COA: Dec. 12, 2014 Court of Appeals Decisions (Minutes) (1074-1098): suppression motion from district court up through COA for MDR; workers compensation exclusive remedy

Historical marker in Shepherdsville marking the failure of Civil War General John Hunt Morgan's incursion to destroy the L and N Bridge.  For more info, then click below for David Strange's article from 2006 in the Bullitt County Museum Register -  http://www.bullittcountyhistory.com/bchistory/civilwar.html

Historical marker in Shepherdsville marking the failure of Civil War General John Hunt Morgan’s incursion to destroy the L and N Bridge.
For more info, then click below for David Strange’s article from 2006 in the Bullitt County Museum Register – http://www.bullittcountyhistory.com/bchistory/civilwar.html

The Kentucky Court of Appeals announced 25 decisions  on December 12, 2014, with three opinions designated to be published.

The three published cases were:

1078 – Commonwealth of Kentucky vs. Lyric Angus (Jefferson County –  this was a discretionary review by the Court of Appeals following an appeal from the district court to the circuit court and affirmed the dismissal of an aggravated drunk driving prosecution rejecting the Commonwealth’s argument that the Jefferson Circuit Court improperly upheld the suppression of all the Commonwealth’s evidence due to a violation of the defendant’s Miranda rights and improperly concluded that double jeopardy prevented the Commonwealth from appealing that ruling).

1080.  Melissa Margaret Farrar vs. Bradley Walter Farrar.  Fayette County.  Opinion Affirming in Part, Reversing in Part and Remanding Jones (Presiding Judge) Lambert (Concurs) and Stumbo (Concurs).

This appeal and cross-appeal arise out of a marital dissolution proceeding wherein the Jefferson Circuit Court entered an order directing Appellant/Cross-Appellee, Melissa Margaret Farrar (hereinafter referred to as “Melissa”) to transfer her interest in the parties’ former marital residence (hereinafter referred to as “the residence”) to Appellee/Cross-Appellant, Bradley Walter Farrar (hereinafter referred to as “Brad”) in exchange for half of the fair market value of the residence less hypothetical closing costs, taxes and realtor fees. Brad also contests the trial court’s award of attorney’s fees to Melissa based on his alleged failure to timely comply with various other aspects of the dissolution decree and the trial court’s denial of his motion for CR1 11 sanctions. For the reasons more fully explained below, we affirm in part, reverse in part and remand.

1098.  Workers Compensation
Jeffrey Roberts vs. Laurie Sricklen, Adm of Estate
COA Published 12/12/2014

This appeal arises from a workers’ compensation claim and payment of benefits following the unfortunate death of James Sticklen. Appellant, Jeffery Roberts, represented all five plaintiffs in the single workers’ compensation claim. He asks us to reverse the decision of the Workers’ Compensation Board (hereinafter “the Board”) limiting his fee to $12,000 pursuant to KRS1 342.320. However, we find no error in the Board’s reading of relevant authority, including KRS 342.320, or in the resulting award of a single fee. Hence, we affirm.

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

SC: September 2014 Monthly Summaries of Published Opinions from Supreme Court of Ky

2014.12.Bullitt.CH.Marker.IMG_7631

Marker outside Bullitt County Court House on the origins of Bullitt County’s name. Photo by Mike Stevens.

The Supreme Court of Kentucky released its summary of published decisions for September 2014.

Click here for other posts on monthly summaries of SCOKY published decisions.

Click here for a complete list of monthly summaries archived at the Kentucky Supreme Court web site.

There were no published opinions this month (Sept.) dealing with injury law, tort, insurance, and civil decisions.

“Continue reading” link below for entire summaries with link to full text of decisions.

COA: December 2014 Oral Argument Calendar for Court of Appeals

Historical Marker Outside Bullitt County Court House, Shepherdsville, Kentucky.  Photo by Mike.

Historical Marker Outside Bullitt County Court House, Shepherdsville, Kentucky. Photo by Mike.

 

The Court of Appeals of Kentucky will hear oral arguments for the month of December 2014 on December 11 and 15 in Elizabethtown.

