Here are the decisions announced and posted by the Court of Appeals in their weekly minutes. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis.
572. Torts. Asbestos Claim Against Manufacturer. Summary judgment.
Mannahan v, Eaton Corporation
Court of Appeals Published Opinion Affirming Jefferson Cir. Ct. Summary Judgment dismissing plaintiff’s asbestos injury claim against manufacturer finding no genuine issue of material fact.
575. Torts. Qualified Immunity of Court Appointed receiver.
John M. Farmer MD v. Miller
Court of Appeals Published Opinion Reversing Jefferson Cir Ct. opinion and order dismissing his action against Stephen H. Miller on grounds of qualified immunity for services as receiver (officer of court).
576. Garnishment. Family Court
Lee v. Lee
Court of Appeals Published Opinion Affirming Jefferson Family Ct. order of the Jefferson Circuit Court denying John’s motion to quash a garnishment order issued on behalf the Appellees, John’s former wife, Jill Lee (now Stanley), and her attorney, Louis Waterman.
577. Criminal Law. Prosecutorial vindictiveness.
Commonwealth of Kentucky v. Perry
Court of Appeals Published Opinion REVERSING and REMANDING Jefferson Cir Ct. and held the doctrine of prosecutorial vindictiveness was not applicable and did NOT preclude the Commonwealth from pursuing additional charges against Bobby Perry after he successfully appealed his conviction.
578. Torts. Diversion of business opportunity. Inadequate findings.
Patmon v. Hobbs
Court of Appeals Published Opinion REVERSING and REMANDING Jefferson Cir Ct to reconsider the amount of damages awarded for Hobbs’s breach of his duties under KRS 275.170. However, although possibly overlapping those damages, Hobbs may be liable for more than merely the profit from the diversion of the O’Reilly leases.
As we stated earlier, Patmon I recognized a new common law tort in this Commonwealth when it adopted the doctrine of diversion of business opportunity. Therefore, in addition to statutory damages, if the trial court finds on remand that American Leasing was not financially insolvent, the measure of damages is the lost profit the corporation would have received had the opportunity not been diverted. Stewart v. Ky. Paving Co., Inc., 557 S.W.2d 435 (Ky.App. 1997). That was the direction given in Patmon I. Patmon I, 280 S.W.3d at 598-99. The same instruction was given in Patmon II, when the trial court was directed to make American Leasing “whole.” Patmon II, 2014 WL 97464 at 2. As held in Gomez v. Bicknell, 302 A.D.2d 107, 114, 756 N.Y.S.2d 209, 214 (2002), an available measure of damages in the case of a diverted corporate opportunity is the calculation of the profit the corporation would have made from the opportunity. The same is true as to Patmon’s choice of damages. In other words, the amount of damages is not limited to the profit Hobbs received but to the profit American Leasing would have received had the O’Reilly leases not been diverted by Hobbs.
581. Criminal Law.DUI. Independent blood test.
Gooch v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct order denying a motion to suppress evidence because he was not given an opportunity to take an independent blood test.
583. Employment Law.
Commonwealth of Kentucky Public Protection Cabinet v. Veitch
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING AND REMANDING Franklin Cir Ct on question if Cabinet Secretary has the authority to terminate the KHRC’s Chief State Steward if he or she was a non- merit employee.
584. Medicaid and Duplication of payments.
Marcum v. Cabinet for Health and Family Services
Court of Appeals Published Opinion REVERSING AND REMANDING Laurel Cir Ct. holding that although KRS 13B.150(2)(a) requires a court to reverse and remand if the final order is “[i]n violation of constitutional or statutory provisions[.]” While the circuit court held that Marcum received sufficient due process under the circumstances, for us to affirm ignores clear provisions of the administrative procedure set up for Medicaid appeals.
588. Administrative Law. Public Service Utilities.
Kentucky Industrial Utility Customers Inc. v. Kentucky Public Service
Court of Appeals Published Opinion REVERSING AND REMANDING Franklin Cir Ct. Order and Opinion upholding Kentucky Public Service Commission’s approval of Kentucky Power Company’s application to recover from its customers an estimated $1.26 billion in costs associated with purchasing biomass energy from ecoPower Generation-Hazard LLC, over a twenty-year contract period.
595. Workers Compensation
Austin Powder Co. v. Stacy
Court of Appeals Published Opinion AFFIRMING Workers Comp Board decision affirming the ALJ’s award of 50% disability to Appellee, Billy Keith Stacy (Stacy), in this Coal Workers’ Pneumoconiosis (CWP) claim.
Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:
Ward Edison’s Professional Cleaning Services LLC v. Liberty Landmark Group LLC
COA Not to Be Published Opinion REVERSING Jefferson Cir Ct. This appeal followed, wherein Ward-Edison asserts multiple claims of error. Ward-Edison contends the trial court misinterpreted the contract in concluding it had breached. It contends the award of damages was inappropriate as Liberty had suffered no damages. It contends that Liberty is not entitled to damages because the collateral source rule does not apply in the context of breach of contract actions. It contends that Liberty lacks standing because Traveler’s is the real party in interest in the cross-claim. Finally, Ward-Edison contends that Kentucky public policy demands that the contract be strictly construed against the application advocated by Liberty.579. PIP.
Baker v. Travelers Property Casualty Ins. Co.
COA Not to Be Published Opinion AFFIRMING Fayette Cir Ct summary judgment in favor of Travelers Property and Casualty Company and dismissing Baker’s claim for Basic Reparation Benefit holding a “yard truck” was not a motor vehicle per no fault act.
