Vol. 2003/14         

• KBA Convention in Louisville on June 11-13

  • www.KyBar.org
     

• Annual CompEd Workers Compensation Seminar will be held on Thursday/Friday, June 5-6, 2003 at the Louisville Hurstbourne Hotel & Convention Center. The Agenda provides 12.5 CLE hours including 2.0 hours of Ethics. Please print the Registration form and send with your $250.00 check.
   

• Join the LBA at Slugger Field for a CLE Ethics program followed by a Bats game. This package deal includes reserved seating for the game, picnic-style buffet dinner and a one-hour CLE ethics program.
  For more info click here.

  • For the  LBA CLEs - click here.

    • Family Law Day Long 9:00-4:15 (6/20)

    • HIPAA Privacy Issues (6/25)

    • Probate & Estate Half-Day(6/24) 9:00-12:15 - ElderLawBasics

    • CLE at Slugger Field (and Bats Game)6/26 5:30-6:30
      

• Call-A-Lawyer Night at LBA - June 17, 2003
   

• 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.  

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

• Kentucky Supreme Court Decisions - May 22, 2003 - PUBLISHED
  

  2000-SC-000399-TG.pdf Size: 1563 kb Date: 5/19/2003	Flynt v. Com. Criminal - Pretrial Diversion The Supreme Court examined two cases out of Kenton County in which the Defendants wished to enter the Pretrial Diversion Program pursuant to KRS 533.250 - 262.  In both cases, the Commonwealth refused to recommend admission to the program, and the issue became whether their consent was required.  The SC held the Commonwealth's consent is required before a court can approve a defendant's application to participate in the Pretrial Diversion Program.  SC based its decision on the Separation of Powers doctrine - that is, prosecution is an executive function.  Finally, the SC held Kenton County's policy against prohibiting diversion in employment theft cases was not arbitrary in violation of the Constitution.
  2000-SC-001143-MR.pdf Size: 544 kb Date: 5/19/2003	Watkins v. Com. Criminal, PFO & Self-Incrimination,  DV & Confrontation SC affirmed in part and reversed in part Defendant's conviction and 20 year sentence for TBUT over $300, Escape 2nd, and being a Persistent Felony Offender (PFO).  First, SC affirmed Trial Court's denial of Defendant's motion to suppress statements, finding that he had given a voluntary confession.  Second, SC reversed the Court's decision not to include an instruction that no adverse inference of guilt could be drawn by the Defendant's failure to testify during the PFO / penalty phase of the trial.  Specifically, SC held that no instruction is necessary for penalty phase, but is necessary if PFO determination is made during this phase.  Third, Confrontation Clause not violated simply because Defendant was not present during directed verdict argument and jury instruction discussion outside presence of jury.  Fourth, Defendant was not entitled to hearing to determine whether he was denied his right to testify.  There was nothing in the record to indicate that Defendant's waiver was anything but voluntary.
  2001-SC-000055-DG.pdf Size: 304 kb Date: 5/19/2003	Hadley v. Com. ex rel Jackson Paternity, Experts, New Trial "Prior to trial, the district court determined that an expert witness would be necessary for the introduction of scientific blood test results . At trial, the Commonwealth presented evidence through an expert that based on paternity tests Appellant was probably the father. Ms. Jackson, the mother of the child, was called to testify by the Commonwealth, and on cross-examination she testified that she had originally believed another man, Ricky Lyons, to be the father. The Commonwealth.sought to counter this evidence by proof of blood test results exonerating Lyons, or by the order dismissing the earlier paternity action against him . The district court disallowed introduction of either, because as it had previously ruled that an expert witness was necessary for introduction of the paternity tests. The court also held that the order of dismissal was not a true adjudication of the matter, but was the product of an agreement.' Thus, the Commonwealth was left without persuasive evidence to respond to Ms . Jackson's previous admitted accusation of Lyons as the father. Despite expert testimony that computed Appellant's paternity probability at 99 .95%, the jury found that Appellant was not the father."  On appeal, circuit court reversed and granted new trial on its own motion.  CA affirmed. SC held: the Commonwealth did not move for a mistrial or any other relief, and as such there was no basis for the Court of Appeals, absent a determination of palpable error, to remand this case for retrial based on an unpreserved question without any relief having been sought at trial and nothing in record warranted new trial "in interests of justice."  District court was also within its authority to require authentication of expert testimony.
  2001-SC-000256-DG.pdf Size: 1000 kb Date: 5/19/2003	Vandertoll v. Com. Dept of Transportation Condemnation, Statute of Limitations, Redemption, Tolling & Accrual Condemnation statute was amended in 1980 to allow for redemption if property not used with 8 years by state.  Statute was not retroactively applied in case where condemnation occurred prior to 1980 but 8 years passed after 1980 so that cause of action accrued after the statute.  No so if 8 years had expired before 1980 which would be a retroactive application of the statute.  "Accordingly, we hold that to allow landowners whose rights to repurchase their condemned property are triggered before the statutory amendment of KRS 416.670 in 1980 (by the expiration of eight years without development), would be to allow retroactive application of that statute in violation of KRS 446.080(3)." Five year statute of limitations applies since above right was created by statute as opposed to the fifteen year statute pertaining to actions on real estate. Tolling - statute of limitations tolled since cabinet failed to give mandatory notice of right to redeem by statute so cause of action no accrue until all acts completed.   "Our ruling also does not necessarily implicate the discovery rule. Kentucky case law has previously limited the extension of the discovery rule primarily to causes of action arising from recovery of stolen property, medical or professional malpractice and latent illness or injury resulting from exposure to harmful substances. Roman Catholic Diocese of Covington v . Secter, Ky . App., 966 S .W.2d 286 (1998) . The discovery rule acts to delay the accrual of a cause of action until the plaintiff discovers, or should have reasonably discovered his injury . Id at 288. This, in effect, allows injured plaintiffs their day in court when the nature of their injury is such that the injury itself is not readily discoverable. However, in the cases sub judice, KRS 416 .670 places the burden of notification upon the Cabinet, thereby relieving the condemnees of the responsibility to investigate whether the Cabinet has developed their land for its intended purpose . The clear and unequivocal language of the statute states that the Cabinet is charged with making the condemnees aware of their rights under KRS 416.670; therefore, its failure to effect such notice delays the running of the statute of limitations on claims arising pursuant to the statute until notice is properly given ." Comment:  Court blurred tolling vs. accrual in its opinion language but the bottom line is that failure to give the notice means you can still redeem the property.
  2001-SC-000753-MR.pdf Size: 1518 kb Date: 5/19/2003	Riley v. Com. Criminal, PFO SC affirmed Defendant's conviction and 20 year sentence for Possession of Marijuana and Drug Paraphernalia while in possession of firearm and being a PFO 1st.  More specifically, the marijuana conviction was enhanced from a Class A misdemeanor to Class D felony because of the firearm possession, then further enhanced to a 20 year sentence via the PFO 1st conviction.  The SC held that parole officer's search of Defendant's home did not violate 4th Amendment against unreasonable search and seizures.  Further, there was sufficient evidence to support the firearm enhancement.  Further, the Court's PFO 1st instruction was proper despite the technical error in the indictment.  Finally, the 20 year sentence did not constitute cruel and unusual punishment.
  2001-SC-000883-MR.pdf Size: 1745 kb Date: 5/19/2003	Johnson v. Com. Criminal, PFO SC affirmed conviction and 20 year sentence for Possession of Controlled Substance, Possession of Marijuana and Drug Paraphernalia - all enhanced because of firearm possession.  First, the Defendant argued that the Court erred in instructing the jury on the firearm possession, specifically the failure to include "beyond a reasonable doubt" language and a requirement of a "nexus" between the firearm and drug possession.  The SC agreed, but held the issue was not preserved for appeal and did not result in a manifest injustice.  Oops.  Second, the SC rejected the KRE 403 - unduly prejudicial argument that the Trial Court erred in allowing the Commonwealth to play a videotape of the execution of the search warrant.  Third, there was sufficient evidence of the firearm possession.  Fourth, the Trial Court properly allowed the Commonwealth to amend the indictment prior to the verdict.  Fifth, the drug paraphernalia instruction was proper.
  2002-SC-000406-MR.pdf Size: 398 kb Date: 5/19/2003	Cobb v.Com. Criminal Defendant's conviction and sentence of 40 years for 1st Degree Trafficking - 2nd offense affirmed in part and reversed in part by SC.  The SC agreed that the verdict form was erroneous in that it did not provide separate instructions for each count.  However, the issue was not preserved for appeal and did not result in palpable error.  Next, the fact that the instructions failed to include a jury recommendation for concurrent or consecutive sentencing did not result in palpable error or deprive the Defendant of a fair trial.  Next, despite failing to preserve the issue for review, the SC reversed the Trial Court's improper instruction during the penalty phase to sentence the Defendant within the enhanced penalty range without expressly finding him guilty of being a subsequent offender.  Finally, the Trial Court did not err in failing to grant a directed verdict and failing to continue formal sentencing.
  2002-SC-000540-WC.pdf Size: 349 kb Date: 5/19/2003	Woodland Hills Mining, Inc. v. McCoy Workers Compensation, Reopening Claim McCoy sustained an injury to his back and other parts of his body in October, 1994 for which he received an award of 25% occupational disability on September 27, 1996 and a finding that he also had a related permanent psychiatric condition that warranted treatment but was not disabling at that time.  McCoy moved to reopen the claim on the 4 year anniversary of the award, September 27, 2000 alleging a worsening of both the physical and psychological conditions and the claim was assigned to ALJ Terry, the same ALJ who rendered the initial award who held McCoy to now be permanently totally disabled based on worsening of both conditions but mostly on the psychological.  The Supreme Court held that the December 12, 1996 amendment to KRS 342 .125(1)(grounds for reopening) was not remedial.  The law in effect on the date of injury still controls the rights and obligations of the parties. McCoy had the burden of showing "a change in occupational disability" from his pre-December 12, 1996 injury rather than "a change of disability as shown by objective medical evidence of worsening or improvement of impairment" required for current era injuries.  The ALJ's belief that he had done so based on increased physical restrictions and psychiatric symptoms was supported by the record and affirmed by the Board, Court of Appeals and Supreme Court.

