Judge Mac Swinford’s sage advice on judges and judging from the “Kentucky Lawyer”

Judge Mac Swinford photo from his interview on Comment on Kentucky Hosted by  Al Smith

Judge Mac Swinford photo from his interview on Comment on Kentucky Hosted by
Al Smith

I am reminded of some sage advice from a Kentucky judge that was originally published in his book in 1963 – “Kentucky Lawyer.”  The book can be read in one evening but do not be fooled by its size for its wisdom is timeless and a reminder of what the profession of law can and  should be.  If I had the honor to mentor a young lawyer, I would make this book required reading.  If a newly elected judge should ask me if there is a book on the art of judging, I would commend him to read this book with a reminder of  Luke 12:48 “For unto whomsoever much is given, of him shall be much required.”

FROM PAGES 9-10:

In my years on the bench I have never once had a show of discourtesy or disrespect.  I fully realize that this is not because of me personally but because of the high office which I am privileged to hold.  The office receives this respect, and justly so, because of the character and the ability of the men who have preceded me in the office.  It is due to them and their learning, erudition and fairness, that the bar accepts me on the terms which my predecessors have established.  I am constantly aware of this, and my only fear is that in some careless moment I may say or do something, either on or off the bench, that could bring the slightest disrespect to the office which has stood so high in Kentucky jurisprudence for so long.

* * *

There have been instances, I know, in which the judge seems to feel that the bench is a stage from which he, as chief actor in the drama of the trial, must perform as a wit or a tyrant.  There have been judges who have become obsessed with a desire to be “characters” and have indulged in witticisms or abuses that are fitting neither the dignity of the office nor the stature of the personality that temporarily occupies it.

The story is told of an occasion in the trial of an important lawsuit when the judge in a fit of anger, sharply and with excuse, severely rebuked one of the attorneys.  The lawyer then turned his back on the court and walked toward the door of the courtroom.  The judge called out, “Sir, are you trying to show your contempt for the court?”

“No, Your Honor, I’m trying to conceal it,” was the reply.

An “overspeaking judge”

Sir Francis Bacon in his essay on the judiciary said: “An overspeaking judge is no well-tuned cymbal.”  Those of our profession who occupy the bench should be constantly aware of this striking metaphor.  It is very tempting at times for a judge to make witty or sarcastic  remarks to the delight of the spectators; however, a judge should remember that such speech is beneath the dignity of the court and always at the expense  of someone who cannot answer back.  The situation is something like that of a boxer who hits a handcuffed opponent.

Pages 9 and 10, Kentucky Lawyer.

Mac goes on to admit a failing of his own in this regard which was followed immediately by his acknowledgement of the transgression and a sincere apology.

You can purchase this book from Amazon Book by clicking here.  I do not get a commission.

Call me Mac. A Biography of Judge Mac Swinford Presentation by Professor William Fortune at the 2013 KBA Covention

Judges: Recent Comments by Local Louisville Judge Draw Criticism

From USA Today is the following story about a local judge’s comments on a victim’s impact statement.  For the entire story, click the title below:

Judge Selfie’s’ rebuke of victims stirs racist backlash

LOUISVILLE — He’s been on the bench for nearly six years and plastered so many pictures of himself on Facebook that a colleague dubbed him “Judge Selfie.” But until he criticized the victims of an armed robbery for “fostering” the views of their 5-year-old daughter, whom they said was still scared of black men after two African Americans had held the family at gunpoint, Judge Olu Stevens was largely unknown outside the Jefferson County Judicial Center.

But now the story about that case, first reported in The Courier-Journal, has ricocheted around the world, retold in newspapers from New York to London. And it has ignited a firestorm of criticism of Stevens, some of it ugly, racist and menacing.

For the entire story go to USATODAY.com.

Other stories on-line are:

Was judge’s Facebook comment on victim-impact statement an ethics violation?
American Bar Association Journal Apr 13, 2015, 8:11 am CDT

Judge faces calls to be sacked after he accuses victims in armed robbery case of
Daily Mail – ‎Apr 14, 2015‎

Judge’s rebuke of victims stirs racist backlash
The Courier-Journal-Apr 17, 2015

Letters | On Judge Olu Stevens
The Courier-Journal-Apr 15, 2015

Stories via a Google Search.

