SCOKY: August 26, 2010 Supreme Court Minutes (151-183)

SCOKY: August 26, 2010 Supreme Court Minutes [ now updated with all published decisions ]

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  • Decisions:  151-202
  • Total:  52
  • Published: 33

PUBLISHED DECISIONS FROM AUG. 26, 2010 —-

151.  CRIMINAL

Mitchell Jackson v. Commonwealth of Kentucky
2009-SC-000046-MR August 26, 2010
Opinion of the Court by Justice Abramson. All sitting; all concur.

Questions Presented:
Criminal law. Parole revocation. Issues include whether appeal of order revoking probation and requiring defendant to serve twenty-year sentence should have been brought before Supreme Court or Court of Appeals; whether an order revoking probation is a “judgment of the Circuit Court imposing a sentence” as required by Section 110(2)(b) of the Kentucky constitution.

A probation revocation order does not constitute a judgment imposing sentence for purposes of Ky. Const. § 110(2)(b). As such, a probation revocation order is not directly appealable to the Supreme Court under the constitutional provision regardless of the length of the sentence that must be served pursuant to that order.

152. WRITS

Wesley Collins v. Hon. Sara Combs, Chief Judge, Kentucky Court of Appeals
2010-SC-000151-OA August 26, 2010

Questions Presented:
Denied writ of mandamus with respect to Court of Appeals order prohibiting Collins from physically entering the Court of Appeals’ central or field offices but instructing the court’s clerk to accept pleadings from Collins by mail, fax, or e-mail.

MEMORANDUM OPINION OF COURT.  Because a court has jurisdiction and inherent authority to manage its affairs and assist the administration of justice, it may place reasonable restraints on a person’s physical access to court buildings where legitimate safety concerns justify such restrictions and provisions are otherwise made to ensure the person’s continued access to the courts for the purpose of conducting legitimate business. A court may judicially notice public records, including prior court decisions.

153. WRITS.

Karu White v. Hon. Gary D. Payne, Judge et al.
2010-SC-000280-OA August 26, 2010

Questions Presented:
Denied writ of prohibition to prevent the respondent from enforcing a December 15, 2008 order requiring the movant to submit to a mental retardation evaluation conducted by the Kentucky Correctional Psychiatric Center.

Opinion of the Court by Justice Venteres. All sitting; all concur. Questions Presented: Writ of Prohibition. Should trial court be prohibited from enforcing its order for death row inmate to be evaluated by KCPC in connection with inmate’s effort to avoid execution under Atkins v. Virginia. Held – standard for writ not met; adequate remedy by appeal; writ denied

154. TORTS.  SUDDEN EMERGENCY DOCTRINE.

Elaine T. Henson v. David Klein
 2007-SC-000795-DG August 26, 2010 2008-SC-000204-DG August 26, 2010

Opinion of the Court by Justice Venters. All sitting; all concur. Question presented: Negligence, Sudden Emergency. Whether the adoption of comparative fault requires the abolition or modification of the sudden emergency doctrine.

Held: The sudden emergency doctrine is unaffected by the adoption of comparative negligence, reaffirming Regenstreif v. Phelps, 142 S.W. 3d 1 (Ky. 2004). The Court also declines to modify the sudden emergency doctrine so that it would apply only when the party invoking it would be entitled to a directed verdict.

155.  CRIMINAL. SENTENCING.  COMPETENCY.

Shawn Windsor v. Commonwealth of Kentucky
2008-SC-000383-MR August 26, 2010

Questions Presented:
Criminal law. Issues include whether stated desire to plead guilty and accept death penalty creates reasonable ground, within meaning of KRS 504.100(1), to question defendant’s competency; whether trial court failed to find beyond a reasonable doubt that death was appropriate punishment; whether KRS 532.030(4) or Section 11 of the Kentucky Constitution precludes defendant from waiving jury sentencing in capital case; whether KRS 532.075(1) requires review of death penalty case to be conducted on written transcript of the proceedings; and whether prosecution’s refusal to consider sentence other than death requires sentence to be vacated under KRS 532.075(5)(b).

The Supreme Court affirmed the imposition of two death sentences. The accused’s stated desire to plead guilty and to accept the death penalty does not, standing alone, create reasonable grounds, within in the meaning of KRS 504.100(1), to question competency. The Supreme Court further held that there is no constitutional right to jury sentencing.

