May 25, 2003 

Vol. 2003/13

  • Index to past issues of Law Wire:  www.LouisvilleLaw.com/lawwire/index.htm
     

  • KBA Proposed Advertising Regulations
    Commentary Period Extended to Sept. 1

    • Update - the comment period for the proposed lawyer advertising rules has been extended to September 1.  

    • Ben Cowgill with the KBA was kind enough to email me some clarifications regarding my previous off-the-cuff commentary regarding the advertising rules. 

      • "The proposed regulations are just that --- regulations of the Attorneys' Advertising Commission (AAC). They are not "rule changes" as indicated by your May 16 news item. They have been proposed by the AAC pursuant to the authority vested in that Commission by Supreme Court Rule 3.130-(7.03)(5)(a). Since 1992, that Rule has granted the AAC the authority to issue regulations for the purpose of implementing Supreme Court Rules 3.130(7.01) et seq., which govern attorney advertising in Kentucky. The proposed regulations are designed to implement various provisions of those Rules including, in particular, SCR 3.130(7.15), which prohibits false, deceptive and misleading advertising. Thus it is not accurate to refer to the proposed regulations as "Proposed Rule Changes" as stated in your article.

      • Secondly, the article incorrectly suggests that the AAC was created by Supreme Court Order 2003-1, an Order entered on 1/17/03. As indicated above, the AAC has existed since 1992, when SCR 3.130(7.03) was first adopted, and has possessed the authority to issue regulations implementing the Supreme Court's advertising rules since that time. Supreme Court Order 2003-1 did not "establish" the Commission, as stated in your article; rather, it merely amended the existing Rule to expand the AAC from 3 to 9 members."

    • I really appreciated the timely response I got from the attorneys and staff at the KBA.  Even though I am less than enthusiastic about the prior restraint on lawyer marketing, I got to give credit where credit is due.  Ben and Sandra were cooperative and helpful.  Now, it's up to each of you to add your two cents to the discussion.  However, it might be useful if we had some idea if there has been a problem in the nature of complaints from the public or others regarding lawyer advertising in Kentucky. 

    • Proposed Rule Changes - In PDF from the KBA! <<<--- Here's a link to the proposed changes. 

  • Don't Get Behind the Power Curve on your CLE this year.  
    Here are some planning tips.
  • KBA Convention in Louisville on June 11-13

  • Thanks to attorney Scott Byrd for summarizing the criminal law cases.

    • Still looking for a Workers Comp. and Family Law editor.  The Pay stinks (none), but you get the satisfaction of doing a good thing and striking a blow against the big publishers.    

    • If interested, then email me (stevens@lawyer.com).  It's not that hard, I email you links to the cases when they come out, and you email me the short summaries via reply.  Just type in the info in the table provided.  Come on, be the first on your block to be a wizard in the law. 
       

  • Kentucky Court of Appeals Decisions
    May 2, 2003 (criminal law summaries omitted last email)
    (nonpublished unless otherwise indicated!!)
      2001-CA-002411.pdf
    Size: 49 kb
    Date: 5/1/2003
    PUBLISHED    		 A.W. v. Com. 
    Criminal  -  Juvenile
    CA reversed the Circuit Court's order upholding Juvenile Court's imposition of contempt sentence because it violated due process requirements.  A.W., the juvenile, received probation after pleading guilty to terroristic threatening and assault 4.  After repeatedly violating the terms of probation, the court sentenced A.W. for being in contempt.  A.W. argued that the court lacked authority to impose a sentence for violations of probation through the use of contempt powers, or in the alternative, the court violated her due process rights by failing to follow the proper procedures for a finding of criminal contempt.  Although the issue was not properly preserved for review, the CA considered the arguments because the court's action rose the level of palpable error.  Although cautioning against its use in this case, the CA upheld the juvenile court's ability to punish probation violations through its contempt powers.  However, the CA reversed because the contempt hearing violated due process considerations.  Specifically, the juvenile court failed to make any findings that A.W.'s actions amounted to criminal contempt, and A.W.'s admissions to the violation allegations did not comply with Boykin requirements.
      2001-CA-002552.pdf
    Size: 28 kb
    Date: 5/1/2003
    published    		 Pinkston v. Com
    Criminal
    CA reversed Pinkston's Circuit Court convictions for 1st Degree Evading or Fleeing, DUI 2nd, and 1st Degree Wanton Endangerment on double jeopardy grounds. In examining KRS § 505.020, the CA reversed Pinkston's convictions for DUI 2nd and 1st Degree WE, stating that these offenses were included in the Fleeing charge.  The critical question remains whether each statute requires proof of an additional fact which the other does not.

