Janurary 21, 2010 Supreme Court Minutes

Janurary 21, 2010 Supreme Court Minutes (CLICK HERE FOR ENTIRE MINUTES)

  • Decisions: 1-24
  • Total:  24 
  • Published: 14
  • Displinary Cases (published): 7 (however the 8th was not published re a reinstatement to practice law and a 9th dealt with a fine for failure to comply with CLE)
  • Rehearing motions:  2 of 9  motions for rehearing Granted
  • Discretionary Review Motions:  Motions granted: 11  Denied: 45  (11/55)
  • Running Tally for 2010
    • PUB/NPO Ratio:  14 of 24 published
    • Motions for rehearing – 2 of 9 grants
    • MDR (distcretionary review)  11 of 55 granted
    • Reversals or otherwise not affirmed in entirety: 
      • Published: 12 of 14
      • NonPublished: 3 of 10
      • Combined: 15 of 24 decisions were reversed in whole or in part
  • COA decisions ordered not published: 2
    • Finance and Administration Cabinet v. Rohm and Haas 2009-SC0002142-D Franklin County
    • Commonwealth v. Richard Fuston, 2009-SC-000590-D, Whitley
  • Motions to Transfer: Grants -1;  Denials 2
  • Other
    • Corrections: 
      • Hunt v. Com.
      • Bowling v . Ky. Dept. of Corrections
      • Brown v. Com.
      • Com. Ex Rel Conway vs. Ladonna Thomas, Dept. of Corrections
    • MDR grants withdrawn as improvidently grants
      • Likins v. Kinser, Oldham County
    • Remand to COA for reconsideration: Bronk v. Com
    • Denied motion to vacate: Starlight Stables v. Triton Farms
  • Click here for full text of minutes for this month
  • Click here for table full for text of minutes of other months

Link to full text published decisions with Questions Presented as noted on the SCOKY minutes are as follows:

1.CRIMINAL – GUILTY PLEA

DARRYL GORDON GRIGSBY V.COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
ALL SITTING. ALL CONCUR
2009-SC-000171-MR JEFFERSON
Questions Presented:
Guilty Plea. Waiver of the Right to Appeal. Boykin challenge-knowing and voluntary nature of the plea.

Appellant, Darryl Grigsby, entered an Alford plea to murder, two counts of tampering with physical evidence, and third-degree arson. The trial court sentenced Appellant, in accordance with the Commonwealth's recommendation, to life in prison without the possibility of parole for twenty years. On appeal, Appellant argues that he was not properly informed ofhis rights when he pleaded guilty, and thus his plea must be vacated. For the reasons set forth below, his conviction and sentence are affirmed .

2 – CRIMINAL – DEATH PENALTY
RALPH BAZE V. LADONNA THOMPSON, COMMISSIONER, DEPARTMENT OF CORRECTIONS
2009-SC-000188-MR FRANKLIN TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE CUNNINGHAM – AFFIRMING
ALL SITTING. ALL CONCUR.
Questions Presented:
Death penalty. Preparation of petition for clemency.

Appellant, Ralph Baze, appeals an order of the Franklin Circuit Court denying hispetition for declaratory judgment.  Baze, a deathrow inmate, was convicted of the double murder of two police officers. The conviction and sentence were affirmed by this Court. Baze v.Commonwealth ,965 S .W.2d 817 (Ky. 1997). See also Baze v.Commonwealth ,23 S .W.3d 619 (Ky.2000);Baze v. Commonwealth,Nos.2005-SC-0415-MRand2005-SC-0420-MR,2006WL 1360188 (Ky.May 18, 2006);Baze v.Commonwealth, No.2005-SC-0889-MR, 2006 WL 1360281 (Ky.May 18,2006);Baze v.Commonwealth,276 S.W.3d 761 (Ky.2008) . In the present action, Baze argues that he has been denied due process of law by the Department of Corrections in the preparation of his petition for clemency . * * * hus, applying the minimal level of procedural due process required by Woodard,Baze has failed to show that he has not received the clemency procedures explicitly set forth by Kentucky law. He does not allege that he has been denied the right to file an application. As no Kentucky statute or constitutional provision creates a right to present a certain type of information in a clemency petition, the minimal protections afforded by the due process clause in this context simply do not encompass the type of relief Baze requests. For the foregoing reasons, the judgment of the Franklin Circuit Court is affirmed .

