Vol. 2006:24:  Kentucky Supreme Court Decisions for May 18, 2006

ATTORNEY DISCIPLINE.

KBA V. JAN R. WADDELL, SR.
ATTORNEY DISCIPLINE - Applicant restored to practice of law
 2004-SC-000630-KB.pdf
 PUBLISHED  
DATE:  5/18/2006

KBA V. AN UNNAMED ATTORNEY
ATTORNEY DISCIPLINE - Private reprimand and limitations on use of suspended attorney in firm's practice
2006-SC-000243-KB.pdf
PUBLISHED  
DATE:  5/18/2006

PUBLISHED DECISIONS.

MORGAN V. COM
CRIMINAL:  Juror Challenges
CIVIL PROCEDURE: Challenges 
2003-SC-000489-MR.pdf
PUBLISHED  
AFFIRMING IN PART AND REVERSING; SCOTT
DATE:  5/18/2006

This case addresses jury selection, bias and challenges with a good analysis of the topic.  However, the dissent by Cooper is noteworthy - "Because of our decision today, peremptory challenges in both civil and criminal trials can be allocated at the whim of trial judges, who can control their allotment either by refusing to grant challenges for cause and thereby forcing the aggrieved party to waste his/her/its peremptory strikes on jurors who should have been excused for cause, or by simply misallocating the peremptory challenges by awarding a party more than or less than the number allowed by law."

HARRIS V. JACKSON
CIVIL PROCEDURE:  Revival of cause of action; Estoppel and Waiver in Court Proceedings 
2004-SC-000121-DG.pdf
PUBLISHED  
AFFIRMING (SCOTT)
DATE:  5/18/2006

In this MVA case, the defendant died during the pendency of the action and the defense counsel waited a year and moved to dismiss for failure to revive the suit.

Defense attorney had duty to disclose client's death to court and parties and thus the estate was estopped from asserting a statute of limitations defense to motorist's revival action within one year since it/he had failed to inform plaintiff that that the defendant driver had died.

"[O]ne may not stand by and make no objection to a proceeding in court with the anticipation that if it results favorably the benefits will be accepted, but that if it results unfavorably objections will be made."

CSX TRANSPORTATION V. KOLTER
CIVIL PROCEDURE - Discovery (reciprocal reproduction of medical examination reports)
2005-SC-000275-MR.pdf
PUBLISHED  
REVERSING (JOHNSTONE)
DATE:  5/18/2006

In this FELA case, Kolter claimed irreversible brain damage for exposure to cleaning solvents while working at CSX.  When CR 35.02(1) is triggered by the examined party's request for production of the independent medical examiner's report, that party has a reciprocal obligation to produce a like report of all similar examinations . With or without a written report, the opposing party is still entitled to the test results and raw data obtained by the experts in question.

MARTIN V. COMMONWEALTH
CRIMINAL:  RCr 11.42's effect on subsequent claim of ineffective assistance of counsel
2004-SC-000130-DG.pdf
PUBLISHED  
REVERSING AND REMANDING (LAMBERT)
DATE:  5/18/2006

PARKS V. COM.
CRIMINAL - Search and Seizure (good faith exception not salvage improperly executed warrant)
2003-SC-000305-MR.pdf
PUBLISHED  (COOPER)
VACATING
DATE:  5/18/2006

GREENE V. COMMONWEALTH
CRIMINAL - Evidence (admissibility of past affair relevant to rebut claim of EED  while committing murder)
2004-SC-000046-MR.pdf
PUBLISHED
AFFIRMING (SCOTT)
DATE:  5/18/2006

COM.  V. HATCHER
CRIMINAL - Search and seizure (exigent circumstances; plain view doctrine)
2004-SC-000242-DG.pdf
PUBLISHED 
AFFIRMING AND REMANDING; JOHNSTONE
DATE:  5/18/2006

Pipe seized in house by police officers was suppressed after they knocked on door to check on minor, and minor seemed in no danger.  

MOORE V. COM.
CRIMINAL - Appeal
2004-SC-000550-DG.pdf 2004-SC-000552-DG.pdf
PUBLISHED  
AFFIRMING; COOPER
DATE:  5/18/2006

Reinstated statutory right of appeal after counsel mailed it to the wrong address without defendant's participation in the act.  

