COA 2010 Minutes June
18,
2010 (Nos.58-617)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • 37 decisions
  • Published Decisions:  6 (593; 595; 609; 610; 612; 616)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

593. GOVERNMENT EMPLOYMENT; ADMINISTRATIVE DUE PROCESS
CARREER (JAMES D.) VS. CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
VANMETER (CONCURS) AND ACREE (CONCURS)
2009-CA-000155-MR
TO BE PUBLISHED
FRANKLIN

WINE, JUDGE: James D. Carreer appeals from an order of the Franklin Circuit Court which affirmed a decision by the Kentucky Personnel Board (“the Board”) dismissing his claim against the Cabinet for Health and Family Services (“the Cabinet”). Carreer asserts that he was involuntarily transferred and demoted from his merit position without just cause. We agree with the circuit court, however, that the Cabinet acted within its statutory authority, that the Board afforded Carreer all the procedural due process to which he was entitled, and that the Cabinet presented substantial evidence to show just cause for its action. Hence, we affirm the circuit court’s order affirming the Board.

594. GOVERNMENT. FISCAL COURTS AND COUNTY CLERKS.
SHEFFIELD (TERESA) VS. GRAVES (WILBER), ET AL.
OPINION AFFIRMING IN 2009-CA-000338-MR AND REVERSING IN 2009-CA-001213-MR
WINE (PRESIDING JUDGE) NICKELL (CONCURS) AND STUMBO (CONCURS)
2009-CA-000338-MR
2009-CA-001213-MR
TO BE PUBLISHED
MONROE

WINE, JUDGE: These consolidated appeals are taken from judgments of the Monroe Circuit Court and the Ohio Circuit Court. At issue is the effect of amendments to Kentucky Revised Statutes (“KRS”) 64.530(3) and 186.040(6) on the relationship between the fiscal courts and the county clerks. Teresa M. Sheffield, the Monroe County Clerk, and Bess T. Ralph, the Ohio County Clerk, filed suit against their respective county judge/executives and fiscal courts, arguing that the statutory revisions released them from the financial control of the fiscal courts. The Monroe Circuit Court ruled in favor of the judge/executive and fiscal court, and the Ohio Circuit Court ruled in favor of the county clerk. Having reviewed the records and pertinent statutes, we affirm the judgment of the Monroe Circuit Court and reverse the judgment of the Ohio Circuit Court.

609.  GOVERNMENT EMPLOYEE ETHICS; EMPLOYMENT OF FAMILY MEMBERS BY PVA
KENTUCKY EXECUTIVE BRANCH ETHICS COMMISSION VS. ATKINSON (BETTY), ET AL.
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2009-CA-001145-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, ACTING CHIEF JUDGE: The Kentucky Executive Branch Ethics Commission appeals from an opinion and order of the Franklin Circuit Court denying its motion for summary judgment, granting the motion for summary judgment filed by Betty Atkinson and other current and former property valuation administrators (PVAs) (collectively “Appellees”)1 and enjoining the Commission to dismiss the administrative charges against Appellees for alleged violations of the Executive Branch Code of Ethics. For the following reasons, we reverse and remand.

610. ENFORCEMENT OF JUDGMENT
WILLIAMS (LINDA), ET AL. VS. OATES (WILLIAM C.), ET AL.
OPINION VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2009-CA-001182-MR
TO BE PUBLISHED
WARREN

LAMBERT, JUDGE: Linda Williams, Executrix of the Estate of Cecil Williams, appeals a July 3, 2008, order of the Warren Circuit Court overruling various motions which sought to enforce an April 15, 1991, judgment against William C. Oates. For the reasons set forth herein, we must vacate and remand for further proceedings consistent with this opinion.
Cecil Williams loaned William Oates $62,500.00 on August 30, 1990. Oates failed to repay the loan, and Williams sued Oates. Williams secured a default judgment against Oates for the loan amount plus interest on April 15, 1991.

Thereafter, various attempts were made to enforce the judgment
against Oates. However, for one reason or another, many of which are not
clear from this record, no money was ever recovered. In 2006, this
Court addressed one of Williams’ attempts to enforce the judgment.

* * *

Appellees insist that Williams was obligated to allege grounds to
support any specific orders of execution in the original complaint. Such
a task would have been impossible, however, since the debt had yet to
be established, nor had the means of execution. In fact, if Oates had
paid the original judgment, execution proceedings would not have been
necessary. Thus, we reject Appellees’ argument that Williams was barred
from setting forth a claim for “piercing the corporate veil” in any
subsequent execution proceedings because such a claim was not pleaded in
the original complaint.

