JAN. 24, 2008 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2008:04)
PUBLISHED
(SCOKY)
Watson sued BEST FINANCIAL (BF), and after some litigation, the trial court entered a partial summary judgment in favor of BF. Later, the parties entered an agreed judgment disposing of Watson's last remaining claim, and the trial court made this order final and appealable via CR 54.02, despite BF having an outstanding counterclaim. Watson's counsel did not file an appeal within thirty days, and when he attempted to do so some six months after the date of the order, BF moved the COA to dismiss the appeal. The COA did dismiss the appeal as untimely, and this case followed.
The case discusses the history and purposes of CR 54.02, but the meat of the opinion is this: a trial judge can grant a final judgment on less than all claims when more than one claim for relief is presented in an action, even when the remaining claim is a counterclaim. The reviewing court's standard will be whether the trial court rendered a final adjudication on one or more claim in litigation, and, if so, whether such was an abuse of discretion. Trial courts are reminded that requests for CR 54.02 certification are not to be granted routinely or as favors to counsel, but must be evaluated on a case-by-case basis; for this reason, the SC is loathe to established fixed guidelines for the courts to follow in making their determinations. Finally, a word of warning: Watson argued his counsel never received the court's CR 54.02 order, as he had not yet been substituted in, and Watson's former counsel was given the order. The SC noted that while it sympathized with Watson's counsel's position (having entered the case after entry of final judgment under CR 54.02), all counsel have to act with reasonable diligence and promptness in representing clients. Part of those duties includes reviewing the court record. So look at those files, friends and neighbors, and remember: you ignore the CR 73.02 thirty-day appeal limit at your own peril!
CHERRY GUARNIERI
This case required SC to determine if indigent post-conviction petitioners are entitled to public funds for the travel expenses of their out-of-county witnesses in cases in which a court has determined that an evidentiary hearing is necessary to resolve the post-conviction motion. SC unanimously held in Stopher v. Conliffe that Kentucky Revised Statutes (KRS) 31.185 "does not apply to post-conviction proceedings." Despite Stopher's sweeping prohibition against the application of KRS 31.185 to post-conviction proceedings, approximately one year later SC issued Commonwealth v. Paisley which left open the possibility that KRS 31.185 could be used as a source for funding the hiring of expert witnesses for certain post-conviction petitioners . This divergent approach to the potential availability of public funds for indigent post-conviction petitioners has caused confusion. In an effort to eliminate that confusion, SC partially overruled Stopher and held that the special fund created in KRS 31.185(4) can be used to pay out-of-county witness expenses for indigent post-conviction petitioners, provided that a court has found that (1) the petitioner's post-conviction petition raises an issue that cannot be resolved without an evidentiary hearing and (2) the proposed out-of-county witness's live testimony at the evidentiary hearing is necessary for a full presentation of the petitioner's case.
SCOTT C. BYRD
In this high profile Jefferson County case, the SC reversed Defendant's conviction for murder due to the introduction of improper hearsay testimony. Here, the Defendant allegedly paid her son to murder her husband. TC allowed the Commonwealth to introduce statements made by her son to other witnesses implicating the Defendant. At trial, the son invoked his 5th Amendment privilege, thereby precluding any cross-examination. SC held the statements were impermissible hearsay, and thus, TC erred by permitting them throught the exception of statements made in furtherance of a conspiracy.
SCOTT C. BYRD
SC reversed the CA and reinstated Morgan's conviction for drug offenses. TC properly denied the Defendant's motion to suppress as the police had the requisite reasonable suspicion to conduct an investigatory stop of the Defendant's vehicle. After considering the totality of the circumstances, SC found that Sheriff's prior knowledge and his observations of Morgan and Evans adequately corroborated the anonymous tip. Therefore, the Sheriff possessed the requisite reasonable suspicion that Morgan and Evans were engaging in criminal activity to justify his investigatory stop.
