MARCH 20, 2008 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2008:14)
PUBLISHED
(SCOKY)
The contract involved in the Court of Appeals case Speedway SuperAmerica, LLC v. Erwin, 2007-CA-000451-MR (March 21, 2008)(to be published) was drafted by Speedway and designed to have Sebert Erwin be an independent contractor for Speedway. It also provided that Sebert would indemnify and hold harmless Speedway for any damages arising out of any breach of the contract. Further, Speedway expected Sebert to get $300,000 in insurance that also insured Speedway plus his own workers’ compensation insurance. The contract was for five (5) years, but Speedway could cancel it any time they wanted for any reason whatsoever, but Sebert could not do the same. He also was restricted from assigning the contract to someone else. Basically, the contract mainly benefited Speedway and provided no protection for Sebert.
Sebert had considerably less sophistication regarding contracts; the Court pointed out that he had an eighth (8th) grade education. One day, Sebert was directed to help move a different station to move a walk-in freezer. While assisting in that task, Sebert fell and was injured so he sued Speedway. Speedway counter-sued to enforce the indemnification clause of the contract.
The trial court dismissed Speedway’s counterclaim because it found that the indemnification clause was not clear and understandable enough for an ordinary person to understand what he or she was contracting away basing its decision on Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). Speedway appealed and argued that rule only applied to pre-injury releases and, instead, this was an indemnity provisions. They cited case law of Fosson v. Ashland Oil & Refining Co., 309 S.W.2d 176 (Ky. 1958) that found such a provision valid.
[If you have a greater interest in the process and reasoning of the court, please read the decision.} The Court agreed that the provision Sebert signed more closely resembled the provision in Fosson, but also agreed with the trial court that it did not meet the requirements set forth in Hargis.
The Court decided that it did not matter which case law was applied to this particular contract because the guiding principal fit both pre-injury releases and indemnification clauses. The holding of the Court is that when a contract that is used to defend against the indemnitee’s own negligence is “agreed to by a party in a clearly inferior bargaining position” (Id. at 9) then it is against public policy and not enforceable. In other words, by taking advantage the less sophisticated Sebert and trying to have all the protection and none of the risk, Speedway made their contract unenforceable.
This is a narrow holding by the Court is that such indemnification provisions are generally enforceable. Even if the specific holding narrowly rests on the differential bargaining power, the court highlighted other issues:
1) The contract allowed for one-sided termination of the contract.
2) The contract allowed for termination for any reason.
3) The contract denied assignability for any reason.
4) The contract tried to make the worker an Independent Contractor but in actuality the business still controlled how the worker performed their tasks.
5) The contract required the other party to waive a lien or other mechanism for insuring they get paid.
G. A. Napier
Digested by Scott C. Byrd
SC affirmed Beckham's convictions and life sentence for murder and PFO 1st. The Court rejected Beckham's contentions that 1.) TC erred by denying his motion to suppress incriminating statements he made to police during a lengthy interrogation process that preceded Miranda warnings; and 2.) TC violated his Sixth Amendment right to counsel by prohibiting him from discussing his testimony with his attorneys during an overnight recess that interrupted his cross-examination by the Commonwealth.
This case presents some factors suggesting that Beckham was in custody, primarily the length of the interrogation and the presence of multiple officers. But the weight of the evidence tends to show that Beckham was not in custody. Specifically, the officers testified that they informed Beckham he was free to leave and that Beckham never showed any inclination to leave or otherwise to stop speaking and cooperating with them. And Beckham offered nothing at the suppression hearing to rebut the officers' testimony. So, on balance, SC concluded that the trial court correctly determined that Beckham was not in custody.
In separate decisions, the United States Supreme Court has held that a court cannot prevent a criminal defendant from having any consultation with his attorney during an overnight recess but that it is constitutionally permissible for a trial court to bar a testifying defendant from consulting with his attorney during a briefer recess. Citing the second opinion, Perry v. Leeke, 488 U.S. 272, 283-84, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), SC held that TC's actions attempted to protect the integrity of the proceedings and did not impermissibly limit all attorney-client contact during the waning minutes of the overnight recess, and therefore, TC's admonition to counsel did not abridge Beckham's Sixth Amendment right to counsel.
Digested by Scott C. Byrd
www.olginandbyrd.com
The single issue on appeal in this case is whether the bare title holder of a vehicle, which is in fact under the dominion and control of a defendant who used the vehicle for drug trafficking, is the "owner" of the vehicle for purposes of forfeiture pursuant to KRS 218A.410(h)(2). Because Coffey acted as the owner of the Malibu, even though legal title was held by his sister, Geralean, he had an "interest in property" under KRS 218A.405(1)(b) and (5)(b). Geralean presented no evidence to establish that she was the innocent owner of the Malibu. She was present and represented at the hearing on forfeiture conducted by the trial court, but did not establish any indicia of ownership other than holding legal title to the vehicle. To the contrary, she claimed no knowledge as to why the vehicle was titled in her name, did not use it, and took no responsibility for items found in it. Consequently, under this statute and the facts of this case, Coffey is the owner of the Malibu for purposes of the forfeiture statute, and the trial court ruled correctly. The Opinion of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.
