SCOKY Discretionary Review Motions Granted on Feb. 2009

In February 2009, the SC granted 13 motions for discretionary review while denying 39 motions. Click here for Minutes.

SCOKY also DEPUBLISHED the following COA decisions:

  • Leonard Michael Jamieson  et alo v. Eagle Road & Gun Club
  • Ashley Edmunds v. Ronald Fetchko
  • Jeffrey Charles Morris v. Com. of Kentucky
  • Peggy Sue Rogers v. Com. of Kentucky
  • Robert Lynn v. Digital Lifestyles

Here are the 13 MDR grants with links (if available) to lower court decision, and the 'opening paragraph' from the decision to give you an idea of the issue in the case:

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW –  FEBRUARY 11, 2009

DR. GHASSAN HAJ-HAMED V.  OHIC INSURANCE COMPANY
2008-SC-00127-DG CAMPBELL
2006CA000200
BEFORE:  STUMBO AND VANMETER, JUDGES; GUIDUGLI, SENIOR JUDGE. VANMETER, JUDGE:  OHIC Insurance Company appeals from a judgment entered by the Campbell Circuit Court after a jury found that OHIC negligently failed to comply with its duties toward Ghassan Haj-Hamed and Husam Hamed.  Haj-Hamed, Hamed, and the Riverside Medical Center (cross-appellants) cross-appeal from the same judgment. For the reasons stated, on direct appeal we affirm in part, and we reverse and remand in part.  We affirm on cross-appeal.

LILA FAYE SPENCER V. ESTATE OF CHARLES SPENCER
2008-SC-000191-DG MCCRACKEN
2007CA000277
BEFORE:  NICKELL, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE:  Charles Spencer and Lila Faye Spencer (Faye) were married on November 4, 1995.   Both parties had been previously married, with children and premarital property.  The majority of Charles' assets were inherited from his first wife. To provide for the disposition of their respective property upon the termination of their pending marriage either by dissolution or death, prior to their marriage, Charles and Faye executed a document entitled “Antenuptial Agreement.”  Charles' estate argues that the agreement prevails over Faye's interest in an Edward Jones brokerage account registered as a joint account in Charles' and Faye's names.  We agree with the circuit court's finding that the antenuptial agreement did not preclude Charles from giving Faye an interest in the account; however, we disagree that a joint account with a right of survivorship was created.  We, therefore, reverse and remand.

ESTATE OF CHARLES SPENCER V. LILA FAYE SPENCER
2008-SC-000196-DG MCCRACKEN

CINCINNATI INSURANCE CO. V. MOTORISTS MUTUAL INSURANCE CO.
2008-SC-000293-DG JEFFERSON
2007CA000818

BEFORE:  LAMBERT AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE. VANMETER, JUDGE:  Motorists Mutual Insurance Company appeals from a Jefferson Circuit Court order granting summary judgment in favor of The Cincinnati Insurance Company.  We vacate and remand to that court. In 1994-95, Elite Homes, Inc. built and sold a house to Lawrence and Jennifer Mintman.  At the time, Elite was covered under a comprehensive general liability policy issued by Motorists.  Effective July 1, 1996, Elite procured a commercial liability policy from Cincinnati.  In 2001, the Mintmans brought this action against Elite alleging serious latent structural defects as a result of substandard work performed by Elite and/or its subcontractors.  The defects included cracks in the drywall and exterior brick walls, defective windows and doors, sagging floors, separation of brick veneer from exterior walls, and leaning walls.  Ultimately, construction experts determined that subcontractors hired by Elite to perform framing and foundation work had done the work improperly.  Elite notified both Motorists and Cincinnati of the action.  Cincinnati refused to investigate or defend Elite.  In its letter declining coverage, Cincinnati informed Elite: In review of this matter, It [sic] would appear that the damage in part or all may fall prior to the policy period.  We must note that even if part of the damage falls within our policy it would appear that there is a question if all claims fit the definition of property damage in the policy.  The allegations do not appear to have arisen from an occurrence as defined in the policy. We also note the above-cited exclusions are on point for the allegations, as the damages are claimed for the house itself and do not involve damage to other property.  Therefore in light of the information obtained, we have determined there to be no coverage under our policy for this claim. Motorists defended Elite and paid $130,000 to settle the case with the Mintmans.  Motorists also took an assignment from Elite and the Mintmans for any claim they might have against Cincinnati, and filed a third-party complaint against Cincinnati to recover the settlement payment plus fees and costs of approximately $62,000 incurred in defending Elite.

