COA: July 29, 2016 Court of Appeals Decisions (Minutes)(622-641) 20 decisions posted with 3 of them designated “to be published”

PUBLISHED: Boykin needed after plea agreement after jury verdict; Withdrawing guilty plea; Insurance company not victim for purposes of restitution. NOT TO BE PUBLISHED: Informed consent instruction omission reversible error; Qualified immunity and county road supervisor; no direct cause of action against liability insurer

Here are the decisions announced and posted by the Court of Appeals in their weekly minutes.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.

623.  Criminal Law.  Waiver after jury verdict.  Reversible error evidence.
Patton v. Commonwealth of Kentucky 
Court of Appeals Published Opinion REVERSING.  Edmonton Cir Ct.

The standard Boykin colloquy is not appropriate in the situation where a defendant enters into a plea agreement after a jury verdict. This procedure undoubtedly created confusion, which was not assuaged by the trial court’s failure to explain to Patton which of the rights affected by the waiver remained applicable. This creates a clear question as to whether Patton possessed the requisite knowledge of the full array of likely consequences of the plea. In light of this failure, this Court must conclude that the trial court’s finding, that the plea was not knowingly, voluntarily, and intelligently made, was not supported by substantial evidence.

630.  Criminal Law. Motion to withdraw guilty plea.
Dixon v. Bottom, Warden Northpoint Training Center [NB.  This link works.  Link in minutes does not.]
Court of Appeals Published Opinion AFFIRMING.  Jefferson Cir Ct.

This matter is before the Court on appeal from the Edmonson Circuit Court’s order denying the motion of the Appellant and defendant below, Samuel Patton, to withdraw his post-verdict guilty plea and his waiver of the right to appeal. Patton also seeks review of the conviction itself. Having reviewed the record, for the reasons herein described, we reverse.

633.  Criminal Law.  Restitution to Victims and their insurance provider..
Bentley v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING IN PART AND REVERSING IN PART.  Jefferson Cir Ct.

Jonathan Bentley appeals from the Letcher Circuit Court’s judgment and sentence entered pursuant to a conditional guilty plea, ordering him to pay restitution to the victims and to the victims’ insurance provider. After careful review, we affirm in part and reverse in part.

We agree with Bentley that Morseman can be distinguished from the instant case. Kentucky Farm Bureau made payments to the Meades under a contract of insurance and was not a victim of Bentley’s crimes.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

 622.  Medical negligence.  Informed consent and alternatives. Anesthesia and eye surgery.
Wilbert Horsley v. Dr. Kenneth R. Smith, M.D.
COA Not to Be Published Opinion REVERSING.  Jefferson Cir Ct.

Appellant, Wilbert Horsley, appealed the judgment of the Jefferson Circuit Court entered after a jury verdict in favor of Appellees, Dr. Kenneth Smith and KS EyeWorks. On February 13, 2015, this Court rendered an opinion affirming the judgment. On February 10, 2016, the Kentucky Supreme Court, on discretionary review, vacated our opinion and remanded the case for further consideration in light of its decision in Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015). For the reasons set forth in Sargent, we reverse the Jefferson Circuit Court judgment.

On cross-examination, Horsley’s counsel presented Dr. Smith with a page from the American Medical Association (AMA) website. Dr. Smith agreed with the statement there that, depending on the situation, it is appropriate to inform a patient of alternatives to the proposed course of treatment and associated risks.

Dr. Smith admitted further that although there are several ways to administer anesthesia before cataract surgery, his standard practice was to perform an injection. While Dr. Smith recalled discussing with Horsley the different ways of administering anesthesia, he conceded that he did not give Horsley the option of selecting his choice of anesthesia.

The holding in Sargent v. Shaffer compels us to reverse the Jefferson Circuit Court’s judgment on the basis of Horsley’s first argument – improper jury instructions.

“[I]n addition to the general duty of ordinary professional care, health care providers are subject to special duties created by the legislature, which must be incorporated into jury instructions in medical negligence cases.” Id. at 206. “KRS 304.40–320 is an exercise of the legislature’s prerogative to amplify, or expound upon, the general duty of a medical provider to obtain a patient’s informed consent with specific conditions for compliance.” Id.

Therefore, in a medical malpractice action that includes a claim that the medical professional failed in his duty to obtain the patient’s informed consent, there must be a more specific instruction.

In Sargent, the Supreme Court provided guidance as to how that instruction should look. Referring to Sargent’s jury instruction rejected by the circuit court, the Court stated it “is simple and uncluttered by complex or confusing verbiage [and w]ith minor variations based upon the peculiarities of the particular case, it would serve well as an appropriate model for similar cases.” Id. at 210. We quote that instruction here, with modifications, for use in a re-trial of Horsley’s case against Dr. Smith.

629. Medical negligence appeal by pro se plaintiff.
Mullins v. Matthew Graber, M.D.
COA Not to Be Published Opinion AFFIRMING.  Fayette Cir Ct.

632.  Qualified immunity.
Martin v. Storm
COA Not to Be Published Opinion  REVERSING AND REMANDING.  Jefferson Cir Ct.

Appellant, Louis Martin, appeals from the Jefferson Circuit Court’s denial of his motion for a directed verdict at the close of evidence in his personal injury action, as well as the denial of his post-trial motion for a judgment notwithstanding the verdict. For the reasons stated herein, we reverse and remand for further proceedings.

641.  Torts.  Direct cause of action against insurer.
Flint v. Nationwide Insurance Company
COA Not to Be Published Opinion AFFIRMING.  Jefferson Cir Ct.

