SC: August 20, 2015 Supreme Court of Ky Decisions (Minutes 83-123)

41 decisions; 13 published; 5 attorney disciplinary decisions published; and 12 motions for discretionary review (MDRs) granted

Casey County Court House, Liberty, Kentucky. Built 1887. Color image courtesy of Keith Vincent, www.CourtHouseHistory.com.

Casey County Court House, Liberty, Kentucky. Built 1887. Color image courtesy of Keith Vincent, www.CourtHouseHistory.com.

Supreme Court of Kentucky announced 41 decisions on August 20, 2015, with 13 Kentucky Supreme Court opinions designated for publication; 5 attorney/judicial ethics and disciplinary matters were announced;  and 12 motions for discretionary review were granted.

July was a down month with no decisions from SCOKY.

Click here for a list of all our posts on Supreme Court of Kentucky decisions posted east month as minutes.    Click here for a link to archived list of minutes posted at the Administrative Office of the Courts official web site.  Click here for the AOC page for this month’s minutes.

Selected published decisions:

87  Nursing Home.  Cause of Action under KRS 216.515 and SOL
James Overstreet vs. Kindred Nursing Centers Limited Partnership
SC Published opinion affirming;  Mercer County

Questions Presented: Limitation of Actions. KRS 216.515. Issues include whether KRS 216.515 created a new cause of action or whether the cause of action was one for personal injury, and whether the statute of limitations for personal injury or for a newly established statutory action applies. [KRS 216.515 lists rights of nursing home residents and duties of facilities.]

Opinion by Justice Venters.  KRS 216.515 sets forth certain rights of nursing home residents. In this appeal we address the statute of limitations applicable to actions brought pursuant to that statute. We also consider whether actions based upon rights created by KRS 216.515 survive the death of the nursing home resident so that such actions may be brought after the resident’s death by the personal representative of the resident’s estate.

Ultimately, we conclude that claims brought under KRS 216.515(6) are subject to the one-year limitation period prescribed by KRS 413.140, to the extent that such actions seek to recover for personal injuries indistinguishable from a common law personal injury action. In contrast, actions brought pursuant to other subsections of KRS 216.515, to the extent they assert liabilities created exclusively by KRS 216.515, are subject to the five-year statute of limitations provided by KRS 413.120(2). We also conclude that actions to recover for personal injury to a nursing home resident, or for injury to the resident’s real or personal property, pursuant to KRS 411.140, survive the resident’s death and may be brought by the personal representative of an injured resident’s estate. In contrast, actions otherwise brought to enforce rights created exclusively by KRS 216.515 must be brought by the “resident or his guardian” pursuant to KRS 216.515(26), and therefore do not survive the resident’s death. Accordingly, we affirm the decision of the Court of Appeals, although we do so partly upon different grounds.

99.  Employment law.  Retaliatory Discharge.
Mary Banker vs. University of Louisville Athletic Association, Inc.
SC Published Opinion Reversing and Remanding COA Decision; Jefferson County.

Questions Presented:  Employment Law. Retaliatory Discharge. Sufficiency of the evidence of causation or pretext to support the jury verdict for the discharged plaintiff.

Opinion by Justice Keller.

A jury found in favor of Mary Banker on her retaliatory discharge claim against the University of Louisville Athletic Association, Inc. (ULAA), and the trial court awarded attorney fees to Banker’s attorney, Bryan Cassis. ULAA filed a motion for a judgment notwithstanding the verdict or for a new trial, which the trial court denied. ULAA then appealed to the Court of Appeals, which reversed and remanded for dismissal of Banker’s claim. Banker filed a motion for discretionary review and, because the Court of Appeals did not address all of the issues raised by ULAA, it filed a cross-motion for discretionary review. We granted both motions and consolidated the appeal and cross-appeal.On appeal, Banker argues that she put forth sufficient evidence to establish that ULAA discharged her for engaging in a protected activity under the Kentucky Civil Rights Act and that the Court of Appeals substituted its view of the evidence for the jury’s. In its cross-appeal, ULAA argues that the jury’s award of damages and the trial court’s award of an attorney fee were not supported by the evidence. Having reviewed the record and the arguments of the parties, we reverse and remand.

100.  Medical Malpractice. Evidence. Informed Consent.
Loretta Sargent vs.  William Shaffer, M.D.
SC Published Opinion Reversing and Remanding COA;  Fayette County

Questions Presented: Evidence Law. Jury Instructions. Medical Malpractice. Informed Consent. KRS 304.40- 320(2). Whether a jury instruction on informed consent in a medical negligence action must contain the duty enumerated in KRS 304.40- 320(2).

Opinion by Justice Venters.   On discretionary review, Appellant Loretta Sargent argues that the Court of Appeals erred in affirming a judgment of the Fayette Circuit Court absolving Appellee William Shaffer, M.D., from liability on Sargent’s claim that he failed to obtain her informed consent before operating on her. The trial judgment

was based upon a jury verdict resulting from jury instructions which Sargent contends improperly stated Dr. Shaffer’s duties under KRS 304.40-320, Kentucky’s informed consent statute. For the reasons that follow, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.

