Aug. 19, 2011 COA Minutes — Nos. 766-784 (19 decisions; 4 published)

 Aug. 19, 2011 COA Minutes —     Nos. 766-784 (19 decisions; 4 published)

766. CRIMINAL PROCEDURE.  DNA ANALYSIS ANDEXPERT SERVICE FOR DEFENDANT AND COSTS.
BONNER (BRYCE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-000502-MR
TO BE PUBLISHED
JEFFERSON

 THOMPSON, JUDGE: This is an appeal from a Jefferson Circuit Court order that denied a motion for costs related to a DNA analysis and expert services provided for Bryce Bonner’s criminal defense despite the court’s earlier finding that Bonner was indigent and entitled to have DNA testing and analysis paid pursuant to KRS 31.110(1)(b).

KRS 31.110 is part of the comprehensive statutory scheme governing the Commonwealth’s public defender system contained in KRS Chapter 31. KRS 31.110(1)(a) provides that a needy person is entitled: “To be represented by an attorney to the same extent as a person having his or her own counsel is so entitled[.]” Consistent with that assurance, subsection (1)(b) provides that the needy person is “[t]o be provided with the necessary services and facilities of representation including investigation and other preparation.” The issue presented is whether the trial court had authority to rescind its prior orders finding that Bonner was entitled to KRS Chapter 31 funds.

We conclude that a court has no authority to rescind its prior orders approving expenses for indigent defendants. The logic of only prospective application of such orders is obvious: Counsel and experts who act in good faith must be able to rely on the court’s order approving expenses. Otherwise, counsel’s efforts to provide a defense for the indigent defendant can be chilled by the inability to obtain experts and the risk faced in deciding whether to incur an expense. Id. Thus, if after a hearing pursuant to KRS 31.120, the trial court determines that a defendant is no longer indigent, its order can operate only prospectively.
Under the circumstances, we conclude that the trial court abused its discretion when it denied Bonner’s CR 60.02(f) motion.

768.  INSURANCE LAW. NOTICE OF POLICY CHANGES BY INS. CO. DEEMED INADEQUATE.  PERMISSIVE USER DROP DOWN COVERAGE.
YATES (RICHARD)
VS.
SHELTER MUTUAL INSURANCE COMPANY
OPINION REVERSING AND REMANDING
SHAKE (PRESIDING JUDGE)
STUMBO (CONCURS) AND TAYLOR (DISSENTS AND FILED SEPARATE OPINION
2010-CA-000022-MR
TO BE PUBLISHED
HARDIN

SHAKE, SENIOR JUDGE: Richard Yates brings this appeal from a December 14, 2009, summary judgment of the Hardin Circuit Court in favor of Shelter Mutual Insurance Company. The underlying dispute involved a summary judgment action to adjudicate the bodily injury liability limits of an automobile insurance policy issued by Shelter to Yates. Because we hold that Yates was not given satisfactory notice of his policy’s changes, we reverse and remand.

 Shelter instituted the underlying declarations of rights action seeking an adjudication of the parties’ respective rights and obligations under the insurance policy. Eventually, Shelter filed a motion for summary judgment. Shelter asserted that the policy’s permissive driver step-down provision was valid and effectively limited its liability to $25,000 for bodily injuries sustained by Yates. The circuit court agreed. By summary judgment entered December 14, 2009, the circuit court held that the permissive driver step-down provision validly limited Shelter’s bodily injury liability to the minimum of $25,000 each person/$50,000 each accident. This appeal followed.

Yates makes several arguments on appeal regarding the alleged validity of the step-down provision. However, for the purposes of this appeal, we will address only one: that the permissive driver step-down provision is unenforceable under the doctrine of reasonable expectations. Yates points out that he paid a premium for the higher bodily injury liability limits, for “full coverage protection,” and was led to believe by the declarations page of the policy that the higher bodily liability limits of $50,000 each person/$100,000 each accident were applicable. Yates argues that an insured would reasonably believe to be covered by the higher limits of bodily injury liability coverage and, thus, is entitled to such coverage. Given the particular facts of this action, we agree.

It is undisputed that Yates had been paying premiums for the $50,000/$100,000 coverage to Shelter for many years. However, Yates’ original plan did not include the permissive driver step-down provision. The step-down provision was not inserted into Yates’ policy until 2004. Although Shelter sent a vague letter to Yates indicating that his policy had changes, it failed to indicate where in the policy these changes were located or that the changes were specifically to the coverage which he had been receiving. In fact, the declarations pages prior to the reduction in coverage and after the reduction in coverage were identical. Furthermore, the premium difference on the policy before and after the reduction in coverage was only a few cents. Shelter failed to provide adequate notification to Yates of the policy changes, creating a reasonable expectation that Yates’ coverage with the higher bodily liability limits of $50,000/$100,000 was continuing, regardless of whether the driver was himself or a permissive driver.

