COA 2011 Minutes for April 1, 2011 — Nos. 313 – 346

COA 2011 Minutes for April 1, 2011 –   Nos. 313 – 346 

• Click on the above link for the full text of minutes with link to full text of each decision.
• Link to AOC Page with current minutes and archived minutes links
• Total number of decisions:  34 decisions this week
• Published Decisions:6 published
  • 322 Fegley v. Commonwealth
  • 326 Davis v. Davis
  • 332 Kindred Nursing Ceners v. Brown
  • 333 Burton v. Kentucky State Police
  • 338 O'Bannon v. Allen
  • 341 Foster v. Fortner
• Decisions order to be published
  • Standford Health & Rehab v. Lucile Brock
    TAYLOR, JUDGE: Stanford Health & Rehabilitation Center, Beverly Health and Rehabilitation Services, Inc., Beverly Enterprises, Inc., Beverly California Corporation a/k/a Beverly Enterprises, Inc. d/b/a Beverly Health and Rehabilitation Services, Inc., Golden Living Center – Stanford, and GGNSC Stanford LLC (Stanford Health) brings this appeal from a July 25, 2007, Order of the Lincoln Circuit Court which denied Stanford Health’s motion to compel arbitration. We vacate and remand.
  • Forbes v. Dixon Electric
    KNOPF, SENIOR JUDGE: Andrew and Betty June Forbes have appealed from a summary judgment of the Fayette Circuit Court in favor of Dixon Electric, Inc.  The circuit court held that Dixon Electric was entitled to up-the-ladder immunity afforded by KRS 342.610 of Kentucky’s Workers’ Compensation Act. We affirm.

DIXON, JUDGE: Appellant, Jesse Fegley, appeals from an order of the Jefferson Circuit Court denying his motion for postconviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42. For the reasons set forth herein, we reverse and remand the matter for a new sentencing hearing in accordance with this opinion.

326.  Business Law
DAVIS (WILLIAM TODD)
VS.
DAVIS (CAROLYN), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2009-CA-002127-MR
TO BE PUBLISHED
FLEMING

LAMBERT, JUDGE: William Todd Davis (Todd) has appealed from the judgment of the Fleming Circuit Court in favor of William E. Davis and Carolyn Davis, d/b/a Asphalt Maintenance Specialists, (the plaintiffs or the appellees) awarding them $124,196.57 as well as several items of equipment. Todd contends that the trial court committed reversible error in its judgment related to the ownership of the company and its equipment, as well as to the money he owed for real estate and improvements, misappropriation of business funds, and improperly obtaining clients and contracts. Having reviewed the record on appeal and the parties’ arguments in their respective briefs, we find no error and affirm the trial court’s judgment.

333.  Civil Rights Claim; election of remedies; immunity
BURTON (REBECCA)
VS.
KENTUCKY STATE POLICE , ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000292-MR
TO BE PUBLISHED
FRANKLIN

CAPERTON, JUDGE: Rebecca Burton appeals from the grant of summary judgment in favor of the Appellees – the Kentucky State Police (“KSP”), Tracy Collins,2 Anthony Terry,3 Curt Hall,4 and John Jack Adams5 – by the Franklin Circuit Court. On appeal Burton asserts that the trial court erred in its grant of summary judgment. After a thorough review of the parties’ arguments, the record, and the applicable law, we disagree with Burton and, accordingly, affirm.

The trial court agreed with the Appellees that they were entitled to summary judgment based on the doctrine of election of remedies, and that they were entitled to official immunity and qualified immunity. Additionally, the trial court found that, even conceding all facts alleged by Burton to be true, she had failed to state a claim upon which relief can be granted. The trial court found that her allegations were not sufficient to sustain her claims of hostile work environment, sexual harassment, constructive discharge, or intentional infliction of emotional distress.

338.  Venue for wrongful death action.
O'BANNON (CHASITY MICHELLE), ET AL.
VS.
ALLEN (BILLY R.)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND ISAAC (CONCURS)
2010-CA-000695-MR
TO BE PUBLISHED
MUHLENBERG

KELLER, JUDGE: Chasity Michelle O'Bannon, individually and as administratrix of the estate of Roy Ray O'Bannon, and as mother and next friend of Mackenzie Paige, Kaleigh Anne, and Hayden Drake O'Bannon (hereinafter referred to collectively as the “O'Bannons,” and individually by their first names), appeals from the circuit court's order dismissing a wrongful death action against Dr. Billy R. Allen (Dr. Allen). On appeal, the O'Bannons argue that the trial court incorrectly determined that Muhlenberg County was not the proper venue for their claim. Having reviewed the record and the arguments of counsel, we affirm.

