October 21, 2011 COA Minutes —       Nos. 966-990 (25  decisions; 7 published)

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PUBLISHED DECISIONS OF COA:

967. MEDICINE.  CERTIFICATE OF NEEDS AND EXCLUSIVELY OWNED PHYSICIAN PRACTICES. EXEMPTIONS.
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES
VS.
BLUEGRASS ORTHOPAEDICS SURGICAL DIVISION, LLC
AND
SAINT JOSEPH HEALTH SYSTEM, INC., ET AL
OPINION AFFIRMING 2009-CA-001908-MR AND 2009-CA-001912-MR REVERSING AND REMANDING 2009-CA-002344-MR
SHAKE (PRESIDING JUDGE) VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-001908-MR
2009-CA-001912-MR
2009-CA-002344-MR
TO BE PUBLISHED
FRANKLIN

 SHAKE, SENIOR JUDGE: Louisville Orthopaedic Surgery Center, PLLC (Louisville Orthopaedic), appeals from a Franklin Circuit Court Summary Judgment granted in favor of the Commonwealth of Kentucky, Cabinet for Health and Family Services (Cabinet). In a separate case, the Cabinet appeals from a Franklin Circuit Court Summary Judgment granted in favor of Bluegrass Orthopaedics Surgical Division, LLC (Bluegrass Orthopaedics). Saint Joseph Health System, Inc.; Kentucky Hospital Association; Baptist Healthcare System, Inc.; St. Elizabeth Medical Center, Inc.; Frankfort Hospital, Inc.; Greenview Hospital, Inc.; Georgetown Community Hospital, LLC; Bourbon Community Hospital, LLC; and Woodford Hospital, LLC as intervening parties, also appeal from the Franklin Circuit Court Summary Judgment granted in favor of Bluegrass Orthopaedics. These appeals raise the issue of whether physician-owned ambulatory surgery centers (ASCs)2 may qualify for the physician’s exemption from KRS 216B regulation.

Nothing in this decision indicates that all physician-owned ASCs are exempt from KRS 216B regulation and licensure requirements. This decision recognizes that certain ASCs may be exempt depending on whether they are an extension of a physician’s office practice and whether their equipment expenditures do not exceed the maximum allowable. The terms “ASC” and “physician’s office” are not necessarily mutually exclusive in determining whether the exemption from regulation applies.

Accordingly, the Franklin Circuit Court Order, entered on July 8, 2009, granting summary judgment in favor of Bluegrass Orthopaedics is affirmed. The Franklin Circuit Court Order, entered on August 25, 2009, granting summary judgment in favor of the Cabinet is reversed and remanded to the Circuit Court to enter an order in conformance with this opinion and directing the Cabinet to verify Louisville Orthopaedic’s exemption from KRS 216B regulation and licensure requirements.

969.  STATUTES OF LIMITATIONS AND GOVERNMENTAL EMPLOYEES NOT IMMUNE FROM SUIT.
HAMMERS (DEREK), ET AL.
VS.
PLUNK (JOE), ET AL.
OPINION REVERSING AND REMANDING
WINE (AUTHORING JUDGE) EN BANC
(ALL CONCUR)
2010-CA-000279-MR
2010-CA-001007-MR
TO BE PUBLISHED
MUHLENBERG

WINE, JUDGE: These two consolidated appeals involve application of the one- year statute of limitations set forth in Kentucky Revised Statute (“KRS”) 44.110 to actions arising in the circuit court, as upheld by this Court in Wagoner v. Bradley, 294 S.W.3d 467 (Ky. App. 2009). In each case, an appeal has been filed from the dismissal of the action as time-barred under KRS 44.110.

In No. 2010-CA-000279-MR, Derek Hammers, as Guardian for David Hammers, a Minor; Julie Steele, as Guardian for Megan Dearmond, a Minor; and Sandra Steele, as Administrator for the Estate of Christine Steele (hereinafter, “Hammers, et al.”), appeal from an order of the Muhlenberg Circuit Court granting a motion for summary judgment and dismissal with prejudice. On appeal, Hammers, et al., contend that the trial court applied the wrong statute of limitations and that the limitations period adopted by this Court in Wagoner was erroneous. They contend, alternatively, that even if this Court finds Wagoner is not a misstatement of law, a retroactive application of Wagoner to the present case would be manifestly unjust.

