Issue  2002/20 -  Dec. 22, 2002   
Make a Gift that keeps on giving throughout the coming year.

Don't leave the Legal Aid Society Off Your Christmas List This Year
The Legal Aid Society is wrapping up it's 2002 Annual Campaign, and I thought it would be a good time to ask for your help.  Sometimes we forget that the practice of law is a profession, not just a business, and that each of us have made an unspoken promise to help those who are less fortunate.  A good way to help satisfy your pro-bono obligations is to make a small holiday gift to those who tend to the legal needs of the less fortunate.

Remember - the measure of a gift is in its making and not its amount.  Although large contributions are appreciated, small one's are just as important since their needs are on many of our minds.  Just think how quickly they can add up.  If many of us send a small check ($5 or $10 - the price of a value meal or two)  to the Legal Aid Society, (502) 584-1254, 425 W Muhammad Ali Blvd, Louisville, KY 40202, we can do a lot of good.  Just mark on it Merry Christmas and that no individual reply or thank you necessary (so that all of the gift goes toward the giving and not the fund raising).  PS This request has been totally unsolicited by the Legal Aid Society.   Happy Holidays to Each of You.
 
What's Inside this Issue

 

 Kentucky Supreme Court - DEC. 22, 2002
2000-SC-000341-MR.pdf
Size: 1983 kb
Date: 12/16/2002
 Kotilla v. Commonwealth
Criminal Law, Fifth Amendment
Conviction reversed; several issues raised in meth case.  Consent search, Terry stop held valid.  However, confession was bad - request for attorney not met prior to questioning. 
2000-SC-000596-DG.pdf
Size: 2163 kb
Date: 12/16/2002
 Jefferson County v. Zaring
Discrimination
Judgment NOV reinstated in reverse racial discrimination case involving Jefferson County police officers.  State and federal Civil Rights Acts reviewed regarding affirmative action and unlawful employment practices and police promotion policy of "banding"  held not violative of civil rights.
2000-SC-000694-DG.pdf
Size: 877 kb
Date: 12/16/2002
 Commonwealth v. Christie
Experts, KRE 702
Trial judge has discretion regarding admissibility of eye-witness identification testimony by experts.
2000-SC-000702-DG.pdf
Size: 877 kb
Date: 12/16/2002
 Same as Commonwealth v. Christie??
2000-SC-000884-DG.pdf
Size: 867 kb
Date: 12/16/2002
 Kentucky Unemployment Comm. v. Landmark Community Newspapers
Unemployment Benefits, Independent Contractor
Upheld commission's determination that newspaper carriers were employees rather than independent contractors for entitlement to unemployment benefits.
2001-SC-000454-KB.pdf
Size: 384 kb
Date: 12/16/2002
 Horn v. KBA
Attorney
Standards for reinstatement to practice law following conviction reviewed.  Committee had recommended against reinstatement; Board of Governor's recommended reinstatement.  Per Hubbard v. KBA, the Sup. Court went with the fitness committee and did not reinstate lawyer convicted of 'ponzi' scheme and no restitution made.
2001-SC-000477-DG.pdf
Size: 522 kb
Date: 12/16/2002
 Fields v. Bell South
Insurance, No Fault, Statute of Limitations
This case turned on point that person is considered "entering vehicle" and consequently 1 year vs. 2 year statute of limitations since the claim was against Bell South for a defective wire.  Court concluded entering depends on an overt act, and here the plaintiff had her keys in the door, opened it, stepped back and tripped on anchor wire to pole.  No fault statute of limitation applies.  Summary judgment in favor of Bell South reversed.
2001-SC-000544-MR.pdf
Size: 840 kb
Date: 12/16/2002
 Beckham v. Commonweath
Closing Argument
Defendant denied fair trial and new trial ordered.  Judge sustained 29 objections and admonished jury 11 times during prosecutor's closing.  Among the arguments were mistatements of evidence and comparison to the O.J. trial., but the error reversing the conviction was the statement that to acquit defendant would be a crime worse than murder.
2001-SC-000859-MR.pdf
Size: 478 kb
Date: 12/20/2002
 Riley v. Commonwealth
Criminal Law, Testify
Appeal as matter of right.  Conviction affirmed.  Raised issue regarding court's advisement of waiver of his right to testify.
2001-SC-001024-MR.pdf
Size: 1512 kb
Date: 12/16/2002
 Coleman v. Commonwealth
Criminal Law, Search and Seizure
Probabtion and Parole Officer's "home visit" considered unconstitutional search.
2002-SC-000659-MR.pdf
Size: 241 kb
Date: 12/16/2002
 Roman Cath. Church, Lexington v. Judge Noble
Civil Procedure, Contempt
Courier-Journal did not disclose 'sum and substance' of materials sealed by trial court, and therefore was not in contempt
.2002-SC-000711-KB.pdf
Size: 296 kb
Date: 12/16/2002
 KBA v. Dunn
Attorneys
Suspension continued during probation for criminal conviction.
2002-SC-000860-KB.pdf
Size: 217 kb
Date: 12/16/2002
 Yesowitch v. KBA
Attorneys
Reprimand of attorney regarding keeping client informed and expiration of statute of limitations in wrongful death action.
 Kentucky Court of Appeals - Published Decisions 
  • Insurance, Liquidation
    • Glowgower v. Miller, Ky. App., Dec. 20, 2002
       Addressed issues regarding parol evidence rule and contracts in insurance liquidation.
    • Glowgower v. Miller, Ky. App., Dec. 20, 2002
      Addressed issues of voidable preferences;  summary judgment reversed as genuine issue existed on material fact.
  • Government Employment
    • OAG v. Yong, Ky. App., Dec. 13, 2002
      Addressed personnel hiring practices at Office of Attorney General.
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 KENTUCKY NONPUBLISHED OPINIONS -  3 Ky.NPO. 23 (Nov. 15, 2002)
  • Civil Procedure - Faxes Aren't Good Enough To Meet CR 3 and Statute of Limitations, p. 3
    Here is one for the books.  An attorney on the 365th day following a slip and fall, faxes the complaint to the clerk who assured him that would be good enough to file the complaint with the original and the filing fee to follow.   However, this runs afoul of the plain language of CR 3 which provides that a civil action is commenced upon the filing of a complaint AND the issuance of a summons or warning order thereon in good faith.  CR 3.02 further provides for paying filing fees at the time the case is filed.  Court of Appeals held "[o]ur civil rules are unequivocal that the filing fee must be paid when the complaint is filed and summons issued to commence an action."

