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The Kentucky Court Report is no longer being hosted at the TypePad site.
We have moved to a WordPress site at http://www.KyCourtReport.com.
We also are redirecting KentuckyCourtReport.com to the site as well.
The domain KyCases.com will eventually fade away, but for the short term we will redirect that site to the KyCourtReport.com.
We apologize for any incovenience, but we do have more flexibility at the new site.
mike stevens
Posted by Michael Stevens on August 17, 2012 at 10:13 PM in Blog Updates (this blog) | Permalink
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Click HERE for link for this month’s argument calendar. Click here for link to table of all monthly calendars at AOC from 2005 to date. Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). If the briefs have been filed at NKU at the time of… Continue Reading
Click HERE for link for this month’s argument calendar. Click here for link to table of all monthly calendars at AOC from 2005 to date. Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). If the briefs have been filed at NKU at the time of… Continue Reading
Click HERE for link for this month’s argument calendar. Click here for link to table of all monthly calendars at AOC from 2005 to date. Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). If the briefs have been filed at NKU at the time of… Continue Reading
Click HERE for link for this month’s argument calendar. Click here for link to table of all monthly calendars at AOC from 2005 to date. Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). If the briefs have been filed at NKU at the time of… Continue Reading
Click HERE for link for this month’s argument calendar. Click here for link to table of all monthly calendars at AOC from 2005 to date. Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). If the briefs have been filed at NKU at the time of… Continue Reading
I am playing a little catch-up and will be posting the monthly oral argument calendars with links to the actual calendar and the Northern Kentucky University’s Salmon P. Chase College of Law. Yes, I know this is too late for you to watch these arguments live, but I just wanted to complete the pages for… Continue Reading
There were no January 2012 minutes for SCOKY. There were decisions for February 2012. Decisions: 1 through 22 22 decisions with 8 published Click here for this month’s minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision) Click here for an index to all monthly… Continue Reading
Posted by Michael Stevens on July 15, 2012 at 04:16 PM | Permalink
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As you may have known, our links and feeds got messed up. The geek speak answer is that our domain mapping to this Typepad site using my domain registry got messed up and I had poor support from both services.
Thus, I went back to my beginnings: set up a WordPress blog using my http://www.kyCourtReport.com domain name, exported my posts and comments to the new site, and started a little revamping and tweaking this past month.
I now think it is good enough to use.
Tell me what you think.
Posted by Michael Stevens on July 15, 2012 at 04:12 PM in Blog Updates (this blog) | Permalink
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From WARD REALTY, LLC VS. ROY STOESS ESTATE, LLC,
COA, NPO, 5/28/2012
2011-CA-000811-MR
It is well settled that the doctrine of res judicata serves as a bar to repetitious lawsuits involving the same cause of action. Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998); Coomer v. CSX Transportation, Inc., 319 S.W.3d 366 (Ky. 2010). Res judicata is composed of two subparts – claim preclusion and issue preclusion. Yeoman, 983 S.W.2d 459; Coomer, 319 S.W.3d 366. In this appeal, we are concerned with the doctrine of issue preclusion. Issue preclusion, also known as collateral estoppel, generally operates to bar issues that were litigated in a previous action from being relitigated in a second action. Yeoman, 983 S.W.2d 459. The following elements are necessary for issue preclusion to operate as a bar in subsequent litigation:
First, the issue in the second case must be the same as the issue in the first case. Restatement (Second) of Judgments § 27 (1982). Second, the issue must have been actually litigated[.] Id. Third, even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Id. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court’s judgment. Id.
Yoeman, 983 S.W.2d at 465.
Posted by Michael Stevens on July 07, 2012 at 09:44 PM in Defenses | Permalink
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PUBLISHED DECISIONS OF COA:
448. FORCIBLE DETAINER AND PETROLEUM MARKETING PRACTICES ACT.
ZAD, LLC
VS.
BULK PETROLEUM CORP
OPINION REVERSING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-000023-DG
TO BE PUBLISHED
JEFFERSON
ACREE, JUDGE: The issue before us is whether the district court properly entered a judgment of forcible detainer against Zad, LLC, thereby ordering Zad to vacate a gas station and convenience store which it had leased from Bulk Petroleum Corp. More specifically, Zad claims Title I of the Petroleum Marketing Practices Act (PMPA), 15 USC §§ 2801-2806, preempts state forcible detainer statutes, at least as applied to petroleum franchise agreements, and it was therefore improper for the district court to evict Zad under state law.2 We agree with Zad and reverse the district court’s order.
450. CRIMINAL PROCEDURE. SENTENCING.
SCHAFFELD (SHANE)
VS.
COMMONWEALTH OF KENTUCKY, ET AL.
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS AND FILES SEPARATE OPINION)
2010-CA-001301-MR
TO BE PUBLISHED
KENTON
NICKELL, JUDGE: Shane Schaffeld appeals from an oral order entered on June 9, 2010, and a written order entered on June 28, 2010, both of which partially revoked a conditionally discharged sentence for failure to pay court-ordered child support. Following a hearing at which Shane testified, the court found Shane had violated the terms of conditional discharge by failing to remain current in his child support obligation and ordered him to serve one-third of a 180-day sentence under house arrest. When asked to set a purge amount at a hearing nearly a month later, the court denied the request, ruling Shane was not entitled to a purge amount. Although originally found guilty of contempt for nonpayment of child support, the court reasoned the matter was no longer a contempt case but now concerned revocation of a conditionally discharged sentence. On appeal, Shane argues the court erred in failing to set a purge amount prior to placing him on home incarceration. For reasons explained below, unrelated to the purge amount issue, we reverse and remand for specific findings in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011).
453. FAMILY LAW. CUSTODY.
L. (N.)
VS.
F. (W.) CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001787-ME
2010-CA-001815-ME
2011-CA-000091-ME
2011-CA-000095-ME
TO BE PUBLISHED
GREENUP
LAMBERT, JUDGE: These four consolidated appeals arise from a juvenile action in which the Greenup Family Court found N.L. neglected her two children and subsequently awarded permanent custody to their respective fathers. Having carefully considered the record from the proceedings below and the parties’ arguments on appeal, we hold that the family court erred in awarding custody to the fathers. Therefore, we reverse the orders on appeal.
455. BUSINESS LAW. DEBT COLLECTION.
WILLIAMS (BRIAN)
VS.
CHASE BANK USA, N.A.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002034-MR
TO BE PUBLISHED
JEFFERSON
NICKELL, JUDGE: Brian Williams appeals from a Jefferson Circuit Court opinion and order granting summary judgment to Chase Bank USA, N.A., on its debt collection action and Williams’s counterclaim.
459. CIVIL PROCEDURE. SUMMARY JUDGMENT. GENUINE ISSUE OF MATERIAL FACT. RELEASE AND CONSDIRATION AND SURRENDER OF RIGHT TO PROSECUTE ACTION.
GRASS (MICHAEL), ET AL.
VS.
AKINS (ROBERT)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002265-MR
TO BE PUBLISHED
JEFFERSON
VANMETER, JUDGE: Michael and Shawn Grass appeal from a Jefferson Circuit Court order granting Robert Akins’ motion for summary judgment. For the following reasons, we affirm the order.
The Grasses argue that summary judgment is inappropriate based upon their claims that the following genuine issues of material fact exist: (1) whether the original agreement provided that Akins would be reimbursed as Grass received payment from Price; and (2) whether the release was supported by valid consideration. We conclude that neither issue constitutes a genuine issue of material fact in this case.
First, the Grasses claim that a dispute regarding the terms of payment in the original agreement constitutes a genuine issue of material fact. They contend that “[t]he overriding question in this matter is [the] parties’ original intent at the time the Funding Agreement was consummated.” However, Akins’ complaint alleged that Grass breached his contractual obligation under the release, rather than the original contract.
“[A] release is a discharge of a claim or obligation and surrender of a claimant’s right to prosecute a cause of action.” Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99, 107 (Ky. 2003) (quoting 66 Am. Jur. 2d Release §1 (2001)). Releases from liability and other settlement agreements are governed under contract law. Frear at 105. Under contract law, a written instrument will be strictly enforced according to its terms absent ambiguity. New Life Cleaners v. Tuttle, 292 S.W.3d 318, 322 (Ky.App. 2009).
[W]hen parties reduce their agreement to a clear, unambiguous, and duly executed writing, all prior negotiations, understandings, and agreements merge into the instrument, and a contract as written cannot be modified or changed by prior parol evidence, except in certain circumstances such as fraud or mistake.
Id. (citing Childers and Venters, Inc. v. Sowards, 460 S.W.2d 343, 345 (Ky. 1970)). The written agreement is presumed to be final and complete, with all prior negotiations abandoned or incorporated into the final document. New Life Cleaners, 292 S.W.3d at 322. The Grasses do not allege fraud, mistake, or ambiguity. Therefore, the terms of the original agreement and its intent are irrelevant to Akins’ claim that the Grasses breached the terms of the release.
“Not every issue of fact or conflicting inference presents a genuine issue of material fact that requires denial of a summary judgment motion.” Steelvest, 807 S.W.2d at 481 (citation omitted). At most, the terms and intent behind the original contract are only relevant as a matter of factual background. The original agreement has no bearing on the interpretation or construction of the release. We conclude that the parties’ dispute regarding the terms of the original agreement does not constitute a genuine issue of material fact. Therefore, we find no error in the trial court’s order of summary judgment.
Second, the Grasses claim that a genuine issue of material fact exists concerning whether the release was based upon valid consideration. Consideration for a contract may be a benefit to the promisor, or a detriment to the promissee. Van Winkle v. King, 145 Ky. 691, 693, 141 S.W. 46, 47 (1911). The Grasses claim that they did not receive a benefit by signing the release based upon the dispute concerning the terms of the original contract. However, it is undisputed that the release provided a specific payment plan and more definite terms. By signing the release, the Grasses had an additional opportunity to meet their obligation and make payments over time. In their reply brief, the Grasses stated that they signed the release because they “no longer liked the terms of the [agreement] as originally constituted.” The Grasses were clearly more comfortable with the finite terms contained in the release and received a benefit from their specificity. We conclude that the terms of the release support the trial court’s order of summary judgment.
As previously mentioned, the construction and interpretation of contracts are questions of law to be decided by the trial court. First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky.App. 2000) (citation omitted). Thus, it follows that the lack of consideration is a legal question for the court’s determination rather than an issue of material fact best suited for a fact-finding tribunal.
Accordingly, the Jefferson Circuit Court order granting summary judgment in favor of Akins is affirmed.
462. CRIMINAL LAW.
COMMONWEALTH OF KENTUCKY
VS.
WHITCOMB (TARA LYNN)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ACREE (CONCURS)
2011-CA-000346-MR
TO BE PUBLISHED
FAYETTE
CAPERTON, JUDGE: The Commonwealth appeals from the Fayette Circuit Court’s order dismissing the charge of probation violation against Tara Lynn Whitcomb for lack of jurisdiction due to her probationary period expiring. After a thorough review of the parties’ arguments, the record, and the applicable law, we conclude that the trial court did have jurisdiction and, accordingly, reverse and remand this matter for further proceedings.
470. CRIMINAL LAW
COMMONWEALTH OF KENTUCKY
VS.
WRIGHT (LEE ANDREW)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000996-MR
TO BE PUBLISHED
JEFFERSON
STUMBO, JUDGE: The Commonwealth of Kentucky appeals from an Order of the Jefferson Circuit Court ruling that the court lacked jurisdiction to hear the Commonwealth’s motion to revoke Lee Andrew Wright’s probation. The Commonwealth argues that because Wright still owed restitution after the expiration of the court-ordered probationary period, KRS 533.020(4) and other statutes allow the probationary period to be extended beyond the statutory five- year term. Though we agree that KRS 533.020(4) allows felony probation to last the longer of either five years or the period required to make restitution, we cannot conclude that the circuit court erred in declining to consider whether Wright’s probation should be revoked. Accordingly, we affirm the Order on appeal.
472. REAL PROPERTY. SUBDIVISION RESTRICTIONS.
WEST VALE HOMEOWNER’S ASSOCIATION, INC.
VS.
SMALL (ERIC)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001157-MR
TO BE PUBLISHED
MCCRACKEN
CAPERTON, JUDGE: The Appellant, West Vale Homeowners’ Association, Inc., initiated litigation below for the purpose of enforcing subdivision restrictions against the Appellee, Eric Small. The trial court initially found Small to be in violation of the restrictions, and enjoined him from further action. However, following a motion to alter, amend, or vacate filed by Small, the trial court reversed its decision, finding that the actions by Small, subsequent to its initial ruling, waived its ability to enforce the restrictions. West Vale now seeks restoration of the trial court’s original ruling and continuation of the permanent injunction against Small. Upon review of the record, the arguments of the parties, and the applicable law, we reverse and remand this matter for additional proceedings consistent with this opinion.