In No. 2010-CA-001007-MR, Walter H. Jones and Leona Clark- Jones, appeal from an order of the Estill Circuit Court dismissing their case with prejudice. On appeal, the appellants contend that the trial court erred in applying the limitations period in KRS 44.110 and that Wagoner was wrongly decided. The Joneses argue that Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), mandates a contrary result and implicitly overrules Wagoner.

We agree that Wagoner was wrongly decided and, therefore, reverse the circuit courts’ respective dismissals with prejudice in each of the cases herein, hereby overruling our prior holding in Wagoner that KRS 44.110 applies to actions originating in circuit court.

SOL AGAINST INDIVIDUAL GOVERNMENT EMPLOYEE NOT IMMUNE

At the very least then, Yanero makes clear that plaintiffs may bring suits in circuit court against non-immune employees for negligent performance of ministerial acts. See also, Guffey v. Cann, 766 S.W.2d 55 (Ky. 1989). The statute of limitations for actions brought within the Board of Claims, which is an administrative body, is found within the Board of Claims Act. This statute differs from those covering actions brought within the courts. We agree with the appellants that KRS 44.110 is inapplicable in the present case because it applies only to causes arising within the Board of Claims against the Commonwealth or its immune agents or employees. KRS 44.110 does not apply to actions originating in the circuit court against non-immune agents or employees of the Commonwealth.

Thus, Wagoner was a misstatement of law. This mistake was occasioned by an unfortunate and erroneous reliance by this Court in Wagoner, upon Commonwealth Transp. Cabinet Dept. of Highways v. Abner, 810 S.W.2d 504 (Ky. 1991). In Wagoner, this Court held that “under Abner, ‘whenever negligence is alleged against the Commonwealth or one of its employees, the statute of limitations is one year.’” Wagoner, 294 S.W.3d at 469. However, we neglected to consider that Abner was an appeal from a case brought within the Board of Claims and not an action originating in the circuit court.  FN2[Wagoner incorrectly recites the procedural history in Abner by stating that Mr. Abner filed an original action before the Board of Claims and then subsequently “refiled his case in circuit court.” Wagoner at 469. In fact, Mr. Abner appealed to the circuit court from an adverse ruling in the Board of Claims.].   As acknowledged hereinabove, the proper forum for an action against the Commonwealth or its agents or employees, as well as the corresponding limitations period, is more nuanced than this. See Yanero, supra. For this reason, we hereby overrule Wagoner to the extent that it purports to apply the one-year limitations period in KRS 44.110 to an action brought in circuit court.

The present actions were properly brought within the circuit court because they were brought against individual employees of the Department in their individual capacities and our courts have previously held that “repair” or maintenance of the state’s highways is a ministerial act. Estate of Clark v. Daviess County, 105 S.W.3d 841, 846 (Ky. App. 2003).3    In contrast, the appellants’ claims against the Department were properly brought before the Board of Claims as our Supreme Court has previously held that county governments are protected by governmental immunity for wrongful death actions arising out of claims of negligence with respect to maintenance of the State’s roadways. Estate of Clark ex rel. Mitchell v. Daviess County, supra.

SOL for WRONGFUL DEATH CLAIMS INVOLVING GOVERNMENT

Wrongful death claims are generally covered under the one-year period of limitations set forth in KRS 413.180(1) and personal injury claims are generally covered under the one-year limitations period set forth in KRS 413.140(1)(a). However, in a case where the MVRA is applicable, a longer two- year period of limitations will apply. Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50, 59 (Ky. App. 1999). Indeed, [o]ur rules of statutory construction are that a special statute preempts a general statute, that a later statute is given effect over an earlier statute, and that because statutes of limitation are in derogation of a presumptively valid claim, a longer period of limitations should prevail where two statutes are arguably applicable.

Id., quoting Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987). The claims in No. 2010-CA-000279-MR arise out of an automobile accident which is covered under the MVRA. Therefore the claims raised by the Estate for wrongful death and by the minor children for personal injury are covered under the two-year limitations period set forth in KRS 304.39-230(6). This two-year limitations period began to run upon the date of the last basic or added reparation payment as this payment occurred subsequent to the decedent’s injury and death in the present case. Id.

