COA 2011 Minutes for May 13, 2011 — Nos. 471-490

COA 2011 Minutes for May 13, 2011 –   Nos. 471-490

475. CRIMINAL PROCEDURE.
HOWARD (VINCENT TODD)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND WINE (CONCURS)
2009-CA-002399-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: This is an appeal of the denial of a motion to suppress. We affirm the decision of the trial court.  Howard filed a motion to suppress with the trial court, arguing that the search warrant Detective Dixon used was not supported by probable cause. After a suppression hearing, the trial court overruled his motion to suppress and Howard entered a conditional guilty plea to one count of trafficking in marijuana, eight ounces to less than five pounds. He was sentenced to one year in prison, to be served concurrently with a federal term he is serving.  Howard filed this appeal, arguing that the Fourth and Fourteenth Amendments to the U.S. Constitution and Section 10 of the Kentucky Constitution require suppression of all evidence obtained as a result of the execution of the search warrant because the affidavit for the search warrant contained insufficient facts to establish probable cause and that the “good faith exception” was inapplicable.

478. ELECTIONS. LOCAL OPTION ELECTION. WET/DRY.
GROW TRIGG, INC.
VS.
TRIGG COUNTY/ JUDGE EXECUTIVE, ET AL.
OPINION REVERSING
COMBS (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000269-MR
TO BE PUBLISHED
TRIGG

COMBS, JUDGE:    Grow Trigg, Inc., appeals a declaratory judgment of the Trigg Circuit Court that permits a precinct in Trigg County to hold a local option (wet/dry) election. Following careful review, we reverse.

Grow Trigg argues that the statutory scheme governing local option elections prohibits Montgomery Precinct from holding an election until three years after the county-wide election. After examining the pertinent law, we are compelled to agree.

484.  WORKERS COMPENSATION
SCHMIDT (RICHARD)
VS.
SOUTH CENTRAL BELL, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-000986-WC
TO BE PUBLISHED

LAMBERT, JUDGE: Richard Schmidt has petitioned this Court for review of the decision of the Workers’ Compensation Board (Board), which affirmed the decision of the Administrative Law Judge (ALJ) finding that South Central Bell was no longer responsible for the payment of future medical payments based upon the $3,500.00 cap on the amount of medical expenses an employer must pay in the version of Kentucky Revised Statutes (KRS) 342.020 in effect at the time of Schmidt’s injury. Because we agree with Schmidt that the amendment to KRS 342.020 removing the cap was retroactive, and therefore applied to him, we reverse the Board’s decision.

488.  WORKERS COMPENSATION
COMMONWEALTH OF KENTUCKY, UNINSURED EMPLOYERS' FUND
VS.
ROGERS (JESSIE), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
VANMETER (CONCURS) AND THOMPSON (CONCURS AND FILES SEPARATE OPINION)
2010-CA-001375-WC
2010-CA-001485-WC
TO BE PUBLISHED

COMBS, JUDGE:    The Commonwealth of Kentucky, Uninsured Employers’ Fund (the Fund), appeals from the decision of the Workers’ Compensation Board that vacated in part and remanded this matter to the Administrative Law Judge for further proceedings. William Ballard, the injured employee, cross-appeals. Following our review, we affirm the decision of the Workers’ Compensation Board.

Since Ballard had worked for Rogers for only three hours before he sustained the work-related injury, the ALJ determined that his average weekly wage must be calculated in accordance with the provisions of Kentucky Revised Statute[s] (KRS) 342.140(1)(e). This statute requires the fact-finder to ascertain how much money the injured employee “would have earned had he or she been so employed by the employer the full thirteen (13) calendar weeks immediately preceding the injury and had worked, when work was available to other employees in a similar occupation[.]” KRS 342.140.