COA: April 17, 2015 Court of Appeals Decisions (Minutes) (298-313). Five published. Cases of Note for Insurance and Injury Lawyers – no government agency means no government immunity; failure to disclose pretrial experts results in dismissal of automobile negligence claim; malpractice claim dismissed against Hardin Memorial Hospital for government immunity; appeal dismissed for failure to name indispensable party;

Hardin Memorial Hospital

Hardin Memorial Hospital – Defendant in Medical Negligence Claim Dismissed for Government Immunity in James Mooring vs. Hardin County dba Hardin Memorial Hospital 2013-CA-000513 (listed below)

 

The Kentucky Court of Appeals announced 16 decisions  on April 17, 2015, with five (5) 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 Adminisrative 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 listed 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 week of April 17, 2015:

300.  Property Dispute.  Restrictive Covenant
KL & JL Investments vs. Donald Lynch
Hardin County
JONES, JUDGE: This appeal concerns a property dispute between the Appellant, KL & JL Investments Inc. (“KL & JL Investments”), and several other landowners in close proximity to KL & JL Investments’ tract of land, the Appellees (hereinafter referred to as “the Property Owners”).1 On August 31, 2012, the Hardin Circuit Court ruled that the Property Owners could enforce a restrictive covenant limiting KL & JL Investments’ development of the tract to a single-family residence. This appeal followed. For the reasons more fully explained below, we AFFIRM.

309.  Attack on Constitutionality of Stop and Ejection Provision of KAR 1:025, Section 22 Appeal Dismissed
Estate of Trudy Koenig vs. Public Protection Cabinet
Franklin County

311.  Defense of Governmental Immunity Not Apply Since not Gov’t Agency
Kentucky River Foothills Development Council, Inc. vs. Cathy Phirman
Madison County
JONES, JUDGE: Appellant, Kentucky River Foothills Development Council, Inc., (“Kentucky River”) appeals from the September 23, 2013, order of the MadisonCircuit Court denying its motion for summary judgment and finding that Kentucky River was not a government agency and, therefore, not entitled to governmental immunity. For the reasons set forth below, we AFFIRM.

312.  Trespass and Fraud
Ronnie Norwich vs. Allen Norwich
Campbell County
J. LAMBERT, JUDGE: Ronnie Norwich and his former wife, Jennifer Quammen, have appealed from the Campbell Circuit Court’s January 2, 2014, order entered following a bench trial. The circuit court found that Ronnie committed fraud against Allen Norwich and Debra Norwich, and it also dismissed a claim for punitive damages and a cross-claim for trespass. Having carefully reviewed the record and the parties’ arguments, we affirm.

313.  Reversed Family Court Order Permitting Non-custodian, non-parent’s intervention into step-parent adoption
L.(W.R.) vs. H.(A) Intervening Party
Kenton County
ACREE, CHIEF JUDGE: This is an appeal from an order of the Kenton Family Court granting the motion to intervene of A.H., a non-custodian, non-parent, in a step-parent adoption action initiated by W.R.L., and further dismissing W.R.L.’s adoption petition. For the following reasons, we reverse the family court’s order granting intervention and dismissing, and remand this matter with instructions to reinstate the adoption petition.

Tort Report – Decisions Relevant to Insurance and Accident Attorneys

298.  Affirmed summary judgment dismissing automobile accident claim for failure to timely comply with expert witness disclosures
William Branch vs. Rex Gibson
COA NPO (nonpublished opinion) 4/17/2015
Affirming Fayette County

STUMBO, JUDGE: William Lovell Branch appeals from a Judgment and Final Order of the Fayette Circuit Court dismissing his negligence action against John Lankford and Rex Gibson. Branch alleged that Lankford and Gibson negligently operated their respective vehicles which caused an accident resulting in Branch’s traumatic brain injuries. He argues that the trial court erred in concluding that no genuine issues of material fact remained for adjudication, and that the Defendants/Appellees were entitled to Summary Judgment as a matter of law. Branch contends that his growing recollection of the accident raises genuine issues of material fact relating to causation, that expert testimony is not required to overcome a Summary Judgment motion, and that the trial court erred when it restricted his witnesses due to alleged Kentucky Rules of Civil Procedure (CR) 26 disclosure deficiencies. We find no error, and AFFIRM the Judgment and Final Order on appeal.  * * *

When viewing the record in a light most favorable to Branch and resolving all doubts in his favor, we cannot conclude that the Fayette Circuit Court improperly rendered Summary Judgment in favor of Lankford and Gibson. The accident at issue occurred on December 7, 2007. During the years that followed, and as noted by the trial court, Branch was availed of ample opportunity to produce discovery and engage expert witnesses to reconstruct the accident and/or render opinions as to causation and damages. Even so, the sole sworn testimony – whether lay or expert – supportive of Branch’s claim is his statement that he remembers seeing vehicle headlights behind him just prior to the accident and remembers a collision. Nothing in the record bolsters his claim that Lankford or Gibson were negligent in operating their vehicles, and they have consistently maintained that Branch lost control of his vehicle when crossing the bridge over I- 64, struck Lankford’s vehicle, then continued over an embankment and came to rest in a field. As it appears impossible that Branch would be able to produce evidence at trial warranting a judgment in his favor, Steelvest, supra, we find no error in the entry of Summary Judgment.