3 – BUDGET BILL
STEVE BESHEAR (IN HIS OFFICIAL CAPACITY AS THE GOVERNOR OF THE COMMONWEALTH OF KENTUCKY), ET AL. V. HAYDON BRIDGE COMPANY, INC., ET AL.
2007-SC-000058-TG FRANKLIN TO BE PUBLISHED
Questions Presented:
Budget Bill. Suspension or modification of statutes. Retroactive ratification of prior invalid budgetary acts of a Governor.
OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING IN PART AND REVERSING IN PART
MINTON, C.J., AND ABRAMSON, J., CONCUR IN RESULT ONLY.

We granted transfer of this appeal and cross-appeal from the Court
of Appeals, CR 74.02,to again address,as we did in part in Commonwealth ex rel.Armstrong v.Collins,709 S.W .2d 437 (Ky. 1986), the extent to which, in times of rising budget deficits, the Kentucky General Assembly may adopt a budget bill reducing, eliminatingand/or transferring certain appropriated funds -    effectively suspending, or temporarily modifying the effects of certain statutes or statutory schemes in view of the mandates and restriction of Sections 15 and 51 of the Kentucky Constitution. We also address whether, by such actions, the General Assembly may retroactively ratify prior invalid budgetary acts of a Governor . Other ancillary issues implicit in these questions will also be addressed .

4 – PROFESSIONAL NEGLIGECE, ASSIGNMENT OF CLAIMS AGAINST BROKERS
ASSOCIATED INSURANCE SERVICES VS. DANIEL GARCIA, M.D
Questions Presented:
Professional negligence claims against insurance agents or brokers are assignable; and such assignment, when coupled with a settlement agreement as to damages and a covenant not to execute, is not against public policy where reasonable..

OPINION OF THE COURT BY JUSTICE CUNNINGHAM AFFIRMING IN PART AND REVERSING IN PART
In this case, we are asked to consider two issues of first impression in Kentucky:whether professional negligence claims against an insurance agent and an insurance broker are assignable, and, ifso, whether such assignment, when coupled with a settlement agreement as to damages and a covenant not to execute, is illusory or void as against public policy.  The Star of Louisville ("the Star") is a pleasure craft operating on the Ohio River by the City of Louisville. In 1997, it sought marine insurance coverage through Associated Insurance Service, Inc.("Associated"), an insurance agency in Louisville . Given the specialized nature of the coverage, Associated contacted an insurance brokerage firm, AON Risk Services, Inc. of  Ohio ("ARS"). Thereafter, ARS provided a quote to Associated from an insurance company in Australia, HIH Casualty and General Insurance, Inc. ("HIH"). The Star ultimately purchased a policy from HIH in October 1997 . It renewed the HIH policy in 1998 and 1999.

Both ARS and Associated argue that the Court ofAppeals erred by invalidating the arbitration award, but upholding the validity of the assignment . Pursuant to the terms of the arbitration agreement, they point out the award cannot be severed without invalidating the entire agreement. As explained above, we have not invalidated the arbitration award;rather, we have remanded this case for further proceedings, which may include an assertion that the arbitration award was unreasonable . Should it be determined that the arbitration award is unreasonable, only then would it be appropriate to argue that the entire agreement has been voided.  For the foregoing reasons, the opinion of the Court of Appeals is affirmed in part and reversed in part. The summary judgment of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
Minton, C .J.;Scott and Venters, JJ.,concur. Noble, J .,concurs by separate opinion. Schroder, J.,concurs in part and dissents in part and would
affirm the Court ofAppeals. Abramson, J.,not sitting.

5 – INSURANCE, NO FAULT, PIP, UIM AND WORKERS COMPENSATION
JEWELL VS. KENTUCKY SCHOOL BOARD ASSOCIATION
Questions Presented:
Insurance. UIM Coverage. Basic Reparation Benefits. Subrogation. Double Recovery . Workers Compensation. Issues include the proper prioritization of claims against workers'  Compensation carrier, no-fault carrier, and UIM carrier.

