Kentucky's Legal Headlines for November 2001

• Dailey News Wires from the month of October
• Articles and Commentary from on or about the month

Articles & Commentary

• Louisville Lawyer Permanently Disbarred 11.24.2001
• Jefferson Prosecutor Joe Gutmann resigns to teach high school 11.24.2001
• $1.7 Million Med Mal Case in Fayette County 11.24.2001
• "Injury Lawyers" approved for television ad 11.24.2001
• Kentucky Bar Association Takes Issue with Supreme Court's Reinstatement of Hubbard's Law License.  11.19.2001
• $1.1 Million Bad Faith Verdict in Jefferson County. 11.10.2001
• Did you know that the Worker's Comp site has lotsa forms and publications available on-line?  All the WC forms are in PDF and MS Word format.  Great!  11.10.2001
• Look up zip codes 11.8.2001
• Crashtest Data on Vehicles 11.8.2001
• Fed Guidelines for Drunk driving, crashes, etc. 11.8.2001
• 2 Ky.Npo. 16 Extracts
• Perverts Prominent in the Press Lately 11.4.2001
• Some high profile cases back in the news 10.30.2001
• 2 Ky.Npo. 15 Extracts.  10.24.2001
• Mistrial declared after jurors in Clark County televised trial can't reach verdict.  10.23.2001
  • Circuit Court Goes on Cable TV in Clark County 9.30.01
• Tips on Service of Process on Corporations, LLCs, and Insurance Companies in Kentucky and US 10.22.2001
• Hatfields vs. McCoys - At it in court 10.17.2001
• ABA Rates Bunning and Other Bush Nominees to Federal Bench in Kentucky 10.16.01
• Jefferson County Drunk Driving Conviction Rate going, down, down, down 10.16.2001
• Wanta know how to search this site? 10.14.2001
• Some tips on making the leap from big firm to solo practice (FindLaw article) 10.10.2001
• Med-Mal Case in Northern Kentucky 10.10.2001

• The state Supreme Court has permanently disbarred Louisville lawyer Charles H. Zimmerman Jr. after finding that he mishandled five cases in which he represented clients and lied to an auto-repair shop about an insurance check.
• CJ Article
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• Joe Gutmann -- widely considered Jefferson County's premier prosecutor -- is giving up the courtroom for the classroom.
• Gutmann, who has been with the Jefferson County Commonwealth's Attorney's Office for 19 years, turned in his resignation Tuesday and starts work as a U.S. history teacher at Central High School on Monday. He had been entertaining the idea of a career change for several months.
• CJ Article
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• Tonya Oliver has been unable to see anything but a blur out of her left eye for the past three years -- ever since she had four LASIK operations within one year.
• This month, a Fayette County jury decided that Oliver's doctor, Thomas Abell of Lexington, had botched her surgery so badly that he should pay her $1.7 million.
• LasikLawNews Web Site
• Lasik-Litigation Web Site
• CJ Article
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• Use of the phrase ''injury lawyers'' does not make a claim of special expertise that is prohibited in advertising for lawyers, the Kentucky Supreme Court ruled.
• The Kentucky Bar Association had complained about advertisements by the firm of Hughes & Coleman, which has offices in Bowling Green, Louisville, Lexington and Tennessee.
• The firm used the phrase ''injury lawyers'' in two rounds of television commercials that the bar association's attorney advertising commission either approved or did not rule on.
• The third series was rejected because the bar association said the phrase implied that the lawyers at the firm were ''specialists.'' Kentucky law does not recognize specialties of legal practice, though as a practical matter most lawyers now concentrate on a few areas.
• CJ Article
• KBA Web Site Regarding Lawyer Advertising Rules
• ABA Web Site on Lawyer Advertising
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• The Kentucky Bar Association is questioning the state Supreme Court's decision to reinstate the law license of Carroll Hubbard, a disgraced congressman who went to prison in 1995 for stealing public money.
• The Kentucky Supreme Court voted 7-0 last month to reinstate Hubbard's license reversing a 16-0 vote against Hubbard by the KBA Board of Governors, which said there wasn't enough evidence Hubbard has the moral character needed to practice law.
• The KBA has now filed a motion with the Supreme Court seeking clarification of its decision.
• Click here for rest of Lexington Herald Leader's story.
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• Here is one for the books.  I just heard about a recent insurance bad faith case which resulted in approximately $1.1 million jury verdict award for the plaintiff. Why hasn't the CJ made a reference to this one yet?
• Who?