302.  Medical Negligence.  Immunity of Hospital
James Mooring vs. Hardin County, Kentucky d/b/a Hardin Memorial Hospital
COA NPO 4/17/2015
Affirming – Hardin County
Affirmed dismissal of medical negligence claim against county owned hospital on basis of sovereign immunity and claims did not exceed the amount of 1 million dollars which was  the hospital’s Risk Retentiona Program.

310.  Civil Procedure, Notice of Appeal Failed to Name Indispensable Party (Note there was pending a motion to amend Complaint to Name Previously “Unknown Defendants”)
Estate of Tommy Rowe vs. Big Sandy Regional Detention Center
COA NPO 4/17/2015
Dismissing – Johnson County
NICKELL, JUDGE: Mary Rowe, as Administratrix of the Estate of Tommy Rowe, has appealed from the July 22, 2013, order of the Johnson Circuit Court denying her motion to file an amended complaint wherein she sought to name  previously unknown defendants. Following a careful review, we must dismiss this appeal.

In the case sub judice, the only parties properly before this Court are Mary and BSRDC. Our jurisdiction is limited to resolution of claims between those two parties. However, the issues presented do not lie within those parameters and we are without authority to review them. Therefore, because the proper and indispensable parties are not before the Court, and no relief can be granted in their absence, it is ORDERED that this appeal be, and hereby is, DISMISSED.

311.  Defense of Governmental Immunity Not Apply Since not Gov’t Agency
Kentucky River Foothills Development Council, Inc. vs. Cathy Phirman
COA PUBLISHED; Madison County

“Published Decisions” are yellow highlighted in third column while tort report cases are highlighted by number and plaintiff (first and second columns)

Download (MNT04172015.pdf, PDF, Unknown)

COA: April 2015 Oral Argument Calendar for Court of Appeals (Apr. 14 @ Frankfort; Apr. 20 @ Lexington & Eddyville; Apr 28, 29 @ Frankfort; Apr 29 @ Elizabethtown)

2015.04.Louisville Water Tower on Zorn

Louisville Water Company Tower on Zorn Avenue. Photo by Mike Stevens.

 

Court of Appeals of Kentucky will hear oral arguments for the month of April 2015 on Apr. 14 @ Frankfort; Apr. 20 @ Lexington & Eddyville; Apr 28, 29 @ Frankfort; Apr 29 @ Elizabethtown.

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

Complete list of archived argument calendars at the Administrative Office of the Courts, then click here.

For this month’s COA argument calendar:

Download (April2014.pdf, PDF, Unknown)

COA: April 10, 2015 Court of Appeals Decisions (Minutes) (276-297). Three published – inability to appear on motion to modify child support; trying juvenile as adult; post-judgment interest on installment contract.

Design for Jefferson County Court House, Louisville, Kentucky

Design for Jefferson County Court House, Louisville, Kentucky

The Kentucky Court of Appeals announced 22 decisions  on April 10, 2015, with three (3) 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 Adminisrative 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).

For the complete set of this week’s minutes listed 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 week of April 10, 2015:

278.  Family Law. Child Support
Darko Moskovitz vs. Zulay Moskovitz
COA Published 4/10/2015
Reversing and Remanding – Woodford Fam Ct.
JONES, JUDGE: This case arises out of the Woodford Circuit Court’s order denying Appellant Darko Moskovitz’s motion to modify child support. The circuit court overruled Darko’s motion on the ground that he could not be physically present in court for a hearing. Darko, a resident of Venezuela, argues that the circuit court abused its discretion because Darko is unable to legally enter the United States. For the reasons set forth below, we REVERSE and REMAND.

286.  Juveniles.  Trying as adult
J.(T.) v. Judge Bruce Bell

COA Published 4/10/2015
Affirming Fayette
KRAMER, JUDGE: T. J., who was a male child under the age of eighteen at the time this appeal was filed, appeals the Fayette Circuit Court’s order denying his petition for a writ of mandamus which sought an order directing the Honorable T. Bruce Bell to hold a competency hearing prior to holding a hearing to determine if T.J. would be transferred to circuit court to be tried as an adult. After a careful review of the record, we affirm.

290.  Post judgment interest on default of installment contract
Service Financial Co. vs. Ashley Nicole Ware
COA Published 4/3/15
Affirming – Franklin
ACREE, CHIEF JUDGE: We granted discretionary review in this case to address Service Financial Company’s appeal of the Franklin Circuit Court’s November 22, 2013 opinion affirming a Franklin District Court order of default judgment that limited post-judgment interest on a retail installment contract to 12% per annum. For the following reasons, we affirm.

