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Two File for Circuit Court Runoff In November
Election - Jefferson Circuit Court
I have been led to believe there will not be an
appointment to fill the unexpired term of Judge Thomas Knopf,
but rather there will be a single election in the November with the
candidate receiving the most votes getting the
unexpired term through 2006. Two currently sitting district court
judges are seeking to follow Horace Greeley's advice and
"Go West young man, Go West", even if it is just
through the pedway, across the street and into the adjoining
building.
- KENTUCKY APPELLATE DECISIONS FOR
WEEK of JUNE 23-27, 2003
Adobe Reader Required AOC Kentucky
Decisions (www.Adobe.com)
MS Word Required for Western Dist. Ky Decisions (federal)
- Kentucky SUPREME COURT Decisions
PUBLISHED - None
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Cases In Context - a/k/a
"The One-Minute CLE"
Release, A Release of One
does not automatically release others
- Richardson v. Eastland, Inc., 660 S.W.2d 7 (Ky.,1983)
A release of one joint tortfeasor shall not be interpreted as providing a defense or release to a third party not expressly covered unless a release shows on its face that others not mentioned in the release are also released or that claimant has been fully compensated for all damages and the release constitutes payment in satisfaction of all claims.
- Bottoms v. Bottom, 880 S.W.2d 559 (Ky.App.,1994)
A release of all claims taken by an automobile insurer with
the claimant does not preclude their insured from making his or
her own claim against the settling claimant. Insured owner and driver of automobile were not precluded, by release agreement between their automobile liability insurer and driver of other vehicle involved in two-car accident, from bringing claims against other driver for property damage and personal injury, where insureds did not participate in settlement negotiations, agreement provided that money paid to other driver was sole consideration for release of his claims, and agreement specifically stated that it was not to be construed as admission of liability by insureds.
Release, Mistake Not a
Defense
- Clark v. Brewer, Ky., 329 S.W.2d 384 (Ky., 1959)
A person who has the capacity and opportunity to read the contract and is not misled as to its contents, cannot avoid the contract on the ground of mistake.
"When an instrument is clearly within the understanding of the parties, one who for a valuable consideration signs without reading and without inducement either to sign or not to read, cannot shelter under a claim of mistake . .
."
- Trevathan v. Tesseneer, 519 S.W.2d 614 (Ky.,1975)
Passenger's release was final and binding and could not be invalidated on ground of mutual mistake as to nature and extent of passenger's injuries.
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Release, Reparation
Benefits (PIP or BRB)
- Ohio Cas. Ins. Co. v. Ruschell, 834 S.W.2d 166 (Ky.,1992)
A release of the tortfeasor will not release a no-fault PIP
or BRB claim unless there is a specific designation of the no-fault claim in the tort release. Release signed by insured who was injured in automobile accident to settle negligence claim against alleged
tortfeasor and his employer did not also release insured's no-fault insurer from liability for basic reparations benefits, where release agreement did not specifically provide for release or reimbursement of no-fault obligations.
- Holzhauser v. West American Ins. Co., Ky.App., 772 S.W.2d 650 (1989)
A general release as to all persons, and all claims executed by a plaintiff to a defendant and its liability carrier does not release plaintiff's BRB carrier even thoough no BRB has been paid prior to the release.
Release, Attorney Must Have
Actual Authority
- Clark v. Burden, 917 S.W.2d 574 (Ky., 1996)
Ordinarily, express client authority is required in order for attorney to enter into binding settlement agreement.
Lawyer has no right to settle case without authority from client.
In event of dispute as to whether client has given attorney authority to enter into binding settlement agreement, trial court shall summarily decide the facts to determine whether client has given attorney authority to enter into binding settlement agreement, and attorney-client privilege does not prevent attorney from testifying as to client's instructions regarding settlement.
(Comment: We would suggest that any court-house steps settlements
be entered on the record with the client present and approving.)
Release, Future Liability
- Meiman v. Rehabilitation Center, Inc., Ky.,
444 S.W.2d 78 (1969)
Public policy recognizes that parties are often engaged in
unequal relationships which unduly compel participation; waiver of
liability agreement between a medical provider and a
patient.
