August 2012 SCOKY Minutes

Decisions: 98  through 124

27 decisions with 19 published

Click here for this month’s minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)

Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS
(Number, NAME, ISSUE AND LINK TO FULL TEXT):

98. Judicial Misconduct.  Removal from Office.
Russell D. Alred, Circuit Court Judge v. Commonwealth of Kentucky Judicial Conduct Commission
Questions Presented:
Removal from judicial office for judicial misconduct.

99. Class Action.  Attorney Fees.
B. DAHLENBURG BONAR, P.S.C,AND BARBARA D. BONAR V. WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A.; STANLEY M. CHESLEY; AND ROBERT A.STEINBERG

Questions Presented:
Class Action Litigation. Attorneys’ Fees. The issues include whether and to what extent a former class action co-counsel is entitled to recover fees following settlement of a class action lawsuit.

The weight of the evidence presented at trial supports the conclusion that Bonar withdrew from the case voluntarily. She did so because she found the class’s position towards the Diocese at odds with that of her clientele and colleagues. Finding no reason to disturb the trial court’s factual finding, we turn to its legal conclusion that Bonar was not entitled to any portion of the attorney’s fees awarded to class counsel.

When an attorney voluntarily withdraws from a contingency fee case without good cause, he or she forfeits any fee. Lofton v. Fairmont Specialty Ins. Managers, Inc., 367 S.W.3d 593, 597 (Ky. 2012). See also 7A C.J.S. ATTORNEY & CLIENT § 360 (2012) (“[A]n attorney who voluntarily withdraws from a case without good cause forfeits recovery of compensation for services performed, and he or she may not recover either on the contract or on quantum meruit.”). Whether good cause exists must be determined on a case-by-case basis. Id.

Here, Bonar withdrew because she believed WSBC’s litigation tactics would jeopardize her relationship with clients and professional peers. This does notconstitute “good cause,” which might entitle her to quantum meruit compensation, particularly in light of the fact that Bonar’s ties to the Diocese of Covington existed at the time she began representation of the class. The trial court properly concluded that Bonar forfeited any claim to the attorney’s fees awarded to class counsel.

100.  Government.  Open Meetings Act.
HAROLD GENE CUNNINGHAM, ET AL. V. DIANE WHALEN, ET AL.
Questions Presented:
Open Meetings Act. Litigation Exception. Issues include whether the litigation exception to the Open Meeting Act’s requirements applies where a zoning decision is the focus of the litigation.

101. CRIMINAL LAW
EDWARD JOHN JACOBSEN V. COMMONWEALTH OF KENTUCKY
Questions Presented:
“First degree robbery and second degree PFO–30 years.” Defendant was not entitled to suppression of the eyewitness identification from a photo array. Trial court correctly limited penalty-range voir dire to the unenhanced penalties for the indicted offense. Penalty phase mistrial for prosecutorial misconduct did not require an entire new trial of defendant’s guilt, but only a new penalty phase.

102. CRIMINAL LAW
COMMONWEALTH OF KENTUCKY V. WILLIAM JOSEPH REED
Questions Presented:
Criminal law. Guilty plea. Sentencing. Fines. KRS 534.030. Issues include whether in the case of an unenforceable bargained-for plea agreement an appellate court may vacate part of the sentence or whether the entire judgment and sentence of conviction must be set aside.

103.  WORKERS COMPENSATION
ROGER W. TUDOR V. INDUSTRIAL MOLD & MACHINE CO., INC.; HONORABLE RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
Questions Presented:
Workers’ Compensation. Issues include the method for excluding impairment from a non-compensable disability when calculating a worker’s income benefit under KRS 342.730(1)(b).

104. WORKERS COMPENSATION:
GREG’S CONSTRUCTION V. JERRY KEETON; JOHNSON FLOYD COAL COMPANY; MILLER BROTHERS COAL COMPANY; APOSTLE FUELS
Questions Presented:
Workers’ Compensation. Issues include whether KRS 342.7305 imposes liability for noise-induced hearing loss on the last employer with whom the worker sustained an injurious exposure although the claim was filed and impairment rating assigned before the employment commenced.

105. WORKERS COMPENSATION
JAMES T. ENGLISH TRUCKING V. AARON K. BEELER
Questions Presented:
Workers’ Compensation. Issues include whether a worker’s entire income benefit may be tripled at reopening when the increased impairment results in a lack of the physical capacity to perform the type of work performed at the time of the injury.