Prior to reviewing the arguments of the parties, we note that the interpretation and construction of restrictive covenants is a question of law. Therefore, we review this matter de novo. See Colliver v. Stonewall Equestrian Estates Association, Inc., 139 S.W.3d 521, 525 (Ky.App. 2003). Actions under CR 60.02, however, are taken under the sound discretion of the trial court, and we will not disturb those decisions absent an abuse of discretion. Richardson v. Brunner, 327 S.W.2d 572, 574 (1959). Ultimately, having reviewed the arguments of the parties and the record below, we believe that resolution of this matter turns on the trial court’s use of CR 60.02 in reopening the judgment below to consider evidence of conduct which occurred after entry of the opinion, and for the reasons set forth herein infra, we are compelled to reverse.
TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
PUBLISHED:
SEE, above -Grass v. Akins re: CIVIL PROCEDURE. SUMMARY JUDGMENT. GENUINE ISSUE OF MATERIAL FACT. RELEASE AND CONSDIRATION AND SURRENDER OF RIGHT TO PROSECUTE ACTION.
NOT PUBLISHED:
449. GARNISHMENTS IN FEN-PHEN LAWYERS CASE.
ABBOTT (MILDRED)
VS.
CUNNINGHAM (SHIRLEY A.), ET AL.
OPINION AFFIRMING IN PART AND REMANDING IN PART
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS AND FILES SEPARATE OPINION)
2010-CA-000147-MR
NOT TO BE PUBLISHED
BOONE
CLAYTON, JUDGE: This is an appeal from interlocutory orders of the Boone Circuit Court. For the foregoing reasons, we affirm in part, reverse in part and remand this action to the trial court for further findings consistent with this opinion.
After examining the fee agreements entered into between the
Attorneys and the Judgment Debtors at issue herein, the trial court found there -7-
were no remaining monies which could be attached until after representation by the Attorneys had come to a conclusion. The trial court also reserved the right to examine the fees of Davidson, Almand, Dobson and Lotz for “reasonableness” after the Criminal Case was over.
We conclude that a “flat fee,” such as the ones accepted in the Criminal Case herein, are earned immediately by the attorney due to the inherent risk the attorney takes by accepting the fee and representation of the client regardless of the time and effort which could be involved. There is no indication in this action that the Attorneys did not continue to represent the Judgment Debtors. However, nonrefundable fees must be reasonable. The trial court acknowledged this fact and reserved the issue until after the conclusion of the Criminal Case.
As set forth above, the trial court reserved to make a finding on the issue of the reasonableness of the fees until after the Criminal Case was finished. We must, therefore, remand this action to the trial court for a finding on this issue. An exception exists, however, to the law firms of Cors & Bassett, Fulkerson & Kinkel, and Regard. As stated previously these firms had no remaining fees which would be attached. Thus, we affirm the trial court’s decision as to them. As to Meade- McKenzie, there is no indication from the record that the trial court made specific findings as to the alleged sham transaction by Tandy, LLC to her. She had also not made an appearance at the appellate level. Consequently, upon remand, the court will make specific findings regarding her fees.
452. DEFENSES. SUDDEN EMERGENCY DOCTRINE.
MAGGARD (LORETTA), ET AL.
VS.
PORTWOOD (KENNETH W.), ET AL.
OPINION AND ORDER AFFIRMING AND DENYING MOTION TO STRIKE BRIEF AND DISMISS APPEAL
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND COMBS (CONCURS IN RESULT ONLY)
2010-CA-001591-MR
NOT TO BE PUBLISHED
BOYLE
MOORE, JUDGE: Loretta Maggard2 and Henry Maggard appeal the judgment of the Boyle Circuit Court after the jury returned a defense verdict for Kenneth W. Portwood3 in an automobile accident case. The jury determined that Portwood had not breached any duty when operating his motor vehicle and thus was not liable for the damages Maggard sustained in the parties’ automobile collision. On appeal Maggard argues that the trial court committed error by giving a sudden emergency instruction. Finding no error, we affirm.
A sudden emergency can be defined as “when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.”
Henson v. Klein, 319 S.W.3d 413, 418 (Ky.2010) (quoting 57 Am. Jur. 2d Negligence §198 (2004)).
A sudden emergency instruction is proper where a party had no reason to anticipate a particular condition, did not cause or bring about the condition, took some sort of action in response to the condition, and the condition “alter[ed] the duties [the party] would otherwise have been bound to observe.” Id. at 419 (citing Regenstreif v. Phelps, 142 S.W.3d 1, 4 (Ky.2004) (italics omitted)); Robinson v. Lansford, 222 S.W.3d 242, 245-47 (Ky.App.2006).
Thus, the dispositive question when determining whether a sudden emergency instruction is warranted is not whether the circumstance constituted a sudden occurrence or a sudden emergency, but rather “‘whether [the circumstance] changes or modifies the duties that would have been incumbent upon him in the absence of that circumstance.’” Henson, 319 S.W.3d at 420 (quoting Harris v. Thompson, 497 S.W.2d 422, 428 (Ky.1973)). Furthermore, “[t]he presence of the emergency does not excuse the breach of a specific duty; under appropriate circumstances, it can eliminate the duty so that the conduct (crossing to the wrong side of the road) is not a breach at all.” Id. at 421. Thus, it becomes necessary to instruct the jury that the party’s duty has been modified. Id.
Under the facts outlined above, the trial court did not commit manifest error by concluding that a sudden emergency instruction was warranted. There was sufficient evidence presented that Portwood was forced to respond quickly to another vehicle entering into his lane. Thus, the sudden emergency instruction was necessary to inform the jury that Portwood’s duties were modified if they found his account of the facts to be credible. Once the instruction was given, it was up to the jury to make credibility determinations with respect to each party’s and witness’s testimony and to determine whether Portwood was in fact confronted with a sudden emergency. McAlpin v. Davis Construction, Inc., 332 S.W.3d 741, 743-44 (Ky.App.2011). There is no reason for us to disturb the jury’s determination regarding the facts of this matter.
468. CIVIL. DEFENSES (RES JUDICATA; ISSUE PRECLUSION)
WARD REALTY, LLC
VS.
ROY STOESS ESTATE, LLC, ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS)
2011-CA-000811-MR
NOT TO BE PUBLISHED
JEFFERSON
TAYLOR, CHIEF JUDGE: Ward Realty, LLC, brings this appeal from an August 18, 2008, order dismissing Ward Realty’s complaint against Scott W. Brinkman and Stoll Keenon Ogden, PLLC, (Stoll Keenon) and a January 25, 2011, order of the Jefferson Circuit Court dismissing Ward Realty’s complaint against Roy Stoess Estate, LLC (Stoess). We affirm.
This appeal arises from the sale of property owned by Stoess located at 3700 Commerce Parkway in Oldham County, Kentucky (hereinafter referred to as the Commerce Parkway property). In 2004, Stoess entered into a contract for the sale of the property (purchase contract) with Jordon River, Inc. The purchase contract provided that Stoess would pay 3 percent of the purchase price in commission to Ward Realty, as agent for the buyer, Jordon River. Paul Grisanti and Herbert Head (collectively referred to as Grisanti/Head) were real estate agents for Ward Realty and represented Jordon River. Jordon River subsequently assigned its rights under the purchase contract to Greater Buckner Investment Co., Inc. (Buckner) and 393 Investment Properties, LLC (393).
DEFENSES: RES JUDICATA ISSUE PRECLUSION
It is well settled that the doctrine of res judicata serves as a bar to repetitious lawsuits involving the same cause of action. Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998); Coomer v. CSX Transportation, Inc., 319 S.W.3d 366 (Ky. 2010). Res judicata is composed of two subparts – claim preclusion and issue preclusion. Yeoman, 983 S.W.2d 459; Coomer, 319 S.W.3d 366. In this appeal, we are concerned with the doctrine of issue preclusion. Issue preclusion, also known as collateral estoppel, generally operates to bar issues that were litigated in a previous action from being relitigated in a second action. Yeoman, 983 S.W.2d 459. The following elements are necessary for issue preclusion to operate as a bar in subsequent litigation:
First, the issue in the second case must be the same as the issue in the first case. Restatement (Second) of Judgments § 27 (1982). Second, the issue must have been actually litigated[.] Id. Third, even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Id. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court’s judgment. Id.
Yoeman, 983 S.W.2d at 465.
However, the issue of lawful entitlement to the commission between Ward Realty and Grisanti/Head was previously decided in Action No. 06-CI- 008102. And, considering the elements outlined in Yoeman, we believe that the doctrine of issue preclusion bars relitigation of this issue in the underlying action. See Yoeman, 983 S.W.2d 459. As concluded by the circuit court in Action No. 06- CI-008012, Ward Realty possesses no lawful claim to a greater portion of the commission than previously received. Consequently, in this action, Ward Realty’s claims against appellees must fail as it has received its proper commission as adjudicated in Action No. 06-CI-008012 and, thus, has suffered no cognizable damage by appellees failure to directly pay the commission to Ward Realty.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
Posted by Michael Stevens on July 07, 2012 at 09:41 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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PUBLISHED DECISIONS OF COA:
419. GUARDIAN AD LITEM. FEES TO BE PAID BY PLAINTIFF AS COSTS. ESCROWED FUNDS.
MULLINS (MAURICE)
VS.
CONSOL OF KENTUCKY, INC., ET AL.
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2007-CA-001017-MR
TO BE PUBLISHED
KNOTT
NICKELL, JUDGE: Maurice W. Mullins appeals from the March 9, 2007, and May 1, 2007, orders of the Knott Circuit Court which mandated that guardian ad litem (GAL) fees be paid from a court ordered escrow account. Because we hold that the trial court abused its discretion, we reverse and remand.
STD OF REVIEW: “We review a trial court’s denial of a motion to alter, amend, or vacate pursuant to CR1 59.05 for an abuse of discretion. Batts v. Illinois Central Railroad Co., 217 S.W.3d 881, 883 (Ky. App. 2007). An abuse of discretion can be found when the trial court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).”
KRS2 453.060 provides that “[a] guardian ad litem or warning order
attorney shall be allowed by the court a reasonable fee for his services, to be paiD by the plaintiff and taxed as costs.” KRS 453.060(2) (emphasis added). While the money held in escrow by the trial court was technically being paid by the plaintiff at the time of deposit, the money will theoretically be determined to belong to one of the defendants when the lawsuit concludes. Therefore, the prevailing party of the underlying lawsuit is the party that would have actually paid the GAL fees. Assuming that the prevailing party was entitled to the entirety of the payments being deposited by Consol, it would then become the burden of the prevailing party to recover any sums deducted for the GAL fees. We do not envision that such a result was intended by the legislature in its enactment of KRS 453.060, but rather that the plaintiff should directly bear the cost of any awarded GAL fees.
Furthermore, trial court escrow accounts are governed by CR 67.03, which reads:
[w]here the money is paid into court to abide the result of any legal proceeding, the judge may order it deposited in one or more designated federally insured state or national banks or savings banks, to the credit of the court in the action or proceeding in which the money was paid. The money, including earned interest, so deposited shall be paid only upon the check of the clerk of the court, annexed to its certified order for the payment, and in favor of the person to whom the order directs the payment to be made. Any interest which may have accrued shall also be paid to that same person.
CR 67.03 specifically addresses money paid “to abide the result of any legal proceeding.” The escrow account in the case before us clearly falls under this purview, as evidenced by the trial court’s order which required the deposit of “all payments which are due under leases from any of the Defendants which have accrued and may in the future accrue, and which are otherwise the subject of this proceeding.” (Emphasis added). The language of CR 67.03 mandates payment of the deposited money, and any accrued interest, to the same person. This language implies that the escrow shall be withdrawn only to satisfy the trial court’s final judgment, and not for other costs and fees. Accordingly, we hold that the trial court’s denial of Mullins’s motion to amend, alter, or vacate the March 9, 2007, judgment was unsupported by sound legal principles.
For the foregoing reasons, the March 9, 2007, and May 1, 2007, orders of the Knott Circuit Court are reversed to the extent that they mandate payment of the GAL fees from the court ordered escrow account, and remanded with instructions to order the GAL fees be paid directly by plaintiff, Consol.
