THE LawWire - 2006:02

KENTUCKY COURT OF APPEALS - JAN. 13, 2006

MINUTES.

PUBLISHED.

COM. V. MORRIS
BOARD OF CLAIMS - Jurisdiction (settlement and release of employee)
2005-CA-000370
PUBLISHED   
REVERSING 
BUCKINGHAM
DATE:  1/13/2006

A release of the tortfeasor (cabinet employees) for personal injuries constitutes a release of the government in a board of claims action.  The cabinet  was relieved of any liability in connection with the claims due to the claimants having executed releases to its employee, Lancaster. Citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67 (Ky.App. 1989).  The claimants’ settlements with Lancaster inured to the benefit of the employer, the Labor Cabinet, notwithstanding attempts by the claimants in their releases to reserve the right to file claims against the Labor Cabinet.

FORD V. RATLIFF
CIVIL - INSURANCE (Settlement, release, assignment)
2004-CA-000022 PUBLISHED  
AFFIRMING
VANMETER
DATE:  1/13/2006

CA affirms TC dismissal of direct action against insurance company, citing release of tortfeasor.

In this auto collision case, plaintiff settled with tortfeasor, signing a settlement agreement and release (in exchange for policy limits under a Kentucky Farm Bureau policy) that attempted to leave open the option to sue general liability insurer Scottsdale Insurance. An agreed order dismissing "any and all" claims against the tortfeasors, with prejudice, was entered. After, plaintiff amended complaint to include general liability carrier. Carrier moved to dismiss, arguing that, under Kentucky law, plaintiff must file against tortfeasor, not directly against his carrier. Plaintiff claimed he had an executed assignment of rights, but was unable to produce it. Plaintiff moved the court to require plaintiff to sign a new one, which it declined, citing the language of the agreement. Plaintiff cannot proceed against the insurer directly; dismissal affirmed. 

COM. V. SHOUSE
CRIMINAL - Expungement (pretrial diversion)
2005-CA-000071
PUBLISHED  AFFIRMING
POTTER
DATE:  1/13/2006

A defendant who has successfully completed a felony diversion program may have the records of his case expunged under KRS 431.076.

TC properly emphasized the fact that both the diversion agreement and the order approving the diversion program directly addressed the matter, advising the defendant "that upon successful completion of the diversion he may petition the court for expungement of the record." 

CA rejected the Commonwealth's argument that "dismissed as diverted" does not equate to "dismissed with prejudice".  Further, CA found the legislative goal would be thwarted to a significant degree if a successful participant’s record were readily available to the public through court records.

Note:  I guess the Commonwealth did not read the plea agreement permitting expungement when the offer was made.  In any event, this decision should not be interpreted as guaranteeing expungement in every diverted case.  As the offer of diversion is completely discretionary with the government, they simply have to preclude the possibility of expungement at the time of the offer in order to avoid the above result.

NOT PUBLISHED.

GREENE V. CHIPPENDALE SQUARE ASSOCIATION, INC.
APPEALS - Timeliness (no extensions per CR 60.02 to set aside, etc.) 
2004-CA-000202 NOT PUBLISHED  
DATE:  1/13/2006

CAs noted plaintiff was attempting to address issues in her 60.02 motion that could have been heard in earlier motion for summary judgment, which is impermissible under CR 73.02.  That rule states that parties may not resort to 60.02 to gain an additional extension of time to prevent the application of 73.02, i.e., 30 days to appeal from a judgment.  CAs also note that issues must be preserved for appellate consideration and that 60.02 rulings will not be disturbed unless clearly erroneous.

HUTCHISON V. COWAN
CIVIL PROCEDURE - Summary Judgment (opposing evidence)
2004-CA-002279 NOT PUBLISHED  
DATE:  1/13/2006
Wayne Circuit Court, Hon. Vernon Miniard, Jr.
 
Hutchinson appealed TC's entry of SJ in a dispute between abutting landowners over the location of the boundary line. North side of property was owned by Hutchinson while south side was owned by the Cowan's who had obtained the property through a foreclosure proceeding instituted by the bank against the prior owner (Hutchinson's son to whom the property had been deeded). As part of the sale, the bank had the parcel of property surveyed. This survey revealed a boundary line that was more favorable to the south parcel that the bank ultimately sold to the Cowan's.
 
The COA upheld the entry of SJ, finding that Hutchinson had failed to identify what evidence he could have provided that would arguably have required a trial. The boundary line contained in the deed granting the south property to the son made reference to the line as determined in an earlier lawsuit, but the TC found a lack of evidence to this effect and the COA agreed.

CASE V. ISRATEX, INC.
CONTRACTS - Failure of consideration
2004-CA-002095 NOT PUBLISHED  
DATE:  1/13/2006

The trial court did not  improperly grant partial summary judgment on the failure of consideration claim because of an improper reliance on the forcible detainer proceeding. In this case.  It is clear that the trial court did not rely on the prior proceeding so as to give it a res judicata effect, but merely reached the same conclusion that the November agreement constituted a sale.  Neither failure of consideration nor default upon review of the record. Summary judgment on this issue was proper.

