ARBITRATION
HIGDON V. CONSTRUCTION ARBITRATION ASSOCIATES. LTD.
Ky.App., March 1, 2002.
Arbitrators and their sponsoring organizations are immune from
liability in damages for all acts within the scope of the arbitral
process, and arbitrator's decisions were within the scope of the
arbitration process.
CIVIL PROCEDURE
FRANCIS V. CROUNCE CORP.
Ky.App., March 8, 2002.
Former employee's claim for violations of Kentucky Civil Rights
Act and for attorney fees were only single claim for purposes of
finality of judgments for appellate purposes; judgment required to
include attorney fees when sought in Complaint pursuant to Act.
LEWIS V. KENTUCKY RETIREMENT SYSTEMS
Ky.App., March 15, 2002.
Case addressed county's failure to follow statutory guidelines in
processing employee's disability application. KERS was acting ultra
vires so that a direct appeal to the circuit court was proper,
PRIMM V. ISAAC
Ky.App., March 22, 2002.
Set up parameters as to the extent, a trial court may require a
non-party expert witness to produce business and personal tax
information, prior to his discovery deposition, in order impeach
later. Plaintiff wanted to obtain discovery of evidence pertaining
to IME doctor's medical income and the percentage thereof derived
from performing IME.
CRIMINAL LAW
COMMONWEALTH V. M.G.
75 S.W.3d 714, Ky.App.,2002.
Palpable error to exclude juvenile defendants, accused of
committing sexual offenses, and counsel of particular juvenile
defendant from courtroom during questioning of victims,as a
violoation of defendants' right to be present during all stages of
trial. District court made no attempt to determine whether a
compelling need existed to shield the alleged victims, and neither
juvenile defendant was afforded the opportunity to see or hear the
witnesses, or cross-examine them.
COMMONWEALTH V. NEAL
Ky.App., March 29, 2002.
The Commonwealth brought interlocutory appeal regarding evidence
that was seized from at defendant's residence. Police were serving
warrant at defendant's residence when found weapon in jacket on
chair. Court dismissed charge of hindering apprehension, but while
at jail, defendant admitted he was a felon and was then charged with
possession of handgun by convicted felon. Having concluded that the
trial court has failed to make the necessary findings of fact to
resolve this matter, Court of App. vacated the trial court's order
suppressing the evidence and remanded for additional findings of
fact.
GOBER V. COMMONWEALTH
Ky.App., June 21, 2002
Prisoner entitled to evidentiary hearing to determine whether she
had been a victim of domestic violence and was thereby exempt from
50% parole eligibility requirement for violent offenders; and
statute providing exemption from 50% parole requirement, based on
status of domestic violence victim, did not unconstitutionally
infringe upon pardon power of executive branch.
PAPPAS V. GILPIN
Ky.App., March 22, 2002
Under Uniform Criminal Extradition Act, ninety-day time period
found in KRS 440.290 and 440.310 limits the period of time during
which an alleged fugitive may be held in custody solely for the
purpose of awaiting a governor's warrant from the state seeking
extradition; it does not require that a governor's warrant issue
during that time.
SKINNER V. COMMONWEALTH
Ky.App., May 24, 2002.
Entitled to withdraw guilty plea at sentencing hearing when
advised plea agreement not accepted.
THACKER V. COMMONWEALTH
Ky.App., June 21, 2002.
Detective's use of information from prescription monitoring
system did not constitute an unreasonable search and seizure under
either Federal or State Constitutions.
TOPPASS V. COMMONWEALTH
Ky.App. June 28, 2002.
No requirement that indictment must contain phrase "a true
bill" to be valid.
EDUCATION
FANKHAUSER V. COBB
Ky.App., March 29, 2002.
Local tribunal's decision affirmed in school teacher's
disciplinary action. Both school board and teacher appealed
requesting supplemental hearing which was denied by Court of
Appeals.
KENTUCKY EDUCATION PROFESSIONAL STANDARDS BOARD V. GAMBREL
Ky.App.,June 7, 2002.
Evidence supported determination that supervisor's conduct during
test administration constituted misconduct in violation of test
policies and procedures; principal did not have good faith belief
that testing practices at school were not prohibited; and evidence
supported determination that conduct of supervisor and principal
constituted incompetency.
KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION V. DAVIS
Ky.App., May 17, 2002.
Appeal of a decision of the Kentucky High School Athletics
Association (KHSAA) prohibiting the student-athletes from
participating in varsity sports for one year became moot by time of
decision.