Since it has been determined previously — as a matter of law — that Nationwide’s insured was not responsible for the damage to Flint’s condominium, Nationwide cannot be held liable to Flint for the damage. Any arguable liability on the part of Nationwide would be contingent upon and derivative of the liability of its insured. Therefore, since its insured was absolved of liability, Nationwide is not subject to any claim whatsoever. See Pryor v. Colony Ins., 414 S.W.3d 424 (Ky.App. 2013). Moreover, the summary judgment entered in favor of Nationwide’s insured in 2012 is no longer subject to appeal because it was affirmed by this Court in 2013; nor is it eligible for retrial as Flint contends.

Download (MNT07292016.pdf, PDF, Unknown)

June 16, 2016 Supreme Court of Ky Decisions (Minutes 87-108)

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more.

Here are the minutes as posted:

Download (MNT062016.pdf, PDF, Unknown)

March 17, 2016 Supreme Court of Ky Decisions (Minutes 28-55)

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more.

28.  Torts. Qualified immunity.  Suicide superseding intervening cause.
Patton vs. David Pickford
Supreme Court of Kentucky Published Opinion AFFIRMING
Torts. Negligence. Causation. Qualified Immunity. Issues include whether summary judgment was properly granted based on qualified immunity of school officials and whether suicide is a superseding cause which extinguishes tort liability.

30.  Workers Compensation. Injury during preemployment physical examination.
Rahla v. Medical Center at Bowling Green
Supreme Court of Kentucky Published Opinion AFFIRMING
Whether the Workers’ Compensation Act covers an injury sustained during a physical examination performed as a condition precedent to employment.

39.  Underinsured Motorist Benefits. Coverage.
State Farm vs. Riggs
Supreme Court of Kentucky Published Opinion REVERSING AND REMANDING
Contract. Automobile Insurance. Underinsured Motorist Coverage. Whether an automobile insurance policy provision requiring underinsured motorist claims to be brought within the same time period as tort claims under the Motor Vehicle Reparations Act—two years from the date of the accident or last basic reparations payment, whichever is later—is valid and enforceable.

43.  Discovery
Norton Hospitals v. Hon. Barry Willett
Supreme Court of Kentucky Published Opinion REVERSING AND REMANDING
Questions Presented:  Trial court cannot participate itself in discovery and produce documents that a party alleges are privileged in the face of a writ challenging the trial court’s determination that they are not privileged. Writ is not moot because relief can still be afforded.

Download (MNT032016.pdf, PDF, Unknown)

COA: July 22, 2016 Court of Appeals Decisions (Minutes)(596-621) 25 decisions posted with 3 of them designated “to be published”

PUBLISHED CASES __ Uniform Child Custody Jurisdiction Enforcement Act; Workers Comp Board returning to ALJ to enter disability findings reversed; Affirmed conviction even when juror related to government witness slipped past voir dire. NONPUBLISHED -- Failure to prosecute dismissal affirmed

Here are the decisions announced and posted by the Court of Appeals in their weekly minutes.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.

602.  Uniform Child Custody Jurisdiction Enforcement Act
Ball v. McGowan
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING IN PART, REMANDING Boyd Cir Ct
While we agree that the circuit court did not err in its conclusion regarding the Nevada court’s jurisdiction, we do not agree that the Boyd Circuit Court’s only option was dismissal. Under the carefully crafted provisions of the UCCJEA, prior to dismissing for want of jurisdiction, the Boyd Circuit Court is authorized to request that the Nevada court consider “declin[ing] to exercise its jurisdiction . . . if it determines that it is an inconvenient forum under the circumstances and that [the Boyd Circuit Court] is a more appropriate forum.” KRS 403.834(1); NRS2 125A.365.1.

611.  Workers Compensation.
Roby v. Trim Masters, Inc.
Court of Appeals Published Opinion REVERSING WCB which had reversed and remanding the matter to the ALJ with instructions to issue particular factual findings regarding permanent partial disability

615.  Criminal Law.
Edmonson v. Commonwealth of Kentucky   [note that link to this case in original minutes was broke; this one works]
Court of Appeals Published Opinion AFFIRMING Union Cir Ct. denying defendant JNOV and New Trial motions based on juror related to witness for commonwealth discovered after voir dire.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

 597.  Civil Procedure.  Failure to prosecute.
Hitchcock v. CSX Transportation, Inc.
COA Not to Be Published Opinion AFFIRMING Jefferson Cir Ct order dismissing plaintiff’s case for failure to prosecute.

COA: August 2016 Oral Argument Calendar for Court of Appeals

Dates are Aug. 23 and 30 @ Frankfort.

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY. And here is a link to the AOC page containing their index to all Court to Appeal oral argument calendars.

Some issues for the month of August 2016 are:

  • Whether the Board of Trustees for the Kentucky Retirement System erred by denying Ferrell permanent disability benefits.
  • Whether circuit court erred by dismissing appellant’s complaint against Kentucky Real Estate Appraisers’ Board was barred by collateral estoppel.
  • Taxation: whether tax payers (Wal-Mart Stores East) were entitled to statutory compensation for collecting sales tax; compensation in excess of $1,500/month; statutory amendments.
  • Whether circuit court erred by granting appellees’ motion for summary judgment as KRS 15.520 does not grant hearing rights to a deputy sheriff in county where no merit board exists.

Here is the complete calendar for this month.  Please note these are not available through on line streaming like those of SCOKY.

