SCOKY 2009 Minutes: October 29, 2009 (Nos. 218-248)(minutes for Oct.)

October 29, 2009 Supreme Court Minutes

  • Decisions 218-248
  • 41 decisions with 12 published
  • 5 published disciplinary cases
  • 6 motions for rehearing denied (none granted)
  • 14 motions for discretionary review granted with 80 motions denied

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

218
CHAPPELL V. KUHLMAN ELECTRIC CORP.
Questions Presented:
Professional Negligence. Damages. In this legal malpractice action, issues include: (1) whether the fiduciary duties of an attorney retained by an insurer to represent an insured employer in the reopening of a prior workers' compensation proceeding also extend to the employer in its current capacity as self-insured ; and, if so, (2) whether the insured sustained damages as a result of the attorney's placing the interests of the insurer (or the employer as an insured) ahead of those of the employer in its capacity as self-insured.

219
ROY APPLEGATE V. COMMONWEALTH OF KENTUCKY
Questions Presented:
Convictions of first-degree rape, first- degree sodomy and incest and thirty year sentence affirmed. Indictment sufficiently stated an offense and did not violate double jeopardy. Determination of expert’s status in the jury’s presence was harmless error.

220.
MARK E. BAUDER V. COMMONWEALTH OF KENTUCKY
2008-SC-000056-DG BOYLE
Questions Presented:
Criminal Law. Sobriety Checkpoint. Investigative Traffic Stop. Primarily at issue is whether a driver's turn onto a public road within sight of a police roadblock provides police with reasonable suspicion of criminal activity justifying an investigative traffic stop.

221.
BRIAN JAROSZEWSKI, ET AL. V. CHARLES F. FLEGE, ET AL. TO BE PUBLISHED
2008-SC-000112-DG GRANT
Questions Presented:
Civil Procedure. Failure to Prosecute. Dismissal of Complaint. Issues include whether trial court abused discretion by dismissing plaintiffs' complaint for failure to prosecute, on defendants' motions pursuant to CR 41.02.

222. STEVE BURTON V. COMMONWEALTH OF KENTUCKY
2006-SC-000784-MR HICKMAN
Questions Presented:
Second-degree manslaughter and second-degree assault convictions reversed. Undue prejudice arose from the admission of urinalysis results which outweighed its probative value under KRE 403. Conviction for operating a motor vehicle with a suspended license affirmed.

223. ANDRE FINNELL V. COMMONWEALTH OF KENTUCKY
2008-SC-000085-MR KENTON
Questions Presented:
Convictions of robbery and reckless homicide affirmed, but sentence is set aside and case remanded for a new penalty phase due to improper use of Courtnet rather than properly authenticated prior convictions.

224. MICHAEL CECIL V. COMMONWEALTH OF KENTUCKY
2008-SC-000369-MR 2008-SC-000159-MR JEFFERSON
Questions Presented:
Judgment as to counts of first-degree rape and intimidating a participant in the legal process upheld. Judgment on guilty pleas to second rape charge reversed and remanded; application herein of KRS 532.110(1) (d) is prohibited by the ex post facto clause.

225. TOMMIE BROWN V. COMMONWEALTH OF KENTUCKY
2008-SC-000281-MR FULTON
Questions Presented:
Convictions for first-degree fleeing or evading police and second-degree wanton endangerment constitute double jeopardy. The lesser offenses of second-degree wanton endangerment are reversed and vacated. All other convictions are affirmed.

226. TIM EMBERTON V. GMRI, INC., F/K/A GENERAL MILLS RESTAURANTS, INC. (D/B/A RED
LOBSTER RESTAURANT #349), ET AL.
2007-SC-000443-DG 2008-SC-000109-DG WARREN
Questions Presented:
Trial court judgment reinstated. Statute of limitations did not run due to the defendant’s active concealment of the plaintiff’s probable cause of action.

227. RICHARD GABBARD V. COMMONWEALTH OF KENTUCKY
2008-SC-000062-MR LEE
Questions Presented:
Trial court erred in failing to strike a juror for cause who had stated that she had made up her mind that the defendant was guilty. Error is reversible when, as here, defendant identifies on his strike sheet additional jurors he would have struck but for the erroneous ruling.

228. BETTY J. SWEASY V. WAL-MART STORES, INC.
2009-SC-000219-WC
Questions Presented:
Workers' Compensation. The compensable period for partial disability commences on the date that impairment and disability arise, without regard to the date of MMI, the worker's disability rating, or the compensable period's duration.

229. KENTUCKY ASSOCIATED GENERAL CONTRACTORS SELF-INSURANCE TO BE PUBLISHED
FUND (KAGC) V. MUSIC CONSTRUCTION, INC.
2008-SC-000795-DG MONTGOMERY
Questions Presented:
Contracts. Workers Compensation Reimbursement. AIG/AIU Insurance Company v. South Akers Mining Company, 192 S.W.3d 687 (Ky. 2006), did not bar an insurer who paid an employee all benefits for a 2001 injury, including a 30% increase under KRS 342.165(1), from seeking reimbursement under the terms of its contract with the employer.

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