Dec. 7, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:59)
PUBLISHED (COA).
STANFORD V. COM.Juvenile whose death sentence was commuted to life without the possibility of parole was not entitled to a new sentencing hearing following Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In Roper v. Simmons, the United States Supreme Court held unconstitutional the death sentence for offenders who were under the age of eighteen when they committed their crimes. At the time Roper was decided, Stanford was no longer under a death sentence, as his original sentence had been voided by commutation nearly fifteen months earlier. Roper therefore does not have retroactive application to Stanford's situation.
Scott C. Byrd
Olgin and Byrd
COM.
V. KENTUCKY PUBLIC SERVICE COMMISSION
GOVERNMENT: Public utility regulation; Environmental cost recoupment
2006-CA-002349
PUBLISHED: AFFIRMING
PANEL: ROSENBLUM PRESIDING; DIXON, LAMBERT CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 12/07/2007
At issue is the ability of Kentucky Power to recoup environmental surcharges it pays to two of its sister operating companies under the American Electric Power umbrella per an Interconnection Agreement in which it is required to make a capacity equalization payment which flows to two of these other power companies. Embedded within the capacity equalization payment are many generation related costs, one of which is the cost of environmental compliance equipment installed in the generating plants of those other two power companies.
KRS 278.183 provides a mechanism whereby electric utilities such as KP are entitled to immediately recover environmental compliance costs through a special environmental surcharge rather than having to wait until a general rate case to seek recoupment. Although the Public Service Commission is granted sweeping authority to regulate public utilities pursuant to the provisions of KRS Chapter 278, it is nonetheless a creature of statute and only has such powers as granted by the General Assembly. By any common understanding of that language, costs incurred by other utilities are not the costs of Kentucky Power. Here a reasonable interpretation of the statute is that KP's costs include those costs embedded within its capacity equalization payment which relate to environmental compliance costs incurred by the out of state generating facilities. Accordingly, such costs are “its costs" and the Public Service Commission has made a reasonable interpretation of KRS 278.183, and the COA will give deference to that interpretation under the Chevron doctrine. Thus the COA found nothing in the statute which would limit its application to costs incurred at KP's in-state physical facilities and over which the Commission has direct jurisdiction.
Michael Stevens
Cooke appeals a jury verdict in favor of CSX on his FELA claim stemming from alleged injuries he sustained on two separate occasions while on the job with CSX. Specifically, Cooke alleged that CSX failed to provide adequate lighting in his work area (paint shop) and wrongfully assigned him to perform a job by himself that safely required two employees to complete. Cooke alleged three errors by the TC, each of which was addressed by the COA as follows:
1) Cooke claims error in the language contained in the TC's liability instruction that read, "Do you believe from the evidence that CSX failed to exercise that care required of it, and that failure, no matter how slight, was a substantial factor in causing injury to the Plaintiff? Cooke contends that the wording does not comport with the model instruction set forth by the Kentucky Supreme Court in Hamilton v. CSX Transportation, 208 S.W.3d 272 (Ky. 2006), which disapproved of the use of "substantial cause" because it placed a higher common law burden on the plaintiff instead of the lower "in whole or in part" FELA burden.
The COA agreed, finding error in the TC's use of "substantial factor" in light of Hamilton and its error in failing to include acceptable causation language such as "caused in whole or in part" or "played any part, even the slightest." The COA did point out that this trial occurred before the Hamilton decision was rendered. The COA then rejected CSX's argument that Cooke had failed to preserve this argument for appeal by the failure to object to the instruction when both attorneys were asked by the TC during trial. The COA analyzed CR 51(3) and felt that Cooke's tender of a jury instruction that avoided the above-cited error preserved the issue for appeal, and did not feel that later statements made by Cooke's attorney on the record qualified as a clear waiver. The COA therefore ordered reversal of the judgment entered against Cooke on this issue alone.
2) Cooke secondly assigns error to the TC's exclusion of testimony from a rebuttal witness, Hughes, who previously worked for CSX in the same paint shop where Cooke alleged he suffered injury but only after the date of injury. On avowal, Hughes proposed to offer testimony contradictory to testimony of a CSX witness that the lighting in the paint shop as shown in a video taken almost a year after the injury date fairly and accurately depicted the lighting conditions at the time of the earlier Cooke injury date. The TC had excluded the testimony since Hughes had no personal knowledge of the lighting in the shop at the time of injury before the date of his hire.
