JULY13, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:34)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes].
Nos. 725-753; 30 rendered decisions with 5 published and 5 reversed, remanded and/or vacated
PUBLISHED (COA).
NATIONAL
CHECK BUREAU, INC. v. IRBY
CIVIL PROCEDURE: JURISDICTIONAL AMOUNT OF CIRCUIT COURT (AGGREGATE
CLAIMS)
2006-CA-000700
PUBLISHED: REVERSING AND REMANDING
PANEL: PAISLEY PRESIDING; THOMPSON, VANMETER CONCUR
COUNTY: CALLOWAY
DATE RENDERED: 7/13/2007
COA reversed TC's dismissal of Appellant's case for lack of jurisdiction due to insufficient amount in controversy. COA ruled that CR 18.01 allows Appellant to aggregate amount of the 3 separate delinquent accounts it sought recovery for from Appellee for purposes of satisfying the $4,000 circuit court jurisdictional requirement. COA acknowledged the lack of direct precedent regarding the aggregatation of damages for the specific purpose of reaching the jurisdictional limit, but cited substantially similar Federal Rule 18 and supporting federal case law holding that aggregation was permissible.
By
Chad
Kessinger
Dad, sole custodian of parties’ minor child, appealed TC’s order denying his motion to modify the visitation schedule so as to require Mom to take Child to Sunday services at Dad’s church during her visitation weekends. Dad contended that TC’s refusal to incorporate this provision in the visitation schedule was in derogation of his right as Child’s sole custodian to determine Child’s religious training. CA disagreed and affirmed TC’s order.
Mom had visitation with Child every Wednesday night and every other weekend from Friday evening to Monday morning, but Dad wanted Mom to take Child to church on her Sundays. CA recognized that KRS 403.330 allows the sole custodian to determine a child’s religious upbringing, but provided that the statute must be construed in light of the non-custodian’s constitutional rights to express her religion or lack thereof and to be meaningfully involved in the upbringing of her child. Thus, KRS 403.330 accords custodians the right to make the major decisions affecting a child’s religious training, but does not authorize them to interfere permanently or unduly with a non-custodian’s visitation. Where there is no evidence that a child has been or is substantially likely to be injured as a result of a non-custodian’s practices, or that indoctrination in a custodian’s religion has been frustrated, a non-custodian is not required to give up visitation time to accommodate a custodian’s chosen church services.
Furthermore, there is a meaningful difference between temporary religion classes that prepare a child for particular rites and initiations, and regular worship attendance. Requiring a non-custodian to accommodate the former might well be reasonable, because the burden on his or her visitation will not be of long duration and because the instruction is necessary to the child’s indoctrination into the custodian’s chosen religion. To require accommodation of regular worship services, however, in effect permanently deprives the non-custodian of a significant portion of his or her visitation. Whatever instruction might be missed because of periodic absence from regular worship services, moreover, can usually be made up in some other manner by the custodial parent during his or her time with the child. Here, as there was no evidence that the Sunday services at issue were anything other than regular worship attendance, TC did not abuse its discretion in denying Dad’s motion to require Mom to take Child to Sunday services.
By Michelle
Eisenmenger Mapes with www.Louisvilledivorce.com
In this case, the COA held that a workers compensation carrier has no subrogation claim against the claimant's underinsured motorist benefits.
The single question in this appeal is whether the Circuit Court erred in summarily dismissing the subrogation claim of appellant, G&J Pepsi-Cola Bottlers, Inc., for workers' compensation benefits paid to appellee, Nicholas Fletcher. This appeal was held in abeyance pending resolution by the Supreme Court of Kentucky of the issues advanced in Cincinnati Insurance Company v. Samples, 192 S.W.3d 311 (Ky. 2006). Having fully considered those supplemental briefs, the original briefs filed in this appeal, and the record, the COA affirmed the circuit court dismissal.
Fletcher was seriously injured in a car accident and received workers compensation benefits. Fletcher sued
Urmson, the at fault driver, and Ohio Casualty, his personal automobile insurance carrier, for underinsured motorist's (“UIM”) benefits. Fletcher subsequently amended his complaint to add a UIM claim against United States Fire Insurance Company (“US Fire”), the insurer of his employer G&J's fleet of vehicles. Finally, G&J intervened to assert a $370,000.00 subrogation claim for workers' compensation benefits paid to Fletcher as a result of the same automobile accident.
The primary issue became whether G&J could assert a subrogation claim against the benefits Fletcher was seeking from US Fire and Ohio Casualty. COA answered no.
Relying upon the language of KRS 342.700(1) and the rationale set out in State Farm Mutual Insurance Company v. Fireman's Fund American Insurance
Company, 550 S.W.2d 554 (Ky. 1977), the circuit court concluded that the employer's statutory subrogation rights extend only to recovery of benefits paid “from the other person in whom legal liability for damages
exists” in other words, the tortfeasor.
Applying the holding in State Farm, the trial court noted that the payment of benefits by a UIM carrier is the performance of a contractual obligation, not the payment of damages by the person in whom legal liability rests. Thus, the trial court granted the motion for summary judgment because it found no case or statute which would permit G&J to assert its subrogation claim against the amounts paid under the two separately purchased UIM policies.
