COA 2010 Minutes: April 2, 2010 (Nos. 336-363)

COA 2010 Minutes: April
2, 2010 (Nos. 336-363)

  • Above link to minutes is full text of minutes with link to full text of each decision.
  • 28 decisions
  • Published Decisions:  4
  • Orders dismissing appeal and/or remanding:  1
  • Motion to publish: 0
  • Orders denying petition for rehearing: 0
  • Orders denying motion for discretionary review:  0
  • Orders denying petition for writ of prohibition:  0
  • Order granting petition for writ of prohibition:  0
  • Orders denying motion for belated appeal:  0

PUBLISHED DECISIONS – Synopsis with link to full text:

336 – OPEN RECORDS
CARTER V. SMITH
OPINION AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
NICKELL, JUDGE: This opinion consolidates one appeal and two cross-appeals stemming from a complaint filed by Jamie Smith, a parent and concerned citizen, against the Bourbon County Board of Education on December 3, 2002, and amended on February 4, 2003. The thrust of the amended complaint was that the Board went into executive session on December 19, 2002, to discuss “pending litigation and personnel,” and upon emerging from the closed session, took a vote and announced it had accepted the resignation of Arnold W. Carter as school superintendent, effective December 30, 2002, and had awarded him a twelve-
month personal services contract (PSC) to commence on January 1, 2003. Smith alleged negotiation of the PSC during executive session violated Kentucky’s Open Meetings Act (OMA).2    The trial court agreed finding Carter was an independent contractor under the PSC, not an employee, and as such the consulting contract was not a personnel matter that could be legally discussed in executive session. As a result, Carter appeals from the order of the Bourbon Circuit Court entered on May 31, 2007, voiding his consulting contract due to the OMA violation as well as from an order entered on August 10, 2007, denying his motion to alter, amend or vacate the previously entered order. Smith and the Board have cross-appealed from the same two orders in an attempt to recoup the $20,536.92 paid to Carter under the consulting contract. We affirm.

353
PAROLE BOARD
DOSTER (JERREL)
VS.
KENTUCKY PAROLE BOARD
OPINION VACATING AND REMANDING
VANMETER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND HARRIS (CONCURS)

Jerrel Doster appeals pro se from an order of the Franklin Circuit Court, entered December 18, 2008, sua sponte dismissing his petition for a writ of mandamus. For the following reasons, we vacate the trial court’s order and remand to that court for further proceedings.

357
DUI
COMMONWEALTH OF KENTUCKY
VS.
RHODES (TINA)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND WHITE (CONCURS)

Tina Rhodes was arrested and charged with driving under the influence. On October 27, 2008, the Fayette District Court ruled that Rhodes’ conduct on the night of her arrest amounted to a refusal to submit to an intoxilyzer examination. Subsequently, the Fayette Circuit Court reversed the District Court’s ruling and held that Rhodes’ conduct did not amount to a refusal to submit to the exam. After careful review, we agree with the Fayette Circuit Court and affirm.

360
SANCTIONS, PRO SE REP
LATTANZIO (JAMES)
VS.
JOYCE (THOMAS), ET AL.
AFFIRMING IN PART AND REVERSING IN PART
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND WHITE (CONCURS)

James Lattanzio appeals the sanctions entered by the Mercer Circuit Court on February 27, 2009. The trial court ordered that Lattanzio could not continue with his lawsuit against the Joyces unless he hired an attorney. Lattanzio was further ordered to pay $350.00 in attorney fees for violating Kentucky Rules of Civil Procedure (CR) 11. For the reasons set forth
herein, we affirm in part and reverse in part.

1 Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

TORT REPORT:  Decisions dealing with torts, insurance, procedure (civil):

337
OLIVER (LEAMON LORNE)
VS.
SUN LIFE FINANCIAL DISTRIBUTORS, INC.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND HENRY (CONCURS)
2007-CA-002063-MR
NOT TO BE PUBLISHED
JEFFERSON

Leamon Oliver appealed the Jefferson Circuit Court’s judgment construing the applicability of the Employee Retirement Income Security Act of 1974 (hereinafter ERISA) to a disability insurance policy through Sun Life Financial Distributors, Inc. (hereinafter Sun Life); the applicable standard of review; and whether he is entitled to long-term disability benefits from Sun Life. This Court issued an opinion addressing the applicability of ERISA, and this case is now before us on remand from the Kentucky Supreme Court with directions to address the proper standard of review for Oliver’s claim for benefits and to determine whether, under this standard of review, Oliver was entitled to benefits. For the reasons set forth herein, we now hold that the applicable standard of review is whether Sun Life’s denial of benefits was arbitrary and capricious. Because Sun Life’s determination was supported by a reasonable explanation, it was not arbitrary and capricious and Oliver was therefore not entitled to benefits.

349
ELMORE (BRADLEY)
VS.
STATE FARM
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
KNOPF (CONCURS) AND CAPERTON (CONCURS IN RESULT AND FILES SEPARATE OPINION)
2008-CA-002359-MR
NOT TO BE PUBLISHED
BOONE

Bradley Elmore appeals from an Order of the Boone Circuit Court granting Summary Judgment in favor of State Farm Insurance Company in Elmore’s action to recover underinsured motor vehicle benefits. Elmore was the passenger in a vehicle owned by his employer and operated by a fellow employee when he was injured in an automobile accident. He contends that the trial court erred in failing to conclude that he was entitled to benefits arising under his employer’s Underinsured Motorist coverage (“UIM”). For the reasons stated below, we affirm the Summary Judgment on appeal.

360 – see published decisions
LATTANZIO (JAMES)
VS.
JOYCE (THOMAS), ET AL.
AFFIRMING IN PART AND REVERSING IN PART
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND WHITE (CONCURS)

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