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This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more.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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SC: October 29, 2015 Supreme Court of Ky Decisions (Minutes 153-177)

25 decisions; 12 published; one attorney disciplinary decisions published; and 7 cases granted discretionary review

SCOKY announced 25 decisions for October 29, 2015; 12 decisions were published. One disciplinary matter was announced with an amended order in another, plus 7 cases granted discretionary review.

One of my favorite veterans - my dad, Theodore R. Stevens, in a picture with mom. Dad served in World War II, was a tanker with Patton. Picture was taken way before I was even a gleam. Not a day goes by that I do not think of both of them, but I know they are watching over all of us with my other favorite veterans, my brother Teddy (aka Theodore Roosevelt Stevens, II) and my father in law, Pappy (aka Morris Cox, Sr.).

One of my favorite veterans – my dad, Theodore R. Stevens, in a picture with mom. Dad served in World War II, was a tanker with Patton. Picture was taken way before I was even a gleam. Not a day goes by that I do not think of both of them, but I know they are watching over all of us with my other favorite veterans, my brother Teddy (aka Theodore Roosevelt Stevens, II) and Diane’s dad Pappy, Morris Cox..  But, let us not forget any person who put on a uniform and/or served or supported the United States Armed Forces is one of my favorites.  It’s just these few are special to me.  Dad was wounded in combat, and never, ever talked about it.  However, he did have a heckuva snoring problem with other soldiers drawing straws on who would make sure he was the last one to fall asleep.  And, I can’t forget that my sweetie, Diane, was a civilian nurse with the Army in Germany, and I guess helping save lives of soldiers is worthy of a Veterans Day shout out, too.  Love ya dad, Teddy, Pappy, and Di.

Selected published decisions:

153. Wrongful death.  Negligence per se rejected in claim against min for alleged statutory violations
In Re:  Nancy J. McCarty v. Covol Fuels No. 2, LLC
Published opinion by Venters Certifying the Law;  Federal

Question Presented: Subcontractor injured while installing a garage door on an unfinished building at a mine site may not maintain a wrongful death action against a mine operator under a negligence per se theory for alleged violations of Kentucky mining [statutes and] regulations, codified in KRS §§ 351-352 and KAR §§ 805-825.

Based upon our review of the applicable Kentucky law and the facts relevant to this inquiry, and for the reasons set forth below, we conclude that KRS Chapters 350 2, 351 and 352 and Kentucky Administrative Regulations (KAR) Sections 805 and 825 do not support a wrongful death action predicated upon a theory of negligence per se in the factual context presented here. 3

155.  Contracts. Automobile Insurance. Employee Exclusion
Tower Ins. Co. of New York vs. Brent Horn
Published opinion by Keller Affirming;  Martin County

Questions Presented: Contract. Automobile Insurance. Employee Exclusion. Severability-of-Interests Clause. Issues include whether the severability-of-interests clause in a business auto insurance policy operates to defeat the policy’s employee exclusion when the “insured” seeking coverage is not the policyholder business, but a permissive user.

Tower Insurance Company of New York (Tower) appeals the Court of Appeals’s reversal of summary judgment and finding of coverage. The issue is whether an injured employee policy exclusion bars coverage of a permissive user. After reviewing the policy, law, and arguments, we hold that it does not and affirm the Court of Appeals.

The case at hand turns on an employee exclusion supported by an entirely different purpose—to restrict coverage for claims arising under workers’ compensation laws, which provide coverage and immunity from civil suit to employers. See 7 Am. Jur. 2d Automobile Insurance § 252 (2015). What is more, the Liberty Mutual Court rejected the argument that cases dealing with the employee exclusions and additional insureds controlled due to their differing purposes. 522 S.W.2d at 186.

SC: September 24, 2015 Supreme Court of Ky Decisions (Minutes 124-153)

30 decisions; 15 published; 3 attorney disciplinary decisions published; and 8 cases granted discretionary review

SCOKY announced 30 decisions for September 24, 2015; 15 published. Three disciplinary matters were also announced, plus 8 cases granted discretionary review. Two major decisions on nursing home powers of attorney on compulsory arbitration and McIntosh’s open and obvious rule in premises liability extended further to outdoor hazard (icy parking lot) cases.

