May11, 2012 COA Minutes — Nos. 401-418 (18 decisions; 7 To Be Published

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PUBLISHED DECISIONS OF COA:

401.  CRIMINAL LAW.  FAILURE TO PAY CHILD SUPPORT.
HAMM (ROBERT)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000395-MR
TO BE PUBLISHED
BOYD

LAMBERT, JUDGE: Robert Hamm has appealed from the order of the Boyd Circuit Court revoking his pretrial diversion and imposing a forty-eight-month sentence. The Commonwealth concedes that the circuit court’s revocation was improper in light of the Supreme Court of Kentucky’s recent ruling in Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Because we agree with both Hamm and the Commonwealth, we reverse the circuit court’s ruling.

402.  CRIMINAL LAW
COMMONWEALTH OF KENTUCKY
VS.
GRIDER (ERIC)
OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS AS MOOT
MOORE (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001484-MR
TO BE PUBLISHED
FRANKLIN

MOORE, JUDGE: The Commonwealth of Kentucky appeals the order of the Franklin Circuit Court dismissing the indictment against Eric Grider. Grider, in turn, has filed a motion to dismiss this appeal. After a careful review of the record, we affirm the circuit court’s order because Grider had no choice in moving to dismiss the indictment due to the Commonwealth’s failure to inform him of a key component of the charges against him until after the jury was impaneled and sworn. Because we affirm the circuit court’s dismissal of the indictment with prejudice, we conclude that Grider’s motion to dismiss this appeal on the basis that his retrial is barred by the Double Jeopardy Clause is moot.

403.  DAMAGES. PUNITIVES.  NEGLIGENT HIRING.
ALLGEIER (BARBARA)
VS.
MV TRANSPORTATION, INC.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2010-CA-001907-MR
2010-CA-001921-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: This case arises from Barbara Allgeier’s fall from a paratransit bus maintained and operated by MV Transportation, Inc. (MV). Prior to trial, the trial court granted MV’s motion for summary judgment regarding Barbara’s claim for punitive damages. Barbara now appeals the trial court’s order

denying her punitive damages and asks this Court to remand the case solely for a trial on that issue. MV cross-appeals on various grounds, arguing that the trial court improperly allowed Barbara to introduce evidence pertaining to its negligent hiring, supervision, and retention claims despite MV’s admission of vicarious liability. MV’s primary argument is that the introduction of such evidence in light of its admission of respondeat superior liability rendered the other claims irrelevant and superfluous. For the reasons stated herein, we reverse the trial court’s entry of summary judgment pertaining to Barbara’s claim for punitive damages and remand for a trial solely on that issue. In all other regards, we affirm the rulings of the trial court.

In support of her argument that this Court should reverse and remand this case back to the trial court for a jury trial on punitive damages, Barbara argues that in cases alleging gross negligence and seeking punitive damages, a plaintiff is entitled to have her theory of the case submitted to the jury if there is “any evidence to support an award.” Thomas v. Greenview Hospital, Inc., 127 S.W.3d 663, 673 (Ky. App. 2004) (overruled on other grounds by Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005)). However, Thomas also cites to Kentucky Revised Statutes (KRS) 411.184,1 Kentucky’s punitive damages statute. KRS 411.184(3) prohibits assessing punitive damages against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question.

Thus, the question becomes whether Barbara presented clear and convincing evidence that MV ratified, authorized, or anticipated the conduct in question. A careful review of the record indicates that MV did in fact ratify and authorize the conduct of their employee, Caldwell. In particular, Caldwell was trained to not admit fault for an accident, but instead to immediately call dispatch and report the accident. Further, Caldwell was trained and instructed not to speak with victims and witnesses, and in fact, her supervisors placed her into a car so she could not speak with Barbara or surrounding witnesses during the initial investigation. MV was also consciously aware that Caldwell did not follow the company’s safety policies, as shown by the testimony of the supervisors who trained Caldwell on these safety policies. They acknowledged themselves that they did not instruct on all of the company’s safety policies, thereby acknowledging that they authorized or ratified their employee’s lax attitude toward passenger safety. Finally, although dispatch was called, neither Caldwell nor dispatch called EMS or police, which was a violation of MV policy. It is abundantly apparent to this Court that Caldwell and MV’s treatment of Barbara immediately after the accident could rise to the level of gross negligence or

1 We note that KRS 411.184(1)(c) was found unconstitutional by Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998), but that holding did not affect KRS 411.184(3).