102.  Civil Procedure. Standing.  Business entity not a named plaintiff.
Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group vs. Consol Energy, Inc.
SC Published Opinion Reversing and Remanding COA;  Knott County

Questions Presented: Civil Procedure. Parties. Standing. Issues include whether the Court of Appeals properly vacated the trial court’s judgment in favor of a business entity that was not a named plaintiff.

Opinion by Justice Abramson.  This action resulted in a jury verdict and judgment in favor of Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group on claims of breach of contract and tortious interference with contract. On appeal, Defendants CONSOL Energy, Inc. (“CONSOL”) and CONSOL of Kentucky, Inc. (“CKI”) raised various substantive issues regarding the claims asserted and the trial, while Plaintiffs Keith Randall Sparkman (“Sparkman”) and In-Depth Sanitary Service, Inc. sought review of an evidentiary ruling by cross-appeal. The Court of Appeals never reached the issues raised by the parties, but instead sua sponte concluded that it had no jurisdiction over the appeal. The contracts at the center of the dispute were entered into by In-Depth Sanitary Service Group (“Group”), a sole proprietorship that was not named in the complaint, (as opposed to the Plaintiff In-Depth Sanitary Service Inc.), and consequently, the

judgment was in favor of Group, a “non-party.” Finding no appellate jurisdiction in those circumstances, the Court of Appeals reversed and remanded the judgment to Knott Circuit Court for further proceedings including “any appropriate corrective action.” The appellate court also

dismissed the cross-appeal on that same ground as well as for being improperly taken from the wrong judgment. We now reverse and remand this matter to the Court of Appeals to address the appeal and cross-appeal on the merits.

Download (MNT082015.pdf, PDF, Unknown)

COA: August 28, 2015 Court of Appeals Decisions (Minutes) (723-741) 22 decisions; 3 published)

Three published cases (child support and secondary employment income; RCr 11.42; Foreclosure). Tort, insurance and civil (failure to timely revive on death results in dismissal; dismissal affirmed with no relief for discovery after 20 month delay).

Casey County Court House, Liberty, Ky. Built 1887. Image courtesy of Keith Vincent, www.CourtHouseHistory.com

Casey County Court House, Liberty, Ky. Built 1887. Image courtesy of Keith Vincent, www.CourtHouseHistory.com

Published Court of Appeals appellate cases for  this week –
August 28, 2015:

729.  Family Law.  Child support.  CR 59.05
Michelle Bootes vs. Damon Bootes
COA Published Opinion Reversing and remanding;  Jefferson County
Appellant moved to amend order per CR 59.05.   Although she raised multiple grounds the COA found trial court erred in not including father’s income from secondary employment in it s child support calculations.

730.  Criminal Law. Post conviction Motion RCr 11.42
Jeffrey McGaha vs. Commonwealth of Kentucky 
COA Published Opinion Affirming; Adair County
Pro se appeal that trial court denied his post conviction motion for relief was refuted by record and order affirmed.

733.  Foreclosure on real property.
Gelvic Cubar vs. Town & Country Bank and Trust Co.
COA Published Opinion Affirming.  Nelson County.
Affirmed foreclosure of property securing loan when Cubar stopped making paymentsl

Selected Court of Appeal’s “not to be published” decisions on tort, insurance and civil from Aug. 28, 2015:

732.  Civil Procedure.  Revival of action upon death of defendant.
Kim Jewell vs. Michael Zaher
COA Not to be published opinion Affirming; Jefferson County
Held plaintiff had timely notice of death of death defendant but failed to revive cause of action  in time (one year after death of deceased party) per CR 25.01 and KRS 395.278.  Affirmed dismissal of claim for statute of limitations.

735.  Motion to dismiss and discovery. Tripartite relationship of defense counsel.
Bradley Settles vs. Owners Insurance Co.
COA Not to be published opinion affirming;  Casey County
Held appellants were not denied opportunity for discovery when trial court dismissed counterclaim after 20 months had passed  between filing of counterclaim and order dismissing allegations contained therein. Also issues of  bad faith on insurer’s failure to make counteroffer following demand and tripartite relation of insurance defense counsel discussed.

See “boldfaced” decisions above that are published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

Download (MNT08282015.pdf, PDF, Unknown)

COA: August 21, 2015 Court of Appeals Decisions (Minutes) (701-722) 22 decisions; 4 published)

The four published decisions addressed probation revocation hearing, zero pain and suffering verdict against UIM carrier, claims against auto dealer for an "as is" sale, and choice of law question on disability income as marital property.