Post card of Lincoln County Court House in Stanford, Kentucky built in 1909. Stanford, Built 1909, The architect was Milburn, Heister & Co., The contractor was F. Krueger & Sons. Frank Pierce Milburn (1868–1926) was a prolific architect of the late 19th and early 20th centuries. While Milburn designed commercial buildings and residences, his practice was primarily focused on public buildings, particularly courthouses and legislative buildings. Milburn was a native of Bowling Green, Kentucky who practiced as an architect in Louisville from 1884 to 1889; Kenova, West Virginia 1890-1895; Charlotte, North Carolina; Columbia, South Carolina; and Washington, D.C. after 1904. From 1902 Milburn was architect for the Southern Railway.[1] Milburn pioneered a new approach to the marketing of architectural services, publishing sponsored books of his work, placing advertisements in trade publications, entering competitions and moving his office to suit available opportunities.[2] This resulted in work in every Southern state apart from Mississippi. Milburn was particularly successful in obtaining commissions for significant public buildings, ranging from county courthouses to state capitols. Milburn did significant work at the South Carolina State House and the old Florida Capitol, and unsuccessfully competed for work on the Arkansas Capitol.[

Post card of Lincoln County Court House in Stanford, Kentucky built in 1909.

Selected published decisions:

124.  Nursing home arbitration, power of attorney.
Extendicare Homes, Inc. vs. Belinda Whisman

Questions Presented: Power-of Attorney. Arbitration. Nursing home facilities. Personal Injury. Wrongful Death. Pre-dispute arbitration agreement in nursing home admission document was not validly formed or enforceable where the authority to arbitrate was not conferred upon the attorney-in-fact by the power-of-attorney instrument. Agent’s authority to waive principal’s constitutional right to access the courts and to trial by jury will not be inferred, but must be clearly expressed by the principal. Wrongful death beneficiaries are not bound to contractual arrangements purportedly made by the decedent or the decedent’s attorney-in-fact.

This decision consolidates three case accepted for discretionary review seeking relief from orders of the Court of Appeals refusing to compel arbitration of pending circuit court disputes.

Each of the three cases originated with the filing of an action in the circuit court asserting claims against the nursing home for personal injuries suffered by the nursing home resident, violations of KRS 216.510 et seq.,3and for wrongful death of the resident. In each case, at the time of the resident’s admission to the nursing home, an attorney-in-fact for the resident executed a written document providing that any claims or disputes arising out of the relationship between the resident and the nursing home would be submitted to arbitration, rather than adjudication in the courts.

The central issue is whether, based upon the language of the particular power-of-attorney instrument, an arbitration agreement was validly formed between the respective nursing home facility and the resident whose interests were thereby affected. For the reasons set forth below, we conclude in two of the cases, Extendicare Homes, Inc., et al, v. Whisman (Case No. 2013-SC-426-I) and Kindred Nursing Centers Limited Partnership, et al., v. Wellner (Case No. 2013-SC-431-I), that the authority to enter into a pre-dispute arbitration agreement was not among the powers granted to respective attorney-in-fact and, therefore the arbitration agreements were not formed with the assent of the party to be bound thereby. Lacking the essential element of assent, we conclude that the arbitration agreements in those cases were never validly formed.

129.  Workers Compensation. Statutes of limitation and repose.
Consol of Kentucky, Inc.  vs. Osie Daniel Goodgame, Jr.

Questions Presented: Workers’ Compensation. Issues presented include what date the statute of limitations and statute of repose, contained in KRS 342.185(1), begin to run for an alleged work-related cumulative trauma injury.

Affirmed the Court of Appeals, in part, and vacate the ALJ’s opinion finding that Goodgame did not timely file his claim for cumulative traumatic injury suffered in Kentucky. As did the Court of Appeals, we remand this matter to the A1,,1 for a proper finding regarding when Goodgame’s cumulative trauma injury became manifest. If the Al,,J determines that Goodgame’s injury became manifest more than two years before he filed his claim, she may again dismiss his claim. However, if she determines that Goodgame timely filed his claim, she must then determine the extent of his disability that is attributable to the work he performed in Kentucky.

