JUNE 21, 2007 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2007:30)
PUBLISHED (SCOKY).
SMITH V. CARBIDE AND CHEMICALS CORP.SCOKY certified the law on two questions from the U.S. Sixth Circuit Court of Appeals arising from claims of groundwater contamination by property owners within ten miles of the Paducah Gaseous Diffusion Plant
Question No. 1: Is proof of actual harm required to state a claim for an intentional trespass? Answer: No.
When the evidence was vague as to the amount of damage, but where a trespass has been committed upon the property of another, he is entitled at least to nominal damages for the violation of his rights.
Question No. 2: If the plaintiffs can prove a diminution
in their property values due to an intentional trespass, do they have a
right of recovery under Kentucky law? Answer: Cannot be answered
simply yes or no as this question confuses the "right to recover" with the "measure of damages" as a substitute "for proof of actual harm".
Kentucky law allows the recovery of just compensation (not merely nominal damages) upon proof of actual injury to the real estate . Hughett, 313 Ky. at 90, 230 S.W.2d at 96.
Once the particular injury to real estate is shown, the diminution in fair market value is a recognized measure of damages.
Thus, the preliminary question in a contamination case in Kentucky is at what level does the trespass evolve from a mere stigma, or damage to the reputation of the realty, into an actual injury or harm?
To reach the question posed, the Sixth Circuit must determine whether the contaminants in this case create an actual injury - an interference with an owner's use of the land.
Mere damage to the reputation of realty does not entitle one to recovery, as that injury is more imaginary than real. Likewise, the mere presence of contaminants may only damage the property's reputation and not its use .
The Court of Appeals in Rockwell, 143 S .W.3d at 604, set the bar for a compensable harm in negligent trespass cases to fall at the point where the contaminants cause a health hazard. Relying on
the rationale in Wood v. Wveth-Ayerst Laboratories , 82 S.W.3d 849 (Ky. 2002), a products liability case with a question as to "harm to the person," the Rockwell court reasoned that the mere presence of PCB's itself was not an injury, that some physical harm needed to be shown.
SCOKY then noted it was not as forgiving in identifying actual injury to real property, whether by intentional or negligent trespass . When the intrusion is through imperceptible particles not visible to the naked eye, there may still be an actual injury.
An intrusion (or encroachment) which is an unreasonable interference with the property owner's possessory use of his/her property is sufficient
evidence of an actual injury (or damage to the property) to award actual damages.
When the parcel's groundwater is contaminated, whether by imperceptible particles or visible particles, to the extent that it cannot be used for consumption by humans, animals, or crops, there is an actual injury.
The amount of harm, if any, to the individual parcels, and the corresponding measure of actual or compensatory damages will depend upon the proof introduced at trial - an issue of fact.
To the extent that the property owners prove actual or compensatory damages for the harm (the cost of restoring the property to the pretrespass condition), "the amount by which the injury to the property diminishes its total value operates as an upper limit on any damage recovery." Thus, the diminution in the property's value due to an intentional trespass is a recognized measure of damages after, or if, an actual injury has been found.
Digested by Michael Stevens
Bituminous appeals COA's opinion affirming Warren Circuit Court's Summary Judgment entry in favor of Kenway Contracting that Bituminous owed a defense and indemnity to its insured Kenway for property damage claims being alleged by Kenway's customers Turner. This coverage action arose from these facts: Kenway contracted with the Turner's to demolish a carport attached to their home. One of Kenway's employees was sent to the Turner's home with a trackhoe to meet Kenway's foreman, and upon arriving began the demo work. To the foreman's dismay, the employee had torn down not only the carport but half of the home as well by the time he arrived. Kenway submitted the claim to Bituminous who first issued a reservation of rights before before denying coverage outright within a month primarily on the basis that the loss did not result from an 'accident,' but instead from faulty workmanship. Kenway filed a declaratory judgment action and ultimately prevailed, the TC reasoning that the damages resulted from a miscommunication between Kenway's employee and foreman (the foreman/VP and president both testified that the employee had specifically been told that only the carport was to be torn down ), not shoddy work. On appeal, the COA recognized that while the act causing the damages was intentional, the consequences were unintended unexpected by the insured Kenway.