Tort Report:

280.  Medical Malpractice – expert witness
Tina Miller vs. Paintsville Hospital Co.
COA NonPublished Opinion (NPO) 4/10/2015
Affirming – Johnson County
CLAYTON, JUDGE: Tina Miller appeals the May 8, 2013 Johnson Circuit Court order granting summary judgment to Paintsville Hospital, LLC, D/B/A Paul B. Hall Regional Medical Center (hereinafter “Paintsville Hospital”). The trial court determined that Miller failed to provide expert proof of a deviation from the standard of care and expert proof as to causation, which is required in Kentucky for a medical malpractice case. Further, the trial court denied Miller’s motion for an extension of time to identify another expert as untimely. After careful consideration, we affirm.

288.  Torts.  Breach of fiduciary duty of power of attorney
Milton Ritchie vs. Kevin Ross Ritchie
COA NPO 4/10/2015
Affirming – Bourbon
D. LAMBERT, JUDGE: Milton Ritchie appeals from orders of the Bourbon Circuit Court granting summary judgment to Kevin Ross Ritchie and Keith Ritchie. At issue is whether several transfers of funds Ritchie made to himself and his son were authorized under his grandfather’s power of attorney.

The circuit court granted summary judgment, ruling that Milton had not been authorized to make the disputed withdrawals under the terms of the Power of Attorney, and ordered him to pay the sums to the beneficiaries of the estate. Milton filed a motion to alter, amend or vacate which was denied, and this appeal followed.

We agree with the circuit court that no issues of material fact exist, and that Milton was unauthorized, as a matter of law, to make the disputed transfers. The summary judgment is therefore affirmed.

292. Suit alleging improper involuntary commitment to Central State
Theresa Gerstle vs. Dr. Tehmina Khan
COA NPO 4/10/14
Affirming in part, Dismissing in part, Remanding – Jefferson  County
COMBS, JUDGE: Theresa Gerstle appeals from two orders of summary judgment of the Jefferson Circuit Court that dismissed her action against Central State Hospital and Dr. Tehmina Khan. With respect to Central State Hospital, the appeal was prematurely filed because of a pending motion upon which the Court had not ruled. Thus, the appeal must be dismissed and this case be remanded to allow for a ruling on a pending motion. However, as to the summary judgment entered in favor of Dr. Khan, we affirm.

SC: Attorney Discipline Oct. 23, 2014 – John Scott Benton, Charles David Keene, Adrienne Thakur

The Kentucky Supreme Court issued opinions/orders in 3 attorney disciplinary matters on October 23, 2014 – John Scott Benton, Charles David Keen, and Adrienne A. Thakur.

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:

KENTUCKY BAR ASSOCIATION V. JOHN SCOTT BENTON
2014-SC-000399-KB
ORDER OF SUSPENSION FROM THE PRACTICE OF LAW FOR 181 DAYS.
Benton entered a guilty plea in Fayette Circuit Court to terroristic threatening, third-degree, which is a Class A misdemeanor. The charge arose from threatening text messages and voicemails Benton sent to an  18-year-old male high school student who had been bullying Benton’s daughter. Benton was sentenced to sixty days imprisonment with credit for time served, and he has served his time. “It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.]” SCR 3.130-8.4(b). Benton is suspended from the practice of law for 181 days.

CHARLES DAVID KEEN V. KENTUCKY BAR ASSOCIATION
2014-SC-000410-KB 
ORDER OF PUBLIC REPRIMAND.
Charles David Keen’ (Keen) moves this Court for a public reprimand for his admitted violations of SCR 3.130-1.3, SCR 3.130-1.4(a)(3), SCR 3.130-1.16(d), SCR 3.130-3.2 in one Charge; and SCR 3.130-1.3, SCR 3.130-1.4(a)(4), and SCR 3.130-1.16(d) in another Charge. The Kentucky Bar Association (KBA) states no objection to the proposed discipline, which was negotiated pursuant to SCR 3.480(2). Finding a public reprimand to be the appropriate discipline for his misconduct, we grant Keen’s motion.

ADRIENNE A. THAKUR V. KENTUCKY BAR ASSOCIATION
2014-SC-000543-KB 
ORDER OF SUSPENSION FROM THE 
PRACTICE OF LAW FOR 5 YEARS WITH CONDITIONS.

Pursuant to SCR 3.480(2), the negotiated sanction rule, Movant, Adrienne A. Thakur, KBA Number 92703, moves this Court to impose upon her a five-year suspension, along with additional conditions, to resolve the professional misconduct charges contained in KBA File 21456. The Kentucky Bar Association (KBA) has no objection to Movant’s request.

