Vol. 2003/16         

• Join the LBA at Slugger Field for a CLE Ethics program followed by a Bats game (6/26). 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
      

•  KBA Proposed Advertising Regulations

  • Lawyers' group may limit television ads - CJ article from 6.11.2003
  • 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 - None
  

• Kentucky Court of Appeals - PUBLISHED - 
  June 6, 2003
  

  2001-CA-002163.pdf Size: 22 kb Date: 6/4/2003	Stinnet v. Com. Criminal, Sentencing  Defendant's sentences reversed by CA because the Trial Court failed to instruct the jury on whether to run the sentences concurrent or consecutive.  Defendant was convicted under lesser included misdemeanor offenses of Criminal Trespass, Criminal Mischief, and Theft.  The Trial Court ran the sentences consecutive for a total of 240 days to serve.  Although not preserved for appeal, the CA found the failure to request concurrent or consecutive sentencing from the jury constituted palpable error.
  2002-CA-000482.pdf Size: 46 kb Date: 6/4/2003	United Services Automobile Association v. Bult Insurance, Bad Faith This was the $1.2 million bad faith case plus attorneys fees verdict that Lee Sitlinger obtained in Jefferson County.  The CA did their quick summary of bad faith insurance law and then noted - "The evidentiary threshold is high indeed. Evidence must demonstrate that an insurer has engaged in outrageous conduct toward its insured. Furthermore, the conduct must be driven by evil motives or by an indifference to its insureds’ rights. Absent such evidence of egregious behavior, the tort claim predicated on bad faith may not proceed to a jury. Evidence of mere negligence or failure to pay a claim in timely fashion will not suffice to support a claim for bad faith. Inadvertence, sloppiness, or tardiness will not suffice; instead, the element of malice or flagrant malfeasance must be shown."   Although USAA did not look very good on the manner in which it handled a wrongful death claim involving two of it's own insured's to include liability on one car and UIM on the other, and the fact that USAA was a little slow in reaching and offering it's reserves, the CA concluded it was NOT bad faith.  Per the CA, "A review of the evidence presented by the Bults reveals a complete absence of the type of conduct required to meet this standard." This conclusion was reached even though the plaintiff had four expert witnesses say it was bad faith - Former Judge and State Farm Agent Michael McDonald, USAA insured, reserve admiral and trial lawyer Larry Franklin, and law school professor Martin Huelsman.  Comment:   There is no real law in this case.  Just an aggressive reading of the facts.  However, this decision seems at odds with another recent CA case (Globe - 2001-CA-001420.pdf) but with a different result albeit unpublished!  The other panel approached the facts from a different angle.   In the USAA case the CA went into a laborious analysis of the facts and proceeded to substitute their own fact finding for that of the jury and concluded the matter should not have even gone to the jury.  The Globe case did not substitute its judgment for that of the jury and reviewed the sufficiency of the evidence to support the verdict - "Without again reviewing the evidence presented at trial, we conclude there was sufficient evidence to support the jury’s verdict on each of the ten interrogatories decided in favor of the Bowmans on their bad faith claims."  Don't forget that in the USAA case, the liability defendant paid money beyond their policy limits and assigned the bad faith claim to the plaintiffs, not to mention that a judge in a damages trial concluded damages in excess of $2.3 million (which oughta been some clue that the policy limits should have been offered immediately and might have avoided the personal exposure of the defendants!) One panel exemplified judicial activism, the other allowed the jury system to work and limited involvement to curtail abuse (and finding none allowed the jury's verdict to stand).  I hope to see the Supremes look at this one.  I find it hard to believe that no CA was sufficiently offended by the same company on both sides of the case such that clear standards were not implemented to avoid abuses and potential abuses.  If 'chinese walls' are difficult to enforce in conflict situations involving lawyers, imagine the potential abuses when insurers driven by the profit motive and adjusters driven by job security and lack of legal ethical training are thrown into the mix.  In Gailor v. Alsabi, the SC declined to elevate an adjuster to the attorney's ethical standard.  Consequently, I would not expect an adjuster to be able to keep up the wall either.  If I were the SC, I would place the company under the strictest scrutiny on the handling of the claim such that if you are on both sides, then technical violations of the UCSPA are presumptively bad faith.  Outside or third party adjusters might be the solution (but not so in Globe).  Basic fact of organizational hierarchy is the 'pyramid.'  Consequently, there is some level somewhere up the feeding chain where a single adjuster supervises both sides.  Ouch.
  2002-CA-001303.pdf Size: 27 kb Date: 6/4/2003	Schultz v. Cooper Statute of Limitations, Professional Services, KRS 413.245 CA asked to decide whether Old Mason's Home of Kentucky, Inc. v. Mitchell, Ky. App., 892 S.W.2d 304 (1995), was dispositive.  Answer? Yes. "The discovery rule contained in KRS 413.245 is a clearly worded default rule governing the date upon which a period of limitations begins. The parties in this case made a deliberate election to replace that date with a date certain for the accrual of any action. Neither the courts nor the legislature have found such private deviations from the statute to be unconscionable or violative of public policy. On the contrary, the courts have specifically sanctioned the validity of such provisions as part and parcel of the freedom of parties to fashion their own agreements. Mitchell is the controlling authority, and we do not find any justification or compelling circumstances in this case to depart from its holding. For the foregoing reasons, we conclude that the trial court did not err in dismissing Schultz's complaint against Weber. Accordingly, the judgment of the Jefferson Circuit Court is affirmed."