 

reckless disregard for Barbara’s life and safety. Further, there is proof that MV authorized and ratified Caldwell’s conduct—in fact Caldwell was trained to respond to accidents in this manner. Accordingly, we agree with Barbara that a trial for punitive damages was warranted. We therefore reverse the trial court’s entry of summary judgment in this regard and remand for a trial on the issue of whether punitive damages were warranted.

404. CRIMINAL PROCEDURE.  SENTENCING HEARING DUE PROCESS.
THORNTON (ANTHONY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND NICKELL (CONCURS)
2011-CA-000032-MR
TO BE PUBLISHED
JEFFERSON

DIXON, JUDGE: Anthony Thornton appeals from a judgment of the Jefferson Circuit Court finding him guilty of direct criminal contempt. Because we conclude the court’s sentencing procedure violated Thornton’s right to due process of law, we reverse and remand for a new sentencing hearing.

408.  ATTORNEY FEES.
CASSADY (MONROE), ET AL.
VS.
WOLF CREEK COLLIERIES EMPLOYEE BURIAL FUND, INC.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2011-CA-000202-MR
TO BE PUBLISHED
MARTIN

COMBS, JUDGE: Monroe Cassady and his attorney, Nelson Sparks (referred to collectively as “Cassady”), appeal an order of the Martin Circuit Court which denied Cassady an award of attorney’s fees. Following our review, we affirm.

Our standard of review of a decision of a trial court regarding attorney’s fees is abuse of discretion. Miller v. McGinty, 234 S.W.3d 371, 373 (Ky. App. 2007). “Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). (Citations omitted). Whether a court has abused its discretion is dependent upon the facts and circumstances of each case. Kentucky Ret. Sys. v. Foster, 338 S.W.3d 788, 803 (Ky. App. 2010).

Cassady urged the application of KRS 412.070, which mandates the award of attorney’s fees:

for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, or for the recovery of money or property which has been illegally or improperly collected, withheld or converted, if one or more of the legatees, devisees, distributes or parties in interest has prosecuted for the benefit of others interested with him[.]

However, the trial court found that the statute did not apply because Cassady’s action did not result in a recovery that benefitted the fund or the other members of the fund. We agree.

Our court has recently held that the statute only applies “where parties have a common interest and a suit is brought for their common benefit and one attorney carries the burden.” Raisor v. Burkett, 214 S.W.3d 895, 903 (Ky. App. 2006) (citing Cambron v. Pottinger, 219 S.W.2d 401, 403 (Ky. 1948)).

410.  STATUTE OF LIMITATIONS.  PROPERTY DAMAGE CLAIM IS 2 YEARS AND IS NEGLIGENCE AND NOT TRESPASS TO CHATTEL.
INGRAM TRUCKING, INC.
VS.
ALLEN (CHRISTOPHER B.), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND NICKELL (CONCURS)
2011-CA-000513-MR
TO BE PUBLISHED
ALLEN

DIXON, JUDGE: Appellant, Ingram Trucking, Inc., appeals from an opinion and order of the Allen Circuit Court granting summary judgment in favor of Appellees, Christopher Allen and State Farm Mutual Automobile Insurance Company, and concluding that Ingram Trucking’s action was time barred. Finding no error, we affirm.

The trial court held a summary judgment hearing in February 2011, and thereafter entered an opinion and order granting summary judgment in favor of Allen. In so doing, the court held that there was no conflict between KRS 413.120(4) and KRS 413.125, and that Ingram’s cause of action was governed by the two-year statute of limitations set forth in KRS 413.125. As the accident giving rise to the property damage occurred on June 14, 2007, Allen’s complaint filed on August 3, 2010, was clearly time barred. Ingram Trucking thereafter appealed to this Court.

