October 28, 2011 COA Minutes — Nos. 991-1014 (24 decisions; 4 published)

October 28, 2011 COA Minutes —          Nos. 991-1014 (24  decisions; 4 published)

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PUBLISHED DECISIONS OF COA:

992. JUSTICICIABILITY.  STANDING.  LEGISLATION  STRESSING DEPENDENCE ON GOD.
KENTUCKY OFFICE OF HOMELAND SECURITY, ET AL.
VS.
CHRISTERSON (MICHAEL G.), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
VANMETER (PRESIDING JUDGE)
WINE (CONCURS) AND SHAKE (CONCURS IN PART, DISSENTS IN PART AND FILES SEPARATE OPINION)
2009-CA-001650-MR
2009-CA-001676-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE: The Kentucky Office of Homeland Security (“KOHS”) and Thomas Preston, as the director of the KOHS (hereinafter collectively referred to as “KOHS”), appeal from the order of the Franklin Circuit Court that granted summary judgment in favor of Appellees2 and American Atheists, Inc. (“American Atheists”) on the basis that KRS3 39A.285 and KRS 39G.010 violate the First and Fourteenth Amendments to the United States Constitution and Section 5 of the Kentucky Constitution. American Atheists cross-appeals from the same order, which held that American Atheists lacked standing in the underlying action. After a thorough review of the parties’ written and oral arguments, the record, and the applicable law, we affirm that portion of the Franklin Circuit Court judgment finding the American Atheists lacked standing. However, we find reversible error in finding the challenged statutes violate the First and Fourteenth Amendments of the United States Constitution and Section 5 of the Kentucky Constitution and, accordingly, reverse and remand this matter to the trial court for further proceedings.

EG., part of the language of the statute:

Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including the provisions of KRS 39A.285(3) in its agency training and educational materials. The executive director shall also
be responsible for prominently displaying a permanent plaque at the entrance to the state’s Emergency Operations Center stating the text of KRS 39A.285(3)[.]

993.  GOVERNMENT.  ADMINISTRATIVE LAW.  LIQUOR LICENSES.
BEVERAGE WAREHOUSE, INC.
VS.
COMMONWEALTH OF KENTUCKY DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
KELLER (CONCURS) AND SHAKE (CONCURS)
2009-CA-002020-MR
2010-CA-001717-MR
2010-CA-001718-MR
2010-CA-001779-MR
TO BE PUBLISHED
FRANKLIN

THOMPSON, JUDGE: We are asked to consider three orders of the Franklin Circuit Court addressing a third party’s right to a hearing before and after the issuance of a liquor license. We refer to the cases which have been consolidated for appeal as Beverage Warehouse I, Beverage Warehouse II and Beverage Warehouse III.

996.  DAMAGES (ZERO PAIN AND SUFFERING VERDICT); NEW TRIAL (OBJECTION AND CURATIVE INSTRUCTION RE IMPROPER CLOSING); COSTS TO PREVAILING PARTY
SCHULZE (SABRA)
VS.
HINTON (MARY A.)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-000121-MR
2010-CA-000151-MR
TO BE PUBLISHED
BOONE

LAMBERT, JUDGE: Sabra Schulze appeals and Mary A. Hinton cross-appeals from several orders of the Boone Circuit Court in a personal injury suit. Having carefully considered the record and the parties’ respective arguments, we affirm the trial court’s decisions.

The matter went to a trial by jury in September 2009. Schulze’s theory of the case was that the 2002 accident aggravated a pre-existing back condition. On the other hand, Hinton argued that Schulze’s problems were caused by her pre-existing condition, noting that she had been treated repeatedly for low back pain, hip pain, and leg pain for a year prior to the accident. Hinton asserted that she was only responsible for the minimal medical expenses and lost wages attributable to the motor vehicle accident. The parties presented both expert and lay testimony addressing the issues of causation and damages. At the conclusion of the trial, a unanimous jury returned a verdict finding that Schulze had incurred the sum of $1,144.00 in medical expenses as a direct result of the accident and $144.00 in lost wages, but it awarded nothing for pain and suffering. The trial court entered a trial order and final judgment on September 25, 2009, in favor of Schulze in the amount of $1,288.00. The court then reduced the verdict to -0- pursuant to Kentucky Revised Statutes (KRS) 304.39-060(2)(a), and Bohl v. Consolidated Freightways Corporation of Delaware, 777 S.W.2d 613 (Ky. App. 1989), because those amounts were paid or were payable in basic reparation benefits and accordingly granted Hinton a credit on those amounts. Finally, the trial court entered judgment in favor of Schulze in the amount of $1,288.00.

