COA 2010 Minutes for August 20, 2010 (Nos. 786-806)

COA 2010 Minutes for August 20, 2010 (Nos. 786-806)
Note:  Corrected this post to reflect decisions were for Aug 20 rather than previous post that the minutes were dated Aug. 13…. Sorry).

SINCE THERE IS ONLY ONE NPO DECISION INVOLVING TORTS, THEN CONSIDER THIS ALSO THE TORT REPORT FOR THIS WEEK TOO.

 

  • Above link to minutes is full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  21
  • Published Decisions:  7 (786; 787; 790; 793; 794; 796; 797)
  • Tort, Civil, Insurance, Workers Compensation: 
    • PUBLISHED: 787 (Sov. Immunity); 790 (W.Comp); 794 (SOL, outrage); 796 (UIM);
    • NONPUBLISHED: 799 (W.Comp).

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

786. KASPER RECORDS. PRIVILEGE. DISCLOSURE.
ERIC A. NORSWORTHY VS. THOMAS O. CASTLEN AND COMMONWEALTH OF KENTUCKY
OPINION AND ORDER GRANTING
KELLER (PRESIDING JUDGE) TAYLOR (CONCURS) AND ACREE (CONCURS)
2010-CA-001117-OA
TO BE PUBLISHED
(RENDERED AUGUST 12, 2010)
OHIO

An Ohio County Grand Jury returned an indictment against the petitioner,
Eric A. Norsworthy, a physician practicing medicine in Beaver Dam, Kentucky, charging him with 13 counts of unauthorized disclosure of prescription records from the Kentucky All-Schedule Prescription Records (KASPER) system and one count of intentional disclosure of those prescription records. The indictment is based upon allegations from an investigation by the Kentucky State Police and the Kentucky Board of Medical Licensure that Norsworthy, or someone acting on his behalf, accessed the KASPER system for the improper and unlawful purpose of using that information to defend himself in a complaint filed before the Kentucky Board of Medical Licensure by a former patient. The findings of the investigations allege that Norsworthy improperly obtained and shared the patient’s KASPER records with Mr. David Lambertus, his counsel, during the administrative hearing concerning the complaint filed before the Board of Medical Licensure.

Therefore, having considered the petition for a writ of prohibition filed herein by the petitioner, the response filed thereto by the real party in interest, and being otherwise sufficiently advised, this Court ORDERS that the petition for a writ of prohibi- tion be, and it is hereby, GRANTED. The Ohio Circuit Court is hereby PROHIBITED from enforcing the June 2, 2010, order. This Court hereby DIRECTS the Ohio Circuit Court to conduct an evidentiary hearing to determine whether the exception to the attor- ney-client privilege of KRE 503(d)(1) would apply. Should the Ohio Circuit Court deter- mine that an exception under KRE 503(d)(1) applies after making findings of fact under CR 52.01, it may then order an in camera review. The petitioner would then be entitled to request review of any order granting in camera review to this Court by means of an original action.

787. SOVEREIGN IMMUNITY.  GOVERNMENT EMPLOYEE CONTRACTS.
MARK BLANKENSHIP, ET AL VS. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS IN RESULT ONLY) AND WINE (DISSENTS AND FILES SEPARATE OPINION
2008-CA-002044-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: This is an action by the Lexington and Fayette County Firefighters seeking overtime wages and related benefits from the Lexington- Fayette Urban County Government (“LFUCG”). The Fayette Circuit Court dismissed the action on sovereign immunity grounds. For the reasons that follow, we affirm the decision of the trial court.

he firefighters also contend that the Kentucky Attorney General and Labor Cabinet’s Application of the Kentucky Wage and Hour Law to County Employees is indicative of the waiver of sovereign immunity. LFUCG argues that neither the Attorney General nor the Labor Cabinet has the authority to waive sovereign immunity. Rather, as set forth above, only the General Assembly has that authority.

We agree that neither the Attorney General nor the Labor Cabinet has the authority to waive sovereign immunity. Thus, as set forth above, we agree that sovereign immunity applies in this action and that the trial court did not err in dismissing the action based on this defense.

