For the minutes for 10/2/09, click here.

TORT DECISIONS FOR OCT 2, 2009 COA

1004 – WORKERS COMP
BOWERMAN V. BLACK EQUIPMENT CO.

OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES. NICKELL, JUDGE: Randy Bowerman (Bowerman) appeals from the opinion of the Workers’ Compensation Board (Board) affirming the opinion and award of Administrative Law Judge Marcel Smith (ALJ). Bowerman presents two
arguments on appeal. First, he argues the ALJ improperly denied an award of temporary total disability (TTD) benefits when placing his claim in abeyance pending his reaching maximum medical improvement (MMI) in her November 14, 2005, interlocutory opinion, order, and award (interlocutory opinion). Second, he argues the ALJ, in her August 20, 2007, final opinion and award (final opinion), erroneously reversed her earlier interlocutory factual findings rendered when she placed his claim in abeyance. Conversely, Black Equipment Company (Black) argues the ALJ was not bound by her interlocutory findings and her final opinion was supported by substantial evidence. For the following reasons, we reverse.

1006 – CIVIL PROCEDURE, LACK OF PROSECUTION
BATTS V. ILLINOIS CENTRAL RAILROAD CO.
OPINION AFFIRMING
** ** ** ** ** BEFORE: KELLER, STUMBO, AND VANMETER, JUDGES.
VANMETER, JUDGE: Dale Batts (Batts), as the executrix of the estate of her late husband, Charles Batts, appeals from the McCracken Circuit Court’s order granting Illinois Central Railroad Company’s (ICRR) motion to dismiss for failure to prosecute pursuant to CR1 41.02. For the following reasons, we affirm.

1008 -  CIVIL PROCEDURE, LACK OF PROSECUTION
PRYOR V. JOHN E. CRANE, INC.
OPINION AND ORDER SEPARATING CASES, DISMISSING NO. 2008-CA-001584-MR AND ABATING NO. 2008-CA-001399-MR
** ** ** ** ** BEFORE: DIXON, KELLER, AND STUMBO, JUDGES.
KELLER, JUDGE: Bill E. Pryor (Bill) and Helen A. Pryor (Helen) appeal from the trial court’s order dismissing their claims for failure to prosecute. On appeal, the Pryors argue that the trial court did not adequately address the factors in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), and that, if it had done so, it could not have dismissed their claims. The Appellees argue that the trial court made reference to and adopted the motion to dismiss filed by General Electric Company (GE), and thereby adequately addressed the Ward v. Housman factors. For the following reasons, we separate the appeals, dismiss appeal No. 2008-CA-001584, and hold in abeyance appeal No. 2008-CA-001399.

1011 – WILLS, ESATES. PROBATE; MISTRIAL
CASKEY V. GOODPASTER

OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
hENRY, SENIOR JUDGE: This is an appeal from a jury verdict and judgment of the Morgan Circuit Court in a will contest case.

When reviewed under this standard, Averell Goodpaster’s indirect
reference to the disappearance of Roy Lee’s wife was not sufficiently prejudicial to warrant the drastic remedy of a mistrial. There was nothing in her statement that linked Roy Lee to his wife’s disappearance. As the trial court observed, the statement could have been interpreted by jurors to mean that Roy Lee’s wife had left him or run off with another man. The trial court further reasoned that, “even if the use of the word ‘disappeared’ conjures up suspicion of foul play,” Goodpaster’s testimony “did not directly or indirectly identify Roy Lee as the alleged perpetrator. In fact, such statement does not attribute foul play to Roy Lee any more than it attributes foul play to another member of the family, to a neighbor, or to a stranger.” We agree with the trial court’s reasoning, and hold that it did not abuse its discretion in refusing to grant a mistrial on this ground. * * *

We agree with the trial court that there is no indication that May deliberately withheld information or intentionally misrepresented information when he failed to disclose that he had served on the grand jury over twenty years earlier. The appellants thus failed to meet the first prong of the test set forth in Wilson Furniture.
The judgment and orders of the Morgan Circuit Court are therefore Affirmed.

1018 – WORKERS COMPENSATION
WHEELER V. FUGATE TRUCKING
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Allen Wheeler appeals from a decision of the Workers’ Compensation Board, which affirmed the finding of the Administrative Law Judge that his injury was not work-related and was, therefore, not compensable. Wheeler argues that the Board committed such a flagrant error in assessing the evidence that a gross injustice resulted. Because the Board overlooked controlling precedent, we reverse and remand.