On October 5, 2009, Schulze filed a motion for a new trial pursuant to Kentucky Rules of Civil Procedure (CR) 59.01, arguing that the -0- award for pain and suffering was inadequate in light of the medical testimony presented at trial. She also argued that Hinton’s attorney made a prejudicial comment in his closing argument by mentioning Hinton’s financial ability to pay an award. The same day, Schulze filed a bill of costs pursuant to CR 54.04 as the prevailing party, requesting $1,393.60 for the filing fee, service of summons, and deposition fees.

The jury's award of zero for pain and suffering was affirmed in reliance upon Miller v. Swift.  Based upon our review of Schulze’s testimony and the medical evidence presented, we must agree with Hinton that the jury’s decision not to award damages for pain and suffering is supported by the record.

Next, Schulze contends that she is entitled to a new trial due to an allegedly prejudicial comment Hinton’s attorney made during closing argument.2 The comment at issue is: “She’s trying to do the right thing here. But the right thing has its limits, ladies and gentleman. She is taking responsibility for this accident, but she is not in a position to write a blank check.” At the end of the closing argument, Schulze objected to this comment because it injected Hinton’s ability to pay a judgment into the jurors’ minds. Schulze requested a mistrial or, in the alternative, a curative instruction. The trial court did not grant a mistrial, but opted instead to grant Schulze’s alternative request and provided a curative instruction, which included Schulze’s request that the specific comment be mentioned.

The objection to this comment during closing was timely -  the COA declined to hold that a six-minute delay in objecting to comments near the end of a forty-five-minute closing argument renders the objection untimely or unpreserved. However, we do agree with Hinton that the admonition Schulze requested and received cured any alleged error.

With regard to the award of costs after the pain and suffering award was reduced to zero, KRS 453.040(1)(a) provides that “[t]he successful party in any action shall recover his costs, unless otherwise provided by law.” Likewise, CR 54.04(1) provides that “[c]osts shall be allowed as of course to the prevailing party unless the court otherwise directs[.]” The term “prevailing party” is defined in the latest edition of Black’s Law Dictionary as: “A party in whose favor a judgment is rendered, regardless of the amount of damages awarded <in certain cases, the court will award attorney’s fees to the prevailing party>. — Also termed successful party.” BLACK’S LAW DICTIONARY (9th ed. 2009).  In the case before us, we are presented with a situation where the parties stipulated liability prior to trial and the jury actually awarded damages to Schulze, distinguishing the result in Lewis from this case as the trial court stated in its order. Because she was awarded damages by the jury, Schulze is by definition the “prevailing party.” It is of no consequence for purposes of this analysis that Schulze did not actually receive any of the damages the jury awarded to her, as that was controlled by operation of law. While Schulze did not receive the amount of damages she requested, she nonetheless was awarded a portion of what she claimed. Therefore, Schulze is properly considered the “prevailing party” for purposes of awarding costs, and the trial court did not commit any error or abuse its discretion in awarding her costs as she requested.

1008. CRIMINAL.
COMMONWEALTH OF KENTUCKY
VS.
SMITH (JOHN)
OPINION REVERSING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-001703-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: The issue presented is whether a circuit court may convert a dismissal of a criminal indictment without prejudice to a dismissal with prejudice nine years after entry of the original dismissal. We conclude, based on Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005), it cannot.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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997.  DEFENSES.  RES JUDICATA (IDENTITY OF PARTIES).
JAVIER STEEL CORPORATION
VS.
CENTRAL BRIDGE COMPANY, LLC, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
SHAKE (CONCURS) AND STUMBO (CONCURS IN RESULT ONLY)
2010-CA-000231-MR
NOT TO BE PUBLISHED
JEFFERSON

 

THOMPSON, JUDGE: Javier Steel Corporation appeals from the Jefferson Circuit Court’s summary judgment in favor of Central Bridge Company, LLC., and Central Rock Mineral Company, LLC.2    The issue presented is whether the Central Rock Mineral Co., LLC is no longer a separate legal entity but is the assumed name for L-M Asphalt Partners, Ltd., which was made a party to this appeal based on the new d/b/a status
court properly found that Javier Steel’s claim was barred by the doctrine of res judicata. We affirm.