Download (December2014.pdf, PDF, 95KB)

COA: Dec. 5, 2014 Court of Appeals Decisions (Minutes) (1046-1073): Two published cases (rebuttal testimony in criminal case; exclusive remedy in workers compensation).

Bullitt County Court House (minus the addition). Photo from Bullitt County History (http://www.bullittcountyhistory.com/) with retouched modifications using DxO Optics Pro.  For original photo, then go to http://www.bullittcountyhistory.com/albumview.html.

Bullitt County Court House (minus the addition). Photo from Bullitt County History (http://www.bullittcountyhistory.com/) with retouched modifications using DxO Optics Pro. For original photo, then go to http://www.bullittcountyhistory.com/albumview.html.   See the person photobombing on the second floor.

The Kentucky Court of Appeals announced 27 decisions  on December 5, 2014, with two opinions designated to be published.

The two published cases were:  Jackson v. Commonwealth (criminal law – the psychiatric access nurse was not a state actor and, therefore, the use of Chris’s statement did not violate Chris’s right to remain silent);  Stevenson v. Mohon (estate’s wrongful death claim against employer was barred by exclusive remedy provisions of workers compensation statute).

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

SC: Attorney Discipline, September 18, 2014 – Charles David Keen; Jason Robert Gilbert; Cletus Maricle; Steven O. Thornton

The Supreme Court issued decisions in 4 attorney disciplinary matters on August 2014 – Charles David Keen; Jason Robert Gilbert;  Cletus Maricle; Steven O. Thornton.

Click here for prior pages from the Kentucky Court Report posting attorney disciplinary matters.

Disciplinary matters with links to the full text of the action are below:

Download (SC.Discipline.2014.Sep_.pdf, PDF, 39KB)

SC: August 2014 Monthly Summaries of Published Opinions from Supreme Court of Ky

Bullitt County Judicial Center, Shepherdsville, Kentucky.  Photo by Michael Stevens.

Bullitt County Judicial Center, Shepherdsville, Kentucky. Photo by Michael Stevens.

The Supreme Court of Kentucky released its summary of published decisions for August 2014.

Click here for other posts on monthly summaries of SCOKY published decisions.

Click here for other pictures of Bullitt County Court Houses.

Click here for Bullitt County History Museum.

These published opinions included the following injury law, tort, insurance, and civil decisions:

ETHICS

United State of America By and Through the United States Attorneys for the Eastern and Western District of Kentucky v. Kentucky Bar Association

2013-SC-000270-KB August 21, 2014

Opinion of the Court by Chief Justice Minton. All sitting; all concur. In November 2012, the Kentucky Bar Association formally adopted Ethics Opinion E-435, proclaiming the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violate Kentucky’s Rules of Professional Conduct. The United States Attorneys for both the Eastern and Western Districts of Kentucky petitioned the Court for review of E-435 shortly after its publication in March 2013. The United States argued the opinion violated the Supremacy Clause of the United States Constitution and was an inaccurate interpretation of Kentucky’s ethical rules. 28 U.S.C. § 530B mandates federal attorneys comply with state ethical rules. But the United States argued the Attorney General of the United States’ regulation saying 530B should not be construed to alter federal substantive, procedural, or evidentiary law acted as a barrier to E-435’s application.

Initially, the Court rejected the United States’ notion that E-435 operated contradictory to federal law and, therefore, violated the Supremacy Clause. The Court acknowledged overwhelming Circuit Courts of Appeal precedent permitting defendants to engage in such waivers, but clearly stated that precedent is not binding on state courts, which have concurrent jurisdiction to interpret federal law. Furthermore, the Court noted that federal precedent would be persuasive if the Court was tasked with deciding, on its merits, whether a defendant could waive an IAC claim; but, the obligations of attorneys is the focus. E-435, according to the Court, is simply an ethical rule and does not seek to alter federal substantive, procedural, or evidentiary law.

Likewise, the Court rejected the United States’ Supremacy Clause argument because there is simply no federal law mandating either the plea terms defense counsel must raise of his own accord or the terms a prosecutor must offer. Indeed, the Court pointed out that there is no constitutional right to a plea agreement, all terms aside.