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART
This case arises from a motor vehicle collision where the injured party, at work when the collision occurred, pursued her remedies against her under-insured motorist insurer. Among other issues, we address the question of whether an injured worker, as assignee of her workers' compensation carrier's subrogation rights, may enforce those rights agains their underinsured motorist insurance provider. Although prior decisions have addressed separate
elements of the issue, we find none that have application to the combination of factors present here .

We find no reason now to depart from that opinion.  In Samples,we suggested that in appropriate circumstances persons other than the tortfeasor himself may fall within the range of "the other person in whom legal liability for damages exists." Specifically, we mentioned "the tortfeasor's employer, his parents-(if he is minor and the -parent had signed for his-driver's license, his insurer (if permitted), or any one else who could be held liable because of the tortfeasor's negligence." Samples, 192 S .W.3d at 315. That language refers to persons or entities (or their liability insurer) that under traditional tort law may be vicariously liable for another's conduct.  The  UIM carrier's responsibility to its insured does not arise from any relationship with the tortfeasor;it arises because of a contractual relationship with the tort victim to provide insurance forwhat the tortfeasor has failed to insure. In providing Appellant's UIM  coverage, KSBA undertook to insure damages owed by the tortfeasor to Appellant in her own right. Itdid not insure the damages the tortfeasor may owe to her workers' compensation provider. The assignment of its subrogation
rights to Appellant did not expand the UIM carrier's contractual obligation or
expose it to liability that did not exist prior to the assignment. The rights she acquired by taking the assignment are no greater than the rights of her assignor. Because ithad no right to recover from the UIM carrier
, Appellant had no right to do so. The Court of Appeals opinion in this regard is affirmed.

Notwithstanding the fairness to be found in Appellant's position, we agree with the Court of Appeals that the rationale for the holding in Minton is guided exclusively by the language of the statute quoted above, and that by its terms the statute is limited to offsetting the recoupment due to the workers' compensation carrier.  We see no authority that would justify the extension of Minton allowing an offset against the UIM provider's credits for Appellant's attorney's fees and expenses.

Accordingly, we affirm the Court of Appeals' denial of a creditfor Appellant's attorney's fees and expenses .

KSBA's argument that Appellant cannot rely upon Slone and Henson, depends, in,this Court, as in the Court of Appeals, upon a finding of fact that – was never made by the trial court -whether Appellant followed the correct process to claim the full measure of BRB available to her.  CR 52.04 does not permit the trial court to be reversed for failure to make a finding on an essential fact unless a party has expressly requested such a finding. The Court
of Appeals erred in reversing the trial court's decisionon the BRB because of a disputed issue of fact,when the matter was never brought to the attention of the trialcourt. We therefore reverse the Court ofAppeals on that point and reinstate the decision of the trial court to deduct from the judgment the actual BRB payment of $333.45 rather than the full $20,000.00 of available BRB.

CONCLUSION For the forgoing reasons, we reverse the opinion of the Court of Appeals
insofar as it directs the trial court to deduct from the judgment the entire $20,000.00 of available BRB. Otherwise, we affirm the Courts of Appeals in remanding this case to the trial court for recalculation of damages consistent with this opinion .
All sitting. Minton, C .J.,Abramson, Cunningham, Noble and Schroder concur . Scott, J ., concurs in result only by separate opinion.

6 – FAMILY LAW, CHILD CUSTODY
MULLINS VS. PICKLESIMER
Questions Presented:
Child Custody. Issues include whether the biological mother waived her superior right of custody, thus permitting a joint custody award by having acknowledged her same sex partner as a parent of the child, co-parenting the child prior to separation of the couple and later allowing extensive timesharing and visitation with the child.