790.  WORKERS COMPENSATION.  EXCLUSIVE REMEDY. CONTRACTOR.
THORNTON (JAMES) VS. CARMEUSE LIME SALES CORPORATION , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND BUCKINGHAM (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-000090-MR
TO BE PUBLISHED
PENDLETON

CREE, JUDGE: The Appellant, James Thornton, asks this court to reverse the Pendleton Circuit Court’s order granting summary judgment in favor of the appellee, Carmeuse Lime Sales, Inc.2    Because Carmeuse falls within the statutory definition of a contractor under KRS 342.610(2), its liability is limited pursuant to KRS 342.690. Therefore, we affirm the circuit court’s order.

The relationship between Carmeuse and Bulk Transit is nearly identical to that discussed Blevins. Accordingly, this relationship also amounts to a contractor-subcontractor relationship as defined by KRS 342.610(2).

Thornton argues that even if Carmeuse Lime is a contractor under the statute, the motor-carrier agreement changes that relationship. In support of this argument he relies on an unpublished decision of the United States Court of Appeals for the Sixth Circuit, Morlan v. Green River Steel Corp., 35 F.3d 566 (Table), 1994 WL 502655 (6th Cir. (Ky.), Sept. 14, 1994).3    In Morlan, after determining that Green River Steel was not a statutory contractor, the Sixth Circuit considered whether it was a “statutory employer.” 1994 WL 502655 *5-6. In making this determination the Sixth Circuit relied on a decision of the Kentucky Supreme Court, M.J. Daly Co. v. Varney, 695 S.W.2d 400 (Ky. 1985). Thornton’s reliance on the reasoning of these cases is flawed

Therefore, because Carmeuse is a “contractor” under KRS 342.610(2), it is entitled to “exclusive remedy” immunity under KRS 342.690 and the decision of the circuit court is affirmed..

793. FAMILY LAW.  DISABLED PARENT. INDEPENDENT FINANCIAL RESOURCES OF CHILDREN. IMPUTED INCOME WHEN DISABLED. CHILD SUPPORT GUIDELINES.
JONES (ALLISON) VS. HAMMOND (MATTHEW JONES)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000546-MR
TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: Allison Jones (formerly Hammond) appeals from an order of the Jefferson Family Court entered on October 1, 2008, which terminated Matthew Jones Hammond’s child support obligation. For the reasons stated below, we affirm in part, reverse in part, and remand.

In March 2008, Hammond filed a motion to terminate his child support obligation based on any or all of the following reasons: the independent financial resources of the children, the parenting schedule, and Jones’s financial resources. Further, he also requested that the court impute income to Jones. After Hammond had filed this motion, Jones then filed a motion requesting an increase in child support.

The issues on appeal are whether it is appropriate to terminate the child support of a non-custodial parent (as designated in the child support formula), whether the evidence was sufficient to impute income based on unemployment, and whether the facts of this case allow for deviation from the child support guidelines. Jones argues that the trial court erred when it determined that she was voluntarily unemployed, when it decided that the trust income and the percentage of parenting time allowed it to deviate from the child support guidelines, when it considered gifts from the grandparents as assets or income for Jones and the children, and when it terminated Hammond’s child support obligation.

Having concluded that the family court did not abuse its discretion in imputing income to Jones or in finding that the children’s independent financial resources permitted deviation from the child support guidelines, we affirm in part. Having concluded, however, that the family court erred in completely eliminating Hammond’s child support obligation, we reverse in part. And we remand to the family court so that it can calculate child support according to the child support guidelines with the imputation of income to Jones. Then, the family court shall use the children’s income to deviate from the guidelines per each parent’s proportionate child support responsibility. For the foregoing reasons, we affirm in part, reverse in part, and remand the judgment of the Jefferson Circuit Court for entry of an order consistent with this opinion.

