SC: September 2016 Decisions of the Supreme Court of Kentucky (Minutes)

19 Decisions -- Nos. 132-150

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This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows.  Use the scroll arrows at the bottom left of the PDF document to scroll through the pages.

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SC: August 2016 Decisions of the Supreme Court of Kentucky (Minutes)

23 Decisions - No. 109-131

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This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows:

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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This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more.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:

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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This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more.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.

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SC: May 5, 2016 Supreme Court of Ky Decisions (Minutes 56-86)

Two published tort and insurance cases. One dealing with affirming the award of punitive damages in the Emergency Medical Treatment and Active Labor Act where hospital ER turned a homeless man away three times and on his last visit made it clear for him not to come back.  The other decision involved Allstate and the No Fault Act's notice of first renewal requirements were met.

Second Laurel County Courthouse.  Completed in 1885.  Louisville architects H.P. McDonald; built by John W. Mullins at cost of $16,350.  This courthouse was destroyed by fire on Dec. 9, 1958.

Second Laurel County Courthouse. Completed in 1885. Louisville architects H.P. McDonald; built by John W. Mullins at cost of $16,350. This courthouse was destroyed by fire on Dec. 9, 1958.

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 organized as monthly posts.

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, are as follows:

Published decisions–

56.   Punitive Damages.
Saint Joseph Healthcare, Inc. vs. Larry O’Neil Thomas
Supreme Court of Kentucky Published Opinion AFFIRMING COA
Questions Presented:  Punitive Damages. KRS 411.184. Issues include whether or not physicians whom the hospital alleges are independent contractors are considered as employees of the hospital for the purpose of assessing punitive damages under the provisions of the federal Emergency Medical Treatment and Active Labor Act (EMTALA), whether an award of punitive damages was so excessive as to constitute a denial of federal Constitutional due process, and the interplay between the EMTALA and KRS 411.184.

57.  Administrative Law.
Jerry Jamgotchian vs. Kentucky Horse Racing
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Administrative Law. Constitutional Law. The question presented is whether “claiming jail” regulation 810 KAR 1:015 § 1(6) is unconstitutional as violative of the “dormant” Commerce Clause of the United States Constitution.

58.  Retaliatory Discharge.
John Charalambakis vs. Asbury University
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Employment Law. Retaliatory Discharge. Issues include the propriety of recovery for retaliation absent an underlying violation of the Kentucky Civil Rights Act.

59.  Criminal Law.
Stephen Williams vs. Commonwealth of Kentucky
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Murder, first-degree burglary, and tampering with physical evidence-Life without the possibility of parole for 25 years. First-degree burglary conviction affirmed where the evidence showed the defendant remained unlawfully in the victim’s residence and, after the shooting, left with a shotgun. Unanimous verdict. Sufficient evidence of tampering with physical evidence. Commonwealth’s error in failing to give notice of a witness testifying at a co-defendant’s trial, in the admission of hearsay testimony and in failing to test for gun-shot residue did not warrant reversal of the case.

60.  Wills and Estates.
John Wesley Bays vs. Kristie D. Kiphart, Trustee
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Wills. Renunciation. Fraud on Curtesy Rights. May life insurance be “surplus property” under KRS 392.020?

61.  Criminal Law.  Death Penalty.
Karu Gene White vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Questions Presented:  Death Penalty. Post Conviction. Intellectual Disability Claim. Case remanded to the trial court to order the Kentucky Correctional Psychiatric Center (KCPC) to perform a psychological evaluation of Mr. White.

62.  Criminal Law. Burglary.
Curtis McGruder vs. Commonwealth of Kentucky
Supreme Court of Kentucky Published Opinion AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Questions Presented: First-degree burglary, Receiving Stolen Property in excess of $500 and PFO 2nd– 20 years. First-degree burglary conviction reversed where the defendant was found in possession of a small hatchet, not legally a deadly weapon.