• Kentucky Supreme Court - NOT TO BE PUBLISHED 
  May 22, 2003
  

  2000-SC-000526-MR.pdf 2001-SC-000910-TR.pdf Size: 1135 kb Date: 5/19/2003	Standifer v. Com. Criminal
  2001-SC-000525-MR.pdf Size: 704 kb Date: 5/19/2003	Allen v. Com. Criminal
  2001-SC-000783-MR.pdf Size: 412 kb Date: 5/19/2003	McGorman v. Com. Criminal
  2001-SC-000814-MR.pdf Size: 1111 kb Date: 5/19/2003	Hall v.Com. Criminal
  2002-SC-000195-MR.pdf Size: 253 kb Date: 5/19/2003	LaGrand v. Com. Criminal
  2002-SC-000196-MR.pdf Size: 509 kb Date: 5/19/2003	Kentucky Employers' Mutual Insurance v. Casada Workers Compensation, Medical Expenses, Exclusive Remedy This opinion arises from a Writ of Prohibition to Circuit Court proceedings related to disputed medical expenses.  Harley was injured in February 1998 working for a proprietorship owned and operated by his sons, Edwin and James, which was insured by KEMI.  While paying other benefits, KEMI refused to voluntarily pay a July 2001, bill  for "home nursing services" and "skilled nursing care" as not being for services reasonable and necessary for the cure and relief of the work related injuries on the grounds that the services were fraudulent or exaggerated.  In addition to pursuing payment of these bills and "bad faith" under KRS 342.267 in his  workers' compensation claim, Harley, individually, joined with his sons, Edwin and James, d/b/a Casada Brothers Trucking, as plaintiffs in a civil action filed in the Fayette Circuit Court, seeking payment of the claimed medical expenses, compensatory and punitive damages for KEMI's "bad faith" refusal to pay the bill, attorney's fees and costs, and trial by jury.   The disputed services were allegedly provided by Harley's son and former employer, Edwin, from October 27, 2000, until July 26, 2001, for which  $360 .00 per day as a "home health aide" and $95.00 per day as a "skilled nurse" totaling $124,215.00 were claimed!  Contrary to representations in the billing, Harley's treating physician denied having ordered those services!!  Worse, no evidence was provided to suggest Edwin was qualified or competent to provide either "home health services" or "skilled nursing care" and KEMI received a letter stating that "at no time have I asked for home health therapy for this patient" from the physician who allegedly ordered the services billed!!!  Worse yet, it was admitted that the amount claimed was based on the cost of services that could have been rendered, not services that were actually rendered!!!!  The Supreme Court held that KRS 342.690(1)(the WC exclusive liability statute), deprived the Fayette Circuit Court of subject matter jurisdiction over this matter. Pursuant to The Travelers Indemnity Company v. Reker, Ky ., 100 S.W .3d 756 (2003), KRS 342.267 does not and was never intended to create an exception to exclusive liability for violations of the Workers' Compensation Act.  The sole purpose of KRS 342.267 was to authorize punitive action against the insurer or self-insurer by the Commissioner of the Department of Workers' Claims.  Disputes over the payment of a medical bill between a carrier and provider are to be resolved by an administrative law judge pursuant to KRS 342 .020(1) and 803 KAR 25:012(1). The circuit courts have no jurisdiction to resolve a dispute over an unpaid medical bill.
  2002-SC-000328-DG.pdf Size: 456 kb Date: 5/19/2003	Clark v. Clark Family Law, Child Custody Modification, Serious Endangerment Std. "The report of the Commissioner was adopted in its entirety by the circuit judge who also recognized the decision in Scheer, and reasoned that the father would prevail on the custody modification even under a "serious endangerment standard ." The Court of Appeals issued an opinion reversing the circuit court and held that the behavior of the mother did not rise to the level of endangerment of the children. The majority of the Court of Appeals panel believed that there was error in a modification based on the statutory section providing that modification shall not be made on the "sole basis" of disputes over visitation . This Court granted discretionary review." Held "The Court of Appeals exceeded its appellate review authority by substituting its findings for those of the circuit court. " "As a domestic relations case involving the proper application of joint custody modification standards, we are not unmindful of the concerns of the legal profession regarding the decision by a majority of the en banc Court of Appeals in Scheer, which overruled cases including one ordered published by this Court six years earlier, Mennemeyer, supra , and another rendered eight years earlier, Benassi v. Havens,.Ky.App., 710 S .W .2d 867 (1986). Currently there are two orally argued cases pending in this Court that could impact the Scheer decision . They are Fenwick v. Fenwick, 1999-SC-1055-DG and Huck v. Huck, 2000-SC-0697-DG. However, we find that regardless of the ultimate decision in either Fenwick or Huck, this case can be decided on its own facts in relation to the applicable law. Both Fenwick and Huck involve unilateral relocation which was not approved by the court or consented to by the spouse, one was out of the state, the other was out of the county."
  2002-SC-000521-WC.pdf Size: 343 kb Date: 5/19/2003	Davis Construction v. Garcia Workers Compensation, Proof and AMA Ratings  Garcia injured his back in February 2000 which his treating physician diagnosed as a cervical and lumbar strain, assigned a 5% AMA rating, and recommended restrictions.  Upon the sole issue of extent and duration of disability, work related injury having been stipulated, ALJ Don Smith found Garcia permanently totally disabled.  On appeal, the employer tried to argue that Garcia had not shown objective medical findings of a harmful change in the human organism and that the AMA rating was insufficient for lack of specification of the basis for assigning the impairment or the edition under which it was assigned.  The court held that, having stipulated to a work related injury, the employer could not argue that Garcia had failed to prove a compensable injury and that the uncontroverted proof was substantial evidence that an injury had occurred.  In the absence of medical evidence to the contrary, the treating physician's assignment of  an impairment rating, recommended restrictions and Garcia's testimony provided substantial evidence for the award of PTD benefits.]