794.  STATUTE OF LIMITATIONS.  TORT OF OUTRAGE AND FILLING THE GAP.
BENNETT (EARL) VS. MALCOMB (CARTER)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND BUCKINGHAM (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-000871-MR
TO BE PUBLISHED
OWEN

ACREE, JUDGE: Earl Bennett, the appellant, seeks reversal of the Owen Circuit Court’s order granting summary judgment for the appellee, Carter Malcomb. The circuit court determined that Mr. Bennett’s claim was barred by the statute of limitations. We affirm.

On April 28, 2008, Mr. Bennett filed a complaint alleging that Mr. Malcomb intentionally, recklessly and negligently harmed him by pinning him against a post with a tractor on April 28, 2006. As a result of the incident, Mr. Bennett suffered physical injury, but sought no psychological treatment. The complaint was dismissed for lack of jurisdiction pursuant to KRS 413.140 because it was brought more than one year after the accrual of the action. Mr. Bennett was then given leave to amend his complaint. He did so adding a cause of action for the intentional infliction of emotional distress, otherwise known as the tort of outrage.
Subsequently, the circuit court granted the appellee’s motion for summary judgment finding the tort of outrage inappropriate because traditional tort remedies existed. Thus, the claim was barred by the one-year statute of limitations applicable to traditional torts and not the five-year statute of limitations applicable to the tort of outrage.

This Court must determine if Mr. Bennett may bring a claim of outrage. If he cannot, then the statute of limitations bars recovery. The tort of outrage is intended as a “gap-filler”, proving redress for extreme emotional distress where traditional common law actions do not. Where an actor’s conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.

Therefore, because recovery could appropriately be sought under the traditional common law torts and the evidence shows the actions were not intended to only cause emotional distress, a cause of action for outrage is not appropriate. Furthermore, the tort of outrage was intended to fill the gap left by outrageous conduct that harms a plaintiff, but leaves him without recovery via the traditional torts. The tort of outrage was not intended to provide a cause of action for plaintiffs who simply failed to bring a traditional tort claim within the statute of limitations.
The judgment of the circuit court is affirmed.

796. INSURANCE.  UIM.  DUTY TO PROVIDE AMOUNTS REQUESTED.
LITTLE (CARL D.) VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
STUMBO (CONCURS) AND WHITE (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-001030-MR
TO BE PUBLISHED
KNOTT

NICKELL, JUDGE: Carl D. Little appeals from summary judgments entered in favor of Kentucky Farm Bureau Mutual Insurance Co., Beth Clemons, and Michael R. Fannin Insurance, Inc. Little argues the trial court erred by concluding there is neither statutory duty nor a common law or fiduciary duty to provide a specific amount of underinsured coverage. We affirm.

Little was involved in an automobile accident. Prior to the accident, he had purchased an automobile insurance policy from Beth Clemons, who was acting as an agent for Michael R. Fannin Insurance and Farm Bureau. The policy provided liability limits of $100,000 per person and $300,000 per accident. The policy contained underinsured limits of $25,000 per person and $50,000 per accident. Little alleges he requested underinsured coverage up to the liability limits. Little brought suit against the tortfeasors and against Farm Bureau for underinsured benefits.

Little correctly states KRS 304.39-320(2) requires insurers to make underinsured coverage available if requested. Allstate Ins. Co. v. Dicke, 862 S.W.2d 327, 328-29 (Ky. 1993). However, nothing in Dicke states or even suggests insurers are required to provide underinsured coverage under terms unilaterally set by the request of the insured. The insurer is only required to provide underinsured coverage, if requested, under “such terms and conditions not . . . inconsistent with the section of the statute.” Id. at 329. Again, we discern nothing in Dicke requiring insurers to provide a specific amount of underinsured coverage.
Little next argues Farm Bureau violated a common law duty to provide him with the specific amount of insurance he requested.