Bell County Court House, Pineville, Kentucky. Built 1988. Fire 1914. Image courtesy of Keith Vincent, www.CourtHouseHistory.com

Bell County Court House, Pineville, Kentucky. Built 1888. Fire 1914. Image courtesy of Keith Vincent, www.CourtHouseHistory.com

Published Court of Appeals appellate cases for  this week –
August 21, 2015:

701.  Criminal.  Probation revocation.
Brann v Commonwealth of Kentucky
Graves County; COA Opinion Vacating and Remanding

On appeal, Brann argues that the trial court abused its discretion in revoking his probation in light of recently enacted Kentucky Revised Statutes (KRS) 439.3106 and that the trial court’s findings were insufficient and amounted to a violation of his constitutional due process rights.

Probation revocation hearings rest within the trial court’s discretionary powers “both in respect to initiation of a hearing and the disposition thereof.” Ridley v. Commonwealth, 287 S.W.2d 156, 158 (Ky. 1956).

In the instant case, the trial court did not articulate that it had considered KRS 439.3106 in its order revoking Brann’s probation. Thus, we vacate the Graves Circuit Court’s order revoking Brann’s probation and remand for consideration under KRS 439.3106 in light of the Supreme Court of Kentucky’s opinion in Andrews.

704.  Insurance.  UIM.
Leport vs. Allstate Insurance Co.
Greenup County; COA Opinion Affirming

Jessica D. LePort (Jessica) appeals from orders entered by the Greenup Circuit Court pertaining to the trial of her complaint for underinsured motorist (UIM) benefits. Jessica contends that had the trial court ruled differently, especially on evidentiary matters, jurors would not have awarded her zero dollars for both future medical expenses and pain and suffering in light of the parties having stipulated to nearly $22,000.00 in past medical expenses. Upon review of the record, the briefs and the law, we affirm.

The at-fault driver Stone was intoxicated and pled guilty to drunk driving.  LePort sued, settled for Stone’s liability limits, then amended complaint to bring in Allstate and pursue a contractual claim for UIM benefits.  With the defendant driver’s fault having been established early on, the parties stipulated to past medical expenses of $21,805.00, as well as the authenticity of Jessica’s medical records. This left only two questions for jurors to resolve at trial —was Jessica injured, and if she was, the extent, if any, to which she was entitled to awards for future medical expenses and/or pain and suffering.  Allstate was successful in keeping out evidence of intoxication and obtained partial summary judgment on the claim for punitives which were excluded in the UIM policy.  After deliberating about ninety minutes, eleven jurors agreed she should receive “$0” for pain and suffering, and all twelve  agreed she should receive “$0” for future hospital and medical services.  As the proof shows, Jessica received no actual treatment; her medical expenses were primarily for diagnostic tests (x-rays, MRIs and range of motion studies). Motions for a new trial, to set aside the jury verdict and to alter, amend or vacate the verdict were denied. Jessica timely appealed to this Court.  The COA affirmed.

714.  Claims against dealer arising from “as is” sale of auto
Evans vs. JNT, Inc. d/b/a Kar Smart  [this link has now been corrected thanks to a reader!/mike]
Fayette County; COA Opinion Affirming in Part, reversing in part, and remanding

We agree with the trial court that their claims for breach of contract, negligent misrepresentation, and breach of express and implied warranties were precluded based upon the “As Is” clause in the purchase contract. However, we conclude that the “As Is” clause did not preclude the claim for intentional misrepresentation, or for violations of the damage disclosure requirements of KRS 186A.540 and the Kentucky Consumer Protection Act (KCPA). Hence, we affirm in part, reverse in part, and remand for additional proceedings.

715.  Divorce.  Choice of Law re maritial property and Connecticut disability retirement benefits as non-martial
Cherryl Kirilenko vs. Kenneth Kirilenko
Boyle County; COA Opinion reversing and remanding

We agree with Cherryl that, under the particular facts of this case, Connecticut has the most significant relationship to the asset in question. Consequently, we reverse the trial court’s judgment and remand for additional findings of fact and conclusions of law concerning the divisibility of those benefits under Connecticut law.

Selected “not to be published” decisions on tort, insurance and civil from Aug. 21, 2015:

No not to be published but see zero pain and suffering UIM verdict above Leport vs. Allstate

See “boldfaced” decisions above that are published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

 

Download (MNT08212015.pdf, PDF, Unknown)

COA: August 14, 2015 Court of Appeals Decisions (Minutes) (678-700) 23 decisions; 7 published)

Seven published (punitive damages awarded in contract breach; res ipsa loquitor and medical negligence, medical misdiagnosis, "key in ignition" case, standing. Nonpublished cases (garnishment of inmate account of Stephen Nunn; no incorporation by reference in insurance policy contact and no post claim waivers of coverage by policyholder permitted)

Published appellate cases for  this week – August 14, 2015:

