This is an appeal from the Circuit Court's summary judgment dismissing a claim for wrongful death as a result of exposure to asbestos.  Rehm was exposed to asbestos while working in several factories for a millwright service that removed and installed industrial equipment.  His widow sued in civil court, and after amending their answers, the defendants moved for summary judgment on the grounds that they were up-the-ladder contractors, protected by the exclusive remedy provisions of the workers' compensation act.  Under KRS 342.690(1), an employer's liability to an employee is limited to workers compensation benefits, and a 'contractor', is included in the definition of 'employer'.  A contractor is defined as a person who contracts with another to have work performed which is a regular or recurrent part of such persons trade or business.  The majority affirmed the Circuit Court's summary judgment dismissing the case, on the basis that these defendants were contractors, and thus protected by the exclusive remedy provision of the work comp act.  The dissent complained that this is a very expansive reading of the 'regular and recurrent' part of the definition, since the tear-out of conveyor lines and other equipment was done infrequently, and also because it was not proven that the defendants would have covered  Rehm for workers' compensation benefits.   

Trial court's dismissal of plaintiff's personal injury claim for his failure to submit to a physical examination was vacated and remanded because the trial court made no findings underpinning its order, and the videotape of the hearing on the motion to dismiss is not in the record.  COA was unable to determine the question presented.

LouisvilleLaw.Comment:  Miller v. Fratzke was not mentioned, and this was a summary judgment action rather than a trial dismissal.  Although reading just the appellate opinions gives you an incomplete picture of events, it does seem that the lack of damage proof was a throw in by the COA on appeal rather than an issue at the trial.   

COA vacated and remanded case due to its determination that the court record reflected a failure of the TC to consider relevant factors prior to entering the dismissal order. COA noted that the TC failed to consider the particular facts and circumstances of the case, including whether the case had been placed on the trial docket and the exact reasons for the delay. Gill v. Gill, 455 S.W.2d 546, 546 (Ky. 1970). COA also ruled that the TC failed to determine whether less drastic measures would remedy the situation, especially where there is no prejudice to the party requesting dismissal. Polk v. Wimsatt, 689 S.W.2d 363, 364-365 (Ky.App. 1985).

COX V. COMMONWEALTH (not published)                                                    CRIMINAL -- RCr 11.42; Consecutive Sentences

Cox pleaded guilty to Fleeing and Evading Police in the First Degree and Operating a Motor Vehicle while License is Suspended or Revoked for DUI -- Third Offense and received a sentence of 5 years probated for 5 years. While on probation, he was arrested for new felony and misdemeanor offenses. The trial court held a revocation hearing and determined that Cox had violated the conditions of his probation. He was then sentenced to 5 years to serve. Less than one month later, Cox pleaded guilty under a separate indictment to Assault in the Second Degree in exchange for a consecutive 7-year sentence. (The offense date for the assault charge was before Cox was placed on probation in the prior case.) Ultimately, Cox filed an RCr 11.42 motion arguing that his counsel failed to seek concurrent sentences pursuant to KRS 533.040(3). The trial court denied his motion without a hearing. CA held that KRS 533.060(3) applied to these facts and that it authorized consecutive sentences. Affirmed. See also Brewer v. Commonwealth, 922 S.W.2d 380 (Ky. 1996) (KRS 533.060(2) prevails over KRS 533.040(3) because it was the later enacted statute).

MARKWELL V. COMMONWEALTH (not published)                                        CRIMINAL -- RCr 11.42

Markwell was convicted at trial of Robbery in the Second Degree and for being a Persistent Felony Offender in the First Degree and was sentenced to 10 years in prison. His conviction was affirmed on direct appeal to the Supreme Court. He then filed two motions pursuant to RCr 11.42 alleging ineffective assistance of counsel and the trial court denied both without an evidentiary hearing. On appeal from the denial of the 11.42 motions, CA held that the first such motion was properly denied because it raised issues that could or should have been raised on direct appeal. Hodge v. Commonwealth, 116 S.W.3d 463 (Ky. 2003). Markwell argued that his second 11.42 motion was not barred by case law's prohibition of successive 11.42 motions because it alleged something new (i.e. that his appointed counsel failed to supplement his pro se brief on ineffective assistance). CA also denied this argument as being without merit. Harper v. Commonwealth, 978 S.W.2d 311 (Ky. 1998). Affirmed.

MORRISON V. COMMONWEALTH (not published)                                         CRIMINAL -- Guilty Pleas; Fines

Morrison went on trial for Theft by Unlawful Taking over $300 and for being a Persistent Felony Offender in the Second Degree. The jury returned a guilty verdict on the TBUT charge, and the judge instructed jurors to return the next day for a penalty phase. In the meantime, Morrison reached an agreement with the Commonwealth regarding his sentence. When the parties returned the next morning, the judge informed them that a juror had suffered a heart attack overnight. He then stated, outside the jury's presence, that Morrison could proceed with his agreement or would have to be tried by a different jury panel during a penalty phase. After conferring with counsel, Morrison chose to waive a penalty phase and appeal in exchange for a 7-year term. Before his sentencing hearing, he moved to withdraw his plea on the basis of involuntariness. The trial court determined that his plea was knowing, intelligent, and voluntary and denied the motion. It imposed the 7-year sentence and a $1,000 fine for felony offenses. On appeal, the CA agreed that the plea was knowing, intelligent, and voluntary. It also upheld the imposition of a fine because the defendant was not indigent when it was imposed and did not object to it at the time.

