Vol. 2003/28       

• KENTUCKY APPELLATE DECISIONS 
  FOR August 18 - 29, 2003
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• Kentucky SUPREME COURT Decisions 
  PUBLISHED - August 27, 2003
  

  AOC LINKS SUMMARIES OF DECISIONS

  2001-SC-000563-DG.pdf Size: 2401 kb Date: 8/27/2003 Grubbs v. Barbourville Family Clinic  Negligence, Wrongful Birth - Wrongful Death (amended 8/27/2003, rendered 8/21/2003) The plaintiffs allege that early diagnostic procedures revealed the birth defects, but that the physicians failed to accurately interpret and/or report the results.  The Grubbs's brought a negligence action against Dr. Jung and the Barbourville Family Health Center. The Grubbs's alleged that the defendants negligently failed to interpret the April 19, 1996 ultrasound correctly, that they failed to inform the Grubbs's that the ultrasound revealed the presence of profound birth defects, and that they failed to inform the Grubbs's of other prenatal diagnostic tests for spina bifida and hydrocephalus . The Grubbs's alleged that if they had been informed of the correct diagnosis at the time of the April ultrasound, they would have terminated the pregnancy; and therefore, the defendants' failure to timely notify them of the defects prevented them from making an informed decision to continue or terminate the pregnancy.   The facts of the Bogan case are similar. In late 1992, Gretchen Bogan learned that she was pregnant and sought prenatal care from the obstetricians of Altman, McGuire & Pigg, P.S.C., in Pike County. In December 1992, when the fetal gestational age was estimated to be twenty-two weeks, a pre-natal screening ultrasound was performed by an ultrasound technician . According to Dr. Altman's deposition, the ultrasound was administered to "confirm the dates and rule out obvious anomalies." Dr. Altman interpreted the ultrasound as normal and so advised Ms. Bogan . On March 31, 1993, Nathan Robert Bogan was born several weeks prematurely by caesarean section. The caesarian was necessary because a cyst had enlarged Nathan's head . As the cyst occupied most of his cranium, he has no eyes and no brain, although he has an underdeveloped brain stem that supports minimal autonomic functioning . He has a cleft palate and cannot speak.  The Bogans case was also consolidated with the Grubbs case and both were analyzed using traditional negligence principles.   The SC declined to create a 'wrongful birth' or 'wrongful life' claim.  "The divergence of views on damages reveals the flaws in the conclusion that a life may be considered a legally cognizable injury.  If we held otherwise, there would be questions regarding which incurable birth defects, left negligently undiagnosed from prenatal diagnostic procedures, should warrant recovery."  The Bogans have a breach of contract claim for the negligent diagnostic testing (ultrasound) and pain and suffering resulting from the c-section. Commentary:  I have none, and I am not sure what the difference is between the first decision and the amended decision since it was off-line by the time I read it.  An interesting legal and moral dilemma presented by these issues on the quality and right to life.  Anyone care to approach this case with an analysis, please feel free to do so, and I will publish your commentary so long as you sign it.  Mike s.

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - None
   

  AOC LINKS SUMMARIES OF DECISIONS

  None

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - August 29 , 2003
  
  

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-001685.pdf Size: 42 kb Date: 8/27/2003 Evans v. Com. Criminal - Search & Seizure; Expert Testimony   CA affirmed TC's denial of Defendant's motion to suppress evidence seized following the execution of a search warrant.  CA disagreed with Defendant's argument that the scope of the search warrant did not include the safe found in his apartment.  "A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found, including the authority to search through drawers, chests, closets, and containers where that object may likely be found."   Next, the TC did not abuse its discretion in denying Evans’ motion in limine.  Evans sought to prevent the police from testifying about methods and procedures commonly used in drug trafficking and in the consumption of drugs.  The TC properly held that such testimony is admissible assuming a proper foundation is laid.   2002-CA-000778.pdf Size: 25 kb Date: 8/27/2003 Fischer v. Fischer Business Law, Buy-Sell Agreement Validity on Termination CA reversed and remanded SJ holding, as matter of first impression, that partnership buy-sell provision which entitled a surviving partner to purchase the partnership interest of a deceased partner became unenforceable on date partnership was dissolved, even though partnership remained in existence for purposes of winding up business.  The partnership was dissolved and the partnership agreement was effectively revoked when Richard advised Todd in writing of his intent to dissolve the partnership. While the partnership still existed at the time of Richard's death, it existed only for the limited purpose of winding up its affairs. "In short, no one can be forced to continue a partnership against his will."  2002-CA-001471.pdf Size: 48 kb Date: 8/27/2003 Mitchell v. Com. Criminal Defendant's conviction for 1st Degree Trafficking reversed and remanded for new trial.  The cumulative effect of several errors denied Mitchell a fair trial.  (1) The prosecutor's "send a message" closing argument was improper.  "Neither the prosecutor, defense counsel, nor the court should relate to the jury the future consequences of a particular verdict anytime during a criminal trial. A prosecutor may not suggest that a jury convict or punish on grounds or for reasons not reasonably inferred from the evidence, nor may a prosecutor make a remark in closing argument which tends to cajole or coerce a jury to reach a verdict that would meet with the public favor."  (2) Officer's testimony about oxycontin was of questionable relevance and was not properly qualified as expert testimony pursuant to KRE 702.  (3)  Detective's testimony concerning previous drug buys from Defendant was "other bad acts" evidence not properly qualified pursuant to KRE 404(c).  Further, Detective's testimony was inadmissible "investigative hearsay".   2002-CA-001482.pdf Size: 29 kb Date: 8/27/2003                                          Edwards v. Hop Sin, Inc. Product Liability, Food Services, Septicemia and raw oysters Ernie Edwards got septicemia from a bacteria after eating raw oysters at a Louisville eating establishment and sued the owner under a products liability theory. The bacterium is naturally found in sea water and commonly found in oysters.  TC ruled that even if the bacterium was present it did not render the oysters 'defective' for products liability purposes and further ruled that the owner had not breached a duty to warn Ernest about the health risks posed by raw oysters. CA begged to differ and ruled the warning issue presents a jury question and sent the case back. "Courts have distinguished three types of product defect: (1) manufacturing defects or deviations from the product’s design that create unreasonable risks of harm; (2) design defects or unreasonable risks of harm inherent in the product’s design; and (3) warning defects or unreasonable risks of harm that could have been reduced or avoided by the provision of reasonable instructions or warnings." (1) and (2) clearly did not apply here but (3) presented a jury question.  Marketing raw oysters is not an unreasonable risk in spite of the bacterium.  "Although a reasonable consumer is probably aware that raw seafood poses a certain risk of mild illness, the ordinary consumer was not in 1998 and probably still is not aware of this much graver risk." Food for thought a/k/a Commentary.  If you knew Sushi, like I knew Sushi, then you would call the whole thing off, and not eat raw oysters.  Jest a LouisvilleLaw 'pearl' of wisdom.  Of course, how many want to eat at a food establishment which warns you might become seriously ill after consuming their culinary delights?   Have a nice day.

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - August 29,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-000956.pdf Size: 21 kb Date: 8/27/2003 Duncan v. Com. Criminal CA affirmed TC's denial of pro se Defendant's motion for relief pursuant to CR 60.02. 2001-CA-002157.pdf Size: 56 kb Date: 8/27/2003 Wheeler v. Com. Criminal - Search & Seizure CA affirmed TC's denial of Defendant's motion to suppress.  Affidavit upon which the search warrant was based did provide the issuing judge with a substantial basis for concluding that probable cause existed to search Defendant's residence.   2001-CA-002313.pdf Size: 26 kb Date: 8/27/2003 Adams v. Com. Criminal CA vacated and remanded Circuit Court's order denying inmate's petition for declaratory judgment wherein he sought relief from an alleged arbitrary denial of meritorious good time.   2001-CA-002443.pdf Size: 31 kb Date: 8/27/2003 Evans v. Com. Criminal - Forfeiture CA affirmed TC's order granting Commonwealth's motion for forfeiture.  The trial court did not err in ruling that the money seized from Evans’s apartment was subject to forfeiture in its entirety pursuant to KRS § 218A.410.  Same case as published CA opinion Evans v. Com., 2001-CA-001685, see above. 2001-CA-002476.pdf Size: 17 kb Date: 8/27/2003 Thomas v. Com. Criminal CA affirmed TC's denial of pro se Defendant's motion for relief pursuant to CR 60.02. 2001-CA-002490.pdf Size: 21 kb Date: 8/27/2003 Graves v. Com. Criminal CA affirmed Defendant's conviction for Possession of Drug Paraphernalia - 2nd Offense.  Police had probable cause to arrest Defendant. 2001-CA-002594.pdf Size: 25 kb Date: 8/27/2003 Long v. Morgan (Warden) Writ of Prohibition and the KOOL Database CA affirmed Circuit Court's denial of inmate's request for Writ of Prohibition or Temporary Restraining Order. 2001-CA-002676.pdf Size: 23 kb Date: 8/27/2003 Moore v. Moore Child Support, Written Agreement, Modification & Arrearages Reaffirms premise that court of appeals must give deference to trial court's discretion in child support matters.  Appellant did not show abuse of discretion and as such appellant was responsible for arrearages in child support. 2001-CA-002742.pdf Size: 35 kb Date: 8/27/2003 Jones v. Jones Divorce, Maintenance, Property Division Property acquired after separation but before entry of decree is presumed to be marital property pursuant to Stallings v. Stallings, Ky., 606 S.W.2d 163 (1980). 2002-CA-000127.pdf Size: 26 kb Date: 8/27/2003 Weick v. Weick Divorce, Child Support and Property Division When a married couple adopts a special needs child who receives SSI benefits, the SSI benefits are deemed an independent financial resource of the child for purposes of KRS 403.211(3)(d).  Therefore, it is ok to deviate from child support guidelines and order that neither parent is obligated to pay support in this situation. 2002-CA-000435.pdf Size: 37 kb Date: 8/27/2003 Faulkner v. Com. Criminal CA affirmed TC's denial of pro se Defendant's 2nd motion to vacate pursuant to RCr 11.42. 2002-CA-000757.pdf Size: 25 kb Date: 8/27/2003 Marsee v. Com. Criminal CA affirmed Defendant's conviction for theft and drug charges.  TC did not abuse discretion in denying continuance.  Fine was authorized by statute. 2002-CA-000874.pdf Size: 18 kb Date: 8/27/2003 Miller v. Com. Criminal CA affirmed Defendant's convictions for Escape - 2nd and PFO 1.  TC did not err in failing to order competency hearing.  Defendant was not entitled to choice of evils instruction. 2002-CA-001162.pdf Size: 43 kb Date: 8/27/2003 Mackey v. Mackey Divorce, Child Support Division of Expenses Court of Appeals reversed trial court ruling on child support.  Court of Appeals found that trial court focused on time each parent spent with child rather than which parent incurred most of the living expenses for the child.  Must focus on who bears the living expenses for child when determining child support. 2002-CA-001176.pdf Size: 59 kb Date: 8/27/2003 Conner v. Chilukuri, M.D. Medical Negligence, Appeal, Battery, Informed Consent Med-mal claim following examination under anesthesia resulting in two surgical procedures, a sphincterotomy and a hemorrhoidectomy.  Turned out there was more than met the doctor's eye, and the defendant doctor was unaware of a pre-existing defect in plaintiff's external sphincter muscle, believed to have been caused during a difficult child-birth twenty years earlier, which was 'unmasked' by the surgery. Plaintiff Conner sue claiming doctor's "failure to obtain her complete obstetric history, discover the defect in her external sphincter muscle, discuss/advise her of alternative treatment options and the risks associated therewith, and obtain her consent for the procedures performed."  Jury returned verdict for the doctor, and Conner appealed.  CA affirmed. CA first examined evidentiary ruling under KRE 403 pertaining to prior ob-gyn exams which the plaintiff wanted to keep out claiming any probative value was outweighed by the prejudicial impact.  CA found no abuse of discretion in TC ruling admitting these examinations. The plaintiff sought to show the doctor failed to excercise the degree of care and skill ordinarily expected of a reasonably competent colon and rectal surgeon and had offered expert testimony to show the defect in the sphincter was obvious.  Defendant sought to rebut this opinion and "simply sought to demonstrate that the defect was not as obvious as [plaintiff's expert's] testimony suggested, at least not so obvious that other physicians examining the same general area also failed to discover its existence."  The CA also rejected the argument that using the standard for ob-gyn exams to measure the standard for a colo-rectal surgeon was misleading and confusing as it related to the jury's instructions.  Juries are presumed to follow the instructions. Next, the CA did away with the plaintiff's error allegedly raised for the first time on appeal that she did not consent to the surgery and claimed a battery.  The CA then noted "[d]espite the fact that she did not include a claim of battery in her complaint, never attempted to amend her complaint to include that claim, failed to tender adequate instructions for a battery claim, and failed to request an instruction on battery when she objected to the trial court’s instructions, Conner now argues that the trial court erred when it failed to instruct the jury on battery because the evidence presented at trial was sufficient to warrant an instruction. We disagree."  The CA looked at CR 51 and stated "Because Conner failed to tender an adequate instruction or to state specifically the matter and grounds of her objection, she is not entitled to relief."  CA noted the instructions tendered were not "bare bones" and only included a negligence instruction; her position for an intentional tort was not adequately presented. Although this alone did not prevent plaintiff from preserving the error, plaintiff did not state specifically the grounds for her objections to the TC's instructions.  Finally, the CA said plaintiff was not entitled to the intentional tort instruction even though a party can amend their complaint even after judgment to conform to the evidence but only if the the issue was tried by the express or implied consent of the parties - not so here. Informed consent and lack of consent are similar, and by allowing the evidence in on informed consent did not equate to the parties' consenting to an intentional tort (lack of consent issue).  Furthermore, by not raising the issue earlier, the judge was denied the opportunity to rule on the issue. Commentary:  This case is a good read for the intricacies of trying cases and how both relevance and impact can shift depending on the purpose for which the evidence was to be used.  Normal ob-gyn examinations may have been relevant to show the condition was absent prior to surgery, and its relevance subject to some strict scrutiny on admissibility since the defect may not have been on the examining agenda of the ob-gyn doctors simply because it was not noted.  But, when your own expert emphasizes that the condition is obvious, then the defendant will jump on that opening and highlight that if it was so obvious why was it missed multiple times?  The gratuitous "obvious" put these other exams in a much more powerful light. All of us have heard the old saw that you write your instructions early on in the case rather than at the end.  I have never done it, but I have heard it time and time again. This case does highlight the problem in obtaining a complete picture of what transpires at trial from just the appellate opinion.  The case was hotly contested and many facts were in dispute.  There is no doubt that this was a well-tried and hard fought case by both sides which is not always apparent in appellate decisions, and the CA's analysis of how jury instructions are reviewed for error on appeal is instructive. MLS 2002-CA-001194.pdf Size: 21 kb Date: 8/27/2003 Transportation Cabinet v. McDonald Eminent Domain, Exceptions, Appeal CA affirmed award in eminent domain.  Issue addressed valuations based upon diminution in value per noise reduction wall, but timely exceptions not filed and issue not preserved for appeal. 2002-CA-001250.pdf Size: 30 kb Date: 8/27/2003 Wingler v. Com. Criminal CA affirmed Defendant's conviction for manufacturing methamphetamine.  1) Trial court did not err in failing to grant a motion for a directed verdict; 2) KRS 218A.1432(1) is not void for vagueness; 3) KRS 218A.1432 does not violate the prohibition against cruel and unusual punishment; 4) evidence that Defendant had manufactured methamphetamine in apartment and had regularly supplied co-defendant with methamphetamine was admissible; 5) Defendant was not entitled to an instruction regarding the weight to be given co-defendant's testimony; 6) no entitlement to penalty phase instructions on residual doubt, effect of a felony conviction, and parole eligibility. 2002-CA-001282.pdf Size: 37 kb Date: 8/27/2003 Snyder v. McCarley Civil Assault, Punitives, Appeals and Preserving Error Civil assault lawsuit was precipitated when defendant showed up at his ex-fiancee's apartment after midnight, and poorly handled the situation when his ex's male guest exited the bathroom by beating him with a retractable baton.  The guest fled cut and bleeding and claiming later he feared for his life.  Grizzly photographs were shown to the jury.  Jury rejected self-defense and awarded in addition to $25,000 pain and suffering and some medicals, $100,000 in punitives. CA rejected first cited error that plaintiff should not have been asked questions about defendant's wealth.  TC sustained defendant's objection, and no admonition requested.  Error not preserved on appeal. There was also no error in admitted evidence of plaintiff's forced entry and assault on his ex-fiancee even though she dismissed her claim since this went to the issue of credibility and the defendant's assertion of self-defense. However, the CA did have a problem with the punitive damages instruction noting the jury was allowed to award punitives without any guidance per KRS 411.186.  The jury instructions did not contain any of the factors under the statute, to wit: (a) the likelihood at the relevant time that serious harm would arise from the defendant's misconduct;  (b) the degree of the defendant's awareness of that likelihood;  (c) the profitability of the misconduct to the defendant;  (d) the duration of the misconduct and any concealment of it by the defendant; and;  (e) any actions by the defendant to remedy the misconduct once it became known to the defendant.  