Bell County Court House, Pineville, Kentucky. Built 1888. Fire 1914. Image courtesy of Keith Vincent, www.CourtHouseHistory.com
Published Court of Appeals appellate cases for this week –
August 21, 2015:
701. Criminal. Probation revocation.
Brann v Commonwealth of Kentucky
Graves County; COA Opinion Vacating and Remanding
On appeal, Brann argues that the trial court abused its discretion in revoking his probation in light of recently enacted Kentucky Revised Statutes (KRS) 439.3106 and that the trial court’s findings were insufficient and amounted to a violation of his constitutional due process rights.
Probation revocation hearings rest within the trial court’s discretionary powers “both in respect to initiation of a hearing and the disposition thereof.” Ridley v. Commonwealth, 287 S.W.2d 156, 158 (Ky. 1956).
In the instant case, the trial court did not articulate that it had considered KRS 439.3106 in its order revoking Brann’s probation. Thus, we vacate the Graves Circuit Court’s order revoking Brann’s probation and remand for consideration under KRS 439.3106 in light of the Supreme Court of Kentucky’s opinion in Andrews.
704. Insurance. UIM.
Leport vs. Allstate Insurance Co.
Greenup County; COA Opinion Affirming
Jessica D. LePort (Jessica) appeals from orders entered by the Greenup Circuit Court pertaining to the trial of her complaint for underinsured motorist (UIM) benefits. Jessica contends that had the trial court ruled differently, especially on evidentiary matters, jurors would not have awarded her zero dollars for both future medical expenses and pain and suffering in light of the parties having stipulated to nearly $22,000.00 in past medical expenses. Upon review of the record, the briefs and the law, we affirm.
The at-fault driver Stone was intoxicated and pled guilty to drunk driving. LePort sued, settled for Stone’s liability limits, then amended complaint to bring in Allstate and pursue a contractual claim for UIM benefits. With the defendant driver’s fault having been established early on, the parties stipulated to past medical expenses of $21,805.00, as well as the authenticity of Jessica’s medical records. This left only two questions for jurors to resolve at trial —was Jessica injured, and if she was, the extent, if any, to which she was entitled to awards for future medical expenses and/or pain and suffering. Allstate was successful in keeping out evidence of intoxication and obtained partial summary judgment on the claim for punitives which were excluded in the UIM policy. After deliberating about ninety minutes, eleven jurors agreed she should receive “$0” for pain and suffering, and all twelve agreed she should receive “$0” for future hospital and medical services. As the proof shows, Jessica received no actual treatment; her medical expenses were primarily for diagnostic tests (x-rays, MRIs and range of motion studies). Motions for a new trial, to set aside the jury verdict and to alter, amend or vacate the verdict were denied. Jessica timely appealed to this Court. The COA affirmed.
714. Claims against dealer arising from “as is” sale of auto
Evans vs. JNT, Inc. d/b/a Kar Smart [this link has now been corrected thanks to a reader!/mike]
Fayette County; COA Opinion Affirming in Part, reversing in part, and remanding
We agree with the trial court that their claims for breach of contract, negligent misrepresentation, and breach of express and implied warranties were precluded based upon the “As Is” clause in the purchase contract. However, we conclude that the “As Is” clause did not preclude the claim for intentional misrepresentation, or for violations of the damage disclosure requirements of KRS 186A.540 and the Kentucky Consumer Protection Act (KCPA). Hence, we affirm in part, reverse in part, and remand for additional proceedings.
715. Divorce. Choice of Law re maritial property and Connecticut disability retirement benefits as non-martial
Cherryl Kirilenko vs. Kenneth Kirilenko
Boyle County; COA Opinion reversing and remanding
We agree with Cherryl that, under the particular facts of this case, Connecticut has the most significant relationship to the asset in question. Consequently, we reverse the trial court’s judgment and remand for additional findings of fact and conclusions of law concerning the divisibility of those benefits under Connecticut law.
Selected “not to be published” decisions on tort, insurance and civil from Aug. 21, 2015:
No not to be published but see zero pain and suffering UIM verdict above Leport vs. Allstate
See “boldfaced” decisions above that are published.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).
AOC version of this week’s decisions can be accessed by clicking here.
The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.
[gview file=”https://kycourtreport.com/wp-content/uploads/2015/08/MNT08212015.pdf”]
