Hey folks, do me a really big favor today.

Take a look at a project we are trying - a blog for Kentucky!  

Did you know there was a $6 Million Dollar Case this last week in Adair County.
Click here.

Just click on the site, run up my hits for one day. 

www.KentuckyLawBlog.com

CA affirms $3.7 million judgment to decedent's estate and two minor children, including $100,000 in "pre-impact fear" suffered by the decedent. 

Decedent was killed when her car struck a 30,000-pound steel coil that fell from a tractor-trailer. The driver had secured the coil with only 3 chains, instead of the 5 required by federal regulations, because he was paid by the amount he could haul in a shift and wanted to save time. The estate filed for wrongful death and personal injury; the children filed for loss of consortium; and the husband filed for loss of consortium. The TC granted SJ against the steel company on liability. The TC denied the steel company's motion for SJ on pain and suffering and reserved the issue of punitive damages pending proof that the company had experienced previous similar accidents. The trial was solely on damages. 

On appeal, CA holds that $1 million in punitives was not excessive [the opinion contains a good discussion of the due process requirements regarding the ratio of punitives to compensatory] and that loss of consortium damages to the children were not improperly calculated based on the children's entire lifetimes. 

Of note is the CA's opinion regarding damages for "extreme emotional anxiety prior to injury," or "pre-impact fear." Steel Technologies had argued, among other things, on appeal that his claim was based on a cause of action unrecognized in Kentucky in that Kentucky requires "impact" prior to any incurrence of damages. With no case law, the CA turned to the Restatement (2d) of Torts, which includes and illustrative comment that says: "Thus one who is struck by a negligently driven automobile and suffers a broken leg may recover not only for his pain, grief, or worry resulting from the broken leg, but also for his fright at seeing the car about to hit him." CA holds that "[t]his view of pre-injury fear as an integral part of a larger, ongoing ordeal is applicable to the facts of this case."CA notes that the states that do not permit "pre-impact fright" damages either bar it specifically by statute or reason that the damages are overly speculative. A number of jurisdictions do allow such damages, however. In this case, the damages were based, in part, upon testimony of one of the emergency workers who said the decedent's face was fixed in a scream at death and that it looked like she was scared when the coil fell on her.
 

Note:  Historical note for inquiring minds - yours truly (Michael Stevens) was the insurance lawyer for KFBM in Preferred Risk v. KFBM so many years ago that argued denying omnibus liability coverage for a thief/non-permissive user.  Although I loved the Court's reference to my spin of the words on no coverage then and no coverage now for a thief, I still wish to remind the folks that all the attorney for Preferred Risk (Bernard Leachman) was doing then was attempting to provide minimum liability coverage for stolen vehicles back in the days when our Supreme Court had been extending minimum coverage in a multitude of situations.  

KRS 304.39-080(5) provides:  "Every owner of a motor vehicle registered in this Commonwealth or operated in this Commonwealth by him or with his permission, shall continuously provide with respect to the motor vehicle while it is either present or registered in this Commonwealth, and any other person may provide with respect to any motor vehicle, by contract of insurance or by qualifying as a self-insurer, security for the payment of basic reparation benefits in accordance with this sub-title and security for payment of tort liabilities, arising from maintenance or use of a motor vehicle (emphasis added)."

This appeal involves the application of the double multiplier of benefits, which states that if an employee returns to work at an average weekly wage equal to or greater than that earned at the time of the injury, he is entitled to the weekly benefit found by multiplying his average weekly wage by two-thirds, then times the disability rating found by using the AMA Guide impairment.  During any week he does not retain that employment, for any reason, he is entitled to double that amount.  

The Supreme Court, in an unpublished decision, LAUREL COOKIE FACTORY V. FOREMAN   2002-SC-000867, previously stated that only if an employee first returns to work, and does so at the same wage or greater, then loses the employment, is he entitled to the double multiplier.  That opinion has been cited by the Workers' Compensation Board even though the decision is unpublished (for the reason that it is not a court and therefore the civil rule, closely read, does not apply).  This decision holds again that, since the employee did not return to work, and never earned the same average weekly wage, the double multiplier section does not apply.  