Commentary:   (1) This is the second opinion in this issue regarding the attorney's dilemma when the judge sustains your objection but the 'bell has been rung'.  Here, the wealth of the defendant was immaterial and the judge sustained the objection.  What are your options to preserve any error regarding prejudice?  Here the CA mentioned admonishing the jury.  Another option is to move for a mistrial (you know you probably won't get it, but it highlights your belief in the seriousness of the transgression).  Moving for a mistrial is routinely done when the aroma of insurance is wafted to the jury by the plaintiff, and presumably the same wafting applies when deep pockets and the financial resources of the defendant are brought to the jury's attention. (2) The punitive damage instruction needs to list the factors under the statute.  Kentucky is bare boned on instructions, but there must be some bones.   (3) Just to let you know that an old dog can be taught new tricks, I initially thought the defendant's wealth might be a relevant factor in an award of punitive damages, but my quick research showed I would have been mistaken in my assumption. "The third consideration in an award of punitive damages as set out in the Restatement is "the wealth of the defendant." Kentucky does not subscribe to the Restatement's third prong. Shield's Adm'rs. v. Rowland, 151 Ky. 822, 152 S.W. 943 (1913); Hensley v. Paul Miller Ford, Inc., Ky., 508 S.W.2d 759 (1974)." cited in Fowler v. Mantooth, 683 S.W.2d 250 (Ky.,1984). 2002-CA-001315.pdf Size: 22 kb Date: 8/27/2003 Vincent v. City of Powderly Condemnation, Sewer Easement CA affirmed  appeal from "an interlocutory judgment entered by the Muhlenburg Circuit Court finding that the City of Powderly had a right to condemn a sewer easement across a portion of Donald and Anna Vincent's property. The Vincents maintain that the court erred by entering this order as the city failed to enter into good faith negotiations with them prior to filing the condemnation action." "Although good faith negotiations are admittedly required, neither a survey nor an appraisal is mandated by statute or case law in order to satisfy the condemnor's obligation to negotiate in good faith, and we decline to create such a requirement." 2002-CA-001321.pdf Size: 26 kb Date: 8/27/2003 Theodosis v. Com. Criminal CA affirmed Defendant's conviction and 1 year sentence for Sexual Abuse - 1st.  No entitlement to directed verdict.  Alleged investigative hearsay error was not preserved.  Motion to suppress was properly denied.   2002-CA-001368.pdf Size: 24 kb Date: 8/27/2003 Byrd v. Lopez, M.D. Medical Negligence, Summary Judgment, Expert Opinions  CA affirmed summary judgment dismissing claims against doctor.  Plaintiff was required to have an expert opinion to support her claims against Dr. Lopez which included lack of informed consent and medical negligence for leaving breast implant fill valves in place for years longer than the manufacturer's recommended six month maximum.  "Kentucky law requires that a plaintiff alleging medical negligence prove that the treatment rendered failed to meet the degree of care and skill expected of a reasonably competent practitioner and that the negligence proximately caused the injury. Reams v. Stutler, Ky., 642 S.W.2d 586 (1982). As a general rule, malpractice generally "must be established by medical or expert testimony." Johnson v. Vaughn, Ky., 370 S.W.2d 591, 596 (1963). Byrd asserts that the fact that the fill tubes were left in far longer than the manufacturer recommended is sufficient evidence of negligence. The trial court stated that the testimony of an expert witness is required to supplement the manufacturer's insert in supporting a claim for negligence. Byrd's treating physician stated that he followed the manufacturer's inserts, and that it was his practice to remove the fill valves according to the manufacturer's directions. Dr. Laughlin did not state that Lopez failed to act as a reasonably competent practitioner should have. The trial court correctly found that this claim was insufficient to proceed to trial in the absence of an expert opinion affirmatively stating breach of the applicable standard of care." "The applicable standard of care required of a physician in disclosing information to his patient is that of the "reasonable medical practitioner." 13 Leibson, Kentucky Practice Tort Law, Section 10.20 (1995). An informed consent action "is in reality one for negligence in failing to conform to the proper professional standard...." Holton v. Pfingst, Ky., 534 S.W.2d 786, 788 (1975). Where a patient is provided with information generally advising her of the risks of a medical procedure, the informed consent requirement is satisfied. Hawkins v. Rosenblum, Ky.App., 17 S.W.3d 116, 119 (1999). While Byrd's expert witness Dr. Laughlin stated his standard of practice with regard to informed consent, and that he hoped that "the community of plastic surgeons" acted as he did, Laughlin did not expressly state that Lopez had breached the applicable standard of care. Absent such testimony, Byrd cannot proceed with her action." 2002-CA-001637.pdf Size: 35 kb Date: 8/27/2003 Shofner v. Baptish Healthcare Affiliates, Inc. Medical Negligence, Independent Contractor,  Respondeat Superior CA vacated and remanded TC's granting of summary judgment dismissing the claims against the hospital with respect to the emergency room physician's [Dr. Lawrence] employment relationship with the hospital.  CA concluded that the hospital exerted sufficient control over the methods and materials used by the doctor to raise a question about his status under agency theory as opposed to an independent contractor. Therefore, the court erred in entering a summary judgment in favor of the hospital on this disputed issue of an agency or employment relationship. Facts.  "The Shofners alleged that an emergency room doctor at the hospital, Dr. Richard Lawrence, was negligent in diagnosing their son's condition and that the negligence resulted in his death. In granting summary judgment, the circuit court concluded as a matter of law that the doctor was an independent contractor and that, therefore, the hospital could not be liable under the doctrine of respondeat superior. After reviewing the record in a light most favorable to the Shofners as we must, we vacate and remand accordingly. The litigation preceding this appeal consisted of a trial, a directed verdict, a previous appeal, a remand, and an entry of summary judgment. The facts involved a tragedy. On February 11, 1995, the Shofners took their six-week-old son, Joel, to the hospital. A nurse contacted Joel's primary care physician, Dr. Plavakeerthi Kemparajurs, and advised him that the child was crying continuously and was experiencing stiffening and rigidity. Dr. Kemparajurs, who had seen the child in his office the day before, refused to authorize payment of insurance for treatment of Joel by emergency room personnel. Nevertheless, Dr. Lawrence, who was on duty in the emergency room, examined Joel and diagnosed the child's problem as colic. Joel was not admitted to the hospital and was sent home. He died two days later from a seizure disorder." "The Shofners filed a wrongful death action against the hospital and Dr. Kemparajurs. Their claim against the hospital was predicated on the alleged negligence of both Dr. Lawrence and the triage nurse, Lavon Martin. Neither Ms. Martin nor Dr. Lawrence was named as a defendant in the lawsuit. Prior to trial, the hospital moved for partial summary judgment and argued that it was not vicariously liable for any alleged negligence of Dr. Lawrence. In support of its motion, it submitted a copy of its contract with Oldham Emergency Group, P.S.C., of which Dr. Lawrence was a member. The contract designated the group's doctors as independent contractors. However, the trial court found that the record did not contain sufficient evidence with respect to the doctor's relationship to the hospital to entitle the hospital to summary judgment at this juncture." Commentary:  This is not really a comment, but I thought you might want a little black-letter law CLE on the law cited by the court.  Here is a summary of the CA's recitation on ostensible agency and independent contractor for your reading enjoyment. "With respect to the Shofners' claim of apparent agency, the trial court concluded as follows:  Under Kentucky law the fact that a patient reads and signs an admission form containing an Independent Contractor clause regarding medical personnel is determinative on the issue of ostensible agency. Floyd v. Humana of Virginia, Inc., Ky.App., 787 S.W.2d 267, 270 (1989). Even if a patient is unconscious at the time of admission, if the hospital has taken action to notify the public about the status of physicians, an apparent or ostensible agency is not created. Roberts v. Galen of Virginia, Inc., 111 F.3d 405, 413 (6th Cir.1997) (reversed on other grounds by Roberts v. Galen of Virginia, Inc., 525 U.S.249 (1000). The test is not whether the patient read and signed the form containing the disclaimer, the test is whether the hospital took steps to notify the public about the status of the physicians.  . . . The Kentucky Supreme Court recently re-stated the many factors (indeed, matters of fact) to be considered in determining whether an individual is an employee or an independent contractor. Kentucky Unemployment Insurance Commission v. Landmark Community Newspapers of Kentucky, Inc., Ky., 91 S.W.3d 575 (2002).  In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among other, are considered:  (a) the extent of control which, by the agreement, the master may exercise over the details of the work;  (b) whether or not the one employed is engaged in a distinct occupation or business;  (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;  (d) the skill required in the particular occupation;  (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;  (f) the length of time for which the person is employed;  (g) the method of payment, whether by the time or by the job;  (h) whether or not the work is a part of the regular business of the employer;  (i) whether or not the parties believe they are creating the relation of master and servant; and  (j) whether the principal is or is not in business. (Emphasis added.)  Id. at 579. In applying these factors, the Court emphasized that no single factor is determinative and that every case "needs to be resolved on its own facts." Id. at 580. 2002-CA-001695.pdf Size: 39 kb Date: 8/27/2003 Burke v. Oldham County Board of Adjustment and Appeals Zoning, Conditional Use Permitb CA affirmed Oldham County Board of Adjustments and Appeals granting of a Conditional Use Permit (CUP or permit) to appellee Liter's Inc., allowing underground quarrying of limestone.  2002-CA-001735.pdf Size: 23 kb Date: 8/27/2003 White v. Gemmer Family Law, De Facto Custodian Partner of paternal grandfather of child can become de facto custodian when child has lived with partner for one year pursuant to KRS 403.270. 2002-CA-001973.pdf Size: 25 kb Date: 8/27/2003 Russell v. Com. Criminal CA affirmed Defendant's conviction for failing to register as a sex offender.  TC properly denied Defendant's motion to dismiss. 2002-CA-002210.pdf Size: 20 kb Date: 8/27/2003 McKinney v. Com. Criminal CA affirmed Circuit Court's denial of pro se Defendant's post-judgment motion for clarification of sentence. 2002-CA-002300.pdf Size: 22 kb Date: 8/27/2003 Hayes v. Com. Criminal CA affirmed Defendant's conviction for trafficking in cocaine.  The TC properly denied Defendant's motion to suppress. 2002-CA-002540.pdf Size: 24 kb Date: 8/27/2003 Ford Motor Co. v. Forman Workers Compensation We will have this summarized in the next issue.