   
• Kentucky Court of Appeals - NOT TO BE PUBLISHED -
  June 6, 2003
  

  2000-CA-001584.pdf Size: 17 kb Date: 6/4/2003	Vaughn v. Com. Criminal  CA affirmed Trial Court's judgment requiring Defendant to register as sex offender.  Sex Offender Registration Act may be applied to persons committing offenses prior to enactment of law.
  2001-CA-001320.pdf Size: 36 kb Date: 6/4/2003	Dye v. Western Kentucky University Employment, Civil Rights Discrimination
  2001-CA-002519.pdf Size: 36 kb Date: 6/4/2003	Wernigk v. Com. Criminal  CA affirmed Defendant's convictions for two (2) counts of Third Degree Rape.  Trial Court did not err in failing to conduct competency hearing; no error in excluding evidence of victim's criminal charges for sodomizing Defendant's son; no error in failing to suppress Defendant's confession; no error in admitting statements made by victim to his brother; and no error in admitting evidence of Defendant's prior bad acts.
  2001-CA-002568.pdf Size: 39 kb Date: 6/4/2003	Cardona v. Com. Criminal  CA affirmed Defendant's convictions for 2nd Degree Manslaughter, 2nd Degree Wanton Endangerment, and DUI.  Defendant was not entitled to directed verdict; Trial Court did not err by failing to instruct on statute concerning duties of pedestrian; and Trial Court did not err in denying Defendant's proposed instruction on "intervening causes".
  2001-CA-002640.pdf Size: 31 kb Date: 6/4/2003	Byrd v. Com. Criminal  CA affirmed Defendant's convictions for drug trafficking and drug possession.  CA acknowledged that prosecution elicited improper KRE 404(b) evidence and improper hearsay testimony by police officer at trial in violation of Trial Court's ruling on Motion in Limine, but nonetheless, found this to be harmless error in light of the overwhelming evidence of Defendant's guilt. CA went on to voice its displeasure on the way appellate counsel handled the issue as well.  Finally, Defendant not entitled to mistrial based upon prosecution's statements in closing argument.
  2002-CA-000173.pdf Size: 28 kb Date: 6/4/2003	Willis v. Com. Criminal  CA reversed Trial Court's denial of Defendant's 11.42 motion and request for hearing alleging ineffective assistance of counsel.  Trial Court erred when it failed to apply the reasonable probability standard and erred when it failed to find that the record on its face conclusively resolved Defendant's claims.
  2002-CA-000312.pdf Size: 58 kb Date: 6/4/2003	Wilbourn v. Shiben Medical Negligence, Expert Proof Required, Summary Judgment Medical negligence was based upon failure to diagnose brain tumor. Treating doctors ordered CT scan which was negative.  Treating doctors continued to see nothing wrong or thought it was psychiatric.  Turns out later that the plaintiff went to Vanderbilt and an MRI found the tumor.  Plaintiff sued the hospital, treating doctors, and radiologist.  Radiologist admitted misreading the film and settled.  Hospital was dismissed with no appeal.  Remaining ER doctors moved for SJ because plaintiff ailed to identify experts in answers to interrogatories. Medical depositions of various other treating physicians, to include the Vandy Dandies,  did not shore up the proof that two of the remaining named defendants deviated from the standard of care for their specialties.  In fact, the other doctors noted that the appropriate test, a CT was ordered, but it was misread by the radiologist.  Defendant doctors moved for SJ for failing to have medical proof that they deviated from std. of care.   Up to now nothing unusual, but the plot thickens.  Defendants were granted SJ BEFORE the plaintiffs pretrial deadline for listing expert witnesses.  Plaintiffs claimed premature ejection from the lawsuit, but the CA held that all that is required is that the plaintiff have the opportunity to complete discovery, not that it have completed discovery.   ouch.   SJ affirmed. Comment: As a trial practice tip, note that a litigant failed to obtain KRE 902 authentication of a medical record at trial and was not allowed later to correct the record and attach to the appeal.  Imagine the plaintiff's pickle - still had months to find an expert for trial in compliance with the pretrial order but shot out of the water by the current state of proof and failure to provide an expert in response to interrogatories.  So, which has precedent the pretrial order or the interrogatories?  Hmmm.  How often have we seen the answers to interrogatories for CR 26.02 experts say that decision has not been made yet but will comply with pretrial orders?  Lots.  This is not necessarily a savings answer per this case if there is some medical proof which by implication blocks your path. mike s.