135.  Torts. Premises Liability and “Open and Obvious” Doctrine.  Icy hotel parking lot.
James Carter vs. Bullitt Host, LLC

Questions Presented: Torts. Personal Injury. Open and Obvious Doctrine. Whether application of the open and obvious doctrine allows for summary judgment in this case, arising out of a fall in an icy hotel parking lot.

The A71ppellee, Bullitt Host, LLC, d/b/a Holiday Inn Express, operates a hotel. The Appellant, James Carter, sued Bullitt Host for injuries he suffered in a fall on ice on the hotel property. He alleged negligence in Bullitt Host’s maintenance of the entryway of the hotel during or soon after a severe snow storm. The hotel obtained summary judgment on the grounds that the icy patch on which Carter fell was a naturally occurring open-and-obvious hazard for which there can be no liability under Standard Oil Co. v. Manis, 433 S.W.2d 856 (Ky. 1968). The Court of Appeals affirmed. The parties have raised, among other things, broad questions of the continued viability of Manis and how naturally occurring hazards, such as ice and snow, should be treated after this Court’s recent open-and-obvious cases. Because the Manis rule was established under contributory negligence principles, and the law of the Commonwealth has been since 1984 by case law, Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984), and since 1988 by statute, KRS 411.182, that all tort actions must provide for the apportionment of fault among all parties to an action, the Manis rule is no longer viable, and we hold that all open and obvious hazard cases, including obvious natural outdoor hazard cases, are subject to the comparative fault doctrine.

We have hesitated at times to say that the open-and-obvious doctrine is completely “a vestige of contributory negligence,” Shelton, 413 S.W.3d at 910, though we have stated that such a claim is “compelling,” id. But our close review of the cases above establishes that the rule previously applied in the snow-and-ice open-and-obvious cases is readily explained by reliance on the doctrine of contributory negligence, rather than other concerns. Cf. McIntosh, 319 S.W.3d at 389 (discussing the open-and-obvious doctrine as an application of contributory negligence). Though the cases are often doctrinally imprecise, see id. (noting that “the precise doctrinal rationale was not carefully
considered” in older cases), they are unquestionably “rooted in the bygone era
of contributory negligence,” Shelton, 413 S.W.3d at 904.

But contributory negligence is no longer the law.

And our Court has already, very recently, addressed whether the openness and obviousness of a danger can be a complete defense in the face of modern tort law in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013). Shelton specifically answered questions about duty and breach, and held that while considerations of the obviousness of a hazard often were traditionally deemed to go to the existence of a duty, such considerations were better addressed in deciding whether the defendant breached the almost universally accepted general duty of ordinary care owed by every person to all other persons. Instead of killing a case prematurely because of the obvious nature of a hazard, most non-frivolous cases will now be allowed to mature fully and go before a jury to determine whether there has been tortious conduct at all and, if so, to apportion fault among the parties.

The open-and-obvious nature of a hazard is, under comparative fault, no more than a circumstance that the trier of fact can consider in assessing the fault of any party, plaintiff or defendant. Id. at 911-12. Under the right circumstances, the plaintiff’s conduct in the face of an open-and-obvious hazard may be so clearly the only fault of his injury that summary judgment could be warranted against him, for example when a situation cannot be corrected by any means or when it is beyond dispute that the landowner had done all that was reasonable. Id. at 918. Applying comparative fault to open- and-obvious cases does not restrict the ability of the court to exercise sound judgment in these cases any more than in any other kind of tort case.

Under comparative fault, every person has a duty of ordinary care in light of the situation, and that duty applies equally to plaintiffs and defendants. For fault to be placed on either party, a party must have breached his duty; and if there is a breach, fault must be apportioned based on the extent a party’s breach caused or helped cause harm to the plaintiff.

But it is just as true under comparative fault as it has always been that if a landowner has done everything that is reasonable under the circumstances, he has committed no breach, and cannot be held liable to the plaintiff.   The difference under comparative fault is that a landowner is not excused from his own reasonable obligations just because a plaintiff has failed to a degree, however slight, in looking out for his own safety. The Manis rule, at least as articulated in later cases like Corbin Motor Lodge, is the antithesis of this.