PENMAN V. COMMONWEALTH
CRIMINAL -  Evidence and chain of custody
2004-SC-000726-MR.pdf
PUBLISHED  
AFFIRMING (SCOTT)
DATE:  5/18/2006

Weight discrepancy of drugs tested and produced in court went to credibility of evidence and not its admissibility; within judges discretion not to excuse juror married to police officer and claimed 'pro police'.  

HUDSON V. COM.
CRIMINAL - No error in denying continuance 13 days before trial (factors examined)
2005-SC-000120-MR.pdf
PUBLISHED  
AFFIRMING; COOPER
DATE:  5/18/2006

ARNOLD V. COM.
CRIMINAL
2005-SC-000147-MR.pdf
PUBLISHED  
AFFIRMING; GRAVES
DATE:  5/18/2006

Multiple issues in this criminal appeal.  However, state's expert was permitted to testify on rebuttal to certain traits of defendant and trial court acted within its discretion in refusing to excuse for cause juror who indicated that defendant would have to be “pretty falling down” drunk before he would find voluntary intoxication as a defense.

FLETCHER V. JUDGE GRAHAM
CRIMINAL - Effect of governor's pardons on grand jury investigation
2005-SC-001009-MR.pdf
PUBLISHED  
AFFIRMING IN PART, REVERSING IN PART AND REMANDING; JOHNSTONE
DATE:  5/18/2006

Governor has constitutional authority to issue pardons of unidentified and unnamed individuals prior to those individuals being indicted.  Acceptance of pardons can be inferred from circumstances.  Grand jury has no authority to issue indictments against members of the class of persons who were pardoned.

CINCINNATI INS. CO. V. SAMPLES
INSURANCE: Underinsured Motorist Benefits (UIM)(future medicals)
2004-SC-000005-DG.pdf 2004-SC-000680-DG.pdf
PUBLISHED  
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
DATE:  5/18/2006

The trial court erred by deducting from the judgment the $25,000.00 awarded by the jury for future medical expenses in the absence of proof that any part of that sum has been paid either to the injured plaintiff or on his behalf for medical expenses incurred as a result of this accident.

Every jury award of future medical expenses carries with it the possibility of a windfall. As in AIK v. Bush (and today's decision in AIK v. Minton), the windfall should be awarded to the injured party, not the UIM insurer who stands in the shoes of the tortfeasor.

AIK SELECTIVE SELF-INSURANCE FUND V. MINTON
WORKERS COMP - ATTORNEY FEES
TORTS - Attorney Fees Offset of Subrogation Claim
2004-SC-000326-DG.pdf
PUBLISHED  
AFFIRMING (GRAVES)
DATE:  5/18/2006

In this case the Workers Compensation carrier intervened in the tort action to recover its subrogation claim.  KRS 342.700(1) provided for a reduction of that subrogation claim based upon the claimant's attorneys expenses in seeking that tort recovery.  In this case the attorneys fees to be paid by the plaintiff exceeded the amount of the workers compensation claim and effectively wiped it out.  Trial judge ruled that insurer was not entitled to recovery since claimant's attorney fees and expenses exceeded subrogation claim and the insurer appealed.  Affirmed.

SCOKY did not buy appellant insurer's argument that KRS 342.700(1) is unfair because a portion of those legal fees and expenses may be attributable to recovering tort damages (namely, pain and suffering) which are not duplicative of and are unrelated to the workers' compensation benefits it previously paid and that this Court should interpret KRS 342.700(1) so as to deduct only those legal fees and expenses that may be attributable to the recovery of tort damages which duplicate the workers' compensation benefits previously paid by the employer/insurer.

It is not absurd or wholly unreasonable to accord the language of KRS 342.700(1) its literal and plain meaning. Tort claims involve a significant risk and require substantial energy in pursuing recovery. It is only fair to require employers/insurers benefiting from the fruits of such an endeavor to share in its costs. Stacy v. Noble, 361 S.W.2d 285, 289 (Ky.1962) (“We have concluded that regardless of the facts of the initial employment of counsel, if the employee's counsel actually bears the burden of obtaining recovery from the third party, then whoever takes the money is chargeable with a share of the fee.”). Moreover, it is not arbitrary that the entire cost of pursuing the tort award (including those portions which do not duplicate the benefits paid as workers' compensation) should be deducted from an employer/insurer's subrogation credit.

BY THE NUMBERS.  If you have $100,000 settlement, $30,000 workers compensation subrogation claim, then the W.C. subro claim is 'wiped out' if the contingent fee is 1/3 of recovery which is greater than the W.C. subro lien.  

