COA: August 26, 2016 Court of Appeals Decisions (Minutes)(696-723) 27 decisions posted with 6 of them designated “to be published”

PUBLISHED DECISIONS - Mortgages; judicial recusal; workers compensation subrogation against personal policy; civil rights claim barred by intracorporate conspiracy doctrine; workers compensation and lay testimony on causation; conversion. NOT TO BE PUBLISHED DECISIONS ON TORTS - negligence claim against physical therapist; discovery delay and summary judgment and scope of coverage questions

This week’s decisions announced and posted by the Court of Appeals in their weekly minutes may not yet be final.  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.

697.  Business. Mortgages
Keybank National Association vs. Allen
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir Ct. Final judgement dismissing action regarding whether KeyBank could properly file an action seeking a personal judgment against George R. Allen for default on a promissory note which accompanied a junior mortgage, after KeyBank failed to appear to defend its interests in a prior foreclosure action of the senior mortgage on the property.

698.   Dismissal.  Recusal of Judge
Adkins v. Wrightway Readymix LLC
Court of Appeals Published Opinion AFFIRMING Pike Cir Ct order of dismissal of pro se claimant and denial of motion to recuse

Given the dearth of evidence of bias on the part of the trial judge, and the language of Dean v. Bondurant, coupled with Adkins’ procedural waiver, this Court cannot conclude that the trial judge acted arbitrarily, unreasonably, unfairly, or that the decision lacked support from sound legal principles. The trial court, therefore, did not abuse its discretion.

707.  Workers Compensation.  WCB exceeding authority.  Subrogation and personal liability policy.
Fresnius Medical Care Holdings, Inc. v. Mitchell
Court of Appeals Published Opinion AFFIRMING IN PART AND REVERSING IN PART Workers Comp Board decision

Husband and wife returning from work meeting when husband had MVA with wife severely injured.  Wife later divorced husband and settled liability and other insurance claims.  This appeal addressed the workers compensation claims and subrogation arising from ALJ order that made findings and conclusions on several issues, but this appeal only pertains to four issues. The first issue is Mitchell’s impairment rating, which the ALJ concluded was 51%, based primarily on the testimony of Dr. Warren Bilkey. The second issue was whether Fresenius was entitled to a statutory reduction in the benefits awarded to Mitchell based on her failure to wear a seatbelt, which the ALJ declined to impose. The third issue was the calculation of Mitchell’s permanent partial disability (“PPD”) benefits. The final issue was whether Fresenius was entitled to a subrogation credit against Mitchell’s tort recovery, and, if so, the calculation thereof. The ALJ determined that Fresenius was not, as a matter of law, entitled to subrogation credit, but nevertheless proceeded to perform calculations related to the amount of the subrogation credit.  On reconsideration, the ALJ issued another ruling, though the only change made by the ALJ was to increase the length of time for which Mitchell would be entitled to future lost wages in PPD, and then recalculate the total award accordingly.

Both parties then appealed different aspects of the ALJ’s ruling to the Workers’ Compensation Board (hereinafter “the Board”). The Board reversed and remanded the ALJ’s ruling as it related to Mitchell’s impairment rating. The Board affirmed the ALJ’s ruling as it related to the denial of the reduction of benefits for failure to wear a seatbelt. The Board reversed on the issue of Fresenius’s entitlement to a subrogation credit and also as to the calculation thereof. These appeals followed.

The board exceeded its authority in remanding the matter to the alj on the issue of impairment rating associated with the eye injury.  While the record established an eye injury and permanent symptoms resulting therefrom, including loss of ocular motility and visual acuity, the ALJ justified the ruling on the basis that even Bilkey was unsure whether Taylor’s assessment had been consistent with established AMA guidelines. The ALJ’s ruling did reject the uncontested medical proof, but provided sufficient justification. The Board inappropriately substituted its judgment for that of the fact-finder when remanding the issue for further proceedings.

The board acted appropriately when affirming the ALJ’s ruling as it relates to the penalty provision of krs 342.165(1).

