LouisvilleLaw.Comment (editorial and opinion digesting this case)
On a philosophical framework under the guise of reasonable expectations premised solely on labels and not on policy exclusions which are difficult to understand by the non-lawyer, I submit to you this decision does not make sense.  Yes, a narrow reading of the statute supports Judge Tackett's reasoning and analysis, and we all know the role of the COA is not to make law but to interpret it with a little prognostication of 'what would the Supremes do?"    However,  there are some simple reasons that need/should be addressed:

• Uninsured motorist benefits have 'traditionally' included the 'hit and run' driver as physical contact has always been a reasonable requirement permitted by the courts to avoid fraudulent claims.  [Albeit, it is under attack every few years by a few noble lawyers with the same persistence that eventually spelled the demise of contributory negligence.]
• When someone purchases liability coverage, uninsured motorist benefits, AND uninsured motorist benefits, they would anticipate that when it comes to a liability claim by or against them that there are no breaches in their wall of protection.  The fine print, however, says otherwise.  
• With the 'phantom motorist without contact' exclusion, plus the case (not cited) which did not allow a motorist to stretch the assumption that a hit and run driver would have at least had minimum liability insurance, then the concept as propounded by Safe Auto to provide 'minimum coverage' now means 'no coverage.'  
  
  And where will the next exclusion come from and is this exclusion reasonable?  Since we all know that red cars go faster than other cars, then maybe we ought to assume red cars are at fault and should therefore exclude coverage for UM benefits for red cars since they are obviously at fault in an accident.  Silly syllogisms don't help, do they?
• And do not forget the twist of the knife inserted by  Kentucky Farm Bureau v. Ryan in which KFBM which took this inconsistent defense at trial, to wit:  In a multiple car interstate fatality, KFBM relied upon the 'no contact phantom driver rule' to avoid uninsured motorist benefits, but then 'third partied' for apportionment the phantom motorist in defense of the underinsured motorist claims against one of the 'known' drivers.
• I understand Dan Siebert will be seeking to take this up to the Supremes with the law firm of Frost Brown & Todd presumably will be  continuing to protect the interests of Safe Auto.  Will the Supremes continue their 'anti-insurance' decisions and reverse the COA or will Justice Cooper and his side of the Court hold sway.  Other possibilities exist as to whether there will be amicus briefs and by whom, and more importantly will someone pick up the phone and call their representative at Frankfurt and say 'change the law! it's stupid and I want my coverage darnit!'
• I know you hate hearing my rending of Holmes' and the common law, so I won't use it this time.  However, this is a Dickens of a situation developing when drivers attempt to protect themselves from those with no or not enough liability insurance and a multitude of 'exclusions' whittle away at that 'phantom' coverage.  
  
  "If the law supposes that," said Mr. Bumble," - the law is a ass - a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience -- by experience."  From Oliver Twist by Charles Dickens.
  
  Mr. Bumble is no Oliver Wendell Holmes and Oliver Twist is no legal treatise, but their point on a law of common principle is the same as they both see 'eye to eye' on this issue nonetheless.
  
  A little more experience, reality, and common sense and a little less stultifying syllogism would suffice.  If the Home of Minimum Coverage is allowed to extend the rule of no coverage, then will there no longer be insurance all around Kentucky and all around your family, friends, and loved ones.

Michael Stevens, Editor

Estate appeals in this medmal case alleging TC erred in including nonsettling nonparties in the apportionment instruction in the trial of this action.  CA agrees and reverses and remands.

Decedent underwent bariatric weight reduction surgery in Jefferson County during which his stomach was perforated. He returned to his home in Laurel County to recuperate and some days later went to the ER complaining of severe pain. The next day, decedent was transferred back to the hospital at which the initial procedure was performed where the perforation was discovered and decedent was treated for a massive infection. He died a few days later.

The estate filed an action against the initial surgeons and hospital in Jefferson County and the instant action against the emergency treating doctors and hospital in Laurel County. The Jefferson County action was tried first in which the initial surgeons were held not liable and therefore, no apportionment of blame was made as to the Laurel County parties. The Laurel County action was held in which the Jefferson County surgeons were included for apportionment purposes. The jury returned a verdict that one Laurel County doctor was not at fault and one was 5% at fault; and that one Jefferson County surgeon was 10% at fault and one was 85% at fault. The estate was awarded 5% of $95,000, or $4,750.00.