COMMENT: This interpretation leads to bad results.  It is causing some employers to refuse to allow employees who have had injuries, but no restrictions, to ever return to work.  It would lead to the same result if the plant shut down while the employee is off of work before recovering from the injury.  Usually, the employee leaves the employment from a realization that the type of work which caused the injury should be avoided in the long term, even though no specific restrictions are given.  The statute was probably written as a compromise position between the triple multiplier and the single multiplier.  Employers and their insurers have so many arguments about the interpretation of the statute, however, that it prevents settlement on that basis.

The issue before the Court is two-fold.  First, the question is can this Court review the issue raised in the first trial regarding the sufficiency of the evidence. Second, if we decide the answer to question number one in the affirmative, then did the Commonwealth produce sufficient evidence in the first case to overcome a motion for acquittal. We believe the answer to the first question is no.  It is clear from the numerous cases we have reviewed that a properly granted mistrial based upon a jury’s failure to reach a verdict does not result is double jeopardy.  By answering Alvey’s first issue in the negative, his second argument becomes moot.

CA held that TC has the authority to allocate child tax exemptions between the parents in order to maximize the amount of money available to the children.  Thus, it was not an abuse of discretion to award all present and future tax exemptions for two children to non-custodial parent where non-custodial parent would receive greater financial benefit from the exemptions than custodial parent.

COA affirmed TC denial of Defendant’s 60.02 motion. Issues and holding almost identical to Garner discussed above.

COA affirmed TC denial of 11.42 motion. Defendant pled guilty to assault of prison guard. Defendant tried to challenge that the prison guard did not receive physical injury, so Defendant was not guilty of the charge. COA held that a guilty plea precludes a post-conviction challenge on the sufficiency of the evidence.

TC affirmed Defendant’s conviction after trial of the charge of failure to make a required disposition of property. After the close of the proof, KY sought to amend the indictment by extending the date of the alleged crime (i.e. changing the date from October 29, 2003 to October 29, 2003 to January 15, 2004). Defendant had testified that he was in California at the time of the charged offense - October 29. Defendant objected. TC overruled the objection, but gave the defense a two week continuance before concluding the trial.

Ky. R. Crim. P. 6.16 allows amendment of indictment if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. COA held that changing time or date is considered a change of "form and not of substance" if it does not prejudice the defendant. Continuance cured any prejudice to Defendant

Ineffective assistance of counsel and failure to call witnesses claim rejected.

Record conclusively shot down appellant's motion to correct his five year sentence without evidentiary hearing.

Stong odor of ether emanating from residence justified exigent circumstances (warrantless) search.

In the case at hand, the officers testified that the odor of ether emanating from the residence was very strong and that they considered the situation to be dangerous. It is common-knowledge that the chemicals involved in the manufacture of methamphetamine pose significant public health and safety issues.  

Considering the strong smell of ether, the jars found in a nearby ditch, and the elusive behavior of the residents in the basement apartment, we think it was reasonable for the officers to have concluded that a methamphetamine lab was present in the basement apartment.

Thus, we are of the opinion that the health and safety risk to the public justified immediate police entry into the basement apartment. 

The hearing officer, despite substantial evidence in the record, failed to make specific findings supporting his denial of  disability benefits.

Husband claimed on appeal that TC failed to divide the CD as it should have because it was funded from marital property, the wage settlement.  CA recognized that TC’s division of assets made no specific finding that the CD represented lost wages and was marital or non-marital, but the fact that it was awarded to Wife in the division of assets suggested it was considered marital. “If [Husband] wanted further findings of fact, he should have asked for them at the final hearing as he was aware of the CD and what it  tepresented, or he could have learned those facts at the final hearing, or before, with a little diligence. Wife’s memorandum filed for the contested final hearing listed the certificate of deposit ‘purchased with monies from her income…’  Whether it represented a settlement or wages, all appellant had  to do was ask. He snoozed, so he loses.”  TC affirmed. 
 

CA held that TC has the authority to allocate child tax exemptions between the parents in order to maximize the amount of money available to the children.  Thus, it was not an abuse of discretion to award all present and future tax exemptions for two children to non-custodial parent where non-custodial parent would receive greater financial benefit from the exemptions than custodial parent.