ABRAMSON AND VENTERS, JJ., CONCUR EXCEPT AS TO THE ISSUE OF WHETHER THE APPROPRIATENESS OF THE DEATH PENALTY MUST BE DETERMINED BEYOND A REASONABLE DOUBT. ON THAT ISSUE, ABRAMSON AND VENTERS, JJ., DISSENT FOR THE REASONS STATED IN JUSTICE ABRAMSON’S SEPARATE OPINION IN BROWN V. COMMONWEALTH, __S.W.3D __(KY. JUNE 17, 2010), IN WHICH VENTERS, J., JOINED.

156.  TORTS.  OPEN AND OBVIOUS DOCTRINE, PRESMISE LIABILITY, ABROGATED.

Kentucky River Medical Center v. McIntosh
2008-SC-000464-DG August 26, 2010

Questions Presented:
Open and Obvious Doctrine. Slip and Fall. The issue is whether a hospital is liable for injuries to a paramedic who tripped over an unpainted curb while transporting a patient into the hospital.

Opinion of the Court by Justice Noble. All sitting. A paramedic tripped over a curb and was injured while entering a hospital emergency room and attending to a patient. The issue presented was whether the open-and-obvious doctrine barred her claim now that Kentucky has the comparative fault doctrine. The Court held that an open and obvious nature of a danger does not automatically bar a claim in the era of comparative fault. A land owner still owes a duty of reasonable care against foreseeable harm stemming from an open and obvious danger. Rather than being a complete defense, that a danger is open and obvious is simply a factor in assigning fault between the parties. Justice Schroder wrote a dissenting opinion, in which Justice Scott joined.

2008-SC-000600-MR

2008-SC-000622-MR August 26, 2010

Questions Presented:
Criminal law. Sentencing. Whether a defendant convicted of committing two or more felony sex crimes against two or more victims is subject to the statutory cap on sentences found in KRS 532.110(1)(c).

Opinion of the Court by Justice Noble. All sitting. The defendant was convicted of multiple sex crimes. The trial court ran his sentence consecutively but only up to the limit found in KRS 532.110(1)(c). The Court held that the sentence was proper because there was no conflict between that mandatory consecutive sentencing provision, KRS 532.110(1)(d), and the sentencing cap in KRS 532.110(1)(c). The Court also affirmed the convictions, holding that there was no reversible error in the trial court refusing to admit a letter to the defendant from one of the victims that referred to the former as “Dad” and “Daddy” because the letter was not direct impeachment of the victim’s testimony about the crimes and any error was harmless. Chief Justice Minton wrote a dissenting opinion, in which Justice Cunningham joined.

158.  CRIMINAL LAW.  ROBBERY.

Christoper Shiloh Gamble v. Com.
2008-SC-000669-DG

Questions Presented:
Criminal Law. Robbery, First-Degree. The issue is whether a defendant's written and verbal statements about having a gun, without brandishing it or pointing to unidentifiable bulges on the defendant's person constitutes Robbery, First-Degree.

In this case, we are called upon to interpret KRS 515.020(1)(c), which aggravatessecond-degree robbery to first-degree robbery when the defendant "[uses or threatens the immediate use of a dangerous instrument…."We conclude that the trial court did not err in denying a directed verdict motion on the charge offirst-degree robbery under KRS 515.020(1)(c), where the defendant threatened the use ofa gun in the course of a bank robbery.

159.  CRIMINAL LAW.  COMPETENCY.  SENTENCING ENHANCEMENT.

Frederick Jackson v.  Com.
2009-SC-000003-MR

Questions Presented:
Criminal law. Issues include whether trial court erred in finding defendant competent to stand trial; whether trial court impermissibly used prior misdemeanor marijuana trafficking offense to enhance felony cocaine trafficking conviction.