Each set of doctors had to be tried in their respective counties. As the Jefferson County docs tried the case, they were nonsettling nonparties in Laurel County. A case on point, interpreting KRS 411.182, holds that nonsettling nonparties should not be included for apportionment. Case reversed and remanded.

Held: purchasers of unpaid property tax bills are entitled to recover attorney's fees pursuant to KRS 134.420(1). That statute provides that a lien imposed by the state, county, city or taxing district shall include "reasonable attorney fees." KRS 134.490(2) permits the private purchasers to legally enforce liens imposed under KRS 134.420(1). Accordingly, the Court of Appeals held purchasers "necessarily" have right to collect attorney's fees.

The COA ruled against the purchaser on their claim that the trial court's award to the Revenue Cabinet of a share of the proceeds of sale was arbitrary and speculative. Noting that the Appellant's had not properly preserved the issue for appeal, the COA went on to state that the Appellant's lacked standing to bring the claim since there was no case or controversy between the purchaser and the Revenue Cabinet since the purchasers award was in no way diminished or otherwise adversely effected. 

CA affirms TC ruling in foreclosure sale valuation case.

Purchasers of real property in a foreclosure action appealed, arguing that TC erred in not awarding attorney fees and in not awarding more on their damage claim. CA holds that award of attorney fees was within the court's discretion and this discretion was not abused. Their remaining claim was measured at fair market value, not replacement value as claimed. Affirmed.

The Appellant sued the City of Eddyville in Lyon Circuit Court challenging liens placed on five lots pursuant to a street and sewage assessment in 1994. The Appellants purchased the lots in 1996, and a title examination failed to reveal the encumbrances that were not recorded at the time of purchase. The city later made demand for payment. 

The COA rejected Appellant's claims that the city's failure to record the assessment ordinance until six years after its enactment rendered it ineffective, holding the ordinance was effective upon publication. The COA also rejected the Appellants' claim that the liens were invalid because they referred to KRS sections 76.172 and 107.160, which do not apply to Eddyville and cities of similar size. The Court characterized this as "harmless error."

Lastly, the Court rejected the Appellant's claim that a genuine issue of material fact existed as to whether the city clerk misinformed the Appellant's title examiner about the existence of the unpaid assessments. The Court held that the Appellants' only evidence on this point was the title examiner's deposition testimony as to his usual habit and custom of calling the city clerk's office when conducting such examinations. Such habit and custom evidence is excluded in Kentucky courts pursuant to Burchett v. Com, 98 S.W.3d 492 and KRE 403. The Court noted that the Appellants were at least on inquiry notice of the assessments since they previously owned adjoining lots when the assessment ordinance was enacted and had attended public hearings on the ordinance.

2003-CA-002133.pdf
Judge:  JOHNSON
AFFIRMING
Date: 1/28/2005
NOT TO BE PUBLISHED

DITTOE    V.    DITTOE
FAMILY LAW - Child Support and Maintenance (Bonus as Income)

Mom appealed from TC orders following remand from CA for TC to consider Dad’s employment bonus income in calculating CS and awarding maintenance.  Mom also appealed TC’s distribution of Dad’s non-qualified pension. 

Mom raised several issues regarding TC’s award of child support. She argued that because there was no motion to modify future child support, TC erred in setting a child support award effective after the original trial date and that the award was not based on the parties’ earning capacities. Since CA vacated TC’s prior judgment, on remand TC made its determinations as if the parties had been granted a new trial, because  “when a judgment is reversed on direct appeal, it is as though it never existed.” Thus, TC was not required to wait for one of the parties to file a motion to set the child support award.  But since TC was allowed on remand to start from the beginning in setting the child support award, there was no award to modify. TC was correct in using the historical account of the parties’ incomes and potential for income, rather than having to rely on estimations of projected income. It was proper for TC to set child support from the date of dissolution through the present. Thus, TC, in starting over, correctly used this information to set equitable child support for the children based on the instructions from CA. 

Mom also argued that TC erred when it granted Dad 100% credit against his back child support for his prior payments of school-related fees for the children, as previously ordered by TC as a method to allow the children some benefit from Dad’s bonus income.  Because TC on remand included Dad’s bonus income in the child support award, it was proper for TC to give Dad credit for these payments. Otherwise, Mom would have received a “double recovery” from Dad’s bonus income--once as income for child support purposes and again as payment of other expenses. 