Turning to the merits of E-435, the Court held it was a proper interpretation of Kentucky’s ethical rules because the use of IAC waivers in plea agreements resulted in an unwaivable personal conflict of interest for defense counsel under SCR 3.130-1.7 and indirectly limits defense counsel’s malpractice liability under SCR 3.130-1.8(h). For the prosecution, the use of IAC waivers, in violation of SCR 3.130-8.4(a), serves as an inducement for a fellow attorney—defense counsel—to violate or attempt to violate Kentucky’s ethical rules. Finally, the Court held a prosecutor’s use of IAC waivers does not align with the special expectation that a prosecutor will ensure the defendant is accorded procedural justice. As a result, IAC waivers in plea agreements violate the spirit of SCR 3.130-3.8 and the prosecution’s role as a minister of justice.

IMMUNITY

Virginia Gaither (Administratrix and Personal Representative of the Estate of Lebron Gaither, Deceased) v. Justice & Public Safety Cabinet, Commonwealth of Kentucky; and Department of Kentucky State Police; and Board of Claims

AND

Justice & Public Safety Cabinet, Commonwealth of Kentucky; Department of Kentucky State Police v. Virginia Gaither (Administratrix and Personal Representative of the Estate of Lebron Gaither, Deceased) and Kentucky Board of Claims, Commonwealth of Kentucky

2012-SC-000835-DG August 21, 2014

Opinion of the Court by Justice Venters. Minton, C.J.; Abramson, Cunningham, Noble, and Scott, JJ., concur. Keller, J., not sitting. Sovereign and Governmental Immunity; Board of Claims. Action filed in the Kentucky Board of Claims for damages arising from death of a confidential informant allegedly caused by the negligence of state police officers overseeing an investigation of drug trafficking. Held: 1) Kentucky Board of Claims under KRS 44.073(2) had jurisdiction over claim that decedent’s death was caused by state police officers’ negligent performance of ministerial duties within the course and scope of their employment; 2) As opposed to a “discretionary” duty or act, which necessarily requires the exercise of reason and judgment in determining how or whether the act shall be done or the course pursued, an official duty is “ministerial” when its performance is absolute, certain, and imperative, involving merely execution of a specific act; 3) a ministerial duty may arise from the obligation to comply with a common law duty, as well from the obligation to comply with the directives of an applicable statute or administrative regulation; 4) the evidence clearly supported the Board’s finding that a “known rule” within the law enforcement profession was that a confidential informant must not be used in an undercover operation after his identity has been compromised; compliance with that rule was absolute, certain, and imperative, and thus was a “ministerial” act; 5) notwithstanding the test applied in Fryman v. Harrison, 896 S.W.2d 908 (Ky. 1995), police officers overseeing the work of a confidential informant had a “special relationship” with the informant, and thus had a duty to exercise ordinary care, including compliance with police standards for use of a confidential informant; 6) experienced prosecutors and judges were properly qualified as expert witnesses under KRS 703 to testify as to appropriate police standards in the use of confidential informants; 7) retaliation against a confidential informant by the subject of his investigative work was a known risk and foreseeable consequence of using the informant after his identity had been exposed, and therefore the criminal act of murder could not be a superseding cause of the informant’s death, relieving the police from liability for their own negligence in causing the informant’s death; and 8) KRS 44.070(5), which limits the amount that may be awarded by the Board of Claims, speaks to the time that the award is made, not the time that the claim accrued.

MEDICAL MALPRACTICE

Phillip Tibbs, M.D., et al. v. Honorable Kimberly N. Bunnell (Judge, Fayette Circuit Court) and Estate of Luvetta Goff, et al.

2012-SC-000603-MR August 21, 2014

Opinion of the Court by Justice Scott. Cunningham and Venters, JJ., concur. Noble, J., concurs in result only. Abramson, J., dissents by separate opinion in which Minton, C.J., joins. Keller, J., not sitting. Appellants, Phillip Tibbs, M.D., Joel E. Norman, M.D., and Barrett W. Brown, M.D., petitioned the Court of Appeals for a writ of prohibition directing the Fayette County Circuit Court to prohibit the production of an “incident” or “event” report created after the death of patient Luvetta Goff, arguing that the report fell within the federal privilege created by the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C.A. § 299b-21 et. seq. The Court of Appeals granted the Appellants’ writ, but Appellants appealed to the Supreme Court as a matter of right, arguing that the Court of Appeals erroneously limited the protective scope of the privilege. The sole issue on appeal before the Supreme Court was a question of first impression regarding the proper scope of the privilege established by the Act. While upholding the issuance of the writ, the Supreme Court reversed the Court of Appeals as to proper scope of the Act, and clarified the scope of the Act’s privilege to be applied on remand.