160.  CRIMINAL LAW.  SCIENTIFIC EVIDENCE.  DAUBERT.

Norman Graham v. Commonwealth of Kentucky
2009-SC-000069-MR August 26, 2010

Questions Presented:
Criminal law. Whether lack of a Daubert hearing, juror misconduct, prosecutorial misconduct, and undue delay in prosecution warrant reversal

Opinion of the Court by Justice Noble. All sitting; all concur. The defendant was convicted in 2008 for a murder that occurred in 1980 after modern DNA testing in 2003 linked him to the crime. The defendant had been tried for the murder in 1981, but the trial ended in a mistrial. The defendant challenged his conviction on multiple grounds. The Court affirmed, holding that he was not entitled to a Daubert hearing on the DNA evidence; that a juror’s failure to disclose casual acquaintanceship with the victim and her family, absent a showing of bias, was not reversible misconduct; that juror’s brief interactions with victims family and another juror were improper but harmless; that the prosecutor’s factual inferences about what happened prior to the murder were not misconduct; and that 26 year gap between the mistrial and the reinstatement of charges was not undue delay because there had been no showing of substantial prejudice or intentional delay to gain a tactical advantage.

161.  CRIMINAL LAW.  JURIES, RANDOMLY SELECTED.

Antwan Ladale Hayes v. Commonwealth of Kentucky
2009-SC-000087-MR August 26, 2010

Questions Presented:
Criminal law. Issues include whether addition of ten jurors from another division of the same circuit to the trial court’s panel compromised defendant’s right to randomly-selected jury; whether refusal to strike juror for cause constituted abuse of trial court’s discretion; and whether trial court committed reversible error by refusing to suppress evidence obtained via a search warrant that was based on an affidavit containing a material omission or intentionally or recklessly false statements.

Opinion by Justice Scott. All sitting; all concur. This case addresses the question of whether a trial court errs when it adds jury members from another circuit division after voir dire has commenced; whether the trial court abused its discretion by seating a juror who suffered crimes “related” to that which the defendant was accused; and the constitutionality of a search warrant that allegedly contained false or intentionally misleading statements.

In affirming the trial court, the Court held that there is no deviation from the established jury selection rules when a trial court supplements its panel with jurors from another division. Furthermore, the Court held that the additions did not affect the defendant’s constitutional right to a randomly selected jury.

With regard to the trial court’s alleged abuse of discretion in seating a juror, the Court held that a trial court does not err by seating a juror who suffers a prior incident similar to that which the defendant is accused as long as the trial court determines that the juror’s experiences would not create bias against the defendant. The Court held that an unequivocal statement to this effect is not necessary as long as substantial evidence supports the trial court’s findings.

The Court also addressed whether the trial court erred when it refused to suppress evidence procured from a search warrant that was procured via an affidavit which allegedly contained false or misleading information. In affirming the trial court, the Kentucky Supreme Court held that suppression is not merited where a defendant fails to prove the falsity of the statements in the affidavit supporting the search warrant.

162.  CRIMINAL LAW. KASPAR REPORTS.

Charles D. Oakes v. Commonwealth of Kentucky
2009-SC-000186-MR August 26, 2010

Questions Presented:
Criminal law. Issues involve trial court’s refusal to introduce the victim’s KASPER report; victim’s identification of defendant; and trial court’s refusal to give lesser-included offense instruction.

Opinion of the Court by Justice Noble. All sitting; all concur. Defendant was convicted of second-degree robbery and being a second-degree PFO. On appeal, he alleged that the trial court erred in not allowing him to introduce a KASPER report to impeach a witness, violated his right of confrontation at a pretrial hearing, allowed admission of an impermissibly suggestive pretrial photo lineup, and failed to instruct on a lesser included offense of theft. The Court held that the KASPER report was inadmissible because it was simply an attempt to prove an instance of conduct by extrinsic evidence in violation of KRE 608; that there is no right to confrontation as a pretrial hearing, the right being only a trial right; that the photo array was admissible because it was not unduly suggestive and there were sufficient independent indicia of reliability; and that the lesser-included instruction was unnecessary as the evidence at trial only supported a finding of guilty under the given instruction or not guilty.

163.  WRITS.  MANDAMUS.

Geneva Mahoney v. Hon. Judith McDonald Burkman, Judge, et al.
2009-SC-000578-MR August 26, 2010

Opinion of the Court by Justice Venters. Question presented: Writ of Mandamus/ Prohibition, “great and irreparable injury:” Whether Plaintiff in a medical malpractice case suffers “great and irreparable injury” that would justify issuance of a writ of mandamus when trial judge allows Defendants to use at trial the depositions of Plaintiff’s experts. Held: The burden and expense of trial is not “great and irreparable harm” justifying the issuance of a writ; claims of evidentiary error at trial may be remedied on appeal.