  2002-CA-000397.pdf Size: 23 kb Date: 6/5/2003	Yahya v. Lexmark International, Inc. Civil Rights Act, Discrimination, Appeals  Once again the CA makes note of failure to follow the civil rules.  Basic case where the magic words "substantially limits a major life activity" were never used.  Can win if you don't follow the rules.  "As a threshold matter, neither of the briefs filed by appellant comport with Ky. R. Civ. P. 76.12(4)(c)(v), which requires "...at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Such a failure puts this Court in the position of necessarily reviewing the record in detail from beginning to end in order to determine whether such alleged error has been properly preserved.2 Regardless, we have determined to conduct an exhaustive review of the videotaped trial testimony as well as the written record on appeal."   Ouch. Fifth shot within a month by the CA on quality of appellate briefs.
  2002-CA-000855.pdf Size: 48 kb Date: 6/4/2003	City of Eddyville v. Kuttawa Equitable Estoppel Public Service Case applied  Grayson Rural Electric Corp. v. City of Vanceburg, Ky., 4 S.W.3d 526 (1999)(since Grayson chose not to compete for the existing non-municipal customers being served by EPB and its predecessor VUC, we find that Grayson has acquiesced in and is estopped from contesting Vanceburg’s EPB’s current service rights in the disputed area)  so that City of Kuttawa could provide natural gas to "Old Eddyville" and the State Penetentiary.
  2002-CA-000935.pdf Size: 30 kb Date: 6/4/2003	Hix v. Com. Criminal  CA affirmed Defendant's convictions for Receiving Stolen Propery > $300 and Carrying a Concealed Deadly Weapon.  Defendant not entitled to directed verdict as sufficient evidence was presented concerning value of property and location of weapon.  Trial Court did not abuse discretion in denying motion for continuance.
  2002-CA-000963.pdf Size: 31 kb Date: 6/4/2003	Trayner v. Trayner Family Law Wife appealed denial of permanent maintenance and award of only $1500 of $60,000 in attorneys fees.  Husband did not file brief.  Husband lost on appeal on maintenance but fees were affirmed.   Comment.  "As a preliminary point, we note that Lynn failed to file a brief. Procedurally, we would be justified in imposing sanctions against Lynn as provided in CR 1 76.12(8)(c), as follows: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case. Kentucky Rules of Civil Procedure.Since Brenda has not invoked the rule to seek a penalty, we shall avoid either extreme of summarily reversing the trial court or accepting in toto Brenda’s version of the facts. See,Scott v. Scott, Ky.App., 80 S.W.3d 447 (2002), and Whicker v. Whicker, Ky.App., 711 S.W.2d 857 (1986). Instead, we have reviewed the record in its entirety and have elected to address the issues on their merits."  Sounds like the attorney representing the wife failed to ask for the particular relief and the CA made their own decision.  mike s.
  2002-CA-001002.pdf Size: 20 kb Date: 6/4/2003	Mullins v. Board of Trustees Kentucky Retirement System Disability Retirement, Government Plaintiff fails to meet the burden of proof, appeals, and still misses the mark.
  2002-CA-001009.pdf Size: 19 kb Date: 6/4/2003	Skinner v. McMurry Family Court, Failure to Comply with Discovery CA did not find abuse of discretion in family court's dismissal of ex-wife's motion for increased child support for failure to comply with court order to answer ex-husband's discovery requests (denominated in opinion as 'requests for interrogatories').   Both parties’ income exceeded the child support guidelines, and the CA concluded that the parents' income and expenses were relevant to the determination of child support.  "Moreover, we are of the opinion that appellant’s continual refusal to answer the interrogatories formed a sufficient basis upon which to justify the circuit court’s dismissal of the current action. It is well established that dismissal of an action is an appropriate sanction where a party has failed to respond to interrogatories. Benjamin v.Near East Rug Co., Inc., Ky., 535 S.W.2d 848 (1976); Naive v. Jones, Ky., 353 S.W.2d 365 (1961).  We also note that appellant has suffered little prejudice by the dismissal as appellant may file another motion to increase child support." Comment:  However, the children may end losing the potential benefits of any increased child support in the event any subsequent motion is applied retroactively to the filing of the second motion rather than the first motion.
  2002-CA-001267.pdf Size: 18 kb Date: 6/4/2003	Utley v. First Citizens Bank of Hardin County Statute of Limitations, Slander of Title "The limitations period applicable to a claim under KRS 382.365 is five years. KRS 413.120. According to KRS 382.365, the cause of action accrues thirty days after demand for release is made. Such demand was made by counsel for the Utleys on January 27, 1995; the statute began o run on February 27, 1995. This complaint was filed outside the limitations period, and is therefore time-barred. The judgment of the Hardin Circuit Court is affirmed." mike s.
  2002-CA-001733.pdf Size: 18 kb Date: 6/4/2003	Thomas v. Com. Criminal  CA affirmed Defendant's conviction and 5 year sentence for 1st Degree Sexual Abuse.  Here, the Trial Court ruled Defendant's statement to police would be admissible for impeachment only if Defendant testified.  Defendant elected not to testify and the statement was never introduced as evidence.  CA ruled the issue was not properly preserved for appeal - i.e. Defendant had to take the stand.  CA reasoned that it would be required to speculate as to whether prejudicial error would have occurred had Defendant taken the stand.  Further, CA reasoned that allowing this argument on appeal would permit the Defendant to "plant" reversible error in the event of a conviction.
  2002-CA-002122.pdf Size: 23 kb Date: 6/4/2003	Easter Seals West Kentucky, Inc. v. Wright Workers Compensation Affirmed ALJ's finding of work-related knee injury.  "The ALJ considered the 20% functional impairment to the body as a whole, as well as the extensive medical restrictions on performing any job. The ALJ believed the claimant’s testimony and considered further limitations or other factors in arriving at a permanent total disability rating. Under Ira A. Watson Department Store v. Hamilton, Ky., 34 S.W.3d 48, 51-52 (2000), the fact finder can consider these other factors in converting the functional limitations to the body as a whole into vocational disability."  mike s.
  2002-CA-002233.pdf Size: 18 kb Date: 6/4/2003	Rivers v. Taylor Appeals Affirmed trial court's decision.  Appellant did not overcome presumption that trial court's decision was proper.  Reason - bad pro se brief.   "We observe that appellant has filed a pro se brief with this Court. The brief fails to comply with Kentucky Civil Rule of Procedure 76.12. It does not include a statement of the case, an argument, or a conclusion. Most importantly, appellant has failed to cite a single case or statute in support of the arguments advanced in the brief. Moreover, the arguments are curt and unclear. It is well established that “in order to secure a reversal of a judgment, it is incumbent upon the appellant to show error and to overcome the presumption that the trial court’s decision was correct.” Sloan v. Jewel Ridge Coal Corp.,ഊKy., 347 S.W.2d 504, 506 (1961). Here, appellant has failed to demonstrate any error or to overcome the presumption that the trial court’s decision was proper." Comment:  There must be something in the water;  either the briefs are getting worse, the judge's getting testy; or whatever.  But read between the lines and follow the rules and KISS (keep it simple stupid).  May be a good time for an appellate advocacy or writing class.
  2002-CA-002274.pdf Size: 34 kb Date: 6/4/2003	Mitchell v. F.G. Trucking Workers Compensation Affirmed ALJ's ruling that claimant not entitled to benefits for psychiatric impairment.  The conflicting evidence which was adduced below was not so overwhelming as to compel a different conclusion by the ALJ. mike s.

