COA 2009 Minutes: October 9, 2009 (Nos. 1019-1037)

TORT DECISIONS FOR OCT 9, 2009 from Court of Appeals

1025 – WORKERS COMPENSATION; RETALIATORY DISCHARGE
HALL V. HAMMOND TRANSPORTATION
NPO
OPINION AFFIRMING
** ** ** ** **
APPELLEE
BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.
ACREE, JUDGE: Jason Hall appeals from the Jessamine Circuit Court summary judgment in favor of his former employer, Hammond Transportation, Inc. (Hammond). Hall’s complaint alleged he was fired from his job as a tractor-trailer driver for Hammond because he filed a claim for workers’ compensation benefits. Hammond moved for summary judgment on two grounds: (1) that Hall failed to establish a prima facie case for retaliation; and (2) that Hall was foreclosed from pursuing such a claim by a settlement agreement. The trial court granted summary judgment “as the deposition testimony of [Hall] together with [Hammond’s] documented Motion for Summary Judgment shows there is no genuine issue as to any material fact, and [Hammond] is entitled to a judgment as a matter of law.” We affirm.

1028 – MEDICAL NEGLIGENCE
MEDLEY V. JEWISH HOSPITAL
NPO
OPINION AFFIRMING
CROSS-APPELLEE
** ** ** ** ** BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: These are an appeal and subsequent cross-appeals of a defense verdict in a medical negligence wrongful death action alleging failure to diagnose and treat an aortic dissection. After careful review of the record, we affirm.

1030 – WRONGFUL DEATH STATUTE, RECOVERY, MANDY JO LAW
CALHOUN V. SELLERS
NPO
OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
STUMBO, JUDGE: In February 2008, the Pulaski District Court determined that Jerry Calhoun willfully abandoned his two minor children. Based on this finding, it applied “Mandy Jo’s Law” (KRS 391.033 and KRS 411.137), to conclude that he was not entitled to recover for the wrongful deaths of the two children and did not have a right to intestate succession. Calhoun appealed to the Pulaski Circuit Court, which affirmed. This appeal followed, in which Calhoun now argues that he did not willfully abandon his children and that the circuit court erred in failing to so rule. For the reasons stated below, we affirm the Order on appeal.

1036 – CIVIL PROCEDURE; TRIALS; CONTINUANCE
PRESCOTT V. YATES
NPO
OPINION REVERSING AND REMANDING
APPELLANTS
APPELLEE
** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Leslie Prescott appeals from the Pike Circuit Court’s order and judgment striking her answer and counterclaim and awarding Marcella Yates $150,000 on her claim for damages. After careful review, we reverse and remand.

Marcella Yates filed her initial complaint on November 6, 2003, against Leslie Prescott and South Williamson Lodging, Inc. (hereinafter “Prescott”), alleging that she had been slandered by Prescott when Prescott allegedly called her a thief. Prior to filing her complaint, Yates had worked at the hotel owned by Prescott, and Prescott had accused her of stealing from the hotel.

Three years into the case, Prescott’s first attorney filed a motion and was granted permission to withdraw from the case. On December 14, 2006, another attorney entered an appearance on Prescott’s behalf. On October 3, 2007, Prescott’s second attorney filed a motion and was also granted permission to withdraw. On January 4, 2008, a third attorney entered an appearance on behalf of Prescott.

On May 27, 2008, the trial court scheduled a trial date for October 6, 2008. On September 10, 2008, less than thirty days prior to trial, Prescott’s third attorney filed a motion to withdraw. This motion was granted on September 19, 2008, and the trial court gave Prescott twenty days, or until October 9, 2008, to obtain a new attorney.
Meanwhile, a pre-trial conference occurred on October 1, 2008, and no counsel appeared on behalf of Prescott, as she had not secured counsel at this time. On October 6, 2008, the Pike Circuit Court held the trial as originally scheduled, despite its previous order indicating that Prescott had until October 9, 2008, to obtain new counsel.

At the trial, neither Prescott nor an attorney on her behalf appeared. Yates made an oral motion to strike Prescott’s answer and counterclaim and the trial court sustained the motion. After six minutes of testimony the trial was concluded, and a judgment was rendered in the amount of $150,000 on Yates’ claims. The minimal testimony consisted of Yates testifying that she had worked for Prescott for approximately five years and was accused of theft. She testified that she lost her job at Prescott’s hotel but is presently working at the United States Post Office. She claimed that as a result of Prescott’s comments, her feelings were hurt, and she suffered anxiety attacks which required medical treatment.
Prescott now appeals the trial court’s order striking her answer and counterclaim and the judgment in favor of Yates in the amount of $150,000, arguing that the trial court abused its discretion by holding the trial three days before the deadline for her to obtain a new attorney had passed.

1037 – UNDERINSURED MOTORIST BENEFITS, COOTS NOTICE, CLAIM OF ESTOPPEL TO DENY COVERAGE
BRYAN V. HOPKINS
PUBLISHED
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: In this appeal, Erica Bryant seeks equitable relief against Grange Insurance Company (hereinafter “Grange”). She claims the insurance company should be estopped from denying liability for the payment of underinsured motorist (“UIM”) benefits in excess of $100,000 to her after it elected to substitute payment for the tortfeasor, Justin Hopkins, and after the insurance company admitted liability for said UIM coverage in its initial answer to Bryant’s complaint for damages sustained in an automobile collision. The trial court determined that under the circumstances of this case, estoppel was not warranted as a matter of law. Finding no error in the trial court’s determination, we affirm.