COA 2010 Minutes: February 19, 2010 (Nos. 160-193)

COA 2010 Minutes: February 19, 2010 (Nos. 160-193)

  • 34 decisions
  • 10 Published

Published Decisions with digest and link to full text decision at AOC:

163
GOVERNMENT EMPLOYMENT LAW
MCKISSIC VS. KENTUCKY TRANSPORTATION CABINET
OPINION AFFIRMING AS TO APPEAL NO. 2007-CA-002471-MR; REVERSING AND REMANDING AS TO APPEALS NO.
2008-CA-002282-MR AND NO. 2008-CA-002283-MR ** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.

VANMETER, JUDGE: These three appeals stem from a single, multi-faceted employment discrimination proceeding heard by the Franklin Circuit Court. We affirm as to Appeal No. 07-CA-002471-MR. We reverse and remand as to Appeals No. 08-CA-002282-MR and No. 08-CA-002283-MR.

164
FMLA
HIGHLANDS HOSPITAL CORPORATION VS. PREECE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE.
THOMPSON, JUDGE: Jessica Preece commenced this action in the Floyd Circuit Court alleging that her employer, Highlands Hospital Corporation (HHC), interfered with the exercise of her rights provided under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2615 (FMLA). She also alleged that HHC intentionally inflicted emotional distress. The circuit court granted HHC’s motion for partial summary judgment in regard to the intentional infliction of emotional distress claim but denied HHC’s motion as it applied to the FMLA claim. A jury returned a verdict in favor of Preece, finding that HHC interfered with the exercise of her rights under the FMLA and awarded $35,000 for lost wages. Because the jury also found that HHC acted in bad faith pursuant to 29 U.S.C. § 2617(a)(1), the trial court doubled the jury’s award in the amount of $35,000 and awarded $27,000 in front pay.

HHC asserts four issues on appeal: (1) whether the trial court improperly admitted the testimony of Mary Jarvis, a former HHC employee; (2) whether the trial court erred when it denied its motion for directed verdict on the basis that prior to her termination, Preece received her entitlement under the FMLA; (3) whether Preece was entitled to double damages and front pay; and (4) whether the jury instructions properly stated the applicable law. In her cross- appeal, Preece raises three errors; however, because we affirm the jury’s verdict, it is only necessary to discuss her assertion that the trial court erroneously granted HHC summary judgment on her claim for intentional infliction of emotional distress. Because we reject the parties’ arguments, we affirm.

165
CRIMINAL
HENSLEY VS. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** ** BEFORE: MOORE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
NICKELL, JUDGE: Leon Hensley, pro se, appeals from an order of the Adair Circuit Court entered on March 13, 2008, denying his motion to vacate, set aside or correct his sentence pursuant to RCr2 11.42. The court’s order specified Hensley’s claims of ineffective assistance of counsel and the alleged involuntariness of his guilty plea were refuted by the record and, therefore, no evidentiary hearing was necessary. On appeal, Hensley urges us to remand the matter to the trial court for an evidentiary hearing. Upon review of the record, the briefs and the law, we affirm.

166
LEASES
MAY VS. JOHNSON FAMILY COAL, CO.
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: ACREE AND DIXON, JUDGES, GRAVES,1 SENIOR JUDGE.

ACREE, JUDGE: In consolidated appeals, Millicent May, et al., and Kenny Trivette, et al., (collectively May and Trivette, or Lessors) seek reversal of a Pike Circuit Court judgment that a coal lease between May and Trivette, as lessors, and Johnson Family Coal Company (JFCC, or Lessees), as lessees, remains in full force and effect. Because the judgment is not supported by substantial evidence and is contrary to law, we reverse.

171
CRIMINAL
HOWARD VS. COMMONWEALTH
OPINION AFFIRMING
BEFORE: LAMBERT AND THOMPSON, JUDGES; KNOPF,1 SENIOR JUDGE.

LAMBERT, JUDGE: James Edward Howard appeals from the McCracken Circuit Court’s final judgment of conviction for sexual abuse in the first degree and resisting arrest, for which Howard received an aggregate sentence of ten years’ imprisonment. After careful review, we affirm the trial court’s judgment of conviction and sentence.