    • Detrimental reliance upon the clerk was not good enough.

    • Here are some interesting "cases in context" regarding the statute of limitations and the commencement of a legal action.

      • Derossett v. Bugher - The Supreme Court held that day of accident was to be excluded in computing limitations period (interpreting and applying changes made to KRS 446.030).

      • Jent v. Com. Natural Resources - "Saving statute" which allowed plaintiff to commence new action in proper forum within 90 days after original action was dismissed for lack of jurisdiction, regardless of any applicable statute of limitations, also applied to actions to review final orders of administrative agencies, so long as "saving statute" was properly pled; administrative appeals were defined as original actions in separate statute.  KRS 413.270.

      • Louisville and N.R. Co. v. Little, 95 S.W.2d 253 (1936) - causing a summons to be issued by the clerk conditionally is not causing it to be issued in good faith.

      • Alias Summons -  when a summons has been issued and it is returned by the sheriff, nil, and another is issued, this is called an alias summons.  This is used to avoid a statute of limitations issues so the second summons is issued in good faith following the first.  

      • Halderman v. Sanderson Forklifts - All that is required is that the complaint be filed within the statute of limitations period and that a summons be issued in good faith. CR 3 does not require that actual service on the defendant be effectuated within the statute of limitations period.

      • Wooten v. Begley - Attorney filed complaint timely but accepted summons from clerk for delivery to sheriff (rather than have clerk do it) such that it did not get to the sheriff until after the statute of limitations ran - court held summons not issued in good faith.