Ex-Wife raised 2 claims of error to SC: (1) that CA erred in affirming TC’s decision not to grant a hearing on evidence arising subsequent to DRC’s oral ruling ; and (2) that CA improperly applied the facts and holdings of Dubick v. Dubick, 653 S.W.2d 652 (Ky.App. 1983) to the case.
DRC took the parties’ dissolution action under consideration for final hearing on April 27, 2000. At the hearing's close, DRC issued oral ruling from the bench and directed Ex-Wife's attorney to draft an Order. That Order was never drafted by Ex-Wife's attorney and neither party brought this fact to TC’s attention. No action was taken to finalize the divorce until, four years later, Ex-Wife’s new attorney entered an appearance and requested a new hearing due to the delay and the parties’ changed financial circumstances. DRC recommended that no further hearings be held, and TC affirmed this recommendation. After hearing Exceptions filed by Ex-Wife, TC rendered a decision stating that either party could have requested written findings at an earlier date, but failed to do so.
SC noted that KRS 454.350 mandates a specific duty that DRC shall submit findings and recommendations necessary for an order within 90 days of the hearing. Here, SC found that DRC delivered his ruling orally, but did not follow through to see that it was reduced to writing, the form in which it had to be in order to send it to TC for final adjudication. Ex-Wife argued that the mandatory language of the statute thus voided the oral ruling, and another hearing should have been held. Ex-Wife would then be able to introduce new equitable issues as to the circumstances of the parties, which could result in a different division of the marital property. However, in Dubick this SC stated that even if there is a violation of KRS 454.350, any resulting late judgment or report is not void because of tardiness. SC found that the main difference between this case and Dubick is the amount of time that lapsed between the decision and the entry of the order and that the four years that passed in this case is a substantially longer period of time. Nonetheless, SC held that if the KY legislature had intended the judgment to be void when rendered more than ninety days after the hearing of the cause, it would be contained in the statute. Ex-Wife suffered no actual damage as she will receive whatever assets under DRC's findings she would have received four years ago, and she knew what those assets and debts would be due to the oral findings given at the original hearing in 2000. SC noted that allowing a new hearing in this case could encourage parties to purposely delay submitting orders, hoping they could force another hearing (and possibly a better result) at a later time.
SC noted that an attorney who is instructed by TC to draft and submit an order, and who fails to do so, may be charged with violating SCR 3 .130-1.3, requiring the attorney’s due diligence. Finally, SC stated that Ex-Wife also had another remedy for the delay that she did not uses—seeking a mandate of TC or else ask that the order of reference be set aside. TC’s order affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates
CRAIG &
BISHOP, INC. V. PILES
TORTS: CONSUMER PROTECTION ACT applied
to attempted used car sale even tho not yet "purchasers"
2005-SC-000999-DG.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART
OPINION BY MINTON
JEFFERSON COUNTY
DATE RENDERED: 3/20/2008
The SC began by declining to weigh in on the COA's reversal of the fraud finding (which was on the basis that the alleged misrepresentations concerned predictions of future events) since it was unnecessary to the case's resolution in light of their decision on the KCPA violations under which the same awarded damages could be sustained. Concerning those KCPA claims, Appellant had argued that since the sales transaction was never completed Appellees were not "purchasers" and therefore ineligible to bring an action for KCPA violations under KRS 367.220(1). The SC noted the purpose of the KCPA was to provide broad protection to consumers victimized by unlawful and deceptive trade practices, and concluded that under the facts of this case Appellees qualified as purchasers since they took possession of the Camaro after a period of negotiation and after giving value by signing over the Nissan title. The SC also rejected Appellant's contention that they could not be purchasers since there was no valid contract executed, noting that nowhere in the KCPA is a binding contract explicitly required before a purchaser has a private right of action for unlawful trade practices. The SC also refused to address Appellant's argument that the COA erred by finding that liability for future promises (such as financing guarantees) is possible under the KCPA, noting that this argument was not preserved for review in the TC and therefore was not properly before the COA. The SC did offer some dicta on this particluar issue by stating the argument that sellers could never be held liable for future predictions is suspect given the KCPA's broad range of protection and especially where the future predictions might relate to the seller's own conduct or other events under seller's control. The SC did point out that the Appellees alleged a number of other deceptive acts by Appellant that did not involve future events or predictions on which the jury could reasonably base its award for the KCPA violations.
Next, the SC addresses Appellant's argument that the punitive damages instruction was improper since there was no way to tell whether the award was based solely on the conversion or was based, at least in part, on the fraud and KCPA violations claims. The SC again held that this issue had not been properly preserved since the record failed to show that Appellant requested the TC to instruct the jury to indicate on which specific claim it was basing its punitives award. At any rate, the SC noted that the KCPA expressly provides that punitive damages may be awarded in appropriate cases, and that they may also be awarded for conversion if the defendant's conduct is especially reprehensible. Turning to the amount of punitives awarded, the SC rejected Appellant's argument that the $50K award was grossly excessive. The TC had determined that the award did not appear excessive "at first blush," and the SC expanded that ruling by holding that the award passes muster under the US Supreme Court's constitutional factors (categorizing the 6.0 compensatory to punitives ratio as significant but not ridiculous) and that the "degree of reprehensibility of the conduct at issue was significant." By reference to the Kentucky AG's Office discussion on this topic contained in its amicus brief, the SC also implies that a higher than average damages ratio may likely be more acceptable in consumer protection cases where the deterrent effect of punitive damages is more crucial since the economic harm actually suffered by the claimant will generally be small.
