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KENTUCKY
eLEGAL SUMMARIES
Short (very short)
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THIS, THAT AND THE OTHER STUFF
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KENTUCKY BAR INFO
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LOUISVILLE BAR ASSOCIATION INFO
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INDEX TO LAW-RELATED STORIES FROM COURIER-JOURNAL
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KENTUCKY SUPREME COURT
Aug. 22 - 31, 2002
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- Appeals / Writs
- Jefferson County Fiscal Court v.
Shake
Ky.,2002. Aug. 22, 2002.
Fiscal court was not entitled to writ of prohibition
barring taking of depositions of county commissioner
to determine whether ex parte contacts influenced
commissioner's vote, where deposition order could be
appealed.
- Arbitration
- Oakwood Mobile Homes, Inc. v.
Sprowls
Ky.,2002. Aug. 22, 2002.
Employee could not enforce arbitration clause when she
did not have actual notice of employer's arbitration
policy since she did not reach "meeting of the
minds" with her employer and, thus, could not
have validly agreed to arbitrate employment-related
claims (Kentucky Civil Rights Case).
- Bar Disciplinary
- Zalman v. KBA
Ky.,2002 , Aug.
22, 2002.
Reinstatement.
- Greene v. KBA
Ky.,2002. Aug. 22, 2002.
Restoration to practice law.
- Criminal Law
- Commonwealth v. Davis
Ky, 2002. Aug. 22, 2002.
Defendant waived validity of transfer of juvenile case
to circuit court by raising for first time on appeal
the issue of whether his prior juvenile adjudication
for possession of marijuana while in possession of a
firearm amounted to a prior "felony offense"
within the meaning of statute governing a 16-year-old
juvenile's eligibility for transfer from district
court to circuit court.
- Commonwealth v. Pace
Ky.,2002. Aug. 22, 2002.
Defendant admitted drinking but denied he was drunk
while driving ATV. Admission of evidence
regarding d prior driving under the influence (DUI)
convictions during guilt phase of trial, while error,
was not palpable error and did not prejudice defendant
or warrant reversal of his DUI, fourth offender,
conviction. Police officer testified that
defendant was intoxicated when he arrested him.
- Commonwealth v. Stephenson
Ky.,2002. Aug. 22, 2002.
Indiana DUI is not double jeopardy for Kentucky
purposes. District court's dismissal of felony DUI
charge did not bar subsequent prosecution in circuit
court.
- Doss v. McDonald
Ky.,2002. Aug. 22, 2002.
District court's finding of incompetency, and
resulting order continuing the proceedings, does NOT
prevent the grand jury from going forward with an
indictment.
- Hughes v. Commonwealth
Ky.,2002.
Aug. 22, 2002.
Exigent circumstances justified warrantless entry when
officer had reasonable belief that victim might be
inside apartment and in need of emergency assistance.
Defendant did not have to be readvised of his Miranda
rights when he was interrogated by homicide detective
65 minutes after he was advised of Miranda
rights by arresting officer.
- Maxie v. Commonwealth
Ky.,2002. Aug. 22,
2002.
Juror who knew arresting police officer through their
children did not need to be stricken for cause;
curative admonition following
prospective juror's statement that he could not
be impartial cured necessity of a
mistrial; details of indictment for defendant's
prior felony offense were admissible in persistent
felony offender (PFO) phase.
- Myers v. Commonwealth
Ky.,2002. Aug. 22, 2002.
Addresses exception to the psychotherapist-patient
privilege for communications made during a
court-ordered examination set forth in KRE 507(c)(2)
when the patient has testified to relevant evidence
and the patient's mental condition is relevant to the
issue of his/her credibility as a witness.
- Nelson v. Shake
Ky.,2002. Aug. 22, 2002.
Grand jury proceedings were not required to be
postponed pending determination of defendant's
competency.
- Perdue v. Commonwealth
Ky.,2002. Aug. 22, 2002.
Since defendant's new sentence on remand was imposed
pursuant to a plea agreement he reached with the
Commonwealth, there was no procedure to review
and no argue that the agreement was invalid.
Therefore, his new sentence, imposed 54 months after
remand, did not prejudice defendant by denying him due
process of law.
- Prater v. Commonwealth
Ky.,2002. Aug. 22, 2002.
Statute establishing "prerelease probation
program" impermissibly conferred executive power
of parole upon judiciary and violated state's
separation of powers doctrine.
- Robertson v. Commonwealth
Ky.,2002. Aug. 22, 2002.
Affirmed conviction for second-degree manslaughter and
reckless homicide involving police officer killed
while in pursuit (fell through gap in bridge).
- Shadowen v. Commonwealth
Ky.,2002. Aug. 22, 2002
Held that Saturdays, Sundays, and legal holidays must
be excluded from computation of five-day period for
filing motion for new trial; overruling Byrd,
825 S.W.2d 272.
- Experts
- Tuttle
v. Perry
Ky.,2002.