    • The rule is simple.  File, pay, and issue summons.  Don't touch the summons; have the clerk get it to the sheriff.  If the address changes or it is not otherwise served, then type in 'alias' on the second summons to make sure it's not considered a new one and continues to be issued in good faith.  Don't sleep on it and keep trying to get that thing served!  Don't wait to the last day.

  • Fudging income costs wife her permanent maintenance, p. 15
    Court denied wife permanent maintenance when there was competing proof of her income and expenses, AND especially after she had testified in a later personal injury lawsuit that her income was greater than what she alleged in the divorce.

    • Many litigants get caught in this trap of inconsistent statements, and it is not unique to divorces.  

    • For example, check out personal injury actions, where the claimant wants to show he or she can't work or lost oodles of money because of the accident. However, this may not match up to a claim for unemployment benefits (you say you are fit and ready to work); or a job physical (you are fit for the job and don't report the accident, the injury, or the impairment); or the unreported income on tax returns.  These countervailing considerations cause problems when they reach the surface and highlight the litigants greed.  In your personal injury claim, the focus is impairment and lost money; but when working, the employee's focus is fit and no physical complaints in order to keep the job and continue working.  As one lawyer told me, first lie loses.

  • Other cases

    • Sovereign immunity - court applied liberal construction rules regarding interpreting employee's official vs. individual capacity.  Page 1.

    • Torts - is roofing a barn an inherently dangerous activity? p. 2

    • Jurors - can a judge delegate the task of excusing them?  p. 3

    • Other cases dealing with criminal law and intent to admit character evidence; oral contracts and performance;  judgment NOV or remittitur when court cleaned up damages of unrelated injuries.

  • To order your complete copies of non-published court of appeal's opinions sent directly to your mail box, call 502-326-9794.  Cost is $130.00 + 6% tax per annum.  As I have said,  this is like a CLE in your mail box;  not to mention catch the trends and the mistakes early.  By the time they hit the Supremes, they are old news.