     

  • Kentucky Court of Appeals
    May 9, 2003 (nonpublished unless otherwise indicated!!)
    2001-CA-000182.pdf
    Size: 21 kb
    Date: 5/8/2003
    		 Brown v. Com.
    Criminal
    CA upheld Trial Court's denial of hearing on Defendant's Motion for Shock Probation.
    2001-CA-000574.pdf
    Size: 43 kb
    Date: 5/8/2003
    		 Lumpkins v. Com.
    Criminal
    CA affirmed 1st Degree Assault conviction for juvenile transferred to Circuit Court.
    2001-CA-000759.pdf
    Size: 31 kb
    Date: 5/8/2003
    		 Spivey v. Com.
    Criminal
    Trial Court reversed, in part, for failing to give Assault 4 instruction. Court's decision to deny access to juvenile records after in camera inspection affirmed.
    2001-CA-000762.pdf
    Size: 19 kb
    Date: 5/8/2003
    		 Shelton  v. Com.
    Criminal
    Defendant not entitled to appointed counsel nor hearing on 11.42 motion.
    2001-CA-000940.pdf
    Size: 26 kb
    Date: 5/8/2003
    		 Eubanks v. Com.
    Criminal
    Defendant not entitled to JNOV. There was no basis to introduce new evidence as part of JNOV.  Prosecution did not improperly use peremptory challenges to remove black jurors.
    2001-CA-000989.pdf
    Size: 27 kb
    Date: 5/8/2003
    		 Khan  v. Com.
    Criminal
    Defendant not entitled to appointed counsel nor hearing on 11.42 motion.
    2001-CA-000995.pdf
    Size: 23 kb
    Date: 5/8/2003
    		 Com. v. Simpson
    Administrative Law, Unemployment Insurance
    2001-CA-001162.pdf
    Size: 28 kb
    Date: 5/8/2003
    		 Cross Country Distributing, Inc. v. Stinson
    Contracts, Materials Provided in Bankruptcy Situation
    2001-CA-001643.pdf
    Size: 22 kb
    Date: 5/8/2003
    		 Abney  v. Com.
    Criminal
    Defendant's conviction for Driving on Suspended License - 3rd Offense affirmed. Defendant not entitled to benefit of statute's amendment in 2000.
    2001-CA-001659.pdf
    Size: 20 kb
    Date: 5/8/2003
    		 McIntosh v. Grimes
    Boundary Line Dispute and Adverse Possession
      2001-CA-001999.pdf
    Size: 36 kb
    Date: 5/8/2003
    published
    		 Scott v. Summers
    Family Law, Visitation, Contempt, UCCJA
    Husband and wife divorced in Kentucky, and ex-wife gets remarried and moved to Texas where she sought to modification of custody.  Husband moves for contempt against ex-wife for not following visitation order.  CA held Kentucky court did not have jurisdiction over Texas custody issue since Texas per UCCJA was now the children's "home state."  
    2001-CA-002030.pdf
    Size: 73 kb
    Date: 5/8/2003
    		 Potter v. Com.
    Criminal
    Trial Court properly denied Defendants' motions to suppress evidence - there were exigent circumstances that justified warrantless entry of residence.  Further, Trial Court properly denied motion to sever Defendants, did not abuse its discretion in making various procedural and evidentiary rulings at trial, and properly overruled motion for mistrial.
    2001-CA-002360.pdf
    Size: 27 kb
    Date: 5/8/2003
    		 Gardner v. Gardner
    Family Law, Division of Property
    Trial court did not abuse discretion, but what is noteworthy is the lesson we should learn toward effective advocacy (make the appellate judge's job easy by following the rules.).