Download (August2016.pdf, PDF, Unknown)

SC: August 2016 Oral Arguments before Ky Supreme Court

Set for August 17, 18 & 19, 2016 at State Capitol in Frankfort.

This month’s oral arguments will most probably be highlighted partisan battle over the separation of powers and the budget.  Lots of briefs, lots of lawyers, and probably lotta fireworks under the Dome.  As much as I would like to watch this historical confrontation involving our branches of government  with the governor and the legislature, I may have to stay home and see if I can record it.  We will see.

Scheduled for Thursday, August 18, 2016 at 10:oo am.  More details are–

COMMONWEALTH OF KENTUCKY, EX REL. ANDY BESHEAR, ATTORNEY GENERAL V. COMMONWEALTH OF KENTUCKY OFFICE OF THE GOVERNOR EX REL. MATTHEW BEVIN, IN HIS OFFICIAL CAPACITY AS GOVERNOR, ET AL. (2016-SC-000272-TG) 

AND 

JIM WAYNE, IN HIS OFFICIAL CAPACITY AS STATE REPRESENTATIVE, ET AL. V. COMMONWEALTH OF KENTUCKY OFFICE OF THE GOVERNOR MATTHEW BEVIN, IN HIS OFFICIAL CAPACITY AS GOVERNOR, ET AL. (2016-SC-000273-TG) 

2016-SC-272 APPELLANT BRIEF 

2016-SC-273 APPELLANT BRIEF 

APPELLEE BRIEF – GOVERNOR, ET AL. 

APPELLEE BRIEF – TREASURER 

2016-SC-272 REPLY BRIEF 

2016-SC-273 REPLY BRIEF 

“Summary Judgment. Separation of Powers. Budgeting and Appropriations.”

Franklin Circuit Court, Judge Thomas D. Wingate

Attorneys for Commonwealth of Kentucky, Ex Rel. Andy Beshear, Attorney General: John Michael Brown, La Tasha Arnae Buckner, Mitchel Terence Denham and Joseph Newberg

Attorneys for Commonwealth of Kentucky, Ex Rel. Matthew Bevin, in his official capacity as Governor; Commonwealth of Kentucky Finance and Administration Cabinet, Ex Rel. William M. Landrum, in his official capacity as Secretary; and Commonwealth of Kentucky Office of the State Budget Director, Ex Rel. John Chilton, in his official capacity as State Budget Director: Michael T. Alexander, Mark Stephen Pitt and Stephen Chad Meredith

Attorney for Commonwealth of Kentucky Department of the Treasury, Ex Rel. Allison Ball, in her official capacity as Treasurer: Noah Robert Friend

Attorney for Jim Wayne, in his official capacity as State Representative; Darryl Owens, in his official capacity as State Representative; and Mary Lou Marzian, in her official capacity as State Representative: Pierce Butler Whites.

Other issues this week include:

  • “Criminal Law. First-Degree Assault. Non-Relative Caregiver. Issues include whether a non-relative caregiver can be found guilty of first-degree assault when she allowed the disabled adult, for whom she was the primary caregiver, to live in life-threatening squalor.”
  • “Administrative Law. Occupational Safety and Health. Whether KRS 338.121 provides protection against discrimination regarding employee complaints to employers absent a specific state regulation characterizing such complaints as protected activity.”
  • “Contracts. Specific Performance. Option to Purchase. Non-Binding Appraisal. Material Breach. The first issue is whether appeal of an order granting specific performance on an option to purchase property is moot where the party ordered to specifically perform transfers the property in exchange for payment, does not seek a stay while on appeal of the order granting specific performance, or does not post a supersedeas bond. A second issue is whether a non-binding appraisal may constitute a “material breach” of an option to purchase agreement which would suspend performance of the agreement for sale of property.”
  • “Workers’ Compensation. Widow’s right to benefits under KRS 342.750, following a full and final settlement by the injured worker prior to his death.”
  • “Marital Dissolution. The issue is whether a party adjudicated incompetent may petition for dissolution of a marriage to a spouse also serving as the petitioner’s guardian and conservator.”

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

Download (SCOAUG16.pdf, PDF, Unknown)

COA: July 15, 2016 Court of Appeals Decisions (Minutes)(571-595) 25 decisions posted with 10 of them designated “to be published”

PUBLISHED DECISIONS - asbestos claim; qualified immunity for court appointed receiver; family court garnishment; prosecutorial vindictiveness; diversion of business opportunity tort; DUI and independent blood test NONPUBLISHED - collateral source and contract claims; yard trucks and PIP coverage

Here are the decisions announced and posted by the Court of Appeals in their weekly minutes.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.

572.  Torts. Asbestos Claim Against Manufacturer.  Summary judgment.
Mannahan v,  Eaton Corporation
Court of Appeals Published Opinion Affirming Jefferson Cir. Ct. Summary Judgment dismissing plaintiff’s asbestos injury claim against manufacturer finding no genuine issue of material fact.

575.  Torts. Qualified Immunity of Court Appointed receiver.
John M. Farmer MD v. Miller
Court of Appeals Published Opinion Reversing Jefferson Cir Ct. opinion and order dismissing his action against Stephen H. Miller on grounds of qualified immunity for services as receiver (officer of court).

576.  Garnishment.  Family Court
Lee v. Lee
Court of Appeals Published Opinion Affirming Jefferson Family Ct. order of the Jefferson Circuit Court denying John’s motion to quash a garnishment order issued on behalf the Appellees, John’s former wife, Jill Lee (now Stanley), and her attorney, Louis Waterman.