  2002-SC-000531-WC.pdf Size: 506 kb Date: 5/19/2003	Moore v. Versnick Healthcare Center, Inc. Workers Compensation Moore's testimony of the work she she actually performed from May 1999 to August 1999 conflicted with the testimony of the employer's personnel manager and dietary department supervisor. The medical opinion(s) linking the diagnoses of carpal tunnel syndrome, reflex sympathetic dystrophy and Reynaud's disease to Moore's work were based on the histories given by Moore, an apparent lack of awareness of her potentially contributory  diabetes, and an admitted lack of awareness of the specific duties Moore performed.  ALJ Terry's dismissal of the claim based on finding the employer's testimony regarding the actual work performed most persuasive and rejection of Moore's medical opinion proof as having been based on incomplete and/or inaccurate histories was affirmed by the Board, Court of Appeals and Supreme Court.
  2002-SC-000594-WC.pdf Size: 509 kb Date: 5/19/2003	Kelvin Corp. v. Vega Workers Compensation, Reopening Settled Claim Vega's right thumb was crushed at work for Kelvin in September 1999 and he was assigned a 14% AMA rating and returned to work for Kelvin at weekly wages in excess of his pre-injury average weekly wage.  Vega settled his claim on August 15, 2000 for an additional sum of TTD benefits and a lump sum payment of PPD benefits based on the 14% rating, the applicable KRS 342.730(1)(b) table factor, and the KRS 342.730(1)(c) 50% reduction in weekly benefit rate.  The agreement specified that it did not include a waiver or buyout of future medical expenses but made no reference to the right to reopen.  After leaving Kelvin's employment, Vega filed a motion to reopen in December 2000 pursuant to KRS 342.125(3) seeking payment of the remainder of the full disability benefit rate payable in the absence of the KRS 342.730(1)(c) modifier based on his cessation of work at wages equal or greater to his pre-injury average weekly wage.  ALJ Steen held Vega lacked standing to reopen based on a post-settlement reduction of his wage rate.  On appeal, the Board's reversal of the ALJ was affirmed by the Court of Appeals and Supreme Court.  Kelvin's argument that the lump sum payment extinguished its liability for income benefits based on the 14% rating was rejected for lack of anything in the agreement that would reasonably indicate that the parties contracted for a waiver of the Vega's right to reopen if his earning capacity were to become less than at the time of the injury.
  2002-SC-000601-WC.pdf Size: 465 kb Date: 5/19/2003	Raye v. Golf Commission of Paducah Workers Compensation Raye injured his low back at work in July 1996 and, following surgery at L5-S1,  settled his claim for a 21% PPD.  He underwent low back surgery for a new herniation at L4-5 and L5-S1 in 1999 for a probable recurrent herniation at L5-S and a new small herniation at L4-5.  Dr. Raque opined the new herniation was unrelated to the 1996 injury.  Dr. Meriwether opined that the 1996 injury and its effects were substantial factors causing the conditions for which the 199 surgery was performed and has lessened his ability to perform physical activities.  Dr. Prince, University Evaluator, rendered an opinion that the 1996 injury was the cause of the subsequent complaints, that it had aroused Vega's pre-existing degenerative disc disease (DDD), and he apportioned the causes of Vega's current condition between the 1996 injury, the 1998 herniation and the DDD but also opined that Vega was not yet at maximum medical improvement.  ALJ Don Smith awarded permanent total disability benefits apportioned equally to the employer and Special Fund (now Division of workers' compensation Funds).  The determination of work-related causation and total disability were affirmed on appeal, but the award of permanent disability benefits was reversed and remanded for failure to state a reasonable basis for failing to give KRS 342.315(1) presumptive weight to Dr. Prince's opinion that Vega had not yet reached MMI.
  2002-SC-000692-WC.pdf Size: 407 kb Date: 5/19/2003	Ham v. Gibson Plumbing and Piping Workers Compensation This is an appeal from a denial by ALJ Nanney (deceased) of Ham's demand of right to present evidence in support of a request for sanctions.  Ham filed a formal claim for injuries he sustained in March 2000 seeking income benefits and sanctions against his employer and its workers' compensation carrier.  The ALJ bifurcated those claims and did not permit any testimony on the issue of sanctions at the final hearing.  The ALJ entered an award of TTD benefits as already paid and rejected Ham's claim for PPD benefits and, having concluded that Ham was not a credible witness and, noting that the employer was completely successful in defending the claim, held sanctions were not appropriate and subsequently overruled Ham's petition for reconsideration of the issue of sanctions being payable for late payment of the TTD benefits in which he was affirmed by the Board and Court of Appeals.  Ham appealed further arguing that the request for sanctions under KRS 342.310 (assessment of costs for defense of claim without reasonable ground) was based entirely on the handling of his claim during the time he was temporarily disabled.  Noting that Ham never made a claim for interest on late payments of TTD under KRS 342.040 nor a claim for TTD benefits in excess of what the ALJ awarded, the Supreme Court held that there was no reason for the ALJ to receive any further evidence on this issue and also affirmed.
  2002-SC-000822-MR.pdf Size: 599 kb Date: 5/19/2003	Moe v. Com. Criminal

