COA 2010 Minutes May 21, 2010 (Nos.490-518)(PLUS TORT REPORT)

COA 2010 Minutes May 21, 2010 (Nos.490-518)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • 29 decisions
  • Published Decisions:  6

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

490. WORKERS COMPENSATION
CURTIS GREEN & CLAY GREEN, INC., ET AL. VS. CLARK (SHARON P), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2006-CA-000086-MR
TO BE PUBLISHED
FRANKLIN

This appeal concerns the intersect between workers’ compensation coverage and insurance regulation. A group of 3,800 employers banded together to create a workers’ compensation self-insurance group called AIK Comp, as permitted by 803 Kentucky Administrative Regulations (KAR) 25:026, Section 3.1    The regulation permits a group of employers to pool their workers’ compensation risk. Under the plan, the employers agree to become jointly and severally liable for any claims raised against the group. Due to alleged mismanagement by the AIK Comp trustees, the group began losing money. The group was having difficulty covering the actual and expected future workers’ compensation risks.

491. FAMILY LAW
YOUNG (MARK) VS. YOUNG (CHERYL)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
NICKELL (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2008-CA-000845-MR
TO BE PUBLISHED
KENTON

NICKELL, JUDGE: Mark Young has appealed from the Kenton Circuit Court’s classification and division of his firefighter’s pension plan as a marital asset. He claims his un-vested defined benefits plan was exempt from division in a dissolution action by operation of KRS 61.690. He also claims the trial court improperly included premarital contributions in its award and utilized an incorrect method of dividing the pension.

492. CRIMINAL LAW: 
QUIST (DAVID) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND HARRIS (CONCURS)(SENIOR STATUS JUDGE)
2008-CA-001031-MR
TO BE PUBLISHED
CAMPBELL

VANMETER, ACTING CHIEF JUDGE: David Quist appeals from the final judgment of the Campbell Circuit Court sentencing him to ten years’ imprisonment for attempted unlawful transaction with a minor in the first degree (attempted UTM 1st). For the following reasons, we affirm.

493. PROPERTY LAW.  CONDOMINIUM.
1400 WILLOW COUNCIL OF CO-OWNERS, INC. VS. BALLARD (PATRICIA W.)
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND TAYLOR (CONCURS)
2008-CA-001155-MR
2008-CA-001345-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Following a nine-day jury trial, 1400 Willow Council of Co- Owners, Inc. (Council), a condominium association in Louisville, Kentucky, appeals from a trial order and final judgment entered by the Jefferson Circuit Court on November 5, 2007, and an order entered on May 12, 2008, denying its motion for a judgment notwithstanding the verdict (JNOV). Upon reviewing the record, the briefs and the law, we reverse and remand for a new trial.

496. RESTITUTION. CRIMINAL.
SWINFORD TRUCKING CO., INC. VS. PADUCAH BANK AND TRUST CO.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2008-CA-001748-MR
TO BE PUBLISHED
MCCRACKEN

THOMPSON, JUDGE: Swinford Trucking Co., Inc., appeals from an order dismissing its complaint against Paducah Bank and Trust Co., on the basis that Swinford had been fully compensated by the satisfaction of a criminal restitution order. Because we conclude that the circuit court erred as a matter of law, we reverse and remand.

500.  DAMAGES. PROPERTY.
MOUNTAIN WATER DISTRICT VS. SMITH (IRVIN), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND WHITE (SENIOR STATUS JUDGE) (CONCURS)
2008-CA-002369-MR
TO BE PUBLISHED
PIKE

VANMETER, ACTING CHIEF JUDGE: Mountain Water District appeals from a judgment entered by the Pike Circuit Court after a jury rendered a verdict in favor of Irvin and Hazel Smith regarding a dispute over the cause and extent of property damage suffered by the Smiths. For the reasons stated hereafter, we affirm.

TORT REPORT:
TORTS, INSURANCE, PROCEDURE DECISIONS, PLUS WORKERS COMP: 

490. WORKERS COMPENSATION
CURTIS GREEN
& CLAY GREEN, INC., ET AL. VS. CLARK (SHARON P), ET AL.
PUBLISHED

500.  DAMAGES. PROPERTY.
MOUNTAIN
WATER DISTRICT VS. SMITH (IRVIN), ET AL
. – PUBLISHED

509. PREMISES LIABILITY.
THE ESTATE OF DAVID AVANT, ET AL. VS. KENTUCKY UTILITIES COMPANY, ET AL
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND TAYLOR (CONCURS)
2009-CA-000548-MR
2009-CA-000784-MR
NOT TO BE PUBLISHED
BELL

MOORE, JUDGE: Dewayne Hatfield and Linda Hatfield, and the surviving son of David Avant and the estate of David Avant, appeal from a judgment of the Bell Circuit Court dismissing their claims against Kentucky Utilities (KU). KU cross-appeals, alleging alternate grounds for affirming summary judgment. We affirm the result of the circuit court. * * *

In the case before us, the undisputed evidence in the record demonstrates that each of the appellants recognized the condition of the downed utility pole and uninsulated power lines and further understood this condition to be hazardous prior to approaching it.