577.  Criminal Law. Prosecutorial vindictiveness.
Commonwealth of Kentucky v. Perry
Court of Appeals Published Opinion REVERSING and REMANDING Jefferson Cir Ct. and held the doctrine of prosecutorial vindictiveness was not applicable and did NOT preclude the Commonwealth from pursuing additional charges against Bobby Perry after he successfully appealed his conviction.

578.  Torts. Diversion of business opportunity.  Inadequate findings.
Patmon v. Hobbs
Court of Appeals Published Opinion REVERSING and REMANDING Jefferson Cir Ct to reconsider the amount of damages awarded for Hobbs’s breach of his duties under KRS 275.170. However, although possibly overlapping those damages, Hobbs may be liable for more than merely the profit from the diversion of the O’Reilly leases.

As we stated earlier, Patmon I recognized a new common law tort in this Commonwealth when it adopted the doctrine of diversion of business opportunity. Therefore, in addition to statutory damages, if the trial court finds on remand that American Leasing was not financially insolvent, the measure of damages is the lost profit the corporation would have received had the opportunity not been diverted. Stewart v. Ky. Paving Co., Inc., 557 S.W.2d 435 (Ky.App. 1997). That was the direction given in Patmon I. Patmon I, 280 S.W.3d at 598-99. The same instruction was given in Patmon II, when the trial court was directed to make American Leasing “whole.” Patmon II, 2014 WL 97464 at 2. As held in Gomez v. Bicknell, 302 A.D.2d 107, 114, 756 N.Y.S.2d 209, 214 (2002), an available measure of damages in the case of a diverted corporate opportunity is the calculation of the profit the corporation would have made from the opportunity. The same is true as to Patmon’s choice of damages. In other words, the amount of damages is not limited to the profit Hobbs received but to the profit American Leasing would have received had the O’Reilly leases not been diverted by Hobbs.

581.  Criminal Law.DUI.  Independent blood test.
Gooch v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct order denying a motion to suppress evidence because he was not given an opportunity to take an independent blood test.

583.  Employment Law.
Commonwealth of Kentucky Public Protection Cabinet v. Veitch
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING AND REMANDING Franklin Cir Ct  on question if Cabinet Secretary has the authority to terminate the KHRC’s Chief State Steward if he or she was a non- merit employee.

584.  Medicaid and Duplication of payments.
Marcum v. Cabinet for Health and Family Services
Court of Appeals Published Opinion REVERSING AND REMANDING Laurel Cir Ct. holding that although KRS 13B.150(2)(a) requires a court to reverse and remand if the final order is “[i]n violation of constitutional or statutory provisions[.]” While the circuit court held that Marcum received sufficient due process under the circumstances, for us to affirm ignores clear provisions of the administrative procedure set up for Medicaid appeals.

588.  Administrative Law.  Public Service Utilities.
Kentucky Industrial Utility Customers Inc. v. Kentucky Public Service
Court of Appeals Published Opinion REVERSING AND REMANDING Franklin Cir Ct. Order and Opinion upholding Kentucky Public Service Commission’s approval of Kentucky Power Company’s application to recover from its customers an estimated $1.26 billion in costs associated with purchasing biomass energy from ecoPower Generation-Hazard LLC, over a twenty-year contract period.

595.  Workers Compensation
Austin Powder Co. v. Stacy
Court of Appeals Published Opinion AFFIRMING Workers Comp Board decision affirming the ALJ’s award of 50% disability to Appellee, Billy Keith Stacy (Stacy), in this Coal Workers’ Pneumoconiosis (CWP) claim.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

 574.  Collateral source and contract claims.Real party in interest. Contract damages.
Ward Edison’s Professional Cleaning Services LLC v. Liberty Landmark Group LLC
COA Not to Be Published Opinion REVERSING Jefferson Cir Ct.  This appeal followed, wherein Ward-Edison asserts multiple claims of error. Ward-Edison contends the trial court misinterpreted the contract in concluding it had breached. It contends the award of damages was inappropriate as Liberty had suffered no damages. It contends that Liberty is not entitled to damages because the collateral source rule does not apply in the context of breach of contract actions. It contends that Liberty lacks standing because Traveler’s is the real party in interest in the cross-claim. Finally, Ward-Edison contends that Kentucky public policy demands that the contract be strictly construed against the application advocated by Liberty.579.  PIP.
Baker v. Travelers Property Casualty Ins. Co.
COA Not to Be Published Opinion AFFIRMING Fayette Cir Ct summary judgment in favor of Travelers Property and Casualty Company and dismissing Baker’s claim for Basic Reparation Benefit holding a “yard truck” was not a motor vehicle per no fault act.

COA: July 8, 2016 Court of Appeals Decisions (Minutes)(551-570). 20 decisions posted with 4of them designated “to be published”

PUBLISHED CASES DEALING WITH-- zoning and conditional use permits; motion to withdraw from criminal defense for conflict of interest; mortgage releases and POAs that piggy back; divorce and school loans. TORT CASES-- interlocutory appeals and continuing jurisdiction

Here are the decisions announced and posted by the Court of Appeals in their weekly minutes.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.