To conclude, the SC agreed with Appellees' cross appeal argument that the COA erred by vacating the jury award ($3,000 to Warner and $1,500 to Piles) for inconvenience damages as duplicative of the $2,100 award to Warner for loss of use of the Nissan (that he solely owned) from the time the Camaro was returned to when he purchased another vehicle (6 months later). No loss of use was awarded to Piles so without the inconvenience award she would not recover any compensatory damages at all, a result the SC clearly found erroneous in light of the alleged conduct of Appellant. The SC pointed to the trouble Piles encountered trying to return Camaro several times, the numerous telephone calls between the parties affecting her work, being deprived of transportation, etc. as evidence of "real injuries with significant monetary ramifications" for which the inconvenience damages award to both Appellees was proper and not duplicative of the loss of use award, which was only for the period after the Camaro was returned.
By Chad Kessinger, Schiller Osbourn
Barnes & Maloney
The Supreme Court reverses (Jefferson Cir. Ct.).
The appellee suffers from cerebral palsy and uses crutches for walking and balance. She worked for Humana from 1995 to 2001, when she was terminated due to an alleged reduction in force. She was given 12 weeks severance pay and 12 weeks continued health and dental benefits. She executed a release and agreement of "any and all claims" against Humana. In 2004, she filed an action alleging disability discrimination, violation of KRS Chapter 344 and outrageous conduct. She alleged that
during her tenure at Humana she was constantly harassed, intimidated and treated outrageously, including being pushed; having her crutches kicked out from under her; and having paperwork moved so that she had to make efforts to retrieve it. She alleged she constantly complained, but her supervisor and human resources refused to take any action. She also alleged that she was not offered the opportunity to interview for other positions in the company when other employees were.
She further alleged that the release and agreement she signed was presented to her as a "confidentiality agreement" by her superviser on the day she was fired with a demand to sign it immediately unread and a denial of a copy for her records, on threat that she would not receive her last paycheck. The TC granted Humana's motion to dismiss. On appeal, the order dismissing the action was vacated and the case remanded to allow the appellee time to conduct discovery on the issues in the motions to dismiss and for summary judgment. The Court of Appeals also asserted that a release could not waive a statutory right, as alleged in this case.
The Supreme Court holds that, if the release is valid and enforceable, it is effective to waive a plaintiff's right to bring a claim, whether statutory or otherwise. Curtis v. Belden Electronic Wire and Cable, 760 S.W.2d 97 (Ky. App. 1988) is overruled to the extent it is in conflict with American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688 (Ky. 2002).
Digested by John E. Hamlet
SC affirmed ALJ's holding that reopening claim was not time
barred finding that the statutory amendment adding an exception to the four-year limitations period for reopening a workers' compensation claim after original
award existed for a claim seeking temporary total disability benefits during period of original
award was is a remedial provision involving a change to the procedural requirements for reopening, and thus, the exception applies retroactively to original claims that arose and were decided before the amendment's July 14, 2000 effective
date. Furthermore, the employer's denial of claimant's request to reopen was unreasonable, and thus, claimant was entitled to interest on past-due benefits at statutory rate of 18 percent and to award of attorney fees.
ATTORNEYS
2007-SC-000913-KB.pdf
NOT PUBLISHED: 465
DATE RENDERED: 3/20/2008
2008-SC-000088-KB.pdf
NOT PUBLISHED: 437
DATE RENDERED: 3/20/2008
NOT PUBLISHED (SCOKY)
PITSONBARGER V. COMOLSON V. COM
CRIMINAL: 12 ISSUES RAISED!
2005-SC-000592-MR.pdf
NOT PUBLISHED: 2055
DATE RENDERED: 3/20/2008
NEW V. COM
CRIMINAL: CONFLICTS
2005-SC-000998-MR.pdf
NOT PUBLISHED: 1150
DATE RENDERED: 3/20/2008
FRYE V. COM
CRIMINAL: MISTRIAL AND CLOSING ARGUMENTS
2007-SC-000061-MR.pdf
NOT PUBLISHED: 729
DATE RENDERED: 3/20/2008
KROGER INC. V. JAMES
WORKERS COMP: FALSE APPLICATION AND FAILURE TO FOLLOW MEDICAL ADVICE
2007-SC-000247-WC.pdf
NOT PUBLISHED: 679
DATE RENDERED: 3/20/2008
MORMAN V. COM.
CRIMINAL: LAW OF CASE
2007-SC-000286-MR.pdf
NOT PUBLISHED: 613
DATE RENDERED: 3/20/2008
TAYLOR V. COM
CRIMINAL
2007-SC-000476-MR.pdf
NOT PUBLISHED: 584
DATE RENDERED: 3/20/2008
Contributors: