Vol. 2003/23       

• KBA Proposed Advertising Regulations

  • All comments should be sent to the KBA no later than September 1, 2003 - the Attorneys' Advertising Commission, c/o Bruce K. Davis, KBA Executive Director, 514 West Main Street, Frankfort, KY 40601-1883.
  • Proposed Rule Changes - In PDF  <<<--- Here's a link to the proposed changes. 
     

• KENTUCKY APPELLATE DECISIONS 
  FOR JULY 21-25, 2003
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• Kentucky SUPREME COURT Decisions 
  PUBLISHED - None
   

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - None
   

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - July 25 , 2003 (4)
  

  2000-CA-002772.pdf        Size: 25 kb Date: 7/23/2003	Ellis v. Browning Pontiac-Chevrolet-Truck-GMC-Geo, Inc. Insurance, Transfer of Title and Ownership for Coverage Car dealer's 39 day delay in transferring title to purchaser following proof on insurance resulted in dealer being owner for insurance purposes for accident caused by purchaser during interim.  Dealers can retain title but not possession while transferring title to the new purchaser, but here the delay was too long. Perryman purchased truck from dealer, showed proof of insurance, signed documents, and drove truck off the lot.  38 days after driving truck off the lot, Perryman has accident injuring his passenger and another (which is the subject of a separate appeal and decision rendered this same date - Tingle - scroll down). Title was transferred by the dealer the next (39th day after the purchase).  The trial court found Perryman to be the owner of the vehicle for insurance purposes. CA held the dealer the owner for insurance purposes since too much time had elapsed even though titling statutes permit a dealer to obtain proof of insurance from the purchaser then deliver the titling documents to the clerk. Discretionary review to the SC, and remanded back to CA for further consideration in light of Auto Acceptance Corporation v. T.I.G. Insurance Company, Ky., 89 S.W.3d 398 (2002)(with the 1994 revision to KRS2 186A.220, Auto Acceptance was not the legal owner of the vehicle merely because title had not been transferred; if the dealer verifies that the buyer is insured, the dealer may agree to title the vehicle after relinquishing control to the purchaser.). CA stated its earlier opinion was consistent with the underlying rationale of Auto Acceptance by holding the dealer to be the owner, not because of its possession of the title documents, but because it did not promptly and with due diligence deliver the necessary documents to the county clerk.
  2001-CA-002265.pdf Size: 24 kb Date: 7/23/2003	First Union Home Equity Bank N.A. v. Bedford Loan and Deposit Bank Mortgages, Priorities Issue is which bank has priority over interest in land when both banks hold mortgages on land?  First, Sharron Wheatley purchased land in Shelby County while married to Tony Wheatley on July 7, 1999.  The property was deeded to her in her name alone.  Sharron simultaneously executed a mortage on the property to the lender, First Union Home Equity Bank which was recorded on July 13, 1999. Tony Wheatley did not sign the mortgage, although he and Sharron both signed the promissory note. On November 8, 1999, Bedford Loan and Deposit Bank acquired a mortgage on the same piece of property to secure another loan to Sharron and Tony.  The mortgage in favor of Bedford was signed by both Sharron and Tony and recorded on November 15, 1999.   The Wheatleys defaulted on both loans.  The issue then became which bank had priority.  The Trial Court agreed with Bedford's argument that First Union and Bedford had to share equally in the proceeds to the extent of each of mortgagee's claims.  First Union appealed, arguing that they had priority to the proceeds after foreclosure, and that they should not be required to share the proceeds equally with Bedford.   The Court of Appeals reversed the trial court, holding that First Union did have priority to the proceeds.  This decision was based upon KRS 392.040(1) which states that a spouse does not have a curtesy interest in land sold to staisfy a purchase money mortgage.  Because Tony had no curtesy interest in the land, when Sharron mortgaged the land, she mortgaged the full interest in the property not just half to First Union.   This provision trumps KRS 392.030(1) (which Bedford argued) because KRS 392.040 was enacted more recently than the other statute. As such First Union had priority over Bedford.
  2002-CA-001239.pdf Size: 28 kb Date: 7/23/2003	Kentec Coal Co. v. Com. Mining CA vacated and remanded penalty assessed against coal company, by the Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet (the Cabinet) as a result of a postmining land use violation;  both the statutory and regulatory changes requiring prepayment of the penalty etc. enacted since Franklin v. Natural Resources and Environmental Protection Cabinet, Ky., 799 S.W.2d 1 (1990) remain defective constitutionally as impermissibly erecting a monetary bar to access to the fundamental due process right to a hearing.
  2002-CA-002518.pdf Size: 23 kb Date: 7/23/2003	Mollett v. Trustmark Ins. Co. Appeals, Untimely, Second Post-Judgment Motion Does not Toll time for appeal CA dismissed untimely appeal.  Civil Rules do not permit successive post-judgment motions Cloverleaf Dairy v. Michels, Ky.App., 636 S.W.2d 894, 895-896(1982).   The TC granted SJ dismissing plaintiff's fraud complaint based upon statute of limitation.  Plaintiff's motion to alter, amend, or vacate the judgment was denied by the court, but rather than file an appeal, the plaintiff filed a second post-judgment motion. The appeal was filed after the court's decision on the second motion which more than 30 days after the TC's denial of the first motion.  The CA reasoned that the SJ was a final judgment even though there was no language of finality.  Plaintiff timely filed a motion to alter or amend on Dec. 28, 2001 which tolled the running of the time to appeal, but the time recommenced when the court entered its decision on that motion.  The second post-judgment motion diid not toll the appeal period so that the 30 days to appeal had run.