553.  Zoning.  Conditional Use Permit.
Harrison Silvergrove Property  Llc V. Campbell County
Court of Appeals Published Opinion AFFIRMING Campbell Cir Ct
ACREE, JUDGE: Appellants Harrison Silvergrove Property, LLC a/k/a Harrison Silvergrove, LLC and Carlisle & Bray Enterprises, LLC a/k/a Carlisle & Bray Enterprises (collectively, C&B 1 ) appeal from a Campbell Circuit Court order affirming the Appellee Campbell County and Municipal Board of Adjustment’s (Board) denial of C&B’s application for a conditional-use permit. We affirm.

555.  Criminal Law. Motion to discontinue representation on conflict of interest.
Murchison v. Commonwealth of Kentucky
Court of Appeals Published Opinion REVERSING Mason Cir Ct Order Denying Defense Counsel’s motion to withdraw for conflict of interest

D. LAMBERT, JUDGE: Appellant, Brian Keith Muchrison, appeals from a verdict and judgment of conviction entered by the Mason Circuit Court following a jury trial. Having reviewed the record, we reverse.

The trial court’s ruling diminishes the fact that trial counsel’s original source of information, which he would later need in order to effectively represent another client, was a confidential communication with his client. Further, the identity of the confidential informant was exactly that—confidential—until such time as the Commonwealth made it a matter of public record mere hours before trial. The trial court also clearly recognized the potential presence of a conflict of interest; otherwise the order for trial counsel to discontinue representation of Trent served as a completely moot gesture.

That Muchrison’s trial counsel was able to find a different line of questioning to establish Suister’s motive to fabricate a narcotics transaction is immaterial. The conflict manifested itself the instant trial counsel was forced by his obligations to Trent to search for such alternative line of questioning. The ethical dilemma placed on trial counsel by the trial court’s ruling limited his ability to cross-examine a critical witness, and thus deprived him of the right to effective counsel.

This Court thus concludes that the trial committed reversible error in failing to permit Muchrison’s trial counsel to withdraw.

565.  Real estate.  Mortgage and lien release.  Limited powers of attorney and subservicers and “Piggy bag” POAs
Select Portfolio Servicing Inc. v. Blevins
Court of Appeals Published Opinion REVERSING AND REMANDING Fayette Cir Ct Order in Declaratory Judgment Action regarding county clerk and limited powers of attorney

566.  Intrafamily loans and school loans
Chin v. Chin
Court of Appeals Published Opinion AFFIRMING Montgomery Cir Ct.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

568.  Civil Procedure.  Interlocutory appeal and continuing jurisdiction.
Hill v. Bryant
COA Not to Be Published Opinion AFFIRMING Order that failure to file interlocutory appeal within 30 days did not divest circuit court of jurisdiction to readjudicate order

Download (MNT07082016.pdf, PDF, Unknown)

COA: May 2016 Summaries of Published Decisions for Court of Appeals

Appeals real part in interest includes owner of property; law of the case; attorneys fees and discovery violations; immunity and supervisors; qualified immunity and discretionary acts to close schools for snow; two year SOL strictly applied in claim against employer's UIM; homeowner insurance exclusion for criminal acts; title transfer impact in MVA case liability; tortious interference with contractual relations in legal contract

The complete set of summaries of published decisions for this month are as follows at the bottom of this post.  However, here are selected published decisions dealing with torts, insurance, and civil matters of note from the Court of Appeals of Kentucky as summarized by the AOC.

Please note some of these published decisions may have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

APPEALS.

Icon-Lex Development, LLC v. REI Real Estate Services, LLC
2014-CA-001643 05/13/2016 2016 WL 2855298

Opinion and order dismissing by Judge VanMeter; Judges Combs and J. Lambert concurred. Upon review of an order granting judgment on the pleadings in a case involving an easement, the Court of Appeals dismissed the appeal, finding that the Court had no jurisdiction. The Court held that when an easement has been judged to be appurtenant, and thus benefits a specific piece of land rather than a specific person, the current owner of the benefitted parcel is undoubtedly affected by the Court’s decision on appeal and, therefore, is an indispensable party to the appeal. Under the appellate civil rules, failure to name an indispensable party on appeal is an incurable jurisdictional defect requiring dismissal. Consequently, because the current owner of the subject property was not made a party to the appeal, dismissal was merited.

COURTS.

DKM Coal Corporation, Inc. v. Crawford
2013-CA-001936 05/13/2016 2016 WL 2855871

Opinion by Judge J. Lambert; Judges Maze and Taylor concurred. Determining that no material issue of fact existed with regard to the ownership of coal tippling rights, the Court of Appeals affirmed the circuit court’s entry of summary judgment in favor of appellees. Notably, the Court held that a sublessee’s shareholders’ admission, in open court at a hearing before the circuit court, that they owed damages to a sublessor’s shareholder, was a judicial admission that could be used against sublessee’s shareholders under the Kentucky Rules of Evidence. The Court further held that its prior holding in the same matter that a sublease contract’s reference to “personal liability” imposed liability on the corporate sublessee’s individual shareholders was the law of the case on a subsequent appeal in the same case, regardless of any discussion of the applicability of the term “person” to corporations in the later-decided United States Supreme Court case of Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). The Court also held that a delay of approximately four years after the Court issued its opinion in a prior appeal did not require dismissal of sublessors’ breach of sublease action for failure to prosecute. Most of the delays were attributable to the sublessees, an extensive delay occurred when the sublessees appealed from an interlocutory order, and further delay occurred when the sublessees obtained a new attorney who later withdrew.

FEES AND COSTS.