It is true that no one controls the weather; but neither is anyone reasonably expected to do so. A landowner is held only to reasonable conduct. The gravamen of a tort claim has always been that harm has come to a plaintiff because of the unreasonable conduct of the tortfeasor. Such conduct need only be the conduct that the ordinary person would not do under the same circumstances, in order to be tortious. And the plaintiff must likewise act in a reasonable manner for his own safety. Trial courts and juries have been ably applying this concept since torts became actionable. There is no valid reason to believe that they cannot do so when bad weather or any other natural hazard is involved.

We have spun our wheels long enough trying to drive open-and-obvious hazard cases the wrong way down a rocky road built on contributory- negligence concepts when all the rest of tort law runs smoothly on comparative-fault principles. It is time to clearly say that all torts, as the statute requires, are subject to a comparative fault analysis.

136.  Products Liability.  Design defect. Punitive damages.
Nissan Motor Co. LTC vs. Amanda Maddox

Questions Presented:  Whether the plaintiff presented sufficient evidence to warrant a punitive damages instruction where the defendant car manufacturer complied with federal safety standards.


Click here for a list of all our posts on Supreme Court of Kentucky decisions posted east month as minutes.    Click herefor a link to archived list of minutes posted at the Administrative Office of the Courts official web site.  Click here for the AOC page for this month’s minutes.

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SC: August 20, 2015 Supreme Court of Ky Decisions (Minutes 83-123)

41 decisions; 13 published; 5 attorney disciplinary decisions published; and 12 motions for discretionary review (MDRs) granted

Casey County Court House, Liberty, Kentucky. Built 1887. Color image courtesy of Keith Vincent, www.CourtHouseHistory.com.

Casey County Court House, Liberty, Kentucky. Built 1887. Color image courtesy of Keith Vincent, www.CourtHouseHistory.com.

Supreme Court of Kentucky announced 41 decisions on August 20, 2015, with 13 Kentucky Supreme Court opinions designated for publication; 5 attorney/judicial ethics and disciplinary matters were announced;  and 12 motions for discretionary review were granted.

July was a down month with no decisions from SCOKY.

Click here for a list of all our posts on Supreme Court of Kentucky decisions posted east month as minutes.    Click here for a link to archived list of minutes posted at the Administrative Office of the Courts official web site.  Click here for the AOC page for this month’s minutes.

Selected published decisions:

87  Nursing Home.  Cause of Action under KRS 216.515 and SOL
James Overstreet vs. Kindred Nursing Centers Limited Partnership
SC Published opinion affirming;  Mercer County

Questions Presented: Limitation of Actions. KRS 216.515. Issues include whether KRS 216.515 created a new cause of action or whether the cause of action was one for personal injury, and whether the statute of limitations for personal injury or for a newly established statutory action applies. [KRS 216.515 lists rights of nursing home residents and duties of facilities.]

Opinion by Justice Venters.  KRS 216.515 sets forth certain rights of nursing home residents. In this appeal we address the statute of limitations applicable to actions brought pursuant to that statute. We also consider whether actions based upon rights created by KRS 216.515 survive the death of the nursing home resident so that such actions may be brought after the resident’s death by the personal representative of the resident’s estate.

Ultimately, we conclude that claims brought under KRS 216.515(6) are subject to the one-year limitation period prescribed by KRS 413.140, to the extent that such actions seek to recover for personal injuries indistinguishable from a common law personal injury action. In contrast, actions brought pursuant to other subsections of KRS 216.515, to the extent they assert liabilities created exclusively by KRS 216.515, are subject to the five-year statute of limitations provided by KRS 413.120(2). We also conclude that actions to recover for personal injury to a nursing home resident, or for injury to the resident’s real or personal property, pursuant to KRS 411.140, survive the resident’s death and may be brought by the personal representative of an injured resident’s estate. In contrast, actions otherwise brought to enforce rights created exclusively by KRS 216.515 must be brought by the “resident or his guardian” pursuant to KRS 216.515(26), and therefore do not survive the resident’s death. Accordingly, we affirm the decision of the Court of Appeals, although we do so partly upon different grounds.