KNOTTS V. ZURICH INS. CO.
TORTS:  Claims settlement violations  (UCSPA) can continue after suit filed
2004-SC-000400-DG.pdf
PUBLISHED  2628 kb
DATE:  5/18/2006

The insurance company has a continuing duty of good faith after suit has been filed, and SCOKY held the Unfair Claims Settlement Practices Act applies to conduct that occurs both before and after litigation has commenced.  However, evidence of insurer's litigation conduct in underlying suit cannot be used in a subsequent bad faith action.

HILSMEIER V. EST. OF JOE CHAPMAN
WILLS, ESTATES, PROBATE: Inter vivos gift and sound mind
2003-SC-000303-DG.pdf  2003-SC-000281-DG.pdf
PUBLISHED 
REVERSING AND REMANDING (JOHNSTONE)
DATE:  5/18/2006

Evidence supported jury's finding that decedent's friend and friend's mother obtained an inter vivos gift through undue influence or that the transfer was not a valid gift.

MORRISON V. THE HOME DEPOT
WORKERS COMP: University Medical Evaluations
2005-SC-000719-WC.pdf
PUBLISHED  
REVERSING AND REMANDING
DATE:  5/18/2006

Held the report of medical evaluation performed by physician in workers compensation proceedings and  who was not employed by one of the state's university medical schools was not admissible as a medical evaluation by university medical school.

NOT PUBLISHED 

KINDRED HEALTHCARE INC. V. HON. DARREN PECKLER
CIVIL - EXTRAORDINARY WRITS (judicial discretion and irreparable injury)
2005-SC-000837-MR.pdf
NOT PUBLISHED
DATE:  5/18/2006

The issuance of an extraordinary writ "is inappropriate to tell a lower court how to act or to interfere with its exercise of discretion ."  

RAINEY V. COM.
CRIMINAL - Search
2005-SC-000185-DG.pdf
NOT PUBLISHED  
AFFIRMING; SCOTT
DATE:  5/18/2006

Defendant was found to have been a “recent occupant” of the vehicle and that the search was lawful as being incident to arrest.

GIVIDEN B. COM.
CRIMINAL 
2003-SC-000976-MR.pdf
NOT PUBLISHED
DATE:  5/18/2006

BEARD V. COM.
CRIMINAL 
2004-SC-000548-MR.pdf
NOT PUBLISHED 
DATE:  5/18/2006

HOPKINS V. COM.
CRIMINAL 
2004-SC-000687-MR.pdf
NOT PUBLISHED  
DATE:  5/18/2006

WALKER V. COM.
CRIMINAL 
EVIDENCE - Hearsay and prior conviction 
2004-SC-000815-MR.pdf
NOT PUBLISHED  
DATE:  5/18/2006

HUGHES V. COM.
CRIMINAL 
2005-SC-000017-MR.pdf
NOT PUBLISHED
DATE:  5/18/2006

MARSHALL  V. COM.
CRIMINAL 
2005-SC-000212-MR.pdf
NOT PUBLISHED 
DATE:  5/18/2006

WEST V. COM.
CRIMINAL 
2005-SC-000239-MR.pdf
NOT PUBLISHED  
DATE:  5/18/2006

BAZE V. COM.
CRIMINAL 
2005-SC-000420-MR.pdf
NOT PUBLISHED 
DATE:  5/18/2006

COM. V. HON. MAZE
CRIMINAL - Testifying outside presence of defendant 
2005-SC-000682-MR.pdf
NOT PUBLISHED 
DATE:  5/18/2006

BASE V. COM.
CRIMINAL 
2005-SC-000889-MR.pdf
NOT TO BE PUBLISHED 
DATE:  5/18/2006

COLEMAN V. ROAD FORK DEVELOPMENT CO.
WORKERS COMP: 
2005-SC-000651-WC.pdf
NOT PUBLISHED  
DATE:  5/18/2006

HEIL V. WINN-DIXIE
WORKERS COMP: 
2005-SC-000829-WC.pdf
NOT PUBLISHED  
DATE:  5/18/2006

SPEARS V. CARHARTT, INC.
WORKERS COMP:  
2005-SC-000694-WC.pdf
PUBLISHED  
AFFIRMING
DATE:  5/18/2006


Thanks to Scott Byrd,  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger,  Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Bryan Pierce,  Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.