Oct. 19, 2012 Court of Appeals Minutes
Nos. 941-959 (19 decisions;  9  To Be Published)

The Tort Report –
The Court of Appeals addressed torts, insurance and civil procedure:

CANIFF V. CSX (COA, PUB) –  Affirmed trial court’s summary judgment dismissing FELA claim dismissing claim for failure to present expert testimony regarding the applicable standard of care and that CSXT breached that duty, and plaintiff’s inability to do so precluded his ability to establish a prima facie case of negligence.  No abuse of discretion by trial judge.

WILLIAMS V. KENTON COUNTY POLICE (COA, NPO) – COA affirmed trial court’s dismissal of malicious prosecution complaint for failure to meet the element of “termination of  such proceedings in defendant’s favor”;  during retrial the appellant/defendant entered an Alford plea on the charges and thus not terminated in his favor.

KENTUCKY FARM BUREAU MUT. INS V. RHYMER (COA, NPO) – Reversed and remanded trial court’s entry of judgment against KFBM which was in excess of the contractual limits of coverage under five stacked uninsured motorist policies.  Note the plaintiff had amended his complaint but not for bad faith.

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Published Cases of COA:

942. QUANTUM MERUIT.
THORO-GRAPH, INC., ET AL.
VS.
LAUFFER (JAMES)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000891-MR
2010-CA-000914-MR
TO BE PUBLISHED
JOHNSON

LAMBERT, SENIOR JUDGE: Thoro-Graph, Inc., and Jerry Brown appeal from the trial court’s $25,000 quantum meruit judgment in their favor for advice and information provided to James Lauffer in connection with his purchase of a one- half interest in the race horse Rachel Alexandra. From his ownership interest in Rachel Alexandra, Lauffer earned over $4.5 million. Upon review, we affirm.

945.  GOVERNMENT. OPEN RECORDS.  WRONGFULLY WITHHELD ISSUE.
COMMONWEALTH OF KENTUCKY,
VS.
LEXINGTON H-L SERVICING, INC.,
ET AL.
OPINION AFFIRMING AND REMANDING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-002194-MR
TO BE PUBLISHED
FRANKLIN

LAMBERT, SENIOR JUDGE: This is an appeal from an award of attorneys’ fees and costs to prevailing parties in an action brought under the Kentucky Open Records Act. The sole issue presented for our consideration is whether the circuit court erred in finding that the Cabinet for Health and Family Services had “willfully withheld” requested records in violation of the Act. After our review, we affirm.

946
GOINS (THOMAS O.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2011-CA-000067-MR
2011-CA-001344-MR
TO BE PUBLISHED
MUHLENBERG

947.  TORTS.  FEDERAL EMPLOYEES LABOR ACT.  FELA. 
CANIFF (JEFFREY T.)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND TAYLOR (CONCURS)
2011-CA-000178-MR
TO BE PUBLISHED
PERRY

NICKELL, JUDGE: Jeffrey T. Caniff has appealed from the Perry Circuit Court’s entry of summary judgment in favor of CSX Transportation, Inc. (CSXT) in his action for personal injuries arising from his employment. After a careful review of the law, the record and the briefs, we affirm.

Next, to succeed on a FELA negligence claim, a plaintiff is required to plead and prove the common law elements of duty, breach, foreseeablity and causation. Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265 (6th Cir. 2007). Although FELA relaxes the standard of proof regarding causation, it does not lessen the burden to prove the elements of negligence. “[A] plaintiff cannot benefit from FELA’s relaxed causation standard unless he can prove that the employer was negligent in the first place . . . .” Id. at 271. “FELA claims, like common law negligence claims, must be supported by expert testimony where they involve issues . . . beyond the common experience and understanding of the average jury.” In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. on Sept. 22, 1993, 188 F.Supp.2d 1341, 1349 (S.D. Ala. 1999).