• Western District Court - Kentucky
  June 4 -12, 2003

  Calvert v. Firstar Finance

  Plan Administrator denied long-term disability benefits to Plaintiff. Plan Administrator not required to defer to the treating physician.

   
• Sixth Circuit Court of Appeals from Kentucky
  June 4 - 12, 2003

  03a0178p.06	02-5365	2003/06/05	USA v. Kolley     Western District of Kentucky at Louisville
  03a0179p.06	01-6584	2003/06/05	Intl Union UMWA v. Apogee Coal Co     Eastern District of Kentucky at London

  03a0184p.06	01-5985	2003/06/06	Banks v. Wolfe Cnty Bd Ed     Eastern District of Kentucky at Lexington
  03a0186p.06	00-5416	2003/06/09	USA v. O'Malley     Eastern District of Kentucky at Lexington
  03a0188p.06	01-1337	2003/06/09	Fluor Daniel, Inc. v. NLRB     State of Kentucky Agency
  03a0188p.06	01-1448	2003/06/09	Fluor Daniel, Inc. v. NLRB     State of Kentucky Agency

This week is a little boring.  Goes back to basics on "how to read da policy."  Better name is insurance 101.   Consider it a refresher.  Hope you enjoyed the KBA.

Insurance, Strict Construction of Contract / Policy

• Wolford v. Wolford, Ky., 662 S.W.2d 835 (1984)
  Since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.
• Kemper Nat. Ins. Companies v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869 (Ky.,2002)
  Policy whould be constructed as a whole.  Where the terms of an insurance policy are clear and unambiguous, the policy will be enforced as written.  Strict construction of policy exclusions should not overcome plain, clear language resulting in a strained or forced construction.
• Meyers v. Kentucky Medical Ins. Co., 982 S.W.2d 203 (Ky.App.,1997)
  The rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties' object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a non-existent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