  • 678. Breach of contract and fraud; compensatory and punitive damages; closing arguments
    Nami Resources Co. LLC vs. Asher Land and Mineral LTC
    Opinion affirming; Bell County
    Affirmed jury verdict award of $1,308,403.60 in compensatory damages and $2,686,000.00 in punitive damages for breach of contract and fraud.
  • 680. Medical negligence; res ipsa loquitor applied; summary judgment reversed
    Mark Sietsma vs. Dr. John Adams, MD
    Opinion reversing and remanding; Hardin County
  • 682.  Medical negligence; misdiagnosis; reversed in part on causation; delay and damages
    Desiree Douglas vs. Advanced Pain Medicine PSC
    Opinion affirming in part, reversing in part; Fayette County
  • 686.  Negligence.  “Key in ignition” claim.
    Lashonda Fentress vs. Martin Cadillac, Inc.
    Hardin County; COA Opinion Affirming
    Affirmed summary judgment dismissing auto negligence claim based on “key in ignition” theory of liability (KRS 189.430) when car stolen and cause
    688.  Standing.  Affirmed CR 12.02(f) dismissal of multiple causes of action in business law suit (breach of fiduciary duty; fraud by omission; misappropriation; unjust enrichment) for lack of standing; elements addressed within context of standing
  • 688. Standing. Business claims. Dismissal.
    David Griffin vs. Sarah C. Jones

    Fayette; COA Opinion Affirming
    Griffin lacked standing to assert his claims of breach of fiduciary duty, fraud by omission, misappropriation, and unjust enrichment against Sarah; at best, those claims were entirely derivative in nature.
  • 691.  Criminal Sentencing.  Trial court failed to use KRS 533.256(2) criteria when entering order voiding pretrial diversion
    Blondell Richardson vs. Commonwealth of Kentucky 
    Estill;  COA Opinion reversing and remanding
  • 693.  Family Law.  Grandparent visitation
    Deborah Navy vs. Larry Massie
    Greenup;  COA Opinion vacating and remanding
    Reversed and remanded trial court order denying grandparent visitation.

Selected not to be published decisions on tort, insurance and civil–

See “boldfaced” decisions above that are published.  For nonpublished, then read on.

  • 689.  Garnishment of Inmate Account upheld.
    Stephen R. Nunn vs. Diana Ross as Pers. Rep. of Estate of Amanda Ross
    Fayette;  Nonpublished COA opinion affirming
  • 695.  Qualified Official Immunity could not be asserted
    Thompson vs. Smith
    Knott; NPO COA opinion affirming and remanding
  • 697.  Insurance Bad Faith.  Incorporation by referenced in insurance contracts.
    General Star Indemnity Co. vs. Withrow
    Bath;  NPO COA opinion affirming
    Kentucky law does not permit insurance contracts to incorporate by reference – “[n]o agreement in conflict with, modifying, or extending any contract of insurance shall be valid unless in writing and made a part of the policy.” KRS 304.14-180(1).  Insured may not “waive” coverage after a loss.  If policy holders who injured or killed third parties were allowed to unilaterally waive coverage after the injury or death, the very public policy of Kentucky insurance law – i.e., to fully compensate victims – would be thwarted. See State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33, 36 (Ky. 2004). We find no basis for concluding that Phoenix either could or did waive coverage after the accident involving its vehicle, and we find no error on this issue.

Download (MNT08142015.pdf, PDF, Unknown)

COA: August 7, 2015 Court of Appeals Decisions (Minutes) (662-677); 16 decisions; None published)

No decisions "to be published". However, 2 tort cases were designated NOT to be published (Louisville Metro has no obligation to pay judgment for police officer's settlement without Metro approval; appeal of award of attorney fees dismissed when no language of finality in order which is interlocutory)

Barren County Court House, 1896.  Post card provided courtesy of Keith Vincent, www.CourthouseHistory.com

Barren County Court House, 1896. Post card provided courtesy of Keith Vincent, www.CourthouseHistory.com

The Kentucky Court of Appeals announced 17 decisions  on August 7, 2015, with none designated “to be published”.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

No Published appellate cases for  this week – August 7, 2015:

Selected not to be published decisions on tort, insurance and civil–

664.  Metro government not obligated to pay judgment against police officer who did not obtain Metro’s prior approval of settlement
John Matthew Woolridge vs. Louisville Jefferson Country Metro Government
COA, NPO 8/7/2015 Opinion affirming Jefferson County

665.  Award of attorney fees interlocutory when no language of finality in order; appeal dismissed
Julian Clark vs. Cynthia Duncan
COA NPO 8/7/2015;  Opinion and Order Dismissing Appeal from Warren County

Download (MNT08072015.pdf, PDF, Unknown)

SC: August 12 and 13, 2015 Oral Arguments before Ky Supreme Court

Insurance Law. Automobile Accidents. Uninsured Motorist Coverage. Where an injured party is covered by more than one uninsured motorist policy, but both contracts contain excess clauses, should the damages be apportioned between the companies or should a per se rule deeming primary the injured party’s uninsured motorist policy apply?"