341.  Foreign judgment.
FOSTER (TROY W.)
VS.
FORTNER (TANYA)
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2010-CA-001010-ME
TO BE PUBLISHED
JOHNSON

LAMBERT, JUDGE: Troy Foster appeals from the Johnson Circuit Court’s April 30, 2010, judgment registering a foreign order from Georgia in the state of Kentucky and holding a prior judgment entered in Kentucky Case No. 03-C-00240 to be void as a matter of law. After careful review, we reverse.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT

318. Sexual harassment.
ELDRED (FRANK)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
NICKELL (CONCURS) AND STUMBO (CONCURS)
2009-CA-001418-MR
NOT TO BE PUBLISHED
RUSSELL

328 Medical negligence.  Experts on standard of care.
MORGAN (BROOKE A.)
VS.
GLAZER (JEFFREY D.)
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000056-MR
NOT TO BE PUBLISHED
JEFFERSON

AYLOR, CHIEF JUDGE: Brooke A. Morgan brings this appeal from an October 29, 2009, judgment of the Jefferson Circuit Court granting summary judgment in favor of Jeffrey D. Glazer, M.D. and dismissing Morgan’s complaint alleging medical negligence. We affirm.

In order to maintain a claim for negligence, plaintiff must prove duty, breach, causation, and injury. Grubbs v. Barbourville Family Health Center, PSC, 120 S.W.3d 682 (Ky. 2003). Generally, the negligence of a physician must be established by expert medical testimony.    Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963). To do so, a medical expert must testify to: “(1) the standard of skill expected of a reasonably competent medical practitioner and (2) that the alleged negligence proximately caused the injury.” Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006).
However, in this Commonwealth, we have recognized two exceptions to the general rule requiring expert testimony in a medical malpractice case. Id. With these two exceptions, expert medical testimony is not required to establish negligence. The first exception is applicable where a layperson with general knowledge would have no difficulty recognizing the negligence. In this exception, the medical negligence is within the knowledge and understanding of an individual with no medical training. Id. The second exception “occurs when ‘medical experts may provide a sufficient foundation for res ipsa loquitur on more complex matters.’” Id. at 170 (quoting Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992)).
In this case, there existed ultrasound reports indicating the presence of Morgan’s right ovary after Dr. Glazer’s surgery and expert testimony that Morgan’s right ovary could be absent due to reasons other than surgical removal – devascularization or retroperitonealization. Morgan’s only expert evidence consisted of the testimony of her treating physician, Dr. Tsung. However, Dr. Tsung did not testify that Dr. Glazer breached the standard of care in his treatment of Morgan, that Morgan’s right ovary was previously removed by Dr. Glazer, or that Dr. Glazer was otherwise negligently responsible for the absent right ovary. Dr. Tsung simply testified that the right ovary was absent during the surgical procedure he performed in 2007.

343.  Torts. No fault act.  PIP motorcycle rejection.
BRUNER (JEFFREY C.)
VS.
VENABLE (FALLON)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
ACREE (CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION) AND TAYLOR (DISSENTS)
2010-CA-001077-MR
NOT TO BE PUBLISHED
FAYETTE

COMBS, JUDGE:    Jeffrey C. Bruner appeals a judgment of the Fayette Circuit Court entered on May 27, 2010. In a case involving a vehicular accident, Bruner contends that the trial court erred by granting the appellee a $10,000.00 credit for no-fault benefits when he did not collect those benefits from his insurer. Finding no error, we affirm.
On June 9, 2008, Bruner sustained serious personal injuries when an automobile driven by Fallon Venable, the appellee, collided with his motorcycle. As a result of the collision, Bruner incurred more than $31,000.00 in medical and related expenses. Both Venable and Bruner were properly insured. However, Bruner had not purchased the optional personal injury protection (PIP) coverage offered by his insurer, Geico. On March 20, 2009, Bruner filed this personal injury action against Venable.
Following presentation of the evidence and a period of deliberation, a jury awarded Bruner and his wife more than $250,000.00. In its judgment, the trial court reduced the jury’s verdict against Venable by $10,000.00 for the no-fault benefits that would have been payable by Geico had Bruner purchased PIP benefits from his insurer. Bruner contends that Venable is liable in tort for the full amount of his medical expenses — including the initial $10,000.00 — that would otherwise have been payable by Geico had he purchased the optional PIP coverage. We disagree.

345.  Workers Comp.
KELVIN CORPORATION
VS.
NAVA-GARCIA (ALEJANDRO), ET AL.
OPINION AFFIRMING
ISAAC (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS AND FILES SEPARATE OPINION)
2010-CA-001362-WC
NOT TO BE PUBLISHED
WORKERS' COMP