On January 16, 2014, the Inquiry Commission issued a three-count charge against Movant. Count I alleged that Movant violated SCR 3.130-1.15(a) 1by concealing from the firm the receipt of funds from, or for, certain clients and by not turning over said funds to the firm. Count II alleged that Movant violated SCR 3.130-1.15(b) 2by not notifying the firm of the receipt of funds from, or for, certain clients and by not turning over the funds for deposit into the appropriate account. Count III alleged that Movant violated SCR 3.130-8.4(c) 3by concealing from the firm the receipt of funds from clients and diverting the funds for her own personal benefit instead of turning them over for deposit into the appropriate account.

Appellant admits that she is guilty of each of the above ethical violations.

 

SC: Six (6) Motions for Discretionary Review Granted on Feb. 11, 2015

Post Card of Jefferson County Court House.  Louisville, Kentucky.

Post Card of Jefferson County Court House. Louisville, Kentucky.

No motions for discretionary review were granted in January 2015 (no minutes).

Six (6) motions for discretionary review were granted on February 11, 2014.  The link is to the Case Information Page at Administrative Office of the Courts (AOC) for the Supreme Court.  If there is a COA decision, then a link to the “pdf” of the decision will also be listed.

Two cases involved civil, tort, insurance issues:  Persels & Associates addresses Rule 11 sanctions imposed by trial court for drafter of pleadings NOT signing them and which was affirmed by the COA;  and in Countryway Insurance, the COA appeals held that the underinsured motorist benefits policy (UIM) covering the individual claimant was primary over the UIM policy of the car in which he was in at time of collision.

PERSELS & ASSOCIATES, LLC, ET AL. V. CAPITAL ONE BANK, ETC., ET AL.
2014-SC-000131-DG DAVIESS
COA Opinion
Rule 11 sanctions for national law firm handling Kentucky collection and signing pleadings by attorney actually drafting thenm

COMMONWEALTH OF KENTUCKY V. MIKE DOUGLAS RIEDER
2014-SC-000210-DG FAYETTE
COA Opinion
Witness testimony on issue for trier of fact (eg self-defense)

COUNTRYWAY INSURANCE COMPANY V. UNITED FINANCIAL CASUALTY INSURANCE COMPANY, ET AL.
2014-SC-000265-DG WARREN
COA Opinion
COA held that injured claimant’s individual UIM policy was primary over that of vehicle.

COMMONWEALTH OF KENTUCKY V. CATON KAMIL JONES
2014-SC-000306-DG FAYETTE
COA Opinion
Commonwealth did not prove Defendant’s actions satisfied the elements of engaging in a criminal syndicate.

JOHN WESLEY BAYS V. KRISTIE D. KIPHART, INDIVIDUALLY
2014-SC-000324-DG KNOX
COA Opinion
Curtesy interest in wife’s life insurance proceeds.

DALLIS ABNEY V. COMMONWEALTH OF KENTUCKY
2014-SC-000445-DG ESTILL
MINTON, C.J.; ABRAMSON, CUNNINGHAM, KELLER, NOBLE, AND VENTERS, JJ., SITTING. ALL CONCUR.
COA Opinion
Criminal Procedure.  Sufficiency of affidavit to support probable cause for search warrant.

SC: 9 Motions for Discretionary Review Granted on Dec. 10, 2014

Historical Marker in front of Jefferson County Court House, Louisville, Kentucky.  Photo by MLS.

Historical Marker in front of Jefferson County Court House, Louisville, Kentucky. Photo by MLS. For more history on this court house, then to to: http://en.wikipedia.org/wiki/Louisville_Metro_Hall

There were no minutes for November 2014 from SCOKY (and thus no MDRs, motions for discretionary review, granted.

Nine motions for discretionary review were granted on December 10, 2014.  The link is to the Case Information Page at Administrative Office of the Courts (AOC) for the Supreme Court.  If there is a COA decision, then a link to the “pdf” of the decision will also be listed:

LARRY PENIX V. BARBARA DELONG
2014-SC-000083-DG MARTIN
2011-CA-001526.pdf
2011-CA-001529.pdf
Measure of damages for trespass

JANET OWEN V. UNIVERSITY OF KENTUCKY
2014-SC-000137-DG FAYETTE
2012CA001681
Employment discrimination, administrative relief

COMMONWEALTH OF KENTUCKY V. JOE TAYLOR
2014-SC-000211-DG FULTON
Related SC Case
2011CA000724
Search and seizure – expectation of privacy and authority of third party consent (another parolee)

JONATHAN MCDANIEL V. COMMONWEALTH OF KENTUCKY
2014-SC-000241-DG CALLOWAY
Related SC Case:  2014-SC-000242 
Related SC Case:  2014-SC-000242
COA Opinion
Criminal Procedure, conditional discharge of sentence (now postincarceration supervision)

DAVID DESHIELDS V. COMMONWEALTH OF KENTUCKY
2014-SC-000242-DG MCCRACKEN
COA Opinion

JOHN C. MARTIN V. COMMONWEALTH OF KENTUCKY
2014-SC-000243-DG ANDERSON
COA Opinion

COMMONWEALTH OF KENTUCKY V. DOUGLAS RANK
2014-SC-000266-DG KENTON
COA Opinion 
Post conviction relief per ineffective assistance of counsel

ANTHONY MALONEY V. COMMONWEALTH OF KENTUCKY
2014-SC-000339-DG MONTGOMERY
COA Opinion
Search and seizure, claim of lack of probable cause for arrest for intoxication

LYDIA ADDISON V. KEVIN ADDISON
2014-SC-000582-DGE HARDIN
COA Opinion 
Claim that family court judge improperly placed time restriction on hearing to modify  custody

COA: April 3, 2015 Court of Appeals Decisions (Minutes) (265-275). Three published – “up the ladder” and exclusivity of workers compensation defense; polling and voir dire examined in criminal case; due process rights in sexual harassment case of AOC employee).

Old Post Card of "Birds Eye View of Louisville" in 1876.

Old Post Card of “Birds Eye View of Louisville” in 1876.

The Kentucky Court of Appeals announced 11 decisions  on April 3, 2015, with three (3) 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 Adminisrative 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).

For the complete set of this week’s minutes listed 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 week of April 3, 2015:

266. Criminal Law. Polling Jury; Voir Dire; Challenge of police officer
Jeffrey King vs. Commonwealth of Kentucky 
COA Published; 4/3/15; Affirming
LAMBERT, J., JUDGE: Jeffrey King appeals from a Madison Circuit Court judgment and sentence entered after a jury found him guilty of first-degree trafficking in a controlled substance, first offense. We affirm.

267.  Administrative Due Process; Termination of Government Employment
Administrative Office of the Courts vs. Martin Vieaud
COA Published; 4/3/2015; Affirming in Part, Reversing in part
CLAYTON, JUDGE: This is an appeal from a decision of the Franklin Circuit Court reversing and remanding the Appellee’s termination due to violations of his due process rights. Based upon the following, we affirm in part and reverse in part.

273.  Exclusive Remedy of Workers Comp; “Up the Ladder” Defense
Ervin Cable Construction, LLC vs. Bryan Lay
COA Published; 4/3/15;  Vacating and Remanding
VANMETER, JUDGE: Ervin Cable Construction, LLC appeals from the June 9, 2014, order of the Jackson Circuit Court denying its motion for summary judgment. For the following reasons, we vacate the trial court’s order and direct the court on remand to enter an order granting summary judgment in favor of Ervin Cable.

At the hearing before the trial court, the parties acknowledged that Ervin Cable and Advanced Cable had a contractor/subcontractor relationship, and the record reveals as much. We fail to appreciate Lay’s present claim to the contrary.6 Based on the record and applicable law, Ervin Cable was entitled to up-the-ladder immunity from Lay’s tort action pursuant to the exclusive remedy provision contained in KRS 342.690 and the trial court erred by holding otherwise. Likewise, we do not appreciate Lay’s assertion that his injury was not work-related. This assertion is clearly refuted by the record.

Tort Report:

See published opinions above re: jurors (criminal case) and workers compensation up the ladder defense.

265.  Challenges for Cause Jurors
Myrtle Taylor, Adm’x vs. Dr. Lawrence Williams
COA Not Published Opinion (NPO) 4/3/2015
Affirming – Jefferson Cir Ct.
VANMETER, JUDGE: Litigants are entitled to a fair and impartial jury, composed of jurors who are not biased towards either party. When a juror’s qualifications are challenged on a claim of bias, a trial court is to weigh the totality of a juror’s responses and demeanor in making a determination as to whether that juror has demonstrated a probability of bias. The primary issue we must decide in this case is whether the Jefferson Circuit Court abused its discretion in denying the plaintiffs’ motion to strike two prospective jurors for cause and subsequently denying their motion for a new trial. We hold that the trial court did not abuse its discretion, and affirm its judgment on that issue, as well as the other issues presented.

269.  Medical Negligence – informed consent and burden of proof on expert witnesses
Richard Thompson vs Dr. Alex Argotte
COA NPO 4/3/2015
Affirming – McCracken Cir Ct.
TAYLOR, JUDGE: Richard Thompson and his wife Crystal Thompson (collectively referred to as appellants) bring this appeal from a September 19,2013, summary judgment of the McCracken Circuit Court dismissing their negligence claims against Alex Argotte, M.D., P.S.C., Alex Argotte, M.D., personally and individually (Argotte), New Life Surgical Weight Loss Center of Western Kentucky, Inc., and Mercy Health Partners-Lourdes, Inc. (Lourdes Hospital) (collectively referred to as appellees). We affirm.