   

• Kentucky Court of Appeals - PUBLISHED - 
  May 23, 2003
  

  2002-CA-000702.pdf Size: 21 kb Date: 5/21/2003

  Feinberg v. Townsend Civil, Wrongful Use of Civil Proceedings "Manley N. Feinberg appeals from the judgment of the Jefferson Circuit Court, which granted summary judgment in favor of defendants Larry G. Townsend and J. Bruce Miller, Esq., in Feinberg’s claim for wrongful use of civil proceedings.  Feinberg argues on appeal that the circuit court improperly granted summary judgment on the ground that whether there was a termination of the proceedings in his favor was a question of fact to be resolved by a jury. We affirm." This case arose from a legal malpractice action filed against Feinberg by Townsend, which alleged that Feinberg had been negligent in the course of his representing Townsend and Townsend’s company, Riverboat Development, Inc. (RDI), during joint venture negotiations with Caesars World. Feinberg counterclaimed, alleging that Townsend had breached the contract between them and that he was entitled to 240 shares of RDI. The case was referred to mediation, where it was agreed that Townsend would dismiss the claims against Feinberg, and that Feinberg would receive 50 shares of stock instead of 240.  Feinberg then brought this action against Townsend and Miller, who acted as counsel for Townsend on the malpractice action, alleging wrongful use of civil proceedings. The Jefferson Circuit Court determined that Feinberg could not satisfy the elements of wrongful use of civil proceedings as set forth in the Restatement (Second) of Torts at §660, because he could not show that the underlying action was terminated in his favor. This appeal followed." "The tort of wrongful use of civil proceedings is traditionally disfavored in this Commonwealth, and there is a long-standing precedent that one claiming wrongful use of civil proceedings must strictly comply with the elements of the tort. Prewitt v. Sexton, Ky., 777 S.W.2d 891 (1989); Broaddus v. Campbell, Ky. App., 911 S.W.2d 281 (1995). The circuit court noted that the comments to Restatement (Second) of Torts, §674, indicate that "[c]ivil proceedings may be terminated in favor of the person against whom they are brought ...by (1)the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of his failure to prosecute them...." Thecomment concludes, "In determining the effect of withdrawal the same considerations are decisive as when criminal charges are withdrawn...." Id." "We disagree that Raine [Raine v. Drasin, Ky., 621 S.W.2d 895, 900 (1981)] stands for the proposition that one may settle an action and still bring an action for wrongful use of civil proceedings. Raine did not involve a settlement but a voluntary dismissal of the action, accomplished by an agreed order. In Raine, the Kentucky Supreme Court unambiguously stated that "[t]he [agreed order] did not entail any compromise or settlement; it simply and effectively terminated the lawsuit as far as the defendant doctors were concerned. The dismissal declared, in effect, that.there was no malpractice on the part of the defendants." Id. at 899. Therefore, Raine cannot be said to stand for the proposition that a party may reach a compromise through mediation and subsequently bring an action for wrongful use of civil proceedings."

  
  