99.  Employment law.  Retaliatory Discharge.
Mary Banker vs. University of Louisville Athletic Association, Inc.
SC Published Opinion Reversing and Remanding COA Decision; Jefferson County.

Questions Presented:  Employment Law. Retaliatory Discharge. Sufficiency of the evidence of causation or pretext to support the jury verdict for the discharged plaintiff.

Opinion by Justice Keller.

A jury found in favor of Mary Banker on her retaliatory discharge claim against the University of Louisville Athletic Association, Inc. (ULAA), and the trial court awarded attorney fees to Banker’s attorney, Bryan Cassis. ULAA filed a motion for a judgment notwithstanding the verdict or for a new trial, which the trial court denied. ULAA then appealed to the Court of Appeals, which reversed and remanded for dismissal of Banker’s claim. Banker filed a motion for discretionary review and, because the Court of Appeals did not address all of the issues raised by ULAA, it filed a cross-motion for discretionary review. We granted both motions and consolidated the appeal and cross-appeal.On appeal, Banker argues that she put forth sufficient evidence to establish that ULAA discharged her for engaging in a protected activity under the Kentucky Civil Rights Act and that the Court of Appeals substituted its view of the evidence for the jury’s. In its cross-appeal, ULAA argues that the jury’s award of damages and the trial court’s award of an attorney fee were not supported by the evidence. Having reviewed the record and the arguments of the parties, we reverse and remand.

100.  Medical Malpractice. Evidence. Informed Consent.
Loretta Sargent vs.  William Shaffer, M.D.
SC Published Opinion Reversing and Remanding COA;  Fayette County

Questions Presented: Evidence Law. Jury Instructions. Medical Malpractice. Informed Consent. KRS 304.40- 320(2). Whether a jury instruction on informed consent in a medical negligence action must contain the duty enumerated in KRS 304.40- 320(2).

Opinion by Justice Venters.   On discretionary review, Appellant Loretta Sargent argues that the Court of Appeals erred in affirming a judgment of the Fayette Circuit Court absolving Appellee William Shaffer, M.D., from liability on Sargent’s claim that he failed to obtain her informed consent before operating on her. The trial judgment

was based upon a jury verdict resulting from jury instructions which Sargent contends improperly stated Dr. Shaffer’s duties under KRS 304.40-320, Kentucky’s informed consent statute. For the reasons that follow, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.

102.  Civil Procedure. Standing.  Business entity not a named plaintiff.
Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group vs. Consol Energy, Inc.
SC Published Opinion Reversing and Remanding COA;  Knott County

Questions Presented: Civil Procedure. Parties. Standing. Issues include whether the Court of Appeals properly vacated the trial court’s judgment in favor of a business entity that was not a named plaintiff.

Opinion by Justice Abramson.  This action resulted in a jury verdict and judgment in favor of Keith Randall Sparkman d/b/a In-Depth Sanitary Service Group on claims of breach of contract and tortious interference with contract. On appeal, Defendants CONSOL Energy, Inc. (“CONSOL”) and CONSOL of Kentucky, Inc. (“CKI”) raised various substantive issues regarding the claims asserted and the trial, while Plaintiffs Keith Randall Sparkman (“Sparkman”) and In-Depth Sanitary Service, Inc. sought review of an evidentiary ruling by cross-appeal. The Court of Appeals never reached the issues raised by the parties, but instead sua sponte concluded that it had no jurisdiction over the appeal. The contracts at the center of the dispute were entered into by In-Depth Sanitary Service Group (“Group”), a sole proprietorship that was not named in the complaint, (as opposed to the Plaintiff In-Depth Sanitary Service Inc.), and consequently, the

judgment was in favor of Group, a “non-party.” Finding no appellate jurisdiction in those circumstances, the Court of Appeals reversed and remanded the judgment to Knott Circuit Court for further proceedings including “any appropriate corrective action.” The appellate court also

dismissed the cross-appeal on that same ground as well as for being improperly taken from the wrong judgment. We now reverse and remand this matter to the Court of Appeals to address the appeal and cross-appeal on the merits.

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