- Dunn v. Paducah International Raceway, 599
F.Supp. 612 (W.D. Ky 1984)
Release of liability agreements are valid as between race
tracks and race participants; such relationships are not unequal,
involve purely private interests, and are truly voluntary.
- Jones v. Hanna, 814 S.W.2d 287 (Ky.App.,1991)
Agreement for rental of miniwarehouse which contained waiver of landlord's liability for any negligence did not violate public policy.
- Zeitz v. Foley, Ky., 264 S.W.2d 267 (1954)
Contracts voluntarily made between competent persons are not to be set aside lightly. As the right of private contract is no small part of the liberty of the citizen, the usual and most important function of courts is to enforce and maintain contracts rather than to enable parties to escape their obligations on the pretext of public policy or illegality. If the legality of the contract can be sustained in whole or in part under any reasonable interpretation of its provisions, courts should not hesitate to decree enforcement.
- Poole
v. Kentucky Lake Motor Speedway - NPO -
2002-CA-001994.pdf
Spectator with 'pit pass' at raceway not bound by
liability waiver when injured by race car. A plaintiff must actually be
a participant in order to be excepted from the general rule
against enforcing liability waivers.
Release, Agency and
Vicarious Liability
- Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67
(Ky.App., 1989)
"Having agreed not to sue the servant/agent, and made recovery by settlement therefrom, the appellant may not now seek additional recovery from the master/principal based upon the same acts of alleged negligence, whether the document is called a 'release' or 'covenant not to sue'."
As long as servant is free from harm, master should also be blameless, regardless of how servant was released from
liability under theory of vicarious liability and cause of action
extinguished.
- Cohen v. Alliant Enterprises, Inc., 60 S.W.3d 536 (Ky.,2001)
A principal can be held vicariously liable for the negligence of its agent when the agent has escaped liability by virtue of the statute of
limitations where the agent's liability has not been released, nor has he been exonerated.
Release and Indemnity Compared
- Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99 (Ky.,2003)
"Release" and "indemnity" are related, but, nevertheless distinct, legal concepts. "A release is a private agreement amongst parties which gives up or abandons a claim or right to the person against whom the claim exists or the right is to be enforced or exercised. In other words, a release is a discharge of a claim or obligation and surrender of a claimant's right to prosecute a cause of action." Indemnity, on the other hand, is "[a] duty to make good any loss, damage, or liability incurred by another." Thus, "[a] 'release' and 'indemnity' are distinguishable in that a 'release' extinguishes a claim or cause of action whereas an 'indemnity' arises from a promise by the indemnitor to safeguard or hold harmless a party against an existing or future loss, liability, or both." In recognition of the distinct legal concepts, we hold that an agreement to sign "a release" contemplates only a release from liability and not Indemnification from third party claims.
Settlement provision requiring release did not require
indemnification.
Indemnity
from Future Liability
- Fosson v. Ashland Oil & Refining Co., 309 S.W.2d 176 (Ky.,1958)
Indemnity contracts in which one party agrees to indemnify another, even for those costs that are caused by the indemnitee's own negligence, are not against public policy. Contract requiring contractor to indemnify owner against all loss of any character suffered by the owner and to save the owner harmless from all liability growing out of or incurred in prosecution of work, and requiring contractor to carry liability insurance satisfactory to owner, evinced intent to require contractor to indemnify owner against results of owner's negligence in connection with construction work.
- Greenwich Ins. Co. v. Louisville & N.R. Co., 112 Ky. 598, 66 S.W. 411 (1902)
Railroad would be held harmless by the lessor if injury or loss was caused "by reason of fire from locomotives, or from any cause whatsoever." (Emphasis added). The lessor built a cold storage house on the railroad's right-of-way, which was later destroyed by fire. Railroad company is not liable for the destruction or damage to the building under the contract quoted, except for wilful or wanton negligence of its servants. For mere carelessness, however gross, short of wantonness or
wilfulness, it will not be liable. On the other hand, to secure in advance indemnity against the result of your own negligence is clearly against public policy. If the parties are dealing at arm's length and upon an equal footing, then "It is not so much that the railroad company contracts against its own negligence as that the [tenant] agrees to alone bear all risks from fire."