Whether expert testimony is required in a given case is squarely within the trial court’s discretion. Keene v. Commonwealth, 516 S.W.2d 852, 855 (Ky. 1974). Absent an abuse of discretion, we will not disturb the trial court’s ruling. Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 680-81 (Ky. 2005). Because the “business of operating a railroad entails technical and logistical problems with which the ordinary layman has had little or no experience[,]” Bridger v. Union Ry. Co., 355 F.2d 382, 389 (6th Cir. 1966), the failure to provide expert testimony regarding the applicable standard of care is fatal to Caniff’s claims. We agree with the trial court that a lay juror not would possess sufficient knowledge of the working conditions of a railyard to independently determine whether CSXT put Caniff at an unreasonable risk of traumatic injury.

Therefore, we hold the trial court did not abuse its discretion in holding Caniff was required to present expert testimony regarding the applicable standard of care and that CSXT breached that duty, and his inability to do so precluded his ability to establish a prima facie case of negligence. There was no abuse of discretion and the trial court correctly granted summary judgment and dismissed Caniff’s claims.

For the foregoing reasons, the judgment of the Perry Circuit Court is AFFIRMED.

952.  TAX LIEN FORECLOSURES AND ATTORNEY FEES.
TAX EASE LIEN INVESTMENTS 1, LLC
VS.
HINKLE (WINSTON COTNER), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
THOMPSON (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000652-MR
2011-CA-001162-MR; 2011-CA-001173-MR; 2011-CA-001174-MR; 2011-CA-001175-MR; 2011-CA-001176-MR; 2011-CA-001177-MR; 2011-CA-001666-MR
TO BE PUBLISHED
BALLARD

954. UNEMPLOYMENT BENEFITS.
MASONIC HOMES OF KENTUCKY, INC.
VS.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS)
2011-CA-001226-MR
TO BE PUBLISHED
JEFFERSON

955.  FAMILY LAW.  PERSONAL JURISDICTION.
SOILEAU (WILLIAM)
VS.
BOWMAN (LISA)
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001230-ME
TO BE PUBLISHED
ANDERSON

957. CRIMINAL LAW
FARMER (CHRISTOPHER CHARLES)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND STUMBO (CONCURS)
2011-CA-001412-MR
TO BE PUBLISHED
LAUREL

959.  FAMILY LAW.  CUSTODY
MAXWELL (ANGELA)
VS.
MAXWELL (ROBERT)
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
MAZE (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2012-CA-000224-ME
TO BE PUBLISHED
HARDIN

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP) – torts, insurance, civil procedure: 

943.  TORTS.  MALICIOUS PROSECUTION.
WILLIAMS (TERRY, JR)
VS
KENTON COUNTY POLICE, ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
KELLER (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000997-MR
NOT TO BE PUBLISHED
KENTON

TAYLOR, JUDGE: Terry Williams, Jr., brings this appeal from a May 13, 2010, order of the Kenton Circuit Court dismissing his complaint alleging malicious prosecution against Kenton County Police Chief Ed Butler, Kenton County Officer Greg Sandel, Kenton County Officer Robert Fultz, Kenton County Officer Darrin Gilvin, Kenton County Officer Darren Smith, and Kenton County Commonwealth Attorney Rob Sanders (collectively referred to as appellees). We affirm.

To establish an action for malicious prosecution, the plaintiff must demonstrate the following six elements:

(1) [T]he institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981).

In this case, the third element – the termination of such proceedings in defendant’s favor – is at issue. In its order dismissing, the circuit court determined that Williams’ underlying criminal actionhad not been terminated in his favor, thus precluding his claim for malicious prosecution as a matter of law.

In the underlying criminal proceeding, the jury found Williams guilty of disorderly conduct. Although the jury was unable to reach a verdict on the three remaining charges, the Commonwealth went forward with a retrial on the three remaining charges. Before the second trial, the Commonwealth and Williams reached a plea agreement. Under the plea agreement, Williams entered an Alford plea of guilty to resisting arrest and plea of guilty to the amended charge of second-degree wanton endangerment. As part of the agreement, the Commonwealth dismissed the charge of fleeing or evading police. Williams argues that the dismissal of the offenses for fleeing or evading police was a termination of the proceeding in his favor.