OP-ED: Six Traps You Should Watch Out for in Auto Accident Releases, or Get Ready To Stand Up to A Bully

man in hood at night, want to break the shutter

From DepositPhotos.com

Here are six TRAPS to watch out for when the liability insurer wants to settle and your client is anxious for the money.  Items in a release the liability insurer may present in a brute show of force, stealthily added to the release when never discussed,  or just assumed that’s they way all their releases must be signed.  Oh yeah, get ready for the old saw that “everyone else signs them” so what’s your problem.

This post is not exhaustive; nor are all the traps shown or even addressed in detail.  But, just keep an eye on those good neighbors who are always by your side all around Kentucky.

After Coleman vs. Bee Line’s pronouncement by the Kentucky Supreme Court, it is pretty easy to get the insurers to make sure the release excludes PIP and does not include indemnification for PIP.

However be ever vigilant since some of the following issues were/are never brought up when reaching a settlement number, and it might even be wise to include express language in your settlement demands to insure some of these items stay off the negotiating table.

Such areas include attempts by the liability insurer to include

  • Waiver of PIP benefits;
  • Release of consortium claims when not representing the spouse;
  • Global releases of “any and all other” persons etc.;
  • Indemnity language of claims against the tortfeasor by persons other than the settling claimant;
  • Non-negotiated indemnity language, period:
  • Attorney agreeing to indemnify (ru serious??);
  • Confidentiality and non-disclosure clauses;
  • Additional items so no “meeting of the minds” or a suit needed to enforce the agreement.

I consider these clauses to be objectionable and potentially bad faith or a breach of fiduciary duty by their very terms or the manner in which they end up in the release submitted with the check.

After the fact insertion of language which was not agreed upon is a no brainer violation, but the sneaky trick can be a problem when a client thinks the case has settled and just say “show me the money!”

Most recently, the Kentucky Department of Insurance came down hard on liability insurers who attempt to obtain waivers of reparation benefits as part of the liability settlement.  Such moves should always be reported to the Department of Insurance, at a minimum; and may put the claimant’s attorney in a position to advise her client of the potential claim too.  However, that is a decision each attorney must make for themselves.

Click here for DOI Complaint Information.

Here are six items to watch out for in those darn releases, most of which are boilerplate with the adjuster either not knowing the consequences of the terms or not having the authority on his/her own to redact certain language.  Thus adding delay to getting the client the agreed upon settlement sums.

1.  Waiver of PIP benefits.

These should never be in a release, and with the publication of Advisory Opinion 15-02m must be reported; and if you think it amounts to a bad faith violation or a breach of the Unfair Claims Settlement Practices Act, then another whole can of worms is opened through no fault other than the insurer (liability, UM, UIM).

The DOI Opinion added regulatory muscle to the complaints of many claimants’ counsel when it addressed the illegal practice of some liability insurers attempting to sneak a release of PIP (reparation benefits) as part of a personal injury liability settlement in a car accident case.

For the complete text of Advisory Opinion 15-02, then click here for our earlier post which contains the entire opinion and which is a must read for injury lawyers and insurance lawyers alike.  Insurance defense lawyers would be doing a disservice if they did not update their clients of the consequences of this explicit instruction.

Furthermore, the vast majority of bodily injury (“BI”) settlements involve third parties. By requiring that the injured person give up any claim to BRB, the insurer insists that the injured person forego the rights to a benefit the injured person paid for and is provided by the injured person’s own insurer. This has the effect of forestalling subrogation by the injured person’s insurance company through the Kentucky Insurance Arbitration Association. Such action has nothing to do with the injured party’s case, or the compensation the at-fault party’s insurer is legally obligated to pay. Subrogation rights for BRB payments belong to the BRB obligor (the injured party’s insurer). Furthermore, pursuant to KRS 304.39-140(3) collection of damages from the liability of a second person, a self-insurer or an obligated government shall have priority over the rights of the subrogee for its reimbursement of BRB. Liability coverage is all that should be at issue in a settlement of a BI case. The Department discourages efforts to abrogate an individual’s ability to get medical treatment by employing such a practice. This is particularly troubling in light of the fact that health insurance will not pay for treatment where other insurance is, or should be, available.

Additionally, contract case law is clear that if there exists no “meeting of the minds,” a settlement document or any other contract could be declared invalid. Breach of contract law would apply in this situation, especially if the insurer inserts this clause into a release document when no such provision had been agreed upon by the parties. This could be construed as a potential violation of the Kentucky Insurance Code, especially in the case of an unrepresented party who trusts that the language in the release reflects the settlement agreement.

