COA 2010 Minutes: March 19, 2010 (Nos. 271-301)

COA 2010 Minutes: March
19, 2010 (Nos. 271-301)

  • 31 decisions
  • 2 Published
  • 19 orders dismissing appeal
  • 2 orders denying petition for rehearing (1 Jeff.)
  • 0 orders denying motion for discretionary review (MDR)(1 Jeff.)
  • 1 orders denying petition for writ of prohibition (1 Jeff)
  • 0 order granting petition for writ of prohibition
  • 0 orders denying motion for belated appeal (1 Jeff)
  • Workload watch – judges writing the opinions – Presiding Judge
    • Acree 5
    • Buckingham 1
    • Caperton 3
    • Combs 0
    • Dixon 1
    • Henry 0
    • Keller 2
    • Knopf 1
    • Lambert 4
    • Moore 3
    • Nickell 2
    • Stumbo 0
    • Taylor 0
    • Thompson 2
    • Wine 5
    • Vanmeter 2

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

279
CRIMINAL LAW:
Baker v. Commonwealth
APPEAL FROM FAYETTE CIRCUIT COURT   HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 07-CR-00364
** ** ** ** ** BEFORE: ACREE, CAPERTON AND KELLER, JUDGES.

KELLER, JUDGE: Robert Baker (Baker) appeals his convictions of first-degree trafficking in a controlled substance and possession of drug paraphernalia, second or subsequent offense, and for being a persistent felony offender in the first degree. The sole issue raised by Baker is whether the trial court improperly permitted the Commonwealth to bolster the testimony of one of its witnesses. Having reviewed the record and the arguments of counsel, we affirm.

282
MVRA; SOL (USE OF VEHICLE, UNLOADING)
Rawlings v. Interlock Industries, Inc.
APPEAL FROM SHELBY CIRCUIT COURT   HONORABLE TOM MCDONALD, JUDGE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** ** BEFORE: CAPERTON AND DIXON, JUDGES; HENRY,1 SENIOR JUDGE.
CAPERTON, JUDGE: Appellant Charles Rawlings appeals the trial court’s grant of summary judgment to Appellees and Cross-Appellants (Interlock Industries, Inc. and Ohio Valley Aluminum Company, LLC [together “Interlock”] and Rosenman’s, Inc.), and Appellee Kentucky Flatbed Co. LLC (“Kentucky Flatbed”). In granting summary judgment to the Appellees, the trial court determined that Rawlings’s claims were barred by the statute of limitations found
in KRS 413.140(1) of one year for personal injury claims. This was the sole basis set forth by the trial court in its grant of summary judgment. To the contrary, Rawlings asserts that his claims fall within the purview of the Motor Vehicle Reparations Act (“MVRA”) contained in KRS 304.39 and the corresponding two- year statute of limitations of KRS 304.39-230. Thus, Rawlings argues his claims were timely filed. In contrast, the Appellees argue that the motion for summary judgment was properly granted as Rawlings’s claims were barred by the applicable statute of limitations. After a thorough review of the parties’ arguments, the record, and the applicable law, we agree with Rawlings that summary judgment was improper as his claims are properly brought under the MVRA. Thus, we reverse the grant of summary judgment and remand for further proceedings. * * * 

The facts that give rise to this appeal may be briefly summarized from the depositions in the record. Rawlings, a tractor-trailer driver who contracted with Kentucky Flatbed, picked up a load of bundled scrap aluminum from Rosenman’s and delivered the load to Interlock. These bundles were secured with straps. Upon delivery, Rawlings unhooked the straps and proceeded to roll up the straps in order to ready his tractor-trailer for return to the road. While he was rolling up the straps, the forklift driver for Interlock commenced unloading the aluminum bundles. According to Rawlings, he heard the sound of a forklift engine “rev,” and within seconds he heard the sound of crunching aluminum and was pinned by a falling bundle. * * *

Our analysis inexorably leads to the conclusion that Rawlings’s actions, while in proximity to his tractor-trailer and preparing it for continued use as a transport vehicle, 9 were encompassed in the term “use” of his vehicle and, thus, he was engaged in an activity covered by the MVRA. As Rawlings’s actions were within the coverage of the MVRA and not excluded under the unloading exception, a court action brought under the MVRA is controlled by the statute of limitations found in KRS 304.39-230. * * *

Lastly, Interlock argues that the trial court abused its discretion in ruling that Interlock had violated the court’s discovery deadline and thereby excluded its expert witness testimony. We find no error by the trial court in exercising its discretion concerning discovery deadlines. Accordingly, we affirm the trial court’s denial of Interlock’s expert witness testimony

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