- KBA Proposed Advertising Regulations
-
The original deadline to submit written comments
concerning the proposed attorney advertising regulations was
June 1, 2003. Due to the interest this issue has generated
within the Bar, the Attorneys' Advertising Commission has
extended the deadline for filing written comments to September
1, 2003.
-
The Commission has also approved a delay in
implementation of the new regulations until after September 1,
2003 in order to allow itself the benefit of all comments.
- Any comments must be received in writing at the KBA no later
than September 1, 2003.
- All comments should be sent to the Attorneys' Advertising
Commission, c/o Bruce K. Davis, KBA Executive Director, 514
West Main Street, Frankfort, KY 40601-1883.
- Copies of the proposed regulations are available from Susan
Adams, Advertising Commission Paralegal, at 502-564-3795, ext.
238 or by email at sadams@kybar.org.
- Proposed
Rule Changes - In PDF from the KBA! <<<--- Here's a
link to the proposed changes.
- Kentucky Supreme Court Decisions -
May
14, 2003 -
PUBLISHED
| Links
to AOC Cases |
Summaries
of Decisions
|
2002-SC-000055-DG.pdf
Size: 530 kb
Date: 5/19/2003
(RENDERED: APRIL 24, 2003; AS
MODIFIED: MAY 14, 2003 ) |
Norwest
Bank Minnesota NA v. Hurley
Appeals, Timeliness
Modification did not change previous ruling that CA's
automatic dismissal of appeal for appellant's tender of an
unsigned check was not warranted. Pages 1 and 5 of the
opinion changed. It looks like the Supremes lightened
up on the clerks and admonished the CA for being so hard on
them - "In this case, the notice of appeal was
filed timely. Automatic dismissal was not required by Excel
Energy or CR 73.02(2). Rather, the Court of Appeals had the
discretion to determine what sanctions were appropriate, if
any, upon finding that Norwest had violated the appellate
rules. See CR 73.02(2). This discretion is sufficient to
check the potential for abuse that concerned the Court of
Appeals. But we stress that there is absolutely
no 'basis in
the record to support the Court of Appeals' implication that
circuit court clerks of this Commonwealth, or their
deputies, are not faithful to their sworn oaths to execute
their duties "without favor, affection or partiality
." KRS 30A .020 . Therefore, we hold that automatic
dismissal of Norwest's appeal was not appropriate under
either CR 73 .02 or Excel Energy."
Comment: Is anyone catching the
appellate trends? No, not the opinions but in the
mistakes being made by the attorneys. Here we had an
unsigned check to pay for the appeal and thus violating the
"no free ride" rule. Other "boo boo"s
were:
- Failure to attach a critical exhibit
supporting the appeal (eg., the insurance policy with
the exclusion which was one of the bases for the
appeal). Even though the CA
found it in the other side's brief, they would NOT look
at it citing the burden was on the appellant to provide
it (a/k/a adding insult to injury).
- Failure by the appellant to
attach as an exhibit a copy of the cross-claim from
the earlier action upon which res judicata revolved.
- In a pro se case, the appellant did not
file a brief but the appellee who hired an attorney did and rather than shoot
down the pro se appeal before it got out of the starting gate, the CA checked
out the issues anyway. Basic rule is lawyers are
held to a higher standard, but how would you have like
to explained to your client that you got beat on appeal
by a non-lawyer who filed no brief. Now will you
pay my bill for the appeal. Please. For what
it is worth, the standard should be the same whether
lawyer or non-lawyer or bad lawyer or good
lawyer.
- Failure to join the attorney in an appeal of attorneys fees paid to that attorney.
Probably under the above theory that if they don't show,
I might win. Sorry, lost anyway.
- Failure to have your briefs red (no,
not read). Fortunately, clerks can catch this
deficiency
and return the brief to the attorney with ten days to get
color-coded. This was not a published opinion, but
I heard about it and since I am a tad color blind, I
enjoyed for once not being the one "seeing
red." (MLS)
|
- Kentucky Court of Appeals - PUBLISHED
-
May 30, 2003
2001-CA-002514.pdf
Size: 24 kb
Date: 5/28/2003 |
Com.
v. Crutchfield
Government Employment, Anti-Nepotism Law
Commonwealth sought the ouster of an elected school board
member who had a family member employed by the district.
"Therein, the Commonwealth sought to remove Crutchfield
for violation of KRS 160.180(2)(i) which prohibits membership
on the board if a "relative" is employed by the
school district. The Commonwealth pointed out that Crutchfield’s
uncle is a bus driver employed by the Garrard County School
District." School board member did not lose his job since
the statute violated the equal protection clause in making
certain distinctions between relatives, eg., neice/nephew vs.
aunt/uncle. |
2002-CA-000678.pdf
Size: 27 kb
Date: 5/28/2003 |
Kroger
v. Buckley
Employment Law, Disability Discrimination
Fired employee pursued several claims against employer,
such as compelled to be a snitch and failure to accomodate
her disability. Jury awarded her big damages (over $1
mill. in punitives). However, she alleged both a civil
rights claim and an outrageous conduct claim which the
courts have ruled in the interim that "Wilson v. Lowe’s
Home Center, Ky. App., 75 S.W.3d 229 (2001) . . . held in
relevant part that when a plaintiff prosecutes a KRS Chapter
344 claim and an outrageous conduct claim concurrently, the
former preempts the latter." However, new trial
was awarded since the instructions did combine both claims
which per Wilson is an impossiblity per preemption." |
2002-CA-000680.pdf
Size: 30 kb
Date: 5/28/2003 |
Sluder
Adm'x v. Marple
Wrongful Death Action, Adopted Child's Rights Via Biological
Parent
After a child has been adopted he is no longer the next of
kin to his biological parent and therefore cannot receive
wrongful death proceeds as a result of the biological
parent's death.
Wrongful death actions are governed by
statute (KRS 411.130) with the personal representative
pursuing the cause of action for the benefit of the
decedent's next of kin and not the estate. The personal
representative is a nominal plaintiff.
"It is well established that in
Kentucky, adopted children may not inherit from their
biological parents, even in an instance where biological
grandparents become the children’s adoptive parents. Put
simply, an adopted person cannot inherit from a blood
relative. It is, therefore, axiomatic that a wrongful death
action may not be maintained by an adopted child following
the death of his or her biological parent because that
adopted child is no longer "the kindred of the
deceased" as contemplated by KRS 411.130(2)."