63.  Family Law.  Child support. Disability. Deviation.
Michelle Carver (Butler) vs. Lance G. Carver
Supreme Court of Kentucky Published OpinionAFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Questions Presented:  Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010). Issues include: (1) whether the trial court committed reversible error by failing to follow Artrip, which holds that disability payments made to a child because of one parent’s disability cannot be used to reduce the child support obligation of the other parent; and (2) whether the trial court properly deviated from the child support guidelines due to the disabled father’s living expenses.

64.  Insurance.  Kentucky Motor Vehicle Reparations Act.  UM/UIM/PIP
Allstate Ins. Co. vs. Craig T. Smith
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented:  Insurance. MVRA. KRS 304.20-040(13) “Notice of First Renewal” Requirement. The question is whether, although the insured never requested or paid any premium for optional KRS 304.39-320 underinsured motorist coverage, the insurer adequately complied with the KRS 304.20-040(13) “notice of first renewal” requirement of “a notice stating in substance that added uninsured motorists, underinsured motorists, and personal injury protection coverages may be purchased by the insured.”

65.  Criminal Law. Ineffective Assistance of Counsel
Commonwealth of Kentucky vs. David McKee
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented: Criminal Law. RCr 11.42. Ineffective Assistance of Counsel. Issues include whether the defendant met his burden of proving prejudice under RCr 11.42 when he alleged that: (1) counsel failed to obtain evidence prior to trial; and (2) the evidence may have allowed the defense’s accident reconstructionist to provide a favorable opinion regarding the cause of the fatal accident.

66.  Criminal Law.  Criminal Syndicate.
Commonwealth of Kentucky vs. Caton Kamil Jones
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented:   Does evidence of organizing and funding “credit mules” to procure discounted cell phones for resale (with no intent to fulfill the two-year contracts) suffice to present a jury question of engaging in organized crime as proscribed by KRS 506.120?

67.  Family Law. Child support.  Income exceeding Guidelines.
Rebekah McCarty vs. Kenneth Faried
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented:  Whether the trial court properly included projected expenses in the child’s reasonable needs when establishing an initial child support order for a high income parent.

68. Criminal Law. Police Questioning of a Defendant Represented by Counsel on Other Charges.
Sherman Keysor vs.  Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion REVERSING and REMANDING
Questions Presented:   Issues involve the impact of Montejo v. Louisiana, 556 U.S. 778 (2009) (overruling Michigan v. Jackson, 475 U.S. 625 (1986)) upon Kentucky cases dating back to Linehan v. Commonwealth, 878 S.W.2d 8 (Ky. 1994).

69. Kentucky Civil Rights Act. KRS 344.270. Election of Remedies.
Janet Owen vs. University of Kentucky
Supreme Court of Kentucky Published Opinion REVERSING AND REMANDING
Questions Presented: Election of Remedies. Whether an employee who receives an order of dismissal from the Kentucky Commission on Human Rights and does not appeal from that order may subsequently file a lawsuit in circuit court based on the same claim. KRS 344.270.

70.  Family Law.  Domestic Relations. Grandparent Visitation.
Larry Massie vs. Deborah Navy
Supreme Court of Kentucky Published Opinion REVERSING AND REMANDING
Questions Presented: Issues include the applicability of Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) and the “modified best interests” standard when a child’s custodians are a paternal uncle and aunt.


Selected tort, insurance and procedural decisions designated not to be published.

85.  Appeals.  Supersedeas Bond’s Adequacy and Writ of Prohibition Barring Sale of Property.
Roger Stamper, Trustee, vs. Hon. Linda Rae Bramlage, Judge
Attorneys practice family law might find this case interesting as funds dissipated and hidden during trust were tracked down.

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February 18, 2016 Supreme Court of Ky Decisions (Minutes 1-27)

28 Decisions This Month-- PUBLISHED: Campaign Conduct for Judiciary, Civil discovery and pending criminal charges, DNA testing, Duty to retreat in manslaughter case, trickery in interrogation, Futile gesture doctrine in employment case, seizure of evidence observed outside of curtilage, TTD when returning to light duty but different job tasks, unbundling of legal services, failure to reference filed property settlement in divorce agreement, finality of workers comp board decision, step-parent adoption and same sex nonbiological parent right of intervention, burden of proof in workers comp re misconduct termination

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.