OPINION OF THE COURT BY JUSTICE SCHRODER AFFIRMING IN PART AND REVERSING IN PART
We are called upon to determine whether the trial court erred in awarding joint custody ofa child to the biological mother and her former same-ex partner.  We adjudge that the trial court properly granted CR60.02 relief regarding the parties' agreed judgment of custody on grounds that it was based on falsified evidence and fraud.  We further adjudge that the trial court properly found that Appellant had standing to seek custody ofthe child and that the natural mother waived her superior right to sole custody of the child in favor of a joint custody arrangement with Appellant. Hence, we affirm the Court of Appeals in part as to the parties' agreed judgment of custody, and reverse in part as to its finding ofno waiver and reinstate the judgment of the Garrard Circuit Court.

7. MEDICAL MALPRACTICE
BLANKENSHIP, M.D. VS. COLLIER
Questions Presented:
Medical malpractice. Trial court’s grant of summary judgment against a plaintiff who fails to identify and expert witness.

OPINION OF THE COURT BY JUSTICE ABRAMSON REVERSING
The central question in this medical malpractice case is whether and when a trialcourt may grant summary judgment against a plaintiff who has failed to identify any expert witnesses. Pursuant to Kentucky law, in most medical malpractice cases, a plaintiff is required to put forth expert medical testimony to establish the applicable standard of care, any breach that occurred and any resulting injury to the plaintiff. This case being a typical medical malpractice case, Horace Collier, the plaintiff, never disputed that an expert was necessary to prove that Dr .Robert Blankenship and Caritas Health Services were negligent in the diagnosis and treatment of his appendicitis . Despite his repeated representations to the trial court that he would be using expert testimony and,his request,for an extension for more time to locate and identify an expert, Collier still had failed to provide the names of any expert witnesses more than one year following the filing of the complaint . Because under Kentucky substantive law Collier would be unable to sustain his burden of proof without expert testimony, the trial court granted Dr .Blankenship's  and Caritas's motions for summary judgment.  After the Court of Appeals reversed the trial court's grant of summary judgment, this Court granted
discretionary review.

8. JUDGES, RETROACTIVE DISQUALIFICATION
PETZOLD VS. KESSLER HOMES, INC.

Questions Presented:
Retroactive disqualification of trial judge not required in this case. Remanded for consideration of other issues presented to but not addressed by the Court of Appeals.

OPINION OF THE COURT BY JUSTICE VENTERS REVERSING AND REMANDING
Appellants, Adolph and Marilyn Petzold, appeal from a decision of the Court of Appeals vacating a judgment of the Fayette Circuit Court against Appellee, Kessler Homes, Inc.(Kessler), on the grounds that the presiding Judge, Pamela Goodwine, was retroactively disqualified from presiding over the proceedings because the Petzolds are the parents of Judge Goodwine's campaign treasurer in her 2003 campaign run for the circuit court bench.It is undisputed that Judge Goodwine was unaware of the association during the
period she presided over the case.We granted discretionary review.

9. CRIMINAL, STANDARDS CONFLICT OF INTEREST
BEARD VS. COMMONWEALTH
Questions Presented:
Standard applicable to claims of conflict of interests between a criminal defendant and defense counsel. Appointed counsel had a sufficient conflict of interests that the trial court’s failure to appoint different counsel constituted reversible error.

OPINION OF THE COURT BY JUSTICE NOBLE REVERSING
Appellant, Charles Brent Beard, appeals the decision of the Court of Appeals affirming his conviction for drug trafficking. He raises only one assignment of error: that his appointed trial counsel had a sufficient conflict of interests that the trial court's failure to appoint different counsel constituted reversible error. This Court agrees that the trialcourt erred and therefore reverses .

10. CRIMINAL. SEARCH AND SEIZURE
KING VS. COMMONWEALTH

OPINION OF THE COURT BY JUSTICE SCHRODER REVERSING AND REMANDING
At issue in this case is whether exigent circumstances existed, which justified the warrantless entry of the apartment occupied by Appellant Hollis Deshaun King.  We hold that police were not in hot pursuit of a fleeing suspect,  and that, with regard to the imminent destruction of evidence, any exigency was police-created.  We also note that no "goodfaith" exception to the exclusionary rule applies in this case.  We therefore reverse the judgment of the Court of Appeals.

