June 22, 2012 COA Minutes — Nos. 525-544 (20 decisions; 4 To Be Published)

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PUBLISHED DECISIONS OF COA:

528.  TORTS. AUTOMOBILE COLLISION. BIFURCATION.
CALHOUN (MARY B.), ET AL.
VS.
PROVENCE (CHARLES E.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-001282-MR
2010-CA-001348-MR
TO BE PUBLISHED
LAUREL

STUMBO, JUDGE: Mary C. Calhoun (“Mrs. Calhoun”) and Leslie D. Calhoun (“Mr. Calhoun”) appeal from a Judgment of the Laurel Circuit Court reflecting a jury verdict in favor of Mrs. Calhoun in her action to recover damages arising from an automobile accident. She argues that the trial court erred in bifurcating the trial, failing to grant a directed verdict, failing to grant a new trial on the issue of causation, and prohibiting the introduction of the at-fault driver’s criminal charges. Cross-appellant Legend Motors, d/b/a Legend Suzuki, argues that the court erred in failing to conclude that it did not own the vehicle operated by the at-fault driver, and that the purchaser’s insurer provided primary insurance coverage as a matter of law. We find no error, and accordingly affirm the Judgment on appeal.

The first phase resulted in a directed verdict in favor of the Calhouns against Provence on the issue of liability and an order overruling the Calhouns’ motion for a directed verdict on the issue of whether the accident caused Mrs. Calhoun’s injuries. The jury returned a verdict against Mrs. Calhoun on the issue of comparative negligence and awarded damages as follows: 1) past medical expenses: $1,289.00; 2) past pain and suffering: $600.00; 3) future pain and suffering: none; 4) lost wages: $1,800.00; and 5) vehicle damage: $3,200.00. The jury denied Mr. Calhoun’s claim for loss of consortium and returned a verdict in favor of Provence on Mrs. Calhoun’s claim for punitive damages.

At the close of phase 2, the trial court directed a verdict in favor of Legend Suzuki and Yaden’s Auto Sales on the Calhouns’ claim of negligent entrustment. It denied the motion of Kentucky Auto Exchange for a directed verdict. The matter went before the jury, which returned a verdict in favor of Mrs. Calhoun and against Kentucky Auto Exchange on the issue of negligent entrustment. The jury apportioned liability as follows: 1) Charles E. Provence, II: 48%; 2) Mrs. Calhoun: 10%; and 3) Kentucky Auto Exchange: 42%.

A Judgment was rendered which reflected the verdicts, with credit given for basic reparations benefits payable pursuant to KRS 304.39-060(2)(a). The Calhouns’ motions for a Judgment Notwithstanding the Verdict and New Trial were overruled, and this appeal followed.

530.  CRIMINAL LAW
LEMONS (BRIAN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001942-MR
TO BE PUBLISHED
CAMPBELL

LAMBERT, SENIOR JUDGE: In 2006, the General Assembly enacted KRS 503.085 and thereby dramatically changed the practice of criminal law in Kentucky. For the first time ever in this Commonwealth, trial courts are now required to determine whether one charged with assault or homicide may assert immunity for the crime based on a justification defense such as self-protection or defense of others. Trial courts have struggled to apply this statute because it requires the Commonwealth to establish, prior to trial, evidence which would negate the defendant’s claim of self-defense. The current case demonstrates the inherent difficulty created by this standard.

Although Lemons’s behavior and statements after the fight are suspicious, we cannot find that they are sufficient to meet the Commonwealth’s burden of showing probable cause. If the other circumstantial and physical evidence was more definitive, we would agree with the trial court that this evidence would reasonably cast doubt on Lemons’s credibility. But as the evidence of record stands, the contradictory and inconsistent statements which Lemons made shortly after the fight are the only significant grounds for questioning his credibility. Since the burden of proof was on the Commonwealth, we conclude that the Commonwealth failed to present sufficient evidence to establish probable cause to believe that Lemons’s use of deadly force was unlawful. Consequently, the trial court erred by denying the motion to dismiss the indictment pursuant to KRS 503.085.

