Feb. 24, 2012 COA Minutes — Nos. 195-225 (31 decisions; 6 published)

Feb. 24, 2012 COA Minutes —                Nos. 195-225 (31 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

198. TORTS. STATUTE OF LIMITATIONS (COA HOLDS "DISCOVERY RULE" NOT TOLL SOL IN MVRA CLAIMS AND LOSS OF CONSORTIUM CLAIMS)
FROST (NANCY A.), ET AL.
VS.
DICKERSON (BRYAN D.)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000537-MR
TO BE PUBLISHED
BOONE

NICKELL, JUDGE: Nancy A. Frost and Glen F. Frost appeal from a Boone Circuit Court order dismissing Nancy’s action for damages and Glen’s action for loss of consortium in this personal injury case stemming from an automobile accident. At issue is whether the “discovery rule” tolls the limitations period for bringing a tort action under Kentucky’s Motor Vehicle Reparations Act (“MVRA”), KRS 304.39-230. We hold that it does not, and, therefore, we affirm.

In this case, the trial court ruled as a matter of law that under KRS 304.39-230(1), a party suffering a loss has two years from the date thereof or two years from the last BRB payment to bring suit. It concluded this action was barred because the Frosts were aware of Dickerson’s identity, and received the last BRB payment on November 13, 2007, yet failed to file suit until December 30, 2009. The court further held that the discovery rule had “not been applied to motor vehicle accident cases to extend the statute of limitations on the allegation that the extent of the injury and the causal connection of some of the injury were unknown.” Finally, the court held that Glen’s action for loss of consortium was barred because it was not covered by the MVRA, and was not brought within the one-year limitations period of KRS 413.140(a), which governs personal injuries.

The Frosts argue that the discovery rule should be applied to toll the

running of the limitations period since Nancy did not know until she received the letter from Dr. Pagani on September 16, 2009, that her severe symptoms were attributable to the accident. “Under the ‘discovery rule,’ a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” Wilson v. Paine, 288 S.W.3d 284, 286-87 (Ky. 2009) (citing Hazel v. General Motors Corp., 863 F.Supp. 435, 438 (W.D.Ky. 1994). The Frosts urge the Court to apply the distinction made in Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709 (Ky. 2000), a medical negligence case, between harm, defined as “the existence of loss or detriment in fact of any kind to a person resulting from any cause[,]” and injury, defined as “the invasion of any legally protected interest of another.” Wiseman at 712. The Frosts contend that although Nancy was aware that she had been harmed, she was not aware that she had been injured in the legal sense until she received medical confirmation of the causal link between the accident and her medical condition via the September 16, 2009, letter from Dr. Pagani.

The Frosts concede that the discovery rule has never been applied to a personal injury action under the MVRA, but argue that such an extension would be in keeping with the trend of opinions from the Supreme Court of Kentucky, which have extended the rule to medical malpractice cases, Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); injury from latent disease caused by exposure to asbestos, Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky. 1979); and legal malpractice cases, Conway v. Huff, 644 S.W.2d 333 (Ky. 1982). They further argue that extending the rule in this case would be equitable and would serve the MVRA’s purpose of reducing litigation by rewarding those claimants with latent injuries who wait to file suit until they have established a causal connection between an accident and their injuries.

Although the Frosts’ arguments are compelling, we decline to extend the discovery rule to tort actions under the MVRA because we have no statutory authority to do so. The statute of limitations set forth in KRS 304.39-230(6) makes no provision for the application of the discovery rule, unlike section (1), which expressly states that an action for reparation benefits “may be commenced not later than two (2) years after the injured person suffers the loss and either knows, or in the exercise of reasonable diligence should know, that the loss was caused by the accident[.]” Had the legislature intended the discovery rule to apply in the tort context, it could have included similar language in section (6).

Moreover, we are bound to follow the precedent established by our Supreme Court. As this Court noted in refusing to extend the discovery rule in the case of a student sexually assaulted by a church employee, “[t]he courts in this Commonwealth have been reluctant to extend the discovery rule and have applied it narrowly . . . . To extend that rule to cover the facts of this case would be beyond that allowed by Kentucky courts to this date.” Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 289 (Ky. App. 1998). As this Court further observed in the same opinion, “we will follow established precedent and not make new policy.” Id. at 289 (citing Louisville Trust Co., at 499 (“The Court of Appeals had no alternative but to decide the case as it did.”)).