For these reasons, we must vacate the July 3, 2008, order of the Warren
Circuit Court overruling various motions which sought to enforce an
April 15, 1991, judgment against William C. Oates. This case is remanded
for further proceedings consistent with this opinion. Specifically, the
trial court does have jurisdiction to consider Williams’ motions under
CR 15.04, but only to the extent that these motions seek to enforce the
1991 judgment against William C. Oates.

612. INSURANCE. DUTY TO DEFEND. INFERRED INTENT.
OWNERS INSURANCE COMPANY VS. UTLEY (TIMOTHY KEITH), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND CAPERTON (CONCURS)
2009-CA-001471-MR
TO BE PUBLISHED
CHRISTIAN

LAMBERT, JUDGE: Owners Insurance Company appeals from the Christian Circuit Court’s order denying its motion for a declaratory judgment. Owners sought a declaratory judgment determining that it was not obligated under its policy to defend or indemnify the appellee, Timothy Utley, with regard to an attack in which Utley injured a man while defending himself at a bar in Hopkinsville, Kentucky. After careful review, we affirm the order of the trial court denying Owners’ motion for declaratory judgment.

Kentucky courts have inferred intent as a matter of law in cases other than sexual molestation cases under those limited circumstances where human experience dictates that the person intended to harm another person. For instance, in Pelgren, supra, the insured suffered from mental illness and did not have the capacity to understand the physical nature of the consequences of his actions, and thus he could not form any intent. Pelgren, 241 S.W.3d at 815. However, the Court applied the doctrine of inferred intent after finding that it would be “unsound” to hold that the insured acted unintentionally when he deliberately pointed a gun at his wife’s face and pulled the trigger.

In Kentucky Farm Bureau Mut. Ins. Co. v. Coyle, 285 S.W.3d 299 (Ky. App. 2008), a panel of this Court discussed the history of the inferred intent doctrine, noting that a trial court judge is certainly not absolutely prohibited from inferring on summary judgment that an insured intended or expected damage regardless of whether the objective or subjective test is used. In some cases, it is almost irrelevant whether an objective or subjective test is applied because of the circumstances. Id. at 304.    However, the Coyle court held that in order for the doctrine of inferred intent to apply, the conduct in question must be intentional and of such a nature and character that harm adheres in it. Id. at 305. (Emphasis added).
In the instant case, Keller physically attacked Utley and threatened to kill him and harm his wife. After someone yelled that Keller had a gun, Utley used his knife to defend himself from what he thought was a potentially deadly attack. Based on these facts, it was not clearly erroneous for the trial court to conclude that Utley subjectively intended and expected nothing more than to stop Keller’s assault and to protect his wife and himself from further harm. The trial court’s conclusion that Utley did not subjectively intend to injure Keller is supported by the record. After making this factual finding, the trial court applied the subjective intent standard set out by the Kentucky Supreme Court in James Graham Brown Foundation and found that Utley did not subjectively intend to injure Keller because he was simply defending himself from Keller’s assaults. We find no clear error in the trial court’s rulings.

Finally, the doctrine of inferred intent is not applicable to the facts of this case. In order for inferred intent to apply, Utley would have had to intend to injure Keller. We simply cannot say that a man acting in self defense intends to do anything more than protect himself and others subject to the attack. Therefore, any injuries to Keller were not intentional, and under Coyle, the doctrine of inferred intent simply does not apply.

Therefore, for the foregoing reasons, the July 15, 2009, order of the Christian Circuit Court denying Owners’ motion for declaratory judgment is affirmed.

616. WORKERS COMPENSATION
PELLA CORPORATION VS. BERNSTEIN (JOYCE), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2010-CA-000171-WC
2010-CA-000282-WC
TO BE PUBLISHED
WORKERS' COMP

LAMBERT, JUDGE: Pella Corporation appeals a December 23, 2009, opinion rendered by the Workers’ Compensation Board which affirmed in part and vacated in part an Administrative Law Judge’s (ALJ’s) decision determining, among other things, that Joyce Bernstein failed to prove compensable claims for left and right shoulder injuries. Regarding the left shoulder, the Board vacated the ALJ’s ruling because the ALJ mistakenly believed that he was without authority to find an impairment rating for that shoulder. Pella claims this holding is erroneous as a matter of law.

Bernstein cross-appeals, alleging the Board erred in affirming the ALJ’s determination that she failed to prove a permanent right shoulder injury. After careful review, we affirm the Board’s opinion.

TORT REPORT – CIVIL, TORTS, INSURANCE CASES.

