SC: August 2014 Monthly Summaries of Published Opinions from Supreme Court of Ky

The Supreme Court of Kentucky released its summary of published decisions for August 2014.

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These published opinions included the following injury law, tort, insurance, and civil decisions:

ETHICS

United State of America By and Through the United States Attorneys for the Eastern and Western District of Kentucky v. Kentucky Bar Association

2013-SC-000270-KB August 21, 2014

Opinion of the Court by Chief Justice Minton. All sitting; all concur. In November 2012, the Kentucky Bar Association formally adopted Ethics Opinion E-435, proclaiming the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violate Kentucky’s Rules of Professional Conduct. The United States Attorneys for both the Eastern and Western Districts of Kentucky petitioned the Court for review of E-435 shortly after its publication in March 2013. The United States argued the opinion violated the Supremacy Clause of the United States Constitution and was an inaccurate interpretation of Kentucky’s ethical rules. 28 U.S.C. § 530B mandates federal attorneys comply with state ethical rules. But the United States argued the Attorney General of the United States’ regulation saying 530B should not be construed to alter federal substantive, procedural, or evidentiary law acted as a barrier to E-435’s application.

Initially, the Court rejected the United States’ notion that E-435 operated contradictory to federal law and, therefore, violated the Supremacy Clause. The Court acknowledged overwhelming Circuit Courts of Appeal precedent permitting defendants to engage in such waivers, but clearly stated that precedent is not binding on state courts, which have concurrent jurisdiction to interpret federal law. Furthermore, the Court noted that federal precedent would be persuasive if the Court was tasked with deciding, on its merits, whether a defendant could waive an IAC claim; but, the obligations of attorneys is the focus. E-435, according to the Court, is simply an ethical rule and does not seek to alter federal substantive, procedural, or evidentiary law.

Likewise, the Court rejected the United States’ Supremacy Clause argument because there is simply no federal law mandating either the plea terms defense counsel must raise of his own accord or the terms a prosecutor must offer. Indeed, the Court pointed out that there is no constitutional right to a plea agreement, all terms aside.

Turning to the merits of E-435, the Court held it was a proper interpretation of Kentucky’s ethical rules because the use of IAC waivers in plea agreements resulted in an unwaivable personal conflict of interest for defense counsel under SCR 3.130-1.7 and indirectly limits defense counsel’s malpractice liability under SCR 3.130-1.8(h). For the prosecution, the use of IAC waivers, in violation of SCR 3.130-8.4(a), serves as an inducement for a fellow attorney—defense counsel—to violate or attempt to violate Kentucky’s ethical rules. Finally, the Court held a prosecutor’s use of IAC waivers does not align with the special expectation that a prosecutor will ensure the defendant is accorded procedural justice. As a result, IAC waivers in plea agreements violate the spirit of SCR 3.130-3.8 and the prosecution’s role as a minister of justice.

IMMUNITY

Virginia Gaither (Administratrix and Personal Representative of the Estate of Lebron Gaither, Deceased) v. Justice & Public Safety Cabinet, Commonwealth of Kentucky; and Department of Kentucky State Police; and Board of Claims

AND

Justice & Public Safety Cabinet, Commonwealth of Kentucky; Department of Kentucky State Police v. Virginia Gaither (Administratrix and Personal Representative of the Estate of Lebron Gaither, Deceased) and Kentucky Board of Claims, Commonwealth of Kentucky