Selected published decisions.

1.Judicial conduct.  Campaign conduct.
In Re. Robert A. Winter, Jr., Plaintiff and Cameron Blaue and Hon. Allison Jones, Intervening Plaintiffs
vs.
Hon. Stephen D. Wolnitzek, Chair Judicial Conduct Commission
Supreme Court of Kentucky Published Opinion Certifying the Law

Questions Presented:   Certification of the Law. Kentucky Code of Judicial Conduct. Campaign Conduct. Canon 5A(1)(a), Canon 5A(1)(b), and Canon 5B(1)(c).

Judicial candidates may “affiliate,” that is “portray” themselves as members of a political party without restriction; what they may not do under Canon 5A(1)(b), in tandem with Canon 5B(1)(c), is portray themselves, either directly or by implication, as the official nominee of a political party.

The Canon 5 provision proscribing “campaigning as a member of a political organization” prohibits the dissemination of campaign materials and other public representations suggesting to the voters that the candidate is the endorsed judicial nominee of a political party.

The statement “I am the only Republican candidate for Judge” is permissible, as long as it is true, because the message merely identifies the candidate as a Republican who is a candidate for judge, albeit the only one. It does not imply that the candidate is the nominee of the Republican Party, which would be prohibited.

The statement “I am the Conservative Republican candidate for Judge,” transmits the message that the candidate is the formal nominee for the Republican Party. As discussed above, this is an impermissible depiction by the candidate of his status in the judicial race; the insertion of the modifier “Conservative” into the statement does not, in our view, dispel the disingenuousness of the statement.

The statement by a candidate that his opponent is “the Democrat candidate for Judge” is an impermissible message to the voters. His opponent is not, in fact, the Democrat candidate for Judge. As previously explained, such candidates do not exist in Kentucky, and such a campaign message would therefore amount to a blatant falsehood.

A statement by a candidate that his opponent is “the Liberal Democrat for Judge” is likewise impermissible. For the identical reasons discussed above, the modern Democratic Party is widely acknowledged as falling within the liberal segment of the political spectrum. There is no meaningful difference between stating that someone is “the Liberal Democrat for Judge” as opposed to “the Democrat for Judge.” Both phrasings imply the false and misleading message that the opponent is the Democratic Party nominee for judge.

Canon 5B(1)(c) extends only to statements made during a campaign which are objectively factually untrue and do not extend to expressions of subjective opinions or innocuous campaign-trail “puffing” (“I am the most qualified candidate in the state.”).

In contrast, when an incumbent judge uses the word “re-elect” as campaign stratagem to persuade the public that she acquired the office by the popular vote of the people rather than as the appointee of a governor, its use is calculated to mislead and deceive the voters.

2.  Postponing civil discovery pending criminal prosecution.
Allen Lloyd Lehmann vs.  Hon. Susan Schultz Gibson
Supreme Court of Kentucky Published Opinion affirming and denying writ of mandamus
Questions Presented:  Writ of Mandamus. Mootness. Trial court did not act erroneously in staying discovery in a civil action against a pastor pending conclusion of a related criminal prosecution for sex offenses.

7.  Employment Law.  Discrimination. Retaliation.  Futile Gesture Doctrine.  Appeal.
Norton Healthcare, Inc vs. Lual A. Deng
Supreme Court of Kentucky Published Opinion Reversing  decision by the Court of Appeals and reinstate the trial court’s summary judgment because the Court of Appeals overreached by injecting the futile-doctrine theory on it’s own motion and trial court did not err in granting summary judgment to Norton as a matter of law.
Questions Presented:  Employment Law. Discrimination. Retaliation. Summary judgment was properly granted dismissing a post-termination retaliation claim. “Futile-gesture doctrine” was not raised in or decided by the trial court and cannot be raised for the first time on appeal. KRE 408 does not exclude statements verbalizing parties’ demands.