    The CA noted that Jeanette’s brief was prepared in complete disregard of CR 76.12 (4)(c)(iv), and though they declined the request to strike the brief, it was noted "we have no obligation to conduct an exhaustive search of the record in an effort to discover support for Jeanette's factual arguments or to supply omissions that were incumbent upon the appellant to provide."  Ouch.
    2001-CA-002405.pdf
    Size: 28 kb
    Date: 5/8/2003
    		 Ferland v. Kraus
    Wills and Estates, Adversary Proceeding Filing, Contest, Relation back of amendments
    2001-CA-002425.pdf
    Size: 34 kb
    Date: 5/8/2003
    		 Crowley v. Lilly
    Family Law, Kentucky Domestic Violence Act, Constitutionality
    2002-CA-000303.pdf
    Size: 27 kb
    Date: 5/8/2003
    		 Hamilton v. Herr
    Contracts, Judgments, Interest
    2002-CA-000356.pdf
    Size: 41 kb
    Date: 5/8/2003
    		 Magherrio v. Shields
    Civil Procedure, Medical Negligence
    CA reversed trial court's dismissal of med-mal case.  Although plaintiff's failure to obtain substitute counsel was inexcusable, dismissal was not warranted.
    2002-CA-000390.pdf
    Size: 22 kb
    Date: 5/8/2003
    		 Lewis v. Lantech
    Workers Compensation
    2002-CA-000476.pdf
    Size: 32 kb
    Date: 5/8/2003
    		 Mann v. Nortons Hosp.
    Medical Negligence, Causation vs. loss of chance
    "Kentucky law requires that the plaintiff in a malpractice suit present evidence "reflecting medical reasonable probability of proximate cause for the claimed adverse result as related to the charge of negligence." We agree with the trial court that "Dr. Stellar cannot supply the medical causation testimony required by Kentucky law. . . .[because] his testimony is devoid of any credible opinion regarding a treatment which would have given Phillip Mann a reasonable probability of a better outcome."
    2002-CA-000549.pdf
    Size: 22 kb
    Date: 5/8/2003
    Young v. Com.
    Criminal
    Defendant not entitled to appointed counsel nor hearing on 11.42 motion.
    2002-CA-000654.pdf
    Size: 40 kb
    Date: 5/8/2003
    		 Adams v. GRCS, Inc.
    Premises Liability, Violation of Ordinance for Maintaining Sidewalks (liability per se not created by the ordinance)
    2002-CA-000771.pdf
    Size: 28 kb
    Date: 5/8/2003
    		 Owens v. Maze
    Government
    This is the case where the county commissioner in Jefferson county sought his pay after position was virtually eliminated by the metro government.  CA said constitutional office gets paid.

    		2002-CA-000774.pdf
    Size: 23 kb
    Date: 5/8/2003
    		 Friseby v. Frisby
    Family Law, Non-marital property, Law of the Case
    2002-CA-000804.pdf
    Size: 35 kb
    Date: 5/8/2003
    		 Rison v. Com.
    Criminal
    Defendant's conviction for Burglary - 2nd Degree affirmed.  Rison's statement was not made in violation of 5th Amendment rights; Rison was not entitled to voluntary intoxication instruction; and he was not entitled to separate trial from co-Defendant.
    2002-CA-000915.pdf
    Size: 29 kb
    Date: 5/8/2003
    		 Com. v. Barker
    Criminal
    Jefferson Circuit Judge Denise Clayton's order suppressing statements made in violation of Miranda affirmed.  Defendant was at pretrial on drug charges when police officer arrested him for unrelated burglary charge in the hallway outside the courtroom.  Defendant conferred with his attorney and subsequently executed "assertion of rights" form in which he asserted 5th Amendment privilege.  Attorney told officer that Defendant wanted attorney present during any questioning.  After suggesting that he was taking Defendant to jail, the officer took him to the police station, where Defendant subsequently executed Miranda waiver and made statements that led to Attempted Murder and Robbery charges.  CA upheld Judge Clayton's ruling that Defendant's uncounseled waiver at the police station was involuntary.
    2002-CA-000947.pdf
    Size: 61 kb
    Date: 5/8/2003
    		 Hume v. Franklin County Fiscal Court
    Zoning
      2002-CA-001078.pdf
    Size: 25 kb
    Date: 5/8/2003
    PUBLISHED    		 PAMELA FORD AND FROST BROWN TODD LLC v. BLUE
    Antenuptial Agreement, Attorneys Fees
    The Blues were Blue after having divorced, entered into a pre-nup, getting remarried and divorced for the second time.  This appeal is the second appeal (see Blue v. Blue, Ky. App., 60 S.W.3d 585 (2001)). No infidelity involved and both have been True Blue.  Husband - Blue and Wife - Ford.