Entrance to Office for Supreme Court of Kentucky

Entrance to Office for Supreme Court of Kentucky

SCOKY will hear oral arguments on August 12 and 13, 2015 at the State Capitol in Frankfort. Note there were NO oral arguments for last month, July.

For Kentucky Supreme Court LIVE argumentsclick here on date and time of argument.

On Thursday, July 13 the Supremes will hear an insurance law case  dealing with uninsured motorist benefits and the application of excess clauses.

11:00 a.m. COUNTRYWAY INSURANCE V. UNITED FINANCIAL CASUALTY INSURANCE COMPANY, ET AL (2014-SC-000265-DG)

APPELLANT BRIEF

APPELLEE BRIEF

REPLY BRIEF

“Insurance Law. Automobile Accidents. Uninsured Motorist Coverage. Where an injured party is covered by more than one uninsured motorist policy, but both contracts contain excess clauses, should the damages be apportioned between the companies or should a per se rule deeming primary the injured party’s uninsured motorist policy apply?”

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 Reports postings on Supreme Court argument calendars.

Download (SCOAUG15.pdf, PDF, Unknown)

COA: August 2015 Oral Argument Calendar for Court of Appeals

Oral arguments for the month of August 2015 --- Aug. 4 at Louisville; Aug. 11 & 12 at Frankfort; Aug. 19 at Louisville; and Aug. 26 at Frankfort

"The Court of Appeals of Kentucky, 1939. Judges: W.H. Fulton, James W. Stites, Alex Ratliff, GusThomas, William H. Rees, Wesley V. Perry, J.W. Cammack, Charles K. O'Connell (Clerk); Commissioners: Charles Morris, Porter Simms, Osso Stanley & Charles F. Creal; and C.H. Cheshire, Sergeant at Arms.", 1939 Part of Wilson Family Photographic Collection, ca. 1840-1959

“The Court of Appeals of Kentucky, 1939. Judges: W.H. Fulton, James W. Stites, Alex Ratliff, GusThomas, William H. Rees, Wesley V. Perry, J.W. Cammack, Charles K. O’Connell (Clerk); Commissioners: Charles Morris, Porter Simms, Osso Stanley & Charles F. Creal; and C.H. Cheshire, Sergeant at Arms.”, 1939
Part of Wilson Family Photographic Collection, ca. 1840-1959

Court of Appeals of Kentucky will hear oral arguments for the month of August 2015 on Aug. 4 at Louisville; Aug. 11 & 12 at Frankfort;  Aug. 19 at Louisville; and Aug. 26 at Frankfort.

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY.

For a complete list of archived argument calendars at the Administrative Office of the Courts, then click here.

For this month’s COA argument calendar:

Download (August2015.pdf, PDF, Unknown)

COA: July 31, 2015 Court of Appeals Decisions (Minutes) (644-661); 18 decisions; 1 published)

1 published case (trial judge prematurely granted directed verdict during opening statement in medical negligence case on need for experts on lack of informed consent). 2 tort cases (default judgement on PIPs subrogation premature and set aside while motion for enlargement of time filed after time period for default but default not yet granted; pro se appeal in chiropractic negligence case affirmed on issues of new trial, continuance denial, and claim of false evidence presented in defense)

Pike County Courthouse, Pikeville, Kentucky. Built 1889 with 1932 Additions.  Photo courtesy of Keith Vincent @ www.CourtHouseHistory.com.

Pike County Courthouse, Pikeville, Kentucky. Built 1889 with 1932 Additions. Photo courtesy of Keith Vincent @ www.CourtHouseHistory.com.

The Kentucky Court of Appeals announced 18 decisions  on July 31, 2015, with one opinion designed “to be published”.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

Published appellate cases for  this week – July 31, 2015:

657.Medical negligence.  Informed Consent.  Experts.  Opening statement.   Directed Verdict.
Jacquilyn G. Harrington vs.  Dr. Alex Argotte, M.D.
COA Published 7/31/2015; Reversing and remanding  grant of directed verdict.

Trial judge prematurely granted directed verdict during opening statement in medical negligence case on need for experts on lack of informed consent.

TAYLOR, JUDGE: Jacqulyn G. Harrington brings this appeal from a March 21, 2014, directed verdict of the McCracken Circuit Court dismissing her medical negligence action against Alex Argotte, M.D. We reverse and remand.

Harrington filed a complaint alleging medical negligence against Argotte. Harrington claimed, inter alia, that Argotte failed to obtain adequate informed consent for the surgical implantation of the IVC filter. In particular, Harrington asserted that Argotte failed to inform her that the IVC filter was retrievable and possibly could have been removed prior to its fragmentation. Also, Harrington maintained that Argotte failed to inform her that the IVC filter could fracture.

