Issue  2002/17 - Nov. 24, 2002   

 
 Kentucky Supreme Court - Nov. 24, 2002
  • You gotta love the Supremes.  Nothing forthcoming for weeks and then 19 decisions announced in one day.  No bits and snatches, but all dropped down on us in one fail swoop.  Thanks guys. 13 are summarized this week, and the remaining six will be done next week.  However, links to all are here for the few who are impatient.
  • Recent Decisions
    • Civil Procedure
      • Kurtsinger v. Board of Trustees
        2001-SC-000261-DG.pdf Date: 11/18/2002
        Addressed interplay of amending orders and filing notice of appeals.  Judge entered order but failed to send it to all parties; party not receiving copy of order inquired and learned or order after time for appeal had run and filed motion; judge admitted mistake and amended same per CR 60.02.  Supremes said ok and reversed court of appeals and will allow appeal.  However, Supremes did address issues of abuse to avoid collusion, fraud, etc. in 60.02 orders and 77.04.
    • Criminal Law
      • Furnish v. Commonwealth
        1999-SC-000676-MR.pdf Date: 11/18/2002 
        Multiple issues raised but not preserved.  However, on the issue that was preserved, the case was remanded for new penalty phase since defendant was erroneously instructed on life without benefit of probation and parole.
      • Commonwealth v. Jeffries
        2000-SC-000274-DG.pdf Date: 11/19/2002 
        Remanded to trial court.  Juvenile convicted of murder and rape has KRS 640.030 hearing upon age 18 and is entitled to meaningful opportunity to controvert evidence at hearing and was denied in this case protections an adult would have had under KRS 532.050 (eg., denied right to cross government psych regarding her expertise on sex offenders who deny the offense, etc.).
      • Butcher v. Commonwealth
        2000-SC-000901-MR.pdf  Date: 11/19/2002
        Judge not required to recuse himself based upon affinity relationship with prosecutor through his deceased wife; prior probability measurement incorporated into DNA testing of .5 does not violate presumption of innocence of accused in admitting DNA results for rape case regarding prior intercourse and the statistic itself does not shift the burden; closing argument referring to percentages did not interject paternity standard of proof.
      • Commonwealth v. Whitemore
        2000-SC-000932-DG.pdf Date: 11/18/2002
        Crack cocaine found during pat down Terry search was admissible under "plain feel" or "plain touch" doctrine since police officer could describe appearance based on initial touch and did not have to manipulate object or open container to conclude bulge was crack.  Case was reversed on bad instruction regarding intent to distribute cocaine and alternative theories of distribution.
      • Norris v. Commonwealth
        2001-SC-000193-MR.pdf  Date: 11/18/2002 
        This case addressed "curative inadmissibility" of evidence after the door has been opened and inadmissible evidence presented (in this case, it was not harmless error and wife's acquittal was admissible after it was brought out she had incest charges; however, on retrial this stuff does not come in at all!).  Result - retry this one.
      • Johnson v. Commonwealth
        2001-SC-000245-TG.pdf  Date: 11/18/2002
        Denial of directed verdict in felon possessing firearm was not error - constructive possession discussed.  Defendant can waive maximum aggregate sentence limitations as part of plea agreement.  Although judge abused his discretion in not screening audiotapes before presenting to jury, the error was harmless since they were incomprehensible anyway.
    • Disciplinary Actions
    • Evidence
      • Lexington Public Library v. Clark
        2001-SC-000379-DG.pdf Date: 11/18/2002
        Addressed application of attorney-client privilege to organization.  See, KRE 503. Representative of the client was not limited to the "control group" standard which was rejected in Upjohn and held communications by employee to another employee who communicated same to lawyer is the same as if communicated directly by the employee to the attorney and its privileged status is not lost by the extra link in the chain.  Disclosure of communications waived privilege.  Writ of prohibition's denial was affirmed by Supremes.  