KENTUCKY RETIREMENT SYSTEMS V. DILLARD WAYNE BROWN, INDIVIDUALLY  AND AS EXECUTOR OF THE ESTATE OF  BARBARA FAYE REED BROWN, DECEASED
2008-SC-000326-DG FRANKLIN
2006CA000296
BEFORE:  ACREE, DIXON, AND KELLER, JUDGES.  ACREE, JUDGE:  Kentucky Retirement Systems (the Systems) appeals from the Franklin Circuit Court’s reversal of a decision of the Disability Appeals Committee of the Board of Trustees of the Kentucky Retirement Systems (the Board) that Barbara Brown did not qualify for disability retirement benefits under KRS1 61.600.  Mrs. Brown passed away from her disabling condition, chronic obstructive pulmonary disease or COPD, before the 1 Kentucky Revised Statutes.Franklin Circuit Court rendered its decision in this case.  Her husband, Dillard Wayne Brown, chose to continue this action as executor of her estate.  Because the evidence in Mrs. Brown's favor is so compelling that no reasonable person could have failed to be persuaded by it, we affirm the Opinion and Order of the Franklin Circuit Court.

AUTO OWNERS INSURANCE CO. V. OMNI INDEMNITY COMPANY
2008-SC-000606-DG
JEFFERSON
2007CA001165
BEFORE:  COMBS, CHIEF JUDGE; KELLER JUDGE; HENRY, SENIOR JUDGE. HENRY, SENIOR JUDGE:  The tort victim’s underinsured motorist carrier, Auto Owners Insurance Co., appeals from an order of the Jefferson Circuit Court determining that Auto Owners is not entitled to restitution from the tortfeasor’s insurer, Omni Indemnity Company, for funds advanced to the tort victim pursuant 1 Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.to Coots v. Allstate Insurance Company, 853 S.W.2d 895 (Ky. 1993).  Subsequent to the advancement, the tortfeasor filed bankruptcy and Auto Owners failed to file proof of its claim with the bankruptcy court, resulting in the tortfeasor’s dismissal from the lawsuit with no finding of liability against him.  For the reasons stated below, we affirm.

ROBERT HOLLON V. COMMONWEALTH OF KENTUCKY
2008-SC-000618-DG  FRANKLIN 
2007CA001053
BEFORE: CLAYTON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Robert Hollon brings this appeal from an April 18, 2007, order of the Franklin Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for postconviction relief. We affirm.

CSX TRANSPORTATION V. JOHN X. BEGLEY
2008-SC-000643-DG
PERRY
2007CA001380
BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES. DIXON, JUDGE: CSX Transportation, Inc., appeals from a judgment of the Perry Circuit Court following a jury verdict awarding damages to
CSX’s former employee, John X. Begley, pursuant to the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (hereinafter “FELA”). Begley, who was born in 1942, began working for CSX at its railroad yard in Hazard, Kentucky, in June 1970. For twenty years, Begley’s job duties required him to jump out of slow-moving train cars, landing on the large gravel, or ballast, surrounding the tracks.1 Begley retired from CSX in 1998, and thereafter sought treatment for pain in his knees, hips, and back. In March 2003, Begley filed suit against CSX pursuant to FELA, alleging CSX failed to provide a safe working environment, which caused Begley to develop debilitating osteoarthritis in his knees and hips. Following a lengthy discovery period, a jury trial commenced on April 9, 2007.