Trial court's dismissal of wrongful death
action by biological child (who has been adopted by someone
else) affirmed. (mls) |
2002-CA-001568.pdf
Size: 35 kb
Date: 5/28/2003 |
Com.
v. Bowles
Criminal
Court of Appeals held that KRS § 218A.275(9) does not
limit a trial court from voiding
a felony conviction for possession of cocaine under
KRS § 218A.1415. Here, the Commonwealth appealed
Jefferson Circuit Court Ann Shake's order voiding and
expunging Bowles' felony conviction for possession of
cocaine, arguing that KRS § 218A.275(9) only applies to
misdemeanor offenses referenced in KRS § 218A.1416 and
218A.1417. After a thorough analysis of statutory
construction, the CA disagreed and affirmed the voiding
of the conviction but vacated the expungement order as
it did not comply with statutory mandates.
|
- Kentucky Court of Appeals - NOT TO BE PUBLISHED -
May 30,
2003
2000-CA-000949.pdf
Size: 34 kb
Date: 5/28/2003
|
Wright
v. Highland Cleaners, Inc.
Civil Rights, Discrimination, Election of Remedies
Case was remanded to CA because of
Wilson v. Lowe’s Home Center, Ky. App., 75 S.W.3d 229
(2001). Accordingly, reversed and remanded. Note
that this is a tad different because the employee lost in
summary judgment at trial under preemption, but the CA held
that the notice of contest had been withdrawn so there was no
election and no prejudice. A fortiori nothing to
preempt. |
2001-CA-001016.pdf
Size: 22 kb
Date: 5/28/2003
|
Chandler
v. Parker
Constitutional Law, Inmates Rights to Photocopies for his
Appeal
"A correctional institution’s policy regarding
photocopies must have actually hindered an inmate’s
efforts to pursue a nonfrivolous lawsuit. Jones v.
Franzen, 697 F.2d 801, 803 (7 th Cir. 1983), see also
Gibson v. McEvers, 631 F.2d 95 (7 th Cir 1980). We agree
with the federal courts that inmates do not have the right
to free and unlimited photocopies from correctional
institutions." |
2001-CA-001420.pdf
Size: 34 kb
Date: 5/28/2003
|
Globe
American Cas. Ins. Co. v. Bowman
Bad Faith and Unfair Claims Settlement Practices Act, Same
Insurer for Liability and UIM (covered both vehicles!)
Good analysis of
the standards for bad faith and the affirmance of a jury
verdict awarding punitives/bad faith when you have the same
insurer covering two separate vehicles - one for liability
carrier and the other for UIMr. Even though two
separate adjusters were established to handle the claim, the
insurer determined early on that fault and damages were not
an issue such that the liability and UIM limits were
available and the injured party/estate had to sue to
recover.
Interesting case involving two-car
accident in which Globe American provided insurance for both
vehicles. Mills caused the accident which killed and
injured several in Bowman's car. No fault on Bowman
driver. Mills had 25/50 in liability; Bowmans had
stacked UIM coverage totalling $100,000. Therefore,
there was a total of $150,000 available through Globe for
the Bowmans.
Globe assigned separate adjusters for the claims - one
handling Mills and another handling Bowman. Adjuster
denied Mills claim against Bowman in reliance upon KSP
report of accident. Globe never responded to Bowman's
demands for all coverages. Suit filed claiming
liability against Mills, UIM limits against Globe, and bad
faith against Globe. Globe defended denying it owed
"the limits of the Mills policy 'since the question of
fault in this accident is severely disputed." Globe
finally offered the full $150,000 nearly a year and one-half
after litigation had been commenced.
At trial, jury found bad faith and awarded
plaintiffs nearly $350,000 in damages (including punitives).
Globe's appeal was not on the instructions or evidence but
rather on the trial court's failure to grant it summary
judgment or directed verdict.
Globe knew early on that there was no
defense based on comparative negligence and that the damages
would exceed the combined coverages under the policies of
liability insurance on Mills and UIM on the Bowmans.
CA also rejected Globe's argument that it could not have
paid claim on wrongful death action until after
administrator appointed. CA noted that this did not
stop negotiations; and that furthermore, Globe still did not
pay the limits until over after the administrator was
appointed.
Globe's second argument relying on a
technical application of Coots v. Allstate went by the way
side. Specifically, the CA did not require the
liability carrier to tender its limits first before the UIM
carrier offered its limits. CA noted this was not the
typical Coots scenario since Globe was representing both
claims.
Globe's third argument went the same way
the first two went - against Globe. The fairly
debateable defense failed, especially since Globe was the
same insurer for both. They claimed it was 'fairly
debatable' regarding the requirement to pay the liability
limits first (eg., following upon the second argument which
had just failed).
Comment:
This is not an unusual situation. The key is to watch
the insurance companies' handling of the claims. Here
this panel of the CA affirmed the jury's verdict of bad
faith etc. but a different panel of the CA (2002-CA-000482.pdf)
shot down a million dollar plus verdict over the handling of
a wrongful death case where USAA represented the liability
and UIM carriers. Rather than try and distinguish
these two, we will just see what happens in the event of an
appeal. I am sure Lee Sitlinger's firm will appeal the
loss of a million dollar verdict; whereas Globe may allow
this nonpublished decision with its nonbinding analysis to
go to the trash heap.
How can insurers get caught on the fence in other
scenarios? Well, what if UIM is not an issue but the
same company has the liability coverage on two cars in an
accident. The settlement of the liability claims and
payment of PIP benefits could box the insurer on issues of
fault and causation of injuries. How you say? If
liability is determined to be comparative and one claim is
settled, but not the other driver's clailm? What about
the handling of the PIP claims? Potential mingling of
the medical expense files? Potential mingling of the
investigation files? Imagine if the PIP adjuster pays
medical bills for one injury but the liability adjuster then
disputes causation? Oh, what a web we weave when we
practice to deceive....
Comment:
For those who would like a quick read of bad faith law,
there is an extract from the opinion under the guise of a
"one-minute" CLE, thanks to the majority opinion.