At the SC level, Bituminous made a 2-part argument: 1) the damages did not constitute an 'occurrence' under Kenway's CGL policy; and 2) notwithstanding, one or more business risk clauses in the policy excluded coverage. The SC began began its opinion (authored by Cunningham) by reiterating the SC's prior holding in James Graham Brown Found. v. St. Paul FIre & Marine Ins. that the primary purpose of a "comprehensive" general liability policy is to provide broad comprehensive coverage, and that an insured is entitled to all coverage he may reasonably expect under the policy. Justice Cunningham wrote that the SC adopted the majority rule when it concluded in that case that if the damages were not actually and subjectively intended or expected by the insured, coverage exists even if the action causing the damages was intentional and the damages ultimately foreseeable.
As to Part I of Bituminous' argument, the SC analyzed whether the resulting damages were an 'accident' as that term is used in the policy definition of 'occurrence.' While the SC agreed with Bituminous that the damage was not unintended or unexpected from the demo employee's viewpoint, it noted that coverage must be determined from the insured Kenway's perspective since claim was made against Kenway alone. The SC noted that the damages did not result from the any plan, design or intent on the part of Kenway's officers, and found a lack of any evidence to show that Kenway's officers otherwise expected them.
As to Part II of the argument, the SC reviewed 2 business risk exclusions cited by Bituminous (the 'Damage to Property' subsections), the first excluding damage to that particular part of real property on which the insured is performing operations, and the second excluding damage to that particular part of any property that must be restored, repaired or replaced because the insured's work was incorrectly performed on it. As to Exclusion 1, the SC noted that neither "that particular part of real property" nor "operations" were defined in the CGL policy, and that Kenway had suggested operations be limited to the carport since that was the original scope of the work while Bituminous argued operations should extend to any part of property that actual work occurred. As the SC found both arguments reasonable under the plain meaning of the policy words, it ruled that this exclusionary clause was ambiguous and strictly construed the clause against the drafter Bituminous. As to Exclusion 2, the SC found this clause also to be ambiguous and subject to 2 opposing interpretations under the particular facts of this case since the exclusion could be read as relating to the manner of the work (Kenway arguing that the demo work itself was not conducted improperly) v. the location of the work (Bituminous countering that the work was performed on the wrong part of the property). This second exclusion was also construed in favor of the insured Kenway.
The SC having found both parts of Bituminous's argument without merit (as applied to these particular case facts), it affirmed the COA's opinion requiring Bituminous to defend and indemnify Kenway for the damages sought by the Turner's.
By
Chad
Kessinger, Schiller Osbourn Barnes & Maloney
DUNN
V. FELTY
LIMITATIONS OF ACTIONS: ACCRUAL FOR FALSE ARREST OR
IMPRISONMENT
2005-SC-000295-DG.pdf
PUBLISHED: AFFIRMING
MAJORITY OPINION BY MCANULTY
LOWER: JEFFERSON COUNTY
DATE RENDERED: 6/21/2007
The S.Ct. affirms the TC dismissal of appellant's false imprisonment and excessive force claims b/c he filed suit within one year after the acquittal but about 17 months after the actual arrest and release.
In sum, appellant alleges that, in an apparent case of mistaken identity, Officer Todd Felty assaulted, pinned, choked and struck him while investigating a domestic disturbance on 11/7/99. Appellant was arrested and charged with harassment, menacing and resisting arrest; on 4/24/00, a jury acquitted him on the menacing and resisting arrests charges while the court directed a verdict of acquittal on the harassment charge. Appellant filed suit on 4/4/01 against the City of Louisville, Officer Felty and other officers alleging false imprisonment; excessive force; malicious prosecution; outrageous conduct; and failure to train and supervise. On defendants' motion, the TC dismissed the false imprisonment; excessive force; and failure to train and supervise on SOL grounds. TC also granted SJ on the outrageous conduct claim and dismissed all officers except Felty. A jury returned a verdict in appellees' favor on the malicious prosecution claim. Appellant appealed the dismissal of the false imprisonment; excessive force; and failure to train and supervise claims. CA upheld the TC, holding that the SOL runs from the date of arrest or the termination of imprisonment; the S.Ct. now upholds the CA.
S.Ct. holds that appellant's false imprisonment ended when he became held pursuant to legal process, i.e., when he was arraigned. Based upon the elements of false imprisonment, he had a complete cause of action at that point. In contrast to the tort of malicious prosecution, favorable determination of criminal proceedings is not an element of false imprisonment. Thus, he did not need to wait to file. He should have filed and, if necessary, the civil action could be stayed until after the adjudication of the criminal action.