As to Glen’s loss of consortium claim, it is also time-barred under the one-year limitations period of KRS 413.140(a) because it would have accrued simultaneously with Nancy’s claim. See Tomlinson, 459 S.W.2d at 168.

For the foregoing reasons, we affirm the trial court’s order dismissing the Frosts’ complaint and granting summary judgment to Dickerson.

ALL CONCUR.

199.  PROBATE. WILLS TRUSTS. NO CONTEST CLAUSE EXAMINED,ETC.
COMMONWEALTH BANK & TRUST COMPANY, ADMIN. WITH THE, ET AL.
VS.
YOUNG (MARGARET W.), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-000593-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Commonwealth Bank & Trust Company, Administrator With The Will Annexed of the Estate of William F. Steineker and the Steineker estate beneficiaries, C. Authur Steineker, Helen Jean Steineker, Alfred William Steineker, III, and Catherine Anita Wimbish (collectively referred to as Commonwealth), appeal a Jefferson Circuit Court order declaring that Margaret W. Young, William Welch, and Candace Welch (the children), did not violate a no-contest clause of a trust document executed by their mother, Virginia C. Steineker. The issues are: (1) whether the order is final and appealable; (2) whether Commonwealth has standing; and (3) whether the children violated the trust document’s no-contest clause and, therefore, forfeited their beneficial interest in the trusts. Because multiple parties are involved, it is helpful to establish their respective positions.

201.  CRIMINAL LAW
GEORGE PHILLIPS
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFRIMING IN PART AND VACATING IN PART
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000969-MR
TO BE PUBLISHED
BARREN

LAMBERT, JUDGE: After entering a conditional guilty plea, George Phillips appeals from the Barren Circuit Court’s denial of his motion to dismiss the charges pending against him for failure to comply with sex offender registration and persistent felony offender in the first degree. After careful review, we affirm the trial court’s order denying Phillips’ motion to dismiss the charges and vacate the trial court’s imposition of court costs and a fine.

213.  FAMILY LAW.  TERMINATING PARENTAL RIGHTS. ANDERS.
C. (A.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000504-ME
TO BE PUBLISHED
KENTON

ACREE, JUDGE: This is an appeal from the Kenton Family Court’s January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court’s judgment.

214
P. (J.)
VS.
B. (S. B.), ET AL.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2011-CA-000516-ME
TO BE PUBLISHED
PULASKI

COMBS, JUDGE: J.P. appeals an order of the Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support. After our review, we vacate and remand.

First, J.P. has demonstrated a real and substantial interest in the subject matter. Although S.B.B. characterized their relationship as “casual,” she testified at the hearing that they engaged in sexual intercourse one or two times per week for a number of years, including more than the one year preceding the birth of her child. Furthermore, she admitted that she did not use birth control during her encounters with J.P. Since she was also sexually active with her husband, either man could have fathered her child. J.P. presented other evidence as well, but S.B.B.’s admissions are sufficient to provide a reasonable basis of J.P.’s potential paternity.

S.B.B. seeks to distinguish this case from Bushelman because J.P. has not undergone DNA testing in order to determine paternity. (In Bushelman, the mother had consented to the DNA test.) J.P. has not had the opportunity but did ask the court to grant him that opportunity. In Bushelman, the Supreme Court encouraged the use of DNA testing to establish paternity:

We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past. . . . DNA testing now serves as an appropriate form of evidence, not to avoid the traditional presumption of paternity, but to rebut it.

Id. at 861. DNA testing is clearly appropriate in this case.
Pursuant to the more recent authority set forth in Bushelman, we vacate the

order of the Pulaski Circuit Court and remand for additional proceedings. ALL CONCUR.

225.  WORKERS COMPENSATION
HARDIN MEMORIAL HOSPITAL
VS.
HORNBACK (PATRICIA), ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001707-WC
TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: Hardin Memorial Hospital appeals from an opinion and order of the Workers’ Compensation Board affirming the ALJ’s award of permanent total disability benefits to Patricia Hornback and an enhanced benefit.

Pursuant to KRS 342.165(1). Hardin does not contest the award of permanent total disability but argues that the ALJ’s finding that Hornback’s injuries were caused by Hardin’s intentional failure to comply with safety laws was not supported by substantial evidence. After a review of the record, we are compelled to agree and reverse.

