KENTUCKY eLEGAL SUMMARIES
Short (very short) summaries of cases and news

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• Kentucky eLEGAL SUMMARIES 

  • Supreme Court - none

  • Court of Appeals - yes

  • Kentucky Nonpublished Opinions 3 KnNpo 15

  • Trial Court Review - Jury Verdicts 6 KTCR 1 (jan)

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Stuff

• Sept. 26-27, 2002
  Ky Law Update at Louisville
  http://www.KyBar.org
• Sept. 30, 2002
  LBA golf outing http://www.LouBar.org
• Oct. 3, 2002
  LBF St. James preview party; http://www.LouBar.org
• Oct. 10, 2002
  Benjamin L. Hooks former executive director of NAACP will speak at bar center.  2 hours CLE. Call Kelly Hass at 583-5314 with LBA.
• November 1, 2002
  Nominations for LBA Board due.  Petitions need 10 signatures for President-Elect, VP, Treas., and Sec'y. Contact LBA for more info.

• Apr. 6-11, 2002
  KBA Midyear trial at Walt Disney World
  http://www.kybar.org

KENTUCKY SUPREME COURT
Sept. 21, 2002

KENTUCKY COURT OF APPEALS - PUBLISHED 
Sept. 21, 2002

• CRIMINAL LAW
  • GOBEN v.  PARKER 
    Ky.App. Aug.  30, 2002
    Loss of prison 'good time' requires minimum procedural safeguards as a hedge against arbitrary determination of the factual predicate for imposition of the sanction.
• DAMAGES
  • KING V. GRECCO
    Ky.App. Sept 20, 2002
    Appeal from a judgment entered upon a jury verdict finding defendant liable for damages arising from the cutting and removal of trees from property def. had previously sold to the plfs.
    • The Circuit Court Erred in Assessing Punitive Damages in Addition to Statutory Treble Damages
    • The Circuit Court Properly Awarded Attorney's Fees Without Submission to the Jury
    • Award of Attorney's Fees was not Excessive
• INSURANCE LAW
  • KENTUCKY FARM BUREAU V. RODGERS
    Ky.App., Sept. 13, 2002.
    Jury verdict of punitive damages and violations of bad faith and Unfair Claims Settlement Practices Act (UCSPA) affirmed. KFBM training manual used to support claim for bad faith, USCPA, and punitive damages in breaching its duty to its insured.
    • Expert who was familiar with claims handling procedures and books used by KFBM could testify even though he was not familiar with adjusting claims in the county where the claim was filed. 
    • Unrelated claim involving third party and KFBM was admissible in bad faith claim - other claim involved same adjusters, same county, and same counsel for KFBM.  The evidence was relevant and admissible to show that Farm Bureau was aware of the pattern and practice of its adjusters to fail to evaluate claims fairly. The evidence was also relevant and admissible to show the absence of a mistake.  Also relevant to issue of punitive damages.
    • Million dollar punitive damages verdict not violate due process.
• WORKERS COMPENSATION
  • HEADEN V. COMMONWEALTH
    Ky App. Sept. 20, 2002.
    Claimant fell on state property and sued in state court rather than Board of Claims.  Case was dismissed by circuit court and claimaint refiled later that month in Board of Claims.  The Board did not set a hearing to consider  statute of limitations defense nor did it notify the parties of its intent to rule on the defense; it simply dismissed Headen's claim as untimely filed.   
    
    Claimant attempted to invoke on appeal the savings provisions of KRS 413.270.  The Board erred when it altered its own pleading requirements by dismissing the claim without affording her an opportunity to respond to the statute of limitations defense asserted by the state, and  Franklin Circuit Court erred in affirming the Board's dismissal of Headen's claim.
     
    Board's order dismissing Headen's claim and the circuit court order affirming the dismissal are reversed and this claim is remanded to the Board with directions to afford Headen a reasonable opportunity to respond to the statute of limitations defense raised in the answer filed by KCTCS and for such further proceedings as may be appropriate.

KENTUCKY NONPUBLISHED OPINIONS
3 Ky.Npo. 15 - July 12, 2002

• DOMESTIC RELATIONS, PRE-NUPTIAL AGREEMENT, p. 5
  Pre-nuptial agreement still valid from the grave and even though death do us part.
  
  Widow's attempt to invalidate prenup agreement that she would not elect against the estate or take an estate share fails.  Assets were listed; failure to list values did not invalidate it either.  No waiver of counsel after she stated she trusted her husband's lawyer and did not bother to read the agreement before signing.
• CONTRACTS, FIDUCIARY DUTIES, p. 4
  Former employees did not breach any fiduciary duties with employer when they set up their own medical services company after attempt to buy their boss's fell through.  Although employee may not develop interests antagonistic to those of his employer, he/she can certainly resign and set up a competing enterprise in the absence of a non-compete agreement and if he/she does not use prior fiducial confidences to profit at his former employer's expense.
• SLIP AND FALL, NOTICE OF DEFECT, p. 7
  Jury instruction regarding notice of defect by store owner was not required when the hazard was created by the owner and not a third party.  Hazardous shelf cap was created by the store and not someone passing through.
• STATUTE OF LIMITATIONS, DISCOVERY RULE, p. 14
  Woman had bilateral breast implants, and the left one ruptured in 1987.  Both implants were later removed in 1991, after several years of difficulties with the left implant.  It was discovered at this time that the right implant had ruptured.  The statute of limitations on any claim for the left began to run in 1987, but not until 1991 for the right implant since no injury was discovered or should have been discovered until then.  
• DAMAGES, CR 8.01, p. 15
  Another defendant 'sponges' off the Fratzke rule in med-mal case involving left-over sponge and eventual breast removal.
  