422. CRIMINAL LAW
BUTLER (JERMAINE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
CLAYTON (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001578-MR
TO BE PUBLISHED
JEFFERSON
CLAYTON, JUDGE: Jermaine Butler appeals from the July 22, 2010, judgment of conviction and sentence of the Jefferson Circuit Court which found him guilty of one count of trafficking in a controlled substance and sentenced him to seven and one-half years of incarceration. Appellant challenges the introduction of certain evidence at trial, a jury admonition, and the trial court’s imposition of conditional court costs and fees. We affirm in part, vacate in part, and remand.
426. CRIMINAL LAW
DAY (PAUL R.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-002035-MR
TO BE PUBLISHED
CHRISTIAN
ACREE, JUDGE: The sole issue before us is whether Appellant Paul Day, Jr.’s conviction both for first-degree robbery under Kentucky Revised Statutes (KRS) 515.020 and for first-degree unlawful access to a computer under KRS 434.845 violates double jeopardy. We find it does not. Accordingly, we affirm.
427. CRIMINAL LAW AND PROCEDURE.
LEE (JOHN SCOTT), ET AL.
VS.
TIPTON (CALVIN)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
TAYLOR (PRESIDING JUDGE)
NICKELL (CONCURS) AND COMBS (CONCURS IN RESULT ONLY)
2010-CA-002189-MR
TO BE PUBLISHED
TAYLOR, CHIEF JUDGE: John Scott Lee and Amanda Lee (collectively referred to as the Lees) bring this appeal from a September 17, 2010, Order of the Estill Circuit Court adjudicating a boundary line dispute between the parties and awarding Calvin Tipton damages of $18,333, representing his one-third interest in certain real property known as Muncy Bottom. We affirm in part, reverse in part, and remand.
TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
PUBLISHED:
SEE, Mullins v. Consul of Kentucky, above, re guardian ad litem fees.
NOT PUBLISHED:
423. CIVIL PROCEDURE. SETTING ASIDE DEFAULT JUDGMENT.
ZIMMERMAN (CHAD), ET AL.
VS.
THE BANK OF NEW YORK MELLON TRUST CO., N.A.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001598-MR
NOT TO BE PUBLISHED
HENRY
MOORE, JUDGE: Chad and Sandra Zimmerman appeal from the Henry Circuit Court’s order denying their motion to set aside the default judgment in favor of the Bank of New York Mellon Trust Company, NA (Bank of New York). Because the Zimmermans failed to demonstrate good cause as to why the default judgment should be set aside, we affirm.
424. INSURANCE COVERAGE. ASSOCIATION AND INDEMNITY EXCLUSION.
LAKE CUMBERLAND RESORT COMMUNITY ASSOCIATION, INC., ET AL.
VS.
AUTO OWNERS INSURANCE COMPANY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-001725-MR
NOT TO BE PUBLISHED
PULASKI
COMBS, JUDGE: Lake Cumberland Resort Community Association, Inc., (the “community association”), Dave Remley, Gary Seagraves, Robert Keiser, Anthony Rogers, Greg Lucas, Keith Stockberger, and Steve Miklavic appeal from a final order of the Pulaski Circuit Court entered August 3, 2010, which finalized a summary judgment entered in favor of Auto Owners Insurance Company (“Auto Owners”) on May 17, 2010. After our review, we affirm.
STD OF REVIEW:
Summary judgment is proper where there exists no material issue of fact and the movant is entitled to judgment as a matter of law. Kentucky Rule(s) of Civil Procedure (CR) 56. The interpretation of an insurance policy is a question of law that we review de novo. K.M.R. v. Foremost Ins. Group, 171 S.W.3d 751 (2005) citing Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.1998). In undertaking our review, we are mindful of two cardinal principles:
(1) the contract should be liberally construed and all doubts resolved in favor of the insureds; and (2) exceptions and exclusions should be strictly construed to make insurance effective.
Kentucky Farm Bureau Mutual Ins. Co. v. McKinney, 831 S.W.2d 164 (Ky.1992), quoting Grimes v. Nationwide Mutual Ins. Co., 705 S.W.2d 926 (Ky.App.1985) and Tankersley v. Gilkey, 414 S.W.2d 589 (Ky.1967). However, where the terms of the policy are clear and unambiguous, we must accord them their “plain and ordinary meaning.” Nationwide Mutual Ins. Co. v. Nolan, 10 S.W.3d 129, 131-32 (Ky.1999). The material facts of this case are undisputed. Therefore, we must determine from an examination of the provisions of the insurance policy whether Auto Owners is entitled to judgment as a matter of law.
The directors’ and officers’ liability endorsement of the disputed policy provides as follows:
We will pay those sums the insured becomes legally obligated to pay as “damages” because of any negligent act, error, omission or breach of duty directly related to the management of the premises, shown in the Declarations, which occurs during the policy period. We will settle or defend, as we consider appropriate, any claim or “suit” for damages covered by this policy. We will do this at our expense, using attorneys of our choice. This agreement to settle or defend claims or “suits” ends when we have paid the limit of our liability.
In an article entitled “Exclusions,” the endorsement provides that the coverage does not apply, “[t]o any claims for which your officer or director receives indemnity from [the community association] or has a right to be indemnified by [the community association].” It is undisputed that the community association’s articles of incorporation provide for the mandatory indemnification of its directors and officers “to the fullest extent of the law, from and against any and all the expenses or liability incurred in defending a civil or criminal proceeding. . . .”
Auto Owners argues that this policy provision clearly excludes coverage of claims for which an officer or director of the community association receives indemnity from the association or has a right to be indemnified by the association. And the appellants contend that the indemnity exclusion cannot be enforced because it renders the coverage provided by the policy completely illusory and contravenes public policy. They contend that the exclusion defeats their reasonable expectations for coverage. We disagree with each of these contentions.
Posted by Michael Stevens on July 07, 2012 at 03:05 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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From Mullins v. Consol of Kentucky, COA, Published, 5/18/2012
We review a trial court's denial of a motion to alter, amend, or vacate pursuant to CR1 59.05 for an abuse of discretion. Batts v. Illinois Central Railroad Co., 217 S.W.3d 881, 883 (Ky. App. 2007). An abuse of discretion can be found when the trial court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Posted by Michael Stevens on July 07, 2012 at 01:41 PM in Standards of Review | Permalink
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PUBLISHED DECISIONS OF COA:
401. CRIMINAL LAW. FAILURE TO PAY CHILD SUPPORT.
HAMM (ROBERT)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000395-MR
TO BE PUBLISHED
BOYD
LAMBERT, JUDGE: Robert Hamm has appealed from the order of the Boyd Circuit Court revoking his pretrial diversion and imposing a forty-eight-month sentence. The Commonwealth concedes that the circuit court’s revocation was improper in light of the Supreme Court of Kentucky’s recent ruling in Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Because we agree with both Hamm and the Commonwealth, we reverse the circuit court’s ruling.
402. CRIMINAL LAW
COMMONWEALTH OF KENTUCKY
VS.
GRIDER (ERIC)
OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS AS MOOT
MOORE (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001484-MR
TO BE PUBLISHED
FRANKLIN
MOORE, JUDGE: The Commonwealth of Kentucky appeals the order of the Franklin Circuit Court dismissing the indictment against Eric Grider. Grider, in turn, has filed a motion to dismiss this appeal. After a careful review of the record, we affirm the circuit court’s order because Grider had no choice in moving to dismiss the indictment due to the Commonwealth’s failure to inform him of a key component of the charges against him until after the jury was impaneled and sworn. Because we affirm the circuit court’s dismissal of the indictment with prejudice, we conclude that Grider’s motion to dismiss this appeal on the basis that his retrial is barred by the Double Jeopardy Clause is moot.
403. DAMAGES. PUNITIVES. NEGLIGENT HIRING.
ALLGEIER (BARBARA)
VS.
MV TRANSPORTATION, INC.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2010-CA-001907-MR
2010-CA-001921-MR
TO BE PUBLISHED
JEFFERSON
LAMBERT, JUDGE: This case arises from Barbara Allgeier’s fall from a paratransit bus maintained and operated by MV Transportation, Inc. (MV). Prior to trial, the trial court granted MV’s motion for summary judgment regarding Barbara’s claim for punitive damages. Barbara now appeals the trial court’s order
denying her punitive damages and asks this Court to remand the case solely for a trial on that issue. MV cross-appeals on various grounds, arguing that the trial court improperly allowed Barbara to introduce evidence pertaining to its negligent hiring, supervision, and retention claims despite MV’s admission of vicarious liability. MV’s primary argument is that the introduction of such evidence in light of its admission of respondeat superior liability rendered the other claims irrelevant and superfluous. For the reasons stated herein, we reverse the trial court’s entry of summary judgment pertaining to Barbara’s claim for punitive damages and remand for a trial solely on that issue. In all other regards, we affirm the rulings of the trial court.
In support of her argument that this Court should reverse and remand this case back to the trial court for a jury trial on punitive damages, Barbara argues that in cases alleging gross negligence and seeking punitive damages, a plaintiff is entitled to have her theory of the case submitted to the jury if there is “any evidence to support an award.” Thomas v. Greenview Hospital, Inc., 127 S.W.3d 663, 673 (Ky. App. 2004) (overruled on other grounds by Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005)). However, Thomas also cites to Kentucky Revised Statutes (KRS) 411.184,1 Kentucky’s punitive damages statute. KRS 411.184(3) prohibits assessing punitive damages against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question.
Thus, the question becomes whether Barbara presented clear and convincing evidence that MV ratified, authorized, or anticipated the conduct in question. A careful review of the record indicates that MV did in fact ratify and authorize the conduct of their employee, Caldwell. In particular, Caldwell was trained to not admit fault for an accident, but instead to immediately call dispatch and report the accident. Further, Caldwell was trained and instructed not to speak with victims and witnesses, and in fact, her supervisors placed her into a car so she could not speak with Barbara or surrounding witnesses during the initial investigation. MV was also consciously aware that Caldwell did not follow the company’s safety policies, as shown by the testimony of the supervisors who trained Caldwell on these safety policies. They acknowledged themselves that they did not instruct on all of the company’s safety policies, thereby acknowledging that they authorized or ratified their employee’s lax attitude toward passenger safety. Finally, although dispatch was called, neither Caldwell nor dispatch called EMS or police, which was a violation of MV policy. It is abundantly apparent to this Court that Caldwell and MV’s treatment of Barbara immediately after the accident could rise to the level of gross negligence or
1 We note that KRS 411.184(1)(c) was found unconstitutional by Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998), but that holding did not affect KRS 411.184(3).
reckless disregard for Barbara’s life and safety. Further, there is proof that MV authorized and ratified Caldwell’s conduct—in fact Caldwell was trained to respond to accidents in this manner. Accordingly, we agree with Barbara that a trial for punitive damages was warranted. We therefore reverse the trial court’s entry of summary judgment in this regard and remand for a trial on the issue of whether punitive damages were warranted.
404. CRIMINAL PROCEDURE. SENTENCING HEARING DUE PROCESS.
THORNTON (ANTHONY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND NICKELL (CONCURS)
2011-CA-000032-MR
TO BE PUBLISHED
JEFFERSON
DIXON, JUDGE: Anthony Thornton appeals from a judgment of the Jefferson Circuit Court finding him guilty of direct criminal contempt. Because we conclude the court’s sentencing procedure violated Thornton’s right to due process of law, we reverse and remand for a new sentencing hearing.
408. ATTORNEY FEES.
CASSADY (MONROE), ET AL.
VS.
WOLF CREEK COLLIERIES EMPLOYEE BURIAL FUND, INC.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2011-CA-000202-MR
TO BE PUBLISHED
MARTIN
COMBS, JUDGE: Monroe Cassady and his attorney, Nelson Sparks (referred to collectively as “Cassady”), appeal an order of the Martin Circuit Court which denied Cassady an award of attorney’s fees. Following our review, we affirm.
Our standard of review of a decision of a trial court regarding attorney’s fees is abuse of discretion. Miller v. McGinty, 234 S.W.3d 371, 373 (Ky. App. 2007). “Abuse of discretion in relation to the exercise of judicial power implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). (Citations omitted). Whether a court has abused its discretion is dependent upon the facts and circumstances of each case. Kentucky Ret. Sys. v. Foster, 338 S.W.3d 788, 803 (Ky. App. 2010).
Cassady urged the application of KRS 412.070, which mandates the award of attorney’s fees:
for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, or for the recovery of money or property which has been illegally or improperly collected, withheld or converted, if one or more of the legatees, devisees, distributes or parties in interest has prosecuted for the benefit of others interested with him[.]