206.  TORTS.  DAMAGES (ZERO PAIN AND SUFFERING VERDICT) EVIDENCE.  SUDDEN EMERGENCY DOCTRINE AND CHALLENGE OF JUROR.
ADAMS (PAMELA), ET AL.
VS.
MILLER (RANDALL), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
KELLER (CONCURS IN RESULT ONLY) AND LAMBERT (CONCURS)
2010-CA-001884-MR
NOT TO BE PUBLISHED
CAMPBELL

CAPERTON, JUDGE: Pamela and Thomas Adams appeal from the denial of their motion for a new trial following a jury verdict which found Randall Miller liable for the motor vehicle accident at issue on November 12, 2007. Said verdict did not award the full amount of damages sought and did not award any damages for pain and suffering. The Adamses argue that the jury verdict is not supported by the evidence, that the jury was erroneously instructed on the doctrine of sudden emergency, and that a juror should have been excused for cause. After a thorough review of the record, the parties’ arguments, and the applicable law, we do not find reversible error and, accordingly, affirm the jury verdict in question.

After hearing the evidence, the jury found Miller at fault and awarded Adams $200.00 (of $220.50) in lost wages; $9,800.00 (of $16,305.60) for past medical expenses; and $0 for pain and suffering. Adams moved the trial court for a new trial under Kentucky Rules of Civil Procedure (CR) 59.01(d). The trial court denied the motion. In so doing, the trial court noted that the jury verdict was supported by the evidence since Adams told the officer at the scene of the accident that she was fine and declined ambulance service. The court noted that at the emergency room, Adams complained of pain in her neck and back and received medication. However, when she visited a family physician after the chiropractor visits, the record does not reflect neck pain but instead numbness and tingling in her arms. The evidence also showed that Adams had been treated for a sciatic nerve issue prior to the accident but had not received treatment for it since 2004.

On appeal, the parties present three arguments which, for the sake of clarity,3 we have concisely recharacterized as three issues, namely: (1) whether the jury’s award of zero dollars for pain and suffering and less than the amount sought at trial for lost wages and past medical expenses requires a new trial; (2) whether the court erred in giving the jury an instruction on the sudden emergency doctrine;

and (3) whether the court erred in not excusing for cause Juror #172. With this in mind we now turn to our applicable jurisprudence.

At the outset we note that our review of a trial court’s ruling on a motion for a new trial under CR 59.01 is limited to whether the denial of the motion was clearly erroneous. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001).

In Miller the Kentucky Supreme Court reiterated that “if the jury's verdict of zero damages for pain and suffering is supported by evidence, the trial court was not clearly erroneous in denying Miller's motion for a new trial.” Id. Moreover, “a CR 59.01 ruling [is described] as ‘a discretionary function assigned to the trial judge who has heard the witnesses firsthand and observed and viewed their demeanor and who has observed the jury throughout the trial.’” Id. quoting Davis v. Graviss, Ky., 672 S.W.2d 928 (1984)(Davis was overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., Ky., 83 S.W.3d 483, 493–95 (2002). Sand Hill was later vacated by Ford Motor Co. v. Estate of Smith, 538 U.S. 1028, 123 S. Ct. 2072, 155 L. Ed. 2d 1056 (2003)). Accordingly, we now review the issues presented by the parties in light of this standard.

First, we must address whether the jury’s award of zero dollars for pain and suffering and less than the amount sought at trial for lost wages and past medical expenses requires a new trial. As noted in Miller, supra, “Whether the award represents ‘excessive or inadequate damages appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court,’ CR 59.01(d), is a question dependent on the nature of the underlying evidence.” Id. at 602 (internal citation omitted). Moreover, the fixing and assessment of damages is exclusively a matter for the jury. DeBuyser v. Walden, 255 S.W.2d 616 (Ky. 1953). Determining whether a jury's award of damages meets this standard is a discretionary function assigned to the trial judge, who heard the witnesses firsthand, viewed their demeanor, and observed the jury throughout the trial. Miller at 601.

An award of zero dollars for pain and suffering is not automatically inadequate as a matter of law merely because it was accompanied by awards for medical expenses and lost wages. Miller at 602. Instead, the trial court must assess whether the award was inadequate, which requires evaluation of the evidence submitted at trial. Id. We must also bear in mind that a jury is not required to believe a plaintiff or her doctors. Bledsaw v. Dennis, 197 S.W.3d 115, 118 (Ky. App. 2006).

