3 published decision dealing with affirmed conviction of criminal facilitation to incest and being a second-degree persistent felony offender; affirmed circuit court that criminal defendant failed to exhaust his administrative remedies in challenging a finding of guilt in a prison disciplinary matter, which resulted in a restriction of his visitation privileges with his wife and adult daughter; and affirmation of family court orders since COA could not say trial the trial court had to allow the aunt/uncle to intervene or had to award them custody. and thus, the trial court’s due process error is not fatal.
PUBLISHED DECISIONS
780. HILES (REBECCA STANTON) VS. COMMOMWEALTH OF KENTUCKY
Affirmed conviction of criminal facilitation to incest and being a second-degree persistent felony offender
781. GREENE (MARCUS) VS. WHITE (RANDY), WARDEN, KENTUCKY STATE PENITENTIARY
Affirmed circuit court that criminal defendant failed to exhaust his administrative remedies in challenging a finding of guilt in a prison disciplinary matter, which resulted in a restriction of his visitation privileges with his wife and adult daughter.
786. T. (S.), ET AL. VS. CABINET FOR HEALTH AND FAMILY
In Case No. 2019-CA-000080-ME, S.T., and her husband, J.T. (jointly, “the T’s”), challenge denial of their motion to intervene in a custody matter pertaining to K.M., S.T.’s great-niece. The Jefferson Circuit Court heard the petition before ruling the T’s could not invoke KRS2 620.1103 because neither petitioner was K.M.’s natural parent as the court believed was required by C.K. v. Cabinet for Health and Family Services, 529 S.W.3d 786 (Ky. App. 2017). The T’s did not move the court to reconsider denial of their petition. The same order addressed a second child, K.C.—K.M.’s half-sister—to whom neither of the T’s is related. Case No. 2018-CA-001840-ME echoes the argument as it pertains to K.C., acknowledging no blood relation but urging the court to keep the half- siblings together. In this appeal, the T’s challenge the award of temporary custody, and ultimately permanent custody, of both girls to family friends rather than blood relatives. We ordered the two appeals to be heard together. Having reviewed the record, briefs and law, we affirm.
SELECTED NOT TO BE PUBLISHED DECISIONS
778. SULLIVAN (LILLY) VS. LIBERTY MUTUAL FIRE INSURANCE COMPANY
The failure to pay fair market value and loss of use claims proceeded to a jury trial. The court admitted the policy into evidence and permitted Liberty’s representative to read excerpts therefrom but did not allow subjective interpretations of its provisions, or any other evidence of bad faith. Even though the only issues were two factual disputes (valuation of the pickup and the amount of compensation owed Sullivan for the loss of use thereof), the trial court sua sponte gave a preemptive interrogatory to the jury, over Sullivan’s objection, which asked if Liberty had “complied with its obligations to Plaintiff Lilly Sullivan pursuant to its contract of insurance with her.” The jury answered yes and ceased its deliberations without squarely addressing either factual dispute which necessitated the trial. The trial court entered a judgment in accordance with the jury’s verdict and dismissed Sullivan’s bad faith claims. After the trial court denied Sullivan’s motion for a new trial, she filed this appeal.
The judgment of the Jefferson Circuit Court dismissing Lilly Sullivan’s claims pursuant to the jury’s verdict is vacated, as is the supplemental judgment awarding costs to Liberty Mutual Fire Insurance Company. This case is remanded for further proceedings consistent with this opinion.
784. MINNICK (SUZANNE) VS. JOHNSON (ARCH), JR
Suzanne Minnick appeals from a summary judgment of the Rowan Circuit Court in favor of Arch Johnson, Jr. Because we conclude that under the undisputed facts that Johnson cannot be liable as matter of law, we affirm.
NOTE. Interesting decision addressing elements of negligence and expert witnesses within context of three-car MVA.
Similar to the facts in this case, in Dixie Ohio Express Co. v. Eagle Express Co., 346 S.W.2d 30 (Ky. 1961), an accident occurred on a two-lane highway and the initial collision was between a northbound and southbound vehicle. After the initial impact, the southbound vehicle collided with a truck that had been traveling behind the first northbound vehicle. As here, the plaintiff alleged that the second truck was following too closely behind the truck in front and, therefore, the driver of the second truck could be liable for negligence. The Court disagreed. he simple answer to this contention is that the prior proximity of the two trucks on the highway (which was not shown specifically in the evidence) had nothing whatever to do with this accident. Assuming defendant’s driver had violated this statute, it had no possible causal connection with the accident, and therefore it cannot be a basis of defendant’s liability.
The Court held that any duty not to follow a vehicle too closely as required by statute or the common law had no causal connection to an accident involving a vehicle traveling in the opposite direction. Id. at 31. The Court explained that even assuming a vehicle follows another too closely as prohibited by statute, as a matter of law, there is “no causal connection with an accident involving a collision of the violating vehicle with a vehicle approaching from the opposite direction.” Id. at 31-32. Suzanne argues that Dixie and Tupts are no longer viable because of the adoption of comparative negligence in Hilen v. Hayes, 673 S.W.2d 713 (Ky. 1984) and the concept of apportionment of fault. However, that decision has no relevance as to whether Johnson can be liable to Suzanne.
The undisputed fact is that Johnson was traveling in his proper lane of travel. The collision between his vehicle and the Minnick vehicle occurred as a result of the place where he was, not because of any negligence on his part.
For the reasons stated, the summary judgment of the Rowan Circuit Court is affirmed.
MINUTES WITH LINKS TO FULL TEXT OF ALL DECISIONS.
Link to Index of COA Minutes by date at AOC.