It is well-established that where a criminal charge is dismissed pursuant to a plea agreement it cannot be considered a “termination favorable to the accused” as required to prove malicious prosecution. Broaddus v. Campbell, 911 S.W.2d 281, 284 (Ky. App. 1995) (citing Restatement (Second) of Torts § 606(a) (2012)). In fact, our Court has specifically held:

[I]t is settled that a dismissal by compromise of the accused is not a termination favorable to the accused. Restatement (Second) of Torts § 660(a) provides:

A termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if(a) the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused;. . . .

The reasoning for this rule is stated in Comment C to this section:

Although the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor.

Broaddus, 911 S.W.2d at 285 (citation omitted).

The law is clear that dismissal of a criminal charge under a plea agreement is not a termination in Williams’ favor. Therefore, as the charge of fleeing or evading police was dismissed under a plea agreement, the criminal proceeding was not terminated in Williams’ favor. Accordingly, we conclude the circuit court properly dismissed Williams’ complaint alleging malicious prosecution.

For the foregoing reasons, the order of the Kenton Circuit Court is affirmed.

948.  UNINSURED MOTORIST BENEFITS.  STACKING. NO RECOVERY AGAINST UM CARRIER GREATER THAN CONTRACTUAL POLICY COVERAGES (IN ABSENCE OF BAD FAITH CLAIM).
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY
VS.
RHYMER (CHARLIE)
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS)
2011-CA-000355-MR
2011-CA-000400-MR
NOT TO BE PUBLISHED
LAUREL

THOMPSON, JUDGE: Kentucky Farm Bureau Mutual Insurance Company appeals from a judgment entered following a jury verdict awarding Charlie Rhymer $196,990, an amount in excess of the stacked uninsured motorist (UM) coverage of $125,000 provided by five automobile insurance policies issued toRhymer. Rhymer cross-appeals alleging that he is entitled to a new trial on the issue of pain and suffering because the jury returned a verdict for past and future medical expenses but awarded zero for pain and suffering. We conclude that the trial court erred when it issued a judgment against Kentucky Farm Bureau in excess of the stacked uninsured policies limit and, therefore, reverse and remand. Rhymer’s cross-appeal is moot.

A UM case is a first-party contract action between an insured and an insurance company. “From its inception, we have recognized UM coverage is first party coverage, which means that it is a contractual obligation directly to the insured which must be honored even if the tortfeasor cannot be identified.” Coots v. Allstate Ins. Co., 853 S.W.2d 895, 898 (Ky. 1993). Like underinsured motorists coverage, the insured’s rights arise by contract and an insurance company’s obligation is to pay its own insured for uncompensated damages to the extent of the UM policy limit. See Philadelphia Indemnity Ins. Co. v. Morris, 990 S.W.2d 621, 626 (Ky. 1999).

Because a UM claim is a contract action, Rhymer cannot recover an amount exceeding the coverage provided in the stacked policies issued by Kentucky Farm Bureau. Despite the express limits stated in the policies, Rhymer argues to this Court that he should be able to recover the entire amount from Kentucky Farm Bureau because it refused to pay and required that the UM claim be litigated. Stated differently, Rhymer alleges that Kentucky Farm Bureau refused to settle his claim in bad faith and, therefore, he is entitled to a judgment against it in the entire amount awarded.

The fallacy in Rhymer’s contention is that he did not file a bad faith action. Although he filed a motion to amend his complaint, an amended complaint was not attached to his motion and an amended complaint was not filed until after the case was appealed. Moreover, the issue of bad faith was not presented to the jury. As a basic tenant of appellate law, we will not review issues not presented to the trial court and presented for the first time on appeal. Keeton v. Lexington Truck Sales, Inc., 275 S.W.3d 723 (Ky.App. 2008).

Rhymer’s contention that he is entitled to a new trial on the issues of past and future pain and suffering is moot. Regardless of any additional amounts that a jury might award, Rhymer’s recovery cannot exceed $125,000 against Kentucky Farm Bureau.

Based on the foregoing, the judgment of the Laurel Circuit Court is reversed and the case remanded for a judgment awarding Rhymer $125,000 plus interest against Kentucky Farm Bureau.

ALL CONCUR.