RECONSIDERATION OF DECISION BY JUDGE AT TRIAL

Initially, we address whether Judge Wine’s order denying the motion to dismiss on the basis of res judicata resolved the issue. Under similar circumstances presented, in Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597 (Ky.App. 2006), the Court held that a judge has discretionary authority to reconsider a ruling.

Generally, a judge may reexamine an earlier ruling and rescind it if he has a reasonable conviction that it was wrong and it would not cause undue prejudice to the party that benefited from it. Id. Moreover, and of particular relevance here, [i]t is well established that a trial court may reconsider and grant summary judgment to a party subsequent to an earlier denial.

We review a decision to reconsider under an abuse of discretion standard. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id. at 602  We conclude that the trial court did not abuse its discretion when it

RES JUDICATA

Res judicata is a doctrine that serves the purpose of ensuring the finality of a judgment by preventing relitigation of issues or causes of action. “The doctrine of res judicata is that a final judgment rendered upon the merits of the case, by a court having jurisdiction of the subject-matter and the parties, is conclusive of the rights of the parties and their privies in another suit on the points and matters in issue in the first suit.” Prewitt v. Wilborn, 184 Ky. 638, 212 S.W. 442, 449 (1919). It involves two subparts: “Claim preclusion” and “issue preclusion.” Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464–65 (Ky. 1998). “Claim preclusion bars a party from relitigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action.” Id. at 465. (internal citations omitted). In Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970), the Court concisely set forth the conditions under which the doctrine is applied:
First, there must be identity of parties. Second, there must be identity of the two causes of action. Third, the action must be decided upon its merits. In short, the rule of res adjudicata does not act as a bar if there are different issues or the questions of law presented are different. Likewise, it has long been recognized that a party may not split his cause of action, therefore, if a cause of action should have been presented and the party failed to do so and the matter should again arise in another action, it will be held that the first action was res adjudicata as to all causes that should have properly been presented.

1004. INSURANCE (MRVA) AND LIMITATION OF ACTIONS (SOL).  BORROWING STATUTE (TN VS. KY SOL).
MILLS (HOPE)
VS.
SMITH (CLARENCE)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001219-MR
NOT TO BE PUBLISHED
BELL

ACREE, JUDGE: Hope Mills protests that the Bell Circuit Court improperly applied Kentucky’s borrowing statute, KRS 413.320, in concluding her Motor Vehicle Reparations Act (MVRA)2 claim was time-barred. Finding no manifest injustice, we affirm.

Mills was riding in a car driven by her father, defendant sub judice Clarence Smith, in Claiborne County, Tennessee, on May 16, 2007, when his car was allegedly forced from the road, resulting in a single-vehicle accident.3    Mills was injured. She received basic reparation benefits (BRBs) from Smith’s insurance provider, Kentucky Farm Bureau.
On February 11, 2010, Mills filed suit in Bell County, Kentucky, asserting her injuries resulted from her father’s negligent operation of the vehicle and requesting damages in excess of $10,000. The parties agree that Mills filed her complaint within the statute of limitations established by the MVRA. The parties also agree that if Tennessee’s statute of limitations controls, the complaint was not timely filed. Tennessee Code Annotated (TCA) §28-3-104.

Instead, in construing statutes, this Court is bound to presume the General Assembly is aware of all other statutes in operation. Haven Point Enterprises, Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 395 (Ky. 1985); Manning v. Kentucky Board of Dentistry, 657 S.W.2d 584, 587 (Ky. App. 1983) (“It is presumed that the legislature is acquainted with the law on the subjects on which it legislates and is informed of previous legislation and construction that it has previously received.”). We must therefore presume the General Assembly was aware of the borrowing statute, and its effect on causes of action which arise outside Kentucky when it passed the MVRA. As a result, we must also presume that the legislature intended that the borrowing statute apply to supplant the statute of limitations enunciated in the MVRA.  Further, Kentucky courts have applied the borrowing statute to bar causes of action brought under the MVRA. See, e.g., Ellis v. Anderson, 901 S.W.2d 46 (Ky. App. 1995). There is simply no reason to believe the borrowing statute does not apply to MVRA cases.