    The wife did not like the way the Jefferson Family Court interpreted the pre-nup which conditioned payments on who "instituted" the divorce.  In this second go-round, wife filed in Florida, husband gets wind and files in Jefferson County, and wife drops her Florida divorce.

    The conflict, in fact, centers around the issue of who actually instituted the divorce proceedings. The trial court found that Wife instituted the divorce proceedings when she filed a petition to dissolve her marriage in a Florida court. Wife claims that since the actual divorce decree was issued by the Jefferson Circuit Court in an action filed by Husband, after he learned that Wife had begun divorce proceedings against him, that Husband must pay Wife the fifty percent premium pursuant to Section 2.1 of their antenuptial agreement. CA agreed with Husband that wife instituted suit and should not profit from her own dismissal.

    Next, attorneys fees.  Key clause is Husband "agrees to pay all attorneys’ fees, court costs and any other expenses incurred by [wife] in the course of such proceedings, provided  [wife] shall make no attempt to contest the validity of this Agreement, either in whole or in part."  CA agreed with Judge Byer that wife contested agreement and lost benefit of attorneys fees clause. However, CA further held it was error for trial court to solely consider the agreement regarding attorneys fees and reversed and remanded since trial court can look at disparity of income and resources (here H had $24 million and W had $500K).  Judge Byer must look at this one again to see if attorneys fees should be awarded per  Drake v. Drake, Ky. App., 721 S.W.2d 728 (1986); Gentry v, Gentry, Ky., 798 S.W.2d 928 (1990).

     
    2002-CA-001097.pdf
    Size: 41 kb
    Date: 5/8/2003
    		 Watkins v. Com.
    Criminal
    Defendant's conviction for Trafficking and PFO 1st affirmed.  Trial Court properly excluded cross-examination information under collateral facts doctrine.  Defendant was not entitled to directed verdict as a result of entrapment.
    2002-CA-001261.pdf
    Size: 43 kb
    Date: 5/8/2003
    		 Polsgrove v. Lundergan
    Easements, Issue Preclusion, Judicial Admissions
    2002-CA-001288.pdf
    Size: 26 kb
    Date: 5/8/2003
    		 Davis v. Com.
    Criminal
    Defendant's conviction for Assault -2nd Degree under extreme emotional disturbance upheld.  Defendant was not entitled to directed verdict as Commonwealth properly introduced evidence of serious injury.
    2002-CA-001398.pdf
    Size: 58 kb
    Date: 5/8/2003
    		 Jones v. Com.
    Criminal
    Defendant's convictions for Possession of Firearm by Convicted Felon and Possession of Defaced Firearm upheld.  Trial Court properly overruled motion to suppress based upon 4th Amendment violation.
    2002-CA-001495.pdf
    Size: 22 kb
    Date: 5/8/2003
    		 Asher v. Asher
    Family Law,  Appeals, Experts, Property Values
    CA noted appellee failed to file a brief in time and facts were taken as claimed by appellant.  Also trial court should have accepted uncontradicted appraisal of the mobile home. However, the rule regarding uncontradicted values did not apply to wife's claims regarding value of missing property allegedly taken by husband.
    2002-CA-001620.pdf
    Size: 23 kb
    Date: 5/8/2003
    		 Roberts v. County Debt Commission
    Bond Issue
    2002-CA-001740.pdf
    Size: 18 kb
    Date: 5/8/2003
    		 Nazareth Health v. Ellington
    Summary Judgment, Appeal
    Plaintiff fell on broken chair at hospital. Hospital lost summary judgment motion claiming plaintiff could not show how long defect existed.  CA held interlocutory and not meet any of the exceptions for appealing summary judgment per CR 56.03.
    2002-CA-001993.pdf
    Size: 24 kb
    Date: 5/8/2003
    		 Brown v. Cabinet for Families and Children
    Workers Comp.
    2002-CA-002451.pdf
    Size: 26 kb
    Date: 5/8/2003
    		 Barlow Homes v. Collins
    Workers Comp.
    2002-CA-002452.pdf
    Size: 35 kb
    Date: 5/8/2003
    		 Phoenix Metal Technologies v. Stewart
    Workers Comp.