106. UNINSURED MOTORIST BENEFITS.  “STRIKE” & “HIT AND RUN” requirements
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY V. JAMES BALDWIN
AND
RONDA REYNOLDS V.
SAFECO INSURANCE COMPANY OF ILLINOIS
Questions Presented:
Uninsured Motorist Coverage. Physical impact requirement is upheld. The “strike” and “hit” requirements in the Uninsured Motorist clauses are satisfied if the uninsured vehicle, or an integral part of it, makes physical contact with the insured’s vehicle; or if the uninsured vehicle exerts force upon an intermediate object, which then makes physical contact with the insured’s vehicle in a chain-reaction accident.

107.  CRIMINAL LAW.  PRO SE REPRESENTATION.
QUAYNELL DURON KING V. COMMONWEALTH OF KENTUCKY
Questions Presented:
Defendant who timely and unequivocally asserted his right to represent himself and knowingly, intelligently, and voluntarily accepted the dangers inherent in self-representation had a right to proceed pro-se. As the defendant had abandoned his vehicle, he did not have standing to challenge its warrantless search.

108. ARBITRATION.  CLASS ACTION.
MICHAEL SCHNUERLE, AMY GILBERT, LANCE GILBERT AND ROBIN WOLFF V. INSIGHT COMMUNICATIONS, COMPANY, L.P. AND INSIGHT COMMUNICATIONS MIDWEST, LLC
Questions Presented:
Contracts. Arbitration. Issues include the validity of mandatory dispute resolution contract clauses barring consumer class actions.

109. CRIMINAL LAW.
MARCUS D. SWAN V. COMMONWEALTH OF KENTUCKY
AND
D’ANDRE OWENS V. COMMONWEALTH OF KENTUCKY
Questions Presented:
“Four counts of first-degree robbery, first-degree burglary, two counts of first-degree assault, six counts of first-degree wanton endangerment, and one count of tampering with physical evidence, all by a complicity theory-70 years.” (Owens also convicted of first-degree sodomy.) Convictions affirmed except for Owens’ convictions for first degree assault, where the proof required an instruction on the lesser-included offense of second degree assault, and for first degree wanton endangerment relating to Ms. Lumpkins.

110. WORKERS COMPENSATION
BRENT ARNOLD V. TOYOTA MOTOR MANUFACTURING
Questions Presented:
Question presented: Workers’ Compensation. Issues include whether the ALJ made sufficient findings to support the date to commence temporary total disability benefits.

111. CRIMINAL LAW.  RESTITUTION.
ANTHONY WAYNE FAGAN V. COMMONWEALTH OF KENTUCKY
Questions Presented:
“Theft by unlawful taking over $10,000 and three counts of first-degree criminal mischief –20 years.” Convictions for theft by unlawful taking over $10,000 and first–degree criminal mischief did not violate double jeopardy. Trial court’s restitution order did not violate the statutory cap. Trial court erred by amending the final judgment more than ten days after its entry.

112.  CRIMINAL LAW
MARK BOLTON, DIRECTOR METRO CORRECTIONS V. RICKIE IRVIN
Questions Presented:
Criminal Law. Bond. District court may increase defendant’s bail following a finding of probable cause.

113. CRIMINAL LAW
COMMONWEALTH OF KENTUCKY V. JOSHUA ABNEE
Questions Presented:
Criminal Law. Jury Deliberations. Defendant is not entitled to a hearing on a motion for a new trial based upon a juror’s letter, unsupported by affidavit, regarding alleged impropriety in deliberations.

114. POWER OF ATTORNEY AND AUTHORIZATION TO AGREE TO ARBITRATION
DONNA PING, EXECUTRIX OF THE ESTATE OF ALMA CALHOUN DUNCAN DECEASED V.
BEVERLY ENTERPRISES, INC., ET AL.
Questions Presented:
Contracts. Arbitration. General Power of Attorney for property and health care management did not authorize agent to agree to arbitration.

In October 2008, Donna Ping, as the executrix of the Estate of her deceased mother, Alma Calhoun Duncan, of Lawrenceburg, Kentucky, brought suit in the Franklin Circuit Court against the owners and operators of The Golden Living Center, a long-term care facility in Frankfort, where the seventy- nine year old Mrs. Duncan spent the last several months of her life. The executrix alleges that negligence by the facility’s staff and the breach by its management of statutes regulating the provision of nursing home services resulted in injuries to Mrs. Duncan and in her wrongful death. Invoking an Arbitration Agreement executed in conjunction with Mrs. Duncan’s admission to the nursing home, the Defendants )moved the trial court to dismiss the complaint or to stay it pending arbitration. (The Appellees-Defendants are hereafter referred to collectively as “Beverly Enterprises” or simply as “Beverly.”) The trial court denied that motion and explained that in its view Ms. Ping, who executed the Admissions Agreement on behalf of her mother, had not had authority to agree to arbitration, and further that the nursing home had obtained Ms. Ping’s signature on the agreement by wrongful means and without providing consideration. Beverly Enterprises appealed that ruling to the Court of Appeals, which reversed. The appellate panel rejected the reasons offered by the trial court for invalidating the Arbitration Agreement, as well as several others offered by the executrix, and held that under Kentucky

