One year suspension from practice of law.

Permanent disbarment.

Public reprimand.

This appeal arose from an action for breach of contract/breach of warranty based  upon alleged misrepresentations made by the sellers of a home.  Appellee charged that Appellants falsely completed the disclosure form because the two incidents listed (March 1989 and 1999) were not the only times that the basement had leaked . The Jefferson Circuit Court entered partial summary judgment in favor of Appellants, reasoning that the disclosure form clearly stated that it was not a warranty.

A court may refuse to enforce a contract on grounds of illegality where the contract has a direct objective or purpose that violates the federal or a state Constitution, a statute, an ordinance, or the common law .  the clause in this contract creates a warranty. The contract incorporates the disclosure form by reference and explicitly warrants the truthfulness and accuracy of the form and must be enforced as such . 

As the Court of Appeals correctly noted, the contract does not violate KRS 324.360 or 201 KAR 11 :350 because the parties are in compliance with these provisions and merely sought to give greater weight to the disclosure form than was statutorily required. 

KRS 531.300 et seq. pertains to the Sexual Exploitation of Minors. KRS 531.310(1) provides that "[a] person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." A "sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a minor[ .]" KRS 531.300(6) . A "[p]erformance" includes any play, motion picture, photograph or dance." KRS 531.300(5) (emphasis added) .  Here, the plain language employed in the definition of "performance" focuses on "any photograph ." The singular form of "photograph" read in conjunction with the term "any" clearly indicates that the Legislature intended prosecution for each differing photograph . Accordingly, a person who generates differing and multiple prohibited photographs or causes a child to engage in the creation of such photographs commits multiple offenses of KRS 531.310, even though each such differing photograph involves the same subject captured in a narrow timeframe.

SC ordered new sentencing hearing as TC permitted non-final convictions to be admitted during sentencing phase.

11.42 granted and reversed/remanded on ineffectiveness of counsel issue as it was unreasonable not to attempt in some  way to contest evidence or at least insure its reliability

SC reinstated the trial court's order denying Stacey's motion for post-conviction relief pursuant to RCr 11 .42.

The issue to be considered is not whether Stacey was, in fact, competent at the time he entered his plea, but rather whether he alleged sufficient grounds in his untimely RCr 11 .42 motion to warrant an evidentiary hearing.

Denied writ of prohibition on claim that judge was misinterpreting the law.  It  was the trial court's duty to interpret and apply the controlling appellate court decision. A trial court, in interpreting an appellate court's decision, is not acting outside its jurisdiction even if its interpretation is erroneous.

The basic holding permitted a UIM carrier to third party an unknown motorcyclist defendant for purposes of apportioning fault even though there was no personal jurisdiction over that unknown motorcyclist.  An odd twist in this case was that the UIM was also a UM carrier and was permitted to use the 'no contact' rule to defeat the plaintiff's claim for uninsured motorist benefits.

Comment: This case will be the subject of a more detailed analysis later at www.KentuckyLawBlog.  However for now, note the inconsistent positions permitted KFBM in talking what were essentially inconsistent positions by parsing the policy provisions and not reading the policy as a whole and ignore the intent and purpose of the 'no contact' rule to prevent fraudulent claims.  Justice Johnstone wrote for the majority and made some black law pronouncements that a UIM claim is not controlled by the apportionment statute since it is a contract and not a tort and its tweener status (my word not his) does not change that fact.  However, in a UIM case the damages are in tort and the third party claim for apportionment is permitted.  Of course, would a constructively served third party complaint suffice if a direct action against the tortfeasor?  Time will tell on that one, but in that scenario I would suggest a motion to dismiss by the plaintiff for failure to state a cause of action since indemnity in this situation is non-existent and apportionment is a legal conclusion and not a claim, Kevin Tucker case notwithstanding in creating the legal fiction.
 

Although plaintiff  was replaced by at least one of these substantially younger individuals,  this  case is one of those "instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory ." 

In St. Mary's Honor Center, the Supreme Court rejected the "pretext plus" and "pretext only" approaches in favor of the "permissive pretext only' standard and held that it was permissible, but not mandatory, for the trier of fact to make an ultimate finding of intentional discrimination once the plaintiff has established pretext.   Considered together, and despite Williams's weak showing of pretext, these facts show that Medina was solely responsible for Williams's termination and that he did not know her age at the time he made that decision . 

