May 20, 2010 Supreme Court Minutes

May 20,
2010 Supreme Court Minutes
(CLICK
HERE FOR ENTIRE MINUTES)

  • Decisions:  93-115
  • Total:  23
  • Published: 17
  • Disciplinary Cases (published): 10
  • Rehearing motions:  3 denied none granted
  • Discretionary Review Motions:  4 of 29  granted
  • Running Tally for 2010.
    • PUB/NPO Ratio: 
      • Jan 2010 14 of 24 published
      • Feb 2010 none
      • Mar 2010 24 of 47 published
      • Apr 14 of 21 published
      • May 17 or 23 published
      • Running tally 69 of 115  published
    • Motions for rehearing –
      • Jan 2010 2 of 9 grants
      • Feb 2010 none
      • Mar 2010 0 of 6 granted
      • Apr 0 of 4
      • May 0 of 3 granted
      • Running tally 2 of 22 grants
    • MDR (distcretionary review) 
      • Jan  2010 11 of 55 granted
      • Feb 2010  None
      • Mar 2010 8 of 56 granted
      • Apr 2010 4 of 29 granted
      • May 2010 4 of 29 granted
      • Running tally 27 of 169 grants
    • Reversals or otherwise not affirmed in entirety (including
      vacated): 
      • Jan 2010
      • Published: 12 of 14
      • NonPublished: 3 of 10
      • Combined: 15 of 24 decisions were reversed in whole or in part
      • Feb 2010 None
      • Mar 2010
        • Published: 11 of 14
        • Nonpublished 3 of 7
        • Combined:  29 of 54
      • Apr 2010
      • May 2010
        • Published 9 of 17 reversed, etc.
        • NPO: 2 of 6 reversed etc.
  • COA decisions ordered not published: 3
    • Moore v. Com. / Jefferson
    • Trent v. Martin / Perry
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Link to full text published decisions with Questions Presented as
noted on the SCOKY minutes are as follows:

93 FELA, Toxic exposure
CSX TRANSPORTATION, INC. V. TROY MOODY
2007-SC-000548-DG JEFFERSON
OPINION OF THE COURT – TO BE PUBLISHED
AFFIRMING
Questions Presented:
Personal Injury. Exposure to Toxic Substances. Evidence. Instructions. Issues involve the propriety of (1) admission of a study of similar injuries experienced by other workers exposed to the same substance and (2) refusal to give various substantive FELA Instructions. Additional issues raised on cross-motion involve the timeliness of the appeal and the sufficiency of the evidence to support the award for future medical expenses.
ALL SITTING. ALL CONCUR.

94. CRIMINAL DEFENSE. INSANITY
WILLIAM R. STAR V. COMMONWEALTH OF KENTUCKY
2008-SC-000203-MR JOHNSON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE CUNNINGHAM –
AFFIRMING
Questions Presented:
While defendant suffered from a serious mental disease, it was not clearly unreasonable for the jury to find against the defendant on the issue of insanity. Constitutionality of “guilty but mentally ill” verdict upheld. Exclusion of evidence concerning pending criminal charges against a witness was error, but was harmless beyond a reasonable doubt: Physical layout of the courtroom produced a Confrontation Clause violation which was harmless herein; trial judges are courting with danger by tolerating any kind of courtroom arrangement which impedes eye-to-eye contact between the defendant and witnesses.
ALL SITTING. ALL CONCUR.

95. CRIMINAL
RAYMOND HARRIS V. COMMONWEALTH OF KENTUCKY
2008-SC-000363-MR BELL
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING
ALL SITTING. ALL CONCUR.
Questions Presented:
Murder, Complicity to Second-Degree Arson, and two counts of Complicity to Tampering with Physical Evidence – Life sentence without the possibility of parole for twenty-five years; Concurrent sentences of ten, five and five years for the arson and tampering offenses. Jury selection issues affirmed. Evidence of intoxication was insufficient to justify an instruction on that defense or on second-degree manslaughter. Trial court did not err in considering accomplice testimony in denying defendant’s motions for directed verdict.