The COA first prefaced it discussion of the merits of G&J's appeal with a reiteration of the the analysis set out in State Farm v. Firemen's Fund concerning the nature of UIM benefits and the genesis of an employer's subrogation rights.
The following analysis was from that earlier UM decision, and since the
appellate courts analyze UIM and UM similarly, the Judge Knopf's analysis is
addressed (as it incorporates the analysis from Justice Palmore):
KRS 342.055 [now KRS 342.700(1)], the subrogation statute, provides that “the other person in whom legal liability for damages exists” quite clearly refers to the third-party tortfeasor who is liable at common law. A payment made in performance of a contractual obligation is not a payment of “damages.” Hence the liability of an insurance company under its uninsured motorist coverage cannot be the “legal liability for damages” mentioned in KRS 342.055.
Moreover, the satisfaction of an injured party's claim by his own insurance company under its uninsured motorist coverage does not inure to the benefit of the uninsured motorist. His liability is not extinguished, and it may be enforced by both the carrier which has paid workmen's compensation benefits and the carrier which has paid under the uninsured motorist coverage.
To hold that the contractual rights of an insured party under the uninsured motorist clause of an automobile liability insurance policy must inure to the benefit of a workmen's compensation carrier to the extent of compensation paid or payable to him would confer upon the compensation carrier an additional right which it does not have under the subrogation statute. The injured party, or the person under whose insurance policy he is defined as an “insured,” has no obligation to his employer's compensation carrier to carry any automobile liability insurance or underinsured motorist benefits whatever.
In the absence, therefore, of a statute or agreement to the contrary, what can be the source of the compensation carrier's right to have the benefits of such insurance? The answer, we think, is that there is none.
Judge Knopf also emphasized that this result does not deprive the employer of its subrogation rights; it can still look to the tortfeasor as provided for in KRS 342.700(1).
The import of that distinction is that KRS 342.700 operates as “a limitation on the rights of the worker that is attendant to his right to collect workers' compensation benefits” and is not a defense personal to the
tortfeasor.
The purpose and intent of the uninsured and underinsured motorist statute is to treat the insured victim as if the tortfeasor is insured. Hence, the UM
and UIM carrier stands in the wrongdoer's shoes for purposes of paying damages.
KRS 304.39-320(2) requires “every insurer” to make available upon request UIM coverage to pay “for such
uncompensated damages as he may recover on account of injury due to a motor vehicle accident
because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon . . . .”
In other words, the UIM carrier is liable only for damages for which the insured would have been compensated but for the fact that the tortfeasor was underinsured. It follows that if the underinsured tortfeasor could not be held liable for an item of damages, that item is not “uncompensated damages” payable by the UIM carrier.
The UIM carrier is liable for damages only to the extent to which the underinsured tortfeasor is or could have been held liable.
Thus, it is clear that the holding in Samples is directed to the question of what damages an injured employee may recover from his own or his employer's UIM carrier; it neither addresses nor changes the law regarding an employer's subrogation rights as set out in State Farm v. Fireman's Fund.
The COA noted that while Samples makes clear that the UIM carrier's liability is measured by the liability of the
tortfeasor, it does not follow that payments made under a UIM contract are the payment of legal damages in the traditional sense. While the UIM carriers may stand in the shoes of the tortfeasor for the sole purpose of making the injured party whole, the UIM contract does not provide an additional right of subrogation not provided for in KRS 342.700(1).
Because the COA concluded that as a matter of law G&J is not entitled to subrogation against the UIM carriers, there was no error in failing to conduct an evidentiary hearing to resolve a factual question.
By Michael Stevens
The subject matter of this action to quiet title is a narrow gully beside a road that runs between the Arnold's and Patterson's respective real properties. The gully lies between the road and a fence on Patterson's property. The Arnolds claim ownership of the narrow strip of land on the far side of the dividing road up to the Patterson's fence. In contrast, the Pattersons claim that their boundary extends past their fence all the way to the dividing road, thereby including the gully between the fence and the road. The issue here is whether the dividing road or the Patterson's fence is the boundary between the parties' tracts
The Arnold's legal claim to title to the gully on the far side of the road from their tract is based on a deed executed by Jeanne Arnold to herself, containing a property description that she created. Naturally, the trial court gave little weight to this patently self-serving deed, especially in light of the fact that the
Pattersons' competing general warranty deed was obtained fter an arms-length purchase of their property from their predecessors-in-interest. The
Pattersons' deed covers the disputed gully and contains a property description prepared by a licensed surveyor.
Therefore, the trial court correctly gave the Pattersons' deed great weight. Furthermore, the record is devoid of any survey supporting the Arnolds' claim to the gully. Thus, the trial court's decision is additionally well supported by the survey evidence.
In any event, the record indicates that some twenty-five years ago, the Arnolds unsuccessfully sued the
Pattersons' predecessor-in-interest claiming certain portions of his land on the far side of the road. Under well settled rules against splitting causes of actions, the Arnolds should have raised their claim to the gully in that litigation, and so the failure to successfully do so bars their current attempt to claim it now.