NEGLIGENCE

Jeffrey T. Caniff v. CSX Transportation, Inc.

2012-SC-000750-DG August 21, 2014

Opinion of the Court by Justice Scott. Cunningham, Keller, Noble, and Venters, JJ., concur. Minton, C.J., dissents by separate opinion in which Abramson, J., joins. Appellant, Jeffrey T. Caniff, sought discretionary review by the Supreme Court of the opinion of the Court of Appeals which affirmed the trial court’s order granting Appellee’s, CSX Transportation, Inc., motion for summary judgment due to Caniff’s failure to obtain an expert witness. The Supreme Court granted discretionary review and reversed and remanded the case to the trial court, holding that the trial court abused its discretion by granting summary judgment pursuant to Caniff’s failure to obtain an expert witness, as there were material facts at issue in the case. The Court held that while it would have been within the trial court’s discretion to allow an expert to testify, it was not within its discretion to require an expert in order for Caniff’s case to survive a motion for summary judgment, as the issues were within the common knowledge and experience of the jury.

Click on “continue reading” for complete list of summarized decisions with links to full text.

Download (August2014.pdf, PDF, 85KB)

New Email Service – Please, please read this.

2014.12.EmailI am now changing my email delivery system from Feedburner to Mail Chimp.  When I start, you should get fewer but more regular and better written emails.  You will also be able to sign up and cancel emails much easier (see box at top right!).

The changeover will be automatic and transparent.

If you want to continue receiving these email, then do nothing.

If you want to stop receiving these emails, then click on the “unsubscribe from list” button on the right top, enter the email address to be removed and voila’ no more emails.

 

 

SC: December 10 & 11, 2014 Oral Arguments before Ky Supreme Court – adoption theft by deception; prosecutor’s laptop viewed by jurors during deliberations; Drive Safe Louisville and skirting of court costs; juror misconduct and post-verdict statements evidencing misunderstanding of jury instructions

Bullitt County Court House, Shepherdsville, Kentucky (replaced by judicial center in back).  Photo by Mike Stevens

Bullitt County Court House, Shepherdsville, Kentucky (replaced by judicial center in back). Photo by Mike Stevens

On December 10, 2014 the Supreme Court of Kentucky (SCOKY) will hear oral arguments on theft by deception against birth parents who solicited and accepted money from from prospective adoptive parents in Commonwealth of Kentucky vs. Michael Young (9;00 am); the propriety of a jury’s use of the prosecutor’s laptop to replay audiotape of a drug transaction admitted into evidence as an exhibit in Commonwealth of Kentucky vs. Floyd Wright (10 am);  whether a defendant who made a plea bargain with the Commonwealth’s Attorney to not revoke his postincarceration supervision is entitled to the benefit of that bargain even though KRS 532.043(5) gives full authority to the Parole Board to make that determination in Mikail Sajjaad Muhammad v. Kentucky Parole Board (11 am).

Issues to be addressed in cases to be argued on December 11, 2014 are:  the proper measure of damages for removal of underground limestone absent reduction in the fair market value of the real estate in trespass claim in Harrod Concrete and Stone Co. v. B. Todd Crutcher (9 am); locally implemented driving school program set up by county attorney and the imposition of court costs – KRS 186.574(6), Drive Safe Louisville and Rule of Criminal Procedure 8.04 in Hon Ann Bailey Smith, Chief Judge, Jefferson District Court v. Commonwealth of Kentucky, Ex Rel Michael J. O’Connell, et al (10 am);  Post-Verdict Juror Statements. Issues include: (1) whether the elements of the stalking statute are met where the victim does not fear for her own safety, but does fear for the safety of others; (2) whether jurors’ post-verdict comments suggesting that they may have misinterpreted the instructions are admissible to impeach the verdict in Theodore Maras v. Commonwealth of Kentucky (11 am).