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - August 22 , 2003
  
  

  AOC LINKS SUMMARIES OF DECISIONS

  2002-CA-000637.pdf        Size: 49 kb Date: 8/20/2003 Ryan v. Kentucky Farm Bureau Mut. Ins. Co. Apportionment and Nominal Parties CA vacated and remanded holding trial court improperly allowed jury to apportion fault to unknown defendant who was merely a nominal party.  This was a case of first impression in Kentucky. The co-executors of the estate "appeal from a judgment . . . which dismissed an uninsured motorist (UM) claim and awarded a partial recovery on an underinsured motorist (UIM) claim against Kentucky Farm Bureau Mutual Insurance Company (KFB). The estate primarily argues that the trial court erred by instructing the jury to apportion fault between the settling tortfeasor and an unknown defendant who had been constructively joined as a party. We agree with the estate that KRS 411.182 does not permit apportionment of fault against a nominal party who is not subject to personal liability or has not settled with the plaintiff. Hence, we vacate the judgment, and we remand for entry of a new judgment." The facts of this case are instructive of the interplay of UM, UIM, settlement, and unknown defendants. The fatality occurred when the insured defendant (Ashby) was passing a car on the interstate when a motorcyclist veered out in front of him and Ashby crossed the median to avoid the motorcyclist.  Ashby then hit the car in the on-coming lanes killing the plaintiffs' decedents.  The motorcyclist did not make contact with any vehicle and left the scene. Prior to suit, the estate settled with Ashby for his policy limits.  The estate sued Kentucky Farm Bureau under the decedent's own insurance policy for underinsured motorist benefits (UIM).  KFB filed a third party complaint against the unknown motorcyclist and constructively served him/her via warning order attorney.  The estate then amended its complaint to assert a UM claim against KFB for the negligence of the unknown motorcyclist.  The matter proceeded to trial, and a directed verdict was eventually entered dismissing the UM claim against KFB since there was no physical contact with the motorcyclist (the hit and run rule's continued viability was recently affirmed by the Supremes in Burton v. Kentucky Farm Bureau Ins. Co. )   However, the matter went to the jury with an instruction to apportion fault between Ashby the settling defendant and the unknown motorcyclist (even tho the UM claim was gone).  The jury apportioned fault 50/50 between the Ashby and the motorcyclist.  (Presumably, KFB did not advance the UIM under Coots v. Allstate since KFB was a named party and Ashby was not).  It turned out that Ashby was not considered an "underinsured motorist" on one of the claims since his per person limits covered the damages for one of the decedents after apportionment. The CA stated the apportionment statute applies to contractual UIM claims since they do sound in tort.  Judge William Knopf, writing for a unanimous court (Judges Barber and Combs) noted that KRS 411.182 allows allocation of fault to only two classes of tortfeasors: parties to the action, including third-party defendants, and persons who have been released from liability through an agreement with the claimant.  CA rejected KFB's arguments, among which were decisions in which apportionment was allowed when the defendant/party was personally served but dismissed for reasons other than fault and the civil rules for constructive service over unknown parties.  CA then noted "when viewed in its entirety, that statute [KRS 411.182 - apportionment] limits allocation of fault to those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement." "[W]e hold that the unknown motorcyclist cannot be deemed a party to the action for purposes of apportionment and that the trial court erred in so instructing the jury. Because there is no dispute concerning the amount of damages, the jury found Ashby at fault and there were no other parties who were subject to liability, the estate is entitled to recover the entire amount of its UIM claim against KFB. Furthermore, since no fault can be apportioned against the unknown motorcyclist, we need not address the trial court's dismissal of the estate's UM claim." Comments/Opinions:  This case is not final.  It is a case of first impression, and presumably the Supremes will be able to lean in with their comment.  I have heard that this may be the subject of a Petition for Rehearing before the Court of Appeals.  Note that the jury only knew Farm Bureau was plaintiff's insurer but nothing about the type of coverage.  Jury apportioned fault equally against Ashby and the motorcyclist.  $360,688 for the husband (which implicated UIM after apportionment); and $107,332 for the wife (which did NOT implicate UIM after apportionment).  Fault was 50/50 regarding Ashby and the motorcyclist. Without wading into the case citations and statutes in laborious detail, I have a significant problem with the CA's legal analysis proving the maxim that "bad facts make bad law".   For those curious few, the UM benefits available were $600,000.  This trial was previously reported by the Kentucky Trial Court Review in Jan 2002 (6 KTCR 7), and the facts reported then were much more interesting than those contained in the appellate decision and contained references to the underinsured defendant's consumption of alcohol, marijuana, and a female passenger in the defendant's car flashing truckers down the highway.  However, these were in stark contrast to the fact that this accident was a fatality. Although inconsistent defenses are not disallowed, they can be 'problematic'  strategically and difficult to comprehend in the context of a UM/UIM situation such as this where the insurer states on one hand we don't have to provide you UM coverage since there was no physical contact to implicate coverage in a contractual setting, but on the other hand we will assert this unknown person's negligence for apportionment purposes to reduce our exposure under the UIM provisions of the policy in another part of the policy.  This case highlights that the contractual world of insurance coverage does not marry up well with the tort world of liability. Would this result have been any different if there had been a named driver sitting in the court room rather than the plaintiff's own insurer who had not advanced their policy limits under Coots???  The same result should follow logically since the CA's analysis in this case (Ryan) did not focus on the status of the third party plaintiff but  rather the status of  the third party defendant and personal jurisdiction thereon.   