Ms. Pedigo retained the legal services of Mr. Breen way back in 1992 when he advertised his plans to pursue a class action lawsuit against breast implant manufacturers for defective products.  She claims she took her original medical records to his office for review, and that later he declined to represent her yet never returned her records, despite repeated requests that he do so (he claims she never brought him those records).  Several years passed, during which time Ms. Pedigo sought the services of other attorneys for her medical problems, but the lack of her original medical records precluded her from joining class action suits against the manufacturers.  She eventually settled with 3M for $50,000 in 1998 but later discovered her settlement would have been five times that amount had she been able to participate in the class action suit. 

In 1999, she brought suit against Mr. Breen for legal negligence, arguing that the date of her 1998 settlement was when he damages ceased to be speculative and thus began the statute of limitations.  The trial court and the CA both ruled she filed against Mr. Breen outside the SOL of one year as per KRS 413.245.  The Supremes took discretionary review and held that professional negligence claims do not accrue until there has been a negligent act and reasonably ascertainable damages are incurred.  It found that she was unable to ascertain her damages until she reached a settlement with 3M, and since she had filed against Mr. Breen within one year of that settlement, her suit against him fell within the applicable SOL.  The Court noted that this ruling illustrates the desirability of strictly construing the occurrence rule and requiring that all tort elements be fully developed.   It also serves public policy by allowing parties an opportunity to seek mitigation of damages by pursuing an underlying claim and by leaving the professional negligence claim open until the underlying claim is concluded. 

The COA decision dismissing the malpractice claim was reversed and remanded.

Defendant's speedy trial rights were not violated.  The nine-month delay in this case was not presumptively prejudicial.  The in-trial identification of Defendant was not tainted by the improper photo-pack line-up in which Defendant was the only fairhaired, light-eyed person depicted.  Unless additional identification evidence is produced upon retrial, the evidence concerning the pistol shall not be admitted.  Detective did not improperly comment on Defendant's post-arrest silence.  Eyewitness identification of Defendant as the perpetrator was admissible.

COM.   V.    C.J., A CHILD
FAMILY LAW - JUVENILES - INFORMAL ADJUSTMENT 
Commonwealth sought discretionary review of Supreme Court after Jefferson Circuit Court and Court of Appeals held that no appeal may be taken of an informal adjustment. 

C.J. had been charged with unlawful possession of a weapon on school property and second-degree wanton endangerment.  Commonwealth requested C.J.’s detainment at the arraignment.  Over Commonwealth’s objection and without victim consultation, TC instead ruled that the case should be resolved by informal adjustment.  Both Circuit Court and Court of Appeals refused to hear an appeal of the informal adjustment.

SC affirmed, holding that an informal adjustment does not constitute a final action and is therefore unappealable.  The legislature specifically addressed appealable actions within the Juvenile Code, and an informal adjustment was not one of them. Although appeal via KRS 610.130 is permissive rather than restrictive, it still requires that the appeal come from “dispositional orders.”  However, by its very definition, an informal adjustment is neither an adjudication or disposition.  “There is simply no language in Kentucky 's Juvenile Code authorizing an appeal of an informal adjustment. Had the legislature intended to include such language, it certainly could have done so . By omitting informal adjustments from those matters that are appealable, the inference is that the legislature intended no appeal be allowed from an informal adjustment by the juvenile court.  Because no appeal from an informal adjustment is available, the Commonwealth, if it desires review of such action, is required to bring an original proceeding in the circuit court in the nature of a writ of mandamus or prohibition.”

DISSENT:  “The Commonwealth, undisputedly a party, did not agree to an informal adjustment; therefore, it was not possible for the juvenile court to informally adjust C .J .'s case. Accordingly, by ‘adjusting’ the case over the Commonwealth's objection, the juvenile court in effect entered a formal adjudication and disposition, and thus the Commonwealth had the right to appeal from the juvenile court's disposition of C.J.'s case ..”

COMPANION CASE
2003-SC-000338-DG.pdf

The Supreme Court affirms the CA holding that a non-permissive user exclusion applied to absolve Kentucky Farm Bureau of providing liability coverage.

As folks socialized in the "Chat and Chew" parking lot, Driver-Appellant insisted on test driving Camaro despite owner's repeated and absolute refusal. Driver had a single-car wreck, injuring Passenger-Appellant.

Both Driver and Owner were insured by KFB. KFB moved for SJ arguing that both policies had a non-permissive user exclusion. TC granted SJ against KFB, holding that the exclusion applied in Owner's policy, but did not apply in Driver's policy. TC held that the exclusion for "any" non-permissive user did not specifically reference insureds under the policy, so Kentucky public policy favored a liberal construction in favor of coverage. A unanimous CA reversed.

The Supreme Court finds no ambiguity in the exclusion; "any" non-permissive driver is excluded.

Justice Lambert wrote a dissenting opinion joined by Scott and Wintersheimer: "Kentucky law and public policy considerations mandate that we find coverage in cases involving the injury of an innocent 3rd party."

Appellee was injured by the negligent operation of a forklift by a Grayson Cty. Board of Ed. employee. TC entered SJ for the Board, which was reversed by the CA. SC reviews and reverses.

