COA 2011 Minutes for April 15, 2011 — Nos. 387-407

COA 2011 Minutes for April  15, 2011 –   Nos. 387-407

  • Click on the above link for the 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 decisions this week

Published Decisions: 3 published

PUBLISHED DECISIONS (with link to full text at AOC):
394.  MEDICAL NEGLIGENCE, BIAS, 'MARY CARTER' AGREEMENT
GOODIN (C. DALE), ET AL. VS. WHITE (ALLISON B.), ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND STUMBO (CONCURS)
2009-CA-002261-MR
TO BE PUBLISHED
WOODFORD

SHAKE, SENIOR JUDGE: Dr. Dale Goodin and the Central Kentucky Medical Group, P.S.C. (collectively referred to as Goodin) appeal from a Woodford Circuit Court Judgment, entered on September 29, 2009, and an Order, entered on November 19, 2009, denying Goodin’s motion for a new trial. Goodin claims that he was denied a fair trial based upon what Goodin characterizes as a Mary Carter agreement between Allison White (White) and Bluegrass Family Health, Inc. (Bluegrass). After carefully reviewing the briefs, the record, and applicable law, we affirm the Circuit Court Judgment and Order.

On May 11, 2006, White filed suit in the Woodford Circuit Court against Goodin. White claimed that Goodin was negligent and deviated from the standard of care in his treatment of her condition. Goodin filed a third-party complaint against Bluegrass based upon his contractual relationship with the insurer2. Goodin claimed that Bluegrass wrongfully denied coverage for the CT scan. Goodin alleged that he was entitled to indemnity from Bluegrass for any judgment against him.
395.  CRIMINAL LAW.
COMMONWEALTH OF KENTUCKY VS. GARRISON (REESE)
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND ISAAC (CONCURS)
2010-CA-000042-MR
TO BE PUBLISHED
HARRISON
NICKELL, JUDGE: The Commonwealth of Kentucky has appealed from the Harrison Circuit Court’s December 8, 2009, order which granted Reese Garrison’s motion to suppress the evidence seized during his arrest and dismissed all charges levied against him. For the following reasons, we reverse and remand this matter for further proceedings.
402.  CIVIL. CONTEMPT. RE: ATTORNEY'S FAILURE TO COMPLY WITH COURT ORDER.
POINDEXTER (STEPHEN H.) VS. WEDDLE (JAMES G.), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000811-MR
TO BE PUBLISHED
ADAIR
DIXON, JUDGE: Stephen H. Poindexter, a licensed attorney, appeals from a judgment of the Adair Circuit Court holding him in contempt of court for failure to comply with a court order. We affirm.
404.  ATTORNEY FEES.  CONINGENCY FEE AGREEMENT.
WEINBERG (DAVID A.) VS. GHARAI (FARIBA)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND WINE (CONCURS)
2010-CA-001134-MR
TO BE PUBLISHED
FAYETTE
CAPERTON, JUDGE: The Appellant, David A. Weinberg, d/b/a David A. Weinberg, P.S.C., appeals from the May 18, 2010 opinion and order of the Fayette Circuit Court denying his request for attorney fees in connection with his representation of the Appellee, Dr. Fariba Gharai. Having reviewed the record, the arguments of the parties, and the applicable law, we affirm.
One-third (1/3) contingency fee of any and all monies recovered concerning the claims arising out of the above- specified employment. Any attorney’s fees recovered as a result of said claims shall constitute a credit against the contingency fee. However, should the recovery of attorney’s fees be less than the amount equal to one-third (1/3) of the recovery, Client shall be responsible for the difference. In the event of an appeal of a Judgment, either in favor of or against the client, the contingency fee set forth herein shall increase to forty percent (40%) of any recovery, subject, however, to the same terms and conditions set forth in the preceding paragraph.
Nonpublished Tort, Procedure, etc – AKA TORT REPORT

 
388. EQUITY. DAMAGES. UNJUST ENRICHMENT.
HUDSON (RAY)
VS.
LECHNER (MARK), ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND WINE (CONCURS)
2008-CA-001799-MR
NOT TO BE PUBLISHED
JEFFERSON
BEFORE: CAPERTON AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.