However, the trial court found that the statute did not apply because Cassady’s action did not result in a recovery that benefitted the fund or the other members of the fund. We agree.
Our court has recently held that the statute only applies “where parties have a common interest and a suit is brought for their common benefit and one attorney carries the burden.” Raisor v. Burkett, 214 S.W.3d 895, 903 (Ky. App. 2006) (citing Cambron v. Pottinger, 219 S.W.2d 401, 403 (Ky. 1948)).
410. STATUTE OF LIMITATIONS. PROPERTY DAMAGE CLAIM IS 2 YEARS AND IS NEGLIGENCE AND NOT TRESPASS TO CHATTEL.
INGRAM TRUCKING, INC.
VS.
ALLEN (CHRISTOPHER B.), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND NICKELL (CONCURS)
2011-CA-000513-MR
TO BE PUBLISHED
ALLEN
DIXON, JUDGE: Appellant, Ingram Trucking, Inc., appeals from an opinion and order of the Allen Circuit Court granting summary judgment in favor of Appellees, Christopher Allen and State Farm Mutual Automobile Insurance Company, and concluding that Ingram Trucking’s action was time barred. Finding no error, we affirm.
The trial court held a summary judgment hearing in February 2011, and thereafter entered an opinion and order granting summary judgment in favor of Allen. In so doing, the court held that there was no conflict between KRS 413.120(4) and KRS 413.125, and that Ingram’s cause of action was governed by the two-year statute of limitations set forth in KRS 413.125. As the accident giving rise to the property damage occurred on June 14, 2007, Allen’s complaint filed on August 3, 2010, was clearly time barred. Ingram Trucking thereafter appealed to this Court.
KRS 413.125 states that “[A]n action for the taking, detaining, or injuring of personal property, including an action for specific recovery shall be commenced within two (2) years from the date the cause of action accrued.” KRS 413.120 provides, in pertinent part, “[T]he following actions shall be commenced within five (5) years after the cause of action accrued . . . (4) [A]n action for trespass on real or personal property.” Ingram Trucking argues that since a trespass to chattels involves the detaining or injuring of personal property, there is a conflict between the two statutes of limitations and therefore the longer statutory period applies. Troxell v. Trammell, 730 S.W.2d 525 (Ky. 1987). We disagree.
The fatal flaw in Ingram Trucking’s argument is that a trespass to chattel, or trespass to personal property, is an intentional tort. Restatement (Second) of Torts § 217 provides that “[A] trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” (Emphasis added). Significantly, Comment (b) to § 217 explains:
This Section follows the commonly accepted terminology, by which there can be no unintended “trespass” to a chattel. Under the rules stated in Chapter 12 of this Restatement, the actor may be subject to liability for harm resulting from a negligent interference with a chattel. Such liability is dealt with as in other cases of negligence, in which the word “trespass” usually is not even mentioned. Under the rules stated in Chapters 20 and 21, there may also be liability for harm to a chattel resulting from strict liability, without either intent or negligence. Again any such liability is nearly always rested upon the nature of the actor's conduct itself, without any reference to “trespass.”
The trial court herein recognized the above principles in its opinion and order, in ruling:
[A] trespass to chattel cannot be premised on negligent conduct. “[A] trespass to chattel occurs when a defendant intentionally intermeddles with personal property in the possession of the plaintiff and . . . impairs the property as to its condition, quality, to value, or (d) causes physical harm to the possessor or to some person or thing in which the possessor has a legally protected interest.” 13 Ky. Prac. Tort Law, The Nature of Trespass to Chattels, § 7:1 (2010) (citing Restatement (Second) of Torts § 217, 218) (emphasis added). Typically, “the intent necessary is the intent to intermeddle with the particular property.” Id., Intent § 7:2 (2010). While the tort may have originally included claims of negligence, “trespass,” so far as it applied to interference with chattels, has come to be limited to intentional interferences.” Restatement (Second) of Torts § 217, comment b (1965).
The trial court concluded that because there was no claim or evidence that Allen intended to damage Ingram Trucking’s tractor trailer, the underlying action was simply a common law negligence suit for damages to personal property, which is governed by KRS 413.125. See American Premier Ins. Co. v. McBride, 159 S.W.3d 342 (Ky. App. 2004).
418. WORKERS COMPENSATION. APPEAL.
BIG LOTS
VS.
WHITWORTH (LORITTA), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2011-CA-002188-WC
TO BE PUBLISHED
WORKERS' COMP
VANMETER, JUDGE: Big Lots petitions for the review of an opinion and order by the Workers’ Compensation Board (“Board”) dismissing its appeal from the Administrative Law Judge’s (“ALJ”) August 31, 2011, order granting Loritta Whitworth’s motion to reopen her workers’ compensation claim. We agree with the Board that the ALJ’s order is interlocutory, and therefore affirm the Board’s dismissal of the appeal.
TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
PUBLISHED:
SEE,
Allgeier v. MV Transportation, above, re punitive damages.
Cassady v. Wolf Creek Galleries, above, re attorney fees.
Ingram Trucking v. Allen, above, re property damage statute of limitations.
Big Lots v. Whitworth, above, re workers compensation.
NOT PUBLISHED:
412. TORTS. 1983 CLAIMS.
KAREKEN (WHITNEY)
VS.
KERHT (CHRIS), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000633-MR
NOT TO BE PUBLISHED
MERCER
KELLER, JUDGE: Whitney Kareken (Kareken) and Layton Kareken (Layton) appeal from an order of the Mercer Circuit Court granting summary judgment in favor of the Appellees. For the following reasons, we affirm.
Not to be published:
Posted by Michael Stevens on July 05, 2012 at 09:09 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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Click here for entire calendar for this month at AOC.
Click here for entire INDEX to COA calendars organized by month and year.
1:45 pm
Posted by Michael Stevens on July 04, 2012 at 10:37 PM in Argument Calendars, COA Argument Calendars - 2009-11 | Permalink
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Another reminder that the statute of limitations for automobile accidents under the No-Fault Act runs two years from the date of the accident or the last date of payment of pip benefits. Date of payment is the date the check is issued by the reparations obligor; not the date it is cashed, not the date is received by the provider. I would also assume the last date the pip check has been issued and not the date the check may have been reissued.
Here is the decision. Not published.
386. AUTOMOBILE ACCIDENT / NO FAULT STATUTE. STATUTE OF LIMITATIONS.
DICKEY (LISA)
VS.
LIBERTY MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-002320-MR
NOT TO BE PUBLISHED
FAYETTEVANMETER, JUDGE: Lisa Dickey appeals from the Fayette Circuit Court order granting Liberty Mutual Insurance Company’s (“Liberty Mutual”) motion for a judgment on the pleadings and denying Lisa’s motion for partial summary judgment. For the following reasons, we affirm.
On July 4, 2005, Lisa was involved in a motor vehicle accident. Pursuant to her insurance policy with Liberty Mutual, Lisa received Personal Injury Protection (“PIP”) benefits. On March 23, 2007 and April 16, 2007, Lisa was treated for injuries resulting from the accident at Bauman Physical Therapy (“Bauman”). Liberty Mutual issued a check on October 5, 2007 to cover those expenses. The check was received by Bauman on October 12, 2007. Lisa received additional treatment on October 9, 2009 by Clayton Elswick, D.C. Liberty Mutual denied payment for the treatment, claiming the statute of limitations on Lisa’s benefits had expired. On February 16, 2010, Lisa brought the underlying action seeking to recover costs of Dr. Elswick’s treatment from Liberty Mutual under her PIP claim.
KRS 304.39-230(1), a provision of the Motor Vehicle Reparations Act, states that if reparation benefits have been paid, an action for further benefits “may be commenced not later than two (2) years after the last payment of benefits.” This court previously held that the date of payment made by the PIP provider is the date the PIP provider issued the check. Wilder v. Noonchester, 113 S.W.3d 189, 191 (Ky.App. 2003) (citing Lawson v. Helton Sanitation, Inc., 34 S.W.3d 52, 57 (Ky. 2000)).
Lisa maintains Wilder is not controlling and relies on KRS 355.4A-401 to argue that the date of receipt of payment is the date of payment for purposes of the statute of limitations. However, KRS 355.4A-401 applies to “direct fund transfers, commonly known as ‘wire transfers’ between banking institutions, rather than payment of medical bills by drafts issued by insurers.” See Wilder, 113 S.W.3d at 191.
In the case at bar, the record demonstrates that Liberty Mutual issued its last check to Bauman on October 5, 2007 to cover Lisa’s treatment costs. Thus, Lisa’s claim for PIP benefits to cover her treatment on October 9, 2009 is more than two years from her last benefits payment and, thus, her claim is time-barred.
The order of the Fayette Circuit Court is affirmed. ALL CONCUR.
Posted by Michael Stevens on July 04, 2012 at 10:36 PM in COA Decisions - 2010, Statute of Limitations, Torts and Insurance | Permalink
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PUBLISHED DECISIONS OF COA:
CLAYTON, JUDGE: This case comes before us on remand from the Kentucky Supreme Court pursuant to an order of the Court entered February 15, 2012. In our original opinion, we held that the trial court was correct in finding that Lexington- Fayette Urban County Government (LFUCG) was entitled to sovereign immunity in this action. After reviewing the recent decision in Madison County Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572 (Ky. 2011), we conclude that the trial court was in error.
In an opinion affirming, on August 20, 2010, we found the trial court correctly held that LFUCG was protected by sovereign immunity. As set forth above, on February 15, 2012, the Kentucky Supreme Court remanded this case to this Court after ordering that we further consider the case in light of the recent decision of Madison County, 352 S.W.3d 572.
In Madison County, the Court restated the law that while “a waiver of sovereign or governmental immunity will be found only where provided in a statute by the most express language or by such overwhelming implications from the text as to leave no room for any other reasonable construction.” Citing Withers v. University of Kentucky, 939 S.W.2d 340, 346 (Ky. 1997). The Court went on to hold that Kentucky Revised Statutes (KRS) Chapter 337 implied:
that the legislature did not intend to cloak city or county governments with governmental or sovereign immunity from the very liability that the statutes expressly placed upon them. A statute directing a governmental unit to pay its employees in a prescribed manner necessarily and overwhelmingly implies a waiver of immunity from liability to the employees for non-payment. Otherwise, the statute requiring such overtime pay is a nullity.
Based upon this holding, we must find that sovereign immunity has been waived in this action and that the trial court erred in dismissing the actionbased upon this defense. As a result, we and remand this action.
391. MANDAMUS. PROPERLY DENIED.
STUDOR, INC.
VS.
OFFICE OF HOUSING, BUILDINGS AND CONSTRUCTION, ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2011-CA-000474-MR
TO BE PUBLISHED
FRANKLIN
VANMETER, JUDGE: Studor, Inc. (“Studor”) appeals from the Franklin Circuit Court’s December 15, 2010, order denying its petition for a writ of mandamus and its related motion for summary judgment and granting summary judgment in favor of the Commonwealth of Kentucky’s Office of Housing, Buildings and Construction and the Commonwealth of Kentucky’s Board of Housing, Buildings and Construction (hereinafter collectively referred to as “Appellees”). For the following reasons, we affirm.
On appeal, Studor contends that the court erred by denying its petition for a writ of mandamus and its related motion for summary judgment, claiming that Appellees’ actions were arbitrary and capricious because their determination was not supported by substantial evidence and denied Studor the minimum standards for procedural due process. Studor also claims that Appellees’ determination denied it equal protection and favored special legislation. We disagree.
TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
No published.
Not to be published:
386. PIP. STATUTE OF LIMITATIONS.
DICKEY (LISA)
VS.
LIBERTY MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-002320-MR
NOT TO BE PUBLISHED
FAYETTE
VANMETER, JUDGE: Lisa Dickey appeals from the Fayette Circuit Court order granting Liberty Mutual Insurance Company’s (“Liberty Mutual”) motion for a judgment on the pleadings and denying Lisa’s motion for partial summary judgment. For the following reasons, we affirm.
On July 4, 2005, Lisa was involved in a motor vehicle accident. Pursuant to her insurance policy with Liberty Mutual, Lisa received Personal Injury Protection (“PIP”) benefits. On March 23, 2007 and April 16, 2007, Lisa was treated for injuries resulting from the accident at Bauman Physical Therapy (“Bauman”). Liberty Mutual issued a check on October 5, 2007 to cover those expenses. The check was received by Bauman on October 12, 2007. Lisa received additional treatment on October 9, 2009 by Clayton Elswick, D.C. Liberty Mutual denied payment for the treatment, claiming the statute of limitations on Lisa’s benefits had expired. On February 16, 2010, Lisa brought the underlying action seeking to recover costs of Dr. Elswick’s treatment from Liberty Mutual under her PIP claim.