Fresenius is not entitled to a subrogation credit against mitchell’s tort recovery.  Mitchell argued before both the ALJ and the Board that Fresenius should not be entitled to a credit against her recovery in the civil action. Indeed, the Kentucky Supreme Court held in State Farm Mut. Ins. Co. v. Fireman’s Fund American Ins. Co., 550 S.W.2d 554 (Ky. 1977), that because an insured has no obligation to his or her employer’s compensation insurance carrier to insure a personal vehicle, then the compensation insurance carrier has no right to the proceeds of the employee’s personal policy.  Mitchell also advanced a policy-based argument that Todd should be considered a first party within the meaning of KRS 342.700. This is consistent with long-standing common law doctrine of unity of person in marriages, whereby a “husband and wife… constitute[e] in law but one person.”  While Mitchell and Todd were not married at the time of the civil action, they were married at the time of the crash and share a child in common.   The evidence reflected that Mitchell paid the majority of the premiums securing the policy through their joint account, and it was not a benefit of her employment.  We agree with Mitchell that Todd, for the purpose of the tort action, was a first-party insured rather than a third-party tortfeasor.

710.  Civil Rights Claim barred by the intracorporate conspiracy doctrine.
Cowing v. Commare
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct. order dismissing claim.

715.  Workers Compensation.  Lay testimony on causation.
Flat Rock Furniture v. Neeley
Court of Appeals Published Opinion AFFIRMING WCB

We agree with the Board and Neeley that the ALJ properly relied upon this record because it substantially complied with the applicable regulations. While the document did not contain a statement of qualifications or index number for Dr. Sanders, this information was included in a separate filing by Flat Rock. In addition, the handwritten portion of the record was legible. Therefore, we find no error in the ALJ’s reliance on this medical record.

In the present case, the ALJ found that Neeley’s lay testimony and Dr. Sanders’ expert medical evidence were “consistent, credible, persuasive and compelling.” He relied upon Dr. Van Meter’s expert opinion for the date on which Neeley reached MMI and upon Dr. Sanders’ testimony for causation. The ALJ also relied upon Neeley’s own testimony to determine that he was permanently and totally disabled. He considered such factors as Neeley’s age, the competitive nature of the job market, his lack of specialized or vocational training, Neeley’s testimony of the problems he has with his vision in both eyes, and his inability to be able to find regular, gainful employment. We acknowledge that this issue is a close call, as Flat Rock correctly points out that no physician assigned any permanent restrictions after Neeley had reached MMI. However, as the Board held and the case law supports, lay testimony is sufficient in this instance to support the ALJ’s finding that Neeley was permanently and totally disabled. Therefore, we affirm the Board’s opinion on this issue.

717.  Conversion.
Baciomiculo LLC v. Nick Bohanan LLC
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir Ct. summarily dismissing its claim of conversion against Nick Bohanon, LLC, and Nick Bohanon (collectively “the Bohanon Defendants”).


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

705.  Negligence (against physical therapist)
Jennings v. Drayer Physical Therapy PLLC
COA Not to Be Published Opinion AFFIRMING Fayette Cir Ct. order dismissing negligence claims against therapist.

706.  Summary judgement affirmed.  Discovery.
Walling v. Safeco Insurance Company of Illinois
COA Not to Be Published Opinion AFFIRMING Jefferson Cir Ct. summary judgement dismissing case finding.  Walling claims that summary judgment was granted in error because he did not have sufficient time to conduct discovery and that he was not given adequate information about the scope of his coverage.

Download (MNT08262016.pdf, PDF, Unknown)

SC: September 2016 Oral Arguments before Ky Supreme Court

Dates: September 14, 15 & 16, 2016

Issues for September 2016 include:

  • “Clean Water Act. Best Practice Judgment (BPJ) Analysis. The first issue is whether the Cabinet was required, as a matter of law, to impose best practice judgment (BPJ) analysis, in addition to effluent limitation guidelines (ELG) when issuing a permit to LG&E for the discharge of its wastewaters into the Ohio River when the Cabinet’s initial interpretation of the provisions governing the issuance of this permit did not require the Cabinet to do so. The second issue was whether the reviewing court should defer to the Cabinet’s interpretation of the provisions and regulations governing the issuance of a permit for the discharge of wastewater.” 9/14
  •  