The case came before the trial court for a jury trial on March 17, 2014. A jury was empaneled, and the case proceeded to opening statements. After Harrington presented her opening statement, Argotte moved for a directed verdict. Kentucky Rules of Civil Procedure (CR) 50.01. Argotte argued that Harrington admitted during her opening statement that no expert witness would testify as to whether Argotte breached the standard of care as to Harrington’s claim of lack of informed consent.  The trial court sustained the motion for directed verdict, thus concluding the trial proceedings without any evidence being presented.

Harrington contends that the circuit court erred by rendering the directed verdict dismissing her negligence claim for lack of informed consent. Harrington argues that it was error to render the directed verdict after her opening statement and prior to presentation of any evidence to the jury.

Based upon our review of Kentucky law, a directed verdict may be rendered after opening statement in very limited cases where counsel made an admission unequivocally fatal to her cause of action. Riley v. Hornbuckle, 366 S.W.2d 304 (Ky. 1963); Samuels v. Spangler, 441 S.W.2d 129 (Ky. 1969). It must be emphasized that a “directed verdict at this stage of the proceedings is never based on the mere insufficiency of the opening statement to support a case, but always upon the presence of admissions that are fatal to the case.” Riley, 366 S.W.2d at 305. Additionally, our Supreme Court has warned that a directed verdict after opening statement “is [] dangerous [practice] and should be exercised with caution.” Raco Corp. v. Edwards, 272 S.W.2d 345, 347 (Ky. 1954); see also CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 78 n.8 (Ky. 2010); Green v. Owensboro Medical Health System, Inc., 231 S.W.3d 781 (Ky. App. 2007).

During opening statement at trial, Harrington’s counsel stated that he did not intend to call a medical expert to testify on the informed consent issue. Harrington asserted that a medical expert was unnecessary as Argotte’s failure to adequately inform her of the risks and hazards associated with the IVC filter was so apparent that a layman could easily recognize it.

It is well-established that “[a]n action based on lack of informed consent ‘is in reality one for negligence in failing to conform to a proper professional standard . . . .’” Hawkins v. Rosenbloom, 17 S.W.3d 116, 119 (Ky. App. 1999) (quoting Holton v. Pfingst, 534 S.W.2d 786, 788 (Ky. 1975). To prevail upon a claim of lack of informed consent, “the general rule is that expert testimony is required to negate informed consent.” Hawkins, 17 S.W.3d at 119. An exception to this general rule is recognized and is applicable “where the failure is so apparent that laymen may easily recognize it or infer it from [the] evidence.” Keel v. St. Elizabeth Medical Center, 842 S.W.2d 860, 862 (Ky. 1992). And, the decision that expert testimony is required is within the circuit court’s discretion.

In the case sub judice, the circuit court prematurely determined that expert testimony was required to demonstrate the standard of care and breach thereof by Argotte. In a medical negligence claim, the law recognizes an exception where expert testimony is unnecessary if the failure to disclose is so obvious that a layperson can recognize the necessity of such disclosure to a patient. The circuit court viewed this exception as only being triggered in cases where no consent was given by the patient. We disagree with this narrow limitation. Rather, the application of the exception is highly fact-specific and is dependent upon whether the failure to disclose is obvious and apparent to a layman based upon the underlying facts as established by the evidence introduced at trial. As no evidence was heard or introduced before the directed verdict was granted, the circuit court could not have properly determined whether the exception to the general rule requiring expert testimony was applicable.1

Selected not to be published decisions on tort, insurance and civil–

652.  Default judgement prematurely granted while motion for enlargement of time to file answer pending and not ruled upon.
Danny L. Ferrell vs. Liberty Mutual Ins. Co. a/s/o Brenda Paris
COA Not published opinion (NPO) vacating and remanding default judgment granted in favor of the pip insurer; 7/31/2015 Christian County

COA held that default judgement on PIPs subrogation claim was premature and set aside while motion for enlargement of time filed after time period for default but default not yet granted

TAYLOR, JUDGE: Danny L. Ferrell brings this appeal from a January 17, 2014, Default Judgment of the Christian Circuit Court against Ferrell in the amount of $35,000. We vacate and remand.

The underlying allegations in the complaint arose from a traffic accident involving Paris and Ferrell on February 22, 2012, in Hopkinsville, Kentucky. Liberty Mutual, Paris’s insurance carrier, paid reparation benefits to Paris and was subrogated to her claim against Ferrell. The default judgment did not address Ferrell’s Motion for Extension of Time to file a late answer to the complaint. This appeal follows.

The motions effectively passed each other through the U.S. Mail. Without ruling on the Motion for Extension of Time, the circuit court rendered a default judgment against Ferrell in the amount of $35,000 on January 17, 2014.

Ferrell argues that the circuit court erred by rendering the default judgment. For the following reasons, we conclude that the circuit court abused its discretion by rendering the default judgment without ruling on Ferrell’s Motion for Extension for Time to file a late answer or responsive pleading.