164.  WORKERS COMPENSATION.  REOPENING.

Harold Turner v. Bluegrass Tire Co., Inc., et al.
2009-SC-000653-WC August 26, 2010
Opinion of the Court. All sitting; all concur. An Administrative Law Judge dismissed the claimant's motion to reopen his workers' compensation claim on the ground that he failed to make a prima facie showing of fraud to justify reopening. The Workers' Compensation Board affirmed. The Court of Appeals also affirmed, finding no abuse of the ALJ's discretion because the evidence supporting the motion failed to make the required prima facie showing of fraud, mistake, or newly-discovered evidence. The Supreme Court affirmed, holding that even if the claimant supported the motion with what KRS 342.125(1) considered to be newly-discovered evidence, the evidence failed to show a substantial possibility that he would be able to prevail on the merits.

 165.  CODE OF JUDICIAL CONDUCT.

Hon. Tamra Gormley, Family Court Judge, Fourteenth Judicial Circuit v. Judicial Conduct Commission
2009-SC-000736-RR August 26, 2010 2010-SC-000010-RR August 26, 2010

Opinion of the Court by Justice Schroder; Justice Noble not sitting. Judicial Conduct Commission found that Family Court Judge engaged in three counts of misconduct for violations of the Kentucky Code of Judicial Conduct, imposing as a penalty public reprimands and a 45-day suspension. The Supreme Court affirmed the findings and penalties imposed in all respects. Justice Scott concurred in result only.

 166.  WRIT OF MANDAMUS.  AFFIRMED DENIAL.

Jessie C. Gilbert v. Hon. Judith McDonald-Burkman, Judge et al.
2010-SC-000035-MR August 26, 2010

Opinion of the Court by Justice Noble. All sitting; all concur. Defendant sought a writ of mandamus against trial judge to compel the opening of discovery documents that had been filed with the court under seal in another criminal case. The Court denied the writ, holding that the defendant had misinterpreted the recently announced writ standard and that he could not satisfy that standard’s requirements because he had not shown entitlement to the material either in the other criminal case or in his own case. The Court focused on the fact that the defendant, if he could make the necessary showing, could obtain the material directly from the Commonwealth; thus it was unnecessary to get the material from a sealed record in another criminal case. The Court also noted that the Commonwealth had a continuing duty to provide any exculpatory evidence in its possession.

167.  Workers Compensation. 

American Greetings Corp. v. Sheila Bunch, et al.
 2010-SC-000179-WC August 26, 2010
Questions Presented:
Workers' Compensation. Standard of review applicable to Workers’ Compensation Board’s decision to reverse a finding that a workplace injury incurred while participating in a charitable fundraiser was not work-related.Opinion of the Court. All sitting; Justice Schroder dissented without opinion.

An Administrative Law Judge dismissed the claimant's application for benefits, having concluded that a knee injury sustained while participating in a relay race that was part of a workplace charity fundraising campaign did not occur within the course and scope of her employment. The Workers' Compensation Board reversed the decision on the grounds that the ALJ misapplied the law to the facts and that the evidence compelled a favorable finding when the law was applied correctly. The Court of Appeals found no error and affirmed. The Supreme Court affirmed, holding that the ALJ misapplied the law because the evidence compelled legal conclusions that the annual charitable campaign was a regular incident of the employment; that the employer exercised sufficient control over the campaign to bring the injury within the orbit of the employment; and that the injury was work-related.

168.  Arbitration Agreements.  Insurance.

Ernst & Young, LLP v. Sharon P. Clarke; and Ernst & Young, LLP v. Appalachian Regional Healthcare, Inc.

2007-SC-000936-TG August 26, 2010 2007-SC-000770-TG August 26, 2010

Opinion of the Court by Justice Venters. All sitting; all concur.

Questions Presented:
KRS 304.33-010 to 304.33-600. Whether arbitration agreements in accounting firm’s contracts with insurance carrier may be enforced against the Rehabilitator when the carrier becomes insolvent; whether the same arbitration agreements force the plaintiffs in a class action (i.e., members of a workers’ compensation self-insured group) to arbitrate their claims against the accounting firm.