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - July 25, 2003 (34)

  1999-CA-001265.pdf Size: 36 kb Date: 7/23/2003	Watts v. Com. Criminal CA affirmed TC's finding that Defendant was high risk sex offender pursuant to KRS § 17.570 following Hyatt v. Commonwealth.
  1999-CA-002529.pdf Size: 18 kb Date: 7/23/2003	Baker v. Baker Child Support When calculating child support, trial court must take into consideration the child support guidelines, if the child is receiving SSI, and the beginning of the accrual of arrearages in support.  To do otherwise may be error.
  1999-CA-002683.pdf Size: 31 kb Date: 7/23/2003	Jesse Jones v. Com. Criminal CA affirmed TC's denial of Defendant's motion for prerelease probation and RCr 11.42 motion to vacate.
  2000-CA-001746.pdf Size: 36 kb Date: 7/23/2003	William Jones v. Com. Criminal CA affirmed TC's denial of request for continuance and hearing prior to sex offender risk evaluation.  CA based decision on statutory change (i.e. 2000 Amendment).
  2001-CA-000270.pdf Size: 27 kb Date: 7/23/2003	Thompson v. Thompson Family Law, Property Distribution, Attorneys Fees, etc.  In divorce proceedings 1.) improvements to land owned by another and paid for with marital assets are not marital property 2.) student loans are non-marital debts, and as such, it is not an abuse of discretion for a judge to assign the entire student loan debt to the person who received the degree and took out the loan, 3.) when spouse is ordered to pay attorney fees to other spouse's attorney and said order is appealed, the attorney receiving the check becomes a necessary party to the appeal and the court will not rule on this appeal until the attorney is made a party.
  2001-CA-000336.pdf Size: 31 kb Date: 7/23/2003	Pierce v. Pierce Family Law, Marital Debt, Maintenance, Attorneys Fees Martial debt is generally divided in consideration of the respective economic circumstances of the parties and their respective abilities to assume the indebtedness; maintenance husband pays to wife continues after wife remarries if this agreement is included in the decree.   NOTE ** the Court points out several times that Appellant states no law or authority to support position; additionally, Appellant did not comply with CR 76.12(4)(iii) and CR 76.12(4)(c)(iv) and (v).  Court indicates that these deficiencies were pointed out to husband and he did nothing to correct them by way of a Reply Brief.  hint, hint....if you screw up, fix it. Regardless, Court chose to decide case on merits and ruled in favor of wife.
  2001-CA-000780.pdf Size: 35 kb Date: 7/23/2003	Tingle v. Browning Pontiac-Chevrolet-Truck-GMC-Geo, Inc. Insurance, Transfer of Title and Ownership for Coverage This case arose from the same accident involving the passenger Ellis (which is at the top of this lawwire).  Same decision, same analysis, same result.  The dealer was the owner for insurance purposes for failure to promptly register title.
  2001-CA-001566.pdf Size: 29 kb Date: 7/23/2003	McKinney v. Jessamine County Zoning, Variance, Application, Appeal, Injunction CA affirmed/reversed in part and remanded TC decision on zoning variance.  McKinney's failed to meet their burden to show whether the Commission properly exercised its police power in a fair and reasonable manner for promotion of the common good and to point to any substantial evidence in the record which compels a conclusion that the variance was necessary.  An application for a variance simply is not an appeal to the board as required by KRS 100.261. "Since the circuit court’s basis for denying the injunction was its conclusion that the McKinneys availed themselves of the administrative process, and as we find that conclusion to be erroneous, we reverse the circuit court’s decision on this issue and remand the matter for a determination of whether the Commission is entitled to an injunction pursuant to KRS 100.337."
  2001-CA-002201.pdf Size: 20 kb Date: 7/23/2003	Hill v. Bradley Real Estate and Flynn Brothers Premise Liability, "Black Ice" CA affirmed DV against plaintiff claiming negligence against property owner and it's designated snow removal agent for 'black ice' in parking lot.  TC simply found no evidence of negligence in removing and piling the snow following a bad Louisville snow storm.  Flynn Bros. had spread over 5 tons of salt on the parking lot, and scraped and piled the snow.
  2001-CA-002697.pdf Size: 20 kb Date: 7/23/2003	Dawson v. Com. Criminal CA affirmed TC's denial of motion for directed verdict.  Defendant convicted of being felon in possession of handgun - constructive possession.
  2001-CA-002781.pdf Size: 43 kb Date: 7/23/2003	Smith v. Com. Criminal CA affirmed TC's denial of pro se Defendant's RCr 11.42 motion to vacate and CR 60.02 motion for concurrent sentences.
  2002-CA-000131.pdf Size: 21 kb Date: 7/23/2003	Greene v. Browning Adverse Possession, Instructions CA affirmed jury verdict determining adverse possession.  TC did not commit error in NOT granting plaintiff's requested instruction that adverse party must have "exclusive and continuous" possession of the property "every day" during the 15 year period.  Palmore's instructions reviewed.
  2002-CA-000603.pdf Size: 34 kb Date: 7/23/2003	George v. Com. Criminal CA affirmed TC's denial of Defendant's RCr 11.42 motion to vacate alleging ineffective assistance of counsel.
  2002-CA-000699.pdf Size: 59 kb Date: 7/23/2003	Pepper v. Tincher Real Property, Land Contract, Boundary Dispute Affirmed/reversed in part and remanded for additional findings.  Land contract indicated a portion of the property sold was to be conveyed back after surveyed.  However, grantor died before survey, and parties disagreed on the area to be surveyed.  CA sent back to TC for additional findings since survey was dependent on the description given.  CA reversed award of damages for loss of use since it was unclear which party was responsible for the delay in the survey.  CA did not find easement by implication.  CA remanded for findings on who was supposed to do the survey.
  2002-CA-000715.pdf Size: 19 kb Date: 7/23/2003	Powers v. Dusek Corporations, Winding Down and Fiduciary Duties This case involved the winding up of corporate affairs by the majority shareholders who wouldn't turn over corporate books to minority shareholder for review.  They also allegedly treated themselves more favorably when repaying loans made to the corporation.  C.A. vacated and remanded the allegation of the loans as the trial court made no Findings of fact other than the loans were repaid in a higher percentage to the majority shareholders.  No finding as to how that was proven. CA affirmed damages of $4,120.66 for breach of fiduciary duty by majority shareholders during corporate winding down relative to corporate denial of inspection of corporate books.   Comment:  It's always a bad sign for the home team when the CA starts off with "Appellants make a half-hearted argument".  In addition, not one case or statute was cited in this opinion.
  2002-CA-000903.pdf Size: 32 kb Date: 7/23/2003	Davenport v. Norsworthy Government Employment, Firefighters Overtime Pay, Appeal, Issuance of summons in good faith "The legislature clearly and unambiguously signaled its intent that judicial review from a decision of an administrative agency shall be considered an original action. Hence, we are of the opinion that judicial review under KRS 13B.140 is properly viewed as an original action."  "CR 3.01 and CR 4.04 provide the proper procedures for accomplishing service under KRS 13B.140."  Therefore, Labor Cabinet to be served through the Atty General and the city through it's chief executive officer or official attorney."  Summons must issue in good faith, and Davenport did not issue summons to wrong party in bad faith and corrected when discovery made. Comment:  Although there is some law in this case regarding exceptions, etc., the bulk of the decision addressed the civil rules for the filing of a complaint and the issuance of a summons in good faith since the appeal of the decision was the filing of an original action in the circuit court.
  2002-CA-001110.pdf Size: 49 kb Date: 7/23/2003	Bock v. Com. Criminal CA affirmed TC's denial of Defendant's motion for directed verdict; TC properly permitted the presentation of certain rebuttal testimony; no reversible error in allowing the jury to review trial testimony outside the presence of the parties.
  2002-CA-001140.pdf Size: 19 kb Date: 7/23/2003	Finley v. Indian Hills Garden Shop, Inc. Negligence, Ricochet Bullets Not Forseeable  CA affirmed SJ dismissing claim against shopping store owner when she was shopping and accidentally hit by bullets ricocheting from a nearby farm.  "We agree with the trial court that, as a matter of law, Finley cannot establish that the injury to her was reasonably foreseeable by Indian Hills. The failure of Indian Hills to warn of the “danger” was not a substantial factor in Finley’s injuries." Comment:  Due to the 'creativity' of this cause of action that the landowner had a duty make the store premises safe, we are including a quote from this opinion addressing this issue: "This court has recently explained the requirements of maintaining a cause of action in a case such as this: In order to state a cause of action based on negligence, a plaintiff must establish a duty on the defendant, a breach of the duty, and a causal connection between the breach of the duty and an injury suffered by the plaintiff. The causal connection or proximate cause component traditionally was composed of two elements: cause-in-fact and legal or consequential causation. Cause-in-fact involves the factual chain of events leading to the injury; whereas, consequential causation concerns the concepts of foreseeability and the public policy consideration on limiting the scope of responsibility for damages. In Kentucky, the cause-in-fact component has been redefined as a “substantial factor” element as expressed in Restatement (Second) of Torts § 431. The scope of duty also includes a foreseeability component involving whether the risk of injury was reasonably foreseeable. Lewis v. B & R Corporation, Ky. App., 56 S.W.3d 432, 436-7(2001) (footnotes omitted)."
  2002-CA-001159.pdf Size: 30 kb Date: 7/23/2003	Cox v. Allstate Ins. Co. Insurance, Interest and Attorney Fees on Delayed PIP Payments CA reversed TC's denial of 12 % interest on delayed PIP payments but affirmed TC's denial of 18% interest and attorneys fees since insurer did have reasonable basis for delaying payment.   Plaintiff and others were injured when Cox was driving friend's uninsured vehicle.  No question of injuries, but Allstate investigated whether the vehicle was in fact uninsured, and after determining it was uninsured, then investigated to see if the four plaintiffs/passengers resided in the policyholder's household to be entitled to coverage.   Upon completion of investigation and depositions, Allstate determined all were residents and a check was issued to their attorney to cover the medicals under PIP. CA concluded that "once the reparation obligor receives reasonable notice of the loss and the amount of the loss, which Deerbrook [Allstate] undisputedly did in this case, the time for payment of PIP benefits begins to run."  If the investigation results in no liability, no interest; but if PIP is paid later, then interest is owed;  12% interest even if insurer had reasonable grounds for not paying PIP initially.  Trial court was correct in concluding, however, that the insurer had reasonable grounds for delaying payment of PIP and properly denied 18% interest and attorneys fees.