PS. Does anyone else have war
stories regarding the problems an insurer encounters when it
has multiple coverages on multiple vehicles in these types
of cases. Please share.
|
2001-CA-001703.pdf
Size: 22 kb
Date: 5/28/2003
|
Rogers
v. Miller
Real Estate Brokers Duties as Intermediary
Affirmed SJ in favor of defendants. The purchasers
in a real estate transaction asserted that the trial court
erred by granting summary judgments to the sellers’ real
estate agent and broker after it concluded that they had not
breached any duties owed to the purchasers in connection
with the drafting of a purchase/sale contract. |
2001-CA-001994.pdf
Size: 52 kb
Date: 5/28/2003
|
Goff
v. Goff
Family Law, Uniform Child Custody Jurisdiction Act, Parental
Kidnapping Protection Act
The original orders regarding
jurisdiction were not void for lack of subject-matter
jurisdiction because the trial court properly exercised
jurisdiction at that time because the child’s home state
declined to exercise its jurisdiction. However, since the
child has resided outside of Kentucky for more than six
months, we find that Kentucky no longer has continuing
jurisdiction over the motion to modify custody. |
2001-CA-002175.pdf
Size: 32 kb
Date: 5/28/2003
|
Trent
v. Com.
Criminal
Defendant's conviction for Murder and Tampering with
Physical Evidence affirmed. Marital privilege under
KRE 504 not applicable; hearsay argument not preserved for
appeal; admission of domestic violence allegations not
preserved for appeal; Defendant not entitled to directed
verdict.
|
2001-CA-002180.pdf
Size: 20 kb
Date: 5/28/2003
|
Love
v. Blair
Civil Procedure, Directed Verdict
CA reversed trial court's DV dismissing MVA claim
against defendants. Although the evidence may be
uncontroverted that one driver failed to yield the right of
way, that does not mean there is no issue of the comparative
negligence of the driver with the right of way.
Here's a brief summary of the
standard as summarized by the CA "The appropriate test
for the trial court to apply when ruling upon a motion for
directed verdict is: the trial court must "draw all
fair and rational inferences from the evidence in favor of
the party opposing the motion, and a verdict should not be
directed unless the evidence is insufficient to sustain the
verdict. The evidence of such party's witnesses must be
accepted as true." Spivey v. Sheeler, Ky., 514 S.W.2d
667, 673 (1974). "
|
2001-CA-002417.pdf
Size: 24 kb
Date: 5/28/2003
|
Dakota
Enterprises, Inc. v. Carter
Default Judgment, Setting Aside
Nonresident corporation was properly served when the
Secretary of State forwarded a properly-addressed summons by
certified mail, return receipt requested, even though the
unopened envelope was returned to it as
"unclaimed." Also no excusable neglect just
because agent for service of process is away for months at a
time. Default judgment was not set aside on appeal. |
2001-CA-002521.pdf
Size: 44 kb
Date: 5/28/2003
|
Chapman
v. Chapman
Family Law, Division of Property
Pension and retirement should have been valued at time
of decree and not time of separation. See Stallings v.
Stallings, Ky., 606 S.W.2d 163 (1980).
|
2001-CA-002740.pdf
Size: 41 kb
Date: 5/28/2003
|
Holland
v. Com.
Criminal
Defendant's convictions for Cultivation of Marijuana
> 5 plants, Possession of Controlled Substance - 2nd
Degree, and Possession of Marijuana affirmed.
Defendant not entitled to directed verdict nor missing
evidence instruction.
|
2001-CA-002772.pdf
Size: 24 kb
Date: 5/28/2003
|
Bannister
v. Com.
Criminal
Defendant's conviction for Cultivation of Marijuana >
5 plants - 2nd Offense affirmed. Defendant not
entitled to withdraw plea; Defendant not entitled to
enforcement of Commonwealth's original plea offer.
|
2001-CA-002777.pdf
Size: 20 kb
Date: 5/28/2003
|
Graham
v. Com.
Criminal
Defendant's conviction for Failing to Register as Sex
Offender affirmed. 11.42 motion, not motion to
suppress, was proper procedure to attack underlying
conviction. Further, trial court's failure to advise
of registration requirement during underlying plea hearing
does not constitute Boykin violation.
|
2002-CA-000085.pdf
Size: 23 kb
Date: 5/28/2003
|
New
Ridge Mining Co. v. Smith
Parol Evidence Rule
"The construction and
interpretation of a contract,including questions regarding
ambiguity, are questions of law to be decided by the court.
First Commonwealth Bank of Prestonsburg v. West, Ky. App.,
55 S.W.3d 829 (2000)."
"The construction and interpretation
of a contract, including questions regarding ambiguity, are
questions of law to be decided by the court. First
Commonwealth Bank of Prestonsburg v. West, Ky. App., 55
S.W.3d 829 (2000). Therefore, this court’s standard
of review is de novo. Id.at 835-36. Under the parol evidence
rule, when parties put their agreement in writing, all prior
negotiations and oral agreements are merged in the
instrument, and a contract as written cannot be modified or
changed by parol evidence, except in certain circumstances
such as fraud or mistake. Childers and Venters, Inc. v.
Sowards, Ky., 460 S.W.2d 343, 345 (1970)."
|
2002-CA-000145.pdf
Size: 20 kb
Date: 5/28/2003
|
Pryor
v. Com.
Criminal
CA reversed Defendant's conviction for Possession of
Cocaine and being PFO 1st. Commonwealth improperly
utilized peremptory strikes to remove all African-American
males from the jury. While Batson procedures
were followed, trial court improperly accepted
Commonwealth's clearly pretextual justifications for
removing jurors. Trial Court did properly deny motions
for mistrial and directed verdict.
|
2002-CA-000166.pdf
Size: 34 kb
Date: 5/28/2003
|
George
v. Com.
Criminal
Defendant's conviction for Trafficking in Cocaine
affirmed. Defendant not entitled to sua sponte
limiting instruction nor directed verdict of acquittal. |
2002-CA-000251.pdf
Size: 24 kb
Date: 5/28/2003
|
Com.
v. Sanchez
Criminal
CA affirmed Trial Court's suppression order of
Defendant's statements in violation of Miranda.
