Vol. 2006:27 - COURT OF APPEALS DECISIONS FOR June 2, 2006

PUBLISHED (COA).

LAY V . COM.
CRIMINAL: Double Jeopardy
 2005-CA-000516
TO BE PUBLISHED  
AFFIRMING; VANMETER
DATE: 6/2/2006

CA affirmed Lay's sentence following guilty pleas to driving while under the influence of alcohol (DUI), third offense, and operating a motor vehicle while his license was suspended for DUI.  CA rejected Defendant's contention that double jeopardy was violated when he was sentenced for both DUI, third offense, and the suspended license charge, enhanced by the fact that the charge was a second offense which occurred while he was DUI.

The double jeopardy clause prohibits a defendant’s conviction for multiple offenses, arising out of a single course of conduct, where one offense is included within the other as "established by proof of the same or less than all the facts required to establish the commission of the offense charged."  We are not persuaded by Lay’s contention that the two charges against him violated double jeopardy because each required a finding that he was DUI.  Instead, the mere fact of operating the vehicle while his license was suspended for DUI was sufficient to support the suspended license conviction, and the issue of whether he was DUI at the time of the offense went only to the enhanced penalties applicable to repeat offenders.  Because DUI is not an element of the charge of operating a motor vehicle on a license suspended for DUI, and because operating a motor vehicle on a suspended license is not an element of DUI, it follows that each charge requires "proof of an additional fact which the other" does not require, and that double jeopardy was not violated below.

NOT PUBLISHED (COA) .

DURBIN V. BANK OF THE BLUEGRASS AND TRUST CO.
CIVIL PROCEDURE:  Summary judgment affirmed dismissing claims (even tho COA disagreed with some of the trial court's reasoning) 
2005-CA-001292
NOT TO BE PUBLISHED 
DATE: 6/2/2006

ELDEN GINN TOBACCO WAREHOUSES, INC. V. EAST KENTUCKY POWER COOPERATIVE, INC.
CIVIL PROCEDURE:  Collateral estoppel improperly applied by circuit court 
2004-CA-002339
NOT TO BE PUBLISHED 
DATE: 6/2/2006

CANSLER V. COM.
CRIMINAL:  Evidence ('opened the door' to the admissibility of undercover drug buys)
2005-CA-000759
NOT TO BE PUBLISHED  
DATE: 6/2/2006

LYONS V. COM.
CRIMINAL: 
2005-CA-000291
NOT TO BE PUBLISHED  
DATE: 6/2/2006

SHEGOG V. COM.
CRIMINAL:  Ineffective assistance of counsel (error in summary denial of claim)
2005-CA-000367
NOT TO BE PUBLISHED 
DATE: 6/2/2006

BACK V. COM.
CRIMINAL:   RCr 11.42 motion denied
2005-CA-000554
NOT TO BE PUBLISHED 
DATE: 6/2/2006

SALYERS V. COM.
CRIMINAL (Evidence):  Statement against interest
EVIDENCE: Statement against interest (unavailability of declarant)
2004-CA-000514
NOT TO BE PUBLISHED 
DATE: 6/2/2006

CARPENTER V. COM.
CRIMINAL:  Crimes and circumstantial evidence of intent to sell drugs
2004-CA-002469
NOT TO BE PUBLISHED 
DATE: 6/2/2006

GARBER V. COM.
CRIMINAL:   Search and seizure (informants tip and totality of circumstances)
2005-CA-000119
NOT TO BE PUBLISHED  
DATE: 6/2/2006

ROBERTS V. COM.
CRIMINAL:  RCr 11.42 motion denied
2005-CA-000151
NOT TO BE PUBLISHED  
DATE: 6/2/2006

GORDON V. COM.
CRIMINAL:  Flagrant nonsupport
FAMILY LAW:  Flagrant nonsupport crime
2005-CA-000746
NOT TO BE PUBLISHED  
DATE: 6/2/2006

HYATT V. HYATT
FAMILY LAW:  Apportioning extraordinary medical expenses 
2005-CA-000025
NOT TO BE PUBLISHED  
DATE: 6/2/2006