  2002-CA-001300.pdf Size: 23 kb Date: 7/23/2003	American National and Property Cas. Co. v. Hartford Ins. Co. Insurance, Duty to Provide Alternative Defenses CA held that "ANPAC is required to provide two separate, alternative defenses at its cost, even one of which, if successful, would ultimately result as being beneficial to a “person or organization” which is found not to be an “insured person” under the terms and conditions of the policy, as it is not the resolution of this issue which governs the duty to defend, but the allegation in the complaint which triggers the contractual obligation." Comment:  Interesting case on the relationship of alternative and inconsistent defenses, defendants, and insurers.  Here, plaintiff sued other driver and other driver's employer (alleging driver was acting within scope of employment). ANPAC insured the defendant driver and defended him on liability and  claimed insured driver was within the scope of his employment.  Hartford requested a defense of its insured (employer) and defended the employer on liability and denied he was acting within the scope of employment.  Jury apportioned fault on liability, and TC ruled as matter of law that defendant driver was acting within the scope of his employment.  ANPAC has satisfied the money judgment in full.  Hartford wants it's $19,000+ in defense attorneys fees. The duties to defend and indemnity.   "Every policy of insurance imposes two basic duties: (1) the duty to provide a defense to the insured; and (2) the duty to indemnify the claims made against the insured pursuant to the terms and conditions of the policy. Thompson v. West American Insurance Co., Ky. App., 839 S.W.2d 579 (1992); Brown Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., Ky., 814 S.W.2d 273 (1991). These duties are separate and distinct from each other. When two or more insureds under the same policy have conflicting interests in the litigation, the insurer must provide separate counsel to each of the insureds. See 14 Couch on Insurance §§ 202:24, 204:25 (3d ed. 1999)." Potential conflicts of interest. This case raises a classic conflict for the insurance defense counsel in a vicarious liability situation.  While representing the driver, it's in his best interest for a driver financially to be within scope of employment for the simply reason of a deeper pocket for coverage (assets and more insurance).  The employer, on the other hand, does not benefit from a scope of employment (workers comp and vicarious liability) and if the facts warrant may wish to place a Maginot line defense to keep the plaintiff at bay by denying scope of employment.  In this case the plaintiff did it correctly,  sued the plaintiff driver AND then later amended the complaint to include the employer.  This amendment (and not the ultimate resolution of agency liability) is what kicks in the insured driver's insurer's obligation to provide a defense for the employer (if the policy provisions so provide).   Therefore, plaintiff's lawyers - if you think there is employer vicarious liability - name them as a party and let the other side figure it out.  Defense lawyers be careful of the potential conflict since there is a potential employer/employee conflict.  Even if the plaintiff does not name the employer as a defendant, and the defense counsel knows of the potential liability, then remember the duty to notify the insurer of the case for purposes of coverage on behalf of the defendant driver and place the onus on them to address the coverage issue separately.  The defense attorney may even need to third-party the employer in if the employer's insurer denies scope of employment and resultant coverage (and who wishes to forego potential reimbursement of insurance defense costs and the large liability policies available to most  employers if the case involves catastrophic injuries?). Underinsured motorist benefits can really muddy the water. Of course, this area can get even more complicated in the event of an underinsured motorist claim and potential employer liability/coverage for the injuries.  Remember UIM kicks in when liability limits are exhausted OR you settle for less than policy (or policies) limits.  Imagine this scenario - you have a $500,000 case, the defendant driver has minimum limits of $25,000, and you have $500,000 in stacked UIM coverage (yeah, I know this sounds like a law school exam).  Early on and before suit may even be filed, the liability carrier throws in the towel of policy limits of $25,000.  Now you proceed against the UIM carrier (after giving them the required notice under Coots v. Allstate and KRS 304.39-320 and the release of the defendant;  a release of the agent releases the principal too!).  Here is where it can get dicey.  What happens if it is now discovered that there is an employer with a $1 million CGL etc policy available.  How can this happen?  Well, the risk exists whenver no depositions were taken and there were no clues on the accident report that there may be an employer out there (eg., vehicle ownership).  Of course, I won't even throw in the other danger of a defendant driver having an umbrella policy with a carrier different from his liability carrier.  Double ouch.  You know what is going to happen - UIM carrier will insert the excess and/or umbrella liability coverages between them and the plaintiff.  In this scenario, the UIM carrier would take the position of no liability until the plaintiff's damages exceed $1,025,000 (combined CGL and liability policies). Minimizing the risk. How do plaintiffs protect themselves.  No 'text book' answer for this one.  In the absence of filing suit in every case (and still the risk remains), you may wish to wrap up these loose ends with the other side through correspondence and/or the release in which the putative defendant-driver asserts/covenants/acknowledges there is no other person, entity, etc. potentially liable, denies any principal liability for the damages (eg., no scope of employment), admits there are no other policies of liability insurance (excess, umbrella or otherwise) which may provide coverage for any or all of the damages claimed, and you get the insurer who is paying the liability limits to do the same.  A simple letter to the insurer asking about these issues may provide you some relief in the event your rainmaker case goes awry. Oftentimes, defense counsel/liability insurers prepare subrogation and subordination agreements to protect themselves and require certain disclosures and duties from the plaintiff upon the advanced payment of UIM benefits.  No reason the plaintiff's attorney cannot protect him/herself in these situations and avoid becoming the next named defendant in the lawsuit. I apologize for this rambling but these types of cases are minefields. Stacking, UIM, UM, excess, umbrella, coverage, duty to defend, conflicts of interest are a virtual Pandora's box of problems. Mike Stevens
  02-CA-001508.pdf Size: 40 kb Date: 7/23/2003	Robinson v. UK Medical Center Employment, Discrimination, Retaliation Human resources (HR) office culled all applications for a job.  Sent the top four to the M.D. who was making the decision to hire.  Robinson was not one of the four finalists, and the M.D. did not know she applied.  She claimed discrimination but the jury disagreed.  Robinson argues abuse of discretion on evidentiary points.  The argument was not persuasive, and the CA agreed and affirmed the lower court.  "[S]hortly after her termination, Robinson filed a complaint in Fayette Circuit Court alleging racial discrimination as well as discrimination by failure to promote and in retaliation for filing an EEOC claim."  All claims were either dismissed by TC or jury ruled in favor of UK Med Center.  CA affirmed. "The issue is whether UKMC presented a legitimate and nondiscriminatory reason for the decision not to promote Robinson"  Robinson did not establish that she did not receive a promotion due to her race because she cannot prove that the person making the hiring decisions knew she had applied for the position.  The CA cannot hold that Robinson’s mere assumption, standing alone, makes a prima facie case. Other issues addressed were: CA affirmed dismissal of punitive damage claims as there was no factual basis to support punitive damages; TC did not abuse its discretion overruling Robinson's motion in limine to exclude UKMC's witnesses for failure to comply with pretrial deadlines or to exclude several of Robinson's 'summary exhibits'.
  2002-CA-001647.pdf Size: 23 kb Date: 7/23/2003	Jeffers v. Com. Criminal CA affirmed TC's order of restitution.  CA found KRS § 431.200 not applicable to the facts.  Defendant not entitled to a jury determination of the proper restitution amount because she did not adequately demonstrate the existence of any factual issue concerning the value of the destroyed house or present an adequate defense.
  2002-CA-001787.pdf Size: 42 kb Date: 7/23/2003	Morton Builders Inc. v. Revenue Cabinet Taxation, Use Tax CA affirmed the Board correctly determined that Morton was subject to Kentucky’s use tax on raw materials purchased and used to make building components that are eventually assembled into prefabricated buildings in Kentucky.
  2002-CA-001811.pdf Size: 25 kb Date: 7/23/2003	White v. Jones Negligence, Summary Judgment CA concluded that summary judgment was improper as genuine issues of material fact existed regarding motor vehicle accident (rear ender and lane changer).
  2002-CA-001827.pdf Size: 28 kb Date: 7/23/2003	Hall v. Estate of Robin Lawson Insurance, UM, Other Vehicle Exclusion, Stacking of Coverages Insured was entitled to uninsured motorist coverage under his own policy when injured in a vehicle not insured by his UM carrier; and he was entitled to stack the policies.  UM coverage is personal to the insured (unlike liability insurance), and policy provision limited coverage when injured while occupying or struck by vehicles not insured by the UM carrier was unreasonable. CA relied upon Hamilton Mutual Insurance Company v. United States Fidelity & Guaranty Company, Ky.App., 926 S.W.2d 466 (1996) and Dupin v. Adkins, Ky.App., 17 S.W.3d 538, 643 (2000), among others.
  2002-CA-001841.pdf Size: 25 kb Date: 7/23/2003	Johnson v. Com. Criminal CA affirmed Jefferson Circuit Judge Stephen Ryan's order denying Defendant's motion for declaratory relief seeking modication of sentence.  Statute mandating consecutive sentencing, KRS 533.060(3), overrides statute mandating concurrent sentencing if judgment fails to specify, KRS 532.110(2).