Here are some thoughts. (1)  The purpose behind the "hit and run" rule is to prevent fraud in the one car accident situation, but here we have ample witnesses that confirm the "hit and run" which would have then implicated UM coverage and which would have avoided the problem of apportionment.   (2) Once the UM claim is thrown out, then you have the insurer taking the defense one step further and using the underlying negligence of unknown driver who made no physical contact to reduce its UIM exposure.  If there had been a slight contact, then coverage would have been implicated (please note the contact must be with the plaintiff's vehicle such that in this case a gentle tap involving the motorcyclist and Ashby still would not have changed anything). (3) Judge Knopf's analysis is fuzzy and tries to fit a round peg in a square whole.   (a)  The CR's clearly  provide for constructive service on an unknown party; (b) KRS 411.182 makes no distinction on jurisdictional prerequisites in the form of constructive service versus personal service versus in rem, quasi in rem, etc. etc.; (c) the cases cited herein by KFB allowed apportionment against a party dismissed for reasons other than fault or liability to the plaintiff; (d)  no apportionment exists for a nonsettling nonparty; (e) and the liability or negligence of the defendant underinsured driver seems to have been left out of the equation.   To put it another way, the defendant/unknown party's status as a nominal party and personal jurisdiction over him/her are not the issues, but rather basic fairness for compensating a plaintiff for loss from the person or persons found to be at fault in proportion to their fault.  Ignore, the existence of the UIM policy, and is it fair for Mr. Ashby who veered to avoid a motorcyclist whom he claimed was negligent now required to bear ALL the damages of the plaintiff, not just those damages attributable to Mr. Ashby's negligence??  What about the ethical quandry placed upon KFB regarding the provision of UM and UIM coverages and the putative inconsistent defenses (admittedly the defenses are not inconsistent on their face, but when you scratch the surface they clearly are inconsistent). Don't forget Justice Leibson's landmark opinion in Hilen v. Hays, wherein Justice Liebson (in his majority opinion rather than his concurring opinion filed in the same case) abolished the affirmative defense of  contributory negligence and supplanted it with the  comparative negligence stating that while it  "calls for liability for any particular injury in direct proportion to fault. It eliminates a windfall for either claimant or defendant. . . ."  Hilen v. Hays, 673 S.W.2d 713, 718 (Ky.,1984).   (4) The real rub in Ryan is allowing an insurer to sell coverage which leads the policy holder believing they have protection under all circumstances when  injured by an underinsured motorist or an uninsured motorist, or as their advertising claim states "All Around Coverage. . . All Around Kentucky."    Now the insureds must learn  there is no coverage for the unknown motorist and the insurer can play one coverage against the other to the detriment of the insured who paid a premium thinking all bases were covered.   (5)  The allocation of fault statute is NOT limited to those who "actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement"  since significant sums in the form of damages was at stake.  Although the transcript was not reviewed or actual tactics examined herein, I think you can rest assured that counsel for KFB actively asserted a claim against this unknown motorcyclist and was obviously effective since the jury divided fault equally between the two defendants.  Be further assured that counsel for the plaintiffs probably actively resisted fault being placed on an empty chair upon which there would be no recovery.  Therefore, so much of the analysis of the CA leading you to be believe the assertion of fault was no actively pursued does not match up to the verdict. (6)  One possible solution (even though the CA is not supposed to make law but interpret existing law) would be in these very limited circumstances to deny the UM carrier from taking a mutually exclusive position - to wit:  insurer cannot decline UM coverage by claiming in effect the unknown person did not exist since the insured was not actually hit AND then later breathe life into that unknown person and resurrect him as a party and place him in an empty chair in court for apportionment purposes.  The courts might hold as a matter of public policy and reasonable expectations when the provisions are read en toto, that the insurer who drafted the contract has a duty of treating its insureds in good faith and it would not be good faith to rely upon a technical exclusion based on lack of proof of contact to deny coverage while asserting there was proof of the unknown motorist to reduce exposure under UIM. And let us not forget the CA's rejection of efforts to presume an unknown motorist had minimum limits.  Baker v. Kentucky Farm Bureau Mut. Ins. Co., 2002 WL 253806, Ky.App.,2002 (not final). "Above all else, court-made law must be just. It must accommodate justice by evolution or anticipate revolution.  'Justice, justice shall you pursue, that you may live in the land which God gives you.' Deuteronomy 16, 20. To those who speculate that comparative negligence will cost more money or cause more litigation, we say there are no good economies in an unjust law."   Hilen v. Hays, 673 S.W.2d 713, 718 (Ky.,1984).  Again, the doctrine of unintended consequences is running amuck, and the courts are now reaping what has been sown years ago when our appellate courts attempted to graft tort law onto contractual law by saying UIM/UM cases 'sound in tort' and trying to resolve these insurance coverage issues with liability concepts such as fault, indemnity, apportionment, allocation, UM, UIM, Coots advancement, stacking, etc. etc. MLS 2002-CA-002017.pdf Size: 52 kb Date: 8/20/2003 Jones v. Adecco Staffing Employment, Slander Jefferson Circuit Court, Judge Clayton CA affirmed SJ dismissing temporary employee's slander claim against temporary employment agency that had employed her in the past concerning statements made to employment agency to which she was applying regarding alleged threatening remarks to other employees and her "high horse."   CA held alleged statements were protected by absolute privilege of truth and pure opinion and was not slander.  Note that even though the TC had granted SJ based on insufficiency of evidence, the CA opined "Despite the circuit court's error in granting summary judgment for lack of evidence, we hold that the decision was harmless because the statement does not constitute slander per se and its publication was subject to both the absolute and qualified privileges."