    • Family Law
      • Clements v. Harris
        2000-SC-000304-DG.pdf         Date: 11/18/2002
        Dissolution of marriage not appealable even if party not meet jurisdictional requirement of residence for 180 days.  See KRS 22A.020
      • Higbee v. Higbee
        2000-SC-000706-DG.pdf Date: 11/18/2002
        Divorced wife on second appeal regarding maintenance is awarded maintenance retroactively to date she filed exceptions to commissioner's report.
    • Insurance 
      • Auto Acceptance v. T.I.G. Insurance
        2000-SC-000822-DG.pdf  Date: 11/18/2002
        Ownership was originally determined under Nantz v. to be J.D. Byrider, but court reversed based on intervening revision of KRS 186A.220 and held owner to be purchaser of vehicle (and therefore the requirement to insure the vehicle!). J.D. Byrider confirmed purchaser had insurance at time of sale.
    • Products Liability
      • Pearson v. National Feeding
        2001-SC-000302-TG.pdf          Date: 11/18/2002
        Minor lost leg in grain augur which was not made, designed etc by National Feeding but who now sells the augur after purchasing the rights to make and sell the augur from the manufacture following its bankruptcy (whew, did you get all of that?).  The  general in Kentucky is that a corporation that purchases the assets of another corp.  does not assume the payment of any debts or liabilities of the purchased corporation in the absence of certain exceptions (eg., assumed, consolidation, etc).  Supremes interpreted the purchase contract such that no assumption.  Also refused to apply the "product line" exception, too.
  • November 2002 Advance Sheets
  • October 2002 Advance Sheets
  • Want to check out a recent advance sheet by date decision rendered?  
    Go to the AOC Site at KyCourts.Net ; click on searchable opinions; and enter the following search criteria examples:
    • For decisions rendered in October 2002 - 'October **, 2002' without the quotation marks.
    • For a particular date, then just enter the date 'October 23, 2002'.
  • Did you know circuit court dockets are available on line?  Click here.
  • How about editable AOC forms (you'll need Adobe Acrobat Reader ver 5)?  Click here.
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 Kentucky Court of Appeals - Published Decisions - Nov. 24, 2002
  • Corporations
    • LEWIS V. JACKSON ENERGY, KY. APP., 11/15/02
      Rural electric cooperative permitted to sell propane to it's customers and non-regulated activities to the public.
  • Criminal Law
    • SNOW V. COMMONWEALTH, KY. APP., 11/15/02
      Defendant is entitled to have pretrial diversion properly investigated, and prosecutor's failure to make recommendation on diversion constituted failure to perform duties of office.  Vacated and remanded with instructions.
  • Family Law
    • BICKELL V. BICKEL, kY. APP. , 11/22/02
             Trial court erred in equating 65 year old retirement to voluntary unemployment for maintenance calculations.
  • Wills and Estates
    • SNOW V. SNOW, KY. APP., 11/15/02
      Residuary clause in testator's holographic will attempting to establish a charitable foundation to be funded with portion of testator's estate was not effective since clause did not describe purpose of foundation nor intended beneficiaries and was not cured by IRS designation.
  • Workers Compensation
    • ANDERSON V. HOMELESS AND HOUSING COA, KY.APP., 11/15/02
      Claimant, who built low-income housing for appellee, was not an employee of appellee because he was hired by a charitable organization to perform services for aide or sustenance only pursuant to the exemption in KRS 342.650(3).
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 KENTUCKY NONPUBLISHED OPINIONS - 3 Ky.Npo. 22
  • Real Estate Contract, Enforcing sale, p. 4
    Seller stuck with valid contract to sell  even if he lacks clear title and buyer still wants the property.  St. Stephens Baptist Church wanted the property, and seller kept failing to show up at closing.  Eventually St. Stephens bought the nightclub and two of the parcels at auction, but wanted the rest too.  