Revised Statutes (KRS) 417.045 et seq., Kentucky’s Uniform Arbitration Act, the agreement was to be enforced. We granted the executrix’s motion for discretionary review to consider the important question of an agent’s authority to bind his or her principal, as well as others, to an arbitration agreement presented with other documents upon the principal’s admission to a long-term care facility. Because we agree with the trial court that the agent in this case, Ms. Ping, was not authorized to enter an optional arbitration agreement, we reverse the decision of the Court of Appeals and remand the matter to the Franklin Circuit Court for additional proceedings.

115. CRIMINAL LAW.  MURDER.  PROSECUTORIAL IMPROPERY CROSS EXAM.
BILLY REED CAUDILL V. COMMONWEALTH OF KENTUCKY
Questions Presented:
“Murder and three counts of wanton endangerment-35 years.” Improper conduct by the Commonwealth Attorney during his cross-examination of the defendant constituted reversible prosecutorial misconduct.

116. CRIMINAL LAW
JEFFREY WAYNE CHAVIES V. COMMONWEALTH OF KENTUCKY
Questions Presented:
“First-degree sodomy, use of a minor in a sexual performance, and first-degree sexual abuse–70 years.” Commonwealth’s introduction of an egregious amount of inadmissible character evidence combined with improper bolstering of the alleged victims’ testimony rose to the level of palpable error mandating reversal of the case and remand for a new trial.

TORT REPORT OF CIVIL AND INSURANCE DECISIONS

PUBLISHED:

99. Class Action.  Attorney Fees.
B. DAHLENBURG BONAR, P.S.C,AND BARBARA D. BONAR V. WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A.; STANLEY M. CHESLEY; AND ROBERT A.STEINBERG

106. UNINSURED MOTORIST BENEFITS.  “STRIKE” & “HIT AND RUN” requirements
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY V. JAMES BALDWIN
AND
RONDA REYNOLDS V.
SAFECO INSURANCE COMPANY OF ILLINOIS

108. ARBITRATION.  CLASS ACTION.
MICHAEL SCHNUERLE, AMY GILBERT, LANCE GILBERT AND ROBIN WOLFF V. INSIGHT COMMUNICATIONS, COMPANY, L.P. AND INSIGHT COMMUNICATIONS MIDWEST, LLC

114. POWER OF ATTORNEY AND AUTHORIZATION TO AGREE TO ARBITRATION
DONNA PING, EXECUTRIX OF THE ESTATE OF ALMA CALHOUN DUNCAN DECEASED V.
BEVERLY ENTERPRISES, INC., ET AL.

NOT TO BE PUBLISHED:

120. WRITS.  TO OBTAIN DISCOVERY AND OVERRULE JUDGE’S DENIAL.
MOTORISTS MUTUAL INSURANCE COMPANY V. HONORABLE EDDY COLEMAN, JUDGE,
PIKE CIRCUIT COURT AND GYPSIE THACKER

The Appellant in this case is appealing from a decision of the Court of Appeals, which denied a writ of mandamus to compel the Honorable Eddy Coleman, Pike Circuit Judge, to permit discovery of certain treatment records of the Real Party in Interest. We agree with the Court of Appeals that Appellant has an adequate remedy on appeal of the final judgment and that the Appellant has not shown “irreparable injury” if it waits until an appeal of the final judgment.

the course of discovery, Appellant attempted to obtain Thacker’s mental health records. However, her attorney filed a motion to quash the subpoena of Dr. Spare’s psychotherapy records and a motion for a protective order.

The trial court conducted an in camera review of Dr. Spare’s records and entered a protective order denying discovery on the basis that Dr. Spare’s records did not contain information relevant to Thacker’s claims, nor would they lead to discovery of relevant evidence. Appellant filed a petition for a writ of mandamus with the Court of Appeals requesting that Court order the trial court to grant the discovery request. The Court of Appeals denied the petition for a writ, distinguishing between alleged errors allowing discovery and alleged errors denying discovery, and concluding that if the trial court in this case did err in denying discovery, there was an adequate remedy on appeal. Appellant appealed to this Court as a matter of right.  [NOTE.  THIS WAS A UIM CLAIM AFTER COLLECTING LIABILITY LIMITS FROM TORTFEASOR].

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