Mom next argued that TC’s award of maintenance upon remand should have been based on the formula found in Atwood v. Atwood, 643 S.W.2d 263 (Ky.App. 1982).  CA held that the method provided in Atwood is only a recommendation and that TC is not required to follow that formula in making a maintenance determination. Under KRS 403.200(1), a trial court has discretion to award maintenance where a spouse lacks sufficient property, including marital property apportioned to her, for her reasonable needs, and is unable to support herself through appropriate employment. If a spouse is entitled to a maintenance award, factors relevant to determining the amount of the award include the financial resources of the party seeking maintenance, the time necessary to acquire education and training to find employment, the standard of living established during the marriage, the duration of the marriage, the age and physical and emotional condition of the spouse seeking maintenance, and the ability of the paying spouse to meet his needs.  A TC has broad discretion in deciding whether to award maintenance in the first instance, as well as in determining the amount and duration of a maintenance award.  CA held that, under the circumstances of this case, the TC’s award of maintenance of $4,000.00 per month for two years and one month to Roberta was not an abuse of discretion, nor was there an abuse of discretion in the duration of the maintenance award as it extended for one year after Mom’s graduation from college.

Mom lastly appealed the division and distribution of Dad’s non-qualified pension plan,  arguing that her share of the distribution should be taxed at her marginal rate which was 15% at the time the money should have been distributed. Mom asserted that she should not be penalized by having to pay taxes on the funds at Dad’s significantly higher rate. Dad testified to TC that this plan was cashed out to him because he was terminated from his employment. Upon that event, federal law required that it be paid out to only the holder of the account and taxed at the applicable rate. Because this was not a tax-free distribution but treated as income to Dad, CA agreed that Mom was entitled to receive only her share of the after-tax value of the fund, as that was the net value of the asset Dad received.  TC affirmed in all respects.

2002-CA-000797.pdf
Judge:  DYCHE
AFIRMING
Date: 1/28/2005
NOT TO BE PUBLISHED

SHIPLEY  V. SHIPLEY
FAMILY LAW - Child Support

Mom appealed from TC’s order reducing Dad’s Child Support obligation and allocating tax exemptions and attorney fees to Dad.  After Dad’s second divorce, Mom and stepmom colluded to have Primary Residential Custodian status taken from Dad and given to Mom.  Although TC did transfer PRC Status  to Mom, TC recognized Mom’s “manipulation and misuse of the court system” and made the child custody and tax exemption and attorney fee allocations as sanctions for this behavior. 

CA majority held that substantial evidence existed that Mom had abused the system, and TC acted within its discretion in reducing Dad’s CS and allocating tax exemptions and attorney fees as a result. 

DISSENT:  “KRS 403.211(3) requires a trial court to make a written finding that application of the guidelines would be unjust or inappropriate in a particular case and it lists seven situations justifying deviation. Misconduct by either party is not listed as a ground for deviating from the guidelines...  Child support exists for the child’s benefit and should not be reduced merely as a sanction for the bad behavior of a parent. While the trial court properly assessed attorney fees against [Mom}, KRS 403.220, and was within its discretion to allocate the dependent tax exemptions to [Dad], I would find that the trial court abused its discretion by deviating from the child-support guidelines.”

Divorce decrees are given a special deference in Kentucky and cannot be reversed “without clear and convincing proof of an utter lack of jurisdiction.”

Appellant was dismissed from her position because her employer was unable to accomodate her disability.  She unsuccessfully pursued her dismissal before the Personnel Board and subsequently filed an application for disability retirement. The hearing officer denied her application on the basis she had failed to comply with the statute of limitations for filing an application.  The hearing officer ruled Appellant was not precluded from filing both claims simultaneously.

In presenting her claims before the TC, Appellant argued the statute of limitations under KRS 61.600(1)(c) should have been tolled while she pursued her claims before the Personnel Board because filing such claims simultaneously would have required her to take a position against herself.  The TC held that KRS 61.600 only required the application be on file within twelve months and that this was not a violation of Appellant's equal protection and due process rights.  The TC held the requirement that an administrative agency comply with its respective statutes (including statute of limitations requirements) does not constitute arbitrary or absolute power.  Finally, TC held Appellant's pursuit of her claims pursuant to KRS 61.600 had not prevented from pursuing an action under the ADA.

CA affirms TC dismissal of plaintiff's second cause of action involving a single auto negligence claim.

In action #1, plaintiff/appellant sought recovering for property damage in an auto collision.  Plaintiff/appellant received a default judgment and satisfaction up to the district court's jurisdictional limit. She then filed an action in circuit court for personal injuries sustained in the collision.  CA noted that she made some interesting arguments for an exception, but that the long-standing rule was that the first action was brought in her name and she received a recovery, so no double-dip.