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 Kentucky TRIAL COURT REVIEW - 6 KTCR 11, Nov 2002 
  • The BIGGEE VERDICT FOR THE YEAR 
    Explosion in pump house nets miner $270 Million Dollars Plus
    • Facts:  41 year old coal miner flicks switch at his Knott County home's well house intending to take a shower.  Unknown to him, gas from a local pump had leaked in and boom - second degree burns to chest and face and an airway obstruction.  However, he was back on the job a month later.  Physical pain had subsided but he continues to have a distorted self image secondary to scars.  Miner blames gas company for the mainenance of a well 107 feet from his home for negligent maintenance allowing gas to contaminate water table and accumulate in pump house.
    • Experts:
      • Plaintiff:  Dr. Robert Granacher, Lexington, neuropsychiatrist, identified PTSD; Clay Kimbrell, Baton Rouge (mining engineer); Rick Keene, Pikeville (petroleum engineer), Charles (not Chuck) Norris (hydrology engineer).
      • Defendant:  Joseph Pasani, Arlington, VA (gas wells); Ron Mullenex, Bluefield, WV (hydrogeology); Dennis Coleman, Champaign, IL (geo-chemistry); Hans Neumann (engineer); Dr. Davis Shraberg, Lexington (neuropsychiatry).
    • Trial:
      • Plaintiff's theory - gas company, including predecessor owners, knew well leaked and had problems for 60 years with complaints and water leaking from the well too.  
      • Defense was natural methane accumulation, well installed and maintained consistent with industry practice.
      • During trial, defendant's had sought to recuse Judge Morgan for having a financial interest in outcome since Plaintiff's argued defendant's conduct in mines across country, including under J. Morgan's property.  (I didn't quite catch this one from the summary folks).
      • Lasted  3 weeks.
      • Jury deliberated 2 hours.
    • Damages:
      • Appx. $32,000 in past meds (all); $10,000 in future meds (asked for $66,730)
      • $20 million for pain and suffering (asking for $100 million)
      • Lost wages/impairment - got nothing though seeking over $400,000
      • Punitives - awarded $250 million, but capped at $500 million
    • Post-Trial: 
      • JNOV sought and problems with the high bond for appeal.
      • Attacked verdict -
        • Suffering award was excessive since no permanent injury other than staying out of son and back to work in 30 days.
        • Punitives tooooo high - 4981 times proven damages which far exceeded Kentucky's largest approved punitive damage award (Sand Hill Energy, Inc. v. Ford Motor Co. 83 S.W.3d 483, Ky.,2002 - $20 mill. award reduced to $15 mill.; United States Supreme Court established in Gore a three-pronged test for determining whether a particular award of punitive damages passes constitutional muster: (1) the degree of reprehensibility of the defendant's conduct; (2) the disparity between the amount of the award and the harm or potential harm suffered by the plaintiff; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.)
        • Punitives against a utility are inappropriate since they will be passed as a tax to customers.
        • Closing arguements by plaintiff referred to Erin Brockovich and suggesting the case should have been a class action and making defendant's wells throughout the county an issue
        • Plaintiff's experts - junk science.
      • Motion under seal!!!
        • Defendants filed a motion under seal following the trial which sealed the depositions of Gary Johnson, Plaintiff's lawyer, and Jeremy Morgan, Judge Morgan's son.
      • Case has settled.  Amount not disclosed.  (If anyone knows, please tell and we'll publish it).
    • The Players:
      • Gary Johnson and Rhonda Blackburn for the plaintiff
      • Robert Connolly and Ian Ramsey, Louisville, and Ron Combs, Hazard, for defendants.
  • On-Line News
  • Lawyers vs. Lawyers in Tortious Interference with business, p. 4
    Local Louisville Lawyers, Mark Breit and Kristie Walker Tag Rawlings & Fischer 
    • Facts:
      Mark Breit and Kristie Walker were attorneys at Rawlings and Associates who claimed the firm had an incentive deal for new business, to include class action litigation.  No written contracts were signed, but Mark brought some in, worked on them, and when he left got nothing; Kristie worked on some class action work, and on the eve of receiving some settlement money she was let go.  Rawlings et al claimed no contract, and once fired no obligation to pay.  Also, claim against Attorney Mark Fischer.
    • Experts:
      • Plaintiff - Gary Weiss, Louisville who postulate fee-sharing agreements used were not uncommon and it would be highly unusual to be congingent on continued employment.
      • Defendant - Richard Sullivan, Louisville.
    • Trial:
      • The original defense postured no bonus contract (except that they did admit it initially in the answer - oops).  And even if there was a contract, there was no obligation to pay if no longer employed.  Finally, Mark Breit did not bring in the Fen-Phen cases.
    • Closing:
      Attorney Doug Morris used video clips of the defendant's testimony to rebut their positions.  WHAMMO. 
    • Verdict: 9 day trial; 1 hour deliberation.
      • Mark Breit - $488,210 in contract damages against the firm and $336,283 against Mark Fischer in punitives -- total of $824,493
      • Kristie Walker - $88,151 in contract damages; double whammo on punitives with $299,000 against the firm for malicious wrongdoing and $250,000 against Rawlings on the interference count -- total $637,151
    • Post Verdict
    • The players
      • Douglas Morris and Andrew Horne for Breit
      • Jeffrey Thompson for Walker
      • Donald Cox and William Mooney for Defendants
    • CJ Article by Grey Hall on j10/12/2002
      2 lawyers win $1.4 million suit against firm
      Pair said their boss didn't pay for work done in class actions
  • 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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 THE BIG LIST - JURY VERDICTS IN KENTUCKY FOR 2002 (KTCR 1-6; 11)
  • Issues 1-6 and 11.  Sorry, for the Swiss Cheese method, but if you want them all, buy em from KRCR at (502) 326--9794 or 1-(877)313-1944 for $150 per year.
  • 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. Doug Morris and Andrew Horne, Louisville
      $824,593 for tortious interference with attorney contract against Rawlings and Assoc.
    5. Jeff Thompson, Louisville
      $637,151 for tortious interference with attorney contract against Rawlings and Assoc.
    6. Robert Elliott and Joe Savage, Lexington (but case tried in Jefferson)
      $450,000 med mal  against Kosair's Hospital
    7. William J. Driscoll, Louisville
      $250,000 med-mal against nursing home for mentally retarded patient who was sexually abused
    8. Linda Atkins and Thomas Atkins, Louisville
      $339,421 for engineer who sustained carpal tunnel from auto accident
    9. Matthew Troutman, Louisville
      $218,326 medical malpractice for doctor failing to stat page which was partially to blame for patient's death.
    10. Peter Perlman, Lexington & Timothy Lange, Louisville
      $218,137 for Mayor David Armstrong's myasthenia gravis from car accident.
    11. 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. Gary C. Johnson and Rhonda Blackburn, Pikeville
      $270,107,053 for PTSD and burns following explosion from gas well leakage
    2. Teddy L. Flynt, Stanton
      $3,666,500 in drunk driving fatality with only minimum limits UM benefits and unrepresented defendant showing up with a pass from the reformatory.
    3. James M. Gary & Frank Miller, Louisville
      $3,595,000 in maritime negligence case for industrial worker killed falling 20 feet into empty barge.
    4. Phil Stalnaker, Pikeville
      $2,004,700 in case where nurse fired, arrested and fighting to keep her license from off-hand remark abut Columbine.
    5. 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.
    6. Bunch of out-of-town lawyers
      $1,275,832 products liability for wrongful death after helicopter gyro malfunctioned
    7. 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 orthopedist.
    8. Gary and Anita Johnson, Pikeville
      $842,672 from tractor-trailer rear ending plaintiff; several injuries including bilateral rotator cuff and herniated disc.
    9. Andrew Ruzicho, Lexington
      $790,000 in employment retaliation/sexual harassment claim, including
      $250,000 for humiliation and $500,000 in punitives.
    10. Tom Herren, Lexington
      $746,380 in loss of toe in industrial accident.
    11. James D. Holliday, Hazard
      $632,384 from disputed head on crash with fuel truck and chronic soft tissue and concussive symptoms.
    12. Brad Freeman, Corbin
      $603,273 and $163,912 for products liability for collapsing truss
    13. Robert Bowling, Middlesboro
      $597,244 from med-mal for surgery that removed entire lung that was not cancerous
    14. Steven O. Thornton, Bowling Green
      $578,336 in wrongful death case of Corvette driver killed by dump truck.
    15. Glenn Denton, Paducah
      $544,794 in MVA from C2 fracture and other symptoms.