LAMBERT, SENIOR JUDGE: Ray Hudson appeals from the Jefferson Circuit Court’s summary judgment against him in favor of Appellees Mark Lechner, Chris Dischinger, and LDG Development, LLC upon Appellant’s claim for damages based on unjust enrichment. Upon our review, we hold that the trial court erred when it sua sponte entered summary judgment in favor of Appellees as to this allegation. Thus, we reverse and remand for further proceedings consistent with this opinion.

389.  TORTS. AUTO NEGLIGENCE – SUBSEQUENT MVA, FORESEEABILITY AND PROXIMATE CAUSE.
JOHNSON (LUTHER) VS. WILLIAMS (WENDLE L), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (CONCURS)
2009-CA-000319-MR
NOT TO BE PUBLISHED
FLOYD

NICKELL, JUDGE: Luther Johnson appeals from an order of the Floyd Circuit Court awarding summary judgment to Wendle Williams and Charter
Communications, Inc.1    After reviewing the briefs, the record and the law, we affirm.

Johnson filed a complaint alleging Williams was negligent in failing to secure the ladder to his truck and thereby caused Johnson’s damages. Williams
According to pleadings filed by Charter, its correct name is Interlink Communications Partners, LLC. , a correction partially reflected in the trial court’s order entered on January 30, 2009. We note that the trial court referred to the party as Interlink Communications Partners, LLP.
and Interlink moved for summary judgment arguing Johnson could not establish they owed him a duty or that their conduct caused Johnson’s accident. Johnson opposed the motion for summary judgment arguing Williams and Interlink owed a general duty to all drivers and they breached that duty when Williams stopped his truck in the westbound lane of KY 114 to retrieve the fallen ladder and thereby caused Johnson to rear-end the UPS truck.

To successfully allege negligence, Johnson must establish Williams and Interlink (1) owed him a duty of care; (2) which they breached; and (3) thereby proximately caused Johnson’s damages. Illinois Cent. R. R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967). Thus, to find Williams and Interlink potentially liable, they had to owe an affirmative duty to Johnson to warn him of the Impending danger caused by the earlier Lewis/Johnson collision. Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992).    The trial court found no such duty existed and we agree.

A “plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 343, 162 N.E. 99, 100 (1928). “What the plaintiff must show is ‘a wrong’ to herself, i.e., a violation of her own right, and not merely a wrong to some one (sic) else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to any one (sic).” Palsgraf, 248 N.Y. at 343-44, 162 N.E. at 100. Under the facts of Palsgraf, a man carrying a package rushed forward to board a train as it was leaving the station. Fearing the man would fall, a guard on the train reached out to help him, while a guard on the station platform pushed him from behind. During the jostling, the man’s package, unbeknownst to the guards containing fireworks, fell and exploded causing scales to fall some feet away and strike and injure Palsgraf. The court concluded the guards attempt to help the passenger steady himself on the train did not constitute negligence toward Palsgraf. As stated in the opinion, “before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining . . . .” Palsgraf, 248 N.Y. at 99, 162 N.E. at 342. Johnson has failed to identify any duty owed specifically to him by Williams and Interlink. The rule, as explained in Dixon v. Kentucky Utilities Co., 295 Ky. 32, 174 S.W.2d 19, 21-22 (1943) quoting Seith v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425, 427, 24 L.R.A., N.S., 978, 132 Am.St. Rep. 204, is:

[t]o constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury; but, when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent, and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. When the act of a third person intervenes, which is not a consequence of the first wrongful act or omission, and which could not have been foreseen by the exercise of reasonable diligence, and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and, if so, the connection is not broken; but if the act of a third person, which is the immediate cause of the injury, is such as in the exercise of reasonable diligence would not be anticipated, and the third person is not under the control of the one guilty of the first act or omission, the connection is broken, and the first act or omission is not the proximate cause of the injury.

Here, time and Johnson’s own inattentiveness intervened so as to make the award of summary judgment appropriate. See Slinkard v. Babb, 125 Ind.App. 76, 86 112 N.E.2d 876, 880 (1953).

For the foregoing reasons, the order of the Floyd Circuit Court, awarding summary judgment to Williams and Interlink is AFFIRMED.

 

 

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