Insurance, Contract Construction, Exclusions

• Koch v. Ocean Accident & Guaranty Corp., 230 S.W.2d 893 (1950) 
  Exclusions in insurance policy are to be narrowly interpreted and all questions resolved in favor of the insured.
• State Automobile Mutual Ins. Co. v. Trautwein, Ky., 414 S.W.2d 587 (1967)
  Exceptions and exclusions are to be strictly construed so as to render the insurance effective. 
• St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223 (Ky.,1994) 
  Any limitation on coverage or an exclusion in a policy must be clearly stated in order to apprise the insured of such limitations. Stated otherwise, not only is the exclusion to be carefully expressed, but, as in this case, the operative terms clearly defined.   Where exclusion of insurance policy is susceptible to two reasonable interpretations, interpretation favorable to insured is adopted.
  

Insurance, Contract Construction, Ambiguity

• Aetna Life & Cas. Co. (Aetna Cas. & Sur. Co.) v. Layne 
  554 S.W.2d 407 (Ky.App. 1977)
  The rule that an ambiguity in an insurance policy is to be resolved against the insurer has no application to a term so clearly defined in the policy as to exclude coverage under the circumstances involved in the case.  Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured.

Insurance, Contract Construction, Rules  of Construction

• Sutton v. Shelter Mut. Ins. Co., 971 S.W.2d 807 (Ky.App.,1997)
  Look at the terms in the policy. However, a definition under one coverage under a policy does not automatically apply to the same term under a different coverage in different underwriting considerations apply. However, the personal automobile policy encompasses, among other things, bodily injury, basic liability, collision, and uninsured motorist coverage. A separate premium is charged for each type of coverage. It is logical that terms may have different definitions depending upon the policy provision involved.
• Perry's Adm'x v. Inter-Southern Life Ins. Co., 71 S.W.2d 431 (Ky.App. 1934)
  Construction of word "automobile" in accident policy was for court, not jury, in action thereon; not being dependent on disputed facts.
• Simon v. Continental Insurance Co., Ky., 724 S.W.2d 210, 212 (1986).
  Contracts of insurance which are ambiguous (i.e., susceptible of more than one reasonable meaning) are subject to the application of the doctrine of reasonable expectations and must be interpreted so as to provide the insured entity with all coverage that it may reasonably expect under the policy. "
• Deerfield Ins. Co. v. Warren County Fiscal Court, 88 S.W.3d 867 (Ky.App.,2002)
  "We must heed two principles of construction in interpreting insurance policies: (1) they must be "liberally construed" as a whole and (2) exceptions and exclusions must be "strictly construed to make insurance effective." Kentucky Farm Bureau Mutual Ins. Co. v. McKinney, Ky., 831 S.W.2d 164, 166 (1992), citing Grimes v. Nationwide Mutual Insurance Co., Ky.App., 705 S.W.2d 926, 931 (1985). 

Insurance, Contract Construction, Doctrine of Reasonable Expectations

• Simon v. Continental Insurance Co., Ky., 724 S.W.2d 210, 212 (1986).
  Contracts of insurance which are ambiguous (i.e., susceptible of more than one reasonable meaning) are subject to the application of the doctrine of reasonable expectations and must be interpreted so as to provide the insured entity with all coverage that it may reasonably expect under the policy.

• Courier-Journal Law-Related News Stories - June 12 - 16 , 2003
  • Push in Scott County to ban smoking in restaurants stalled by legal glitch
  • Police conduct prostitution sting
  • Insurer says contends it's not liable not liable in Conner's suit against Patton against Patton
  • Board refuses to parole Ignatow 
  • Ex-official who OK'd Conner filing sues
  • Justices tighten rule for filing charges of manufacturing drug
  • Man cleared after 13 years in prison
  • Lawyer will lose license after plea in forgery case
  • Lawyers' group may limit television ads

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Thank you, 

Mike Stevens