  • Plaintiff - Burk
  • Defendant - USAA - United Services Automobile Association
  • Plaintiff's Lawyer - Lee Sitlinger
  • Defendant's Lawyer - Wayne Carroll
• Where?  Jefferson Circuit Court, Judge Mershon presiding.
• What?
  • I don't know much about this one, but what I have been able to find out briefly was that it involved a wrongful death case.
  • The passenger's estate (young girl under 18) sued the driver.  Some but not all PIP was paid by the carrier (USAA).  Apparently, the adjuster was slow in responding to settlement, placed inadequate reserves, and basically breached the 'Chinese Wall'.
• I'll get some more later on this one.
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• Use the U.S. Postal Service site to quickly determine 
  the 9 digit Zip Code for any address. 
• www.usps.com/ncsc/lookups/lookupzip+4.html
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• This site offers crash data on virtually every car and may be useful to car buyers.  
• www.Crashtest.com
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• The National Highway Traffic Safety Administration’s “Desk Book” fro police officers contains federal guidelines on everything from field sobriety testing, breath machines and traffic stops to highway engineering and railroad grade crossing safety.  It could potentially be used as evidence as to whether proper standards were met. 
• www.nhtsa.dot.gov/people/injury/enforce/DESKBK.html
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• Appeals
  Court order is not final and appealable if it does not include 'no just cause for delay.'
• Attorneys Fees
  Challenges to courts failure to award attorneys fees in divorce require joining attorney as a party to action.
• Bifurcation of Trial
  Bifurcation of statute of limitations issue from underlying negligence and damage issues permitted in medical malpractice trial - convenient and expedient in complex case.
• Domestic Relations
  Retroactive child support allowed in motion to modify custody.
• Domestic Relations
  Lion's share distribution of assets reversed as one-sided.
• Domestic Relations
  MD gets away with three years of of alimony at $3k per month after 20 year marriage when wife can earn $20K to $45K per year and the doctor makes $565,000 per year.
• Grandparents Visitation
  Allowed over parent's mere objection.
• Jury Instructions
  Can't complain on appeal if the trial court gives the instructions you tendered.  
• Open Records Request
  Requesting party may be entitled to compensation even if records ultimately produced.
• Premises Liability
  Defendant wins on directed verdict - court rejects res ipsa theory and plaintiff cannot show how or why jar of peanuts fell of shelf causing her to slip and fall.
• Premises Liability 
  Plaintiff's jury verdict reversed on appeal - plaintiff's proof insufficient to show Wal Mart knew or should have known of the wet floor hazard - even though four persons had fallen on floor including Wal Mart manager. 
• Remittitur
  Remittitur not allowed.  If court thinks damages excessive, then remedy is to set aside the verdict and ordering a new trial.
• Sovereign Immunity
  Cop working accident scene gets sovereign immunity even when performing ministerial duties of 
• Voir Dire and New Trial
  Motion for new trial based on jury irregularity in dental malpractice action.  Although she had a prior problem with a dentist, she said she could be fair, but later had questions on her fairness after pain and suffering brought up in telephone call with her husband who reminded her about when thought of suing her oral surgeon.  Court of App. held she was not misleading in her answers and burden on counsel during examination of juror.
• Witness Immunity
  State social working entitled to absolute immunity for conduct during official state investigation.  Immunity does not extend to independent actions outside of investigation.
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• Convicted child molester's presence in Louisville area worries neighbors
• Critics say sex-offender notification law flawed; online list incomplete
• Texas judge orders offenders to post signs
• KOOL - Kentucky's OnLine Offender Lookup
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• Mel Ignatow is back and like a bad dream won't just go away.  His lawyer now says Mel admits he lied.  Although this is not a news flash, it does narrow the issue in the state perjury trial and focuses the issue now on whether or not the lie was material as it relates to his relationship with Brenda Sue Schaefer.  Click here.
• Vic Taylor's conviction for the killing of two Trinity High School students in 1984 has been upheld for the second time by the Kentucky Supreme Court with a sharp rebuke in Justice Keller's dissent.  Click here.
• Aaron Hardin, who at age 16 was sentenced to 22 years in prison for killing his 13-yearold brother, won't be released until he's at least 18,  ruled Jefferson Circuit Court James Shake. Click here.
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• Civil Procedure - Summons
  Service is effected by delivery of the envelope in return receipt mail, even if the return receipt is not filed in the pleadings and instead was sent to the plaintiff's lawyer;  default judgment for damages was held proper without hearing when defendant did not respond to requests for admissions.  page.4
• Civil Procedure - Default Judgment
  Default judgment held proper against party who failed to cooperate with discovery.  Page 17.