Piecemeal litigation and splitting of causes of actions are highly disfavored. See Whittaker v. Cecil, 69 S.W.3d 69, 72 (Ky. 2002). Even were we to believe that the Arnold's equitable and legal claims to the disputed tract were sound, which we do not, we nevertheless could not countenance the Arnold's belated attempt to claim more land on the far side of the dividing road when the matter either was, or should have been, resolved twenty-five years ago in the prior litigation. AFFIRMED.
By Michael Stevens
CA affirms in part and vacates in part the $2.74 million jury verdict in favor of plaintiff-appellee in this Federal Employer's Liability Act
(FELA) toxic exposure case. The CA vacates only $200,000 speculatively awarded for future medicals in this thorough and succinctly-written opinion.
Plaintiff-appellee was exposed to solvents between 1978 and 1982 and suffered a permanent psychiatric neurological injury. A jury awarded him future medicals of $200,000; impairment of earning capacity $540,000; past pain & suffering $1 million and future pain & suffering $1 million. CSX appealled on issues of foreseeability; jury instructions; Daubert; causation; admission of evidence; and damage calculations.
CA held that ample evidence supported foreseeability under FELA and that the general negligence instruction given was not error. CA also found no error in admitting evidence of prior claims of solvent exposure by other employees as they occurred under "substantially similar" conditions. CA held, however, that plaintiff-appellee failed to present evidence upon which future medicals could be accurately calculated and that, therefore, the jury's award was speculative and must be vacated. Future lost wages, however, were awarded within the jury's ability to make its own determination. CA also held that the TC should have instructed the jury that lost wages are not taxable, but that, since the defendant failed to present evidence from which the jury could appropriately reduce the award, the failure was harmless error. Also, no error for failure to instruct jury to reduce the award to present value.
Digested by John E. Hamlet
NOT PUBLISHED (COA)
CHANEY v. WILSONWALKER
v. MACIAS
CIVIL PROCEDURE: BENCH TRIAL DETERMINATION OF CAUSATION IN MED
NEGLIGENCE CASE NOT DE NOVO REVIEWED
2006-CA-000844
NOT PUBLISHED: 71
DATE RENDERED: 7/13/2007
STEWART
v. HARLOW
CIVIL PROCEDURE: AGREED ORDER OF DISMISSAL AND RES JUDICATA; PARTIES TO
LITIGATION
2006-CA-001627
NOT PUBLISHED: 133
DATE RENDERED: 7/13/2007
SOSA,
SR. v. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT
INSURANCE: NO FAULT ACT; REPARATIONS BENEFITS TO BE PAID BY OBLIGOR AND
NOT TORTFEASOR; $1,000 THRESHHOLD
2006-CA-001693
NOT PUBLISHED: 79
DATE RENDERED: 7/13/2007
BAILEY
v. COM.
CRIMINAL: RCR 11.42 DENIAL AFFIRMED
2005-CA-002117
NOT PUBLISHED: 96
DATE RENDERED: 7/13/2007
ALLEN
v. COM.
CRIMINAL: COMPETENCY HEARING; "WAR ON DRUGS" THEME OF
PROSECUTOR; PROSECUTORIAL MISCONDUCT
2006-CA-000240
NOT PUBLISHED: 96
DATE RENDERED: 7/13/2007
JOLICOEUR
V. COM.
CRIMINAL: COUNSEL - STRATEGY AND EFFECTIVENESS
2006-CA-000331
NOT PUBLISHED: 97
DATE RENDERED: 7/13/2007
HAMMONS
v. COM.
CRIMINAL: ORDER EFFECTIVE UPON ENTRY BY CLERK
2006-CA-000717
NOT PUBLISHED: 81
DATE RENDERED: 7/13/2007
WILLIS
v. COM.
CRIMINAL: RCR 11.42 AND EFFECTIVE COUNSEL
2006-CA-000824
NOT PUBLISHED: 124
DATE RENDERED: 7/13/2007
BOURNE
v. COM.
CRIMINAL: INEFFECTIVE ASSISTANCE OF COUNSEL
2006-CA-001555
NOT PUBLISHED: 89
DATE RENDERED: 7/13/2007
KING
v. KING
FAMILY LAW: INCOME EXCEEDING CHILD SUPPORT GUIDELINES; 'THREE PONY
RULE'
2005-CA-000978
NOT PUBLISHED: 97
DATE RENDERED: 7/13/2007
BROWN
v. MCLAMB
WILLS AND ESTATES: PATERNITY AND HEIR DETERMINATION; EFFECT OF SOCIAL
SECURITY DETERMINATION BY ALJ; ATTORNEYS FEES PER KRS 412.070
2006-CA-001061
NOT PUBLISHED: 124
DATE RENDERED: 7/13/2007
LEDFORD
v. DANA CORPORATION
WORKERS COMP: BURDEN OF PROOF
2006-CA-002320
NOT PUBLISHED: 96
DATE RENDERED: 7/13/2007
Thanks to Scott Byrd, John E. 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.