KRS 304.39-230(1), a provision of the Motor Vehicle Reparations Act, states that if reparation benefits have been paid, an action for further benefits “may be commenced not later than two (2) years after the last payment of benefits.” This court previously held that the date of payment made by the PIP provider is the date the PIP provider issued the check. Wilder v. Noonchester, 113 S.W.3d 189, 191 (Ky.App. 2003) (citing Lawson v. Helton Sanitation, Inc., 34 S.W.3d 52, 57 (Ky. 2000)).
Lisa maintains Wilder is not controlling and relies on KRS 355.4A-401 to argue that the date of receipt of payment is the date of payment for purposes of the statute of limitations. However, KRS 355.4A-401 applies to “direct fund transfers, commonly known as ‘wire transfers’ between banking institutions, rather than payment of medical bills by drafts issued by insurers.” See Wilder, 113 S.W.3d at 191.
In the case at bar, the record demonstrates that Liberty Mutual issued its last check to Bauman on October 5, 2007 to cover Lisa’s treatment costs. Thus, Lisa’s claim for PIP benefits to cover her treatment on October 9, 2009 is more than two years from her last benefits payment and, thus, her claim is time-barred.
The order of the Fayette Circuit Court is affirmed. ALL CONCUR.
389. UNDERINSURED MOTORIST BENEFITS (UIM). STATUTE OF LIMITATIONS (SOL).
PERRY (BRENDA)
VS.
KELTY (DAMON), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ACREE (CONCURS)
2011-CA-000160-MR
NOT TO BE PUBLISHED
JEFFERSON
CAPERTON, JUDGE: The Appellant, Brenda Perry, appeals the December 22, 2010, order of the Jefferson Circuit Court, granting summary judgment in favor of the Appellees, Damon Kelty and State Farm Mutual Automobile Insurance Company, concerning Perry’s claim for underinsured motorist coverage. On appeal, Perry argues that the court erred in granting summary judgment. Following a review of the record, the arguments of the parties, and the applicable law, we affirm.
Having reviewed the record and applicable law, we are compelled to affirm the court below in granting State Farm’s motion for summary judgment. A review of the law of this Commonwealth establishes that the two-year limitation to commence an action for underinsured benefits set forth in Perry’s policy is the same limitation as that set for an action against a tortfeasor in the Kentucky Motor Vehicle Reparations Act, as codified at Kentucky Revised Statutes (KRS) 304.39-230(6). As this Court has previously held, a two-year limitation of this nature for suits against an underinsured carrier is not unreasonable. See Elkins v. Kentucky Farm Bureau Mutual Ins. Co., 844 S.W.2d 423 (Ky.App. 1992).
Perry advises this Court that she did not receive a copy of the policy, or Endorsement 6126GP, nor was she aware of the terms and conditions contained therein, a contention disputed by State Farm. Without question, however, Perry paid the premiums on the policy and admitted receipt of the Declaration Page outlining the contents of the policy. In so doing, Perry bound herself to the terms of the policy, including the limitation for filing an action contained therein. Furthermore, our courts have clearly held that the lack of knowledge of the contents of a written contract of insurance cannot serve as a legal basis for voiding its provisions. Midwest Mutual Insurance Co. v. Wireman, 54 S.W.3d 177 (Ky. App. 2001).
Our review of the record reveals that the limitation contained in the policy is clearly set forth in Endorsement 6126GP, which was referenced in the Declaration Page that Perry admittedly received. Unawareness of the content of the provisions referenced therein cannot serve as a basis for invalidating same.
Wherefore, for the foregoing reasons, we hereby affirm the December 22, 2010, order of the Jefferson Circuit Court, granting summary judgment in favor of the Appellees.
390. BOARD OF CLAIMS.
GAITHER (VIRGINIA), ADMINSTRATRIX & PERSONAL REPRESENTATIVE
VS.
JUSTICE & PUBLIC SAFETY CABINET, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000185-MR
2011-CA-000199-MR
NOT TO BE PUBLISHED
FRANKLIN
KELLER, JUDGE: Virginia Gaither (Virginia), Administratrix and Personal Representative of the Estate of LeBron Gaither (LeBron), appeals from the opinion and order of the Franklin Circuit Court dismissing Virginia’s claim and reversing the finding by the Board of Claims (the Board) that the actions of state police detectives were ministerial and negligent. On appeal, Virginia argues that the court erroneously found that the actions of state police detectives were discretionary and not subject to Virginia’s claims of negligence. The Justice and Public Safety Cabinet and the Department of State Police (collectively the Appellees) argue that their actions were discretionary, thus entitling them to immunity. The Appellees argue on cross-appeal that the Board erred in finding that they had a duty to protect Lebron; that they breached any such duty; that, if they were negligent, superseding/intervening events relieved them of any liability; and, that the amount awarded by the Board was not supported by the evidence and in excess of the appropriate statutory maximum. Having reviewed the record and the arguments of the parties, both orally and in writing, we affirm.
Posted by Michael Stevens on July 04, 2012 at 10:34 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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This is a Post-McIntosh, open and obvious, decision that needs to be read. It seems the Court of Appeals has been on a run take a bite out of the McIntosh apple after the SCOKY seemed to do away with the contributory defense of “open and obvious” and place premises liability back into the world of comparative negligence.
Justice Keller seems to have gotten this message and written a succinct decisions addressing the McIntosh implications by putting taking the decision from a single judge’s view of the world and returning the factual question to a jury and their collective wisdom of the relative fault of the parties.
Good for Judge Keller!
This is only an extract of the decision and by-passes the McIntosh review and analysis.
376. TORTS. PREMISES LIABILITY (SLIP AND FALL). Post McIntosh decision dealing with natural hazards.
BRUNER (ELGAN), ET AL.
VS.
MIAMI MANAGEMENT COMPANY, INCORPORATED (collectively hereinafter Wendy’s), ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000616-MR
NOT TO BE PUBLISHED
JESSAMINE
KELLER, JUDGE: Elgan and Deanna Bruner appeal from the circuit court’s summary judgment in favor of Miami Management Company, Inc. and Wendy’s International, Inc. (collectively hereinafter Wendy’s). The Bruners argue that material issues of fact exist regarding the extent of liability Wendy’s has for Elgan’s slip and fall injuries. Wendy’s argues that the circuit court appropriately granted summary judgment because the danger Elgan confronted was open, obvious, and the result of “naturally occurring outdoor hazards.” Having reviewed the record and relevant law, we reverse and remand.
The facts are not in dispute. Early on the morning of January 27,
2009, Jessamine and surrounding central Kentucky counties were hit by a winter storm that blanketed the area with ice, sleet, and snow. Despite the weather, and warnings to remain off the roads except for emergencies, Wendy’s opened for business as usual. Before Wendy’s opened, a contractor plowed and salted the parking lot.
At approximately 2:00 p.m. that day, Elgan, who also ignored the weather and warnings, drove to Wendy’s to meet Deanna for lunch. Elgan arrived at Wendy’s approximately five minutes before Deanna, where he waited for her in his truck. When he pulled into the parking lot, Elgan noted that snow had been plowed from the lot; however, he did not see any evidence that the lot had been salted. After Deanna pulled into the parking spot next to his, Elgan got out of his truck, slipped on ice that he had not seen, and fell. Elgan then reported the accident to the assistant manager, who told him that another man had fallen earlier. After providing the assistant manager with information for an accident report, the Bruners went to the emergency room. As a result of the accident, Elgan suffered a torn right rotator cuff, which he has not had repaired, because he is uninsured.
Wendy’s assistant manager testified that he had walked the parking lot approximately every half hour and had not seen ice. He also testified that, after completing the accident report, he looked where Elgan had parked and saw slush but no ice.
On September 4, 2009, Elgan and Deanna filed suit against Wendy’s alleging that it had failed to: keep the property safe; prevent and/or correct unsafe conditions; and warn of the danger. Wendy’s responded, denied any liability, and, after undertaking some discovery, filed a motion for summary judgment. In its motion, Wendy’s argued that any dangerous condition was open and obvious to Elgan; therefore, it had no liability. The Bruners argued, in pertinent part, that summary judgment was not appropriate in light of the Supreme Court of Kentucky’s holding in McIntosh v. Kentucky River Medical Center, 319 S.W.3d 385 (Ky. 2010). The circuit court summarily granted Wendy’s motion and the Bruners appealed.
If an invitee falls victim to an open and obvious danger, he will have some,
perhaps a significant amount of, fault. However, “this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any.” Id. at 391.
The Court noted that the open and obvious doctrine implies that, absent a duty to warn of a known danger, the land possessor has no duty. However, under comparative fault, that cannot be the case. A land possessor has a duty to “eliminate or reduce the risk posed by unreasonable dangers. In short, ‘[e]ven when the condition is open and obvious, a landowner’s duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such condition.’” Id. at 393 (citing Phalen v. State, 11 Misc.3d 151, 804 N.Y.S. 2d 886, 898 (N.Y. Ct. Claims 2005) (emphasis in original). Thus the duty of the land owner is separate from that of the invitee and trial courts must “ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable.”
Id. at 392.
In this case, Wendy’s premised its motion for summary judgment on the argument that it had no duty to warn Elgan or otherwise protect him from the open and obvious danger. However, that is not the law. As noted by the Supreme Court in McIntosh, a landowner’s duty is twofold, to warn of dangers and to take steps to eliminate them. Under McIntosh, Wendy’s may not have had a duty to warn Elgan of the open and obvious danger; however, that did not relieve Wendy’s of its duty to take reasonable steps to eliminate or reduce the danger. Whether Wendy’s fulfilled that duty is a question of fact for the jury, not a question of law for the court. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680 (Ky. App. 2009).
We note that Wendy’s argues that McIntosh should be narrowly applied to its facts, i.e. when the danger is manmade, not when the danger is the result of a natural hazard. We do not read McIntosh that narrowly. Based on our reading of McIntosh, a trial court is required to determine whether the landowner met its duty to protect the invitee in all circumstances where it is foreseeable that the invitee might: be distracted; realize there is a danger but forget about the danger; or choose to ignore the danger because the benefit outweighs the risk.
It is foreseeable that invitees to Wendy’s would appreciate a potential risk but proceed despite that risk. As Elgan admitted, he knew that there had been a snowfall, because he saw where the snow had been plowed off the parking lot. However, he proceeded despite that risk, believing that he would be stepping onto a parking lot that had been cleared.
Finally, we note Wendy’s argument that: local officials had warned people only to “venture out if faced with an emergency;” the federal government declared central Kentucky “a major disaster area” several days after the storm; and “despite reports of extreme weather and even a fallen tree on the road where [Elgan] resides, [Elgan] decided to meet his wife at Wendy’s for lunch.” That argument is a double-edged sword. Certainly, the factors cited by Wendy’s could weigh in favor of a finding by the trier of fact that Elgan is significantly, if not completely, liable for his injuries. However, those same factors could weigh in favor of a finding by the trier of fact that Wendy’s, when it decided to open for business, should have taken extra precautions to protect its customers. In any event, the choice of allocating fault is within the purview of the trier of fact and the trial court’s summary judgment was not appropriate.
Posted by Michael Stevens on July 04, 2012 at 10:34 PM in COA Decisions - 2010, Torts and Insurance | Permalink
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PUBLISHED DECISIONS OF COA:
No published decisions this week.
TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
No published decisions on torts.
376. TORTS. PREMISES LIABILITY (SLIP AND FALL). Post McIntosh decision dealing with natural hazards.
BRUNER (ELGAN), ET AL.
VS.
MIAMI MANAGEMENT COMPANY, INCORPORATED (collectively hereinafter Wendy’s), ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000616-MR
NOT TO BE PUBLISHED
JESSAMINE
KELLER, JUDGE: Elgan and Deanna Bruner appeal from the circuit court’s summary judgment in favor of Miami Management Company, Inc. and Wendy’s International, Inc. (collectively hereinafter Wendy’s). The Bruners argue that material issues of fact exist regarding the extent of liability Wendy’s has for Elgan’s slip and fall injuries. Wendy’s argues that the circuit court appropriately granted summary judgment because the danger Elgan confronted was open, obvious, and the result of “naturally occurring outdoor hazards.” Having reviewed the record and relevant law, we reverse and remand.