SCOTT C. BYRD
SC reversed the CA and reinstated the final judgment of the Hardin Circuit Court denying Padila's RCr 11.42 motion. The unequivocal holding in Fuartado v. Commonwealth, 170 S.W.3d 384 (Ky. 2005), mandates that immigration issues are collateral consequences that are outside the scope of the guarantee of the Sixth Amendment right to counsel. It follows that counsel's failure to advise Defendant of such collateral issue or his act of advising Defendant incorrectly provides no basis for relief.
SCOTT C. BYRD
SC affirmed Defendant's convictions for attempted murder and intimidating a witness. However, Defendant's conviction for kidnapping was reversed and the matter remanded back to the Clay Circuit Court for resentencing. TC's error in failing to make the appropriate finding allowing a witness to remain in court was harmless. Defendant was not entitled to a directed verdict of acquittal on the attempted murder and intimidating a witness charges. Defendant should have been granted a directed verdict as to the kidnapping charge by virtue of his qualifying for the Kidnapping Exemption statute KRS 509.050.
SCOTT C. BYRD
SC reversed and remanded Defendant's convictions for manufacturing methamphetamine while in possession of a firearm and possession of a controlled substance (methamphetamine) while in possession of a firearm. The Commonwealth's failure to provide in discovery a copy of a recorded telephone call Grant placed from the jail was reversible error. While the Commonwealth learned of the recording during trial, it did not inform the Defendant of its existence until after Defendant had concluded his case and testified on his own behalf.
SCOTT C. BYRD
TC properly denied the automobile passenger's motion to suppress evidence of contraband seized from him during traffic stop. This appeal required SC to decide whether a police officer working a traffic stop may exercise discretion to conduct a pat-down search for weapons of a vehicle's passenger who exited the vehicle to accommodate a search of the vehicle incident to the driver's arrest, even if the officer has no independent suspicion that the passenger is guilty of criminal conduct. Analyzing the automatic companion rule as a matter of first impression in Kentucky, SC concluded that officer safety and public safety demand that the police officer have discretion to frisk the passenger under these circumstances.
SCOTT C. BYRD
SC reversed CA and ruled the juvenile session of the district court retains jurisdiction over a person (accused of committing a public offense before he turned eighteen years of age) after that person turns eighteen in order to conduct adjudication and disposition hearings, and to order and enforce orders of restitution.
SCOTT C. BYRD
Two issues were up on appeal. The first was whether the granting of summary judgment was improper with the appellants claiming genuine issues as to the initial permission; and the secon was to adopt the "initial permission" rule. The facts were that the owner of the car loaned it to her sister who later permitted her son to drive the car whereupon he had a serious accident resulting in fatality. Allstate denied liability coverage claiming the driver did not have permission from the owner with some evidence that the owner only permitted her sister's son to drive it to work and not to drive around town with his friends. The accident did not happen within the scope of the claimed permission. As to the extent of the permission given by the owner, the appellant claimed that should have gone to the jury.
However, SCOKY bypassed the summary judgment rule by adopting the "initial permission" rule, which defines the scope of permission one has to use a borrowed vehicle.
The SC addressed the rules regarding permission to drive within the context of the omibus liability coverage. The harshest rule is the "strict" rule which holds that coverage only exists if the use of the vehicle was one intended by the parties. The intermediate rule is the "minor deviation" rule, where coverage is extended under an omnibus clause as long as the deviation from the granted permission in using the vehicle is "slight and inconsequential, but not if it is substantial." Kentucky courts have historically applied the "minor deviation" rule in determining whether or not a deviation from the scope of permission invalidates coverage.
The third rule is the "initial permission" rule which allows for coverage even if the use of the vehicle was "not within the contemplation of the parties or was outside any limitations placed upon the initial grant of permission." Thus, as long as the original taking of the vehicle was with the permission of the named insured, any subsequent use of the vehicle by the borrower would be covered by the policy. 7 Am. Jur. 2d Automobile Insurance § 235 (2007). Any subsequent change in the character or scope of the use does not require express permission from the insured. Id. Such a change in the character or scope may involve the vehicle's initial borrower allowing a secondary user to borrow the car without the insured's express permission . Id. Even a person who was specifically prohibited from using the vehicle by the named insured can be covered through the omnibus policy if that specific person obtained consent from the initial borrower.