2012-SC-000835-DG August 21, 2014

Opinion of the Court by Justice Venters. Minton, C.J.; Abramson, Cunningham, Noble, and Scott, JJ., concur. Keller, J., not sitting. Sovereign and Governmental Immunity; Board of Claims. Action filed in the Kentucky Board of Claims for damages arising from death of a confidential informant allegedly caused by the negligence of state police officers overseeing an investigation of drug trafficking. Held: 1) Kentucky Board of Claims under KRS 44.073(2) had jurisdiction over claim that decedent’s death was caused by state police officers’ negligent performance of ministerial duties within the course and scope of their employment; 2) As opposed to a “discretionary” duty or act, which necessarily requires the exercise of reason and judgment in determining how or whether the act shall be done or the course pursued, an official duty is “ministerial” when its performance is absolute, certain, and imperative, involving merely execution of a specific act; 3) a ministerial duty may arise from the obligation to comply with a common law duty, as well from the obligation to comply with the directives of an applicable statute or administrative regulation; 4) the evidence clearly supported the Board’s finding that a “known rule” within the law enforcement profession was that a confidential informant must not be used in an undercover operation after his identity has been compromised; compliance with that rule was absolute, certain, and imperative, and thus was a “ministerial” act; 5) notwithstanding the test applied in Fryman v. Harrison, 896 S.W.2d 908 (Ky. 1995), police officers overseeing the work of a confidential informant had a “special relationship” with the informant, and thus had a duty to exercise ordinary care, including compliance with police standards for use of a confidential informant; 6) experienced prosecutors and judges were properly qualified as expert witnesses under KRS 703 to testify as to appropriate police standards in the use of confidential informants; 7) retaliation against a confidential informant by the subject of his investigative work was a known risk and foreseeable consequence of using the informant after his identity had been exposed, and therefore the criminal act of murder could not be a superseding cause of the informant’s death, relieving the police from liability for their own negligence in causing the informant’s death; and 8) KRS 44.070(5), which limits the amount that may be awarded by the Board of Claims, speaks to the time that the award is made, not the time that the claim accrued.

MEDICAL MALPRACTICE

Phillip Tibbs, M.D., et al. v. Honorable Kimberly N. Bunnell (Judge, Fayette Circuit Court) and Estate of Luvetta Goff, et al.

2012-SC-000603-MR August 21, 2014

Opinion of the Court by Justice Scott. Cunningham and Venters, JJ., concur. Noble, J., concurs in result only. Abramson, J., dissents by separate opinion in which Minton, C.J., joins. Keller, J., not sitting. Appellants, Phillip Tibbs, M.D., Joel E. Norman, M.D., and Barrett W. Brown, M.D., petitioned the Court of Appeals for a writ of prohibition directing the Fayette County Circuit Court to prohibit the production of an “incident” or “event” report created after the death of patient Luvetta Goff, arguing that the report fell within the federal privilege created by the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C.A. § 299b-21 et. seq. The Court of Appeals granted the Appellants’ writ, but Appellants appealed to the Supreme Court as a matter of right, arguing that the Court of Appeals erroneously limited the protective scope of the privilege. The sole issue on appeal before the Supreme Court was a question of first impression regarding the proper scope of the privilege established by the Act. While upholding the issuance of the writ, the Supreme Court reversed the Court of Appeals as to proper scope of the Act, and clarified the scope of the Act’s privilege to be applied on remand.

NEGLIGENCE

Jeffrey T. Caniff v. CSX Transportation, Inc.

2012-SC-000750-DG August 21, 2014

Opinion of the Court by Justice Scott. Cunningham, Keller, Noble, and Venters, JJ., concur. Minton, C.J., dissents by separate opinion in which Abramson, J., joins. Appellant, Jeffrey T. Caniff, sought discretionary review by the Supreme Court of the opinion of the Court of Appeals which affirmed the trial court’s order granting Appellee’s, CSX Transportation, Inc., motion for summary judgment due to Caniff’s failure to obtain an expert witness. The Supreme Court granted discretionary review and reversed and remanded the case to the trial court, holding that the trial court abused its discretion by granting summary judgment pursuant to Caniff’s failure to obtain an expert witness, as there were material facts at issue in the case. The Court held that while it would have been within the trial court’s discretion to allow an expert to testify, it was not within its discretion to require an expert in order for Caniff’s case to survive a motion for summary judgment, as the issues were within the common knowledge and experience of the jury.

Click on “continue reading” for complete list of summarized decisions with links to full text.

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