The calculation of a workers’ compensation benefits award is controlled by statute. It is a question of law and can be decided by the Board. Whittaker v. Reeder, 30 S.W.3d 138 (Ky. 2000). Here, the Board was fully within its authority to determine that the ALJ’s computation of Ballard’s average weekly wage failed to provide a realistic estimate of his earning capacity in accordance with the provisions of KRS 342.140. KRS 342.285(2)(c).
It is also within the Board’s authority to modify an award to insure that it complies with the provisions of the Workers’ Compensation Act. Whittaker, supra. Under the circumstances of this case, where insufficient proof had been introduced to permit a proper calculation of Ballard’s average weekly wage under the unique requirements of KRS 342.140(1(e), we believe that the Board was within its authority to remand the matter to the ALJ for further proceedings. In so doing – despite the Fund’s contentions, the Board has not ignored or excused the employee’s obligation to present the required proof. Instead, the Board has insisted that Ballard provide to the ALJ the proof necessary to calculate correctly the value of his award. Remand was not a misuse of the Board’s power but a wholly proper and necessary procedural decision.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT

471.  ENFORCING OUT OF STATE JUDGMENT.
CHILDERS (LOUIE E.)
VS.
EVANS MANAGEMENT, INC.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2008-CA-000334-MR
NOT TO BE PUBLISHED
HARLAN

STUMBO, JUDGE: In the case before us, Louie Childers is appealing an order of the Harlan Circuit Court which set aside a previous order of the same court enforcing a judgment from Tennessee against Evans Management. The trial court found that the Tennessee court did not have jurisdiction over Evans Management. Childers argues that Tennessee had jurisdiction over Evans Management, that the
Tennessee judgment is entitled to full faith and credit and should be enforced in Kentucky. Evans Management argues that it has never done any business in Tennessee and there were not sufficient contacts with the state for it to have jurisdiction. We agree with the trial court’s finding that Tennessee did not have jurisdiction over Evans Management and affirm the trial court’s order.

472
GARLOCK SEALING TECHNOLOGIES, LLC.
VS.
ROBERTSON (DOLORES ANN), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND WINE (CONCURS)
2009-CA-000483-MR
NOT TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: Garlock Sealing Technologies, LLC, appeals the Jefferson Circuit Court’s judgment and order of December 1, 2008, in favor of Dolores Ann Robertson individually and as executrix of the estate of Thomas E. Robertson.  Because Garlock was not entitled to a directed verdict and because the award of punitive damages was proper, we affirm the judgment.

Thomas Robertson was employed as a pipefitter-welder from 1961 until he retired in 1999. During that time he came into contact with a variety of asbestos- containing products, including Garlock gaskets. He was diagnosed with lung cancer in March 2006 and passed away as a result of that disease in July 2006.
Robertson’s widow, Dolores, brought an action on behalf of his estate alleging multiple claims against multiple defendants, including claims against Garlock for strict liability, negligence and breach of warranty, claiming Robertson’s exposure to asbestos-containing Garlock gaskets had contributed to his illness and led to his death.1    She also brought a claim in her individual capacity for loss of consortium. Prior to trial, Dolores settled claims against all defendants except Garlock and E.I. DuPont De Nemours and Company.2
Following a lengthy trial, a jury returned a verdict against the defendants and awarded damages to the estate totaling $1,471,870.00, including $97,418.00 for necessary and reasonable medical expenses, $565,158.30 for loss of income, $400,000.00 for physical and mental pain and suffering, $9,294.10 for necessary and reasonable funeral expenses, and $400,000.00 in punitive damages. The jury also awarded Dolores $50,000 on her loss of consortium claim. Twenty-five percent of the liability for the compensatory damages was apportioned to Garlock; the $400,000 punitive damage award was assessed only against Garlock. Therefore, Garlock was ordered to pay $667,967.50 to the estate and $12,500 to Dolores. This appeal followed.