KRS 413.125 states that “[A]n action for the taking, detaining, or injuring of personal property, including an action for specific recovery shall be commenced within two (2) years from the date the cause of action accrued.” KRS 413.120 provides, in pertinent part, “[T]he following actions shall be commenced within five (5) years after the cause of action accrued . . . (4) [A]n action for trespass on real or personal property.” Ingram Trucking argues that since a trespass to chattels involves the detaining or injuring of personal property, there is a conflict between the two statutes of limitations and therefore the longer statutory period applies. Troxell v. Trammell, 730 S.W.2d 525 (Ky. 1987). We disagree.

The fatal flaw in Ingram Trucking’s argument is that a trespass to chattel, or trespass to personal property, is an intentional tort. Restatement (Second) of Torts § 217 provides that “[A] trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” (Emphasis added). Significantly, Comment (b) to § 217 explains:

This Section follows the commonly accepted terminology, by which there can be no unintended “trespass” to a chattel. Under the rules stated in Chapter 12 of this Restatement, the actor may be subject to liability for harm resulting from a negligent interference with a chattel. Such liability is dealt with as in other cases of negligence, in which the word “trespass” usually is not even mentioned. Under the rules stated in Chapters 20 and 21, there may also be liability for harm to a chattel resulting from strict liability, without either intent or negligence. Again any such liability is nearly always rested upon the nature of the actor’s conduct itself, without any reference to “trespass.”

The trial court herein recognized the above principles in its opinion and order, in ruling:

[A] trespass to chattel cannot be premised on negligent conduct. “[A] trespass to chattel occurs when a defendant intentionally intermeddles with personal property in the possession of the plaintiff and . . . impairs the property as to its condition, quality, to value, or (d) causes physical harm to the possessor or to some person or thing in which the possessor has a legally protected interest.” 13 Ky. Prac. Tort Law, The Nature of Trespass to Chattels, § 7:1 (2010) (citing Restatement (Second) of Torts § 217, 218) (emphasis added). Typically, “the intent necessary is the intent to intermeddle with the particular property.” Id., Intent § 7:2 (2010). While the tort may have originally included claims of negligence, “trespass,” so far as it applied to interference with chattels, has come to be limited to intentional interferences.” Restatement (Second) of Torts § 217, comment b (1965).

The trial court concluded that because there was no claim or evidence that Allen intended to damage Ingram Trucking’s tractor trailer, the underlying action was simply a common law negligence suit for damages to personal property, which is governed by KRS 413.125. See American Premier Ins. Co. v. McBride, 159 S.W.3d 342 (Ky. App. 2004).

418.  WORKERS COMPENSATION.   APPEAL.
BIG LOTS
VS.
WHITWORTH (LORITTA), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2011-CA-002188-WC
TO BE PUBLISHED
WORKERS’ COMP

VANMETER, JUDGE: Big Lots petitions for the review of an opinion and order by the Workers’ Compensation Board (“Board”) dismissing its appeal from the Administrative Law Judge’s (“ALJ”) August 31, 2011, order granting Loritta Whitworth’s motion to reopen her workers’ compensation claim. We agree with the Board that the ALJ’s order is interlocutory, and therefore affirm the Board’s dismissal of the appeal.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED:

SEE,

Allgeier v. MV Transportation, above, re punitive damages.

Cassady v. Wolf Creek Galleries, above, re attorney fees.

Ingram Trucking v. Allen, above, re  property damage statute of limitations.

Big Lots v. Whitworth, above, re workers compensation.

NOT PUBLISHED:

412.  TORTS.  1983 CLAIMS.
KAREKEN (WHITNEY)
VS.
KERHT (CHRIS), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000633-MR
NOT TO BE PUBLISHED
MERCER

KELLER, JUDGE: Whitney Kareken (Kareken) and Layton Kareken (Layton) appeal from an order of the Mercer Circuit Court granting summary judgment in favor of the Appellees. For the following reasons, we affirm.

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