10.  Practice of Law.  Unbundling of legal services.
Persel & Associates, LLC vs. Capital One Bank
Supreme Court of Kentucky Published Opinion reversing and remanding
Questions Presented:  Limited-representation agreements. “Unbundling” of legal services. Such agreements are permissible so long as they are reasonable under the circumstances and otherwise comport with our rules of practice and procedure.

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SC: December 17, 2015 Supreme Court of Ky Decisions (Minutes 178-203)

26 decisions; 11 published; 5 attorney disciplinary decisions published; and 5 cases granted discretionary review

Ashland.birdseye view Edited1

Old Post Card Depicting a “birds eye” aerial view of Ashland, Kentucky in Boyd County

Selected published decisions:

178.  Criminal Law.  Failure to maintain auto insurance.  Issue on restitution not properly before SCOKY
Tammy Dillard vs. Criminal Law
Supreme Court of Kentucky Published Opinion Affirming – Jefferson Circuit Court

Questions Presented: “Failure of owner to maintain required insurance. KRS 304.39-080. Conditional Guilty Plea. Restitution. Appeal.”

Appellant Tammy Dillard entered a conditional guilty plea to Failure of Owner to Maintain Required Insurance/ Security and received a two year sentence, conditionally discharged, with “restitution to be determined.” The restitution issue arose when Dillard, while driving her uninsured vehicle, collided with another vehicle, allegedly causing $3,600 in damages. Before the Jefferson District Court conducted the restitution hearing, Dillard appealed to the circuit court, which dismissed the appeal because there was no “final action” from the district court as required to invoke the circuit court’s appellatejurisdiction under Kentucky Revised Statute (KRS) 23A.080(1). On discretionary review, the Court of Appeals affirmed and, on discretionary review, this Court also affirms the lower courts’ holdings with regard to lack of appellate jurisdiction in this matter. Although both Dillard and the Commonwealth are interested in securing a ruling on whether restitution is statutorily available given the facts of this case, that issue is not properly before us and we decline to issue an advisory opinion. This case illustrates the wisdom of Kentucky statutes and rules that premise an appeal to a higher court on the existence of a final order or action from the court below. Finality of a district court’s judgment is not only a prerequisite to invoking the circuit court’s appellate jurisdiction, it assures the availability of a complete record, allowing for more complete and efficient appellate review of all issues including those that one or both parties may view as purely legal.

179.  Criminal Law. Search and seizure. Roadblocks.
Commonwealth of Kentucky vs. Billy Cox
Supreme Court of Kentucky Published Opinion Affirming – Marion Circuit Court
Questions Presented: Criminal Law. Constitutional Law. Fourth Amendment. Roadblocks. Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003). Issue is whether a roadblock was unconstitutionally established and conducted under controlling Kentucky and federal law.

180. Estate and Inheritance Tax.
Est. of Mildred L. McVey vs. Dept of Revenue
Supreme Court of Kentucky Published Opinion Affirming – Franklin Circuit Court
Questions Presented:Estate and Inheritance Tax. Wills. Administrative Law. Issues include the effect of a will clause directing that inheritance taxes be deducted as a cost of administration and taxation of “bequests of tax.”

This case raises three legal questions. First, does a reviewing court owe any deference to the Kentucky Board of Tax Appeals as to questions of law? Second, may inheritance taxes paid as a “cost of administration” under a will’s tax-exoneration provision be deducted from the value of distributive shares under KRS 140.090 and thereby reduce the overall tax liability? And, third, is the payment of tax by an estate on behalf of a beneficiary under a tax- exoneration clause itself a taxable “bequest of tax”?

181.  Criminal Law
Marcus D. Greene vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion Affirming – Jefferson Circuit Court
Questions Presented: Trial court did not abuse its discretion in overruling defendant’s motion to withdraw his guilty plea where the defendant did not rely on the alleged inaccurate advice from counsel about jail-time credit and was not prejudiced by it.