656.  Affirmed jury verdict for the chiropractor malpractice claim following vertebral artery dissection
Jessica Jackson vs. Scott M. Gladdis, D.C.
COA, NPO Affirming, Woodford County 7/31/2015
Pro se appeal affirmed and trial court did not err in denying motion for new trial or continuance or that verdict was not supported by the evidence.

Download (MNT07312015.pdf, PDF, Unknown)

COA: July 24, 2015 Court of Appeals Decisions (Minutes) (627-643); 17 decisions; 3 published)

3 published cases (damages from retail installment contract; criminal sentencing and probation; trial judge did not abuse discretion in admitting spreadsheet of digital images and text messages). 2 tort cases (summary judgment holding residency for insurance coverage vacated and remanded for further proceedings; attorney fees awarded following discharge WITHOUT good cause).

Pike County CH 1889 postcare

Pike County Court House Post Card, 1889. Courtesy of Keith Vincent, www.CourtHouseHistory.com.

The Kentucky Court of Appeals announced 17 decisions  on July 24, 2015, with 3 “to be published”.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

Click here (or read below!) for the complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Note those decision names dealing with injury law, insurance law, torts, and civil procedure are in bold face.

Published appellate cases for  this week – July 24, 2015:

632.  Damages.  Interest.  Retail installment contract.
Service Financial Co. vs. Ashley Ware
COA Published 7/24/2015;  Opinion affirming; Franklin County
On discretionary review to COA with Circuit Court opinion affirming a Franklin District Court order of default judgment thatlimited post-judgment interest on a retail installment contract to 12% per annum.

634.  Criminal Law. Sentencing.  Probation.
Allan Grundy vs. Commonwealth of Kentucky 
COA Published, 7.24.2015; Opinion affirming; Jefferson County
J. LAMBERT, JUDGE: Allan Grundy, proceeding pro se, has appealed from the October 28, 2013, order of the Jefferson Circuit Court vacating the order revoking his probation, but refusing to vacate his one-year sentence, and the January 13, 2014, order denying his Kentucky Rules of Civil Procedure (CR) 59.05 and CR 52.02 motions to vacate the October 28, 2013, order. We affirm the orders on appeal.

639.  Criminal Law.
Anthony Durrant v. Commonwealth of Kentucky
COA PUB 7/24/2015; Opinion affirming; Hardin County

KRAMER, JUDGE: Anthony Durrant appeals the Hardin Circuit Court’s judgment convicting him of fourteen counts of Use of a Minor in a Sexual Performance; one count of Possession of Matter Portraying a Sexual Performance by a Minor; and four counts of Unlawful Use of Electronic Means to Induce a Minor to Engage in Sexual or Other Prohibited Activities. After a careful review of the record, we affirm because the trial court did not abuse its discretion in allowing testimony using a spreadsheet of text messages and digital images; the trial court did not abuse its discretion in denying Durrant’s motion for a mistrial; Durrant was not entitled to a lesser-included-offense instruction; and his constitutional rights were not denied as a result of alleged cumulative error.

Selected not to be published decisions on tort, insurance and civil–

636.  Insurance.  Coverage, residency.  Remanded for further proceedings.
Shelter Insurance Co. vs. Neil Paragh
COA, Not to be published, opinion vacating and remanding; Fayette County

COMBS, JUDGE: This case involves the issue of residency in an insurance coverage dispute. In a declaratory action, Shelter Mutual Insurance Company appeals from a summary judgment of the Fayette Circuit Court that found that Neil Paragh was a resident of its insureds’ household. Shelter Mutual argues that because questions concerning where Neil resided present a genuine issue of material fact, entry of summary judgment was erroneous. After our review, we agree. Consequently, we vacate the trial court’s judgment and remand for additional proceedings.

638.  Attorney Fees.
Christian Caudill vs. William R. Johnson; and Johnson Law Firm
COA, Not to be published opinion  affirming;  Pike County

MAZE, JUDGE: Christian Caudill, individually, as next friend of Kristen A. Caudill and Luke Caudill and as administrator of the Estate of Beau Zachariah Caudill, appeals from a judgment of the Pike Circuit Court awarding attorney fees to his former counsel, William R. Johnson and Johnson Law Firm, P.S.C., arising out of Johnson’s representation in personal injury and declaratory judgment actions. Caudill argues that the trial court erred by finding that Johnson was discharged without good cause, and that the award of fees was clearly erroneous. However, we find that the trial court’s factual findings and award of attorney fees were supported by substantial evidence. Hence, we affirm.

Download (MNT07242015.pdf, PDF, Unknown)

COA: July 17, 2015 Court of Appeals Decisions (Minutes) (601-625); 26 decisions; 2 published)

2 published cases (reckless homicide, child's death; criminal mischief and continuing scheme). 2 tort cases (jurisdiction following transfer for venue; unsigned verdict, instructions, negligent supervision/hiring, and bifurcation)

Did you know that Corydon (less than an hour from the Falls of the Ohio) was Indiana’s first State Capital? And that Confederate General and Raider John Morgan ventured north of the Ohio River on one of his incursions of the North during the Civil War?

