLC (“Taylor”) appeal
from the Clark Circuit Court’s summary judgment entered in favor of John R.
Dixon (“Dixon”) on his indemnity claim. Finding no error, we affirm. BACKGROUND
The following facts are taken from Aron Taylor’s deposition. In
2021, Dixon employed Taylor to turn a “wet spot” on his property into a pond.
Taylor performs land clearing, site cleanup, grade work, “anything you could
pretty much do with a skid steer[.]” Shortly after Taylor broke ground, he
discovered a drainage pipe emptying onto Dixon’s property. Taylor temporarily
extended the pipe to divert the water so that he could dig out the pond without it
continually filling back up.
Believing Taylor’s skid steer was insufficient for the job, Dixon
rented a bulldozer from Bypass Rental Centers of Winchester, Inc. (“Bypass”). As
Taylor went to cut out the backside of the pond to “get everything drained out,” the
water flooded the bulldozer. Taylor told Dixon that he “got the bulldozer muddy
and it was in the radiator, and it got hot on me.”
Bypass delivered a second bulldozer and Taylor resumed clearing out
the pond. The second bulldozer also overheated. Although he could not remember
exactly what happened, Taylor thought he “might have slid down into the side of
the pond.” Ultimately, Taylor attributed the bulldozers’ overheating to “working
in those [wet] circumstances.” Taylor later finished the pond with a rented
excavator and his skid steer.
-2- Subsequently, Bypass discovered that both bulldozers’ engines needed
to be replaced. Bypass filed a lawsuit in Clark Circuit Court against Dixon to
recover the $66,667.72 it spent to repair the two bulldozers. Dixon filed a third-
party complaint against Taylor seeking indemnity. Bypass moved for summary
judgment, first on the issue of liability, and then on the issue of damages and both
motions were granted. Dixon then moved for summary judgment on his claim of
indemnity. Citing York v. Petzl America, Inc., 353 S.W.3d 349, 354 (Ky. App.
2010), the court found that Taylor was the “primary and efficient cause of damage
to the two bulldozers,” making indemnity an appropriate remedy. This appeal
followed.
STANDARD OF REVIEW
Our standard of review when a court grants a motion for summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” York, 353 S.W.3d at 352 (internal quotation marks and citation
omitted). The party opposing summary judgment must present “at least some
affirmative evidence showing that there is a genuine issue of material fact for
trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.
1991). If no genuine issues of fact exist, whether indemnity is proper is a question
-3- of law. See York, 353 S.W.3d at 353 (citing Robinson v. Murlin Phillips & MFA
Ins. Co., 557 S.W.2d 202, 204 (Ky. 1977)).
ANALYSIS
Indemnity is “an equitable remedy resting upon the concept that one is
responsible for the consequences of one’s own wrong.” Memorial Sports
Complex, LLC v. McCormick, 499 S.W.3d 700, 703 (Ky. App. 2016) (citing Union
Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 934 (Ky. App. 1980) (internal
quotation marks omitted)). “[T]he right to indemnity is of common law origin and
is available to one exposed to liability because of the wrongful act of another with
whom he/she is not in pari delicto.” Degener v. Hall Contracting Corp., 27
S.W.3d 775, 780 (Ky. 2000). It has been found fitting “where both parties have
been in fault, but not in the same fault, towards the party injured, and the fault of
the party from whom indemnity is claimed was the primary and efficient cause of
the injury.” Id. (quoting Louisville R.R. Co. v. Louisville Taxicab & Transfer Co.,
256 Ky. 827, 77 S.W.2d 36, 39 (1934) (internal quotation marks omitted)).
Taylor argues the circuit court erred in granting summary judgment on
Dixon’s indemnity claim and that genuine issues of material fact exist as “to who
directed the operation, who selected the equipment, whether or not the operation of
the equipment was negligent and finally, whether or not the equipment was
-4- damaged.”1 We disagree. As to who directed the operation and selected the
equipment, these facts are not material because Taylor was the primary and
efficient cause of the damage to the bulldozers.