Both Dewayne and Linda testified that they recognized the condition of the lines and utility pole before they, as well as David, exited the car. Linda testified that she did not know if the wires were on or off, but was aware of the possibility that the power in the wires might still be on. She testified that she did not want the car to stop near the power lines, and instructed David, who was driving, to stop the car away from the power lines in part because she recognized the possibility that they might still be energized. The evidence of record demonstrates that, following Linda’s instruction, David did stop the car between fifteen- and twenty-five feet from the power lines. Thus, it cannot be disputed that David appreciated the dangerous situation created by the downed power lines. Any reasonable person would have recognized the obvious danger in approaching the lines. See Goetz v. Green River Rural Electric Cooperative Corp., 398 S.W.2d 712, 713 (Ky. App. 1966) (“The danger inherent in power lines and electric lines generally needs no elaboration.”).

Where the undisputed evidence demonstrates that a hazard was known and obvious to those it injured prior to the injury and could easily have been avoided, there is no duty to warn or even protect. And because the undisputed evidence of record clearly demonstrates that Dewayne, Linda and David recognized yet chose to approach this danger, the unfortunate circumstances of this case– however tragic– do not change this result. Because this issue is dispositive, there is no utility in reviewing the remaining issues presented by the parties.
For these reasons, the decision of the Bell Circuit Court is affirmed.

517. WORKERS COMPENSATION
GADDIS (DAVID) VS. LONE STAR TRANSPORTATION , ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2009-CA-001173-WC
NOT TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: David Gaddis appeals from an opinion of the Workers' Compensation Board (Board) denying his claim by finding that Kentucky did not have extraterritorial jurisdiction over his claim under KRS 342.670. For the reasons stated herein, we affirm.

* * *

Gaddis applied for workers’ compensation benefits in Kentucky, alleging permanent head, back, and shoulder injuries from his fall. On August 7, 2008, Lone Star filed a notice of claim denial contending, inter alia, that Kentucky did not have jurisdiction to adjudicate Gaddis’s claim. After an evidentiary hearing, an administrative law judge found that Kentucky did not have extraterritorial jurisdiction over Gaddis’s claim because employment was principally localized in Texas. The Board affirmed, and this appeal followed.
1 Apparently, according to Gaddis’s testimony, he was offered workers’ compensation benefits after his injury but rejected the offer for fear of losing his job. Gaddis contends that the Board should have found that his employment was “principally localized” in Kentucky and, thus, was covered under KRS 342.670(1)(a). We disagree.

Accordingly, under our statutory scheme, Kentucky has extraterritorial workers’ compensation jurisdiction when, at the time of injury, a person’s employment is “principally localized” in Kentucky or his employment contract was made in Kentucky in employment not principally localized in any state. KRS 342.670(1)(a) and (b). Under KRS 342.670(4)(d), when deciding if employment is “principally localized” within a state, an ALJ must determine whether a person’s employer has a place of business in a state and if the employee works at or from that place. Haney v. Butler, 990 S.W.2d 611, 616 (Ky. 1999). If both conditions are answered affirmatively, the employee’s employment is deemed “principally located” in the subject state and the analysis ends. Id.

518. WORKERS COMPENSATION
ROBINSON (ROBERT) VS. GATEWOOD (DAVID), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
DIXON (CONCURS) AND KNOPF (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-002328-WC
NOT TO PUBLISHED
WORKERS' COMP

KELLER, JUDGE: Robert Robinson (Robinson) appeals from the opinion of the Workers’ Compensation Board (the Board) affirming the opinion and order of the Administrative Law Judge (ALJ). On appeal, Robinson argues that the ALJ erred when he found that Robinson was not David Gatewood’s (Gatewood) employee. Robinson also argues that the Board erred when it held that Robinson’s failure to file a petition for reconsideration foreclosed it from addressing the substance of Robinson’s appeal. For the following reasons, we affirm.

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