EMPLOYMENT - GOVERNMENT
PHILPOT v. TROURISM DEV. CABINET
Ky.App., April 12, 2002.
Remanded personnel board decision for failure to
"fully" advise the parties of "their exception and
appeal rights," so that the Personnel Board is precluded from
arguing that the case must be dismissed for failure to file
exceptions never mentioned or alluded to in that final order.
ENVIRONMENTAL LAW
ROCKWELL INTERNATIONAL CORP. V. HELTON
Ky.App., March 22, 2002.
Plaintiff raised a justiciable controversy, and all allegations
in complaint must be taken as true so that Rockwell is entitled to
judicial review of this administrative action regarding safe fish
consumption. Rockwell was not prevented by collateral estoppel or
issue preclusion in the trial court.
EVIDENCE
CARRIER V. COMMONWEALTH
Ky.App., May 17, 2002.
Statute imposing duty upon certain professionals to report child
is dependent, neglected, or abused applied even though at time
Commonwealth sought records, children were no longer minors.
Psychotherapist-patient privilege was overridden by statute imposing
duty to report that child is dependent, neglected, or abused.
R.C. v. COMMONWEALTH
Ky.App., July 13, 2002.
Licensed clinical social worker, who was neither physician,
psychiatrist, nor psychologist trained in diagnosing cause of
child's mental distress, was not qualified to express opinion that
child exhibited signs of being sexually abused child. Expert opinion
evidence is admissible when (i) witness is qualified as expert in
subject area; (ii) subject matter meets Daubert requirements; (iii)
subject matter is relevant and meets KRE 403; and (iv) opinion will
assist trier of fact. Child's excited utterance about abuse by
father must be under excitement of event from father and not by
mother surprising child at night (unrelated to event).
FAMILY LAW
PARKER V. PARKER
Ky.App., May 24, 2002.
Both husband and wife had "unclean hands" when they
attempted to hide husband's non-marital funds in wife's accounts to
keep from being 'found' in New Jersey paternity action so that the
funds would not be declared husband's non-marital property in
divorce proceeding, and would remain with wife, since this was the
character of the property when divorce filed.
SCOTT V. SCOTT
Ky.App.,June 21, 2002.
Grandparent visitation may only be granted over the objection of
a fit custodial parent if clear and convincing evidence shows that
no grandparent visitation will harm child.
INSURANCE
AETNA CASUALTY & SURETY CO. V. NUCLEAR ENGINEERING CO.
Ky.App., March 8, 2002
Insurer's duty to defend triggered by notice from Environmental
Protection Agency to clean up nuclear waste at Maxey Flats
(ambiguous insurance policy interpreted against insurer and in favor
of insured). Insurer's duty to indemnify included damages for
environmental clean up costs.
DEERFIELD INS. CO. WARREN COUNTY FISCAL COURT
Ky.App., May 17, 2002.
Exclusions for punitive damages and defamation claims were not
ambiguous in public officials liability policy issued to county, and
thus, insurer was not liable for exemplary damages awarded to former
employee for retaliatory discharge in wrongful termination suit. On
remand, the insurer will be responsible for indemnifying the County
for any attorneys' fees which it incurred in defending the
Commission in the retaliation lawsuit but will include fees incurred
in the declaratory judgment litigation regarding coverage. Absent a
contractual agreement to pay fees or a fee-shifting statute,
Kentucky requires each party to be responsible for his or her own
attorneys' fees.
NEGLIGENCE/TORTS
AMMON V.WELTY
Ky.App., July 12, 2002.
Loss of dog not qualify for loss of consortium claim. Shooting of
dog by warden not inhumane or constitute tort of intentional
infliction of emotional distress.
BROMLEY V. SMITH
Ky.App., July 5, 2002.
City was not immune from suit for recovery of wrongfully
collected local taxes as doctrine of municipal immunity had been
repudiated and general assembly statutorily permits taxpayer refund
of improper or excessive ad valorem taxes.
JAMES v. WILSON,
Ky.App., April 19, 2002.
The Michael Carneal / Heath High School Case on appeal. Affirmed
summary judgement dismissing claims against Michael Carneal's
parents, owner of the gun, classmates. No cause of action against
classmates in shooting and no general duty to warn - no special
relationship existed between students who knew Carneal had brought
guns before and not everyone owes an unlimited duty to every other
person to exercise ordinary care in his activities to prevent
foreseeable injury. The school officials are protected under
sovereign immunity.