Digested by
John
Hamlet
In reviewing the record before us, we cannot say that the trial judge erred in finding Bussell's trial defense counsel deficient such that he was deprived of a fair trial. Embry's performance during both the guilt phase and penalty phase of Bussell's trial fell below an objective standard of reasonableness. Moreover, we discern no error in the trial court's view that but for Embry's deficiencies, the result of the trial would have been different. Thus, both prongs of the test set forth in Strickland have been satisfied. Bussell was deprived of effective assistance of counsel during the guilt phase of his trial, entitling him to a new trial.
Note: Around the time of trial, defense counsel became addicted to crack cocaine and later pled guilty to second-degree manslaughter arising from the neglect of his mother. Ultimately, counsel was permanently disbarred.
By Scott Byrd @ www.OlginandByrd.com
In this juvenile matter, the appellant was convicted of sodomy based on the testimony and hearsay statements of a four year old child/victim. In reversing the adjudication, the Court held that the four year old child was not competent to testify regarding the incident, and further held that the child’s statements that were made thereafter to the nurse in the emergency room were not admissible hearsay under KRE 803(4) exception regarding statements made for the purpose of medical treatment or diagnosis.
Digested by Michael Stevens
SC ordered new trial for Defendant whose counsel withdrew from representation during trial. Here, defense counsel told the court that his client wanted to testify, and had the right to do so, but that counsel felt his ethical limitations created a conflict with the client. Under SC Rule 3.3, a lawyer is prohibited from offering evidence known to be false, may refuse to offer evidence that she reasonably believes to be false, and shall inform the tribunal of all material facts known to her so that the tribunal can make an informed decision whether the facts are adverse. The plain language of this rule contemplates that a lawyer will not advance false testimony of any witness, and that she will inform the court if such testimony is imminent and what facts support that belief. However, Rule 1.63 creates a duty of confidentiality that prohibits a lawyer from revealing information related to the representation of a client. Moreover, the client has a right to testify in his own defense and a right to counsel. This creates an apparent conflict when an attorney knows that a client intends to offer false testimony. (No such conflict exists when the witness is not a client).
TC erred in advising Brown and counsel that counsel could leave the courtroom during the narrative testimony. They either chose this option together or defense counsel chose his preference the record does not disclose which. By completely leaving the courtroom, in the presence of the jury, counsel telegraphed a problem to the jury. This was improper absent a knowing and voluntary waiver of counsel by Brown as to representation beyond the perjured testimony. Counsel should have remained to assist when he could, since only counsel knew what he believed to be a proper question or an improper one. It remains unknown whether counsel had a good faith, firm factual basis to believe the testimony would be perjury. Had counsel remained and assisted when he could, the need for specific findings would not have arisen until a motion for a new trial was filed. However, given that no one other than counsel and Brown knew the contested area of testimony, requiring Brown to testify wholly on his own and without benefit of counsel's objections on cross examination (which would have been directed at evidentiary rules rather than content), Brown was unconstitutionally deprived of his right to assistance of counsel. This was compounded by requiring him to make his own closing argument and allowing counsel to return to conduct the sentencing phase.
Note: This opinion demonstrates the ethical dilemma for a defense attorney who has a client that intends to lie on the stand. It is rare when a client will outright admit this to you, but when it happens, the question becomes what to do. Although the opinion of the court lays out a pretty good roadmap, the dissent makes clear that while safeguards are in place for the protection of the accused, the accused doesn't have to use them.
By Scott
Byrd @ www.OlginandByrd.com
STEEL
TECHNOLOGIES, INC. V. CONGLETON
APPEALS: Failure to preserve error for appeal
DAMAGES: No pre-impact fear for pain and suffering
2005-SC-000551-DG.pdf
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART
MAJORITY OPINION BY NOBLE; MCANULTY CONCURS BY SEP OP; MINTON NOT SITTING
LOWER: GALLATIN COUNTY
DATE RENDERED: 6/21/2007
In this wrongful death case, the jury awarded the
appellees $3,767,267 in damages, which included $1 million in punitives
and $100,000 in pre-impact fear damages. Melissa Congleton died at the scene when improperly
secured steel coils fell off a truck and struck her car, killing her
almost instantly. The trial judge granted a directed verdict for the
defendant denying any claims for pain and suffering after the
impact but instructed the jury on pre-impact fear.