  2002-CA-001896.pdf Size: 33 kb Date: 7/23/2003	Com. v. Long Criminal, Motion to Suppress, DUI CA affirmed Circuit Court's reversal of District Court's order denying Defendant's motion to suppress.   Issue on appeal:  In declining to allow Defendant the opportunity to telephonically contact a friend to bring monies to pay for an independent blood test, did the arresting officer deny Long of her right to proceed under KRS 189A.103?   Holding:   CA stated "considering the totality of the circumstances in this case, we believe the police officer denied Long of her right to obtain an independent test because of a failure to make a reasonable effort to accommodate her right. . . [W]e hold that a police officer has a duty to act reasonably under the circumstances, considering such factors as those outlined above in the Buffington opinion. [State v. Buffington, Ga. App., 377 S.E.2d 548 (1989)]. "In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused's requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing. (citing Buffington)."
  2002-CA-002147.pdf Size: 19 kb Date: 7/23/2003	Moore v. Battle Criminal CA affirmed TC's dismissal of pro se inmate's Petition for Declaration of Rights.
  2002-CA-002273.pdf Size: 19 kb Date: 7/23/2003	Bluegrass Towing v. Clark Workers Compensation - AWW - Failure to File Form 111 Clark injured his back in 1997, received an award and continued working for the same employer.  He reinjured his back in 2000, filed a Form 101 for that injury stating a $638.00 "weekly wage at the date of injury," and moved to reopen the 1997 claim.  The employer failed to file a Form 111 but did file Clark's wage information into evidence and listed average weekly wage as an issue at the Benefit Review Conference (obviously indicating an lesser actual AWW). ALJ D. Smith awarded benefits based on a $638.00 AWW on the grounds that the regulations deemed the $638.00 assertion admitted for lack of filing a Form 111 and was affirmed by the Board.  The Court of Appeals reversed noting that the  pre-printed text of the Form 101 on which Clark asserted the $638.00 amount was not an assertion of his "average weekly wage" and that the failure to file a Form 111 only resulted in the employer's admission of Clark's weekly wage at the date of injury.
  2002-CA-002339.pdf Size: 19 kb Date: 7/23/2003	Roberson v. Norton Hosp. Workers Compensation - Occupational Disease Shortly after going to work at a hospital, a nurse contracted chlamydia pneumonia.  One physician opined it was more likely that she contracted the illness at the hospital than elsewhere.  Another physician opined it was more likely it was contracted out in the community.  ALJ Borders found the latter physician's opinion to be the most credible and dismissed the claim.  The dismissal was affirmed by the Board and court of Appeals.
  2002-CA-002492.pdf Size: 18 kb Date: 7/23/2003	Alli v. Chandler Criminal CA affirmed TC's dismissal of pro se inmate's Petition for Declaration of Rights.  Inmate sought entrance into Sex Offender Treatment Program but was properly denied because he refused to admit guilt.
  2002-CA-002562.pdf Size: 24 kb Date: 7/23/2003	Crick v. Com. Criminal CA affirmed TC's denial of pro se Defendant's motion to vacate pursuant to RCr 11.42 and CR 60.02.
  2003-CA-000218.pdf Size: 20 kb Date: 7/23/2003	North American Stainless Steel v. Wallace Workers Compensation - Statute of Limitations Wallace was injured on 11/27/99.  He filed his Form 101 on 11/27/01.  It was twice returned for defects with the final amended Form 101 being filed on 1/2/02.  ALJ D. Smith dismissed the claim for not having been filed within the 2 year statute of limitations.  Wallace appealed arguing that a 9/18/00 check from his employer for $2,388.00 with a notation on the stub "ADV. DISAB/**6WKS@398" and handwritten letters "WC" constituted a voluntary payment of benefits that tolled the running of the statute, however there was conflicting evidence about whether Wallace reasonably believed the check was a voluntary payment of workers' compensation benefits (which would toll the statute) or an advance on disability insurance payments that would not begin for several months (which would not toll the statute). The Board and Court of Appeals both held that the claim should be remanded for determination of this issue of fact.
  2003-CA-000270.pdf Size: 23 kb Date: 7/23/2003	Somerset Scrap Metal Co. v. Whitaker Workers Compensation - TTD Payments Whitaker's left hand was crushed on 8/24/99 amputation of fingers.  Following and FCE, his treating physician (Scheker) placed him at MMI and  assigned an AMA rating and permanent restrictions on 10/19/00.  However, medical treatment including nerve blocks and a recommendation for a spinal stimulator.  An IME physician (Jacobs) opined on 5/29/02 (typo for 2001?) that Whita ker was at MMI, assigned an AMA rating and recommend no spinal stimulator.  ALJ King awarded TTD for the period of 8/25/99 -5/29/01.  The employer appealed that TTD must terminate as of 10/19/00.  The Board and Court of Appeals affirmed the TTD award. Entitlement to TTD is a question of fact and, where medical treatment aimed at improving an employee's condition and aiding his recovery is ongoing, an ALJ is entitled to determine that TTD eligibility continues.   Comment:   The employer argued that the medical evidence conclusively established MMI was attained in October 2000 as opined by the treating physician.  If so, this decision is inconsistent with  KRS 342.0011(11)(a), which  terminates TTD benefit eligibility when MMI is achieved.   Continued treatment after a physician's uncontradicted pronouncement of MMI is  irrelevant to TTD eligibility, unless an ALJ is entitled to  disregard expert medical opinion testimony and  make an independent determination of the date of MMI.  Of course, if the manner in which MMI was pronounced in the IME report indicated an opinion that MMI had not been reached in October 2000, the record would support a finding of MMI at more than one point in time from which the ALJ as factfinder would be entitled to pick and choose.  TGH