In such a situation, it is within the court’s power to find that a statute has been equitably tolled. Nanny v. Smith, 260 S.W.3d 815, 817 (Ky. 2008) (Plaintiff should not be punished for clerk’s failure to perform duties mandated by statute and court rule.); Ward v. Howard, 177 Ky. 38, 197 S.W. 506, 510 (1917) (Clerk cannot deliberately absent himself or close his office to thwart procedure.); Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958–59 (1933) (Clerk cannot deliberately absent himself or close his office to thwart procedure.); Hagy v. Allen, 153 F.Supp. 302 (E.D. Ky. 1957) (Good faith should be considered, especially when paired with circumstances plaintiff could not control). Further, the clerk’s doors are said to “be deemed always open,” although here the doors were closed – literally. Kentucky Rules of Civil Procedure (“CR”) 77.01. Accordingly, we do not disturb the trial court’s prior ruling, and Hammers, et al., may proceed with their case at trial.

We need not address the issues raised by Hammers, et al., concerning the propriety of a retroactive application of Wagoner as these are now moot.

972. CRIMINAL. RCR 11.42
TAYLOR (MICHAEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
CAPERTON (CONCURS) AND MOORE (CONCURS)
2010-CA-000674-MR
TO BE PUBLISHED
HARDIN

STUMBO, JUDGE: Michael Taylor appeals from an order of the Hardin Circuit Court denying his Petition to Declare Defendant Victim of Domestic Abuse Under Kentucky Revised Statutes (KRS) 439.3402 and Motion to Reopen prior Kentucky Rules of Criminal Procedure (RCr) 11.42 proceedings. Taylor contends that the court erred in concluding that his petition and motion were barred by the final status of prior post-conviction motions. We find no error and, accordingly, affirm the order on appeal.

978
THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT
VS.
CITY OF FORT THOMAS, KENTUCKY, ET AL
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
SHAKE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND KELLER (CONCURS IN PART AND DISSENTS IN PART)
2010-CA-001072-MR
TO BE PUBLISHED
CAMPBELL

SHAKE, SENIOR JUDGE: The Cincinnati Enquirer (“the Enquirer”) appeals from the Campbell Circuit Court’s May 10, 2010 order in favor of the City of Fort Thomas (“the City”). That order found portions of the City’s investigative file regarding the death of Robert McCafferty were exempt from Kentucky’s Open Records Act and, therefore, not available to the Enquirer. For the following reasons, we affirm in part, reverse in part and remand.

The Court in Skaggs applied the standard pertinent to the records of law enforcement agencies – that withheld records shall become available after the conclusion of a law enforcement action – to records kept by the Commonwealth’s attorney, which are never made available. Skaggs, 844 S.W.2d 389. Although Skaggs appears to have, in part of its analysis, applied the law enforcement exemption to its case involving a request for the Commonwealth attorney’s file, we are nonetheless bound by its authority. Furthermore, although Skaggs is distinguishable by its facts, it successfully presents the Kentucky Supreme Court’s interpretation of what constitutes a completed law enforcement action and is, therefore, instructive for our purposes. While the defendant in Skaggs had exhausted all collateral remedies, Mrs. McCafferty has not. Under RCr 11.42, Mrs. McCafferty has three years, from the date of the final judgment, to file her motion. The Enquirer argues that there has been no indication from Mrs. McCafferty or her attorneys that she intends to file such a motion. However, it is not the Enquirer’s perceptions of Mrs. McCafferty’s intentions which define the completion of the enforcement action against her, but rather the availability to her of avenues to challenge her sentence post-conviction. Therefore, as in Skaggs, the prosecution against Mrs. McCafferty is incomplete and any law enforcement records exempt under KRS 61.878(1)(h) are not yet subject to disclosure.

We now address the Enquirer’s second argument on appeal. The Enquirer argues that Skaggs does not hold that all investigatory records must be withheld until the sentence is complete.

KRS 61.878 does not specifically cite to instances in which the release of information is to be considered “harmful” or “premature.” FOIA, however, offers a fairly inclusive look at specific harms that could result from the disclosure of investigatory information, including interference with enforcement proceedings, deprivation of a fair trial, identity of a confidential source, and circumvention of the law. Although these examples are not expressly stated in KRS 61.882, the showing of such circumstances may be sufficient to indicate a “harmful” or “premature release” of information in any given case. The Supreme Court of the United States has held that exemptions to FOIA must be narrowly construed and that it is the burden of the denying agency to show that an exemption is applicable. John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S. Ct. 471, 107 L. Ed. 2d 462 (1989). Although we are not bound by this holding, our desire to make public records more accessible is best achieved by similarly placing the burden of proof of an exemption to the Kentucky Open Records Act on the agency denying the request or any portion of the request. It is the opinion of this Court that, with regard to the majority of the City’s file, the City has failed to meet this burden.