  • Kentucky Court of Appeals
    May 16, 2003 (nonpublished unless otherwise indicated!!)
      2000-CA-000847.pdf
    Size: 20 kb
    Date: 5/15/2003
    		 Keeney v. Com.
    Criminal
    Trial Court's imposition of conditions on Defendant upon release from prison reversed in part.  Defendant was classified as high-risk sexual offender.  CA held Trial Court could not impose additional conditions aside from registration requirements, as they consitute ex post facto application of criminal law.
      2001-CA-001782.pdf
    Size: 29 kb
    Date: 5/15/2003
    		 Hardin v. Com.
    Criminal
    Trial Court properly denied Hardin's 11.42 motion alleging ineffective assistance of counsel without hearing.
      2001-CA-001852.pdf
    Size: 27 kb
    Date: 5/15/2003
    		 Crestbrook Properties LLC v. Northern Kentucky Water
    Administrative law and power cross-connections
      2001-CA-001933.pdf
    Size: 58 kb
    Date: 5/14/2003
    Published
    		 Robinson v. Back
    Gender Discrimination, School Board Hiring, Site Based Decision 
    While the appellee School board conceded that neither superintendant nor the Board would be protected by sovereign immunity under Section 231 of the Kentucky Constitution for a gender discrimination claim pursuant to Ammerman v. Board of Education of Nicholas Co., Ky., 30 S.W.3d 793 (2000), they asserted that Robinson should be precluded from bringing this action under the doctrine of election of remedies.  CA held trial court misapplied election of remedies provisions (with a decent discussion of the issues too).  CA also reversed sum. judgment dismissing claim and had a good discussion of gender discrimination with burden of proof etc.