The facts are not in dispute. Early on the morning of January 27,
2009, Jessamine and surrounding central Kentucky counties were hit by a winter storm that blanketed the area with ice, sleet, and snow. Despite the weather, and warnings to remain off the roads except for emergencies, Wendy’s opened for business as usual. Before Wendy’s opened, a contractor plowed and salted the parking lot.
At approximately 2:00 p.m. that day, Elgan, who also ignored the weather and warnings, drove to Wendy’s to meet Deanna for lunch. Elgan arrived at Wendy’s approximately five minutes before Deanna, where he waited for her in his truck. When he pulled into the parking lot, Elgan noted that snow had been plowed from the lot; however, he did not see any evidence that the lot had been salted. After Deanna pulled into the parking spot next to his, Elgan got out of his truck, slipped on ice that he had not seen, and fell. Elgan then reported the accident to the assistant manager, who told him that another man had fallen earlier. After providing the assistant manager with information for an accident report, the Bruners went to the emergency room. As a result of the accident, Elgan suffered a torn right rotator cuff, which he has not had repaired, because he is uninsured.
Wendy’s assistant manager testified that he had walked the parking lot approximately every half hour and had not seen ice. He also testified that, after completing the accident report, he looked where Elgan had parked and saw slush but no ice.
On September 4, 2009, Elgan and Deanna filed suit against Wendy’s alleging that it had failed to: keep the property safe; prevent and/or correct unsafe conditions; and warn of the danger. Wendy’s responded, denied any liability, and, after undertaking some discovery, filed a motion for summary judgment. In its motion, Wendy’s argued that any dangerous condition was open and obvious to Elgan; therefore, it had no liability. The Bruners argued, in pertinent part, that summary judgment was not appropriate in light of the Supreme Court of Kentucky’s holding in McIntosh v. Kentucky River Medical Center, 319 S.W.3d 385 (Ky. 2010). The circuit court summarily granted Wendy’s motion and the Bruners appealed.
If an invitee falls victim to an open and obvious danger, he will have some,
perhaps a significant amount of, fault. However, “this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any.” Id. at 391.
The Court noted that the open and obvious doctrine implies that, absent a duty to warn of a known danger, the land possessor has no duty. However, under comparative fault, that cannot be the case. A land possessor has a duty to “eliminate or reduce the risk posed by unreasonable dangers. In short, ‘[e]ven when the condition is open and obvious, a landowner’s duty to maintain property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such condition.’” Id. at 393 (citing Phalen v. State, 11 Misc.3d 151, 804 N.Y.S. 2d 886, 898 (N.Y. Ct. Claims 2005) (emphasis in original). Thus the duty of the land owner is separate from that of the invitee and trial courts must “ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable.”
Id. at 392.
In this case, Wendy’s premised its motion for summary judgment on the argument that it had no duty to warn Elgan or otherwise protect him from the open and obvious danger. However, that is not the law. As noted by the Supreme Court in McIntosh, a landowner’s duty is twofold, to warn of dangers and to take steps to eliminate them. Under McIntosh, Wendy’s may not have had a duty to warn Elgan of the open and obvious danger; however, that did not relieve Wendy’s of its duty to take reasonable steps to eliminate or reduce the danger. Whether Wendy’s fulfilled that duty is a question of fact for the jury, not a question of law for the court. Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680 (Ky. App. 2009).
We note that Wendy’s argues that McIntosh should be narrowly applied to its facts, i.e. when the danger is manmade, not when the danger is the result of a natural hazard. We do not read McIntosh that narrowly. Based on our reading of McIntosh, a trial court is required to determine whether the landowner met its duty to protect the invitee in all circumstances where it is foreseeable that the invitee might: be distracted; realize there is a danger but forget about the danger; or choose to ignore the danger because the benefit outweighs the risk.
It is foreseeable that invitees to Wendy’s would appreciate a potential risk but proceed despite that risk. As Elgan admitted, he knew that there had been a snowfall, because he saw where the snow had been plowed off the parking lot. However, he proceeded despite that risk, believing that he would be stepping onto a parking lot that had been cleared.
Finally, we note Wendy’s argument that: local officials had warned people only to “venture out if faced with an emergency;” the federal government declared central Kentucky “a major disaster area” several days after the storm; and “despite reports of extreme weather and even a fallen tree on the road where [Elgan] resides, [Elgan] decided to meet his wife at Wendy’s for lunch.” That argument is a double-edged sword. Certainly, the factors cited by Wendy’s could weigh in favor of a finding by the trier of fact that Elgan is significantly, if not completely, liable for his injuries. However, those same factors could weigh in favor of a finding by the trier of fact that Wendy’s, when it decided to open for business, should have taken extra precautions to protect its customers. In any event, the choice of allocating fault is within the purview of the trier of fact and the trial court’s summary judgment was not appropriate.
Posted by Michael Stevens on July 04, 2012 at 10:32 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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Impermissible arguments, admonitions, and error. Oh My!
The following decision addresses improper argument by counsel regarding a party’s financial ability that was deemed error but not reversible error with a stinging dissent by Judge Nickell (whose dissent is posted en toto since it not only addresses the issue in this case but a succinct summary of arguments, permissible and not permissible.
356. MOTIONS FOR NEW TRIAL. IMPROPER ARGUMENTS.
GOSSETT (VELDA), ET AL.
VS.
CROCKETT (MERRILL)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-002079-MR
TO BE PUBLISHED
PULASKI
COMBS, JUDGE: Anthony and Velda Gossett appeal the order of the Pulaski Circuit Court that denied their motion for a new trial. After reviewing the record and the law, we affirm.
STD OF REVIEW FOR NEW TRIAL: Our standard of review is limited to the determination of whether the trial court abused its discretion. McVey v. Berman, 836 S.W.2d 445, 448 (Ky. App. 1992). The decision of a trial court enjoys a presumption of correctness, and we may only reverse if it was clearly erroneous. Id. A court’s actions are clearly erroneous if they are not supported by substantial evidence. Fugate v. Commonwealth, 62 S.W.3d 15, 18 (Ky. 2001).
ARGUMENT:
The Gossetts argue that the court erred in allowing the jury to hear the following statement of Crockett’s counsel during closing arguments: “This matter has held the prospect of financial ruin over [Crockett’s] head for over two years.” At that point, the Gossetts’ counsel interrupted the closing argument and objected. In a bench conference, the court agreed that the statement was improper. The Gossetts asked the court to inform the jury that Crockett had an insurance policy that would cover any damages. Instead, the court elected to cure the error by strongly admonishing each jury member that consideration of either party’s financial condition was not permitted. The Gossetts now contend that the admonition was insufficient to cure the harm resulting from the statement of Crockett’s counsel. We disagree.
It is “universally condemned” for counsel to refer to the financial condition of one of the parties for the purpose of persuading the jury. Murphy v. Cordle, 197 S.W.2d 242, 243 (Ky. 1946). But, it is also settled law in Kentucky that an admonition is deemed to cure the error created by an improper argument unless the argument “was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001). (Internal citations omitted). Furthermore, if an admonition was given, we must presume that the jury heeded and followed it. Combs v. Commonwealth, 198 S.W.3d 574, 581 (Ky. 2006).
In discussing improper arguments, our Court has held that we must determine:
whether the probability of real prejudice is sufficient to warrant a reversal. In making this determination, each case must be judged on its unique facts. An isolated instance of improper argument, for example, is seldom deemed prejudicial.
Rockwell Intern. Corp. v. Wilhite, 143 S.W.3d 604, 631 (Ky. 2003). (Emphasis added.)
Under the facts of this case, we cannot conclude that the statement was so prejudicial that it could not be cured by an admonition. The statement was isolated. Most of Crockett’s closing argument was a summary of the factual evidence that had been presented. It pointed out inconsistencies among the testimonies of the Gossetts’ witnesses. Crockett reminded the jury of his experts’ evaluation of the accident scene that indicated that the motorcycles had encountered the slick substance in the roadway before they reached the area that had been burned. A state trooper had testified that the slick substance appeared to be spillage from a vehicle. Eleven of the twelve jurors did not believe that Crockett was liable for the spillage. As distinguished from cases that have been reversed due to improper arguments, Crockett did not dwell on the subject of financial circumstances. The issue of damages per se was never even considered since no liability was found as a threshold matter. See Rockwell, supra; Murphy, supra.
Additionally, the court’s admonition to the jury was emphatic and clear. It instructed the jury not to consider the financial condition of any party. It then asked the members of the jury if they understood; it did not permit counsel to resume until the jury had responded. Therefore, the court’s denial of the Gossetts’ motion for a new trial was based on substantial evidence and was not clearly erroneous.
DISSENT BY JUDGE NICKELL:
NICKELL, JUDGE, DISSENTING: Respectfully, I dissent.
In his closing statement to the jury, Crockett’s trial counsel expressed sympathy for the Gossetts, but argued “this trial is not a measure of sympathy.” Yet, in asserting that the Gossetts’ lawsuit “has held the prospect of financial ruin over [Crockett's] head for over two years,” he attempted to enlist the jury’s sympathy on behalf of his own client’s financial status, and strongly inferred that Crockett’s finances were in peril, that Crockett was too poor to pay likely damages should he be found liable for the Gossetts’ injuries, and that Crockett had no liability insurance to cover any portion of a damage award in the event liability was found. All three implications were legally improper, and the significant prejudice arising from trial counsel’s erroneous argument was compounded by his knowledge that the latter inference was entirely false. Crockett was, in fact, covered by a policy of liability insurance. It is reasonable, therefore, to conclude that trial counsel’s improper argument to the jury, and the strong inferences capable of being drawn from it, was intended to gain an illegitimate trial advantage. The resulting verdict in Crockett’s favor tends to indicate that the strategy was effective and calls into question whether the jury considered extraneous matters in reaching its deliberations concerning the merits of causation, liability, and damages.
The trial court correctly chastised trial counsel and characterized his “financial ruin” argument as “a serious misstep.” However, rather than sustaining the Gossetts’ objections and motions for a more pronounced, specific, and corrective admonition or a new trial, the trial court chose merely to provide the jury with the very general admonition that it was to consider neither party’s financial condition when reaching its verdict. Though the majority recognizes that trial counsel’s improper trial tactic of referencing his client’s dire financial condition and falsely implying the absence of liability insurance has been “universally condemned” by our courts, Murphy, it deems the trial court’s generalized admonition presumptively adequate to cure the significant prejudice arising from trial counsel’s devastating singular utterance. Price; Combs. I disagree.
In tort litigation, Kentucky courts have consistently held “parties may not present evidence or otherwise advise the jury of the financial condition of either side of the litigation,” Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998), and have recognized that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Kentucky Rules of Evidence (KRE) 411.
Kentucky courts have further held that “[a] defendant’s ability or inability to pay a judgment is no more relevant to the issue of liability than is the fact of insurance,” that “[a] case should be tried on the merits without reference to the wealth or poverty of the parties,” and that the presence or absence of liability insurance is irrelevant to the issues of fault and liability. White v. Piles, 589 S.W.2d 220, 222 (Ky. App. 1979) (citing Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661 (1931)). In a tort action, evidence or argument concerning a party’s financial status or the availability of liability insurance is irrelevant to the merits concerning causation, liability, and damages. Even indirect references to these matters have been condemned. Id. (citing Randle v. Mitchell, 142 S.W.2d 124 (1940)); and Earle v. Cobb, 156 S.W.3d 257, 265 (Ky. 2004) (citing Bybee v. Shanks, 253 S.W.2d 257, 260 (Ky. 1952)).
Such evidence or argument, even if singular, isolated, and inadvertent, is capable of being inflammatory and prejudicial because of the likelihood that jurors will be tempted to find causation and liability regardless of fault and award excessive damages if they believe the defendant to possess extensive financial resources or liability insurance, or find no causation or liability and award little or no damages if they believe the defendant has limited financial resources or no liability insurance. Turpin v. Scrivner, 178 S.W.2d 971, 974 (Ky. 1944). Thus, introduction of evidence or argument concerning a party’s financial status or the availability or absence of liability insurance is presumed to be prejudicial, and, absent a showing of non-prejudice to the complaining party or legal excuse, represents reversible error requiring a mistrial. White, at 222; Finch v. Conley, All S.W.2d 128, 130 (Ky. 1967); Struetkerv. Neiser. 290 S.W.2d 781. 782 (Ky. 1956): and Maddox v. Grauman, 265 S.W.2d 939, 942 (Ky. 1954) (citing Star Furniture Co. v. Holland, 273 Ky. 617, 117 S.W.2d 603 (1938)).