983.  BUSINESS LAW.  FORFEITURES, SECURITY DEPOSITS.
SOHAL PROPERTIES, LLC
VS.
MOA PROPERTIES, LLC AND MOTELS OF AMERICA, LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001833-MR
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE:    Sohal Properties, LLC, appeals from an order of the Jefferson Circuit Court entered on June 17, 2010, granting summary judgment in favor of MOA Properties, LLC, and Motels of America, LLC (the appellees). Sohal also appeals the order entered August 13, 2010, dissolving Sohal’s notice of lis pendens as well as the order entered on September 8, 2010, postponing the jury trial to resolve Sohal’s allegations of fraud and making the August 13, 2010, order final and appealable. The summary judgment of June 17, 2010, granted the appellees a right of possession to the disputed property and determined that they were entitled to keep a non-refundable, security deposit in the amount of $500,000.00 paid by Sohal Properties. Under the circumstances presented in this case, we conclude that the appellees’ retention of the security deposit constituted an invalid forfeiture. Therefore, we reverse and remand the judgment of the trial court with respect to the disposition of these funds.

984.  CRIMINAL LAW.
HALL (STEVEN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS)
2010-CA-001878-MR
TO BE PUBLISHED
BOYLE

 HOMPSON, JUDGE: Steven Hall was operating a pontoon boat when he struck and killed his wife, Isabel. He was convicted of second-degree manslaughter and sentenced to five-years’ imprisonment. Four narrow issues are presented for our consideration: (1) whether expert testimony was admissible for the purpose of attacking the credibility of a police officer’s in-court testimony; (2) whether evidence that Hall had a romantic interest in a woman other than Isabel was properly admitted; (3) whether it was error to permit testimony that Hall intentionally accelerated the boat toward Isabel; and (4) whether the Commonwealth failed to give defense counsel witness statements in violation of RCr 7.26 We conclude that there was no reversible error and affirm.

 

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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966.  CIVIL PROCEDURE.  INVOLUNTARY DISMISSAL. FAILURE TO SECURE COUNSEL.
HILL (STANLEY)
VS.
FALLAHZADEH (HOSSEIN), ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
DIXON(CONCURS) AND VANMETER (DISSENTS WITHOUT OPINION)
2009-CA-001736-MR
NOT TO BE PUBLISHED
PULASKI

STUMBO, JUDGE: Stanley Hill, pro se, appeals from an order of the Pulaski Circuit Court dismissing his complaint with prejudice for failure to secure counsel in compliance with the court’s order. This is the second time this issue has come before this Court in this case. The previous time, this Court remanded the case to the trial court for it to consider the factors of Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), which set forth the standard test for involuntary dismissal with prejudice. After doing so, the trial court again dismissed the case. Hill argues that dismissal was unwarranted. We agree, reverse, and remand.

970.  TORTS.  FELA CLAIM.
LOY (DANNY P.)
VS.
CSX TRANSPORTATION, INC.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND MOORE (CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION)
2010-CA-000516-MR
NOT TO BE PUBLISHED
JEFFERSON

BEFORE: TAYLOR, CHIEF JUDGE; MOORE AND WINE, JUDGES.
WINE, JUDGE: Danny Loy appeals from an order of the Jefferson Circuit Court granting summary judgment to CSX Transportation, Inc., and striking an affidavit sworn by Loy from an order directing Loy to pay CSX $2,363.76 in costs, and from an order vacating a previous order of the court allowing Loy to file an amended complaint.

Loy injured his shoulder after slipping on ballast while working as a railroad carman for CSX. The Jefferson Circuit Court held that Loy’s claims for damages under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, et seq. (“FELA”) were preempted by the Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”). Based upon our recent decision in Booth v. CSX Transp., Inc., 334 S.W.3d 897 (Ky. App. 2011), we hold that “although a regulation promulgated under the FRSA may preclude a FELA claim, it did not do so in this case because the regulation at issue does not cover or substantially subsume the subject matter of the suit.” Id. at 898.