    “Governmental Immunity. Negligence. Comair Analysis. Issues include whether Kentucky River, the Community Action Agency for four counties, is entitled to governmental immunity from a wrongful death claim.” 9/14

  •  

    “Taxation. Kentucky Constitution. Telecommunications. Franchise Fees. KRS 136.660. Issues include whether the Telecommunications Tax, which bars localities from collecting franchise fees from telecommunications service providers, violates Sections 163 and 164 of the Kentucky Constitution.” 9/15

  •  

    “Criminal Law. Attorneys. Conflict of Interest. The issues presented are (1) whether it is a conflict of interest for a criminal attorney in a local DPA office to represent a defendant in a case where another criminal attorney in the same DPA office represents the victim of that defendant’s actions on other criminal charges; and (2) whether it is reversible error for the trial court to conclude that there was no conflict of interest and to proceed to trial with the DPA attorney representing the defendant, who has refused to waive the conflict of interest.”9/15

 

 

  • “KRS 441.245(3). Authority of Fiscal Court. Establishment of Jailers’ Salary. The issue in this case is whether a fiscal court may decrease the salary of a jailer who does not operate a full service jail, from term to term pursuant to KRS 441.245(3).”  9/15

 

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 (SCOSEP16.pdf, PDF, Unknown)

COA: September 2016 Oral Argument Calendar for Court of Appeals

Dates: September 20, 27 & 29, 2016

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. with names, litigants, issues, and the dates/times/locations for each argument.

Some issues for the month of September 2016 are:

  • Open records request to Revenue Cabinet. Issue of first impression: do taxpayers have a privacy interest in maintaining the confidentiality of their files involving appeals of their tax assessments? Revenue Cabinet seeks to maintain the privacy interest of taxpayers.  9/20
  • Appeal filed from default judgment entered in suit filed to settle estate. 9/27
  • Appeal from jury verdict in personal injury case. Issues involve exclusion of expert testimony, failure to grant continuance and incomplete timely production of discovery. 9/27
  • Appeal from foreclosure action. Does a judgment lien, properly recorded, have priority over a money purchase mortgage entered into later? 9/27
  • Appeal from trial court’s ruling that the economic loss rule bars appellant’s claim for negligent misrepresentation. 9/27
  • Whether the Board properly affirmed the ALJ’s decision that appellant suffered no compensable work-related injury. 9/29

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

Download (September2016.pdf, PDF, 45KB)

COA: August 19, 2016 Court of Appeals Decisions (Minutes)(670-695) 20 decisions posted with 1 of them designated “to be published”

PUBLISHED: DVO violations found in threatening postings on Facebook. SELECTED NOT TO BE PUBLISHED DECISIONS BY COA - Affirmed dismissal of claims against school and others when child hurt on inflatable slide; Failure to timely prosecute and default judgment cases affirmed; Foreseeability and injuries to person shot at Domino's robbery

This week’s decisions announced and posted by the Court of Appeals in their weekly minutes may not yet be final.  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.

674.  Family Law.  DVO Violations and Facebook postings.
Kevin Morris v. Elizabeth Morris
Court of Appeals Published Opinion AFFIRMING IN PART AND REVERSING IN PART Jefferson Cir Ct.   Trial court did not abuse its discretion when it extended the DVO, but the trial court’s attempt to vacate that order was null because the trial court no longer had jurisdiction over it.   The trial court’s attempt to vacate its contempt order by agreement of the Appellee after the notice of appeal had already been filed with our Court. A trial court’s authority to act after a notice of appeal has been filed is very limited. While there is authority to vacate an order that has been appealed in certain extraordinary circumstances, the agreement of one of the parties is not one of those circumstances.

The wife moved the husband “was violating the DVO by making threatening Facebook posts. Specifically, Appellant posted: “just saying if anyone killed the b*tch right now, I wouldn’t grieve the loss.” He further posted: “watching and waiting” on his Facebook page at a location close to Appellee’s mother’s home. Additionally, he posted: “I wouldn’t piss on her if she were on fire” and “I know she is at her mom’s.” Appellee stated in her motion that her mother’s house is 1.9 miles from the location that Appellant cited on his Facebook page.”