SHORTER V. COMMONWEALTH (not published)                                             CRIMINAL -- Inmate Discipline

Shorter filed a "short" petition for declaration of rights pursuant to KRS Chapter 418, alleging that his federal constitutional rights were being violated. The trial court dismissed the petition on its merits. After reviewing the record and finding no evidence to support Shorter's claims, CA affirmed.

COA denied D's appeal of denial of 11.42 motion. D received 10 years at trial for selling $20 of drugs to a CI. Because the following issues could
have been brought on direct appeal, they could not be raised at 11,42 stage: Batson error; prosecutorial misconduct; chain of custody; and cumulative error. D could also not get relief on ineffective assistance of
counsel because he failed to argue how the alleged errors by his former attorney prejudiced him. 

Appeal of denial of payment by Circuit Court of 50% of the fees an investigator charged in the case. COA ruled that Circuit Court erred by not
holding a hearing on whether the expenses sought were reasonable and necessary before cutting half of the investigator's bill. COA held that a ruling like the Circuit Court's may have a 'chilling effect' on  indigent defendants from getting reasonable investigation done in their case. 

Husband  appealed from the order which denied his motion to reduce his child support and awarded attorney’s fees to wife/mother’s attorney.   COA affirmed, concluding  the trial court made adequate factual findings which were supported by substantial evidence, that it correctly applied the law, and that it did not abuse its discretion.

2003-CA-000896.pdf
Judge:  DYCHE
AFFIRMING 
Date: 2/25/2005
NONPUBLISHED

COURTNEY   V.  BOARD OF ED. OF BOONE COUNTY
LABOR LAW - GOV'T EMPLOYMENT
COA reverses and remands on the record TC judgment.  At the TC level, Appellants had initiated an action against Appellees for failure to give them experience credit in determining their pay as classified employees.  TC had accepted Appellees' argument that because Appellants were bus drivers, they were required to produce evidence they had been treated differently from other bus drivers rather than other classified employees. 

2003-CA-002550.pdf
Judge:  HENRY
AFFIRMING 
Date: 2/25/2005
NONPUBLISHED

SIZEMORE   B.  KY RETIREMENT SYSTEMS
LABOR LAW - GOV'T RETIREMENT

COA affirms TC's Order upholding Appellee's denial of disability benefits.  COA rejected Appellant's argument that she should be afforded benefits because her pre-existing condition was not capable of causing a disability at the time she became employed and that Appellee could not exclude benefits unless the pre-existing condition was able to cause incapacity at the time of employment. 

CA affirms TC grant of SJ to credit life insurance company on grounds that claimant's decedent misrepresented his health on the application for insurance.

Decedent purchased truck and applied for credit life insurance to pay off the balance in the event of death. On the application he represented that he had not been treated, etc., for heart disease within the past year. He died of a heart attack 6 months later. Upon investigation, insurer discovered that decedent had had heart attacks in 1986 and 1994 and was under a physician's care for coronary artery disease, was taking medication for same and had seen a cardiologist. Insurer denied the claim.

CA majority held that "no jury could reach a conclusion other than that [the decedent] misrepresented his health condition." Dissenting opinion suggested that SJ was improper because decedent had been strictly accurate on the application in that he was not being treated for "heart disease" but for coronary artery disease.

CA affirms Jefferson Cir. Ct. (Hon. F. Kenneth Conliffe, Judge, presiding) order enforcing settlement in real property purchase dispute.

Appellant offered $101K for property, which was rejected. Appellant then offered $131K, subject to financing. Termites were discovered, and appellant alleged that appraiser verbally appraised the property at $101K. Appellant asked for reduction in the purchase price; the record does not say what, if any, response was made.

At closing, Citifinancial's documents all reflected a $101K purchase price. Appellant's representative assumed this was the negotiated price. As soon as Citifinancial, discovered the lower price, it attempted to undo the sale. Appellant sued; Citifinancial countered; the court found no contract at $131K (as the offer had expired), and went back to square one, restoring the property to Citifinancial and the money to appellant.

The parties entered settlement negotiations and appellant's attorney faxed a statement saying he had authority to transfer $30K to Citifinancial and release the remaining $101K in exchange for the property. Later, appellant's attorney said appellant also wanted $60,000 for improvements made to the property in the interim. Citifinancial cited the faxed agreement and appellant reneged.

CA held that the TC was entirely correct and that the fax evidenced the agreement.

Note:  The court cited Clark v. Burden for the proposition that the TC was acting within its power to enforce the agreement, but this one turns out not to be an "authority to settle" case, but whether a settlement ever occurred. (Communications indicate appellant settled, then tried to renege when she had buyer's remorse.)