• Kentucky Court of Appeals - NOT TO BE PUBLISHED -
  May 23, 2003
  

  1999-CA-001931.pdf Size: 51 kb                     Date: 5/21/2003	Ford Motor Co. v. Coulson Peremptory Challenges - Opposing Sides, Out of Court Experiments, and Apportionment Instructions CA affirmed on remand for  consideration in light of Sand Hill Energy, Inc. v. Ford Motor Company, Ky., 83 S.W.3d 483 (2002) regarding granting peremptory challenges and "opposing sides" and that their interests were, in fact, antagonistic requiring this Court to affirm the trial court’s ruling on this matter. No apportionment instruction required for named party who settled and was dismissed since theory was vicarious liability and had sufficient identity of interest. Reviewed out of court experiment.  "Generally speaking, the results of out-of-court experiments are admissible in evidence if such evidence tends to enlighten the jury and enable them to more intelligently consider the issues or if they provide evidence more satisfactory or reliable than oral testimony. Lincoln Taxi Co. v. Rice, Ky., 251 S.W.2d 867 (1952).'  "In examining this issue, we are persuaded by the following: 1) KRE 401 provides that all relevant evidence is admissible, subject to limited exclusions; 2) the former Court of Appeals has affirmed the introduction of dissimilar out-of-court experiments; and 3) the trial judge is vested with a broad discretion in determining the admissibility of the evidence. Ford was availed of the opportunity to highlight the dissimilarities before the jury, and we must rely upon the jury to digest these arguments and reach a proper conclusion. Accordingly, we cannot find that the trial judge committed reversible error on this issue."
  2001-CA-000462.pdf Size: 27 kb Date: 5/21/2003	Teague v. Com. Criminal
  2001-CA-001220.pdf Size: 16 kb Date: 5/21/2003	Campbell v. Com. Criminal
  2001-CA-001475.pdf Size: 19 kb Date: 5/21/2003	Caudill v. International Brotherhood of Firemen and Oilers Agency, Liability of Union Union was not liable for an assault on strikers during a strike at Cook Family Foods because it ratified a course of conduct of violence in the strike prior to and subsequent to the assault.  Unions may only be held responsible for the authorized or ratified actions of their officers and agents. United Mine Workers of America v. Eastover Mining Co., Ky., 551 S.W.2d 245, 247 (1977). The complaining parties must establish not only that individual workers committed irresponsible or violent acts, but also that in some way the union acting through its officers or agents initiated or encouraged or aided and abetted or ratified the prohibited conduct.
  2001-CA-002057.pdf Size: 28 kb Date: 5/21/2003	Patterson v. Blair Punitive Damages, Respondeat Superior Attempted repossession by shooting tires of vehicle.  Court did not give punitive damage instructions.  Affirmed.   In order to recover punitive damages for the commission of an intentional tort, a plaintiff must prove that the defendant’s misconduct was "of a character that is ‘willful, malicious, and without justification.’" Horton v. Union Light, Heat & Power Co., Ky., 690 S.W.2d 382, 389 (1985). More recently, we have reaffirmed the requirement that "the threshold for the award of punitive damages is misconduct involving something more than merely commission of the tort." Banks v. Fritsch, Ky. App., 39 S.W.3d 474, 481 (2001).
  2001-CA-002713.pdf Size: 19 kb Date: 5/21/2003	Duvall v. Clay Finality of Judgment and Judgment Liens Motion was considered a motion for new trial (even though not denominated as such or refer to appropriate civil rule 59) so that it was not final and judgment lien was therefore not valid and must be dismissed.
  2002-CA-000083.pdf Size: 33 kb Date: 5/21/2003	Baptist Healthcare v. Miller Medical Negligence, Expert Witnesses, Medical Expenses Affirmed jury verdict of $100,000 for hospital's phlebotomist who left tourniquet on too long while taking blood.   Trial court did not err by allowing Plaintiff's counsel to read from the lab report during closing argument. Contrary to Defendant Hospital’s argument, Plaintiff’s counsel did not provide an unimpeachable expert opinion. The record reflects that during closing argument Plaintiff’s counsel only read from lab report, not that he interpreted the results of the lab report. The record further reflects that the trial court offered Central Baptist Hospital’s counsel the opportunity to read from the lab report but she chose not to. The trial court commented that "anybody" could read the results of Miller’s lab report to determine if her cholesterol level was increased. Central Baptist Hospital’s allegation that Miller’s counsel expressed an expert medical opinion is unsubstantiated by the record. Plaintiff could also recover total amount of her medical expenses even though the amount actually paid was less and was considered paid in full by Medicare.  Collateral source rule not exist in Kentucky, and not considered a windfall to the plaintiff. Comment:  These two issues exist in many trials beyond the medical negligence context.  (1) If the bills are paid by Medicaid, for example, the statute provides that the medical care providers will accept the medicaid payment as payment in full and not collect the difference.  I believe the court misfocused on the collateral source rule rather than the reasonable value of the medical expenses.  If the insurer and the medical facility can agree on the value of the services, then that is the value of the services rather than the initial charges.  It is not a collateral source issue whereby the tortfeasor benefits by the fact that the injured party has insurance.  It's a question of the VALUE of those services similar to a willing buyer and a willing seller.  (2) Medical records exist in all injury cases, and the question is how are they presented to the jury.  Obviously, all of the insurance information must be redacted therefrom.  But what about the abbreviations, medical terms, etc.?  How are the records presented to the jury?  Any interpretation of what the records say should be prohibited.  The lawyer should not be able to translate "c-spine", "cx" for complaint, r/o for rule out, or even interpret the tests of "slr" for straight leg raise or the numbers in lab tests.  The lawyer is not a witness, nor is she/he under oath.  It's one thing to infer that a neck x-ray was probably administered because of neck complaints or suspected neck injury, but it's another to explain that the degenerative disk changes are age related and not caused by the accident.