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

675.  Qualified immunity issues addressed in negligence claim for school incident when child injured on school property  on inflatable slide.
Walker v. Brock
COA Not to Be Published Opinion  AFFIRMING Knox Cir Ct. summary judgment dismissing claims under qualified official immunity, recreational use statute, Teacher Protection Act.

679.  Denial of motion to set aside default judgment not abuse of discretion.
Mercer v. Brewer
COA Not to Be Published Opinion AFFIRMING Pike Cir Ct. order denying motion to set aside default judgment

680.   Dismissal.  Failure to prosecute.
Gaines-Gentry Thoroubreds, LLC v. Clay Ward Agency Incorporated
COA Not to Be Published Opinion AFFIRMING Fayette Cir Ct dismissal for failure to timely prosecute. Judge did not abuse discretion.

682.  Suit arising from robbery at Domino’s Pizza store resulting in shooting death of person in vicinity
Johnson v. Seagle Pizza, Inc,
COA Not to Be Published Opinion  AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART  Warren Cir Ct summary judgment dismissing claims against several of the defendants.  The defendants moved to dismiss the complaint, and the trial court granted the motions, finding the fleeing robber’s actions to be not reasonably foreseeable. Johnson appealed the dismissal of Seagle, the Domino’s Pizza appellees, and English. For the reasons stated herein, this Court affirms the Warren Circuit Court’s order granting summary judgment to the Domino’s Pizza appellees, but reverses the order granting summary judgment to Seagle and English and remands for discovery.

COA: August 12, 2016 Court of Appeals Decisions (Minutes)(650-669) 20 decisions posted with 4 of them designated “to be published”

PUBLISHED: For profit college case and attorneys' litigation tactics criticized; Hospital's claim for medicaid reimbursement; Res judicata and bankruptcy judgment; Workers Comp claim and intentional safety violation. NOT TO BE PUBLISHED: Intentional act exclusion in auto liability policy applied to shooting with no duty to defend or indemnify; Carter v. Bullit Host applied and required reversal and remand of premises liability dismissal for a manmade indoor hazard (not outdoor natural hazard)

This week’s decisions announced and posted by the Court of Appeals in their weekly minutes may not yet be final.  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.

652.  For profit colleges.
Thomerson v. Commonwealth of Kentucky  
Court of Appeals Published Opinion AFFIRMING Franklin Cir Ct.

ABC, Inc. a/k/a National College of Kentucky, Inc. (“College”) and James L. Thomerson, Albert F. Grasch, Jr. and Grasch Law, PSC (“Thomerson and Grasch”) bring these separate appeals from orders of the Franklin Circuit Court imposing sanctions on the College pursuant to KRS1 367.290 and on the attorneys pursuant to CR2 37.02. Since both appeals emanate from the same circuit court case number, we have associated the two cases for judicial economy.

Finally, appellants object to the trial court faulting them for the inability of the parties to resolve litigation through the normal course of negotiation and compromise of disputed discovery issues. They argue National College had the right to litigate the validity and scope of the CID, and they had no ability to compel any party to settle on any issue. They also object to the trial court’s references to the lengthy delay in the case caused by College’s pursuit of an appeal. As we stated earlier when addressing a similar argument raised by the College, the delay caused by the appeal did not justify imposition of sanctions. Nonetheless, the Court of Appeals’ Opinion became final on April 17, 2013. The College did not fully respond to the CID until February 11, 2014. Although the trial court fully recognized and acknowledged the legal skill and ability of the attorneys and their duty to zealously represent their clients, the trial court did not abuse its discretion in attributing much of the unnecessary delay in the case to their litigation tactics.

660.  Medicaid.
Commonwealth of Kentucky Cabinet for Health and Family Services v. Owensboro Medical Health Systems, Inc.
Court of Appeals Published Opinion AFFIRMING Franklin Cir Ct. opinion and order denying Owensboro Medical Health System reimbursement for Medicaid services.

661.  Res Judicata.
The Cadle Company v. Gasbusters Production I Limited Partnership
Court of Appeals Published Opinion AFFIRMING Lawrence Cir Ct. order applying res judicator from bankruptcy judgement.

669  Workers Compensation
Ready Electric v. Scharringhausen
Court of Appeals Published Opinion AFFIRMING Workers Compensation Board decision that employer intentionally failed to comply with safety regulation the intent of which was inferred per Chaney from the fact that a safety violation did occur.