• Domestic Relations - Attorneys Fees
  Award of attorney's fees in error when financial resources are roughly equal.  page 9.
• New Trial - Insurance Mentioned
  New trial was properly granted when verdict was against the weight of the evidence and the jury had asked about insurance during deliberations.  Page 36.
• Probate - Attorneys Fees
  Probate court has jurisdiction over attorneys and executor's fees even if the amount in controversy exceeds the jurisdictional limits of the district/probate court.  Original action may not be brought in circuit court.  Page 35.
• Punitive Damages
  No error in assessing punitive damages 4 times compensatories.  Page 17.
• Real Property - Adverse Possession
  Simply caring for the adjoining property by cutting grass, planting flowers etc does not constitute sufficient hostile actions to support adverse possession.  Page 11.
• Summary Judgment - Negligence
  SJ affirmed in jet ski accident and in favor of defendant marina.  Suit filed by plaintiff who was struck by a jet ski rented by marina and operated by child of renter BUT the child was not authorized to use the jet ski per the rental agreement. Page. 27.
• Summary Judgment - Auto Negligence
  Summary judgment affirmed against plaintiff  who rear ended defendant driver in stop-and-go traffic. Page 19.
• Summary Judgment - Products Liability
  SJ affirmed when plaintiff failed to show proof of which manufacturer (all were before the court) actually suplied the defective steel pipe. Page 23.
• Trespass - Elements
  Must show the plaintiffs were the owners of the property in question. Page 25.
• Res Judicata - Bankruptcy adjudication & issue preclusion
  Texas bankruptcy courts' finding that oil leases are valid precludes relitigation of that issue in state court.   The status of the leases had been adjudicated and the losing party was estopped per issue preclusion from relitigating the matter whether it be a question of law or fact.  Page. 29.
• Res Judicata - Finality
  Res judicata only applies to final judgments so that matters reversed on appeal are not final.  Page 30.
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• The malpractice trial of a Winchester dentist has ended in a mistrial after the jury was unable to reach a verdict after hours of deliberation.
• The jury was unable to determine if Dr. John Gray was negligent while performing oral surgery on Walter Wilson. Wilson alleged Gray damaged a nerve in his jaw, resulting in permanent numbness in his face and tongue.
• The interesting thing about this trial was not the parties, not the attorneys, not the court room, not the issues. Then what was it????  The entire trial was aired on the new court television channel.
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• Here's a tip that should save you time and money.  Sites to go to for locating agents for service of process - nationwide list of individual state links and links in Kentucky for corporate and LLC agents, as well as those for insurance companies.  
• Some helpful Kentucky links:
  • General info on costs for process using Kentucky Secy of State. Procedures and fees.
  • Corporate and LLC database for locating resident agents for service of process.
  • Insurance company agents for service of process at DOI.
  • These links can be permanently found on our site under Kentucky Topics, Summons.
• Nationwide links and assistance:
  • Index for Resident Agents Organized by each state!
  • Serve-em - Process servers and rules for service organized by each state.
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• Hatfields and McCoys are at it again.  This time, however, the hired guns are lawyers rather than guns.  
• Cemetery access denied. Courts may have to settle this one.
• Article from Findlaw
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• At one time, arrests for dui/drunk driving in Jefferson County ended up in convictions.  Now the chances have dropped from 70 % conviction rate to 40 % conviction rate.  The drop has been precipitous and partially to blame on the wording of the statute and recent interpretations by the courts to the new DUI law (click here for more on that old story about the defective warnings from the Lex Herald Leader).  However, the drop started before that.  Could be lax enforcement, inadvertent shift in priorities, aggressive defenses by local lawyers.  Whatever, the reason - County Attorney Irv Maze has now brought it out in the open and will be addressing it more precisely and uniformly.  
• Click here for the CJ article on this.
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• The American Bar Association has rated Assistant U.S. Attorney David L. Bunning as ''unqualified'' to serve as a federal judge.  A majority of the bar association committee that reviews the qualifications of judicial nominees rated Bunning as ''unqualified.'' A minority on the committee gave him a ''qualified'' rating.
• A majority said Danny Reeves, a partner in a Lexington law firm.  is ''qualified.''
• Thought for the day:  If the American Bar Association says he is unqualified, then why is Sen. Mitch 'Mack the Knife' McConnel and Sen. Jim 'Low and Outside' Bunning making such a push for Kentucky's Favorite Son (or at least Senator Jim Bunning's son?