   

   

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - August 22,  2003
  Note.  We were running behind, so I  took the liberty of doing short and quick key word summaries for some of the other's cases.  They are brief and could have been much better, but they are free and available now.    MLS
  

  AOC LINKS SUMMARIES OF DECISIONS

  2000-CA-000641.pdf     Size: 18 kb Date: 8/20/2003 Griffin v. Strand Properties, LTD., Debtor in Possession Punitive Damages, Default Judgment CA vacated and remanded punitive damage award noting that "while the reprehensibility of the conduct was great, in that Griffin recklessly put Strand in a position that risked the very existence of its business, we must conclude that the other two Gore factors may not justify such a large amount of punitive damages. However, as the judgment below was a default judgment, we believe it is appropriate to remand the matter to the circuit court for a hearing, and instruct the circuit court to consider the issue in light of the above-cited cases." Those factors are 1) the degree of reprehensibility of the defendant’s misconduct, 2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages awarded, and 3) the difference between the punitive damages awarded . . . and the civil penalties authorized or imposed in comparable cases. 2001-CA-000619.pdf Size: 24 kb Date: 8/20/2003 Thomas v. Com. Criminal CA affirmed pro se appeal for defendant claiming his conviction and fifteen year sentence were impermissibly based on involuntary guilty plea. 2001-CA-002000.pdf Size: 37 kb Date: 8/20/2003 Estate of Carl Mabry v. Commercial Bank of Grayson Estate Sale - Distribution of Proceeds upon sale of secured property in insolvent estate CA affirmed secured creditor applying excess proceeds from sale of secured real property to satisfy other secured debts owed by the insolvent decedent. 2001-CA-002394.pdf Size: 33 kb Date: 8/20/2003 Hazlett (now Albers) v. Hazlett Divorce, Property Settlement Agreement, Setting Aside Property Settlement Agreements are interpreted under contract law and in interpreting same, it must be determined if the terms are ambiguous.  Here, agreement was not ambiguous as to obligations of the parties respective debts, but was silent on the marital debts.  CA affirmed TC's finding that the VISA debt was marital debt incurred to wife's benefit and she should pay same, and agreement was not ambiguous regarding division of investment accounts.  2002-CA-000594.pdf Size: 31 kb Date: 8/20/2003 Rucker v. Com. Criminal Pro se appeal from an order which denied his motion for leave to file a second RCr 11.42 motion and a motion to vacate, correct or set aside his conviction pursuant to RCr 10.26, RCr 11.42, CR  60.02(f), and CR 60.03. Having concluded that the trial court properly denied Rucker's motions, CA affirmed.  Issues regarding ineffective assistance of counsel and competency hearing should have been raised in first RCr 11.42 motion. 2002-CA-001106.pdf Size: 20 kb Date: 8/20/2003 Shouse v. Shouse Divorce, Custody, Appeal No abuse of discretion when sole custody is awarded to mom when court of appeals finds no abuse of discretion on part of trial court in awarding same. TC did not abuse its discretion in granting wife sole custody rather than joint custody of child.   "The principal consideration in every case involving custody is the best interest and welfare of the child. Even though neither party sought joint custody, it was incumbent upon the trial court to consider all potential arrangements in determining the one best suited for the child. See, Squires v. Squires, Ky., 854 S.W.2d 765 (1993)." Comment:  Another shot on preserving the record from a CA, to wit: "We have not received a transcript or videotaped recording of the evidence. Nor has a narrative statement been provided. Therefore, we are bound to conclude that the trial court's findings are supported by substantial evidence.  Dillard v. Dillard, Ky.App., 859 S.W.2d 134 (1999)."   2002-CA-001160.pdf Size: 37 kb Date: 8/20/2003 Lovings v. AKZO Nobel Coatings, Inc. Civil Rights Discrimination Appeals from summary judgment dismissing employee's claims against his former employer filed pursuant to the Kentucky Civil Rights Act, KRS Chapter 344 et seq.  After reviewing the record in a light most favorable to employee, CA concluded that an issue of fact exists for a jury to decide whether Akzo's failure to promote Lovings and its termination of his employment may have been motivated by an improper purpose (racially). Thus, with respect to the claims of failure to promote and retaliation, CA vacated the summary judgment and remand. 2002-CA-001343.pdf Size: 33 kb Date: 8/20/2003 Butler v. South Government Employment, Back Pay CA affirmed SJ dismissing employee's claims for back pay following his leave of absence claiming he was promised leave of absence with pay.  "Kentucky Constitution barred his claim. Section 3 of the Kentucky Constitution provides in relevant part that 'no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services.' Emoluments include profit from office, employment, or labor; compensation; or perquisites, fees or salary. [In Roland v. Jefferson County Fiscal Court, this Court stated that Section 3 prohibited "the payment of public funds except for the actual performance of public services." Citations omitted.  2002-CA-001528.pdf Size: 24 kb Date: 8/20/2003 Collins v. Venard Real Property, Easements CA affirmed easement over property - going back old deeds and determining if county road was old easement and whether or not it had been abandoned.  This is the third time this case has been up on appeal, and the CA rejected the argument that the trial court had not followed the law of the case. 2002-CA-001556.pdf Size: 18 kb Date: 8/20/2003 Klockars v. Anderson Law in the Case, Dicta This appeal by the hospital in a peer review case raised the issue of whether written statements made by the trial judge in his ruling regarding subpoenas and witness production in the peer review process were binding as the law in the case in further proceedings involving the parties.   "While the trial court's dicta may be indicative of its opinion on the matter presented, it is not bound to follow previously expressed dicta, nor does it preclude the litigant from subsequently appealing the issue when, and if, the trial court makes a ruling adverse to the litigant's interests. Since the trial court's statements regarding the hospital's subpoena power have no binding effect on the parties, the language need not be stricken from the judgment nor the judgment disturbed."  Affirmed. 2002-CA-001612.pdf Size: 28 kb Date: 8/20/2003 Gilbert v. Malempati, M.D. Medical Negligence, Judgment NOV, Admissibility of Evidence CA affirmed judgment in favor of doctor in medical negligence case and TC's denial of new trial and judgment nov.   Plaintiff had been treated for severe ulcer disease for many years and had several procedures performed on her by Dr. Malempati - gastrectomy, an esophaogastroduodenoscopy, and a Billiruth II in which a portion of the duodenum was removed. Howeve, instead of reconnecting the stomach to the duodenum, Dr. Malempati left a duodenal stump following this last procedure.  Dr. Sachatello operated on plf  and discovered that the duodenal stump was completely blown-out and that the ampulla vader was almost free floating. Dr. Sachatello also performed a second surgery, and plaintiff  spent approximately three months recuperating in the hospital.  Pending trial, plaintiff died of an unrelated heart condition. CA concluded no abuse of discretion and will not usurp jury's determination of no negligence when difference of opinions exist as to negligence by parties' experts and treating physicians.  TC did not err in ruling inadmissibility of evidence from second treating physician that he although he believed Dr. Malempati had malpracticed this time, he had testified for him in another case.  Also judge was within his discretion on ruling other medical malpractice claim was inadmissible under KRE 403. Commentary.  At the end of this decision was a small paragraph consistent with the line of cases now emanating from the various courts of appeals  about preserving the record.  "In her second allegation of improper conduct by Dr. Malempati's attorney, Gilbert argues that counsel 'crossed the line when she insinuated through her questioning that Ms. Payne and Ms. Gilbert shared a homosexual relationship.' She asserts that the matter was irrelevant and prejudicial. In reviewing this issue, we first note that no questions relating to homosexuality were asked by counsel. Second, Gilbert's counsel did nothing to preserve error such as requesting that the jury be admonished or that a mistrial be declared. In short, we do not perceive either error or counsel misconduct in connection with the questions and testimony involving this matter."   2002-CA-001660.pdf Size: 22 kb Date: 8/20/2003 Hunter v. Com. Criminal CA found no abuse of discretion in probation revocation hearing and affirmed. 2002-CA-001718.pdf Size: 20 kb Date: 8/20/2003 Owensboro Metropolitant Board of Adjustment v. Hickey Zoning Variance CA reversed Board of Adjustment denying appellees' request for a variance from local zoning regulations.