96. CRIMINAL. MURDER.
JAMES H. BARNETT V. COMMONWEALTH OF KENTUCKY
2008-SC-000615-MR MONTGOMERY
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCHRODER –
AFFIRMING
ALL
SITTING. ALL CONCUR.
Questions Presented:
Wanton murder and theft – Life imprisonment without the possibility of parole for 20 years (concurrent with 3 year sentence for theft). Under the criminal rules, jurors must be permitted to use their notes during deliberations. Trial court did not abuse its discretion in refusing to grant funds for additional experts or in finding defendant competent to stand trial.

97. FELA. INSTRUCTIONS. PROXIMATE CAUSE.
CSX TRANSPORTATION, INC. V. JOHN X. BEGLEY
2008-SC-000643-DG PERRY
TO BE PUBLISHED
OPINION OF THE COURT – AFFIRMING
ALL SITTING. ALL CONCUR.
Questions Presented:
Federal Employers' Liability Act. Jury Instructions. Issues include whether defendant employer in FELA action was entitled to have jury instructed on proximate cause; foreseeability; non-taxability of damage award; and discounting award for future pain and suffering to present value.

OPINION:  This appeal concerns an action filed by John X .Begley under the Federal Employers Liability Act (FELA)(45 U .S.C.§§ 51-60)  Begley claimed that he developed osteoarthritis in his knees and hips due to his work for CSX Transportation, Inc.a s a brakeman/conductor . The Court of Appeals affirmed a Perry Circuit Court judgment that awarded Begley damages following a favorable jury verdict. We granted CSX's motion for discretionary review to consider whether the Court of Appeals erred by affirming the trial court's refusal to give tendered instructions concerning proximate cause, foreseeability of harm, non-taxability of damages, and reduction of damages to present value.   Having considered the evidence and the parties' arguments, we conclude that the trial court erred in some respects but committed no error that compels reversal.

98. CRIMINAL. DRUGS.
HARRY FINN, JR. V. COMMONWEALTH OF KENTUCKY
2008-SC-000749-DG LOGAN
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE MINTON –
AFFIRMING
SCOTT, J., NOT SITTING.
Questions Presented:
Criminal Law. Possession of Cocaine. Possession of Drug Paraphernalia. The issue is whether an amount of cocaine too small to be seen by the naked eye, detected on paraphernalia, is insufficient to support a conviction for possession of "any quantity" of cocaine pursuant to KRS 218A.1415(1).

99. CRIMINAL.
CARYN RENEE ROACH V. COMMONWEALTH OF KENTUCKY
2009-SC-000058-MR DAVIESS
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE MINTON –
AFFIRMING
NOBLE AND SCHRODER, JJ.,
CONCUR IN RESULT ONLY.
Questions Presented:
Adult exploitation, three counts of Second-Degree Criminal Possession of a Forged Instrument and Second Degree Persistent Felony Offender – 20 years. Requirements for a conviction of adult exploitation under KRS 209.990(5) allow for finding adult exploitation if the adult victim suffers from either mental or physical limitations preventing that adult from managing her own affairs. Other issues addressed include authenticity of signatures, inadvertent presentation of hearsay evidence from deceased victim and alleged bolstering.

100. WRONGFUL DEATH CLAIM. BANKRUPTCY. DISCHARGE.
SUNBEAM CORPORATION V. HONORABLE RONNIE C. DORTCH, JUDGE, HANCOCK CIRCUIT COURT AND SHERRY J. MCGLENON AND  TERRY PARKER, CO-EXECUTORS OF THE ESTATE OF

LEON J. FISCHER

2009-SC-000501-MR HANCOCK
TO BE PUBLISHED
OPINION OF THE COURT BY
JUSTICE ABRAMSON –
AFFIRMING
ALL SITTING. ALL CONCUR.
Questions Presented:
Trial court has jurisdiction to consider whether executor’s wrongful death claim has been discharged in bankruptcy.

SNIPPET: 
Sunbeam Corporation appeals from a 2009 Order of the Court of Appeals denying its petition for a writ to compel its dismissal from a wrongful death action.  Agreeing with the Court of Appeals that Sunbeam has failed to establish its entitlement to extraordinary relief, we affirm.