Commonwealth failed to meet burden that Spanish-speaking
Defendant was properly informed of his rights.
|
2002-CA-000277.pdf
Size: 27 kb
Date: 5/28/2003
|
Butler
v. Neace
Juror Misconduct, No-Fault Threshhold
Jury never got to pain and suffering issue since found
plaintiff had not met one of the threshholds under Kentucky
Motor Vehicle Reparations Act. Also affirmed trial
court's ruling on alleged juror misconduct. Affidavits
were filed after trial showing the foreperson had made a
comment regarding her daughter's claim and insurance but did
not answer appropriately about this point during voir dire.
"To obtain a new trial because of
juror mendacity, "a party must first demonstrate
that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response
would have provided a valid basis for a challenge for
cause.@ Adkins v. Commonwealth, Ky., 96 S.W.3d 779, (2003),
citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)." |
2002-CA-000310.pdf
Size: 21 kb
Date: 5/28/2003
|
Palmer
v. Com.
Criminal
Defendant's convictions for Burglary 2nd and PFO 2nd
affirmed. Defendant voluntarily waived rights
before giving incriminating statement despite his assertion
that he was "stoned".
|
2002-CA-000317.pdf
Size: 24 kb
Date: 5/28/2003
|
McKinney
v. Com.
Criminal
Inmate's Petition for Declaration of Rights concerning
credit for time served properly denied.
|
2002-CA-000406.pdf
Size: 25 kb
Date: 5/28/2003
|
Price
v. Com.
Criminal
Defendant's convictions for Receiving Stolen Property,
First Degree Fleeing, and First Degree Wanton Endangerment
affirmed. Prosecutor's improper remark did not warrant reversal.
Defendant not entitled to directed verdict nor instruction
on lesser charge.
|
2002-CA-000475.pdf
Size: 21 kb
Date: 5/28/2003
|
Allstate
Ins. Co. v. Powell
Workers Compensation, Exclusive Remedy and Uninsured Motorist Benefits
Allstate's insured brought a UM (uninsured motorist
claim) after receiving nearly $22,000 in workers
compensation medical benefits. Jury returned verdict
of $25,149.70 for past and future medicals. Judge
originally bought Allstate's argument that they were
entitled to a set off, such that plaintiff received zero
from the UM carrier. "Thereupon, Powell filed an
"Objection to Tendered Judgment of Allstate Insurance
Company." By order dated January 9, 2002, the circuit
court amended its January 17, 2001, judgment. Relying on
Philadelphia Indemnity Insurance Company v. Morris, Ky., 900
S.W.2d 621 (1999), the court held that "the plaintiff
is entitled to recover the full amount of damages awarded by
the jury, $25,149.70, without any setoff or reduction for
workers’ compensation benefits paid to her or on behalf of
Bobbie D. Powell." On appeal, Allstate relied
on a provision in their policy which provided for a
set off of UM for workers compensation. The CA looked
at the contract issue first (and never did get around to the
Philadelphia case) and ruled against Allstate which had omitted
a copy of the policy from it's brief. The
court's language herein is instructive:
"As the Allstate insurance policy is
not in the record, we think it clearly improper for Powell
[the appellee] to include it in the appendix of his brief. See
Croley v. Alsip, Ky., 602 S.W.2d 418 (1980). Moreover, we observe that
the insurance policy in the appendix of the brief is missing
pages. It is well-established that the burden is on the
appellant to ensure that this court is supplied with a
sufficient record to decide the appeal. See Fanelli v.
Commonwealth, Ky., 423 S.W.2d 255 (1968), reversed on other
grounds, 455 S.W.2d 126 (1969). We are to assume that that
portion of the record not before us supports the decision of
the circuit court. See Colonial Life & Accident
Insurance Co. v. Weartz, Ky. App., 636 S.W.2d 891 (1982). As
such, we must assume that the Allstate insurance policy did
not contain a pertinent setoff provision. Without such a
setoff provision, we are compelled to conclude that
Allstate is not entitled to set off workers’ compensation
benefits against UM benefits owing under its policy."
Comment. There has to be more
to this
case than what meets the appellate eye since the
policy/coverage issue was apparently litigated post-trial
with the judge originally ruling in favor of Allstate and
then changing his mind after being shown the 1999 appellate
decision on UM/Workers Compensation in a similar case.
Anyone who has seen an insurance policy knows you don't need
the whole policy to address a coverage question which is why
the appellee had extracts available. If the CA looks
far and wide for the assignment of error, then why not look
near and close when the policy extract is appellee's
exhibit. Again, a hypertechnical approach was taken by this
CA noting no checkmark in the record indicating the ins.
policy was ever made a trial exhibit. But would a
post-verdict coverage issue ever have a 'trial
exhibit'? Wouldn't it be an 'appellate exhibit'?
Don't know, but we do know the CA exercised it's judicial
discretion of "show me the beef" and said no
exhibit, no issue. Ouch.
The CA added in a footnote that "This
opinion should not be misconstrued as passing upon whether
Allstate Insurance Company possesses subrogation rights.
Wine v. Globe American Casualty Co., Ky., 917 S.W.2d 558
(1996)" The implication being that Allstate has
subrogation rights, but subrogation rights against
whom? The plaintiff/appellant has essentially received
a double recovery for medicals from W.Comp. and UM
carrier. Both have satisfied a contractual obligation
to the Plaintiff/appellant. It can't be worth much if
pursued against the UM driver (who presumably would only pay
once even if he/she was financially viable.)
Therefore, which party has precedence for payment via
subrogation - UM or WC? If there had been no UM case,
then presumably this would have followed the typical pattern
of the plaintiff asserting a BI claim against the Defendant
with W.Comp. intervening for a subrogation claim (or it
being presented on behalf of the W.Comp carrier). No
double recovery. This ruling puts the plaintiff in a
better position if hit by a UM driver while leaving the UM
carrier the opportunity to close the door with a setoff
provision (which would be contrary to the UIM case of
Philadelphia Indem.)