Aug. 22, 2002.
Plaintiff could cross-examine defendants' expert as to
amount of fee received for testifying; overruling Current
v. Columbia Gas of Kentucky,
383 S.W.2d 139.
- Family Law
- Mathias v. Martin
Ky.,2002. Aug. 22, 2002
Husband's transfer of farm to irrevocable trust on eve
of marriage did not constitute fraud on wife's dower
rights, where wife had knowledge of transfer and went
ahead with marriage after refusing to sign ante nuptial
agreement.
- Insurance
- Kemper Nat. Ins. Companies v.
Heaven Hill Distilleries, Inc.
Ky.,2002. Aug. 22, 2002.
Interpreted CGL (commercial general liability)
policy's exclusions regarding coverage for whiskey
destroyed by fired that had already been sold and
damages caused by pollution following fire.
Where the terms of an insurance policy are clear and
unambiguous, the policy will be enforced as
written.
Because coverage exclusions are "contrary to the
fundamental protective purpose of insurance,"
they are "strictly construed against the
insurer" and "will not be extended beyond
their clear and unequivocal meaning." But that
strict construction should not overcome "plain,
clear language resulting in a strained or forced
construction."
An insurance contract must be construed without
disregarding or inserting words or clauses. Each
policy exclusion is to be read independently of every
other exclusion. Because an exclusion is not an
affirmative grant of coverage and each exclusion is
independent of all others, any applicable exclusion is
sufficient to remove coverage.
- Jurisdiction
- National Grange Mut. Ins. Co. v.
White
Ky., Aug. 22, 2002
Nonresident insurer of automobiles did not have
minimum contacts with Kentucky
for purposes of personal jurisdiction of Kentucky
courts where policy was bought and paid for in New
York by New York residents, insurer conducted no
business in Kentucky
and did not advertise there, and the only connection
with Kentucky
was that husband moved to Kentucky
after purchasing policy. Note that the claim was
for addition UIM benefits under the NY policy and the
insured claimed no stacking.
- Torts / Negligence
- Wood v. Wyeth-Ayerst Laboratories
Ky.,2002. Aug. 22, 2002.
Strict liability claim requires physical tinury o person or
property. Mere contact with toxic or harmful
substances does not give rise to a cause of action in
tort, even where exposure and negligent conduct can be
proven, unless the plaintiff can prove present
physical injury. No cause of action for medical
monitoring for damages following negligent exposure to
a potentially dangerous substance in absence of
physical injury.
- Workers Compensation
- McDowell v. Jackson Energy RECC
Ky.,2002. Aug. 22, 2002.
Social Security Offset/termination of Workers
Compensation benefits did not deprive worker of equal
protection or jural rights.
- Ryan's Family Steakhouse v.
Thomasson
Ky.,2002. Aug. 22, 2002.
Awkward work movements while cleaning shelf
constituted work-related injury; medical evidence
supported injury.
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KENTUCKY COURT OF APPEALS - PUBLISHED
Aug. 23 - 31, 2002
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- Criminal Law
- Goben v. Parker
Ky.App., 2002 Aug. 30, 2002
Case remanded for evidentiary hearing to determine if
procedural safeguards provided in loss of "good
time."
- Whistleblower
- Cummings v. Cabinet for Families
and Children
Ky.App.,2002. Aug. 23, 2002
Whistleblower statute covers individuals who were
employers; Cabinet for Families and Children
considered employee and was not sovereignty immune.
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KENTUCKY NONPUBLISHED OPINIONS
3 Ky.Npo. 11
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- Auto Negligence, p. 2
Zero damages is not inadequate in case of sharply
conflicting evidence.
- Summary Judgment, p. 2
Summary judgment in error when factual disputes exist
in rear end accident on icy bridge when defendant
contended plaintiff stopped on the bridge.
- Immunity, p. 3
Members of Cabinet for Families and Children entitled
to statutory immunity during good-faith investigations.
- Agency, p. 12
Plaintiff fails in claim that office manager who
rear-ends her was in the scope of employment at time of
accident because she was on her cell phone and was
shuffling work papers at time of accident.
- Agency, p. 13
Uninsured "Richendollar" not rich enough to
cover plaintiff's damages and employer not on the hook
either.
Employee not acting within scope of employment when
picking up lunch for co-workers in her private automobile.
- Damages, p. 14
Liquidated damages is improper if there are no actual
damages from violation of covenant not to compete.
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These extracts were printed with permission of the
Kentucky Appellate Non-Published Opinions. If you are interested in
the full text of all the opinions, sent to you bi-monthly, then call (502)
326--9794 or 1-(877)313-1944. $130.00
per year (Ky residents pay 6% sales tax - $137.80). Think of
it as a 'mailbox CLE.'
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