The Kentucky Court of Appeals announced 26 decisions  on July 17, 2015, with 2 of their opinions designated to be published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes(or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).  AOC version of this week’s decisions can be accessed by clicking here.

For the complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Published appellate cases for  this week – July 17, 2015:

602.  Criminal Law.  Reckless homicide; child’s death; evidence
Jesse Allision vs. Commonwealth of Kentucky

613.  Commonwealth of Kentucky.  Criminal mischief, tire slashing, and continuing scheme.
Charles Coberly vs. Commonwealth of Kentucky

Selected not to be published decisions on tort, insurance and civil–

603.  Venue.  Continuing jurisdiction issue upon transfer of venue.
Kelly King, Adm’x of Est. of Sharon Gette vs. Bluegrass Regional Psychiatric Services
COA, Not to be published opinion vacating, remanding, dismissing, 7/17/2015; Boone County

While fascinating, the historical facts precipitating these appeals are all but irrelevant to our review. Therefore, our recitation of them will be truncated. Sean Noakes was released from a court-ordered involuntary hospitalization at Eastern State Hospital, a psychiatric facility operated by Bluegrass, on June 27, 2008. Dr. Corales was designated as Noakes’ treating psychiatrist during his hospitalization. Less than two weeks after his release, on July 9, 2008, Noakes visited the home of Sharon Gette and her mother, Barbara Rodgers. During the visit, Noakes perpetrated a brutal knife attack on the women, resulting in Gette’s death and serious injuries to Rodgers. Noakes was arrested the same day and was ultimately convicted of numerous criminal offenses related to the attack. He is currently serving two life sentences.

In March of 2012, Bluegrass and Dr. Corales requested the trial court reexamine its holding regarding venue in light of this Court’s recent opinion in O’Bannon v. Allen, 337 S.W.3d 662 (Ky. App. 2011) (venue is proper where alleged negligence occurs, not where resulting damage is suffered). King and Rodgers objected to any transfer and maintained Boone Circuit Court was the proper venue for their actions. On June 4, 2012, the trial court entered an order in each action transferring venue to Fayette Circuit Court on the strength of O’Bannon and Copass v. Monroe County Medical Foundation, Inc., 900 S.W.2d 617 (Ky. App. 1995).

In the recent case of Cabinet for Health and Family Services v. J.T.G., 301 S.W.3d 35, 38-39 (Ky. App. 2009), a panel of this Court analyzed the jurisdiction of a circuit court following transfer in the context of a civil matter. . . . Applying the foregoing analysis to the case sub judice, it is plain that the Boone Circuit Court did not have general jurisdiction when it entered the September 13, 2012, order in light of the fact it had transferred the action to Fayette Circuit Court on June 4, 2012, and no order returning the matter to Boone Circuit Court had been sought nor entered. Consequently, the September 13, 2012, order was of no consequence or legal effect. We have no discretion and must conclude it should be vacated and set aside. S.J.L.S., 265 S.W.3d at 833. These actions were validly transferred to Fayette Circuit Court, and there they must proceed.

605.  Torts.  Negligent hiring, supervision.  Bifurcation.  Unsigned jury verdict.
Brandon Hall vs. Goss Avenue Antiques and Interiors
COA, Non Published Opinion Affirming;  7/17/2015; Jefferson County

Bifurcation.

Hall first argues that the trial court erred in granting the motion to bifurcate the trial. He contends that although the trial court considered that it “may be prejudicial” to allow information about Sullivan’s criminal acts or other bad acts when deciding the employment issue, it did not consider the prejudice to Hall or make any findings on judicial economy or convenience. We apply an abuse of discretion standard when considering an evidentiary issue.  We conclude that the decision to bifurcate the proceeding does not constitute an abuse of discretion and accordingly find no error on this issue.

Directed Verdict.

In order to review the trial court’s actions in the case at hand, we must first determine whether the trial court favored the party against whom the motion was made, including all inferences reasonably drawn from the evidence. Next, “the trial court must determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be ‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” Id. If the answer to this inquiry is in  the affirmative, we must affirm the trial court’s granting of the motion for directed verdict. Moreover, “[i]t is well argued and documented that a motion for a directed verdict raises only questions of law as to whether there is any evidence to support a verdict.” Harris v. Cozatt, Inc., 427 S.W.2d 574, 575 (Ky. 1968). “[A] reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous.” Bierman, 967 S.W.2d at 18. We affirm the trial court’s denial of Hall’s motion for directed verdict.

Unsigned Jury Verdict.

In Hall’s case, the jury properly signed the verdict form and their verdict was confirmed when the jury was polled. The interrogatory, though unsigned, conformed to both the verdict and the verbal response by the jurors when they were polled. There was no prejudice to Hall and there is no reversible error by the trial court.

Download (MNT07172015.pdf, PDF, Unknown)