MEMBERS CHOICE CREDIT UNION, ET AL. V. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION
2008-SC-000877-DG FRANKLIN
2007CA002353
BEFORE: KELLER AND WINE, JUDGES; LAMBERT,2 SENIOR JUDGE.
WINE, JUDGE: The Commonwealth of Kentucky, ex rel. The Office of Financial Institutions (OFI), appeals from a declaratory judgment of the Franklin Circuit Court which rejected the agency’s interpretation of Kentucky Revised Statutes (KRS) 286.6-107 as allowing community or geographic charters for state credit unions. OFI and the intervening credit unions now appeal, arguing that Home Federal Savings and Loan (Home Federal) lacked standing to bring this action and failed to exhaust its administrative remedies. We agree with the trial court that Home Federal had standing to bring this action and was not required to pursue this matter through administrative proceedings. We further find Home Federal is not barred from bringing this action by the doctrine of laches, and that there were no relevant issues of fact which precluded summary judgment. On the substantive 2 Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. -2-issue, we conclude that the trial court’s interpretation of KRS 286.6-107 is more consistent with the plain language of the statute than OFI’s interpretation. Therefore, the trial court correctly found that OFI is not authorized to grant community- or geographic-based charters to state credit unions. Hence, we affirm.

COMMONWEALTH OF KENTUCKY V. NABRYAN MARSHALL
 2008-SC-000894-DG FAYETTE
2007CA002518
COMBS, CHIEF JUDGE: On October 15, 2007, Nabryan Marshall entered a conditional guilty plea in Fayette Circuit Court to one count of trafficking in a controlled substance and one count of bail jumping. He appeals an order of the trial court denying a motion to suppress evidence that was obtained through a strip search. He also contends that he should have received a competency hearing. After carefully reviewing the record and examining the law, we vacate in part and remand and affirm in part.

BRANDI CHIPMAN V. COMMONWEALTH OF KENTUCKY
2008-SC-000895-DG KENTON
2007CA000690
KELLER, JUDGE: The issue presented is the proper disposition of a juvenile who was charged with Robbery in the First Degree,2 was transferred to circuit court as a as use of a firearm, in the commission of the offense. Kentucky Revised Statute (KRS) 515.020. youthful offender, and pled guilty to the lesser offense of Robbery in the Second Degree. For the reasons set forth below, we affirm.


WILLIAM BUCK V. COMMONWEALTH OF KENTUCKY

2008-SC-000896-DG CAMPBELL2007CA001481
2007-CA-001481-MR
WINE, JUDGE: William Buck entered a conditional guilty plea in the Campbell Circuit Court to one count of failing to register as a sex offender. Buck was sentenced to three years in prison in accordance with the plea agreement. Buck now appeals that conviction, arguing the General Assembly and the trial court violated the ex post facto clauses of the United States and Kentucky Constitutions applying the sex offender registration law to him. Finding no error, we affirm.

TROY MOODY V. CSX TRANSPORTATION, INC.

2009-SC-000048-DG JEFFERSON
2005CA001494
THOMPSON, JUDGE: This is an appeal from a judgment following a jury verdict finding CSX Transportation liable under the Federal Employer's Liability Act, 45 U.S.C.A.§ 51-60, (FELA), for a permanent psychiatric neurological injury sustained by pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. Troy Moody as a result of his exposure to solvents during the course of his employment with CSX. The jury returned a verdict for Moody awarding him damages as follows: future medical expenses, $200,000; impairment of his earning capacity, $540,000; past pain and suffering, $1,000,000; and future pain and suffering, $1,000,000. CSX alleges that: (1) the evidence was insufficient to submit the issue of foreseeability to the jury; (2) the trial court should have given a specific foreseeability instruction; (3) the evidence was insufficient to prove causation; (4) it was error to allow Moody to introduce evidence of other dissimilar claims filed by workers against CSX; (5) the evidence was insufficient to support the jury's award for future medical expenses and lost wages; (6) the trial court erroneously failed to instruct the jury that lost wages and future medicals are non-taxable; and (7) the trial court should have instructed the jury to discount the award to present value.

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