  • Could it be nepotism?  
  • Could it be that the wishes of the people don't matter?
  • Could it be that the state of justice and the judiciary are minor considerations?  
  • Could it be blood is thicker than water?  
• Who knows.  But there is a definite aroma coming from the Kentucky side of the Capitol Dome in DC with Tweedle Dee and Tweedle Dum taking a tandem ride on this nomination.  Just because the country is currently in crisis mode, does not mean we should allow a decision to be made which we all have to live with for another 30+ years!!  
  Daddy, Daddy, I wanna robe too!  Can I play judge and have a hammer to pound over those lawyers who think I'm unqualified???
• For complete story
  • ABA- David Bunning unqualified for judgeship
  • David Bunning unqualified for judgeship, ABA says
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• Search LouisvilleLaw.com
• Search Kentucky Rules of Civil Procedure
• Search Kentucky Rules of Evidence
• Search our news from The Kentucky Lawyer (sm)
• Search nearly 17,000 law related sites in the law directory
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• MARKETING A START-UP SOLO PRACTICE (FindLaw)
• See our nifty fifty.
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• Attorney E. Andre Busald representing family that claims St. Elizabeth Hospital and  Drs. Christopher Cunha, Christopher Boling and Barry Brokaw, misdiagnosed to herpes encephalitis when he was discharged from St. Elizabeth.  Click here for article.
• Circuit Judge Steve Jaeger, noting the fears of members of the jury panel about the developing situation at the IRS on Tuesday morning, agreed that they would be unable to concentrate on testimony during the trial, which had been scheduled to begin Tuesday and was expected to last until November. Lawyers on all sides agreed to the postponement, and the trial now will begin in May, Jaeger said. Click here for article.
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• Several months ago I solicited articles to post on this site.  The response was underwhelming.  However, I think it is a good idea and will try again.
• Here is the deal -  You have an outline from a seminar, or a set of questions and answers,  about a particular topic of the law, and if you submit it to me, then I will post it under one of the subject areas or topics of Kentucky law.  I have a bunch of topics already listed with links to statutes and other sites, but not much separately created substantive information.
• What do  you get?
  Free advertising. Just like publishing an article in the newspaper, magazine, etc.  You have your name, address, telephone number, email, and link to your site under it.  You look like the expert.  The page stays up for a long time, gets indexed eventually by google and others so that if someone puts in the key words relating to that topic (or simply go to that topic from the top menu of louisvillelaw.com), they get basic information and the name of someone to follow up.
• What do I get?  Hopefully, good and useful information for the public that doesn't cost me a dime.  It's a novel concept called barter.  Your ancestors did this before William Jennings Bryan and the silver standard.
• Of course, this isn't carte blanche.  Put some time in it and do it right.  We reserve the right to take it down, replace it with a better one, etc.  The cost?  Your time.
• Want an example?  Go to www.google.com.  Type in the words 'kentucky estate planning' and see what you get (or just click here). First page contains a link to our topic 'estate planning' with a page of information I prepared on simple estate planning.  Hey folks it EZ.
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DAILY NEWSWIRES - LEGAL HEADLINES IN KY.

• Ex-prosecutor became adviser to OxyContin maker
• Court permanently disbars Louisville lawyer
• Prosecutor resigns, will teach
• Jury awards $1.7 million in eye-surgery malpractice case
• Justices rule that firm can use 'injury lawyers' phrase in ad
• Man pleads guilty in computer scam
• Ex-teacher, second man indicted over nude photos of girl, 17
• State court makes it easier to sue government employees
• Judges say police disciplinary case should be public
• Lawsuit claims blasting firm, company pressured worker to break law
• Law on alcohol sales challenged
• Trial starts for brothers accused of murder
• Details disclosed on judge's DUI stop
• State bar takes issue with high court
• ACLU chief urges vigilance for rights
• Harlan schools named in lawsuit
• Court revives ex-Shelby teacher's lawsuit
• Ex-prosecutor to deal with Transportation probes
• Supreme Court to hear case vs. Toyota
• Governor drives for tougher seat belt law
• 6 death sentences reversed over year
• Morris gets 10 years
• Jailed wife of Capps' killer released
• Police officer stopped for speeding is charged with DUI
• Pike County man gets 10 years for deaths of 2
• Suspension of doctor's license revives debate
• 2nd mother is charged in truancy
• Records deleted in assault case involving Louisville policeman
• Court- Officials failed to protect slain inmate

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