  2002-CA-000387.pdf Size: 33 kb Date: 5/21/2003	Howell v. Herald Testamentary Transfers and Inter Vivos gifts The requirements to constitute an inter vivos gift are: (a) that there must be a competent donor; (b) an intention on his part to make the gift; (c) a donee capable to take it; (d) the gift must be complete, with nothing left undone, (e) the property must be delivered and go into effect at once; and (f) the gift must be irrevocable. Here, power of attorney was effected and deeds to property prepared by the attorney before the donor's death, but they were not recorded or given to the donee until after the donor's death.  No gift, and recorded deeds do not convey title.  Attorney in fact and attorney at law were agents of the donor and not the donee so that attorney's possession of deeds did not constitute a constructive delivery to the donee.
  2002-CA-000792.pdf Size: 21 kb Date: 5/21/2003	Finley v. Com. Criminal
  2002-CA-001147.pdf Size: 36 kb Date: 5/21/2003	Peoples Bank of Bullitt County v. Stouts Feed Store Real Estate, Lien Priorities A tad complicated loan and mechanics lien history, but in a nutshell we have a bank loan with recorded mortgage to secure future advances with a mechanics lien on the property.  When the bank discovered the lien and that it was an impediment on the title, it arranged for a release of the lien and a subsequent loan and mortgage of the remainder on the lien.  Debtor eventually went bankrupt, and trial court ruled that the records showed that there was shoddy book work by the bank and that the original loan had been discharged which discharged the mortgage.  Mechanics lien aka now mortgage has priority over subsequently loaned funds and 'advance' clause on first mortgage no longer viable. Stout’s Feed correctly cites Nolin Production Credit Association v. Citizens National Bank of Bowling Green,23 for the rule that if a new note extinguished an old debt, the mortgage securing the old debt must fail in an attempt to enforce a debt on a future advances clause since there is no longer an underlying obligation on the old note to base an advance. Kentucky adheres to the general rule that "payment of the secured debt extinguishes the lien of the mortgage or deed of trust by itself and instantaneously, for the benefit of whoever is owner of the property at the time of payment" Moreover, "anything which operates to extinguish the debt necessarily operates to discharge the mortgage, on the ground that the incident cannot survive the principal, although it is sometimes declared that nothing short of an actual payment of the debt or an express release will operate to discharge a mortgage"
  2002-CA-001228.pdf Size: 23 kb Date: 5/21/2003	Peartree v. Com. Criminal
  2002-CA-001258.pdf Size: 19 kb Date: 5/21/2003	Williams v. Com. Criminal
  2002-CA-001411.pdf Size: 25 kb Date: 5/21/2003	Hightower v. Com. Criminal
  2002-CA-001454.pdf Size: 22 kb Date: 5/21/2003	Clay v. Duval Legal Negligence, Disciplinary Action as Basis Attorney was precluded from relitigating issue of liability in civil suit for amounts determined that he owed the client as a result of a disciplinary action against the attorney.
  2002-CA-002142.pdf Size: 21 kb Date: 5/21/2003	Rhodes v. Phillips Administrative Law Pro se appeal of administrative action.  However, some black law contained therein is noteworthy -  Judicial review of an administrative action is concerned with the question of arbitrariness. The court is to insure that the administrative hearing complied with the following three grounds: (1) whether the agency acted in exercise of its statutory powers; (2) whether procedural due process was complied with; and (3) whether substantial evidence was taken to support the decision reached. See American Beauty Homes Corp. v. Louisville, etc., Ky., 379 S.W.2d 450 (1964).
  2002-CA-002340.pdf Size: 41 kb Date: 5/21/2003	Hauling v. Powell Workers Compensation The facts underlying this case based on a 1994 neck injury are complex  (a 1960s knee injury during military service with a Year 2000 surgery, a 1984 low back injury with surgery and lump sum settlement for 30% disability, the 1994 neck injury with multiple surgeries and 1996 lump sum settlement for 30% disability, a 1995 low back injury while serving in the unpaid elected position of Constable and 30% litigated award for that injury in 1998 and varying opinions from at least 4 physicians).  ALJ Cowden awarded Powell permanent total disability benefits based on a worsening of the 1994 cervical injury following the 1996 settlement.   The Court of Appeals reviewed the finding of total occupational disability,  the apportionment of disability under the "excess disability" line of cases (holding them inapplicable), and entitlements to credit for the subsequent low back injury and overlapping periods of benefits previously paid. The Opinion and Concurring Opinion discuss the application of the doctrines of res judicata and collateral estoppel to the facts of this claim.  [Given that (1) this is a Not-To-Be-Published opinion; (2) need for a Madden diagram to follow the facts and law at issue (which are doubtlessly subject to multiple interpretations), and (3) the unexpired time for seeking further appeal, I recommend waiting for the decision to become final or for a Supreme Court ruling before attempting to wrap your mind around this one!].
  2003-CA-000254.pdf Size: 21 kb Date: 5/21/2003	Farmer v. Castlen Extraordinary Writs (mandamus), Criminal