What I 'think' is happening here is an
application of KRS 342.700(1) regarding W.Comp. subrogation
- which provides in part that: "If
the injured employee elects to proceed at law by civil
action against the other person to recover damages, he shall
give due and timely notice to the employer and the special
fund of the filing of the action. If compensation is awarded
under this chapter, the employer, his insurance carrier, the
special fund, and the uninsured employer's fund, or any of
them, having paid the compensation or having become liable
therefor, may recover in his or its own name or that of the
injured employee from the other person in whom legal
liability for damages exists, not to exceed the indemnity
paid and payable to the injured employee, less the
employee's legal fees and expense. The notice of civil
action shall conform in all respects to the requirements of
KRS 411.188(2)." The result being that the
tortfeasor or the UM/UIM carrier is ultimately responsible
for the damages in W.Comp. subrogation matters so if the
worker collects W.Comp. meds AND there is no intervention,
then he/she recovers the meds and the issue of subrogation
with the W.Comp. carrier is between the injured worker and
the W.Comp. carrier such that if the W.Comp. carrier
foregoes its subrogation right, then the injured employee
gets a windfall at the Comp carrier's largesse. Howeve,
note that the Philadelphia UIM case involved a worker
recover against his employer's comp carrier and his
employer's UIM carrier. This was not exactly the case
here involving Allstate. A distinction that should
make a difference. However, this is all 'tea
leaves'.
The CA should be careful themselves since
they had the wrong cite for Philadelphia Indem. Ins. Co. v.
Morris which should be 990 S.W.2d 621 (not 900). I wondered why the
CA picked the contractual issue when they could have easily addressed the Philadelphia case which actually applied to
UIM (underinsured motorist benefits rather than UM).
Morris was a case of first impression, holding the exclusive remedy provision of the Workers' Compensation Act would not preclude worker from recovering UIM benefits in addition to workers' compensation, and
the provision in employer's UIM endorsement requiring that workers' compensation benefits be set off against policy limits was unenforceable as against public policy.
All of the cases that treat UM/UIM coextensively will not be
cited here. Why the CA went on the attack rather than
the easy way out with a SC decision is beyond me unless
there is a negative implication that a setoff provision in
the UM policy would be enforced when it would not be
enforced in a UIM policy. Not hardly. Again, the
UIM case indicated that the policy provision for setoff of
WC benefits would be unenforceable as a matter of public
policy. |
2002-CA-000570.pdf
Size: 25 kb
Date: 5/28/2003
|
Rogers
v. Lawson
Land Contract, Damages, Attorneys Fees
CA found no breach of land contract and punitives and
attorneys fees not warranted . Affirmed trial court.
"As noted in CSXTransportation, Inc., v. First National
Bank of Grayson, Ky. App., 14 S.W.3d 563 (1999), "[a]s
a general rule, in the absence of contractual or statutory
liability, attorney's fees are not recoverable as an item of
damages." Id. at 569" |
2002-CA-000577.pdf
Size: 24 kb
Date: 5/28/2003
|
Hanen
Electric Inc. v. City of Louisville
Procurement Law, Municipalities |
2002-CA-000815.pdf
Size: 35 kb
Date: 5/28/2003
|
Hall
v. Com.
Criminal
Defendant's convictions for Criminal Attempt to Commit
Murder and Possession of a Handgun by Minor affirmed.
Trial Court did not err in refusing to strike jurors for
cause. Evidence was sufficient for conviction despite
failure of Commonwealth to have two witnesses make in-court
identification of Defendant. When there are multiple
counts in the indictment, the proper procedure for
challenging the sufficiency of evidence on one particular
count is to object to the giving of an instruction on that
count. Testimony of nurse was admissible under
prior consistent statement exception to hearsay rule.
Judge's instructions cured any improper comments by the
prosecution.
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2002-CA-001014.pdf
Size: 25 kb
Date: 5/28/2003
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Voltz
v. Com.
Criminal
CA affirmed Jefferson Circuit Judge Ann Shake's order
revoking Defendant's probation. Statements obtained without
benefit of Miranda warning are admissible in
revocation hearings. Due process does not require
hearing on propriety of merging two charges prior to
revocation hearing.
|
2002-CA-001033.pdf
Size: 33 kb
Date: 5/28/2003
|
Carnett
v. Wright
Real Estate, Commissioner's Sale, Objections
|
2002-CA-001037.pdf
Size: 53 kb
Date: 5/28/2003
|
Froman
v. O'Dea
Inmate's Civil Rights Action for Confiscating His Property
This comes under the umbrella of get a grip and who
cares. |
2002-CA-001047.pdf
Size: 20 kb
Date: 5/28/2003
|
Mayes
v. Com.
Criminal
CA affirmed Trial Court's denial of Defendant's CR 60.02
motion. An appellant is barred from raising in CR
60.02 issues that "were or could have been
litigated" in a direct appeal 11.42 motion.
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2002-CA-001100.pdf
Size: 24 kb
Date: 5/28/2003
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Chapman
v. Lourdes Hospital, Inc.
Negligent Hiring
Affirmed SJ dismissing assault claims against
hospital. "An employer can
be held liable when its failure to exercise ordinary care in
hiring or retaining an employee creates a foreseeable risk
of harm to a third person."3 Liability for negligent
retention of an employee is predicated on the negligence of
an employer in placing [or retaining] a person with known
propensities, or propensities which should have been
discovered by reasonable investigation, in an employment
position in which, because of the circumstances of the
employment, it should have been foreseeable that the hired
individual posed a threat of injury to others.4"
3 Oakley v. Flor-Shin, Inc.,
Ky. App., 964 S.W.2d 438, 442 (1998). 4 Mandy v.
Minnesota Mining and Manufacturing, 940 F. Supp. 1463,
1470 (1996). See also Restatement (Second) Agency § 213
(1958); Restatement (Second) Torts §§ 315, 317 comment c.
(1965). |
2002-CA-001126.pdf
Size: 28 kb
Date: 5/28/2003
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Lewis
v. Com.
Criminal
CA vacated inmate's conviction for 3rd Degree Assault as
he was denied his constitutional right to counsel.
Trial Court erred in refusing to allow Defendant to make
limited waiver of counsel and act as co-counsel with
appointed counsel.
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2002-CA-001175.pdf
Size: 22 kb
Date: 5/28/2003
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Buis
v. Elliott
Appeals, Briefs and Exhibits, Preservation of Record
Dismissed appeal and affirmed trial court's dismissal of
claim based upon res judicata. At issue was whether or
not cross-claim that was raised in the first trial in motion
to set aside default judgment and assert cross-claim was the
same crossclaim raised in the second lawsuit.