Held: Despite contractual provisions requiring arbitration, claims asserted by the state insurance rehabilitator must be adjudicated in the Franklin Circuit Court rather than being submitted to arbitration. Federal arbitration policy is preempted by state law regulating insurance. However, the related claims of other parties that are not part of the insurance rehabilitation process are not preempted, and thus under the federal policy favoring arbitration, those claims must be arbitrated.

169.  Legal Malpractice.

Davis v. Scott
2009-SC-000159-DG August 26, 2010 2009-SC-000391-DG August 26, 2010

Questions Presented:
Assignment of proceeds from legal malpractice claim. Summary Judgment. The issues are: 1. whether Kentucky should allow parties to assign a portion of the proceeds from a legal malpractice claim; 2. whether the trial court properly grants summary judgment where the parties present conflicting evidence as to whether the assignment was an assignment of a legal malpractice claim or an assignment of a portion of the proceeds and who controls the litigation, and 3. even if a party cannot assign a portion of the proceeds from the claim, can the party proceed with the malpractice litigation? On cross-motion, Scott raised the following issues: 1. did the trial court err by denying summary judgment on "corrective" attorney's fees; 2. did the trial court err by failing to grant summary judgment on Davis's claim for emotional distress damages; 3. did the trial court err by failing to dismiss the case based on the fundamental disagreement between Davis's expert witnesses as to when and how Scott violated the standard of care, and 4. whether one of Davis's expert witnesses can testify Scott violated SCR 3.130 regarding competency.

In a legal malpractice action, it was determined that settlement agreement purporting to assign merely proceeds of malpractice action actually constituted assignment of entire claim. The assignment of legal malpractice claims is prohibited in Kentucky, and therefore the action could not proceed. However, an invalid assignment does not extinguish the underlying claim and, therefore, the matter was remanded to the trial court with directions to dismiss the legal malpractice action without prejudice.

170.  Criminal Law. Pretrial diversion. Appeals.

Brandon J. Ballard v. Commonwealth of Kentucky

2009-SC-000341-DG August 26, 2010

Where Commonwealth moved circuit court to revoke pretrial diversion during period of diversion, the trial court retained jurisdiction to rule on the motion despite the fact that hearing was not conducted until after diversion period had ended. The Supreme Court further held that KRS 22A.020(4), allowing the Commonwealth to appeal from interlocutory orders, is constitutional.

171.  Administrative Law.  District Court Jurisdiction re local ordinance enforcement.

Louisville Metro Health Department v. Highview Manor Association, LLC

2008-SC-000599-DG August 26, 2010

Opinion of the Court by Justice Schroder. All sitting; all concur.

Questions Presented:
Administrative Law. District Court's Jurisdiction. The issue involves the scope of the district court's authority to review a decision of a local code enforcement board pursuant to KRS 65.8831.

Property owners appealed citations and fines for violations of no-smoking ordinance to local Code Enforcement Board, which affirmed the citations and fines. Property owners appealed to the District Court pursuant to KRS 65.8831(1).

On review before the Supreme Court, the sole issue was the scope of a district court’s review of a decision of a local code enforcement board, i.e. whether that review is de novo or of the record for an abuse of discretion in the form of an administrative appeal. In resolving the conflict between Section 113 of the Kentucky Constitution and KRS 24A.010(3), and KRS 65.8831(1), the Supreme Court held that district courts have no appellate jurisdiction and must conduct a de novo trial as to the final order of the Code Enforcement Board.

172.  Criminal Law.  First degree PFO.

Frederick Jackson v. Commonwealth of Kentucky
2009-SC-000003-MR August 26, 2010

Opinion by Justice Cunningham. All sitting; all concur. Jackson was convicted of first-degree trafficking in controlled substance, possession of drug paraphernalia, possession of marijuana, and of being a persistent felony offender in the second-degree. Evidence was introduced to support the enhancement of the trafficking in a controlled substance to a second offense as defined by KRS 218A.010(35), and Jackson was sentenced to twenty-five years in prison. The Supreme Court affirmed the conviction, holding that Jackson failed to show reasonable grounds that would alert the trial court to sua sponte order an updated competency evaluation. The Court held that because Jackson could not show that he was incompetent to stand trial, he also failed to prove that he could not validly waive his right to counsel. The Court also found that KRS 218A.010(35) does not require that the underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a “second or subsequent offense” under KRS 218A.1412(2).