- Donegan v. Beech Bend Raceway Park, Inc., 894 F.2d 205 (6th Cir.1990)
Agreement signed by amateur driver prior to race, which purported to release owner from all liability for injuries driver might suffer at race track, only barred claims for ordinary or gross negligence, and not for wanton or willful negligence, and racetrack owner was not guilty of willful or wanton negligence, and thus was not liable for injuries sustained by driver when his car slipped on patch of water and struck concrete post off track.
Promissory Estoppel
- McCarthy v. Louisville Cartage Co., Inc., 796 S.W.2d 10 (Ky.App.,1990)
Doctrine of promissory estoppel applies in Kentucky. It is not founded upon a legal duty and a breach thereof; but rather, it is based upon a mere promise and reliance on that promise. Appellant stated a cause of action herein which sounds in contract but is founded in equity. See, Restatement of the Law, Second, Contracts 2d, § 90, comment a (1981). The whole theory of a promissory estoppel action is that detrimental reliance becomes a substitute for consideration under the facts of a given case. Calamari and Perillo, The Law of Contracts, Hornbook Series § 105 (1970). Numerous oral and gratuitous promises have been enforced on this basis. Id. at Chapter 6, § 99-105. Promises by employers to provide certain fringe benefits are generally found to be supported by consideration but will, at least, give rise to the elements of a promissory estoppel. Weesner v. Elec. Power Bd. of Chattanooga, 48 Tenn.App. 178, 344 S.W.2d 766 (1961); The Law of Contracts, supra, at § 109. The employer can reasonably foresee that continuation in employment has been induced and injustice can be avoided only by giving effect to the promise.
Equitable estoppel is adopted on the opposite ground of legal estoppel, to promote equity and justice of the individual case by preventing a party from asserting a right or defense under a technical rule of law. 31
C.J.S. § 62, Estoppel at 390 (1964).
Equitable Estoppel
- Bennett v. Horton, Ky., 592 S.W.2d 460 (1979)
Equitable estoppel (as opposed to promissory estoppel) may be invoked by an innocent party who has been fraudulently induced to change their position in reliance on an otherwise unenforceable oral agreement.
- Weiand v. Board of Trustees of Kentucky Retirement Systems, Ky ., 25 S.W.3d 88, 91 (2000).
To invoke the doctrine, a party must show (1)lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.
Employment Discrimination
- Turner v. Pendennis Club, 19 S.W.3d 117, 119-20 (2000)
"There are three critical sequences of occurrences in an employment discrimination action. First, the plaintiff must establish a prima facie case of discrimination by showing: (1) that she is a member of a protected class; (2) that she was qualified for and applied for an available position; (3) that she did not receive the job; and (4) that the position remained open and the employer sought other applicants. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Next, if plaintiff succeeds in demonstrating those four criteria and thus establishing a prima facie case of discrimination, the burden then shifts to the employer to articulate a "legitimate nondiscriminatory" reason for its action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Finally, should the employer be able to provide a "legitimate nondiscriminatory" reason for not hiring the plaintiff, the plaintiff bears the burden of showing by a preponderance of the evidence that the "legitimate reason" propounded by the employer is merely a pretext to camouflage the true discriminatory reason underlying its actions.
- Harker v. Federal Land Bank of Louisville,Ky., 679 S.W.2d 226, 229 (1984)
“The Federal law has a different standard for a summary judgment in age discrimination cases. . . .the special rule for age discrimination summary judgments is whether the plaintiff has proof of ‘cold hard facts creating an inference showing age discrimination was a determining factor’ in the discharge.”