 

 NEWS - LOCAL AND AFAR

  • JEFFERSON TRIAL COURTS CLOSED FOR HOLIDAYS - Jefferson County’s regularly scheduled court will not be in session on December 24, 25, 31 and January 1. Arraignment Court will have light dockets on December 24 and 31. For more information, contact the Court Administrator’s Office at 595-4588.

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 TORT REFORM IN KENTUCKY?

On Dec. 6, 2002 (last Friday), the following bill was filed in the Kentucky Senate by Senate President David Williams.  It addresses 'tort reform' type issues in Kentucky.  This bill has also been the subject of a recent KATA Legislative Alert.  Click on BR 448 for a link to the bill itself at the LRC site maintained by the Commonwealth.

BR 448 - Senator David L. Williams (12/06/02)

     AN ACT proposing amendments to the Constitution of Kentucky relating to health care matters.
     Propose amending the Constitution of Kentucky to add a new section permitting the General Assembly to limit noneconomic damages, limit punitive damages, provide statute of limitations on actions, and require alternative dispute resolution in cases involving health care providers licensed or certified by the Commonwealth; amend Section 14 relating to access to the courts, 54 relating to prohibiting limits on damages, and 241 relating to the right to sue in death and injury cases, to conform; provide for submission to the voters in the normal manner.

If you want to see some other sites addressing tort reforms, check out the following:

 LIST MAINTENANCE