Vacated and remanded family court judge's reduction of maintenance from $2,400 per month to $2,000 since no basis in record, and upon remand shall determine if  this was a modification of an existing order or a determination that the original separation agreement was unconscionable.

Because Scott v. Scott has since been overruled by this Court, COA vacated the orders denying Lynn’s petition and remand the case to Christian Family Court for reconsideration in light of our recent holding in Vibbert v. Vibbert.
 

CA vacates and remands TC order permitting non-custodial parent to take child to a church not in keeping with the custodial parent's faith and against the custodial parent's wishes.

Custodial parent argued she has exclusive authority to determine child's religious upbringing under state statute. Non-custodial parent argued he merely wants to take child to church with him, not interfere with custodial parent's religious teaching. Citing Wilhelm v. Wilhelm, 504 S.W.2d 699 (Ky. 1973), CA holds that TC improperly placed burden on sole custodian to prove no harm, when precedent required the reverse.

CA affirms TC declaratory judgment that Century must reimburse Continental for judgment in personal injury case.

Century insured amusement ride operator; Continental insured Greenwood Mall in Bowling Green. Mall allowed operator to operate ride within the mall under a license agreement that required operator to maintain insurance and to indemnify mall. Patron was injured; a jury verdict was entered against operator and mall. In the declaratory judgment action, the TC construed the license agreement to require that Century's coverage was primary and that Century must reimburse Continental.

On appeal, Century argues that TC erred in requiring operator to indemnify mall for its own negligence and that Century's policy is not primary. CA holds that Fosson v. Ashland Oil, Ky., 309 S.W.2d 176 (1957), controls, permitting parties to contract for indemnification, even for one's own negligence. When the two policies are read together, it is clear Century's is primary coverage.

Attorney entitled to fee if he collects basic reparation benefits on subrogation claim for insurer.

The facts help explain the attorney's entitlement to a fee.  Attorney represented plaintiff on MVA BI claim and PIP carrier intervened for statutory subrogation.  Jury awarded damages, including the PIP medicals.  Attorney then contended under KRS 304.39-070(5) mandates his entitlement to attorney's fee as a matter of law.  Applying Baker v. Motorists Insurance Cos., 695 S.W.2d 415 ( Ky. 1985), the COA determined a benefit resulted to the PIP carrier even though GEICO claimed attorney did not benefit them since he had rejected an offer to settle.  Note GEICO claims the offer to settle rejected by the plaintiff included their total $8,000+ in pip rather than the $4,916.27 in PIP awarded by the jury.  Ouch says GEICO and no benefit either.  COA noted the settlement offer was for the entire case and any benefits claim by GEICO was purely speculative.  As the offer included settlement of all claims, GEICO could not have received the amount offered for BRB without the injured parties foregoing their right to seek a full recovery.

Note:  Paul Schurman was actually counsel for the business broker in this case.  

The claimant filed his claim on shoulder, back, and leg injuries, then late in the process of taking proof alleged an eye injury in addition, submitting a report of a doctor concerning it.  The defendant submitted proof regarding the eye, another report.  The ALJ ruled in favor of the defendant on the eye, and the plaintiff appealed arguing that he should have been given time to rebut the evidence.  The Court of Appeals affirmed the Board, which held that there was no error, even though the workers' compensation rules state that the filing of evidence during a case in chief automatically extends the time for the opposing party for rebuttal.  The introduction of proof about the eye in this case, the Board said, took this unique situation out of the ordinary rules.  It is unclear whether what was requested was simply cross-examination of the doctor who wrote the report.  That would not be rebuttal evidence, but it should always be allowed as a matter of due process.  

The Court of Appeals reversed the ALJ and Workers' Compensation Board on the issue of giving notice to the employer of the existence of the disease.  The claimant gave notice three years after he last worked, and the ALJ dismissed because he felt the claimant knew he had black lung before then.  He had filed a federal black lung claim several years before.  The Court of Appeals reversed on the grounds that the federal black claim did not show that any doctor had informed the claimant that he had black lung at that time, and apparently there was no other diagnosis from that time.