173.  Eminent Domain.  Compensation.

Baston v. County of Kenton
2008-SC-000319-DG August 26, 2010

In this condemnation action, the Court reinstates the jury’s award and holds that KRS 416.660 requires that market value be determined apart from the project’s effects, not necessarily that evidence of those effects be excluded. The jury’s highest-and-best-use determination was supported by the evidence and was not tainted by improper argument.

174.  Utilities. Public Service Commission.  Tariffs.

The Public Service Commission v. Commonwealth of Kentucky
2008-SC000483-DG August 26, 2010 2008-SC-000489-DG August 26, 2010

Opinion of the Court by Justice Abramson. All sitting; all concur. KRS Chapter 278 permits the Public Service Commission to authorize economic development rates (EDRs) which, in this case, are reduced rates for customers who either satisfy minimum job creation and capital investment levels or who are willing to locate in abandoned urban properties or brownfields.

175.  Criminal Procedure.  Search and Seizure.  Due Process.  Terry Pat Down.

Commonwealth of Kentucky v. Nabryan Marshall
2008-SC-000894-DG August 26, 2010

Opinion by Justice Scott. Reversing. All sitting; all concur. This case involves the constitutionality of a strip search conducted on an arrestee while in the field. At trial, Appellant moved to suppress certain evidence procured from a strip search. He argued that the search was unconstitutional because it was conducted without probable cause and because the strip search was conducted in the field. The trial court found that the contraband was immediately apparent to the officer and denied his motion to suppress. Marshall then appealed to the Kentucky Court of Appeals, which reversed and held the search exceeded that which is allowed under Terry v. Ohio, 392 U.S. 1 (1968). Furthermore, applying Bell v. Wolfish, 441 U.S. 520 (1979), the court found that the search was unreasonable under the circumstances.

176.  Defamation. Qualified Privilege.  Interference with contractual relations.  Instructions. Golden Rule Argment.

Mary Beth Calor v. Ashland Hospital Corp.
2007-SC-000573-DG August 26, 2010 2008-SC-000317-DG August 26, 2010

Questions Presented:
Defamation. Qualified Privilege. Interference with Contractual Relations. Instructions. Golden Rule Argument. Damages. In this case involving claims of defamation and interference with contractual relations, issues include whether the "common-interest" qualified privilege was abused; whether defendants were entitled to judgment on grounds of "statements of opinion" and "statements of truth"; whether jury was improperly instructed; whether counsel engaged in improper "Golden Rule" argument to jury; and whether damages awarded were excessive.

Opinion of the Court by Justice Noble. Reversing and remanding.
Justice Abramson not sitting. The plaintiff physician worked for a locum tenens staffing company, which contracted with the defendant hospital. The hospital became suspicious that the physician was overstating the hours she worked and began an internal investigation. Despite not being able to account for some of the physician’s hours, the hospital told the staffing company that the physician was overstating her hours and thus over billing the hospital. The physician sued the hospital for defamation and intentional interference with her contract. The hospital tried to claim a privilege but was denied a jury instruction on the matter. The Court held that the hospital was entitled to a jury instruction on a qualified privilege stemming from a common business interest between the hospital and the staffing company.

177.  Public Utilities. Civil Procedure.

Louisville Gas and Electric Company, et al. v. Hardin & Meade County Property Owners For Co-Location, et al.

2008-SC-000348-DG
2008-SC-000354-DG August 26, 2010

Questions Presented:
Public Utilities. Civil Procedure. Issues include requirements for enlargement of ten-day time period for designation of record under KRS 278.420.

Opinion of the Court by Justice Schroder. All sitting; all concur. Property owners filed an action in the circuit court seeking judicial review of a PSC order granting an application for construction of a power line. Thereafter, the property owners failed to designate the record or move for enlargement of time to designate the record within the ten-day period in KRS 278.420(2). The circuit court dismissed the action for failure to comply with KRS 278.420(2), and the Court of Appeals reversed the dismissal. The Supreme Court reversed the Court of Appeals, holding that the circuit court did not have jurisdiction to adjudicate the claim due to the failure to timely designate the record or move for enlargement of time.