2.  Loss of Consortium Claims.

If you do not represent the spouse of the injured claimant, then what is the basis for a liability insurer requiring as part of the settlement agreement that the unrepresented spouse sign the release or even the settlement check?  None.  But this goes back to an old insurance axiom that a closed file is a happy file, and apparently closing by means of making a claimant and their attorney do the liability insurer’s bidding.

In addition, no contract means no authority for the unrepresented spouse.  I won’t even go into the ethical issues, but the simple contractual requirements creating the legal representation not to mention the requirement of “actual” authority to settle a claim as required in Clark v. Burden, 917 S.W.2d 574 (Ky. 1996).

 And to add insult to malpractice, all this bidding would be expected at no cost to the insurer for crying out loud.

3.  The Global Release of all other persons.

It is clear that a release of all other persons is a release of all other persons per Nationwide vs. Abney.  This language usually surfaces for the first time when the boilerplate release is tendered with the check.  Fortunately, after Abney, there is usually little pushback by the insurer when caught.

Of course, I have always wondered about the potential quicksand for the insurer who shows more concern about non-claimant third parties then their own insureds when concluding a case.  Of course, the higher the amount of the settlement (and especially when limits are exhausted) means the greater exposure for any breach.  But, for the very, very small settlements, then why bother with the risk?

In any event, this language finds its way in releases to this day; and especially in those insurers outside the Commonwealth.

4.  Indemnity against claims by other claimants.

Indemnification has the potential of Alice Looking through the Looking Glass with indemnity, upon indemnity which then swallows up the entire settlement and potentially the claimant taking over the obligation of the liability insurer.  Rarely happens, or can even potentially happen, but why risk it.  Any indemnification should be negotiated specifically since indemnity is not a release.   See Frear vs. P.T.A. Industries, 103 S.W.3d 99 (Ky. 2003).

The inclusion of an indemnity clause started the problems in Coleman vs. Bee Line Courier Service, 284 S.W.3d 123 (Ky. 2009).

And, Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987) highlights how indemnity upon indemnity is a dangerous thing.

Now, limited indemnification for certain claims and caps on the amount are another thing when addressing government super liens but always think about the risk that indemnity might exceed the client’s total settlement amount.  Ouch.

5.  Attorney personally agreeing to indemnification.

There are several ethics opinions condemning this practice (eg., Arizona; Connecticut;  Montana; Illinois; IndianaOklahoma; Ohio; Tennessee;  W.Va.;  DRI Article on MSP and Indemnity).  Some of these opinions even specifically address AND prohibit attorney from personal indemnification in MSPRC/Medicare subrogation liens..

6.  Confidentiality clauses.

Two problems with this one.  Ethically and taxability, plus potential of losing entire settlement recovery following a casual conversation while in line at the super market.

The Kentucky Supreme Court has already expressed a distaste for these clauses:

Kentucky Bar Association v. Unnamed Attorney 

2012-SC-000388-KB December 19, 2013 

Opinion of the Court. All sitting. Minton, C.J.; Keller, Noble and Venters, JJ., concur. Abramson, J., concurs by separate opinions. Scott, J., concurs in part and dissents in part by separate opinion in which Cunningham, J., joins.

During the court of Unnamed Attorney’s representation of a fellow attorney in a disciplinary matter, Unnamed Attorney negotiated a settlement between his client and the complaining party. The terms of the negotiated settlement resulted in charges of professional misconduct against Unnamed Attorney because the terms of the settlement agreement required the complaining party to refuse to cooperate voluntarily with the Kentucky Bar Association in any investigation into the matter. The Trial Commissioner adjudged Unnamed Attorney guilty of professional misconduct for entering into such an agreement with a witness but the KBA Board of Governors overturned that determination on appeal. Neither party appealed but the Court exercised its discretion to review under SCR 3.370(8). On review, the Court reversed, in part, and affirmed, in part, the decision of the Board of Governors, finding Unnamed Attorney guilty of violating SCR 3.130-3.4(g) but not guilty of violating SCR 3.130-3.4(a) and issuing a private reprimand.

Taxability:  See, Amos v. Commissioner, T.C. Memo. Docket No. 13391-01, 2003-329, December 1, 2003 (tinyurl.com/9d25phz).

For more reasons why Confidentiality Clauses are not a good thing, then read this Article from the American Bar Association:  “Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice”

Do what you may, but hope this spurs some thoughts and maybe even some DOI complaints when necessary.

Now, there are more, many more traps in settlements, and this only scratches the surface.  And much can be said about Coots vs. Allstate and UIM releases and notices.  But that’s another day.