HUGHES V. COM.
CRIMINAL - Ineffective Assistance; Guilty plea (voluntary)
2005-CA-000416 NOT PUBLISHED 
DATE:  1/13/2006

CA affirmed trial court's denial of Hughes' motion for postconviction relief pursuant to RCr 11.42.  The record refuted his allegations of ineffective assistance of counsel.

PARKER V. COM.
CRIMINAL - Conditional Guilty Plea; Suppression
2005-CA-000427 NOT PUBLISHED 
DATE:  1/13/2006

CA affirmed Parker's judgment of conviction for Illegal Possession of a Controlled Substance arising from his conditional guilty plea.  The trial court properly denied Parker's motion to suppress because there was sufficient evidence to support the Terry stop and subsequent search of Parker's person.

FREE V. GOLEY
CRIMINAL - Child Custody; CR 60.02 (Not substitute for direct appeal)
2005-CA-000809 NOT PUBLISHED 
DATE:  1/13/2006

CA affirmed trial court's denial of Free's CR 60.02 motion challenging the court's decision to award custody of Free's minor child to Free's mother.  CR 60.02 motions are not the proper vehicle to challenge a custody decision.

MAXIE V. COM.
CRIMINAL - Forfeiture of Property (no nexus between property forfeited and crime)
2004-CA-001643 NOT PUBLISHED 
DATE:  1/13/2006

CA affirmed trial court's denial of Maxie's RCr 11.42 motion alleging ineffective assistance but vacated and remanded the court's decision granting forfeiture of money seized on Maxie's person during his arrest.  The trial court improperly analyzed the evidence between the money and any intended violation of the Controlled Substances Act.

LUNSFORD V. COM.
CRIMINAL - Domestic Violence; Harmless error (admissibility of evidence of repair estimates)
2004-CA-001966 NOT PUBLISHED 
DATE:  1/13/2006

On direct appeal, CA affirmed Lunsford's conviction of Wanton Endangerment in the First Degree (four counts).  The trial court's improper admission of a repair ticket for the victim's automobile into evidence was harmless error.

BARRICKMAN V. COM.
CRIMINAL - Pre-trial diversion (drug treatment program, termination & due process)
2004-CA-000890 NOT PUBLISHED 
DATE:  1/13/2006

CA affirmed trial court's order removing Barrickman from the Clinton County Drug Court Program and imposing a 5 year sentence of Methamphetamine Possession.  Although not constitutionally required under the Due Process Clause, Barrickman was represented by counsel at the hearing on the Commonwealth's motion to remove her from pretrial diversion.

WAGNER V. COM.
CRIMINAL - RCr 11.42 denial
2004-CA-000074 NOT PUBLISHED 
DATE:  1/13/2006

JUSTICE V. COM.
CRIMINAL - RCr 11.42
2004-CA-000392 NOT PUBLISHED 
DATE:  1/13/2006

COM.   V.  WOOTEN
CRIMINAL - Experts
2004-CA-002334 NOT PUBLISHED 
DATE:  1/13/2006

TC did not abuse its discretion in determining that Wooten was not competent to stand trial.  Error in allowing the defendant to introduce testimony from an expert witness whose public funding was improperly obtained was harmless.  While Wooten’s ex parte motion was not improper on its face because it related solely to mental evaluations concerning her criminal responsibility, CA agreed with the Commonwealth that the court abused its discretion by entering the order without first being presented with evidence so as to determine whether a private expert witness was "reasonably necessary" and whether state facilities were unavailable or impractical.  The error was harmless because ultimately, the court appointed KCPC to examine Wooten in accordance with KRS 504.100(1).

CLEMONS V. COM.
CRIMINAL - Prior Offenses
2004-CA-002351 NOT PUBLISHED 
DATE:  1/13/2006

Officer properly searched the Defendant's vehicle under the search incident to arrest exception.  Any prior trafficking conviction, whether or not it was for a controlled substance, is sufficient to make the defendant legally a subsequent offender pursuant to KRS 218A.101(25).

COM. V. BISHOP
CRIMINAL - Arrest
2004-CA-002432 NOT PUBLISHED 
DATE:  1/13/2006

CA affirmed TC's order dismissing indictment based upon city police officers' lack of jurisdiction to effect arrest of Defendants.  The city was within its rights to limit the patrol area of its police force.  Commonwealth failed to preserve the argument that the arrest was nonetheless proper due to the presence of the State Trooper.
LANE V. COM.
CRIMINAL - Reversible Error (admissibility of evidence of other bad acts)
2004-CA-002450 NOT PUBLISHED 
DATE:  1/13/2006

No reversible error in Commonwealth's introduction of prior bad acts without notice.

HENDRICKSON V. COM.
CRIMINAL - Eye Witness Identification
2004-CA-002479 NOT PUBLISHED 
DATE:  1/13/2006

Eyewitness identification of Hendrickson as the perpetrator was sufficient to support the conviction and overcome the directed verdict motions.