The accident arose when a truck was cresting a hill and pulled into the left lane to pass a bicyclist.   Assuming he had passed her, the trucker maneuvered his truck back into the right-hand lane  and caught the bike's  handlebars which became wedged under the second flatbed wagon . The bike was pulled under the wagon and the bycyclist was thrown into a ditch on the side of the road .

Biker sued car in a personal injury action.  The trial court denied both parties' motions for a directed verdict, and the case was thereafter submitted to the jury, which returned a verdict in favor of Dailey .

Trucker's legal duty required that he not pass biker unless he could do so without interfering with the safe operation of her bicycle, and that if, in fact, he did pass her that he not drive to the right until he was reasonably clear of her.  Apparently, truck believed that it was solely biker's obligation to make sure he safely passed her. Clearly that is not the law. See KRS 189 .340(1). Nor are we sympathetic to truck driver's claim that he had no choice but to move back into the right lane so as to avoid a potential collision with oncoming traffic .

If the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189 .340(4) .2

We hold that the trial court should have granted bicyclist a directed verdict on the issue of truck driver's negligence .

However, a jury is still entitled to consider Previs's duties in operating her bicycle, and apportion fault should it find that Previs was negligent as 
well. The jury was given instructions on both Previs's duties and apportionment, but the roadway before coming within one hundred feet (100') of any vehicle approaching from the opposite direction. was directed not to consider them upon finding for Dailey . On remand, a jury must consider these additional issues.

Worker sustained work related injury and later died of self-inflicted gun shot wounds.  Widow claimed (and ALJ rejected) contention that decedent committed suicide due to his employer's unreasonable refusal to pay voluntary benefits following the injury and awarded Priscilla survivors' benefits under KRS 342.730(3) rather than the death benefits she sought under KRS 342.750. 

The ALJ refused to increase the income benefit by a factor of 0.02 on the ground that Douglas had a GED diploma and also rejected a request for sanctions under KRS 342 .040 and KRS 342.310 on the ground that the employer's insurance carrier had a reasonable basis for refusing to pay 
temporary total disability (TTD) and medical benefits voluntarily.

The employee was working at two employments, carpentry and an after hours cleaning job, when his eye was punctured by a nail. During the surgeries which followed he was able to return to the cleaning job, but not the carpentry job. The ALJ determined that the return to only part of his employment did not render him ineligible for temporary total disability benefits. The Workers' Compensation Board reversed, but the Court of Appeals reversed the Board, holding that when an employee is unable to return to his customary employment, and has not reached MMI, he is entitled to TTD based on the wages earned in both employments. The Supreme Court affirmed, on different grounds, holding that the inability to return to the employment in which the employee was injured entitled him to TTD based on that employment only. However, the employer failed to preserve that issue and the Supreme Court did not grant it a credit. This decision is practical, since denying TTD based on a relatively minor concurrent job would leave the worker destitute while he was unable to perform his major employment because of the injury. It makes a careful analysis of the definition of temporary total disability based on its definition in the statute. It may also provide an answer to situations where the employer can provide light work while the employee is recovering, but only at reduced wages. It is not fair to penalize the worker for being injured at work.

The newest member of the Court, Roach, makes a lone dissent which accuses the majority of creating law which should be statutory. However, he ignores the definition of TTD in the statute, which leaves open the meaning of "returning to employment". The statute is ambiguous in that the meaning of return to employment can mean returning to all employment, or only part of previous employment. Such an ambiguity requires judicial interpretation.

In an unusual case for a writ, the party partially prevailing in the lower court sought a writ of prohibition.  The issue is whether the Family
Court had subject matter jurisdiction to hear Gutterman's petition for grandparent visitation despite the adoption of the child by the Zoellers.

There are two classes of writ cases, those (1) where the lower court is
acting without jurisdiction, and those (2) where the lower court is acting incorrectly within its jurisdiction .' Zoeller asserts that this case is encompassed by the former class of writ cases, and that the family court was acting without jurisdiction when it heard the grandparent visitation case.  In view of the constitutional and statutory provisions for circuit court and family court jurisdiciton, it would be impossible to reach a conclusion that a family court was without subject matter jurisdiction.