     
      2001-CA-002287.pdf
    Size: 28 kb
    Date: 5/15/2003
    		 Hayden v. Com.
    Criminal
    Trial Court properly denied Hayden's 11.42 motion alleging ineffective assistance of counsel without hearing.
      2001-CA-002496.pdf
    Size: 22 kb
    Date: 5/15/2003
    		 Stuck v. Kidwell
    Summary Judgment Review
    Seller sold house with some defective plumbing and buyer sued.  Trial court granted summary judgment without reasons.  CA stated even though trial judge does not have to give reasons, the burden is still on the prevailing party (seller of home) to show the buyers could not have prevailed under any theory.  CA examined several theories and concluded jury could have looked at several.  SJ reversed.
      2001-CA-002765.pdf
    Size: 31 kb
    Date: 5/15/2003
    PUBLISHED
    		 Pangale v. Kentucky Law Enforcement Council
    Administrative Law
    Police officer lost his certification for making putative misstatements about his military reserve status and obligations.  CA reversed and placed him on inactive status due to due process violations in the procedures.
      2002-CA-000045.pdf
    Size: 34 kb
    Date: 5/15/2003
    		 Relford v. Lexington Fayette County Urban Gov't
    Administrative Law
    CA affirmed dismissal of civil servant electrician who refused drug test.
      2002-CA-000077.pdf
    Size: 23 kb
    Date: 5/15/2003
    		 Bard v. Stevens
    Real Property, Easements
    CA vacated judgment on boundary line dispute regarding retaining wall and driveway.
      2002-CA-000323.pdf
    Size: 25 kb
    Date: 5/15/2003
    		 Garrett v. Garrett and Skaggs Law Firm
    Maintenance and Attorneys Fees
    CA affirmed award of permanent maintenance of $2,000 per month to wife who was married for 46 years and husband had income of over $200,000 per year after looking at a multitude of factors.  Please note the husband kept wife in dark about the extent of their finances as he was doing quite well.  Husband also objected to wife hiring a Louisville law firm who charged anywhere from $125 to $200 per hour and had total legal fees in case of almost $23,000.  Trial court awarded about $14,000 in attorneys fees to be paid by husband.
      2002-CA-000339.pdf
    Size: 22 kb
    Date: 5/15/2003
    PUBLISHED
    		 Morgan v. Crawford
    Settlement, Accord and Satisfaction
    CA affirmed dismissal of contract dispute based upon accord and satisfaction.  "Paid in full" was marked out in check and replaced with "Under Protest."  KRS reversed the former Ditch Witch Case, and check was tendered in full satisfaction of liquidated claim which cannot be frustrated by payee's changes to the check.

    "Under the plain language of KRS 355.3-311(2) the claim against Crawford is discharged because it is undisputed that the three prongs of KRS 355.3-311(1) are met and that Check 1042 contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. The exception to KRS 355.3-311(2) available under KRS 355.3-311(3)(b) is not applicable because, after cashing the check, John David did not tender repayment within ninety days. In addition, the claim is discharged pursuant to KRS 355.3-311(4). Crawford tendered a check in full satisfaction on  a claim about which the parties were having a dispute. Because John David crossed out the restrictive language, presumably believing he could thereby negate the language, there can be no argument that he was unaware the check was tendered in full satisfaction of the claim. It follows that, pursuant to KRS 355.3-311(4), when John David cashed the check the claim was discharged."
      2002-CA-000481.pdf
    Size: 23 kb
    Date: 5/15/2003
    		 Wagner v. Com.
    Criminal
    Trial Court properly overruled Defendant's suppression motion and did not violate Confrontation Clause or Rule of Evidence by terminating defense counsel's cross-examination of officer.
      2002-CA-000630.pdf
    Size: 22 kb
    Date: 5/15/2003
    		 Johnson v. Com.
    Criminal
    Trial Court's denial of Defendant's Motion to Suppress upheld.  Further, Defendant was competent to enter guilty plea.
      2002-CA-000631.pdf
    Size: 21 kb
    Date: 5/15/2003
    		 Johnson v. Com.
    Criminal
      2002-CA-000650.pdf
    Size: 30 kb
    Date: 5/15/2003
    		 Heer v. Tomberlin
    Review of damages awarded at arbitration
      2002-CA-001906.pdf
    Size: 25 kb
    Date: 5/15/2003
    		 Young v. Hammond
    Administrative Law, School Vacancies
      2002-CA-002042.pdf
    Size: 22 kb
    Date: 5/15/2003
    		 Samuels v. Com.
    Criminal
    Defendant's CR 60.02 motion to modify sentence properly denied by Jefferson Circuit Judge Tom McDonald without hearing.