SMITH V. COM.
CRIMINAL - Indictment (variance)
2005-CA-000116 NOT PUBLISHED 
DATE:  1/13/2006

Defendant's conviction for drug trafficking upheld because a mere variance between the allegations in the indictment and the jury instructions is not prejudicial unless the defendant was misled by the indictment or surprised by the evidence presented at trial.

DEAN V. COM.
CRIMINAL - Mistrial (preserving issue; voicing an objection alone insufficient)
2004-CA-002124 NOT PUBLISHED 
DATE:  1/13/2006

No palpable error to warrant reversal despite assertions of prosecutorial misconduct.

PRESTON V. DEPT. OF VOCATIONAL REHAB.
EMPLOYMENT - Government 
2004-CA-001716 NOT PUBLISHED  
DATE:  1/13/2006

Affirmed Kentucky Personnel Board's decision for suspension as applied the law correctly and substantial evidence to support decision.

LEWIS V. C & C ENTERPRISES
EVIDENCE - Res Ipsa Loquitor
2004-CA-001936 NOT PUBLISHED  
DATE:  1/13/2006

CA affirms jury verdict for the defense in this carnival ride negligence case. (Jefferson Cir. Ct., Hon. Geoffrey P. Morris, Judge, presiding).

Child's finger was severely injured on ride that had been cited as needed repair, but OK for operation. Appellants argue the TC erred in failing to instruct the jury on res ipsa loquitur per their tendered instruction. CA holds that, as res ipsa loquitur is an evidentiary doctrine creating a rebuttable presumption, appellants could request its application to avoid or win a directed verdict, but not to instruct the jury.

MOLLETT V. WRIGHT and GRANGE MUTUAL INS. CO.
INSURANCE - Coverage (underinsured motorist benefits, resident relative)
2004-CA-001797 NOT PUBLISHED  
DATE:  1/13/2006

Mother was driving son's car with permission when injured by third party.  Settled with tortfeasor  for policy limits and made claim for UIM against son's insurer (Grange).  Grange's definition of insured for UIM benefits was restrictive and only included "you or any family member", and family member must live in the household.  Since mother did not live with her son, the COA held the UIM coverage was not available to the mother.

Comment.  Looks like Grange is following a trend started by Safe Auto of including non-standard exclusions in policies.  Most ISO policies in Kentucky include UIM benefits for those occupying the car (insured's of the second class as referred to in many cases).  This case is not one of exclusion, but one of a restrictive inclusion such that there is no insureds of the second class.  Subtle changes in policy definitions which deny or limit coverage substantially (eg., stacking, single premium, motor cycles) from previous policies should require an affirmative notice by the insurer with a documented acknowledgement by the insured.  However, this stealthy change in expectations does not seem to require confirmation.  This is not published and not binding and not to be cited in any court in this commonwealth.  This panel consisted of Judges Combs, McAnulty, and Johnson.

WILLIAMS V. STURGEON
PROPERTY - Boundary Disputes (clearly erroneous rule)
2003-CA-002281 NOT PUBLISHED  
DATE:  1/13/2006

Neighboring property owners dispute.   Master Commissioner recommends a boundary line after evidentiary hearing and TC adopts.   Williams appeals claiming numerous errors.  In order to overturn verdict, appellant must prove that decision was clearly erroneous and not supported by substantial evidence. CA upholds TC ruling finding that the Master Commissioner relied on substantial evidence, noting that Sturgeon provided testimony from expert surveyor and Williams did not.

MAGINNIS V. COM.
TORTS - Immunity (judges)
2005-CA-000256
NOT PUBLISHED   
DATE:  1/13/2006

McGinnis complains only of actions taken by Judge Horne in his official capacity when the judge, sua sponte, researched his driving record and provided the jury with information showing that he had prior traffic offenses. This was noted as grounds for reversal in the circuit court opinion vacating and remanding the conviction. The COA dismissed the claims against the judge as a  judge is immune for personal liability for acts taken while he has jurisdiction over a case. Vaughn v. Webb, 911 S.W.2d 273, 275 (Ky.App. 1995). Even where such action may be contrary to law, judicial immunity still applies. City of Louisville v. Bergel, 610 S.W.2d 292, 293 (Ky. 1980).

TUSSEY V. COOK FAMILY FOOTS, LTD
WORKERS COMPENSATION -  Affirmative Defense of Failure to Follow Medical Advice
2005-CA-000846 NOT PUBLISHED  
DATE:  1/13/2006

COA affirmed the dismissal of appellant administrator's claim for benefits stemming from the death of a worker on the basis that the decedent had unreasonably failed to follow medical advice.  The unreasonable failure to follow medical advice is an affirmative defense under KRS 342.035 for which the burden of proof rested with Cook. Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 336 (Ky.App. 1995). 

Because Cook was successful before the ALJ, the question before the COA was whether his decision is supported by substantial evidence of record. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). 

The ALJ, as fact-finder, and not this tribunal, has the sole discretion to determine the quality, character and substance of the evidence. Paramount Foods, Inc., v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlet, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Bryan Pierce, Alma Puissegur, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's published appellate decisions.