770.  CRIMINAL LAW.  CHOICE OF EVILS INSTRUCTION.
CROMER (JOSHUA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-000362-DG
TO BE PUBLISHED
FAYETTE

DIXON, JUDGE: Appellant, Joshua Cromer, entered a conditional guilty plea in the Fayette District Court to charges of operating a motor vehicle while under the influence of alcohol, first offense, and carrying a concealed deadly weapon. Appellant thereafter appealed to the Fayette Circuit Court the denial of his motion for a choice of evils instruction, as well as motions to suppress evidence and to disqualify the Fayette County Attorney’s office. The circuit court affirmed the district court’s rulings and this Court thereafter granted Appellant’s motion for discretionary review. Having reviewed the record and proceedings below, we now affirm.

782
NEWTON (TINA), ET AL.
VS.
NEWTON (JAMES)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001877-MR
TO BE PUBLISHED
NELSON

 CAPERTON, JUDGE: The Appellants are representatives of the Estate of Clara Sanders. Sanders was slain by Appellee, James R. Newton, who was convicted on a plea of guilty for reckless homicide. At issue between the parties is a title dispute between the Estate and Newton over the property they held jointly with right of survivorship.

A tenancy by the entirety is a statutory form of ownership created by a conveyance to a husband and wife. A tenancy by the entirety is an estate which is founded upon the legal unity of the husband and wife, which is indivisible in them both as well as in the survivor, but which neither of them can destroy by a separate act. Hoffmann v. Newell, 249 Ky. 270, 60 S.W.2d 607 (1932). Thus, those parties to a tenancy by the entirety are indivisibly joined to the property.
By contrast, joint tenants, as were Newton and Sanders herein, may deal with the property between them as they wish, making decisions as individuals, and not as one entity. Indeed, if one joint tenant decides to convey his or her interest in the property, the joint tenancy is destroyed. Each tenant may deal with the property independently of the other. Essentially, in a tenancy by the entirety, the feature distinguishing it from joint tenancy is that the survivor of a joint tenancy by the entirety takes at the death of the other not by virtue of the death, but because by law each was viewed to own the entire estate from the time of its creation. Sanderson v. Saxon, 834 S.W.2d 676 (Ky. 1992). In a joint tenancy, however, each is merely entitled to enjoyment of the estate with an interest passing at death to the survivor. Id.
Sub judice, both Newton and Sanders each had their own separate ownership share and could have conveyed their respective interest in the property whenever and to whomever they chose. Had Sanders conveyed her interest to another, she would be conveying a life estate with a right of survivorship. See Sanderson, supra. We are thus in agreement with the Estate, and Newton himself concedes, that by killing Sanders he forfeits his right of survivorship. Thus, the interest which would otherwise have been his but for his criminal act vests in the heirs of Sanders. However, we cannot agree that the statute, as written or interpreted by the courts of this Commonwealth, strips Newton of the ownership of property that was already vested in him. Had Sanders not died at the hand of Newton, he would have taken the entire property as a result of his right of survivorship. Because of the crime he committed, Newton must forfeit that right, which has, we believe correctly, passed to the heirs of Sanders. We believe the result to have been reached in this regard by the trial court to be equitable and in accordance with the law. Accordingly, we affirm.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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784.  EVIDENCE.  AUTHENTICATION OF MEDICAL RECORDS.
LUTTRELL (MICHAEL)
VS.
LUTTRELL (SARAH)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
CAPERTON (CONCURS) AND MOORE (CONCURS)
2010-CA-002121-ME
NOT TO BE PUBLISHED
HARDIN

STUMBO, JUDGE: Michael Luttrell is appealing an order of the Hardin County Family Court restricting the contact between his child and his parents. He alleges error on two evidentiary issues and abuse of discretion on the part of the trial court. We find the admission of certain records into evidence without proper authentication to be error. We therefore reverse and remand for a new hearing.

Michael’s first two arguments revolve around evidentiary issues raised at the hearing, which ultimately led to the restricted visitation of Child with her grandparents. First, Michael argues that it was an abuse of discretion for the trial court to admit counseling records into evidence without proper authentication. During the hearing, Sarah’s counsel introduced into evidence Child’s counseling records from Restoration House. Michael’s counsel objected because a record custodian had not authenticated the records.
Usually, records such as these are authenticated by the testimony of either a records custodian or are self-authenticated by a written statement under oath that the records are what they purport to be. Kentucky Rule of Evidence (KRE) 902(11). Michael argues that no records custodian testified at the hearing and that the records were not self-authenticating. Michael is correct.

Circumstantial evidence can be used to authenticate a document, Thrasher v. Durham, 313 S.W.3d 545 (Ky. 2010), however, attaching the court order was not enough. There is no evidence that the records submitted with the order were in fact the records obtained via the court’s order. It was therefore an abuse of discretion in admitting the records into evidence without proper authentication.