Flagler Memorial Bridge, West Palm Beach, Florida. Photo from PalmBeachPost.com
Kentucky Court of Appeals announced 30 decisions on February 6, 2015, with 4 opinions designated to be published – Flick vs. Estate of Christina Wittich (wrongful death and statute of limitations); McVicker vs. McVicker (family court judge abused discretion); Harrell vs. Unfund CCR Parters (denial of prejudgment interest in Fair Debt Collection Practices Act vacated by COA); and S.(J.) vs. Katherine Berla E.d.D. (affirmed immunity to court appointed psychologist for civil and criminal liability for statements submitted to court).
The “Tort Report” includes: Flick vs. Estate of Christina Wittich (wrongful death and statute of limitations)(published); Bray vs. Ronnie Dick et al (Nonpublished opinion – NPO)(affirmed trial court’s denial of apportionment motion in premises liability); Motorists Mutual Ins. Co. vs. Gypsie Thacker (NPO) (reversed and remanded $1.9 million in uninsured motorist benefits awarded in Florida accident when court denied defendant insurer access to plaintiff’s psychotherapy records after judge’s in camera review there was no information relevant to injury plaintiff’s claims nor would lead to discovery of relevant evidence); Robert McAuliffe vs. Sleepy Hollow, Inc. (NPO) (affirmed summary judgment dismissing counterclaim of defendant for wrongful initiation of civil proceedings); Clyde Chapman vs. Michelle Murray, DPM (NPO) (vacating and remanding judge’s dismissal of medical negligence claims against Dr. Murray, Hospital of Louisa).
The published decisions are briefly digested below, with a complete copy of this week’s COA minutes. The case names of the tort reported decisions are highlighted in yellow below!
Click here for links to all the archived AOC Court of Appeals minutes
Click here for all of a listing of our 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).
The published decisions are (continue reading below the fold):
91. Wrongful Death Claim. Statute of Limitation. Accrual of cause of action following defendant’s indictment.
Michael Flick vs. Estate of Christina Wittich
COA Published 2/6/2015
Opinion Reversing and Remanding (Fayette Cir Ct – Judge Thomas Clark)
MAZE, JUDGE: Michael Joseph Flick appeals from a judgment of the Fayette Circuit Court finding him liable for the wrongful death of Christina Wittich and awarding compensatory and punitive damages to Wittich’s Estate. Flick primarily argues that the trial court erred by denying his motion to dismiss because the complaint was filed beyond the one-year statute of limitations for wrongful death provided under KRS1 413.140(1). We conclude that the cause of action against Flick accrued no later than the date of his indictment, and, by operation of KRS 413.180, the Estate had two years from that date to bring the complaint. Since this action was not brought within that time, the trial court erred by denying the motion to dismiss. Hence, we reverse the judgment and remand for entry of an order dismissing the complaint.
98. Family Law. Judge orders on non-marital property, valuing marital shares, and maintenance award were vacated for abuse of discretion
Cynthia McVicker vs. William McVicker
COA Published 2/6/2015
Opinion Reversing in Part, Vacating in Part, and Remanding (Hardin County, Judge Pam Addington)
BEFORE: ACREE, CHIEF JUDGE; JONES AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE: In this dissolution action, Cynthia McVicker has appealed from the April 23, 2013, and June 25, 2013, orders of the Hardin Family Court and seeks review of the assignment of non-marital property, the division of marital property, and the failure to award maintenance. We have carefully examined the record and reviewed the parties’ briefs, and finding that the family court erred and abused its discretion, we reverse in part and vacate in part, and remand for further proceedings. * * *
As set forth in Sexton, [Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004)]. William had the burden to establish his claimed non-marital interest in the property. Cynthia contends that the family court did not have a basis for finding a non-marital interest in the 1977 home because William failed to produce any evidence of his actual ownership interest in that property at the time of the marriage or evidence of the net proceeds from the sale of that home in the form of documentation. We must agree with Cynthia that William failed to meet his burden of proving that he retained a non-marital interest in the marital residence. * * *
Next, Cynthia argues that the family court abused its discretion in failing to consider the value of their respective marital vehicles and properly divide this marital property. In the order denying her CR 52.02 and CR 59.05 motion for relief, the family court stated that the value of her vehicle was not established at the hearing. We agree with Cynthia that this is incorrect, as she provided documentary evidence to establish the fair market value of her Honda Pilot as well as the outstanding balance of the loan for that vehicle. On remand, the family court shall consider the value of the parties’ respective vehicles in dividing the marital assets. * * *
Based upon our decision above to reverse the family court’s assignment of non-marital interests and division of marital property, we must vacate the family court’s decision on maintenance. On remand, after the court has properly assigned and divided the marital and non-marital (if any) property, it must determine whether Cynthia is entitled to an award of maintenance considering the factors in KRS 403.200(1). If she is entitled to such an award, the court must then determine the amount and duration of maintenance to which she is entitled, considering the factors set forth in KRS 403.200(2), which includes the standard of living established during the marriage. The family court should not have considered this factor in determining whether Cynthia was entitled to maintenance; only if maintenance is found to be appropriate does the family court have to consider this factor.
102. Consumer Law. Denial of prejudgment interest in Fair Debt Collection Practices Act vacated by COA
Harrell vs. Unfund CCR Parters
COA Published 2/6/2015
Opinion Vacating and Remanding (Nelson Cir. Ct. Judge Charles Simms III)
BEFORE: CAPERTON,1 COMBS, AND VANMETER, JUDGES.
COMBS, JUDGE: Carol Harrell appeals the order of the Nelson Circuit Court dismissing her counterclaim against Unifund CCR Partners pursuant to the provisions of Kentucky Rule[s] of Civil Procedure (CR) 12.02. The circuit court concluded that the prayer for statutory prejudgment interest included in Unifund’s collection action against Harrell did not violate the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et. seq. Therefore, the court dismissed Harrell’s counterclaim. In harmony with the recent decision of the United States Court of Appeals in Stratton v. Portfolio Recovery Associates, LLC, 770 F.3d 443 (6th Cir. 2014), we are persuaded to vacate the order and to remand for further proceedings.
106. Immunity. Affirmed immunity to court appointed psychologist for civil and criminal liability for statements submitted to court
S.(J.) vs. Katherine Berla E.d.D.
COA Published 2/6/2015
Opinion Affirming (Franklin Cir. Ct. Judge
BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND VANMETER, JUDGES.
VANMETER, JUDGE: Generally speaking, a psychologist appointed by the court to conduct a custody evaluation is immune from civil and criminal liability for verbal statements made to the Cabinet for Health and Family Services (“Cabinet”) and for written statements submitted to the court through a final report. The issue presented on appeal is whether the Oldham Circuit Court erred in ruling that Katherine Berla was entitled to immunity under the facts of this case. We find that the family court did not err, and therefore affirm.
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