"A board of education is an agency of state government and is cloaked with governmental immunity; thus, it can only be sued in a judicial court for damages caused by its tortious performance of a proprietary function, but not its tortious performance of a governmental function, unles the General Assembly has waived its immunity by statute." The Board of Claims Act is a partial waiver of immunity that permits a person damaged by a board of education's negligent performance of a governmental function to file a claim for damages in the Board of Claims, including a claim premised upon vicarious liability for the torts of the board of education's employees. Since Appellee's action was brought in the circuit court and not the Board of Claims, it was properly dismissed because there was no waiver under KRS 160.310.

BROWN V. COMMONWEALTH

CRIMINAL - Sufficiency of the Evidence; Double Jeopardy; Expert Witnesses; Closing Argument

(1) It was not error to admit documentation of the D’s prior misdemeanor conviction (which had been amended down from a felony), including the fact that the sentence for the misdemeanor was revoked for a probation violation. As the trial court struck from the documentation that the name and nature of the original felony charge, the documentation satisfied the Truth In Sentencing Statute.

(2) No plain error for improper statements by prosecutor in closing, hearsay statements by lay witness, and regarding probation officer who testified about the wrong parole eligibility guideline since D did not preserve the error at trial. Also no plain error in not giving instruction for extreme emotional disturbance as d did not request such an instruction.

(3) The indictment contained "essential facts constituting kidnapping" as "serious physical injury" (which was not alleged in the indictment) is not an element of the kidnapping, but goes to the "classification" of the crime.

(4) Trial court properly denied D’s motion to continue the trial.

(5) Justice Cooper filed a dissenting opinion stating that KY had not proven serious physical injury of the victims, and therefore, D should have only been convicted of the class B felony of kindapping as opposed to the class A felony of kidnapping. Justice Cooper cites the U.S. Supreme Court opinion of Apprendi noting that the extent of injury has to be an element. (Interestingly, the trial court was affirmed in its decision that the extent of the injury did not have to be alleged in the indictment since it was not an element, but the jury was instructed to decide the issue).

D claimed an alibi at the time of the killings, but also argued to the trial court to instruct on the lesser included crime of manslaughter since such was an appropriate possibility if the jury did not buy the alibi defense. Despite caselaw that allows lesser included instructions even when alibi is the defense, the SC held that it was proper not to instruct on manslaughter as the only evidence presented was that the shootings were intentional.

SC held no prosecutorial misconduct regarding KY disclosing 10 days into the second trial the existence of a washcloth the mother of one of the victims had used to wipe the face of the victim. The prosecution sent the washcloth to the crime lab with no definitive findings. SC held no error because D got to question extensively about it at trial; D did not ask for time to have expert look at washcloth; and D did not ask for a missing evidence instruction.

SC held no prosecutorial misconduct in closing on any of the five grounds argued by D on appeal, in large part, because there was no contemporary objection at trial to prosecutor’s statements. The one objection made at trial did not state the grounds argued on appeal.

No error to admit $500 introduced by KY because D did not object at trial.

Victim made three dying declarations regarding her killer (her cousin, the defendant): to 911 operator, her aunt, and her mother. The SC said the statements were admissible as such were not testimonial under the U.S. Supreme Court case of Crawford.

SC overruled the D’s objections to not striking two prospective jurors. The first challenge was whether the prospective juror could consider a minimum penalty. The second juror distantly knew one of the witnesses.

SC overruled the D’s claim that his statement to police was unlawfully obtained in that he was not given a prompt probable cause determination. SC held that Miranda waiver by D also "implicitly" waived his right to a prompt appearance before a judge.

SC ruled that trial court did not abuse its discretion when it admitted the following evidence. 911 call from anonymous caller describing the shooting and the shooter were admissible, did not violate the 6^th Amendment, and were not impermissible hearsay as they were "present sense impression" statements (even though there was some lapse of time between the shooting and the call). 911 call did not violate U.S. Supreme Court case of Crawford in that such was not "testimonial" against the D such at a previous hearing or pursuant to formal police questioning. As the call was not "testimonial" and was reliable under a well rooted hearsay exception, it was admissible.

SC ruled that trial court properly admitted testimony from a snitch named Larry Thomas who said D had confessed to him in jail. D argued on appeal that Thomas was effectively a government agent in that he was snitching in several cases. SC held that Thomas was not a government agent so as to violate Massiah by having government question a D after D had been appointed counsel.

SC held that trial court did not abuse its discretion by allowing evidence of D’s use of cocaine on day of shooting because D had tried to portray himself as a "knight in shining armor" and thus opened the door by presenting himself as a "good character."

Defense counsel was told by a juror that she referred to the "good book" during penalty deliberations, and she appeared to have a Bible with her. D asked for an evidentiary hearing on this, but law is juror need only testify if jury decision was made "by lot" even though there is KY precedent that a juror cannot use a Bible for trial purposes. However, no per se rule exists for Court to look into the workings of th jury and D has a heavy burden to show juror problems.

This writ arose over the assertion of attorney-client privilege by a party which would then restrict the lawyer being a witness at the trial.  In this case, the trial court ruled that because of the lawyer-client privilege, the plaintiff, John Henry Adams ("Adams"), would not be allowed to call the lawyer for Lexington-Fayette Urban County Government ("LFUCG") as a witness.  However,  the trial court also ruled that Adams would be allowed to introduce into evidence three documents filed by LFUCG's lawyer in a previous lawsuit involving it. 

This did not sit well with LFUCG.  Even though it won the ruling on the privilege, it contended that the introduction