* * *

In sum, although for reasons slightly different than those relied upon by the Court of Appeals, we agree with that Court that the trial court has jurisdiction to consider the dischargeability of the executors' claim against Sunbeam and that Sunbeam has an adequate remedy by appeal should it desire review of the trial court's rulings on that question. Accordingly, we affirm the July 9, 2009 Order of the Court of Appeals denying Sunbeam's petition for a writ.

101.  CIVIL PROCEDURE. APPEALS.
DONALD E. JAMES V. THOMAS L. JAMES
2008-SC-000163-DG TAYLOR
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCOTT – REVERSING
MINTON, C.J., DISSENTS BY SEPARATE OPINION.
Questions Presented:
Civil Procedure. Appeals. CR 60.02. CR 73.02(1)(d). Issues include whether relation forward doctrine applies to prematurely filed notice of appeal.

SNIPPET:

We granted discretionary review of an opinion and order of the Court of Appeals dismissing Appellant's appeal as untimely to again address the means by which a party may properly implement his or her right to appeal due to “excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of time for taking an appeal.” CR 73.02(1)(d); CR 60.02. Having reviewed the matter, we agree with the opinion of the Court of Appeals in part, but also disagree in part and thus vacate the order dismissing the appeal and reinstate it for consideration of the appeal.

We do so because we disagree with the opinion of the Court of Appeals that the filing of the notice of appeal under CR 73.02, under these circumstances, divested the trial court of its right to extend the time for appeal (not exceeding ten days from the expiration of the original time) as the trial court's right to do this is specifically recognized by CR 73.02(1)(d), not withstanding the premature filing of the notice of appeal. Once extended, the notice of appeal filed within the forty-day window recognized by CR 73.02(1)(d) was effective to acquire jurisdiction for the appeal.

We agree, however, with the opinion of the Court of Appeals that the CR 60.02 relief granted “in the alternative” would have been otherwise ineffective to establish jurisdiction in the Court of Appeals. No “notice of appeal” was properly filed thereafter, and the attempt by the trial court to establish such a filing by ordering the date of its filing changed to a date concurrent with the CR 60.02 order granting relief was invalid and, therefore, void. However, it was also invalid because the attempted CR 60.02 relief “in the alternative” was inconsistent with the original CR 73.02(1)(d) relief, as its effect would have been to invalidate it by changing the dates upon which the CR 73.02(1)(d) relief depended. Moreover, as such a “moving shell game” would unduly burden the appellate process, it constitutes an invalid usurpation of appellate powers.

102. UIM. COOTS NOTICE.
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY V.  JAMES O. YOUNG, ET AL.
2008-SC-000333-DG UNION
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE VENTERS – REVERSING
ALL SITTING. ALL CONCUR.
Questions Presented:
Automobile Insurance. Underinsured Motorist Coverage. Settlements. Notice. Subrogation. Issues include whether plaintiff insured's KRS 304.39-320 "Coots notice" to UIM carrier was insufficient to preserve UIM claim, where: notice overstated amount plaintiff was to receive from tortfeasor's liability insurer; notice was not sent by registered or certified mail; UIM carrier did not substitute payment of settlement amount within thirty days after notice; and plaintiff proceeded with settlement.

SNIPPET:

The sole issue in this case is whether an inaccurate Coots settlement notice relieved Appellant, Kentucky Farm Bureau Mutual Insurance Company from its obligation to pay underinsured motorists insurance (UIM) benefits to policyholders Appellees, James O. Young and Patricia Young. Farm Bureau argues that the Youngs' notice of their tentative settlement with the tortfeasor, Andrew Winger, failed to comply with the notice requirement of KRS 304.39-320(3) and Coots v. Allstate Insurance Company, 853 S.W.2d 895 (Ky.1993)  by providing an inaccurate settlement amount, and thus prevented it from protecting its subrogation rights against Winger. The Union Circuit Court issued summary judgment in favor of Farm Bureau, finding that the Youngs' notice failed to satisfy KRS 304.39-320(3) because of the inaccurate information regarding the final settlement.