It is uncontested that Taylor was operating the bulldozers when they
overheated and that he was the last person to operate them before Bypass picked
them up. According to Taylor, he was attempting to drain the area where the pond
would be when the first bulldozer got flooded because he could not outrun the
water. As to the second bulldozer, although Taylor “can’t remember exactly how
[it] happened[,]” he concedes that “he might have slid down into the side of the
pond.” Based upon Taylor’s testimony, he was directly responsible for the
bulldozers getting wet and overheating.
There is no evidence that Dixon told Taylor to operate the bulldozer in
a certain way, or that the wet conditions made the machines overheating
unavoidable. Taylor agreed that a bulldozer was appropriate for the job and that he
1 We note that Taylor’s appellate brief does not comply with Kentucky Rules of Appellate Procedure 32(A)(4), which requires “at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” Our rules require a preservation statement to assure the reviewing court that “the issue was properly presented to the trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). When a party fails to abide by the Rules of Appellate Procedure, we may choose “(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions . . . ; or (3) to review the issues raised in the brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted); see also Ford v. Commonwealth, 628 S.W.3d 147, 153-55 (Ky. 2021). At our discretion, we will ignore the deficiency and proceed with the review.
-5- was familiar operating bulldozers. He was also aware of the extremely wet
conditions. Even if Dixon oversaw the operation and selected the equipment, any
fault on his part was secondary to Taylor’s, who was the primary and efficient
cause of Bypass’ injury. “[A]pplying equitable principles the parties are not in
pari delicto[.]” Crime Fighters Patrol v. Hiles, 740 S.W.2d 936, 940 (Ky. 1987).
Further, Taylor has presented no affirmative evidence creating a
genuine issue of material fact as to his negligence in operating the bulldozers. The
party moving for summary judgment “bears the initial burden of showing that no
genuine issue of material fact exists, and then the burden shifts to the party
opposing summary judgment to present at least some affirmative evidence showing
that there is a genuine issue of material fact for trial.” Blackstone Mining Co. v.
Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as modified on denial of
reh’g (Nov. 23, 2011) (internal quotation marks and citation omitted). Based upon
the evidence in the record, Taylor alone “overheated” not one but two bulldozers,
requiring full engine replacements. According to his own testimony, the first
bulldozer got flooded because he could not outrun the water and the second
bulldozer “might have slid down into the side of the pond.” Taylor has offered
nothing indicating that his conduct was anything but negligent.
While Taylor disputes that the bulldozers were damaged, he has
presented no evidence challenging Bypass’ affidavit that “[u]pon inspection, both
-6- dozers had been submerged into water and/or mud causing them to become non-
operational” other than his self-serving deposition testimony that “when I got done,
when I parked them and turned them off, they were running.” Even if true that
both dozers were working when Taylor turned them off, that does not create a
genuine issue of material fact as to whether they were damaged by his operation.
The complaint listed on the Service Invoice from Meade Tractor (who performed
the repairs) states “machine overheating and blowing white smoke.” Taylor admits
that the bulldozers overheated while in his care. He also believed “water and . . .
muck and mud . . . got in the radiator[.]” To defeat summary judgment, Taylor
was required to offer some affirmative evidence that his operation of the bulldozers
did not damage them or necessitate the repairs. Merely asserting that there is a
dispute as to the condition of the bulldozers is insufficient.
Finally, Taylor argues that summary judgment was improper because
he was entitled to have a jury apportion fault between him and Dixon. We again
disagree. In Degener, 27 S.W.3d 775, our Supreme Court held that apportionment
of liability “has no application to the common law right of a constructively or
secondarily liable party to total indemnity from the primarily liable party with
whom he/she is not in pari delicto.” Id. at 780.
-7- CONCLUSION
Based upon the foregoing, the Clark Circuit Court’s order granting
summary judgment to Dixon on his indemnity claim is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brian N. Thomas M. Alex Rowady Winchester, Kentucky Winchester, Kentucky
-8-