The Court stated "After a thorough
review of the record, we were unable to locate the
cross-claim filed in Civil Action No. 98-CI-00107 or a copy
thereof. As appellant’s contentions of error center upon
whether the instant action is barred by the doctrine of res
judicata, we think an examination of the cross-claim is
essential to our review of this appeal. We observe that the
burden is on appellant to provide this Court with an
adequate record to review the decision of the circuit court.
See Fanelli v. Commonweath, Ky. 423 S.W.2d 255 (1968), rev’d
on other grounds, 455 S.W.2d 126 (1969). In the absence
hereof, the circuit court’s judgment is presumed to be
proper. See Liberty Life Insurance Co. v. Strauss, 234 Ky.
608, 28 S.W.2d 955 (1930). Accordingly, we are compelled to
summarily affirm. "
Comment:
This is the second CA case this
date (different panel) that dropped a dime on
appellant's counsel for failure to preserve the record and
attach exhibits. See, 2002-CA-000475.pdf
where Allstate's Insurance Counsel in an uninsured motorist
claim failed to attach a copy of the policy to the appeal
which putatively claimed entitlement to a setoff for workers
compensation benefits.
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2002-CA-001178.pdf
Size: 23 kb
Date: 5/28/2003
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Minerals
Management Group, Inc. v. Chandler
Abandonment of Mineral Leases
Affirmed and reversed in part lower court's decision on
abandonment of natural gas leases. "Abandonment
is the intentional and actual relinquishment of the leased
premises. Hiroc Program, Inc. v. Robertson, Ky. App., 40
S.W.3d 373 (2000). The intention to abandon must be shown by
clear, unequivocal and decisive evidence in order for an
abandonment to be established. Cameron v. Lebow, Ky., 366
S.W.2d 164, 165 (1962). The burden of proof is on the one
relying on the abandonment. Browning v. Cavanaugh, Ky., 300
S.W.2d 580 (1957). To constitute abandonment by a lessee,
there must be shown both an intention to abandon and actual
relinquishment of the leased premises. Fuqua v. Chester Oil
Co., Ky., 246 S.W.2d 1007, 1008 (1952). Mere lapse of
time and nonuse are not, alone, enough to constitute
abandonment of oil and gas leasehold interests. Pro Gas,
Inc. v. Har-Ken Oil Co., Ky., 883 S.W.2d 485, 488 (1994).
The standard of review of a judgment entered upon a jury
verdict is limited to determining whether the trial court
erred in failing to grant a directed verdict. Lewis v.
Bledsoe Surface Mining Co., Ky., 798 S.W.2d 459 (1990). We
have reviewed the evidence in this case and we conclude that
the trial court did not err in submitting the case to the
jury. " Jury instructions were in
error since abandonment must be accompanied by an intent to
give up permanently one's claim to the property; instruction
saying "for a substantial period of time" in
error. |
2002-CA-001224.pdf
Size: 36 kb
Date: 5/28/2003
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Sizemore
v. Com.
Criminal
CA affirmed Defendant's convictions for Trafficking in
Marijuana > 5 pounds and Cultivation of Marijuana > 5
plants. Trial Commissioner erred in issuing a search
warrant lacking in probable cause but application and
reliance on warrant was not
in bad faith.
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2002-CA-001245.pdf
Size: 22 kb
Date: 5/28/2003
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Dr.
Smith v. Ashland Hosp. Corp.
Administrative Law, Issue of Staff Privileges at Hospital
Not particularly useful case which focused on a
particular hospital's charter. |
2002-CA-001256.pdf
Size: 27 kb
Date: 5/28/2003
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Fayne
v. Com.
Criminal
Defendant's conviction for Cultivation of Marijuana >
5 plants affirmed. Despite initial illegal entry by
police, the Trial Court properly found independent
source provided legitimate basis of information in support
of affidavit used to secure search warrant.
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2002-CA-001299.pdf
Size: 25 kb
Date: 5/28/2003
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Westwood
and Westwood East Homeowners Assoc. v. Giles
Restrictive Covenants
Association sued homeowner over canopy on
property. Held that the trial court erred in failing
to conclude that the erection of the canopy constituted a
violation of the Westwood Subdivision =s restrictive
covenants.
"The rules governing the construction
of restrictive covenants generally are the same as
those applicable to contracts. See Parrish v. Newburg, Ky.,
279 S.W.2d 229 (1955). Interpretation or construction of a
restrictive covenant is a question of law subject to de
novo review since only questions of law as distinguished
from matters of fact are involved."
"In general, restrictions on the use
of realty should be strictly construed with all doubts to be
resolved in favor of free use of the property. Vittitow v.
Dodson, 302 Ky. 418, 194 S.W.2d 996 (1946). However, as the
Association correctly observes, this rule of strict
construction does not apply where the meaning of the
restriction is clear and unambiguous. See Ashland-Boyd Co.
City-County Health Dept. V. Riggs, Ky., 252 S.W.2d 922
(1952). A restrictive covenant should not be construed to
defeat the plain and obvious purpose of the contractual
instrument or obvious intention of the parties. Id.; 20 Am.
Jur.2d Covenants, Conditions, and Restrictions '172 (1995).
The fundamental rule in construing restrictive covenants is
that the intention of the parties governs. All of the
covenants in the documents containing the restrictions
should be considered -- along with the general scheme or
plan of development and surrounding circumstances. Glenmore
Distilleries Co. v. Fiorella, 273 Ky. 549, 117 S.W.2d 173
(1938)."
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2002-CA-001452.pdf
Size: 20 kb
Date: 5/28/2003
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Seadler
v. Com.
Criminal
CA affirmed Jefferson Circuit Judge Geoffrey Morris'
denial of Defendant's motion for credit
for time served prior to sentencing pursuant to KRS
§ 532.120(3). Relief was time-barred as Defendant
failed to bring motion within one year.