Hencye v. White 
2013-CA-002079 05/27/2016 2016 WL 3050079

Opinion by Judge Thompson; Judge D. Lambert concurred; Judge Dixon dissented. Appellant challenged an order directing her to pay $8,000 of her ex-husband’s attorneys’ fees incurred as a result of alleged discovery violations after she requested appointment of a parenting coordinator. The Court of Appeals reversed, holding that under KRS 403.220, attorneys’ fees cannot be awarded absent a finding of a disparity in income between the parties and, further, that the conduct of the party seeking attorneys’ fees must be considered. Additionally, the Court held that CR 37 cannot justify an award of attorneys’ fees where there was not a “pending” action, and that a request for the appointment of a parenting coordinator, standing alone, did not satisfy this requirement in the absence of any motion to modify custody or parenting time. The Court also held that appellant could not be ordered to pay attorneys’ fees incurred as a result of her current husband’s noncompliance with the family court’s orders to produce a HIPPA release.

IMMUNITY.

Beward v. Whitaker
2013-CA-000773 05/06/2016 2016 WL 2609308

Opinion by Judge J. Lambert; Judges Jones and Stumbo concurred. On remand from the Supreme Court of Kentucky, the Court of Appeals reversed its original holding in which it affirmed the circuit court’s interlocutory decision that two high school principals were not entitled to qualified official immunity for injuries a student sustained in a hallway that was left unsupervised because the teacher assigned to supervise that station pursuant to the supervision schedule was absent that day. The Court originally held that the principals’ duty to enforce the supervision schedule and to supervise the hallway was ministerial, and thus they were not entitled to immunity. However, on reconsideration in light of the Supreme Court’s holding in Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014), the Court held that because the supervision schedule did not include any direction or rule to address when a teacher or administrator assigned to a post was absent, it did not create a ministerial duty to ensure that the station was manned in the absence of a teacher. The principals had a general supervisory duty to make the hallway assignments and to walk the hallways as part of their job requirements. In the absence of a clear directive as to what to do when a teacher assigned to a post was absent, it was left to the principals’ discretion as to how to proceed, entitling them to qualified official immunity.

Rasche v. Berman
2012-CA-001766 05/20/2016 2016 WL 2981636

Opinion by Judge J. Lambert; Judges Kramer and VanMeter concurred. On remand from the Supreme Court of Kentucky for further consideration in light of Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014), the Court of Appeals affirmed the circuit court’s determination that various employees of the Jefferson County Board of Education were entitled to qualified official immunity. The Court held that the employees’ decision as to whether to close school due to inclement weather and the manner in which school parking lots were cleared amounted to discretionary functions. As such, qualified official immunity attached.

INSURANCE.

Brown v. Mitsui Sumitomo Insurance Company
2013-CA-001191 05/06/2016 2016 WL 2609303

Opinion by Judge Nickell; Judges Dixon and Kramer concurred. Appellant was injured in a work-related motor vehicle accident while riding in his employer’s vehicle. Appellant filed for and received workers’ compensation benefits from his employer’s workers’ compensation carrier. Knowing the Workers’ Compensation Act provides an exclusive remedy, appellant mistakenly believed that his employer, Trim Masters, Inc., and its underinsured motorist (UIM) carrier, Mitsui Sumitomo Insurance Company, were immune from suit. However, KRS 342.690(1) does not prohibit suit against a UIM carrier after payment of a workers’ compensation claim. Two days shy of two years from the collision, appellant filed suit against the tortfeasor and against his own UIM carrier, State Auto; he did not file suit against Mitsui. In response, State Auto asserted that its UIM coverage was secondary to that provided by Mitsui and sought leave to file a third-party complaint against Mitsui. Appellant initially opposed the motion, but then conceded that Mitsui should have been named as a defendant and moved to file an amended complaint to add them. State Auto also moved for summary judgment. The circuit court sustained both motions and named Mitsui as a defendant. Mitsui answered the complaint asserting that Trim Masters’ insurance policy required a UIM claim to be filed within two years of accrual and moved for judgment on the pleadings since the amended complaint was filed nearly three years after the collision. The circuit court found that: (1) two years was a reasonable contractual window in which to file suit; (2) appellant’s failure to name Mitsui as a defendant when he filed against the tortfeasor and his own personal UIM carrier was fatal because he had to exhaust UIM benefits from Mitsui (the primary carrier) before he could pursue benefits from State Auto (the secondary carrier); and (3) as a third-party beneficiary under his employer’s policy, appellant could enforce the policy’s terms, but he had to enforce all of its terms and not only the ones that benefitted him. Thus, UIM benefits had to be claimed within two years of accrual. The Court of Appeals affirmed. Since appellant had filed suit against the tortfeasor and his own UIM carrier within two years, there was no reason he could not have filed against his employer’s UIM carrier at the same time. The Court noted that appellant’s counsel need not have waited until his investigation was complete before filing suit; so long as he did due diligence to believe Mitsui was potentially liable, the complaint could have been filed.