1005.  TORTS. DEFENSES (FIREFIGHTERS RULE).
WALLACE (DERRICK)
VS.
THOROUGHBRED HOSPITALITY, LLC, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001289-MR
2010-CA-001290-MR
2010-CA-001458-MR
NOT TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Derrick Wallace, Randall Combs, and the Lexington- Fayette Urban County Government (hereinafter “LFUCG”) appeal the June 25, 2010, order of the Fayette Circuit Court granting the motion for summary judgment made by Thoroughbred Hospitality, LLC, D/B/A Crowne Plaza Hotel (hereinafter “Thoroughbred Hospitality”). These consolidated appeals involve the right of Wallace, Combs, and LFUCG to recover against Thoroughbred Hospitality for injuries caused to Wallace and Combs by Daniel Billings, a patron of the Crowne Plaza Hotel,1 incurred while they were subduing and arresting him. We conclude that the trial court properly granted Thoroughbred Hospitality’s motion for summary judgment because the Firefighter’s Rule is a complete defense to Thoroughbred Hospitality’s liability. Hence, we affirm.

1007.  TORTS.  DEFENSES (PREINJURY RELEASE)
BOWLING (CHRISTINA)
VS.
ASYLUM EXTREME, LLC. , ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) COMBS (CONCURS)
2010-CA-001687-MR
NOT TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Christina Bowling appeals from the August 12, 2010, opinion and order of the Jefferson Circuit Court, which granted summary judgment in favor of Asylum Extreme, LLC; Paintball Asylum, LLC; American Amateur Sports Association; and owners and operators of paintball facility located at 3101 Pond Station Road, Louisville, Kentucky, 40272 (collectively “appellees”) in Bowling’s personal injury action against appellees. We affirm.

Bowling argues that the trial court improperly granted summary judgment because there were genuine issues of material fact and the appellees were not entitled to judgment as a matter of law. More specifically, Bowling argues that the waiver was not sufficiently clear to preclude her personal injury claim.    In support of this argument, Bowling cites to Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005), in which the Kentucky Supreme Court indicated that “the wording of the release must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.” Id. 47 (citation omitted).

Our review of the waiver indicates that it clearly states that Bowling was releasing appellees from any liability resulting from negligence. It specifically lists eye injury as a potential injury and clearly and specifically indicates intent to release appellees from liability. Furthermore, the only reasonable construction of the waiver’s language is to release appellees from liability, and the hazard, an eye injury, was clearly, and specifically, contemplated. Thus, not only does the waiver meet one of the Hargis requirements, it meets all four. Id. No ordinarily prudent and knowledgeable party would be unaware as to what he or she was contracting away by signing the waiver. Therefore, the trial court acted properly in enforcing it.

PREINJURY RELEASES.

See,  Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005), in which the Kentucky Supreme Court indicated that “the wording of the release must be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.” Id. 47 (citation omitted).
The Court continued:

Specifically, a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party's own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided. Id. (citations omitted).

The waiver which Bowling signed reads, in pertinent part, as follows:

WAIVER AND RELEASE OF LIABILITY
In consideration of AE furnishing services and/or equipment to enable me to participate in paintball games, I agree as follows:
I fully understand and acknowledge that; (a) risks and dangers exist in my use of Paintball equipment and my participation in Paintball activities; (b) my participation in such activities and/or use of such equipment may result in my injury illness including but not limited to bodily injury, disease strains, fractures, partial and/or total paralysis, eye injury, blindness, heat stroke, heart attack, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of AE; the negligence of the participants, the negligence of others, accidents, breaches of contract, the
forces of nature or other causes. These risks and dangers may arise from foreseeable or unforeseeable causes; and (d) by my participation in these activities and/or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, employees of AE, or by any other person.
I, on behalf of myself, my personal representatives and my heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify AE and it’s [sic] owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, property damages, wrongful death, loss of services or otherwise which may arise out of my use of Paintball equipment or my participation in Paintball activities. I specifically understand that I am releasing, discharging and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by the owners, agents, officers or employees of AE. (Emphasis added).

Our review of the waiver indicates that it clearly states that Bowling was releasing appellees from any liability resulting from negligence. It specifically lists eye injury as a potential injury and clearly and specifically indicates intent to release appellees from liability.

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