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2002-CA-001491.pdf
Size: 21 kb
Date: 5/28/2003
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City
of Cadiz v. Holland
Quiet Title, Easement
Boundary dispute applied railroad case, to wit:
"Where, by instrument or deed, land is purportedly
conveyed to a railroad company for the laying of a rail
line, the presence of language referring in some manner to a
"right of way" operates to convey a mere easement
notwithstanding additional language evidencing the
conveyance of a fee." |
2002-CA-001544.pdf
Size: 18 kb
Date: 5/28/2003
|
Damron
v. Damron
Child Custody, Residence
|
2002-CA-001564.pdf
Size: 29 kb
Date: 5/28/2003
|
Com.
v. Swartz
Criminal
Trial Court's order suppressing evidence pursuant to 4th
Amendment violation vacated. Using totality of
circumstances approach, police had reasonable suspicion to
detain Defendant until drug
sniffing dog was brought in to detect presence of
drugs. Surprisingly,
the CA admits this was a close call and characterizes the
"parameters of such reasoning" as
"sobering" but nonetheless vacated the Trial
Court's decision.
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2002-CA-001911.pdf
Size: 25 kb
Date: 5/28/2003
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Powers
v. Com.
Criminal
CA affirmed Trial Court's denial of Defendant's 11.42
motion alleging ineffective assistance of counsel.
|
2002-CA-002192.pdf
Size: 33 kb
Date: 5/28/2003
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Compass
USEAC v. Kennedy
Workers Compensation
- Deposition Objections
Kennedy
was awarded benefits based on a 5% permanent partial
disability rating with enhancement for a lack of physical
capacity to return to the work she was doing at the time
of her 1997 fall as a result of injury to her low back at
that time. In deposition, counsel for the employer sought
to question Kennedy’s treating physician about her prior
treatment for similar symptoms by another physician to
which Kennedy’s counsel objected on the grounds that the
records of the other physician’s treatment had not been
timely produced by counsel for the employer.
In testimony following the objection, the physician
acknowledged that the prior treating physician would be in
the “truest” position to determine whether there had
been an alteration in symptoms. In
the Opinion and Award, ALJ Kittinger sustained the
objection and indicated she would not consider that
portion of the testimony in rendering her decision.
The employer appealed and argued a lack of
substantial probative evidence to support the ALJ's award. The
Board observed workers’ compensation claims are
decided upon a trial by deposition.
As such, CR 43.04 requires that “no objection to
the competency, relevancy or materiality of testimony
shall be regarded, unless made at the taking of the
deposition or subsequently made in writing, specifying the
grounds of the objection and served and filed prior to the
submission of the case.”
The
employee’s counsel complied with this requirement, but it
was incumbent upon the ALJ to rule on the objection prior
to taking the claim under submission if it were to be
sustained enabling the party presenting the evidence may
seek to correct its submission.
In this instance, where the employer did not give
indication that it had complied with the regulation
requiring production of copies o medical records to
opposing counsel within 10 days of receipt, the Board
stated that a proper remedy would have been to allow the
employer to cross-examination the physician at its expense
at a subsequent time and place.
However, whereas the Board found the ALJ’s
opinion indicated she had in fact taken the physician’s
testimony into account when rendering her opinion and that
the medical proof did support the award entered, the Board
affirmed the ALJ’s decision and deemed sustaining the
objection to have been harmless error. The
Court of Appeals agreed that the ALJ should have made a
ruling on the objection and given the employer an
opportunity to correct its failure to comply with the
discovery rules and affirmed on the grounds that the Board
correctly held that the ALJ's decision was supported by
substantial evidence.
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2002-CA-002237.pdf
Size: 26 kb
Date: 5/28/2003
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Lopke Quarry
v. Clark
Workers Compensation
- Safety Violation Penalty
Clark
injured his right knee at work in April 2001 when a
split-rim tire exploded while he was trying to inflate
a truck tire and, following an MSHA investigation of the
event, the employer was cited for violations of 3
federal safety regulations. ALJ King held Clark was
entitled to imposition of the 30% statutory penalty based
on 2 of the 3 (failure to provide training in proper tire
inflation techniques and failure to use a standoff device)
charged violations despite the fact that the employer was
challenging the citations. The Court of Appeals
agreed wit the ALJ that "assuming an employee is
using a safety device is not sufficient to insulate [the
employer] from the enhanced liability of KRS 342.165 . . .
[the employer] has an obligation to take some steps to
ensure that safety devices are actually being used."
The record contained substantial evidence of the
existence of violations of specific safety
provisions. There was no suggestion of any
deliberate intent to purposely injure Clark, but that is
not the standard. The
nature of the intentional act and violation on the part of
the employer must be egregious. There must be some
degree of pre-existing knowledge on the party of the
employer, unless the circumstances of the danger are so
readily obvious as to lead to an inference of pre-existing
knowledge. Moreover, where the situation involves the
failure on the part of the employer to utilize a legally
required safety device, the more obvious the need for and
lack of use of the safety device, the less proof that is
necessary to prove intent. ... The obvious nature of
this situation, coupled with Clark’s own testimony,
provides for a reasonable inference on the part of
the ALJ that there was an intentional failure on the part
of [the employer].
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2002-CA-002238.pdf
Size: 29 kb
Date: 5/28/2003
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City
of Henderson Fire Department v. Stone
Workers Compensation INDEPENDENT
ALJ REVIEW OF AMA RATINGS
Stone injured his low
back at work in October 2001. He had complained of low
back problems prior to the date of injury and admitted
having low back problems from December 2000 to March 2001
but there was disagreement regarding the extent of those
problems. However, there was no "medical
evidence" of low back problems prior to the date of
injury. The employer sought a carve out for
pre-existing active disability based on a medical opinion
that, while Stone's post-injury AMA rating was 10% under the
DRE approach, he would have qualified for a 5% rating under
the DRE approach based on his low back problems prior
to the date of injury. ALJ King found that Stone did
not have "any serious lower back problems" prior
to the October 2001 event and rejected the physician's
opinion regarding the pre-injury AMA rating based on the
ALJ's analysis that the AMA Guides do not permit the use of
the DRE method in the absence of a specific injury (which
Henderson did not have prior to October 2001) but instead
would have required rating under the ROM method for any
pre-injury rating. The employer's challenge to the
ALJ's independent analysis of the AMA Guides was
rejected on appeal. ALJs
are generally prohibited from making an independent
review and determination of whether a physician’s
calculation of impairment is valid based on the
AMA Guides and cannot independently calculate an impairment
rating or recalculate the rating of a particular physician
in order to arrive at a new disability rating.