182. Family Law.
Commonwealth of Kentucky Cab. for Health and Family Services vs. S.H.
Supreme Court of Kentucky Published Opinion Affirming and Remanding = Clay Circuit Court
Questions Presented:  Family Law. Rules. Issues involve whether the witness and exhibit lists requirements of FCRPP 7(1) apply to termination of parental rights cases

Upon petitions by the Cabinet for Health and Family Services (the Cabinet), the Clay County Family Court terminated the parental rights of S.H. with regard to her four children.S.H. apealed to the Court of Apeals, which reversed and vacated the termination orders, 2finding that the family court erroneously applied Family Court Rule of Practice and Procedure (FCRPP) 7(1). This Court granted discretionary review, and for the reasons stated herein, we affirm the opinion of the Court of Appeals.

183.  Criminal Law.
Commonwealth of Kentucky vs. Michael Young
Supreme Court of Kentucky Published Opinion Affirming in Part, Reversing in Part, and Remanding – Lawrence Circuit Court
Questions Presented:   Criminal Law. KRS 514.040. Theft By Deception. Adoption. Birth Mother Living Expenses. Issues include whether the trial court correctly refused to dismiss theft by deception charges against birth parents who solicited and accepted living expenses from prospective adoptive parents without disclosing that they had already accepted living expenses from an adoption agency representing other prospective adoptive parents.

184.  Criminal Law.  Jury Selection, Jefferson County Method
Adam Anthony Barker vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion Reversing – Jefferson Circuit Court
Questions Presented: Error to give provocation qualification to self-protection instruction which was not supported by the evidence. Second-degree manslaughter instruction was problematic but unpreserved for review. Trial court’s jury selection methodology deviated from the guidelines found in the criminal rules but said deviation was not substantial.

Abramson, J., Concurs, and Believes This Case Illustrates the Value of the So-Called Jefferson County Method of Voir Dire (a Method the Trial Court Did Not Employ in This Case) and Underscores the Wisdom of Amending Our Criminal Rules and Administrative Procedures to Approve Expressly of This More Efficient and Effective Means of Jury Selection.

185.  Civil.  Contempt Procedure.  Family Court.
Cabinet for Health and Family Services vs.  J.M.G.
Supreme Court of Kentucky Published Opinion Reversing and Remanding – Fayette Circuit Court
Questions Presented:  Contempt. Issue is whether the Family Court erred in holding the Cabinet for Health and Family Services in contempt as a result of the failure of an attorney employed by the Cabinet to follow statutes and court rules.

186.  Family Law. Property Settlement.
Ruth Ann Sadler vs. Barbara Lois Van Buskirk
Supreme Court of Kentucky Published Opinion Reversing and Remanding k- Fayette Circuit Court
Questions Presented:  Family Law. Property Settlement Agreements. Retirement Accounts. Issues include whether the property settlement agreement provision stating that the ex-wife disclaimed her interest in the retirement account owned by the ex-husband was sufficient to rescind the form he filed with the investment company during the marriage naming her as beneficiary upon his death.

187.  Criminal Law.  Palpable error.
Commonwealth of Kentucky vs. Joe Taylor
Supreme Court of Kentucky Published Opinion Reversing and Remanding – Fulton Circuit Court
Questions Presented:  Criminal Law. Palpable Error. Issues involve the lack of defense objection to reference at trial to the defendant’s testimony in support of suppression of evidence seized from his bedroom

188.  Criminal Law.
Patrick Deon Ragland vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion Reversing and Remanding – Fayette Circuit Court
Questions Presented: Second degree manslaughter, tampering with physical evidence and PFO I – 20 years. Trial court erred in adding a “no duty to retreat” jury instruction to a general self-protection instruction and by inadequately instructing the jury on the justifiable use of force to protect against unwanted sexual intercourse compelled by force or threat.

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