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

662.  Insurance.  Auto.  Intentional Act Exclusion and duty to defend and indemnify insured
Coleman v. State Farm Fire and Casualty
COA Not to Be Published Opinion AFFIRMING Warren  Cir Ct. summary judgement holding insurance company did not have duty to defend or indemnify plaintiff under policy exclusion for intentional acts (shooting).

663.  Premises liability. Open and Obvious Dismissal reversed and remanded to trial court to follow Carter v. Bullit Host
Shirrell v. The Kroger Company
COA Not to Be Published Opinion  REVERSING and REMANDING Taylor Cir Ct summary judgment dismissing plaintiff’s claims of negligence in their entirety.  Plaintiff was with his granddaughter and slipped and fell on posters left on the floor for a Coca Cola Powerade display, and Plaintiff sued both Krogers and Coca Cola Distributor who defended claiming plaintiff was invitee and the posters constituted an open and obvious hazard. Trial court granted summary judgment dismissing the claims, but thereafter the Kentucky Supreme Court held in Carter v. Bullit Host, LLC, 471 S.W.3d. 288 (Ky. 2015) which clarified the  law concerning open and obvious rule in premises liability cases involving invitees, and even though Bullit Host involved an outdoor natural hazard, the COA quoted and applied the following:

The open-and-obvious nature of a hazard is, under comparative fault, no more than a circumstance that the trier of fact can consider in assessing the fault of any party, plaintiff or defendant. Under the right circumstances, the plaintiffs conduct in the face of an open-and-obvious hazard may be so clearly the only fault of his injury that summary judgment could be warranted against him, for example when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable.

Carter, 471 S.W.3d at 297 (citations omitted). The Supreme Court emphasized that the open and obvious nature of a hazard is generally a question of fact for the jury to consider in allocating fault rather than a question of duty of care for the court to decide. Thus, according to the Supreme Court, an open and obvious hazard is now to be considered by the jury in allocating fault between the landowner and the invitee unless it is “beyond dispute that the landowner had done all that was reasonable” or the hazard “cannot be corrected by any means.” Id. at 297.

It is clear that Shirrell was an invitee at the time of his injury at the Kroger store. See Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901 (Ky. 2013). The posters were an open and obvious hazard, but it is not beyond dispute that appellees did all that was reasonable to fulfill their duty of care to Shirrell. As in Carter, 471 S.W.3d 288, the open and obvious nature of the posters is an issue to be considered by the jury in allocating fault between the parties. Accordingly, we are duty bound to reverse the summary judgment entered February 10, 2015, and remand for proceedings consistent with the Supreme Court’s holding in Carter, 471 S.W.3d 288.

 

COA: August 5, 2016 Court of Appeals Decisions (Minutes)(642-649) decisions posted with 2 of them designated “to be published”

PUBLISHED DECISIONS (2): hospital compliance with KRS 205.6310 re emergency services; workers compensation remand

This week’s decisions announced and posted by the Court of Appeals in their weekly minutes may not yet be final.  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.

645.  Administrative Law.  Hospitals and emergency room services
Harrison Memorial Hospital v. Wellcare Health Insurance
Court of Appeals Published Opinion AFFIRMING.  Franklin Cir Ct. Summary judgment that Harrison Memorial violated KRS 205.6310 by refusing to make its emergency services utilization criteria publicly available, denying reimbursement for ancillary services to determine whether a medical emergency exists, and denying reimbursement for emergency services for children under the age of six.

647.  Workers Compensation.
Tema Isenmann, Inc. v. Miller
Court of Appeals Published Opinion REVERSING AND REMANDING Workers Compensation Board which is vacated and remanded to the ALJ for a new order requiring the Commissioner to procure a university medical evaluation or, if that is impossible, find an independent and qualified medical expert either by recommendation of the University of Louisville or the University of Kentucky or by independent search for a qualified university medical evaluator from outside these universities. After such an evaluation has been performed, the ALJ shall determine whether substantial evidence has been provided that Miller has an occupational disease entitling him to PTD and medical benefits.


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

None.

Download (MNT08052016.pdf, PDF, Unknown)

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.