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

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.

For the complete calendar with links to the appellate briefs, counsel, issues, case name, dates, times and more, then  click on ‘continue reading’ below.

COA: Nov. 26, 2014 Court of Appeals Decisions (Minutes) (1022-1045): No published decisions; affirmed defense verdict in medical malpractice case out of Fayette County and affirmed dismissal of complaint for lack of prosecuting

Bullitt County Court House (Older one) Photo by Michael Stevens 2014

Bullitt County Court House (Older one) Photo by Michael Stevens 2014

The Kentucky Court of Appeals announced 24 decisions  on November 21, 2014, with none of the Court of Appeals opinions designated to be published.

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (none other than the published whistleblower decision):

1030.  Affirmed a unanimous defense verdict in medical malpractice/negligence claim.
Estate of Richard Willis vs. Paula D. Bailey, M.D. & Stevens Shedlofsky, M.D.
COA,  Not Published 11/26/2014
Fayette,  Affirming

VANMETER, JUDGE: Roger Osborne, as Administrator of the Estate of Richard Willis and as Guardian for Madysen Willis; and Tanner Willis, individually, (hereinafter collectively referred to as “the Estate”) appeal from the February 27, 2013, judgment of the Fayette Circuit Court dismissing their medical malpractice claims filed against Dr. Paula Bailey and Dr. Steven Shedlofsky. For the following reasons, we affirm.

On appeal, the Estate presents three claims of error for our review. First, the Estate argues the trial court abused its discretion by denying its motion to continue the trial date due to the unavailability of its medical expert to appear at trial.  Based on our review of the record, we are unable to say the court’s decision not to grant another continuance was an abuse of its discretion.

Next, the Estate argues the trial court failed to seat a non-prejudicial jury panel and the jury failed to properly deliberate the issues presented. Specifically, the Estate maintains the jury was unable to be fair and impartial due to connections with UK Medical Center and the jury’s deliberation of approximately one hour was too short for it to adequately consider the evidence presented.  The Estate does not identify any juror who sat on the panel who it alleges should not have due to bias. As a result, we find no merit in this alleged error. Furthermore, the Estate does not identify a single act of misconduct with respect to jury deliberations. It simply speculates that the jury’s deliberation of approximately one hour indicates jury misconduct.  The Estate’s displeasure with the length of jury deliberations, without any evidence of jury misconduct, does not warrant a new trial and the trial court properly denied one on this basis.

Lastly, the Estate contends the trial court abused its discretion by denying its motion to limit “defensive use” of evidence concerning the six-month sobriety rule for liver transplants. We review a trial court’s evidentiary rulings for an abuse of discretion. Barnett v. Commonwealth, 317 S.W.3d 49, 61 (Ky. 2010) (citation omitted).  In addition, the Combs standard for expert testimony is inapplicable to Dr. Shedlofsky’s factual testimony as a treating physician. Regardless, the record reflects that the testimony of Dr. Shedlofsky and two defense medical experts met the requisite standard for admissibility. Accordingly, the trial court did not abuse its discretion by denying the Estate’s motion to limit “defensive use” of evidence concerning the six-month sobriety rule for liver transplants.

The judgment of the Fayette Circuit Court is affirmed.

 

COA: Nov.21, 2014 Court of Appeals Decisions (Minutes) (1004-1015): two published decisions – whistleblower claim and criminal case addressing problem of destroyed evidence (surveillance video)

Breathitt County.  Downtown Jackson (named after President Andrew Jackson).  Photo by MIke Stevens.

Breathitt County. Downtown Jackson (named after President Andrew Jackson). Photo by MIke Stevens.

The Kentucky Court of Appeals announced 12 decisions  on November 21, 2014, with two Court of Appeals opinions designated to be published.

The published opinions were Commonwealth of Kentucky vs. Newkirk (Jefferson County; reversing; issues surrounding destroyed surveillance video and denial of government continuance);  Rossaland Moss vs. Kentucky Statute  University (Franklin; affirming; whistleblower claim).

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (none other than the published whistleblower decision)