178.  FELA. Res Judicata. Issue Preclusion.

Emmett E. Coomer v. CSX Transportation, Inc.
2008-SC-000784-DG August 26, 2010

Opinion of the Court by Justice Schroder. All sitting; all concur. Coomer filed a FELA action against his employer in Jefferson Circuit Court, alleging negligence resulting in occupational trauma to his hands, wrists, and arms. The Jefferson Circuit Court granted summary judgment for CSX. Before summary judgment in the Jefferson Circuit Case, Coomer filed a second FELA action in Perry Circuit Court for neck, back, shoulder, and knee pain. The Perry Circuit Court concluded that Coomer’s claim was barred by res judicata and granted summary judgment for CSX. The Court of Appeals affirmed.

The Supreme Court reversed the Court of Appeals, holding that Coomer’s Perry Circuit Court claim was not barred by res judicata if his cause of action accrued after the filing of his Jefferson Circuit Court case. When the cause of action accrued was a question of fact to be determined by a jury in the Perry Circuit case.

179,.  Insurace.  Medi-Share.

Commonwealth of Kentucky v. E. John Reinhold, et al.

2007-SC-000839-DG August 26, 2010
Questions Presented:
Insurance. Does the "Medi-Share" plan constitute "insurance" as defined by KRS 304.1-030 and, if so, is it exempt as a KRS 304.1-120(7) "religious publication"?

Opinion of the Court by Justice Venters. All sitting. Question Presented: Insurance. Whether the medical expense sharing arrangement established by Appellees constitutes a “contract for insurance” under KRS 304.1-030, and is thereby subject to insurance regulations; and if so, whether the arrangement qualifies for exemption under the religious publication exception provided by KRS 304.1-120(7). Held: The Medi-Share program offered by Appellee is a “contract of insurance” as defined in Kentucky statutes; the religious publication exception does not apply. Justice Scott wrote a dissenting opinion, joined by Justice Cunningham.

180.  Contempt.  Limited Liability Companies.  Satisfaction of Judgment.

Racing Investment Fund 2000, LLC v. Clay Ward Agency
2009-SC-000007-DG August 26, 2010

Questions Presented:
Contempt. Limited Liability Companies. Satisfaction of Judgment. Issues include the trial court's authority to use its contempt power to compel satisfaction of a judgment against an L.L.C., forcing the L.L.C.'s to make a capital call for the amount of the judgment per the Operating Agreement executed by the L.L.C. members.

Opinion of the Court by Justice Abramson. Justice Noble not sitting. Trial court could not invoke a capital call provision in a limited liability company agreement in order to obtain funds from the LLC’s members needed to satisfy a judgment against the LLC.

181.  Criminal Law.  Instructions.  Robber, LIO.

Kristy Rene Lawless v. Commonwealth of Kentucky
2009-SC-000032-MR August 26, 2010

Opinion of the Court by Justice Abramson. All sitting. The Court reversed appellant’s first-degree robbery conviction because her hand-in-the-pocket gesture as she approached victim satisfied neither KRS 515.020(b) (use of deadly weapon) nor (c) (threatened use of dangerous instrument). Appellant was not entitled to duress or theft-by-unlawful taking instructions. Chief Justice Minton and Justice Scott concurred in result only.

182.  Criminal Law. Probation Revocation.

Cameron Hunt v. Commonwealth of Kentucky
2009-SC-000312-DG August 26, 2010

Opinion of the Court by Justice Schroder. All sitting; Justice Cunningham dissented by separate opinion. Defendant’s probation was revoked following a thirteen-minute hearing where no witnesses were sworn and the defendant was asked to “show cause” why his probation should not be revoked. The defendant’s arguments on appeal were unpreserved, and the Court of Appeals affirmed, finding no palpable error. The Supreme Court reversed the Court of Appeals, concluding that the hearing had failed to comply with the minimum requirements of due process, and thus resulted in palpable error.

183.  Writ of prohibition.  Reverses denial of.

E. David Marshall, et al v. Hon. Pamela R. Goodwine, Judge et al.
2009-SC-000495-MR August 26, 2010

Opinion of the Court by Justice Abramson. All sitting; all concur. In this Writ action, the Court held that a trial court loses jurisdiction to “vindicate” its judgment once that judgment is reversed on appeal. A writ will issue here, therefore, to prohibit contempt proceedings meant to sanction parties alleged to have resisted collection under a judgment which was subsequently reversed.

 

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