  • Auto Negligence, Limited Retrial on Pain and Suffering, p. 5
    Plaintiff gets limited retrial on pain and suffering damages to broken bones when awarded medicals, but does not get a retrial on all of her damages since they aren't global.  Another interesting note in this case involved the defense submitting plaintiff's medical records to IME for review first and getting a preliminary opinion of no permanent injuries;  plaintiff's objection to testimony on bias was not bought by the Ct. App.  In addition, her attempt to shoot down Sexton v. Bates regarding defense medical examinations was rejected too. Note, that it was not error for trial court to order limited retrial in spite of Miller v. Swift as broken bones (albeit healed) unlike soft tissue injuries would seem to support pain and suffering.
  • Auto Negligence, Zero Pain and Suffering w/o IME, p. 9
    In case where fault was not an issue and no IME by defendant, trial court's denial of retrial on zero pain and suffering was not clearly erroneous.
  • Damages, Fratzke Fries Another One, p. 12
    Plaintiff's settlement demand of $45,000 is not the functional equivalent of an interrogatory answer to covering CR 8.01 damages.
  • Damages, Fratzke Sometimes Helps too, p. 7
    Negligent legal advice on the amount of UIM benefits was limited to last CR 8.01 answer ($37,500 vs. $50,000).
  • Other cases:
    • Teacher denied unemployment benefits following firing for torrid affair (ok, maybe it was just tepid).
    • Not error when court refused to enforce oral agreement in divorce.
    • Maryland was a very inconvenient forum in spite of parties agreement to the contrary.
    • Statute of limitations on temporary nuisance.
    • Sovereign immunity not apply regarding failure of school board to perform statutory duties.
  • IT'S LIKE GETTING A CLE IN YOUR MAIL BOX.
    THESE NON-PUBLISHED CASES GIVE YOU AN IDEA WHAT YOUR OPPONENTS     ARE TRYING OUT THERE TODAY. 
    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).
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 THE BIG LIST - JURY VERDICTS IN KENTUCKY FOR 2002 
  • LARGEST VERDICTS FOR 2002 - Jefferson
    1. Tyler Thompson, Louisville
      $5,783,815 for lacerated lower leg and RSD from defective weed trimmer in product liability case.
    2. Thomas Conway, Louisville
      $3,294,883 against Norton's Hosp. for nurse's failure to note complications from drug administration resulting in infant with permanent brain damage.
    3. Lee Sitlinger & Curt Sitlinger, Louisville
      $1.1 million bad faith case against USAA for handling of UIM claim
    4. Matthew Troutman, Louisville
      $218,326 medical malpractice for doctor failing to stat page which was partially to blame for patient's death.
    5. Peter Perlman, Lexington & Timothy Lange, Louisville
      $218,137 for Mayor David Armstrong's myasthenia gravis from car accident.
    6. Patrick McElhone and Ron Hillerich, Louisville
      $171,500 for herniated disk from mva and against UIM carrier.
  • LARGEST VERDICTS FOR 2002 - Kentucky/rest of the state
    1. James M. Gary & Frank Miller, Louisville
      $3,595,000 in maritime negligence case for industrial worker killed falling 20 feet into empty barge.
    2. Phil Stalnaker, Pikeville
      $2,004,700 in case where nurse fired, arrested and fighting to keep her license from off-hand remark abut Columbine.
    3. 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.
    4. Gary and Anita Johnson, Pikeville & Masten Children, Lexington
      $1.1 million to seven plaintiffs less comparative fault as result of post-surgical staph infections by seven patients of one orthopodist.
    5. Gary and Anita Johnson, Pikeville
      $842,672 from tractor-trailer rear ending plaintiff; several injuries including bilateral rotator cuff and herniate disc.
    6. Andrew Ruzicho, Lexington
      $790,000 in employment retailiation/sexual harassment claim, including
      $250,000 for humiliation and $500,000 in punitives.
    7. Tom Herren, Lexington
      $746,380 in loss of toe in industrial accident.
    8. Steven O. Thornton, Bowling Green
      $578,336 in wrongful death case of Corvette driver killed by dump truck.
    9. Glenn Denton, Paducah
      $544,794 in MVA from C2 fracture and other symptoms.

 

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