The COA noted that Hughes' avowal testimony stated his belief that the lighting was insufficient at the time of his hire, that he complained about it to CSX, and that CSX later installed additional lighting making the paint shop brighter before the video was taken. While the COA did not believe the TC's exclusion of his testimony was an abuse of discretion that alone would warrant a new trial, it nevertheless ruled that Hughes should be permitted to testify at the new trial as ordered above.
3) Cooke's final argument on appeal was that the TC erred in directing a verdict on his claim that CSX failed to provide adequate assistance for his job duties by requiring him to paint rail cars at the same pace as that previously performed by two employees together. TC felt that Cooke had failed to offer any evidence to warrant the claim going forward to the jury.
The COA agreed with the TC, noting that Cooke offered no expert testimony to support this theory and pointing out that his argument ignores the undisputed evidence that at the time of the alleged injuries, the number of cars painted per shift was only one-half the number painted when two persons previously performed the job duties.
Chad Kessinger
Schiller, Osbourn, Barnes & Maloney
John
Hamlet
Sitlinger,
McGlincy, Theiler & Karem
NOT PUBLISHED (COA)
KENTUCKY
SCHOOL BOARD ASSOCIATION V. JEWELL
INSURANCE: UIM subrogation and workers compensation; credit for pip
paid and payable
TORTS: Assigning of workers compensation and subrogation
2006-CA-001995
NOT PUBLISHED: 122
DATE RENDERED: 12/07/2007
SCHROADER
V. BRE/HOMESTERAD PORTFOLIO, LLC
TORTS: PREMISES LIABILITY for invitees
2007-CA-000331
NOT PUBLISHED: 92
DATE RENDERED: 12/07/2007
SCHLATTERER
V. SCHLATTERER
FAMILY LAW: Child visitation guidelines (local) and presumptive weight
improperly given
2005-CA-001632
NOT PUBLISHED: 89
DATE RENDERED: 12/07/2007
MCDONALD
V. COM.
CRIMINAL: 11.42
2006-CA-000661
NOT PUBLISHED: 90
DATE RENDERED: 12/07/2007
CORMAN
V. SDK CORP.
TORTS: FUTURE NUISANCE
JURISDICTION: SEPARATION OF POWERS
2006-CA-001081
NOT PUBLISHED: 93
DATE RENDERED: 12/07/2007
GARCIA
V. COM.
CRIMINAL: Motion for directed verdict
2006-CA-001630
NOT PUBLISHED: 78
DATE RENDERED: 12/07/2007
DAVIS
V. COM.
CRIMINAL: 11.42 and Ineffective assistance of counsel claim and trial
strategy
2006-CA-001634
NOT PUBLISHED: 106
DATE RENDERED: 12/07/2007
NONES
V. CHARLES
CIVIL PROCEDURE: No direct evidence in support of claims of killing pets,
etc.
2006-CA-001904
NOT PUBLISHED: 83
DATE RENDERED: 12/07/2007
ROUSE
V. COM.
CRIMINAL: 11.42
2006-CA-002308
NOT PUBLISHED: 109
DATE RENDERED: 12/07/2007
ROBBINS
V. COM.
CRIMINAL: COPS NOT PER SE DISQUALIFIED AS JURORS BECAUSE OF OCCUPATION
2006-CA-002437
NOT PUBLISHED: 83
DATE RENDERED: 12/07/2007
FRIED
V. COM.
CRIMINAL: Plain view search and seizure
2007-CA-000034
NOT PUBLISHED: 76
DATE RENDERED: 12/07/2007
KELLY
V. COM.
CRIMINAL: Arrest and search of dwelling
2007-CA-000222
NOT PUBLISHED: 88
DATE RENDERED: 12/07/2007
HENRY
V. COM.
CRIMINAL: Withdrawal of guilty plea denied upon rejection of drug
court
2007-CA-000504
NOT PUBLISHED: 57
DATE RENDERED: 12/07/2007
ROWE
V. HICKS
FAMILY LAW: Venue for bringing grandparent visitation
2007-CA-000971
NOT PUBLISHED: 89
DATE RENDERED: 12/07/2007
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