175
WORKERS COMPENSATION EXCLUSIVE REMEDY
HELTON VS. RI-COUNTY CYCLES BARBOURVILLE, LLC
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.

BUCKINGHAM, SENIOR JUDGE: William Helton appeals from summary judgments granted by the Knox Circuit Court in favor of Tri-County Cycles Barbourville, LLC; Myers Chevrolet-Oldsmobile-Cadillac, Inc.; and Gregory Wilcheck, dismissing the civil action Helton had filed resulting from injuries he sustained in an all-terrain vehicle (ATV) accident. The circuit court had concluded that the appellees were entitled to immunity from Helton’s claims because of the exclusivity provisions of the Kentucky Workers’ Compensation Act. We affirm.

178
CRIMINAL
VALESQUEZ VS. COMMONWEALTH

182
REVIVING CAUSE OF ACTION
BURNHAM VS. RADIOLOGY GROUP OF PADUCAH, PSC
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; CLAYTON AND STUMBO, JUDGES.

STUMBO, JUDGE: Jim Burnham, individually and as the representative of the estate of his wife, Martha Burnham, appeals an order of the McCracken Circuit Court dismissing his cause of action for failing to revive the action after Martha Burnham’s death. Mr. Burnham argues that he did not need to revive the cause of action or, in the alternative, that the Radiology Group of Paducah and Dr. Collins Dale Brown (collectively hereinafter Appellees) waived the defense of failure to revive the claim. We find the trial court erred in dismissing the claim and reverse the order and remand this case for further proceedings.

188
MODEL PROCUREMENT CODE
LAUREL CONSTRUCTION CO., INC. VS. PAINTSVILLE UTILITY COMMISSION
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.

DIXON, JUDGE: Appellant, Laurel Construction Company (Laurel Construction), appeals from an order of the Johnson Circuit Court granting summary judgment in favor of Appellee, Paintsville Utility Commission. Finding no error, we affirm.

We agree with the trial court’s reasoning on this point:
Under Kentucky law, . . . for a breach of contract as a stranger to the contract, the party must show that he is an intended third-party beneficiary of that contract. Sexton v. Taylor County, 692 S.W.2d 808, 810 (Ky. App. 1985).
… .
In this case, Laurel Construction cannot show that it is an intended beneficiary of the contract. The provisions of the agreement do not indicate that the agreement was made for the actual and direct benefit of Laurel Construction. On the contrary, the agreement’s provisions state “the parties agree that the obligations imposed upon them are for their respective benefit . . .” And “[i]in the event of default by the Grantee . . . [KIA] may declare this Agreement void from the beginning without further obligation to the Grantee and may commence appropriate legal action to enforce its rights under this Agreement . . . .” This language shows an intent between the parties that no other parties have
rights thereunder.
Since Laurel Construction cannot show that the grant assistance agreement was made for its actual and direct benefit, it cannot prove that [it] is an intended third-party beneficiary of the agreement. Thus, even assuming that the Utility Commission agreed to follow the Kentucky Model Procurement Code for the Project via the grant assistance agreement, and even further assuming that the Utility Commission breached the agreement by violating the code, Laurel Construction still has no claim because it has no standing to bring suit under the KMPC.
Accordingly, we agree with the trial court that Laurel Construction failed to demonstrate that the Commission’s acts were governed by the KMPC and, thus, the trial court properly granted the Commission’s motion for summary judgment on such claim.

193
WORKERS COMPENSATION
WAL-MART STORES, INC. VS. WELLS
OPINION AFFIRMING
** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; CLAYTON AND STUMBO, JUDGES.

STUMBO, JUDGE: Wal-Mart Stores, Inc., appeals the award of workers’ compensation benefits to Donald Wells. Wal-Mart argues that Wells was not entitled to workers’ compensation benefits because he pursued a civil suit against two third-party tortfeasors who were responsible for his injury. Wal-Mart claims that the $900,000 settlement reached in the civil suit precludes Wells from also being awarded workers’ compensation benefits. Wells argues that the Administrative Law Judge (hereinafter ALJ) and Workers’ Compensation Board (hereinafter Board) correctly awarded him benefits. We agree with Wells and affirm.

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