The estate prevailed at trial under two theories. The first, a strict liability claim, was based on the theory that the product was defective, either in its design, or due to the manufacturer’s failure to provide adequate instructions or warnings, or both.3    See Restatement (Third) Torts: Product Liability § 1 (1998). The second claim was that Garlock negligently failed to provide adequate warnings about the dangers of its gaskets. In the instant case, the jury found that Garlock was both strictly liable and negligent in causing Robertson’s illness and death.

Given the weak nature of Garlock’s evidence on this matter, and the comparatively strong nature of the estate’s evidence, the jury could have reasonably concluded there was a feasible safer alternative.

In sum, we conclude that none of Garlock’s arguments challenging the denial of its motions for directed verdict as to liability is sufficiently persuasive to justify reversal.

Garlock also appeals the circuit court’s denial of its motion for a directed verdict on the issue of punitive damages, asserting the plaintiffs were not entitled to them because: (1) there was no evidence Garlock’s conduct was reprehensible, and therefore an award of punitive damages violates federal due process requirements; and (2) Garlock’s behavior was not so outrageous under Kentucky law as to merit punishment and deterrence. Garlock also argues the circuit court erroneously failed to include the definition of malice in the jury instructions.

Therefore, considering the Campbell reprehensibility factors, we cannot agree with Garlock that there was no evidence of reprehensibility.

Garlock’s next argument is that Kentucky law does not permit an award of punitive damages in the instant case. We disagree. Given all the evidence, much of which has been described earlier in this opinion, the jury was entitled to conclude that Garlock’s failure to discover the dangers inherent in the removal of their gaskets and the failure to adequately warn Robertson constituted “gross negligence, recklessness, wantonness, or some other such term.” Williams, 972 S.W.2d at 263.

Finally, Garlock contends the circuit court erred in failing to define “malice” in the jury instruction in accordance to KRS 411.184(1)(c). 

Gilbert and Caneyville do not address KRS 411.184(1)(c) and are distinguishable on the other grounds noted. They do not overrule Williams.
Therefore, it would have been improper to include in the jury instruction the unconstitutional statutory definition of malice set forth in KRS 411.184(1)(c).

Because the jury’s verdict was based upon reasonable conclusions supported by substantial evidence, we affirm the circuit court’s denial of Garlock’s motions for a directed verdict. We also affirm the assessment of punitive damages against Garlock as the award did not violate federal due process standards and was permissible under Kentucky law. Garlock was not entitled to a jury instruction on the definition of malice codified in KRS 411.184(1)(c). Therefore, we affirm.

474.  INSURANCE COVERAGE.  POLICY EXCLUSIONS RE NON-OWNED VEHICLE.
THE ESTATE OF BENITA WIRLEEN DIXON, BY AND THROUGH GRED DIXON, ADMINISTRATOR; AND GREG DIXON INDIVIDUALLY
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002361-MR
NOT TO BE PUBLISHED
PIKE

VANMETER, JUDGE:    The Estate of Benita Wirleen Dixon, by and through Greg Dixon, Administrator, and Greg Dixon, individually (hereinafter collectively referred to as “Dixon”), appeal from the Pike Circuit Court order granting summary judgment in favor of State Farm Mutual Automobile Insurance Company (“State Farm”). For the following reasons, we affirm.
In 2006, Lafe Ward, a West Virginia resident and 50% owner and vice president of Ward and Associates, a West Virginia law firm, was operating a Lincoln Aviator owned by the law firm when he was involved in a car accident in Kentucky with Benita Wirleen Dixon, also a West Virginia resident. Benita Dixon died from the injuries she sustained in the accident.

Dixon maintains the trial court erred by finding the State Farm policy did not provide coverage for the Lincoln Aviator that Lafe was operating at the time of the accident. Specifically, Dixon contends the Lincoln Aviator is covered under the “non-owned” vehicle provision of the policy; the language of the policy is ambiguous and unenforceable; and the failure to find coverage in this case violates the public policy of Kentucky.2    We disagree.