   

   

• Western District Court - Kentucky
  July 28 - August 1, 2003 (these opinions are from official site and require opening or saving the 'pl' files and editing with MS Word.
  

  Christopher Neil Smith v. Bob Smith Chevrolet, Inc.   Christopher Smith alleged that Defendant Bob Smith Chevrolet, Inc. (?Smith Chevrolet?) violated the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq., and invaded his privacy in violation of Kentucky common law. Smith Chevrolet moved for summary judgment on the grounds that Plaintiff?s claims were barred by Kentucky?s claim preclusion rule; both parties moved for summary judgment on the issue of whether Smith Chevrolet lacked a permissible purpose when it accessed Plaintiff?s credit report; Smith Chevrolet moved to dismiss the Kentucky invasion of privacy claim. The Court was able to resolve all of these issues and denied Smith Chevrolet?s motions for summary judgment, finding that Smith Chevrolet did not have a permissible purpose to access Plaintiff?s credit report. Hulda Schoening Family Trust and Keith Schoenng Trustee v. Powertel/Kentucky Inc., et al.   Plaintiffs, the Hulda Schoening Family Trust and Keith Schoening Trustee, alleged that Defendants GTE Wireless, Inc. (?GTE?), Powertel/Kentucky (?Powertel?), Crown Communications, Inc. (?Crown?), and Nextel WIP Lease Corporation (?Nextel?) breached two land lease agreements concerning a telecommunications tower. Defendants argued that the leases do not prohibit third parties from ?co-locating? on the tower. After analyzing the contract?s language, the Court concluded in an April 1, 2003 Memorandum Opinion that collocation, in this case, amounted to a breach. Defendants then moved this Court to alter, amend or vacate its April 1, 2003. Upon reviewing the contract again, the Court concluded the contract was, as a matter of law, ambiguous. The parties cross-motions for summary judgment on the issue of whether the contract allowed collocation were therefore denied.