Eberle v. Nationwide Mutual Insurance Co.
|2013-CA-000898 05/06/2016 2016 WL 2609311

 Opinion by Judge Jones; Judges J. Lambert and Stumbo concurred. This appeal concerned coverage under a homeowner’s insurance policy issued by Nationwide Insurance Company to Michael Bishop. The circuit court determined that Nationwide was not obligated to provide coverage for injuries appellant sustained when Bishop shot him because the injuries were caused by conduct expressly excluded from coverage in Nationwide’s policy. On appeal, the Court of Appeals determined that Nationwide’s criminal acts exclusion applied to an “act or omission which is criminal in nature” such that it constituted a felony or misdemeanor under Kentucky’s Penal Code. Under this definition, offenses punishable only by a fine would not be covered by the criminal acts exclusion because such offenses are violations, not misdemeanors or felonies. See KRS 500.080; KRS 431.060. Traffic infractions are likewise excluded from Kentucky’s definition of a misdemeanor. See KRS 500.080. Bishop pled guilty to wanton endangerment in the first degree, a Class D felony. The Court noted that intentionally pointing a gun at an unarmed child is the type of conduct every citizen should know is wanton and criminal. The Court refused to accept that Bishop could have reasonably expected such core criminal conduct to fall outside of Nationwide’s criminal acts exclusion. Accordingly, the Court held that the exclusion applied in this case. The Court then determined that Bishop’s Alford plea collaterally estopped him from denying civil liability and that the conviction established Bishop’s factual guilt irrespective of the fact that the conviction was obtained through entry of an Alford plea.

TORTS

Burchett v. Burchett 
2015-CA-000198 05/13/2016 2016 WL 2855384

Opinion by Judge D. Lambert; Judges Combs and VanMeter concurred. This appeal was brought from an order finalizing dismissal of a wrongful death suit against an automotive dealer and his insurer. Amanda Burchett and Erick Blair (Blair) bought an automobile from David Perry, d/b/a Louisa Auto Mart (Perry). Blair crashed the automobile six days later while driving intoxicated. Amanda Burchett and Benjamin Burchett II were riding with Blair at the time. Benjamin was killed in the crash. Sandra Burchett, as the representative of Benjamin’s estate, later filed a wrongful death action against Blair and Perry. In the complaint, she alleged: (1) that Perry violated KRS 186A.220 because he sold the automobile to Blair and Amanda and neither one had insurance; (2) that Perry violated KRS 186.620 by authorizing and permitting a person without a driver’s license to drive an automobile; (3) that Perry negligently entrusted the automobile to Blair and Amanda; and (4) that Perry remained the owner of the automobile because he sold it to individuals who did not have insurance in violation of KRS 186A.220. The circuit court granted Perry’s motion for summary judgment as to the violations of KRS 186A.220 and held a jury trial to decide two issues: whether Perry delivered title documents to Blair and Amanda on the day of the sale (yes), and whether Amanda had a driver’s license (no). Based on the jury’s determination, the circuit court ruled that title to the automobile transferred on the day of the sale, eliminated any issues relating to Perry’s alleged liability, and dismissed Perry from the action. On appeal, Sandra argued: (1) that Perry breached a statutory duty of care by authorizing or knowingly permitting Blair to drive the automobile because Blair did not have a driver’s license; (2) that Perry had a duty to verify that Blair and Amanda were insured; and (3) that a jury issue remained as to whether Perry negligently entrusted the vehicle to Blair and Amanda because he should have known that neither Blair nor Amanda had a driver’s license or insurance. The Court of Appeals rejected all three arguments and affirmed. Because Perry delivered the necessary title documents to Blair and Amanda on the day of sale, Blair and Amanda became the owners of the automobile on that day. Moreover, since Perry was no longer the owner, he was under no duty to prevent either Blair or Amanda from driving the automobile on the day of the accident. Finally, because Perry transferred the title documents to Blair and Amanda directly, and did not retain the certificate of title with the consent of the new owners to file it with the county clerk, he did not have to verify whether Blair or Amanda was insured. The Court further held that because the accident occurred after the sale, the negligent entrustment claim against Perry failed as a matter of law.

DeMoisey v. Ostermiller
2014-CA-001827 05/06/2016 2016 WL 2609321

Opinion by Judge Jones; Chief Judge Acree and Judge Clayton concurred. This appeal and cross-appeal arose out of a civil action wherein appellants/cross-appellees, J. DeMoisey Fox and the DeMoisey Law Office, PLLC (“DeMoisey”), asserted claims against appellee/cross-appellant, attorney Peter L. Ostermiller, for tortious interference with contractual relations, tortious interference with prospective contractual relations/business advantage, and abuse of process. The claims arose out of Ostermiller’s advice to and representation of Infocon Systems, Inc. (“Infocon”), a former client of DeMoisey. The Court of Appeals held that DeMoisey could not rely on an alleged contingency fee agreement that had previously been determined to violate the Kentucky Rules of Professional Conduct to support a tortious interference with contractual relations claim. The Court also held that DeMoisey had failed to allege a cognizable tortious interference with prospective contractual relations/business advantage claim because in the absence of a valid contingency fee agreement, his only expectancy was to receive a fee in quantum meruit. With respect to the cross-appeal, the Court determined that the abuse of process claim should have been dismissed with prejudice because it was time barred. The Court held that successful termination of the underlying action is not an element of an abuse of process claim and, therefore, the statute of limitations on such a claim begins to run when the conduct comprising the abuse takes place.

Goins v. Lafoe
2014-CA-001476 05/27/2016 2016 WL 305023

Opinion by Judge Dixon; Judges Combs and D. Lambert concurred. The Court of Appeals affirmed an order granting summary judgment for appellees on the grounds that appellant’s tort claims were time-barred. Appellant asserted that the five-year limitations period set forth in KRS 413.120(2) applied to her claims, which she characterized as statutory violations of the penal code. The Court held that appellant could not circumvent the applicable statute of limitations (KRS 413.140(1)(a)) by characterizing her tort claims in this manner. Appellant’s cause of action concerned physical injuries she allegedly suffered at the Lexington-Fayette Urban County Government Detention Center. Consequently, the one-year statute of limitations applicable to personal injury actions applied. Since appellant waited nearly five years before filing suit, her claims were time-barred. The Court also held that appellant’s plea agreement in a related criminal action barred her subsequent claim of malicious prosecution as a matter of law.