However, ALJs may conduct their own review of the AMA
Guides to determine if a physician's assessment of
a disability rating corresponds with the accepted
methods of determining a worker’s impairment rating
under the AMA Guides in order to ensure that the physician
used the correct method to assess the rating when
determining the weight and credibility to be accorded to the
physician’s testimony. |
2002-CA-002512.pdf
Size: 27 kb
Date: 5/28/2003
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Big
First Coal Co. v. Quinn
Workers Compensation - Sufficiency of Evidence
O'Quinn injured his
back in 1988 working for Big Fist which led to an award
of benefits based on a 60% PPD in April 1989, then
had exacerbations on return to work with Eastern Coal in
1991 and 1992 and was on TTD when that mine closed and he
was laid off in 1993. Reopening the 1988 claim and
joining it with proceedings on the 1991 and 1992 claims, a
1994 decision held that the latter injuries had not produced
any permanent injury and O'Quinn received no increase in the
60% PPD rate awarded for the 1988 injury. O'Quinn
never returned to any extended employment after 1992 and
last worked in 1996. He had an acute exacerbation of
his low back pain in 1998 while planting flowers at home and
was diagnosed with a large herniated disc. O'Quinn
reopened the 1988 claim on January 24, 2001 seeking an
increase in benefits. ALJ Coleman held O'Quinn to be
PTD. The Board and Court of Appeals held that
there was substantial evidence of records to support the
ALJ's award and affirmed.
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2003-CA-000017.pdf
Size: 27 kb
Date: 5/28/2003
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North
American Refractories, Inc. v. Stone
Workers Compensation - Sufficiency of Evidence - 3.0
Multiplier
Stone
sustained an October 2000 low back injury while lifting
100 pounds at work. Stone returned to work in the
same job classification and at the same or greater pay but
with a 40 pound lifting restriction and testimony of
difficulty doing her job and of receiving assistance from
co-workers. She denied having had any prior low back
injuries until confronted with evidence to the contrary,
after which she claimed to have recovered after each prior
injury identified. The ALJ (not identified in the
opinion)awarded PPD benefits, including the 3.0
multiplier. Ultimately, the
ALJ was faced with a simple disagreement in the evidence
between physicians and while there was evidence to support
the position of North American, there is also evidence to
support the position of Stone. In those circumstances,
whether we would agree or disagree
with the ALJ, is irrelevant. The
inconsistencies in Stone's testimony went only to its
weight an credibility. Finally, given the date of
Stone's injury, the 3.0 multiplier may be applied despite
her return to work at wages equal to or greater than her
pre-injury wages.
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2003-CA-000040.pdf
Size: 34 kb
Date: 5/28/2003
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Golubic
v. Allied Systems
Workers Compensation - Sufficiency of Evidence - MMI
ALJ Edens
awarded PPD based on a 13% AMA rating, rather than a 25%
AMA rating. The ALJ's award of PPD benefits was
affirmed given the "widely divergent
and conflicting impairment ratings" assessed
by 3 physicians where the rating selected by the ALJ was
not "so lacking in probative value as to be
untrustworthy as a matter of law." The ALJ
awarded TTD benefits through November 21, 2001, the
date of Dr. Gleis' IME. However, Dr. Gleis' IME was
actually on November 21, 2000. The Court of Appeals
affirmed the Board's finding that record lacked
substantial evidence that would support a finding of
MMI later than March 23, 2000 and held that TTD
benefits must terminate on that date.
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2003-CA-000152.pdf
Size: 25 kb
Date: 5/28/2003
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Parsons
v. Cumberland Gap Provisions
Workers Compensation - Statute of Limitations in Repetitive
Trauma Cases
Parsons
performed high volume work lifting and manipulating hams
and using knives from 1979 onward. She was aware
that she had work related carpal tunnel syndrome in May
1996, reported it to her employer at that time, and
the employer filed a first report of injury at that time.
Medical records demonstrated that, while Parsons was
formally treated in April 1998, it was only after
EMG studies were performed in September 1999 that she
was first formally told by a physician that her carpal
tunnel syndrome was a repetitive motion injury caused by
her work. Parsons filed a claim in April 2001 for
carpal tunnel syndrome and other injuries. ALJ Kerr
found a 14% impairment based on carpal tunnel syndrome but
held that the statute of limitations barred an award of
benefits to the extent of disability that occurred prior
to April 1999, and was affirmed by the Board. The
Court of Appeals reversed holding that, pursuant to Hill
v. Sextet Mining, workers are not required to
"self-diagnose" and do not have knowledge of a
work related injury sufficient to trigger the running of
the statute of limitations until they are informed by a
doctor that they have had a work-related injury that
was gradually causing permanent injury.
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2003-CA-000308.pdf
Size: 46 kb
Date: 5/28/2003
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Cole
v. Specialty Transportaton
Workers
Compensation - Statistical Purposes Evidence and TTD
Termination
Cole, a
truck driver, injured his right knee on July 11, 1999 and
returned to work 4 days later after medical treatment at
which time he reinjured the knee and had 3 surgeries, the
last on January 17, 2001. He alleged an injury to
his low back in March 2001 while in therapy for the knee
and was diagnosed as having a herniated disc in April,
2001. He renewed his CDL on March 28, 2001.
Cole's testimony regarding the manner in which this
occurred was equivocal, it was not noted in the treatment
records until the following week, and no other records supported
his contention. ALJ Steen awarded PPD benefits
for the knee without the 3.0 multiplier. The ALJ was was
not persuaded that the back injury was related to
treatment for the knee injury and did not award benefits
based on that condition. Cole took issue with the
ALJ's reliance on the medical examination report for his
CDL, introduced for "statistical purposes" under
803 KAR 25:010, Section 9, as being indicative of his
ability to continue working as a truck driver since it was signed
by a nurse and not a medical doctor and was not filed as
proof of a medical opinion. The ALJ's reliance on
Cole's own representations of his abilities in those
documents was held to be proper and any reliance on them
for purposes of medical opinion was harmless error given
the other evidence of record. Termination of TTD
benefits as of the date of the CDL renewal was also
affirmed given that Cole's own testimony coupled with
other evidence of record supported a finding that he was
able to return to his pre-injury work or work customary to
him at that time.
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