SCOKY Minutes for August 25, 2011 posted

SCOKY Minutes for August 25, 2011 posted at AOC Web Site.  Click on this to access PDF.

Decisions:  118-139
22 cases with 8 published
Click here for this month's minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)
Click here for an index to all monthly minutes of SCOKY.

Selected published civil decisions:

120.  Workers Compensation.  Contract for hire.
Graham v. TSL, LTD
OPINION OF THE COURT
AFFIRMING
ALL SITTING. ALL CONCUR.
Questions Presented:
Workers’ Compensation. KRS 342.670(1)(b). Whether contract of hire was made by telephone in Kentucky or when various acts were completed subsequently in Missouri.

An Administrative Law Judge (ALJ) dismissed the claimant's application for benefits due to an out-of-state injury, having concluded that Kentucky lacked jurisdiction over the claim because his employment was not principally localized in any state and his contract for hire was not made in Kentucky. The Workers' Compensation Board and the Court of Appeals affirmed.

The claimant continues to assert that the ALJ erred by failing to determine that his contract for hire was made in Kentucky. We affirm because the ALJ applied the law correctly and based the finding on substantial evidence. KRS 342.670(1) fails to give Kentucky jurisdiction over the claim.

121.  Workers Compensation. Employee and unauthorized alien.
Abel Verdon Construction and Acuity Ins. v. Miguel Rivera
OPINION OF THE COURT
AFFIRMING
ALL CONCUR OPINION OF THE COURT.  ALL SITTING.  SCOTT, J., CONCURS BY SEPARATE
OPINION WITH RESPECT TO KRS 342.640(1).
Questions Presented:
Workers' Compensation. Issues include whether the claimant was an employee for the purposes of Chapter 342; whether the Immigration Reform and Control Act of 1986 preempts the application of Chapter 342 to the claim of an “unauthorized alien;”and the adequacy of proof concerning average weekly wage, duration of temporary total disability, and alleged safety violation.

Opinion of the Court Affirming.  The Workers' Compensation Board affirmed findings that supported the claimant's partial disability award against his employer, Abel Verdon Construction, but remanded the claim with directions for the Administrative Law Judge (ALJ) to admit the testimony from the claimant's safety expert and to determine whether Verdon's intentional violation of a workplace safety regulation in any degree caused the claimant's accident.' A divided Court of ppeals reinstated the ALJ's refusal to admit the safety expert's testimony but affirmed otherwise. The court also rejected Verdon's argument that Chapter 342 violates federal immigration law by authorizing workers' compensation benefits without regard to the legality of the recipient's immigration status. Verdon appeals.

Verdon argues that the Court of Appeals erred because the Immigration Reform and Control Act of 1986 (IRCA) 2preempts the application of Chapter 342 to this claim based on the claimant's status as an "unauthorized alien."

Verdon also argues that he Court of Apeals ered by afirming with respec to the existence of an employment relationship, the adequacy of proof concerning the claimant's average weekly wage, and the duration of TTD as well as the decision to remand for additional findings concerning a safety violation. We affirm for the reasons stated herein.

Disciplinary Matters:

KENTUCKY BAR ASSOCIATION V. JIMMIE GREEN ORR, JR.
TO BE PUBLISHED COURT
ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR 61 DAYS.
ALL SITTING. ALL CONCUR.

KENTUCKY BAR ASSOCIATION V. LUANN GLIDEWELL
TO BE PUBLISHED
ORDER SUSPENDED RESPONDENT FROM THE PRACTICE OF LAW FOR THREE YEARS
WITH CONDITIONS.
ALL SITTING. ALL CONCUR.

SAMUEL FIELDS V. HONORABLE JOHN DAVID CAUDILL, JUDGE, FLOYD CIRCUIT COURT AND COMMONWEALTH OF KENTUCKY, REAL PARTY IN INTEREST
NOT TO BE PUBLISHED
ORDER DENIED PETITION FOR WRIT OF MANDAMUS.
MINTON, C.J.; ABRAMSON, CUNNINGHAM,
NOBLE, SCHRODER AND VENTERS, JJ.,
CONCUR. SCOTT, J., NOT SITTING
LINK DEFECTIVE!!!   CASE NO. FOR SEARCH —  2011-SC-000252-OA

KENTUCKY BAR ASSOCIATION V. WILLIAM A. MITCHELL
TO BE PUBLISHED COURT
ORDER SUSPENDED RESPONDENT FROM
THE PRACTICE OF LAW FOR ONE YEAR.
ALL SITTING. ALL CONCUR.

ROBERT W. RILEY V. KENTUCKY BAR ASSOCIATION
TO BE PUBLISHED COURT
ORDER PUBLICLY REPRIMANDED MOVANT.
ALL SITTING. ALL CONCUR.

JOHN F. RAMPULLA, III. V. KENTUCKY BAR ASSOCIATION
TO BE PUBLISHED COURT
ORDER SUSPENDED MOVANT FROM THE
PRACTICE OF LAW FOR 181 DAYS, WITH 91
DAYS PROBATED FOR 3 YEARS, WITH CONDITIONS.
ALL SITTING. ALL CONCUR.

DAVID A. BAKER V.  KENTUCKY BAR ASSOCIATION
2011-SC-000328-KB
TO BE PUBLISHED COURT
ORDER RESTORED MOVANT TO THE PRACTICE OF LAW WITH CONDITIONS.
ALL SITTING. ALL CONCUR.

AN UNNAMED ATTORNEY V. KENTUCKY BAR ASSOCIATION
2011-SC-000333-KB
TO BE PUBLISHED
ORDER PRIVATELY REPRIMANDED MOVANT WITH CONDITIONS.
ALL SITTING. ALL CONCUR.

Orders DENYING Petitions for Rehearing:

Wells Fargo Bank v. Commonwealth of Kentucky

Corrected opinions:

Cincinnati Ins. Co. v. MOtorists Mutual Ins. Co.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON REVERSING
This case requires us to decide whether a claim of defective construction against a homebuilder is, standing alone, a claim for property damage caused by an "occurrence" under a commercial general liability (CGL) insurance policy.b  Like the majority of courts that have considered the question, we hold that the answer is no.

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