11.  TERMINATION OF PARENTAL RIGHTS
CABINET OF HEALTH & FAMILY VS. .T.N.H., MOTHER, AND P.N.Y, FATHER
Questions Presented:
Termination of Parental Rights. Issues involve attempted termination of parent
al rights of a minor mother also in CHFS custody .

OPINION OF THE COURT BY JUSTICE SCHRODER REVERSING
We granted discretionary review in this case wherein the Court of Appeals reversed the decision of the Jefferson Family Court terminating the parental rights of the mother, who was a minor and committed to the Cabinet, because the Cabinet did not present specific evidence of the likelihood that the mother not would develop the necessary skills to successfully parent the child when she reaches majority age. We adjudge that proof that the minor parent
will be unable to effectively parent the child when the parent reaches the age of majority is not required under KRS 625.090(2)(e)or(g).  Because the Cabinet presented sufficient evidence that it was unlikely that the mother'sconduct and ability to effectively parent the child would improve in the immediately foreseeable future, we reverse the decision of the Court ofAppeals and reinstate the judgment of the Jefferson Family Court terminating the mother's parental rights.

12.  CRIMINAL
WOODLEE VS. COMMONWEALTH
Questions Presented:
Criminal Law. Two counts of first-degree sexual abuse, second-degree persistent felony offender. Erroneous admission of evidence of prior conviction of sexual abuse, in violation of KRE 404(b).

OPINION OF THE COURT BY JUSTICE NOBLE REVERSING

A Laurel Circuit Court jury convicted Appellant, Gregory Woodlee, of two counts of first-degree sexual abuse and of being a second-degree persistent felony offender. On appeal, he argues that the trial court erroneously admitted evidence of his prior conviction of sexual abuse, in violation of KRE404(b). For the reasons set forth below, this Court agrees, and his convictions are reversed.

13.  CRIMINAL. SEARCH AND SEIZURE
COMMONWEALTH VS. PRIDE
Questions Presented:
Criminal Law. Search and Seizure. Issues include the consideration of allegedly comparable electrical usage records as part of the totality of the circumstances in a decision that probable cause was established for issuance of a search warrant.

OPINION OF THE COURT BY JUSTICE VENTERS REVERSING AND REMANDING
Appellant, Commonwealth of Kentucky, appeals from a Court of Appeals decision reversing a July 5, 2007 order of the Union Circuit Court which denied Appellee Leslie Pride's motion to suppress evidence obtained during a search pursuant to a warrant. The Court of Appeals held that the motion to suppress should have been granted because itfound there was no probable cause to suppor tthe warrant. We granted discretionary review to look at whether the Court of Appeals used the correct standard to review the existence of probable cause, whether the facts stated in the affidavit provided to the warrant-issuing judge established probable cause, and whether if the warrant was not supported by probable cause, the trialcourt properly denied the motion to suppress because the police acted in good faith.  We also address
Appellee's argument that the affidavit supporting the warrant set forth factual conclusions based upon flawed electrical usage statistics.  We reverse the Court of Appeals because it applied an incorrect standard of review for searches ,conducted pursuant to a warrant.

14. TRANSPORT OF INMATES
COMMONWEALTH VS. HON. WILLIAM ENGLE, JUDGE
Questions Presented:
Transport of inmates. KRS 441.510(2) requires the sheriff of the requesting county to transport inmates held in detention facilities in another county to court proceedings in the requesting county.

OPINION OF THE COURT BY JUSTICE VENTERS VACATING
Commonwealth of Kentucky, Department of Corrections (DOC),appeals from an order of the Court of Appeals denying its petition for a writ of prohibition seeking to prevent the enforcement ofan order entered by Perry Circuit Judge William Engle, III. The order directed the agency to transport DOC inmate George Hurt from the Shelby County    Detention Center to Perry County for two scheduled court appearances.The DOC contends tha KRS 441 .510(2) requires the sheriff of the requesting county to conduct such transports .

We conclude that KRS441.510(2) requires the sheriff of the requesting county to transport inmates held in detention facilities in another county to court proceedings in the requesting county, and vacate the order of the Court of Appeals insofar as it otherwise holds.

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