CITY OF SHEPHERDSVILLE V. SOUTHEAST BULLITT FIRE PROTECTION DISTRICT
GOVERNMENT:  City annexation (summary judgment vacated and remanded for evidentiary issues)
2004-CA-001259
NOT TO BE PUBLISHED 
DATE: 6/2/2006

DAVIS V. USAA CASUALTY INS. CO.
INSURANCE:  Underinsured motorist benefits (Notice of accident and substantial prejudice)
2004-CA-002053
NOT TO BE PUBLISHED
AFFIRMING IN PART, VACATING AND REMANDING IN PART 
DATE: 6/2/2006

Although this is an 'unpublished' decision, it presents several issues dealing with underinsured motorist benefits which the practitioner should know.  The plaintiff was a police officer injured in a car accident and for which he received workers compensation benefits.   He filed suit against the other driver, learned through discovery there was $50,000 in liability insurance, amended the complaint for underinsured motorist benefits (UIM), but did not serve the amended complaint upon the UIM carrier for nearly a year thereafter.  When USAA the UIM carrier was actually placed on notice of the UIM claim/complaint, then in less than a month the plaintiff and the liability carrier settled for policy limits and the UIM carrier was notified per statute of its subrogation rights.  USAA advised the plaintiff within the 30-day period that it intended to preserve its subrogation rights and advance the money but needed tax ID information and the names of the payee plus there were issues regarding workers compensation subrogation lien.  USAA did not get the check to the plaintiff within 30 days, and the plaintiff sought a ruling from the trial court as to entitlement to the settlement.  The trial court ruled that the plaintiff failed to provide timely notice and dismissed the claim for UIM benefits and ruled that the statute requires mandatory compliance for advancing liability limits and not substantial compliance.  This appeal followed.

The COA affirmed the trial court's ruling that KRS 304.39-320 regarding advancing and payment of the liability limits within 30 days of the statutory notice is mandatory and substantial compliance was not good enough.  Various excuses for failing to pay within that period were rejected.  This part of the trial court's decision was affirmed.

However, the appeal was vacated and remanded as to the timely notice provisions and the UIM carrier was required to show prejudice by the delay as required by Jones v. Bituminous Coal.

Another issue involved the statute of limitations, and the COA noted that Gordon v. KFBM resolved this issue since the statute of limitations is 15 years for a contract unless the parties agree to a shorter time period.  Since there was nothing in the insurance policy on this point, then 15 years stood.

LAWSON V. HAYNES
SETTLEMENTS AND RELEASES:  Interpreted under contract law principles
2004-CA-002523
NOT TO BE PUBLISHED  
DATE: 6/2/2006

KNOTH V. ILLINOIS CENTRAL RAILROAD CO.
SETTLEMENT AND RELEASE:  1989 Release for hearing loss not include asbestos-related injuries not discovered until 2002  in FELA claim per Babbitt v. Norfolk & Western Ry. Co., 104 F.3d 89 (CA6, 1997)
2005-CA-001882
NOT TO BE PUBLISHED  
DATE: 6/2/2006

WATKINS-EL  V. FLETCHER
TORTS:  Defense of Sovereign immunity  (claim against governor)
2005-CA-000279
NOT TO BE PUBLISHED  
DATE: 6/2/2006

TRUSERV CORP. V. FLEGLES, INC.
TORTS:  FRAUD (misrepresentation to future promise or opinion of future event, not actionable) 
2004-CA-002487
NOT TO BE PUBLISHED  
DATE: 6/2/2006

MOORE V. LINCKS
TORTS:  Premises liability (reversed summary judgment dismissing claim and allowing claimant to prove elements by circumstantial evidence, to include causation) 
2005-CA-001493
NOT TO BE PUBLISHED 
DATE: 6/2/2006

COX V. TRIM MASTERSK INC.
WORKERS COMP: 
2005-CA-001912
NOT TO BE PUBLISHED 
DATE: 6/2/2006

 


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