  Pain and suffering damage award of $300,000 in med-mal case  award set aside on appeal for failure supplement interrogatory answers.  Settlement offers prior to trial indicating pain and suffering were neither signed or sworn to comply with civil rules for interrogatory answers.  Miller v. Fratzke, Ky., 12 S.W.3d 269 (1999).

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.'

KENTUCKY TRIAL COURT REVIEW - JURY VERDICTS
Jan 2002 (6 KTCR 1)

• MEDICAL NEGLIGENCE, DEFENSE VERDICT, P. 2
  Defense verdict in ruptured aneurysm of 13 year old.  She developed headaches, went to hospital, neurosurgeon believed she had stabilized, and opted for further diagnostic workup before surgery 5 hours later.  Patient did not survive.
• UNDERINSURED MOTORIST CLAIM, $360,688 P. 7
  Ashby was not having a good day.  He was trying to put the moves on a co-worker, and the consumption of beer and the marijuana impeded his personal performance so the frustrated couple left home for more exciting venues.
  
  While traveling on I-64, Ashby was distracted by an unknown motorcyclist (no contact) moving at 90 mph and merging quickly in front of him, as well as the actions of his amorous passenger who was now traveling with her top down and was now flashing truckers.  Ashby avoided the motorcyclist and struck an elderly couple. The motorcyclist, either impervious to events or fleeing from his dastardly deed, left the scene and later entered the lawsuit as the 'unknown third party'.
  
  Elderly couple sue Ashby and Farm Bureau (for UM and UIM).  Uninsured motorist (UM) claim (which was predicated on the motorcyclist) was dismissed under no contact rule and $600,000 potential UM coverage evaporates - even though it was Farm Bureau who brought in the unknown third-party motorcyclist.  Oddly enough plaintiffs get caught in a 'Catch 22' with the UM claim against the unknown motorcyclist being dismissed because there was no contact (as required per the policy and as a protection against insurance fraud), but the jury apportioning half  the fault to the unknown motorcyclist at trial - effectively deprived the plaintiffs of half their recovery.  Obviously, the jury believed there was no fraud in that allegation. The law of apportionment vs. the law of coverage produced an anomalous and inconsistent result to the detriment of the insured.
  
  Ashby's insurer paid it's policy limits to each of the elderly plaintiffs, and the action proceeded against their underinsured carrier (also Farm Burea) and the unknown third party motorcyclist.  Jury only knew Farm Bureau was plaintiff's insurer but nothing about the type of coverage.  Jury apportioned fault equally against Ashby the motorcyclist.  $360,688 for the husband (which implicated UIM after apportionment); and $107,332 for the wife (which did NOT implicate UIM after apportionment).
• DOG BITE - $17,159, p. 8
  Girl friend obviously does not know jack about a dog being man's best friend.  Couple pick up a movie, go home, snuggle on the couch, and fall asleep secure knowing they are safe with boyfriend's Jack Terrier name "Jacks" asleep at their feet.  Howeve,  girl friend shifts her feet and Jacks springs into action - jumps on her lap, bites her face, and holds on for 20 seconds.  
  
  Girl friend receives 150 stitches and has facial scar.  Now sues her ex-boyfriend.  Jury awarded $3,023 in medicals, $3,576 in future meds, and $10,000 pain and suffering.
• SOME SHORTS
  • Defense verdict - failure to diagnose bowel necrosis and resultant bowel infarction.
  • $15,000 award in soft-tissue rear end MVA.
  • BMW driver threshholded in soft tissue case.
  • $30,000 verdict in excessive force by police officer.
  • UIM coverage not implicated in aggravation of degenerative condition ($25,000 bi policy).
  • Defense verdict against polite guest who goes up a tree on a ladder to help his 70 year old friend place a star on a birdhouse. (No good deed goes unpunished).
• LARGEST VERDICTS FOR JAN.
  • Jefferson 
    • David Black and Greg Marks, Louisville
      $84,986 (prior to 61.25% apportionment) for slip and fall at Tinseltown during Titanic - crowd control ropes not in use.
  • Rest of the state 
    • Andrew Ruzicho, Lexington
      $790,000 in employment retailiation/sexual harassment claim, including $250,000 for humiliation and $500,000 in punitives.
• LARGEST VERDICTS FOR 2002
  • Jefferson
    • Thomas Conway, Louisville
      $3,294,883 against Norton's Hosp. for nurses failure to note complications from drug administration resulting in infant with permanent brain damage.
  • Rest of the state
    • Lee Huddleston, Bowling Green
      $1,768,584 for outrage in employment case when industrial bakery improperly forced her to be a "snitch" as condition of continued employment.

These extracts were printed with permission of the Kentucky Trial Court Review.   If you are interested in the summaries of all civil jury trials sent to you each month, then  call (502) 326--9794 or 1-(877)313-1944.  $150.00 per year (includes tax, shipping, and handling). 

For the complete "KTCR 2001 Year in Review" - not only do you get in a single copy all of the trial verdict summaries, but indexed by lawyer, region, county, and more, plus additional analysis of largest verdicts, most prolific lawyers, medical examiners, seat-belts, types of injuries, punitive damages, etc.  $185.00, includes tax, shipping and handling

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