While it may be generally presumed that a jury admonition will cure any prejudice arising from many less egregious improper arguments, introduction of improper evidence or argument referencing either party’s financial status or the availability or absence of liability insurance is presumptively prejudicial and reversible error which no admonition will likely cure. After trial counsel has fired an improper and harmful, though solitary, isolated, and inadvertent, argumentative bullet, it is highly unlikely that a jury will be able to follow the trial court’s admonition that it simply forget the wound. This is especially true in “close” or circumstantial cases, such as the one before us, where the testimony is evenly balanced or contradictory, and where it can fairly be said that “the question as to the proximate cause of the injury is so close that the slightest suggestion in the closing argument of any matter extraneous to the record might have been sufficient to tip the scales in favor of the offending party.” Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 612-13 (1942).
In short, there are erroneous argumentative matters so serious in nature that no admonition may reasonably be expected to cure the harm. In such cases, as here, the only reliable remedy is to declare a mistrial. In the present case, the presumptive prejudice arising from trial counsel’s improper argument was prone to distract the jury’s deliberations from the merits concerning causation, liability, and damages, and thereby tainted its ultimate verdict. Even if one were to accept the majority’s opinion that an admonition could have cured such a devastatingly inflammatory and prejudicial argument, to be truly remedial the admonition would have needed to have been so emphatic as to leave no doubt in juror’s minds as to the unequivocal repudiation of the erroneous matter, and any false inference that Crockett possessed no liability insurance should have been specifically and forcefully addressed “to clear up any confusion in the minds of the jury.” White, at 222.
Here, by “injecting the issue of his client’s ability to pay into his closing argument,” and thereby strongly inferring the absence of liability insurance, trial counsel “opened the door” for the trial court to have interposed an unequivocal and direct admonition, advising the jury to disregard the financial status of the parties in its deliberations and specifically correcting the false implication that Crockett had no liability insurance. Id. Only then would the admonition have truly re-leveled the playing field. Contrary to any legal fiction the majority may lend to the presumptively curative nature of jury admonitions under Combs, it is impossible to “unring the bell” and it is unreasonable to expect a juror to forget what has already been heard, or to remove from his or her mind a strong impression once firmly imprinted.
The proper legal analysis pertaining to the present case is on all fours with the holding in Walden, though that case involved the opposite situation wherein a plaintiffs trial counsel had made a singular improper comment in closing argument referencing the defendant’s sound financial status and inferring the availability of liability insurance. In Walden, our former Court of Appeals
held:
We have often condemned any argument or evidence being presented in a case from which the jury could infer that the defendant was indemnified by insurance, and if counsel for plaintiff either by evidence or by argument, injects any circumstance or statement from which an inference may be drawn that the defendant is indemnified, he must suffer the consequence of a reversal of any judgment which he might obtain. We think that the jury in reason could have inferred from the statement made that the defendant was covered by insurance but if that were not true, the statement certainly related to the financial condition of the defendant which is improper argument in any case. There is no law applicable to the poor that is not likewise applicable to the rich, nor is any law applicable to the rich that is not likewise applicable to the poor, and an endeavor on the part of an attorney or litigant to inflame the minds of the jury by referring to the financial status of either of the parties is improper. While such reference is not always prejudicial, we believe it to have been in this case, because the question as to the proximate cause of the injury is so close that the slightest suggestion in the closing argument of any matter extraneous to the record might have been sufficient to tip the scales in favor of the offending party.
Posted by Michael Stevens on July 04, 2012 at 10:31 PM in COA Decisions - 2010, Openings and Closings | Permalink
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PUBLISHED DECISIONS OF COA:
355. PROBATE. INTESTACY. HEIRS.
BARTLEY (PAMELA)
VS.
CULBERTSON (JUDITH P.)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001937-MR
2010-CA-002124-MR
TO BE PUBLISHED
MONTGOMERY
COMBS, JUDGE: These consolidated appeals arise from the entry of summary judgment in favor of Judith Culbertson in her declaratory judgment action. She sought a determination by the Montgomery Circuit Court that she is the biological child of Carl Bartley, deceased, and that she is, therefore, an heir at law to his Estate through intestacy. We affirm.
356. MOTIONS FOR NEW TRIAL. IMPROPER ARGUEMENTS.
GOSSETT (VELDA), ET AL.
VS.
CROCKETT (MERRILL)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-002079-MR
TO BE PUBLISHED
PULASKI
COMBS, JUDGE: Anthony and Velda Gossett appeal the order of the Pulaski Circuit Court that denied their motion for a new trial. After reviewing the record and the law, we affirm.
STD OF REVIEW FOR NEW TRIAL: Our standard of review is limited to the determination of whether the trial court abused its discretion. McVey v. Berman, 836 S.W.2d 445, 448 (Ky. App. 1992). The decision of a trial court enjoys a presumption of correctness, and we may only reverse if it was clearly erroneous. Id. A court’s actions are clearly erroneous if they are not supported by substantial evidence. Fugate v. Commonwealth, 62 S.W.3d 15, 18 (Ky. 2001).
ARGUMENT:
The Gossetts argue that the court erred in allowing the jury to hear the following statement of Crockett’s counsel during closing arguments: “This matter has held the prospect of financial ruin over [Crockett’s] head for over two years.” At that point, the Gossetts’ counsel interrupted the closing argument and objected. In a bench conference, the court agreed that the statement was improper. The Gossetts asked the court to inform the jury that Crockett had an insurance policy that would cover any damages. Instead, the court elected to cure the error by strongly admonishing each jury member that consideration of either party’s financial condition was not permitted. The Gossetts now contend that the admonition was insufficient to cure the harm resulting from the statement of Crockett’s counsel. We disagree.
It is “universally condemned” for counsel to refer to the financial condition of one of the parties for the purpose of persuading the jury. Murphy v. Cordle, 197 S.W.2d 242, 243 (Ky. 1946). But, it is also settled law in Kentucky that an admonition is deemed to cure the error created by an improper argument unless the argument “was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001). (Internal citations omitted). Furthermore, if an admonition was given, we must presume that the jury heeded and followed it. Combs v. Commonwealth, 198 S.W.3d 574, 581 (Ky. 2006).
In discussing improper arguments, our Court has held that we must determine:
whether the probability of real prejudice is sufficient to warrant a reversal. In making this determination, each case must be judged on its unique facts. An isolated instance of improper argument, for example, is seldom deemed prejudicial.
Rockwell Intern. Corp. v. Wilhite, 143 S.W.3d 604, 631 (Ky. 2003). (Emphasis added.)
Under the facts of this case, we cannot conclude that the statement was so prejudicial that it could not be cured by an admonition. The statement was isolated. Most of Crockett’s closing argument was a summary of the factual evidence that had been presented. It pointed out inconsistencies among the testimonies of the Gossetts’ witnesses. Crockett reminded the jury of his experts’ evaluation of the accident scene that indicated that the motorcycles had encountered the slick substance in the roadway before they reached the area that had been burned. A state trooper had testified that the slick substance appeared to be spillage from a vehicle. Eleven of the twelve jurors did not believe that Crockett was liable for the spillage. As distinguished from cases that have been reversed due to improper arguments, Crockett did not dwell on the subject of financial circumstances. The issue of damages per se was never even considered since no liability was found as a threshold matter. See Rockwell, supra; Murphy, supra.
Additionally, the court’s admonition to the jury was emphatic and clear. It instructed the jury not to consider the financial condition of any party. It then asked the members of the jury if they understood; it did not permit counsel to resume until the jury had responded. Therefore, the court’s denial of the Gossetts’ motion for a new trial was based on substantial evidence and was not clearly erroneous.
357. REAL PROPERTY.
LEWIS (ROBERT KNOX)
VS.
MANNING (DEBORAH L.), ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
THOMPSON (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-002162-MR
TO BE PUBLISHED
MAGOFFIN
LAMBERT, SENIOR JUDGE: Robert Knox Lewis appeals from a judgment of the Magoffin Circuit Court entered following a bench trial finding in favor of the Appellees. Appellant had filed an action against Appellees Deborah L. Manning, Terry Littleton, and Wilma Littleton seeking to void or reform a deed of conveyance between the parties on the grounds that the subject property contained fewer acres than represented in the deed. After careful review, we reverse and remand for further proceedings consistent with this opinion.
359
WILLIAMS (TRISHA ANN)
VS.
CLINE (RANDY), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000444-MR
TO BE PUBLISHED
ROWAN
LAMBERT, SENIOR JUDGE: Trisha Ann Williams appeals from an order dismissing her claims against the Appellees, Randy Cline and Keith McCormick, for malicious prosecution, abuse of process, and negligence. On appeal, Williams argues that the Commonwealth cannot coerce a criminal defendant into signing a stipulation of probable cause and then later use that stipulation to avoid liability. Upon a review of the record, we affirm in part and reverse in part, with instructions for the trial court to conduct an evidentiary hearing and make specific findings on remand.
We first address Williams’s claim for abuse of process. Williams alleges that McCormick abused legal process when he requested her to stipulate to probable cause for improper reasons. Namely, Williams alleges that McCormick requested the probable cause stipulation, not in the interests of justice, but for the ulterior purpose of insulating himself from liability. Indeed, Williams claims the Commonwealth was in possession of exculpatory audio/visual recordings at the time they requested her stipulation.
An abuse of process claim exists where an individual “uses a legal process, whether criminal or civil, against another primarily to accomplish a
3 Specifically, Williams wants access to the audio and video tapes of the drug transaction. She pled in her complaint that detectives told her such tapes were in existence at the time of her interrogation. She further alleges that her counsel was informed the recordings clearly showed she was not involved with the crimes. She does not state how this information was obtained or where it was obtained from. Nonetheless, as we are required to accept the facts in her pleadings as true and view them in a light most favorable to her, we will assume that audio and video recordings exist for the purposes of review and that such tapes are exculpatory
purpose for which that process is not designed[.]” Sprint Communications Co., L.P. v. Leggett, 307 S.W.3d 109, 113 (Ky. 2010). We find there is a genuine issue of fact as to whether McCormick requested a probable cause stipulation for improper reasons.
However, before determining whether a reversal is required, we must first consider whether McCormick is immune from suit on such a claim. Our Supreme Court held in McCollum v. Garrett, 880 S.W.2d 530 (Ky. 1994) that a public prosecutor sued in his official capacity has absolute immunity for all acts or omissions taken after the commencement of formal prosecution, where the prosecutor is acting within his lawful authority. Id. at 534-535. Indeed, “[a]bsolute immunity . . . extends to . . . prosecutors with respect to the initiation and pursuit of prosecutions[.]” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2002). The rationale behind this immunity is to protect prosecutor’s offices “against the deterrent effect of a threat of suit alleging improper motives where there has been no more than a mistake or a disagreement[.]” Id.
However, as the McCollum Court noted, prosecutors sued in their individual capacities are only afforded qualified official immunity when acting as an investigator and in the period leading up to the bringing of criminal charges. McCollum, 880 S.W.2d at 534-535. Qualified immunity applies when an official is sued in an individual capacity and the act(s) in question were (1) discretionary in nature, (2) taken in good faith, and (3) were within the scope of the individual’s official duties. Yanero, 65 S.W.3d at 522.
In the present case, McCormick had already commenced prosecution at the time he requested the stipulation from Williams. Thus, he is entitled to absolute immunity so long as he was not acting outside of his lawful authority (such as by forging a judge’s signature on an arrest warrant). McCollum, 880 S.W.2d at 537; Dugger v. Off 2nd, Inc., 612 S.W.2d 756 (Ky. 1980). Regardless of the propriety of his motives, McCormick was not acting outside of his authority as a prosecutor when he offered to dismiss the charges for a stipulation of probable cause. Hence, McCormick is immune from suit on an abuse of process claim.
Accordingly, we affirm the trial court’s dismissal of this claim.
Malicious Prosecution
We next consider Williams’s claim for malicious prosecution. Under Kentucky law, in order to establish a claim for malicious prosecution, six elements must be established by the plaintiff: (1) the institution of judicial proceedings, (2) by or at the insistence of the Defendant, (3) the resulting termination of such proceedings in the claimant’s favor, (4) malice in the institution of such proceedings, (5) want or lack of probable cause in such proceedings, and (6) injury or damages suffered by the plaintiff as a result thereof. Davidson v. Castner–Knott Dry Goods Co., Inc., 202 S.W.3d 597, 602 (Ky. App. 2006).