In the present case, Little admitted Farm Bureau told him he would
not be sold underinsured coverage at the limits he requested. Little also admitted he knew the limits were not the limits he requested prior to the accident underlying this case. Little’s reliance on Grigsby v. Mountain Valley Ins. Agency, Inc., 795 S.W.2d 372, 375 (Ky. 1990), is of no moment as Grigsby is distinguishable from the current situation. In Grigsby, the Court held an insurer could be held liable because it failed to provide fire insurance for a particular piece of property and instead insured a different property. In Grigsby, the insured did not receive the policy bargained for and instead received a different unnecessary policy. In this case, Little knew he would be not be sold a policy at the limits he requested. In Brewer v. National Indem. Co., 163 S.W.3d 885, 886 (Ky. 2005), the Court simply held an insured may proceed against the insurer “pursuant to the bargained-for agreement entered into by the parties.” Here, it is undisputed there was no agreement by the parties. Underinsured policies are contractual in nature. Schwartz v. Hasty, 175 S.W.3d 621, 628 (Ky. App. 2005). Therefore, Little may not unilaterally dictate the terms of coverage or Farm Bureau’s acceptance of his terms.
Accordingly, the judgments of Knott Circuit Court are affirmed.

797. CRIMINAL. SENTENCING.
MCNEW (CHARLES EDWARD) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2009-CA-001325-MR
TO BE PUBLISHED
HARDIN

LAMBERT, SENIOR JUDGE: Charles Edward McNew appeals from an order of the Hardin Circuit Court denying his motion for post-conviction relief filed pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. In the underlying case, pursuant to the terms of a plea agreement, Appellant had pled guilty to felony possession of drug paraphernalia and two misdemeanor offenses. He was sentenced to five years in prison. In this proceeding he contends that the sentencing judge lacked authority to enter a judgment and sentence, and he seeks vacatur of his convictions. Having reviewed the record and discovering no error, we affirm the denial of relief.

NONPUBLISHED TORT/CIVIL/WORKERS COMP:

799
NATIONAL DISTRIBUTION
VS.
CRAWLEY (MARVIN), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2009-CA-001424-WC
2009-CA-001456-WC
NOT TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: In this consolidated appeal, National Distribution appeals two opinions of the Workers’ Compensation Board finding that Kentucky has jurisdiction to adjudicate the claims of Marvin Crawley and Lloyd Maxwell. For the reasons stated herein, we affirm.

On June 20, 2008, Crawley, a truck driver, filed a claim for workers’ compensation benefits, alleging that he sustained work-related injuries to his neck, lower back, and left hip. He alleged that he sustained the injuries when his truck was in a serious crash in Franklin, Kentucky. Prior to filing for Kentucky benefits, Crawley had been paid benefits pursuant to Indiana’s Workers’ Compensation law.

National next contends that the Board erred by not enforcing the parties’ written agreement requiring Indiana law to govern Crawley’s workers'
compensation benefits regardless of where his injury occurred. Citing Industrial Track Builders of America v. Lemaster, 429 S.W.2d 403 (Ky. 1968), National contends that Kentucky provides that “a compensable claim in this state [can] be lost by an election to proceed under the laws of another state.” Thus, National contends that Crawley’s agreement waived his right to pursue a claim in Kentucky.

Although National contends that KRS 342.670(5)(e) permits parties to determine which state exercises jurisdiction over a claim, we do not believe that this statute can be read to determine jurisdiction in all contexts. The contracting authority of KRS 342.670(5)(e) is limited to determining where an employee’s employment is “principally localized” as provided in KRS 342.670(1), rather than to place exclusive jurisdiction in a particular state. That is, KRS 342.670(5)(e) permits parties to decide the result of the application of KRS 342.670(1), but does not preclude a Kentucky claim for an in-state injury.

From a review of these statutes, it is clear that the legislature has created a system for depriving Kentucky of jurisdiction to adjudicate these claims. KRS 342.395(1) mandates Kentucky jurisdiction unless the employer files, prior to injury, a written notice of an employee’s rejection with the Office of Workers' Claims. While National contends that KRS 342.670(5)(e) deprived Kentucky of jurisdiction, KRS 342.395(1), not KRS 342.670(5)(e), is the statute that must be utilized to accomplish the desires of National’s agreement with Crawley. Because there is nothing in the record to suggest National’s compliance with this statute, we conclude that the Board properly permitted Crawley to file a Kentucky claim.

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