Cases In Context - a/k/a "The One-Minute CLE"
  • Auto Liability Insurance - Loss of Use
    • The following cases deal with loss of use as an element of damages in property damage cases.  At one time loss of use was tied to commercial or business vehicles, but KRS was amended to include loss of use for everyone to include the reasonable and necessary expenses for the time to repair or replace - aka rental car.  There is a time limit based upon reasonableness rather than the absolute time it takes in case the claimant car owner is dilatory since he/she has a duty to mitigate damages.  This is usually not a significant issue since most liability insurers arrange for a rental vehicle and pay for it directly during the negotiating phase (eg., time to investigate and evaluate the loss), but when that time is over, they stop the checks for the rental vehicle.
    • KRS 304.39-110 - 120
      Property damages includes "loss of use" as an element of damages regardless of the type of use for the motor vehicle (not limited to commercial or business use). The measure is reasonable and necessary expenses for the time necessary to repair or replace the vehicle.
    • Howard v. Adams, Ky., 246 S.W.2d 1002 (1952)
      • Loss of use of automobile damaged in collision is based upon a reasonable time to effect repairs and any unnecessary delay by owner before attempting to have repairs made or any time consumed in negotiations for a settlement could not be considered as part of such reasonable time.  
      • Owner has duty to mitigate damages and make timely repairs.
    • Pope's Administrator v. Terrill, Ky., 214 S.W.2d 276 (1948)
      • The rental value of a vehicle may not always be the equivalent of the amount of loss, but it is always a material and relevant factor in helping to ascertain the value of the loss of use. And where a commercial automobile is involved, the market rental value of such a machine is probably as accurate a measurement as may be produced. The question is whether this covers mere potential loss, or the value of potential use, as where the owner does not hire another truck during the process of repair. It is generally held that such failure does not preclude recovery, although the good faith intention of actually using, or the character of such intended use, may affect the amount of recovery.  
      • The owner of the damaged automobile is not required to actually rent or obtain another vehicle if it is shown that the property would have been used during the period had it not been damaged. (Note that this case was decided when loss of use was limited to commercial vehicles and prior to the change in law such that the measure is the loss of use and not the out of pocket rental expenses. But Wittmer may have muddied this a little.)
    • Wittmer v. Jones, Ky., 864 S.W.2d 885 (1993)
      "Loss of use" of a damaged vehicle extends only to the period reasonably necessary to make repairs and does not cover inconvenience in being without a vehicle until one replaces it, or time consumed in negotiations for a settlement.
  • Auto Liability Insurance - Property Damages
    • The measure of property damages is the difference in fair market value before and after the accident.  Also included is towing and storage.  Repair estimates are not conclusive but are probative in determining the difference in value.  The "Tomes" case is added since it is a first-party damages claim under the collision coverage when the claimant wanted new replacement parts rather than used or aftermarket parts;  if the damaged vehicle is new or a late model then the issue may change such that aftermarket parts are not OK.
    • Kappa v. Brewer, Ky. App., 268 S.W. 831 (1925)
      The correct measure of damages is the difference between the fair market value immediately before and immediately after the collision.
    • Pope's Administrator v. Terrill, Ky., 214 S.W.2d 276 (1948)
      • Expense of towing damaged truck from scene of collision to repair shop was item of cost in restoration to usable condition and could be considered by jury in arriving at respective market values of truck before and after collision at time and place of injury.  
      • Necessary cost of repairs is element to be considered by jury in arriving at respective market values of personal property before and after damages were sustained at time and place of injury.
    • 806 KAR 12:090 cited in Wittmer v. Jones, Ky., 864 S.W.2d 885 (1993)
      "Repair estimates or appraisers' reports may be used to indicate the difference in fair market value."
    • Tomes v. Nationwide Ins. Co., Ky. App., 825 S.W. 284 (1992)
      Absent allegation that used replacement parts would cause vehicle to be less attractive or not perform as well as before loss, insured was entitled only to either actual cash value of automobile or its damaged parts at time of loss so that insurer was not required to use new parts to repair damage on older vehicle. (First party coverage case, but may have some guidance in third party repair estimates).

 

Thanks.  Hope all of you attorneys find this useful.  If you got this far down the page, please think of ways we can help each other out and share information in the way of forms, briefs, notes, ideas, etc.  One-minute CLE contributions would be appreciated in family law, discrimination, workers comp, etc. etc.  You do a brief, there are three cases on the subject just take five minutes of your time to prep a little summary and email it to me at stevens@Lawyer.com.  Scott Byrd is already helping me on the criminal law summaries of appellate decisions. Sure could use someone for workers compensation or family law (which seem to be the next two big areas).

 

Mike Stevens