JORDAN V. LUSBY
Ky.App., July 12, 2002.
Dog groomer was a 'keeper' of dog and could be liable under KRS
258.275 for injuries caused by dog she was grooming. Dog groomer
assumed risk of being bitten by dog she was grooming and thus could
not recover in action against legal owner of dog. Groomer claimed
dog's legal owner knew dog had violent disposition but had failed to
present this type of evidence.
OPEN RECORDS
LANG V. SAPP
Ky.App., March 8, 2002.
Award of attorneys fees not mandatory on successful open records
request.
STRONG V. CHANDLER
Ky., March 21, 2002
Attorney General has the authority to inspect and review the
records of the Cabinet for Economic Development pertaining to the
incentive contract with Alliance Research. Such inspection shall be
conducted by the Attorney General in camera under the supervision of
the circuit court.
POWER OF ATTORNEY
INGRAM v. CATES
Ky.App.. April 19, 2002.
An attorney-in-fact, one acting under a Power of Attorney, must
account for all property received by him from or for his principal.
Although this may not amount to a fiduciary duty, it does make the
attorney-in-fact liable for restoration or reimbursement for all
properties received by him from the principal or from whatever
source.
PROBATE
WILLIAMSON V. WILLIAMSON
Ky.App. June 14, 2002
Testator devised to her brother a fee simple interest in the
family farm, in holographic will, although testator expressed wish
to give another brother and a nephew first option to purchase if
devisee brother sold farm, and provided that farm would pass to them
if devisee brother predeceased her; will provided that farm was to
pass to brother "for his lifetime to use as he sees fit,"
and gave him power to sell the farm.
PSYCHOLOGY
COMMONWEALTH V. FUNK
Ky.App. June 28, 2002.
Court of Appeals addressed issues relating to the authorized
practice of psychology and counseling under KRS 319.015 et seq. and
administrative regulations thereunder.
RES JUDICATA
WEBB V. COMPTON
Ky.App., May 3, 2002
Doctrine of res judicata does not apply if judgment has been
vacated or set aside since there is no judgment upon which the
parties may be bound.
SOVEREIGN IMMUNITY
JONES V. LATHRAM
Ky.App., June 21, 2002.
Examined sovereign immunity for KSP trooper's actions in motor
vehicle accident while responding to emergency call in light of
decisions of Franklin County, Kentuck v. Malone,Ky., 957 S.W.2d 195
(1997) and Yanero v. Davis, Ky.., 65 S.W.3d 510 (2001) and Speck v.
Bowling, Ky.App., 892 S.W.2d 309 (1995). Court concluded that
Officer Lathram was performing a discretionary governmental function
when he responded to an emergency call for assistance from a fellow
officer and tragically collided with the car driven by Jones's
decedent. Trooper Lathram was indeed engaged in a discretionary
governmental function at the time of the fatal collision and is,
therefore, entitled to assert qualified official immunity in this
action pursuant to the Yanero analysis. Summary judgment dismissing
plaintiff's claims affirmed.
STATUTE OF LIMITATIONS
O'KEEFE V. NORTH AMERICAN REFRACTORIES
Ky.App., May 31, 2002
Forklift was not "motor vehicle" within meaning of
Motor Vehicle Reparations Act (MVRA) and, thus, invitee's action was
governed by one-year limitations period for personal injury actions,
rather than by MVRA's two-year limitations period.
TAXATION
DUNAWAY V. DLS, INC.
Ky.App., March 1, 2002.
Provision in statute setting forth procedure for appealing
assessments that required taxpayer to provide reasonable information
pertaining to property's value as requested by PVA only applied to
proceedings before BAA, not PVA's conferences with taxpayer
WORKERS COMPENSATION
KENTUCKY RIVER ENTERPRISES, INC. V. ELKINS
Ky.App.,June 28, 2002.
Court of Appeals looked at range of motion and injury models in
AMA Guidelines and disability multiplier of '3' under the facts in
this case.
ZONING
PETER GARRETT GUNSMITH, INC. V. CITY OF BELLEVUE
Ky.App., July 26, 2002.
KRS 65.870 re regulation of firearms does not restrict
municipality's ability to enact zoning ordinances which affect the
location of a business engaging in these activities. "[o]ne
still has the right to convey firearms, own firearms, possess
firearms, carry firearms and transport firearms in the Cities of
Bellevue and Dayton."