In the case sub judice, the trial court undertook an assessment of the evidence presented by both parties and concluded that there was countervailing evidence concerning Adams’s pain and whether it was attributable to the car accident given the chiropractic treatments, the timing of her physician visits, her past medical history, and the length of time between physician visits. Thus, the trial court determined that the jury’s verdict of zero dollars for pain and suffering was supported by the evidence. We agree with the trial court that in light of Miller, supra, the jury verdict was supported by the evidence and does not appear to have been rendered under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Accordingly, the award of zero dollars was not inadequate and the denial of the motion for a new trial was not clearly erroneous.

Similarly, we agree with the trial court that the jury was not required to award the full amount of damages sought for past medical expenses or lost wages. The jury instructions stated:

If you find for the Plaintiff, what sums of money do you find from the evidence will fairly and reasonably compensate the Plaintiff, Pamela Adams, for such of the following items of damage as she may have sustained as a direct result of the accident?

(c) Necessary and reasonable expenses for hospital and medical services she incurred in the past, not to exceed $16,305.60?
(d) Necessary and reasonable expenses for hospital and medical services she is reasonably certain to incur in the future, not to exceed $50,000?

(e) Loss of wages and income, not to exceed $220.20?
By the terms of the instructions, the jury was to assess the evidence presented and compensate Adams fairly and reasonably, not to exceed the stated full amount of damages sought. As the trial court noted, the jury could have considered the fact that Adams did not see another physician after the week of her accident until seven months later. Thus, the jury could have determined that some of the medical treatment expenses were not related to the accident and correspondingly awarded less than the full amount sought for past medical expenses and zero for future medical expenses. Likewise, the jury could have considered testimony concerning the number of hours worked by Adams and her scheduled time off in awarding her less than the full amount sought for lost wages. Thus, we agree with the trial court that the jury verdict was supported by the evidence and does not appear to have been rendered under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Accordingly, the award for less than the full amount of the damages sought was not inadequate and the denial of the motion for a new trial was not clearly erroneous.

We now turn to the second issue presented, namely: whether or not the court erred in giving the jury an instruction on the sudden emergency doctrine.

The sudden emergency doctrine relates only to the question of whether a duty was breached and has no effect on the means by which damages are allocated. Thus, we believe any error to be harmless because the jury found Miller to be liable and it is only the amount of damages with which Adams takes issue. See Henson v. Klein, 319 S.W.3d 413, 422 (Ky. 2010), and City of Louisville v. Maresz, 835 S.W.2d 889, 894 (Ky.App. 1992). Accordingly, the trial court did not err in denying Adams’s motion for a new trial based on this alleged error.

We now address the third and last issue of whether the court erred in not excusing for cause Juror #172. Adams argues that Juror #172 should have been excused for cause since she clearly expressed her opinion and bias about awarding monetary damages for pain and suffering. At the bench conference, Juror #172 indicated that she thought she could be fair and, thus, Adams argues, was unsuccessfully rehabilitated. Adams had to use a peremptory challenge to excuse Juror #172 after the trial court overruled her challenge for cause. Adams argues that there were not enough peremptory challenges to strike all the jurors who had expressed opinions indicating inability to award damages for persons injured, like Adams, in an auto accident; however, Adams does not specify which additional jurors would have been challenged. Adams also argues that Miller used all of his peremptory challenges to remove all prospective jurors who had personal injury claims or upon prospective jurors who had a good result with a chiropractor, leaving Adams with a jury that felt there were too many lawsuits and that pain and suffering cannot be equated with an award of monetary damages. Thus, Adams argues that she was prejudiced by having to use a peremptory challenge on Juror #172.

We first note that the excusal of jurors for cause is a matter within the sound discretion of the trial court. Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004). “The test for determining whether a juror should be stricken for cause is ‘whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.’” Id. quoting Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994). The decision to exclude a juror for cause is based on the totality of the circumstances, not on a response to any one question. Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008). After a review of voir dire concerning Juror #172, we believe that the trial court did not abuse its discretion in not excusing Juror #172. In light of the totality of the circumstances, Juror #172 indicated that she could, after hearing all the evidence, conform her views to the requirements of the law and render a fair and impartial verdict.4 Accordingly, the trial court did not abuse its discretion in failing to excuse Juror #172 for cause.

In light of the aforementioned, we affirm the trial court’s denial of Adams’s motion for a new trial and the corresponding jury verdict.

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