On appeal the issues centered on insufficiency of the evidence,
pre-impact fear, and punitive damages.
In striking down appellant’s motion for judgment NOV, the Supreme
Court held it was the appellant’s duty to preserve a complete
record on appeal, and failure to prove that it had made a mid-trial
directed verdict motion was fatal to its post-trial claim regarding the
insufficiency of the evidence. Even
though a portion of the trial was not recorded, the Court concluded
appellants were not without other means to preserve the record and vague
comments during jury instructions regarding objections did not suffice.
The award for “pre-impact”
fear damages was reversed based upon Kentucky’s adherence to the
“impact rule”. Emotional
distress must be caused by the contact and not just accompanied by the
contact. The punitive damages award did not violate due process as
some level of reprehensibility was present and when compared to the amount
of direct compensatory damages awarded.
Digested by Michael Stevens
SC affirmed TC's denial of Cummings' motion to suppress incriminating statements given to police. In order to use statements, whether exculpatory or inculpatory, made by a defendant subjected to custodial interrogation, the prosecution must demonstrate that the Appellant was advised of his Fifth Amendment rights, including the right to remain silent and the right to an attorney. Miranda v. Arizona , 384 U .S. at 444, 88 S . Ct. at 1612, 16 L. Ed . 2d 694. These rights may be waived and the statements may be used against the defendant if the waiver is knowing, voluntary, and intelligent. Id . Once an accused has expressed a desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S . 477, 484-485, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981).
In the present case, Appellant has failed to show there was clear error in the trial judge's factual findings . The trial judge found that Appellant initiated conversation with detectives after invocation of the right to counsel, and that Appellant's waiver was not coerced . Although Appellant contended that he did not initiate conversation and that Detective Arnold threatened him, there was no evidence in the lengthy interrogation transcript to support this contention . In contrast, the testimony of the detectives and the transcript of the interrogation supported the trial court's findings . Taking note of the fact that the record contained transcriptions of the interviews in which Appellant was repeatedly advised of his rights, the trial judge commented that this was one of the best cases in terms of proof she had ever had. Given the unique position of the trial judge to assess the credibility of the witnesses' testimony on this issue, and the lack of support for Appellant's version of events, we conclude there was substantial evidence to accept the facts as the trial judge found them .
Offenses committed while one is a juvenile do not trigger the provision in KRS 533.060(2) requiring consecutive sentences. The maximum sentence that Appellant should have received in this case was 70 years.
By Scott
Byrd @ www.OlginandByrd.com
ATTORNEY DISCIPLINARY MATTERS
KBA V. KEVIN LEE NESBITTKBA V. DAVID ANTHONY GRIFFITHS
ATTORNEYS: ORDER SUSPENDED RESPONDENT FROM PRACTICE OF LAW FOR 181 DAYS
2007-SC-000097-KB.pdf
PUBLISHED:
DATE RENDERED: 6/21/2007
KBA V. NANCY E. SHELBY CALLOWAY
ATTORNEYS: ORDER PUBLICLY REPRIMANDED RESPONDENT
2007-SC-000116-KB
PUBLISHED:
DATE RENDERED: 6/14/2007
NOT PUBLISHED (SCOKY)
BUTTREY V. COM.HUIETT V. COM.
CRIMINAL: Mistrial; Judicial admonitions presumed followed;
EVIDENCE: KRE 404(b)(1) for motive and temporal proximity
2005-SC-000643-MR.pdf
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/21/2007
KEELING V. COM.
CRIMINAL: Trial continuance; Relevance of "trace" amounts of
intoxicants as proof of wantonness without evidence of impairment;
2006-SC-000003-MR.pdf
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/21/2007
GLASPER V. COM.
CRIMINAL: Governments duties to disclose and investigate addressed
2006-SC-000300-MR.pdf
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/21/2007
ELLIS V. HON. JOHN DAVID CAUDILL, JUDGE
WRIT OF PROHIBITION: Arising from judicial disqualification and dealings
of Judge Bamburger with witness and conduct in relation to class action
lawsuit
2006-SC-000660-MR.pdf
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 6/21/2007
Thanks to Scott Byrd, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.