The 'minor deviation' rule had never been examined within the
context of the Kentucky Motor Vehicle Reparations Act, and this Court conclude
the 'initial permission' rule was consistent with the purpose of the MVRA.
Although the SC had previously reaffirmed the permissive use rule continued with
the adoption of the MVRA in Preferred Risk v. Kentucky Farm Bureau that case did
not address the standard to apply.
MICHAEL STEVENS
Note: I was the attorney representing KFBM in Preferred Risk v. KFBM
who represented and argued the continued application of the permissive rule
after the promulgation of the MVRA. However, in that case there was
no question that the defendant driver had stolen the vehicle and did not have
permission when he intentionally struck another car with it; he did not have
permission of the owner or the owner's daughter who had permission. This
explains why virtually all of the cases relied upon in the Preferred Risk v.
KFBM case back in the early 1990's which had knocked down exclusions
and expanded coverage failed to turn back the permissive use rule.
However, within the context of today and the question presented proved to
be adequate to the task of redefining permissive use and thus proved sufficient
to change the permissive use rule from minor deviation to initial permission.
Interestingly enough, most "conservative" judges like the easy application of rules, and the initial permission rule is clearly an easier rule to apply and less fact-determinative than attempting to apply successive minor deviations within the context of the initial permission.
The permissive use rule existed before the MVRA, and the MVRA did not change that rule. However, nothing stops the Court from redefining a rule within the context of today and addressing the question presented. Justice Liebson referred to this as the moving "stream" of the law, but I believe Justice O.W. Holmes called it simply interpreting the law within the context of experience.
PAPA JOHN'S INTERNATIONAL V. MCCOYKY TRANSPORTATION CABINET V. AMANDA GUFFEY, ADM'X OF ESTATE
OF JEREMIAH GUFFEY
TORTS: DUTY TO MAINTAIN PUBLIC ROADWAYS
2006-SC-000436-DG.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
OPINION BY CUNNINGHAM
DATE RENDERED: 01/24/2008
KY Transportation Cabinet, Dept. of Highways (KDOH) appeals COA's May 2006 decision that affirmed the TC's judgment in favor of Guffey (administer of husband's estate), which had reversed the final order of the Ky. Board of Claims (BOC) dismissing Guffey's claims. The COA's published decision was
previously digested in the June 2006 edition of the LawWire, and the facts relevant to both appeals court's decisions are as follows: While riding an ATV, Guffey's husband was killed by a suspended cable running across a roadway in Wayne County that is owned by the state, but had not been used by the public for over 20 years. The cable had been placed by an adjacent landowner in order to prevent access to their private property, and it was undisputed that the KDOH knew or should have known of its presence. Upon a complaint being filed with the BOC and a hearing having been held, the Hearing Officer entered his recommendations to deny the claim for 2 reasons: 1) The accident did not occur on a public roadway (as defined in the relevant statutes) so the deceased could not be considered a member of the traveling public since state law forbid ATV's from traveling on any public roadway; and 2) The accident was not foreseeable to the KDOH since it could not expect someone to operate an ATV on a public roadway in violation of state law. Guffey appealed the BOC's dismissal to the Wayne Circuit Court, which ruled that the KTC owed the deceased a duty to keep the roadway in a reasonably safe condition, to provide proper safeguards, and to give adequate warning of any dangerous condition. It found that the deceased's accident was foreseeable and that his illegal operation of the ATV on a public road did not preclude his estate's recovery since the BOC was required to apply a comparative negligence standard to the case. Guffey was awarded the maximum allowable recovery in a BOC action (less the allowed set-off).
On appeal, the COA affirmed the TC's ruling that the KDOH owed a duty to the deceased and that his accident and damages were foreseeable. The COA rejected the KDOH's argument that the deceased's violation of state law in operating the ATV was a superseding cause of the accident and injuries. The COA determined that the TC had properly weighed the comparative fault of the KDOH and the deceased in its decision since the latter would have to have been over 85% at fault for his estate to receive less than the maximum allowable recovery of $200,000 in the BOC. Judge Guidugli dissented as he felt that the deceased was not a member of the traveling public as that term is statutorily defined since ATV's are statutorily prohibited from being operated on a public roadway.