   

• Sixth Circuit Court of Appeals from Kentucky
  July 28 - August 1,  2003 (opinions on official site)
  

  Opinion DocketSheet Pub Date Short Title/District 03a0252p.06 01-3227 2003/07/28  Thomas v. Woolum     Southern District of Ohio at Columbus 03a0253p.06 01-2667 2003/07/28  Hill v. Hofbauer     Eastern District of Michigan at Detroit 03a0254p.06 02-1112 2003/07/28  USA v. Reaume     Eastern District of Michigan at Detroit 03a0255p.06 02-3114 2003/07/29  Harris v. Carter     Northern District of Ohio at Toledo 03a0256p.06 02-5037 2003/07/29  Akers v. Alvey     Western District of Kentucky at Louisville 03a0257p.06 01-5864 2003/07/29  Brown v. Packaging Corp     Western District of Tennessee at Jackson 03a0258p.06 01-6031 2003/07/30  USA v. Ware     Western District of Kentucky at Louisville 03a0259p.06 01-2599 2003/07/30  Saginaw Bay Pipeline v. USA     Eastern District of Michigan at Detroit 03a0260p.06 02-1210 2003/07/31  USA v. Stovall     Eastern District of Michigan at Detroit 03a0261p.06 01-4064 2003/07/31  Eastover Mining Co v. Williams     State of Kentucky Agency 03a0262p.06 01-4244 2003/07/31  Bratt Enterprises v. Noble International     Southern District of Ohio at Cincinnati 03a0263p.06 01-4035 2003/07/31  Toms v. Taft     Southern District of Ohio at Columbus 03a0267p.06 03-4001 2003/07/31  Cooey v. Bradshaw     Northern District of Ohio at Cleveland 03a0264p.06 02-5176 2003/08/01  USA v. Bishop     Eastern District of Tennessee at Greeneville 03a0265p.06 01-2426 2003/08/01  USA v. Olender     Eastern District of Michigan at Detroit 03a0266p.06 01-6043 2003/08/01  Diversified Energy v. TVA     Eastern District of Tennessee at Knoxville 03a0266p.06 01-6100 2003/08/01  Diversified Energy v. TVA     Eastern District of Tennessee at Knoxville

Sorry, if you want a CLE today, then read my commentary above (American National and Property Cas. Co. v. Hartford Ins. Co.) regarding the interplay of alternative and inconsistent  defenses, underinsurance, umbrella coverage, and conflicts of interest.  If that doesn't keep you up at night, I don't know what will.  Mike S.

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Mike Stevens