Kentucky is in the minority of states in that KRS 394.060 favors exercise of a power of appointment, to the extent that a residuary clause exercises a power of appointment. Here, the Court of Appeals extended that preference to allow substantial compliance to exercise a power, even when the grant of the power required a specific reference. In short, the facts are that the husband’s will granted spouse a general power of appointment over the marital trust but required that the spouse exercise it by specific reference. The wife’s will included a statement that she was exercising any testamentary general power of appointment but did not refer back to her husband’s will by name, date, etc. Although the Circuit Court held that the exercise was not valid, the Court of Appeals reversed and held that substantial compliance applied and that the exercise was valid. It may be worth noting that the wife’s trust did make provisions tailored to dispose of her late husband’s marital trust. Although the Court of Appeals did not specifically rely on that fact, it does seem to indicate that the spouse intended to exercise the power of appointment. Whether a trust should inform the construction of a will in such a case is however an interesting point.

The ALJ essentially did not find the claimant credible in this case, where the claimant¹s physician had prescribed a walker to help him ambulate, but the defendant¹s doctor testified based on wadell signs thgat he was faking.  He applied the 2-multiplier, because he was not making the same wages as at the time of injury (he was not working and claimed total disability) but the ALJ made a finding that he was unable to return to the type of work he was performing at the time of the injury, but he was capable of earning greater or equal wages at other work if he chose to.

The Court of Appeals held that he would not then be entitled to the double multiplier or the triple multiplier.  This is new law, and it extends the powers of the ALJ beyond what were previously required by Fawbush v. Gwinn.  In that case, the claimant was earning greater wages than at the time of the injury, and the ALJ was required to make a finding as to whether that wage could be earned into the indefinite future.  Here, the ALJ made a finding taht the claimant could earn wages in the future that he was not, in fact earning.  This opens the door to a great deal of speculation which can only really be solved by using vocational expert testimony, as in Social Security disability cases.  Interestingly, the Court rejected the failure to admit a Social Security Disability decision into evidence, stating that the decision was of little value in workers¹ compensation cases.  

The claimant filed a Form 101 alleging a physical injury, then, after introduction of proof, moved to amend his claim to include a psychological overlay fro the same injury.  The ALJ denied the motion, but the Workers¹ Compensation Board reversed, holding that the statute shold be liberally construed for the benefit of the worker, and that the ALJ erred by failing to allow the amendment.  The Court of Appeals reinstated the ALJ¹s decision, holding that one must bring all their claims at once, pursuant to KRS 342.270(1).  If a claimant recognizes a psychological overlay initially, such as if he is being treated for depression, he must claim and prove that during his proof period.  If he cannot, as when the depression has not yet created a permanently disabling condition, he may lose entitlement to be compensated for it.  He may even lose the right to be treated for it, depending on the outcome of other cases on appeal.
 

CR 60.02 does not provide relief in case where prior attorney failed to answer interrogatories in timely fashion, even if those interrogatories were improper under the Rules.  If they were improper, that does not allow counsel to choose not to answer; instead, proper objection must be made.  Excuse that prior attorney did not answer due to "work related stress" does not qualify for extraordinary relief. 

To have standing under a declaratory rights action, plaintiff must have a real, direct, present and sbustantial right or interest in the subject matter of the controversy.  In order for a city to close a city street, it must follow the procedure set out by the legislature in KRS 82.405.  The city has no inherent local authority to handle street closings in its own way.

CA affirmed Defendant's convictions and 12 year sentence in Jefferson Circuit Court for theft by unlawful taking, over $300.00, giving a peace officer a false name or address, and first-degree persistent felon.

TC did not err by refusing to suppress evidence derived from his unlawful arrest.  Athough Burnice was arrested in violation of KRS 431.005 on probable cause of a misdemeanor that the arresting officer did not observe, the arrest was not unconstitutional and the statutory violation did not entitle Burnice to an exclusionary remedy.

There was sufficient evidence to permit the finding that Burnice’s theft exceeded the $300.00 felony threshold.  For the purposes of the theft statutes, the general rule is that the value of stolen property is the market value at the time of the theft. Where there is no standard market for the item, however, "the value must be arrived at from the facts and circumstances and the uses and purposes which the article was intended to serve."

Because the prosecutor’s improprieties were not unduly prejudicial and were cured by sufficient admonitions, Burnice is not entitled to relief on this ground.

Note:  The decision not to apply the exclusionary remedy to the unlawful arrest is baffling.  There has to be some consequence to the unlawful arrest or the "statutory" protection is meaningless.

CA affirmed Eads' convictions for third-degree burglary, second-degree arson, and misdemeanor theft.  The primary issue on appeal was whether the trial court committed a "structural" due process violation by granting the Commonwealth's ex parte request for a continuance of Eads' trial.  The prosecutor approached the trial judge in the absence of defense counsel and represented to the Court that both parties agreed to a continuance under the circumstances.  The judge granted the motion based on the prosecutor's representation of an agreement between the prosecution and defense.  However, Eads' counsel subsequently filed a written motion to dismiss, alleging that there was no such agreement.  CA held that Eads' due process rights were violated (i.e. the ex parte hearing) but that such violations remained subject to harmless error analysis.  Under the circumstances, it appeared that the case would not have been tried anyhow because of an illness in the judge's family.  There was no speedy trial violation under the circumstances.  Also, there was no abuse of discretion in excluding Eads' arson expert because his testimony would not have aided the trier of fact.  

Remanded for additional findings regarding motion to amend QDRO.

CA affirms TC entry of SJ for insurance company, holding no duty to defend or indemnify insured for intentional shooting. (Bullitt Cir. Ct., Hon. Thomas L. Waller, Judge, presiding).

Johnson shot and killed Miracle Sr., and wounded Miracle Jr. when the two unarmed men confronted him. He was convicted of reckless homicide and assault under extreme emotional disturbance. While the test of whether an insured expected or intended the injury is usually one for the jury and inappropriate for SJ, a KY court has held that shooting another at close range is so likely to cause harm that a court may infer intent as a matter of law. Affirmed.

The Board put into effect regulations that implemented the Hunter Excavating v. Bartrum decision, which held that the limitations on numbers of x-ray readings allowed to rebut a consensus decision by a panel of experts were invalid as.  These are being remanded for implementation of those regulations, if the actions taken in the case followed the regulations which were held to be beyond the commissioner's power.

The Board put into effect regulations that implemented the Hunter Excavating v. Bartrum decision, which held that the limitations on numbers of x-ray readings allowed to rebut a consensus decision by a panel of experts were invalid as.  These are being remanded for implementation of those regulations, if the actions taken in the case followed the regulations which were held to be beyond the commissioner's power.

The Board put into effect regulations that implemented the Hunter Excavating v. Bartrum decision, which held that the limitations on numbers of x-ray readings allowed to rebut a consensus decision by a panel of experts were invalid as.  These are being remanded for implementation of those regulations, if the actions taken in the case followed the regulations which were held to be beyond the commissioner's power.

The Board put into effect regulations that implemented the Hunter Excavating v. Bartrum decision, which held that the limitations on numbers of x-ray readings allowed to rebut a consensus decision by a panel of experts were invalid as.  These are being remanded for implementation of those regulations, if the actions taken in the case followed the regulations which were held to be beyond the commissioner's power.