On to the Supreme Court, it unanimously affirmed the COA"s decision (which itself affirmed the TC decision) with regard to the existence of a duty on the part of the KDOH, ruling that the TC correctly addressed the principal legal issues raised by the KDOH on appeal. The SC felt the Appellant's arguments were inconsistent - if this stretch of unused roadway was, in fact, NOT a public roadway by definition, then how could the decedent be considered to have violated the statutory ban of ATVs on public roadways? The SC also had no trouble in affirming the COA and TC that the decedent's injuries and damages were foreseeable and easily distinguished the facts of the primary case relied upon by the BOC in its decision since it felt that a cable stretched across a public road by a known trespasser with full knowledge of this fact by the KDOH was certainly a treacherous trap. The SC also took issue with the BOC's finding that the decedent was not a member of the traveling public (defined as anyone lawfully using a public roadway), noting that this mindset would require a conclusion that all persons driving on public roadways with expired license plates, suspended drivers' licenses, etc. could be "mangled at will by state sponsored indifference." However, the SC did rule that the TC exceeded its authority under KRS 44.140(5) when it went on to make independent findings of fact as to damages as well as apportionment. The TC does not have the authority, when reviewing decisions of the BOC, to make an award when the BOC has refused to do so, but instead is limited to remanding the case to the BOC if the TC disagrees with its decision. Thus, the SC remanded this case to the BOC to make a proper apportionment of liability between the KDOH, the decedent and the adjacent landowner who installed and maintained the cable as well as issue an award of damages up to the $200,000 maximum.
CHAD KESSINGER
The workers’ compensation law provides a 30% increase in compensation if an accident is caused by an employer’s intentional failure to comply with a specific safety regulation. The Administrative Law Judge determined that the workers’ death resulted from a lack of warning devices, but that an intentional failure was not shown. The Supreme Court reversed, holding that an employer is presumed to know specific state and federal statutes and regulations concerning workplace safety, thus, its intent is inferred from the failure to comply. This does not apply to the general “safe work place” requirement of OSHA.
PETER NAAKE
The Supreme Court affirmed a finding that the Claimant’s entitlement to temporary total disability cannot be granted prior to a motion to reopen having been filed by the Plaintiff. In this case, the workers’ compensation insurance carrier disputed the need for a surgery and filed a motion to reopen. The Claimant had the surgery and filed a motion to reopen afterwards, claiming increased disability and temporary total disability. The Court eventually found that the surgery was reasonable, necessary, and related to the work related injury. However, the Court found that the claimant was not entitled to an award of temporary total disability benefits for a period of time before the motion to reopen for disability was filed. The Court also held that the carrier’s Motion to Reopen to contest a medical expense did not reopen the case for purposes of awarding temporary disability, nor was the defendant estopped from objecting to the award of temporary disability benefits.
PETER NAAKE
ATTORNEYS
Refer to minutes
2007-SC-000820-KB.pdf
PUBLISHED: 168
DATE RENDERED: 2/6/2008
2007-SC-000880-KB.pdf
PUBLISHED: 198
DATE RENDERED: 2/6/2008
NOT PUBLISHED (SCOKY)
CARRIER V. COM.RUBEN RIOS SALINA V. COM.2005-SC-000782-MR.pdf
RUBEN RIOS SALINAS V. TOM SIMPSON 2006-SC-000482-TG.pdf
RUBEN RIOS SALINAS V. COM. 2006-SC-000483-TG.pdf
PUBLISHED: 901
DATE RENDERED: 01/24/2008
JOHN LEE SCHELL V. COM.
2006-SC-000662-MR.pdf
PUBLISHED: 958
DATE RENDERED: 01/24/2008
ERVIN THOMAS JENKINS, JR. V. COM.
2007-SC-000047-MR.pdf
PUBLISHED: 925
DATE RENDERED: 01/24/2008
MARY HUTCHINS V. GENERAL ELECTRIC
WORKERS COMOP
2007-SC-000161-WC.pdf
PUBLISHED: 715
DATE RENDERED: 01/24/2008
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