Accordingly, the judgment of conviction by the Campbell Circuit Court is reversed and this matter is remanded with directions to dismiss the indictment pursuant to KRS 503.085.

535. CRIMINAL LAW.  DUI. DOUBLE JEOPARDY.
COZZOLINO (THOMAS GEORGE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000656-DG
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Thomas Cozzolino appeals from an order of the Jefferson Circuit Court reversing a directed verdict of the Jefferson District Court acquitting him of DUI. He argues that the Commonwealth cannot appeal from a directed verdict of acquittal under the Double Jeopardy Clause of the United States and Kentucky Constitutions. U.S. CONST. amend. V; KY Const. § 13; KY Const. § 115. We agree and vacate the order of the Jefferson Circuit Court.

542.   CONDEMNATION
MILAM (STEVEN B.), ET AL.
VS.
VIKING ENERGY HOLDINGS, LLC
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2011-CA-001060-MR
TO BE PUBLISHED
WARREN

LAMBERT, JUDGE: In accordance with Kentucky Revised Statutes (KRS) 416.620(2), Steven B. Milam and Amy L. Milam (the Milams) have appealed from the May 12, 2011, findings of fact, conclusions of law, and interlocutory judgment of the Warren Circuit Court relative to the condemnation by Viking Energy Holdings, LLC (Viking) of a pipeline easement across their property. After thoroughly reviewing the record and the parties’ arguments in their brief, we hold that the circuit court did not commit any error in its interlocutory ruling; hence, we affirm.
543.  FAMILY LAW.  GRANDPARENT VISITATION.
MILLER (JANET)
VS.
NORRIS (ROXANNE), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001285-ME
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Janet Miller appeals from Findings of Fact, Conclusions of Law and Order Granting Summary Judgment and Dismissing Action of the Jefferson Circuit Court, Family Division. She contends that the trial court erred in dismissing her action seeking grandparent visitation. We find no error, and accordingly affirm the Order on appeal.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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PUBLISHED:

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NOT PUBLISHED:

531.  DAMAGES.  ZERO PAIN AND SUFFERING IN AUTO ACCIDENT (MILLER V. SWIFT ISSUE)
TURNER (VICTORIA)
VS.
STONE (AMBER), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000177-MR
NOT TO BE PUBLISHED
FAYETTE

CAPERTON, JUDGE: Victoria Turner appeals from the January 13, 2011, judgment of the Fayette Circuit Court which denied Turner’s motion for a new trial in her personal injury action against Amber Stone and Shelter Mutual Insurance Company (“Shelter Mutual”). Because we find no error with the trial court’s judgment, we affirm.

It is well established that “[t]he law in Kentucky … does not require a jury to award damages for pain and suffering in every case in which it awards medical expenses.” Miller v. Swift, 42 S.W.3d 599, 600 (Ky. 2001). It has further been held that a jury’s failure to award pain and suffering, when preexisting conditions may have been aggravated by the accident at issue, did not warrant a new trial. Id. Our focus, in a case of this nature, is on the relevance of the underlying evidence as it relates to the jury’s failure to award for pain and suffering, and not on the actual award itself. See Dennis v. Fulkerson, 343 S.W.3d 633, 635 (Ky.App. 2011).

Sufficient probative evidence was presented which directly challenged Turner’s claims that she had undergone additional pain and suffering as a result of the automobile collision with Stone. Evidence suggested that Turner failed to indicate a knee injury at the time of the accident, that her knee injury may have been aggravated by other circumstances, and that she may have exaggerated the severity of the automobile accident. Accordingly, we cannot hold that the trial court exhibited clear error by denying Turner a new trial.

For the foregoing reasons, the trial court’s January 13, 2011, order is affirmed.

 

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