 

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COA: April 2016 Summaries of Published Decisions for Court of Appeals

Sovereign immunity and Kentucky's Model Procurement Code; Firefighters Rule and on the job; Medical exams and workers compensation

Here are selected published decisions dealing with torts, insurance, and civil matters of note from the Court of Appeals of Kentucky as summarized by the AOC.

Please note some have pending motions for discretionary review so you are cautioned to confirm finality of disposition by going to the AOC’s web site.

IMMUNITY

University of Louisville v. Rothstein
2014-CA-000997 04/01/2016 2016 WL 1267992 DR Pending

Opinion by Judge Nickell; Chief Judge Acree and Judge Jones concurred. The University of Louisville challenged the Franklin Circuit Court’s denial of its motion for summary judgment. U of L had asserted it was entitled to sovereign immunity on appellee’s claims relating to an alleged breach of his written employment contract. The circuit court concluded immunity had been waived under the Kentucky Model Procurement Code (KMPC), KRS 45A.005 et seq. On appeal, U of L asserted the waiver of sovereign immunity contained in KRS 45A.245 did not apply to employment contracts. The Court disagreed, concluding the statute waived the defense of sovereign immunity in all written contract actions against the Commonwealth – including those subject to the KMPC. Because U of L is a state agency and the employment contract between U of L and appellee was written, the Court determined the waiver provisions of KRS 45A.245 were applicable. Thus, it was held, the circuit court correctly determined appellee’s action was not barred by the defense of sovereign immunity, and the denial of summary judgment was affirmed.

NEGLIGENCE

Johnson v. Norfolk Southern Railway Company
2014-CA-001298 04/15/2016 2016 WL 1534275 DR Pending

Opinion by Judge Dixon; Judges Combs and D. Lambert concurred. In a premises liability action brought by a police officer against a railway company, the Court of Appeals reversed a directed verdict in favor of the railway company entered on the grounds that the Firefighter’s Rule barred the officer’s recovery as a matter of law. Under the Firefighter’s Rule, firefighters and public protection agents such as police officers are required to assume the ordinary risks of their employment, a dangerous occupation, to the extent necessary to serve their public purpose; the Rule operates as a defense for those who are the owners or occupiers of the property the agents are employed to protect. Sallee v. GTE South, Inc., 839 S.W.2d 277 (Ky. 1992), sets forth three prongs necessary to the application of the Firefighter’s Rule as adopted in Kentucky: (1) the purpose of the policy is to encourage owners and occupiers, and others similarly situated, in a situation where it is important to themselves and to the general public to call a public protection agency, and to do so free from any concern that by so doing they may encounter legal liability based on their negligence in creating the risk; (2) the policy bars public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk; and (3) the policy extends only to that risk. The Court concluded that in this case appellee did not fit within the first prong of the Rule. Appellant had responded to a call about an individual acting in a disorderly manner at the end of a street adjacent to Centre College. After the individual fled the scene, appellant and another officer chased him on foot across a field and through a tree line located on appellee’s property. At the end of the pursuit, appellant fell to the bottom of a steep embankment located on the other side of the tree line, suffering injuries to her wrist and eye. The Court noted that there was no evidence that appellee had placed the call regarding the suspect or was even aware of the incident, the company did not create the risk that necessitated or caused appellant’s presence on the property, and appellant was injured by a risk different in both kind and character than the one she was called upon to engage. Ultimately, appellant’s entering onto the property and subsequently falling down the embankment was the result of wholly independent factors not involving appellee. Although appellant assumed all of the risks inherent with being a police officer, she “was not injured by the risk [s]he was called upon to engage, but by a risk different in both kind and character.” Sallee, 839 S.W.2d at 279. Accordingly, on remand determination of appellee’s liability for appellant’s injuries would depend not upon the Firefighter’s Rule, but rather upon those considerations which generally govern the relationship between possessors of real property and those who are injured on it.

WORKERS’ COMPENSATION

Finke v. Comair, Inc.
2014-CA-000624 04/29/2016 2016 WL 1719311

Opinion by Judge Jones; Chief Judge Acree and Judge J. Lambert concurred. Appellant challenged the determination of the Workers’ Compensation Board that she did not have an unfettered right to have her father present during an Independent Medical Examination, and that the Administrative Law Judge did not abuse his discretion in determining that appellant failed to present a “compelling reason” why she could not submit to the examination without her father present. The Board also upheld the ALJ’s decision that appellant was not entitled to receive any benefits during the time of her noncompliance. The Court of Appeals affirmed, holding that upon request an ALJ has discretion to order deviations in IME protocol so long as the examinee demonstrates a “good cause” basis for the requested deviation. However, vague allegations of “general discomfort,” as offered here, are insufficient to show good cause. If the examinee has privacy concerns, she may request an ex parte communication with the ALJ or leave to file her concerns under seal. Finally, the Court held that benefits properly suspended under KRS 342.205(3) cannot be retroactively restored.


Click here for the AOC’s archived summaries of monthly published decisions for the Court of Appeals.

Click here for the monthly summaries of published decisions tagged in the Kentucky Court Report’s posts.

This month’s summary of published decisions:

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