   

• Subrogation - Medicaid
  • KRS 205.510-730
    Medicaid gives the Department of Human Resources the right to recover from responsible third parties, including insurance companies, reparation obligors, for medical benefits paid.  Once Medicaid has paid medical expenses, the Department of Human Resources has a superior right to recovery from third party.
  • 904 KAR1:005
    Duplication of payments avoided.  "When the department makes payment for a covered service and the provider accepts the payment, the amounts paid shall be considered payment in full and no bill for the same service shall be tendered to the recipient payment for same service accepted from recipient."
• Subrogation - Medical Expenses (non PIP)
  • State Farm Mut. Auto. Ins. Co. v. Roark, Ky., 517 S.W.2d 737 (1974)
    Insurance policy provision regarding right to subrogate medical payments was valid.  (Note this was before the MVRA - No Fault Act - which set up a special subrogation procedure for no fault medical benefits (PIP - personal injury protection or reparation benefits).
• Subrogation - "Made Whole" Doctrine - Uninsured 
  • Wine v. Globe American Cas. Co., Ky., 917 S.W.2d 558 (1996)
    • Uninsured motorist subrogation.  Neither equitable principles, nor UM statute, nor policy language entitled insurers' claims to priority, but a release obtained by one insurer entitled that insurer to priority.
    • Under general principles of equity, insured must be fully compensated for injuries or losses sustained--that is, made whole--before insurer's subrogation rights arise, in absence of statutory law or valid contractual obligations to contrary.
    • Policy language providing that if insurer made payment for uninsured motorist (UM) benefits under policy, insurer "shall be subrogated" to insured's right to recover damages from another, gave insurer right of subrogation that would not arise until insured was fully compensated for injuries or losses sustained--that is, made whole; language did not give insurer priority over less-than-fully-compensated insured.
• Subrogation - No-Fault - Statutory Right
  • KRS 304.39-070
    The PIP (personal injury protection) or basis reparations benefits (BRB) obligor is subrogated to the extent of its BRB payments "against any person or organization other than a secured person."  PIP/BRB carrier is subrogated against the tortfeasor's liability insurance company (rather than directly against the tortfeasor) for reparation benefits paid to its insured up to the limits of the liability carrier's policy.    PIP/BRB carrier can intervene in its insured lawsuit or file a claim for arbitration to assert its subrogation claim against the tortfeasor's liability insurer.  No need to intervene if PIP/BRB carrier is already in the lawsuit.  See, Waldeck supra.   Liability carrier is only liable up to its limits so that if injured party's claims exhausts the liability limits, then the subrogation claim for PIP is extinguished.
  • Progressive Cas. Ins. Co. v. Kidd, Ky., 602 S.W.2d 416 (1980)
    Reparations obligor (PIP carrier) must elect to intervene in lawsuit filed by its insured or arbitrate to recover from tortfeasor's liability carrier.
  • Grance Mut. Ins. Co. v. McDavid, Ky., 664 S.W.2d 931 (1984)
    Reparations obligor has absolute right to intervene per statute to assert its subrogation claim.  The real party in interest is the insurer and not the insured.
  • Affiliated FM Ins. Cos. v. Grange Mut. Ins. Co., Ky.App., 641 S.W.2d 49 (1982)
    Since the no-fault carrier for the vehicle is primary, then the secondary carrier can recover from the primary no-fault carrier for any no fault benefits it has paid and can submit claim for arbitration or intervene.  This is based upon the statutory priority of KRS 304.30-070(3).  This occurs when the no-fault carrier of the car in the accident refuses to pay PIP, and the passenger or pedestrian hit by the car submits a claim for PIP from their own no-fault carrier who then has a claim based upon the priorities against the primary no-fault carrier.
  • Kentucky Farm Bureau Mut. Ins. Co. v. Allstate Ins. Co., Ky.App., 681 S.W.2d 919 (1984)
    Reparations obligor is entitled to recover wage losses paid to its insured even though the insured was paid lost wages by his/her employer or another source.
  • Firemens's Fund v. Geico, Ky., 635 S.W.2d 475 (1982)
    No-fault carrier's subrogation claim is based upon statutory subrogation and not common law indemnity so that when the liability carrier has paid its limits to the injured party, then the reparations obligor's claim is exhausted and no recovery allowed against the individual tortfeasor or the tortfeasor's liability carrier.
  • State Automobile Mut. Ins. Co. v. Empire Fire and Marine, Ky., 808 S.W.2d 805 (1991)
    Excess liability insurer of the tortfeasor cannot be required to reimburse reparation obligor for sums paid in basic reparation benefits.  Another way of saying this is that the PIP carrier cannot recover payments from excess carriers;  limited to liability limits of tortfeasor.  
  • USAA v. State Farm Mut. Auto. Ins. Co., Ky. App., 784 S.W.2d  786 (1990)
    PIP carrier can recover full amount of basic and added reparation benefits (PIP) from tortfeasor's liability insurance carrier.
  • State Farm Mut. Auto Ins. Co. v. Waldeck, Ky., 619 S.W.2d 494 (1981)
    The PIP carrier who was a named defendant in the lawsuit can file a counterclaim against the other party/tortfeasor to enforce its subrogation rights.  This counterclaim satisfies the requirements of KRS 304.39-070.
  • Smith v. Earp, 449 F.Supp. 503 (W.D.Ky. 1978)
    An insurance carrier must elect to recover no-fault benefits paid for PIP either by intervening and joining the lawsuit with its insured or by arbitration.
  • Thompson v. Piasta, Ky. App., 662 S.W.2d 223 (1983)
    The effect of this statute is to abolish the claims for lost wages and medical expenses of a person injured in an automobile accident against the person who caused the injury to the extent that basic reparations are payable therefor.   Automobile accident victim subject to state "no fault" provisions was not entitled to award from defendant motorist in trial on liability for any item of damages for which such benefits were payable under "no fault" provisions of state statute; it was immaterial whether basic reparation benefits had or had not been paid.  Claim for "no fault" benefits (PIP/BRB) is the claim of the insurance carrier and not the insured;  does not matter if paid, payable, or not even paid.
  • Carta v. Dale, Ky., 718 S.W.2d 126 (1986)
    The effect of this statute is to abolish the claims for lost wages and medical expenses of a person injured in an automobile accident against the person who caused the injury to the extent that basic reparations are payable therefor.  The injured person can assert a claim only for those damages which exceeded the amounts payable as basic reparation benefits. If it elects to do so, the basic reparations obligor may intervene as the real party in interest to recover the sums payable by it as reparation benefits.
• Subrogation -No-Fault -  Release
  • State Farm Mut. Auto Ins. Co. v. Allstate Ins. Co., Ky.App., 684 S.W.2d 283 (1984)
    The only party who can give a release for a no-fault PIP subrogation claim is the no-fault insurer who paid the PIP (personal injury protection) benefits.  Any release between the liability carrier and the injured party does not bar the no-fault subrogation claim.
  • Stoval v. Ford, Ky., 661 S.W.2d 467 (1983)
    PIP carrier's subrogation claim for reparation benefits is not released when their insured releases  tortfeasor since the PIP subrogation claim is a claim of the insurance company and not their injured insured who received the benefits. 
• Subrogation -No-Fault -  Uninsured 
  • Shelter Ins. Co. v. Humana, Ky.App., 882 S.W2d 127 (1994)
    An uninsured motorist who did not have PIP coverage/no-fault benefits for medicals is not entitled to recover basic reparation benefits from the tortfeasor or the tortfeasor's liability insurance carrier.  In addition, the uninsured motorist's health insurance carrier is not subrogated and has no claim for medical benefits it has provided to the uninsured motorist if the uninsured motorist had PIP.
  • Ohio Casualty v. Atherton, Ky., 656 S.W.2d 724 (1983)
    No-fault carrier has independent subrogation claim against an uninsured motorist and may sue the uninsured motorist directly.
• Subrogation - No-Fault - Against United States
  • Young v. USA, 71 F.3d 1238 (6th Cir. 1995)
    Cannot recover PIP/BRB from US Government.
  • Lafferty v. United States, 880 F.Supp. 1121 (E.D. Ky, 1995); Safeco v. Brown, 887 F.Supp. 974 (W.D. Ky., 1995)
    A no-fault insurer cannot assert a subrogation claim against the United States Government for reparations benefits.
• Subrogation -No-Fault -  By the United States
  • 10 USC 1095 - Medical Care Recovery Act
    United States Government is allowed to recover from a no-fault or PIP/BRB insurer the value of medical services it has provided to military personnel and dependents.
• Subrogation -No-Fault -  Statute of Limitations
  • Gray v. State Farm Mut. Auto. Ins. Co., Ky. App., 605 S.W.2d 775 (1980)
    Statute of limitations for no-fault pip subrogation claim is five years rather than two years, and the reparations obligor has five years to intervene in a suit brought by the insured (prior to judgment). 

• Courier-Journal Law-Related News Stories - May 26-June 3 , 2003
  • State high court allows death penalty in case
  • Local outlets sell drugs from Canada
  • Appeals court strikes down part of anti-nepotism law
  • Florida man sues archdiocese, claims that priest abused him
  • Circuit Judge Robert Wilson dies
  • Law guards historic structures
  • Judge excludes death penalty in slaying   
  • Sexual-orientation bias barred  
  • Ex-chief loses suit against fire district
  • Miller gets 20 years Priest Abuse Case

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