The Court of Appeals reversed, reasoning that since the Youngs' notice stated that a “tentative settlement” had been reached with Winger, Farm Bureau had sufficient notice to preserve its subrogation rights, despite the incorrect information.

We now reverse the Court of Appeals, and reinstate summary judgment in favor of Farm Bureau because we find that the notice failed to comply with KRS 304.39-320.

103. FAMILY LAW. WAGE GARNISHMENT.
STEVEN LICHTENSTEIN V. ROBERTA J. BARBANEL
2008-SC-000661-DG JEFFERSON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCOTT – REVERSING
ALL SITTING. ALL CONCUR.
Questions Presented:
Family Law. Wage Garnishment. The issue is whether the trial court can issue an Income Withholding Order to enforce a judgment based on property division.

104. FAMILY LAW. TERMINATION OF PARENTAL RIGHTS.  GRANDPARENTS.
COMMONWEALTH OF KENTUCKY,  CABINET FOR HEALTH AND FAMILY SERVICES V.

L.J.P., ET AL.

2008-SC-000950-DGE KENTON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – REVERSING
ALL SITTING. ALL CONCUR.
Questions Presented:
Termination of Parental Rights. Intervention. Issues involve an attempt by paternal grandparents to intervene in an involuntary termination of parental rights action.

105.  CRIMINAL LAW.
COMMONWEALTH OF KENTUCKY V. WANDA COMBS
2009-SC-000143-DG BREATHITT
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE MINTON –
REVERSING
ALL SITTING. ALL CONCUR.
Questions Presented:
Criminal Law. Complicity. Variance. Can the jury convict a defendant as a principal where the indictment only charges the defendant with complicity?

106.
LUTHER WILBERT SEXTON V. COMMONWEALTH OF KENTUCKY
2008-SC-000731-DG PULASKI
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE CUNNINGHAM –
REVERSING AND REMANDING
ALL SITTING. ALL CONCUR.
Questions Presented:
Criminal Law. Tampering with Evidence. Sufficiency of Evidence. Prior Bad Acts. Issues include whether evidence-tampering conviction may stand where videotape evidence was allegedly exculpatory rather than inculpatory. Also at issue is the propriety of allowing into evidence prior sexual offense convictions under KRE 404(b).

107.
MEMBERS CHOICE CREDIT UNION, ET AL. V. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION
2008-SC-000877-DG FRANKLIN
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE –
REVERSING AND REMANDING
MINTON, C.J; ABRAMSON AND CUNNINGHAM, JJ., CONCUR IN RESULT ONLY.

Questions Presented:
Credit Unions. Statutory Construction. The issue is whether KRS 286.6-107(2) permits membership in a credit union predicated on where a person lives ("geographic field of membership.")

108. CRIMINAL. PROSECUTOR WORK PRODUCT. DISCOVERY.
MICHAEL J. O’CONNELL V. HON. FREDERIC J. COWAN
2009-SC-000596-MR JEFFERSON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCHRODER –
REVERSING AND REMANDING
ABRAMSON, J., NOT SITTING.
Questions Presented:
A heightened standard of compelling need must be met by a party seeking discovery of opinion work product of a prosecutor relative to a prior criminal prosecution. A trial court should evaluate discovery requests for a prosecutor’s work product by in camera review on a document-by-document basis and should consider the sensitivity of the documents, the safety and security of the victims, witnesses and jurors; and the motives of the person seeking discovery. Deposition on such work product is only permissible as a last resort.

109. JUVENILES.
BRANDI CHIPMAN V. COMMONWEALTH OF KENTUCKY
2008-SC-000895-DG KENTON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE –
REVERSING, VACATING AND REMANDING
VENTERS, J., DISSENTS BY SEPARATE OPINION IN WHICH SCHRODER, J., JOINS.
Questions Presented:
Juvenile Law. Sentencing. Indictments. This case presents two issues: (1) Must the trial court always sentence youthful offenders as adults where the district court automatically transferred the minor because of a "use of a gun" allegation; and (2) What role do the findings of the Grand Jury in the indictment or some other source determine the basis for transfer?

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