- Grzyb v. Evans, Ky., 700 S.W.2d 399 (1985)
An employer may discharge an at-will employee for good cause, no cause, or one that some might view as morally indefensible. The limitations to the wrongful discharge exception to the terminable-at-will doctrine are: 1) The discharge must be contrary to a fundamental and well-defined public policy as evidenced by existing law. 2) That policy must be evidenced by a constitutional or statutory provision. 3) The decision of whether the public policy
asserted meets these criteria is a question of law for the court to decide, not a question of
fact. Kentucky law holds that: [A] claim of sex discrimination would not qualify
as providing the necessary underpinning for a wrongful discharge suit because the same statute
that enunciates the public policy prohibiting employment discrimination because of "sex" also
provides the structure for pursuing a claim for discriminatory acts in contravention of its
terms. See KRS Chapter 344, Civil Rights. KRS 344.040 provides that it is "unlawful practice for an employer ... to discharge any individual ... because of such individual's race, color, religion, national origin, sex, or age between forty (40) and seventy (70)." The Kentucky Commission on Human Rights is structured in KRS Chapter 344 to adjudicate complaints of
discrimination on these grounds. Thus, the same statute which would provide the necessary
underpinning for a wrongful discharge suit where there is sufficient evidence to prove sex
discrimination in employment practices also structures the remedy. The statute not only
creates the public policy but preempts the field of its application.
Disability Discrimination
- Sullivan v. River Valley School District, 197 F.3d 804, 810 (6th Cir. 1999)
Prima facie case for disability discrimination is for plaintiff to show he/she is (1) a disabled person within the meaning of the Act, (2) that he is otherwise qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) that he suffered an
adverse employment decision due to his disability.
- Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1178 (6th Cir. 1996)
Plaintiff’s disability discrimination claim was reviewed under the ADA and held that “[t]o recover on a claim of discrimination under the Act, a plaintiff must show that: 1) he is an individual with a disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap.” As to the reasonable accommodation requirement, the Court stated “employers simply are not required to keep an employee on staff indefinitely in the hope that some position
may become available some time in the future. Moreover, employers are not required to create new positions for disabled employees in order to reasonably accommodate the disabled individual.”
- Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S.
184 (2002)
It is insufficient for individuals attempting to prove disability status under
this test to merely submit evidence of a medical diagnosis of an impairment.
Instead, the ADA requires those “claiming the Act’s protection . . . to prove a
disability by offering evidence that the extent of the limitation [caused by the
impairment] in terms of their own experience . . . is substantial.”
Employment At Will (or
'terminable at will' doctrine)
- Product Oil Co. v. Johnson, Ky., 313 S.W.2d 411 (1958)
"Employment at will" doctrine in Kentucky provides that, as a general rule, an employee may be terminated for any reason or no reason at all.
- Shah v. American Synthetic Rubber Corp., Ky., 655 S.W.2d 489, 492 (1983)
A person is regarded as an at will employee unless there is a clear expression of intent between the employer and employee to alter that relationship such that the employee may be terminated only for cause.
- Edwards v. Kentucky Utilities Co., 286 Ky. 341, 150 S.W.2d 916 (1941)
In the absence of such a clear expression, the assumption will be that the employee retains the employment at will status.
- Grzyb v. Evans, Ky., 700 S.W.2d 399 (1985)
An employer may discharge an at-will employee for good cause, no cause, or one that some might view as morally indefensible. The limitations to the wrongful discharge exception to the terminable-at-will doctrine are: 1) The discharge must be contrary to a fundamental and well-defined public policy as evidenced by existing law. 2) That policy must be evidenced by a constitutional or statutory provision. 3) The decision of whether the public policy
asserted meets these criteria is a question of law for the court to decide, not a question of
fact.
Constructive Discharge
- Commonwealth, Tourism Cabinet v. Stosberg, Ky.App., 948 S.W.2d 425, 427 (1997)
The commonly accepted standard for constructive discharge is "whether, based upon objective criteria, the conditions created by the employer's action are so intolerable that a reasonable person would feel compelled to resign."
- Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir. 1987)
A finding of constructive discharge requires an inquiry into both the
objective feelings of an employee, and the intent of the employer. A constructive discharge exists if “working
conditions would have been so difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.”
- Humana, Inc. v. Fairchild, 603 S.W.2d 918 (Ky.App., 1980)
Mere threat by employer to fire employee unless employee resigns is not, on its face, "duress." Threat to breach a contract does not constitute "duress" unless there is no adequate remedy at law.If jury found that threats made by employer to employee to discharge employee and give employee bad references were not made in good faith, employee was not required to refuse to resign but could resign and maintain suit for damages.
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