PUBLISHED DECISIONS FROM ABOVE:

612. INSURANCE. DUTY TO DEFEND. INFERRED INTENT.
OWNERS
INSURANCE COMPANY VS. UTLEY (TIMOTHY KEITH), ET AL.
OPINION
AFFIRMING

616. WORKERS COMPENSATION
PELLA
CORPORATION VS. BERNSTEIN (JOYCE), ET AL.
OPINION AFFIRMING

NONPUBLISHED DECISIONS.

581. CONSTRUCTION. EXPERT FEES. ATTORNEY FEES.
KESSLER HOMES, INC. VS.PETZOLD (ADOLPH), ET AL.
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND CLAYTON (CONCURS)
2006-CA-001127-MR
2006-CA-001179-MR 2006-CA-001928-MR
NOT TO BE PUBLISHED
FAYETTE

585. MEDICAL MALPRACTICE.  EXPERT WITNESSES.
TUCKER (CHRISTOPHER), ET AL. VS. WOMEN'S CARE PHYSICIANS OF LOUISVILLE, P.S.C.,
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2008-CA-001929-MR
NOT TO BE PUBLISHED
JEFFERSON

WINE, JUDGE: Christopher Tucker, as Administrator of the Estate of Mindi Tucker and as next friend of Tucker’s children, and Donald McNay, as Conservator for Mindi Tucker’s minor children (collectively “the Estate”) appeal from a judgment of the Jefferson Circuit Court which confirmed a jury verdict in favor of Women’s Care Physicians of Louisville, P.S.C. (“WCP”) and Dr. Susan Bunch in a medical malpractice action. The Estate argues that the trial court abused its discretion by excluding the testimony of two expert witnesses. Since the Estate has not shown that the testimony was relevant to the factual issues in dispute, we find no abuse of discretion. Hence, we affirm.

596. SOVEREIGN IMMUNIY.
THOMPSON (PATRICIA), ET AL. VS. CITY OF CALHOUN, KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE) (CONCURS WITH RESULT AND FILES SEPARATE OPINION)
2009-CA-000442-MR
NOT TO BE PUBLISHED
MCLEAN
CLAYTON, JUDGE: This is an appeal from the McLean Circuit Court after the trial judge granted summary judgment finding that the City of Calhoun (the City) and, therefore, the Deputy Coroner, had sovereign immunity. For the reasons that follow, we affirm the decision of the trial court.

599. MALICIOUS PROSECUTION
LAWSON (JAMES D.) VS. SWORD (EDDIE), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND ACREE (CONCURS)
2009-CA-000655-MR
NOT TO BE PUBLISHED
PIKE

600. LEGAL MALPRACTICE.
FREEMAN (TONIA T.) VS. BECKER LAW OFFICE, PLC, ET AL.
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
VANMETER (CONCURS) AND STUMBO (CONCURS)
2009-CA-000676-MR
NOT TO BE PUBLISHED
JEFFERSON

604. MEDICAL MALPRACTICE.
THREE RIVERS MEDICAL CENTER
VS.
SAVAGE (SOPHIA), ET AL.

OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-000818-MR
NOT TO BE PUBLISHED
LAWRENCE

TAYLOR, JUDGE: Three Rivers Medical Center brings this appeal from a March 13, 2009, judgment of the Lawrence Circuit Court upon a jury verdict awarding Sophia Savage and Darrell Savage $2,500,000 in a medical negligence action. We reverse and remand. ***

We note that in the trial court’s order of July 17, 2008, granting a new trial, the trial court noted that even without the x-rays there was “ample evidencE upon which the jury could determine that the sponge left in the Plaintiff’s abdomen was left during the surgery performed by Three Rivers Medical Center in December 2001.” However, from our review of the record, absent the evidence we have discussed in this opinion, there appears very little evidence to support this conclusion and what evidence is available is not competent to support the trial court’s conclusion or a jury verdict. Without the necessary expert evidence, “there [was] a complete absence of proof on a material issue in the action,” thus entitling the Medical Center to a JNOV. Fister, 133 S.W.3d at 487 (quoting Taylor, 700 S.W.2d at 416.).
Accordingly, we must reluctantly conclude that the trial court erred by denying the Medical Center’s motion for JNOV after the first trial.

We view the Medical Center’s remaining arguments as moot.

613. WORKERS COMP.
CALDWELL (ANDREW)
VS.
HUBBLE (RICHARD)

OPINION AFFIRMING
WINE (PRESIDING JUDGE)
VANMETER (CONCURS) AND ACREE (CONCURS)
2009-CA-001512-MR
NOT TO BE PUBLISHED
FAYETTE

617. WORKERS COMPENSATION.
RUDOLPH (ANITA)
VS.
JEFFERSON COUNTY PUBLIC SCHOOLS, ET AL.

OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
VANMETER (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000293-WC
NOT TO BE PUBLISHED
WORKERS' COMP