This Court has previously held that a dismissal without prejudice does not necessarily foreclose a later claim for malicious prosecution. Davidson, 202 S.W.3d at 605. In the present case, although the charges were dismissed without prejudice, it does appear the dismissal was for want of evidence. Thus, we conclude that the termination was in Williams’s favor under Davidson.
However, Williams stipulated to probable cause as a part of her dismissal agreement, and “want or lack” of probable cause is also a necessary element for a claim of malicious prosecution. Williams asks us to disregard the stipulation of probable cause because it was obtained by coercion.
At the outset, we note that this type of dismissal agreement was held constitutional by the United States Supreme Court in Town of Newton v. Rumery, 480 U.S. 386, 107 S. Ct. 1187, 94 L. Ed. 2d 405 (1987). The Rumery court, applying “traditional common law principles” to federal law, held that a defendant who accepted a municipality’s offer to dismiss criminal charges against him in exchange for a waiver of claims could not later repudiate the waiver and sue the municipality under 42 U.S.C. § 1983. The Rumery court rejected the argument that such waiver agreements are “inherently coercive” or that they are per se invalid. Rumery, 480 U.S. at 393, 107 S. Ct. at 1192. Nonetheless, the Court suggested that such agreements must be voluntary and procured in the absence of prosecutorial misconduct. Id. at 398.
In Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993), the Sixth Circuit clarified the holding in Rumery by concluding that before a court may allow the enforcement of a release-dismissal agreement, it must first determine that “(1) the agreement was voluntary; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of the agreement will not adversely affect relevant public interests.” Id. The court noted that the burden falls upon the party seeking to invoke the dismissal agreement as a defense.
In the present case, the dismissal agreement did not require a waiver of claims (as in the § 1983 actions cited above), but instead required a stipulation of probable cause. Nonetheless, a stipulation to probable cause effectively precludes later suit for malicious prosecution in the Commonwealth. While this is not a § 1983 action, we are persuaded by the wisdom behind the Sixth Circuit’s reasoning in Coughlen and the Supreme Court’s reasoning in Rumery that a trial court must first make specific findings of fact that the agreement was voluntary, that there was no evidence of prosecutorial misconduct, and that public policy interests would not be affected before allowing the agreement to preclude suit for malicious prosecution.
Hence, we reverse and remand for an evidentiary hearing and a determination of whether the dismissal agreement met the above criteria. If the court chooses not to allow the dismissal agreement as a defense based upon its findings, it shall only consider actions taken by Cline4 or McCormick during the period in which they were acting as investigators, as delineated in McCollum, supra, and apply a qualified immunity analysis. Their actions taken subsequent to formal prosecution are cloaked with absolute immunity. Id.
Negligence
Finally, we reach Williams’s claims of negligence against McCormick and Cline. Williams alleges that both Appellees breached the standard of ordinary care when deciding to bring charges of trafficking against her despite exculpatory evidence in their possession. During the period of investigation, McCormick had not “commenced prosecution,” and thus his actions and Cline’s during that period are not cloaked with absolute immunity. Thus, we must consider whether McCormick and Cline are insulated from liability under a theory of qualified immunity. McCollum, 880 S.W.2d 534-535. Officers and employees of the state, when sued for negligence in their individual capacities, are immune from suit for discretionary acts within the scope of their authority, so long as such acts are taken in good faith. Yanero, 65 S.W.3d at 521.
In the present case, it is clear that McCormick and Cline’s actions were discretionary in nature (as the process of investigating a suspect and deciding whether to swear out a criminal complaint cannot be ministerial in nature) and were within the scope of their authority. Thus, the only remaining question is whether their actions were taken in good faith. We believe that there is an issue of material fact as to whether McCormick and Cline acted in good faith. Similar to McCollum, supra, the question here seems to be whether Cline and McCormick learned that Williams “was misidentified as the offender during the investigation and prior to prosecution, but nevertheless initiated the prosecution.” McCollum, 880 S.W.2d at 535.
Hence, we reverse and remand to the Rowan Circuit Court on the issue of negligence. On remand, the court shall consider whether Cline and McCormick acted in good faith. As part of this analysis, the court should consider whether the Commonwealth was in possession of audio/video recordings that were exculpatory yet knowingly proceeded against Williams anyway.
In sum, we affirm the trial court’s dismissal of the abuse of process claim and reverse and remand for an evidentiary hearing and for specific findings on the claims of malicious prosecution and negligence.
364. TORTS. BREACH OF FIDUCIARY DUTY. TORTIOUS INTERFERENCE WITH CONTRACT. TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE.
SNOW PALLET, INC., ET AL.
VS.
MONTICELLO BANKING COMPANY, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000696-MR
TO BE PUBLISHED
CLINTON
LAMBERT, SENIOR JUDGE: Snow Pallet, Inc., Gleta Stalcup, and Jackie Stalcup appeal from a summary judgment of the Clinton Circuit Court dismissing their claims of breach of fiduciary duty, interference with contractual relations, and interference with prospective business advantage against Monticello Bankshares, Inc., and Monticello Banking Company. Upon a thorough review of the record, we affirm the Clinton Circuit Court.
Posted by Michael Stevens on June 28, 2012 at 10:10 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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In medical negligence cases, a misdiagnosis creates two difficult problems for the injured claimant which do not appear to be fully appreciated by our appellate courts, usually under the misguided belief that it would be speculative or too speculative. These two area are:
(1) lost chance or opportunity to be cured or even have their pain, suffering reduced or diminished. I have always been amazed at the lack of realistic appraisal, if not naivite’, of the jurists in failing to comprehend that a misdiagnosis resulting in smaller chance of recovery is a wrong that should be compensated. Whether the lost opportunity or reduction is 90% or 10%, patients/claimants are entitled to all of the chances and all the opportunity that should have been afforded to them to physically recover, have their life physically improved, have their pain mitigated or ameliorated in quantity or quality, and just to be simply free of the worry caused by bad medicine.
(2) in the following decision, the COA further buttresses Kentucky law on the damages of increased likelihood of future complications.
345. MEDICAL NEGLIGENCE. DAMAGES (INCREASED LIKELIHOOD OF FUTURE COMPLICATIONS)
GILL (PAULA K.)
VS.
BURRESS (SUSAN M.)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000332-MR
TO BE PUBLISHED
FAYETTE
MOORE, JUDGE: Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress’s alleged professional negligence in failing to detect a mass in Gill’s breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
We begin our analysis by identifying Gill’s injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress’s negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress’s negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.
In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)
A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.
In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)
A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.
As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).
We are mindful of Burress’s contention that it would be difficult for Gill to attribute any specific part of her existing mental anguish that is specifically related to her five to twenty-five percent increased likelihood of having cancer again, as opposed to what her mental anguish would have been even if she had been timely diagnosed with cancer. Nevertheless, this difficulty should not preclude Gill from presenting her case to the finder of fact. In this respect, we are persuaded by the logic of our sister court illustrated in Swain v. Curry, 595 So.2d 168, 172 (Fla. 1st DCA), rev. denied, 601 So.2d 551 (Fla. 1992). There, the failure to timely detect a breast tumor resulted in a radical mastectomy, whereas earlier detection would have resulted in a lumpectomy. Testimony was presented that Mrs. Swain had a sixty-five percent probability that she would develop a recurrence of the cancer, whereas a timely diagnosis would have resulted in only a five to ten percent possibility of recurrence. In addressing the issue of recoverable damages, the Swain Court noted:
Mrs. Swain is entitled to attempt to prove that her emotional damages are presently greater as a result of such increased fear of recurrence of cancer as has resulted from any provable negligence. Such damages are recoverable, not as a separate cause of action, but as an element of personal injury damages. . . . Claimant in this case certainly faces a formidable obstacle in attempting to demonstrate to the satisfaction of the finder of fact that her emotional distress is of a demonstrably and quantifiably different degree now, as compared to the case of prompt diagnosis and treatment. Difficulty of proof will not, however, deprive a plaintiff of the opportunity to present her case.
Id. at 173 (citation omitted). Importantly, the analysis set forth in Swain was in no way dependent upon that increased risk of recurrence being greater than fifty percent.
As to Gill’s claim that she suffered damage resulting from her chemotherapy treatment and the surgical removal of her ovaries in anticipation of chemotherapy, we likewise find the evidence is sufficient to present a question for the jury. Generally speaking,
[a]ll recoverable damages are subject to some uncertainties and contingencies, but it is generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damage and not as to its amount. Where it is reasonably certain that damage has resulted, mere uncertainty as to the amount does not preclude one’s right of recovery or prevent a jury decision awarding damages. Johnson v. Cormney, 596 S.W.2d 23, 27 (Ky. App. 1979) (emphasis added), overruled on other grounds by Marshall v. City of Paducah, 618 S.W.2d 433 (Ky. App. 1981); see also Hanson v. American Nat’l Bank & Trust Co., 865 S.W.2d 302, 309 (Ky.1993) (to the same effect), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 495 (Ky. 2002).
We find no error, however, in the circuit court’s determination that any future medical treatment relating to a potential recurrence of cancer is non- compensable. As noted above, Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain. See Cormney, 596 S.W.2d at 27. Here, according to the evidence of record, Gill is currently cancer- free and it is at least seventy percent likely, e.g., more likely than not, that she will suffer no recurrence of cancer and, therefore, require no future medical treatment for it.
Similarly, we find no error in the circuit court’s determination that Gill’s purportedly five to twenty-five percent decreased chance of remaining cancer-free is non-compensable. Without laboring the point, a majority of jurisdictions consider a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury,5 a
[[fn 5 A review of the reported cases that have considered the doctrines of “increased risk of harm” and “lost chance” indicates a wide disparity in acceptance and application. See, e.g., Causation- Loss of Chance, 54 A.L.R.4th 10 (1987); Damages-Loss of Chance, 81 A.L.R.4th 485 (1990). Nevertheless, we believe, like the Supreme Court of Delaware, that “Since loss of chance and increased risk of harm both rely on similar theoretical underpinnings . . . it would not be coherent to adopt increased risk without also adopting loss of chance.” United States v. Anderson, 669 A.2d 73, 75-76 (Del. 1995).]] minority of jurisdictions do not,6 [[fn 6 For a fairly recent breakdown of these jurisdictions, as well as an extensive analysis of the policies behind allowing for this type of recovery, see Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008). Notably, Tennessee, Delaware, and Florida, whose law we have briefly surveyed as persuasive authority, are among the jurisdictions noted in Matsuyama that either do not recognize this doctrine, or find it otherwise incompatible with existing precedent. See id. at 829 (citing Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984)); Kilpatrick v. Bryant, 868 S.W.2d 594, 602-603 (Tenn. 1993); United States v. Cumberbatch, 647 A.2d 1098, 1102-1104 (Del. 1994))]] .and Kentucky is in the minority. See Kemper, 272 S.W.3d 146. Kentucky law also prohibits the possibility of future harm from constituting an element of damages if that possibility is considered outside the realm of damages for mental anguish. Id. at 150-151 (distinguishing Davis, 672 S.W.2d 928); but see United States v. Anderson, 669 A.2d 73, 78 (Del. 1995) (declining to regard fifteen percent increased risk of cancer as a legally recognized injury, but allowing increased risk, in and of itself, to be considered as an element of damages as demonstrative of a significantly greater injury).
In rebuttal, Gill argues that Kemper represents a gross misapplication and misinterpretation of Kentucky precedent, and urges this Court to overrule the Supreme Court on a variety of grounds. Suffice it to say, however, that “[t]he Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Rules of the Supreme Court (SCR) 1.030(8)(a). We find that the circuit court did not misapply the Kemper holding in this respect and we therefore find no error because we “cannot overrule the established precedent set by the Supreme Court[.]” Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986)).
Posted by Michael Stevens on June 28, 2012 at 08:33 PM in Cause of Action, Damages, Medical | Permalink
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PUBLISHED DECISIONS OF COA:
335. REAL PROPERTY.
CARRIER (REGINA S.), ET AL.
VS.
KIRCHHEIMER (SHEILA T.), ET AL.
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
STUMBO ( CONCURS) AND LAMBERT (CONCURS)
2009-CA-002163-MR
TO BE PUBLISHED
BRECKINRIDGE
TAYLOR, CHIEF JUDGE: Regina S. Carrier and Carl Wayne Carrier bring this appeal from an October 21, 2009, Findings of Fact, Conclusions of Law, and Judgment of the Breckinridge Circuit Court adjudicating a petition for declaration of rights involving certain real property. Kentucky Revised Statutes (KRS) 418.040. We reverse and remand.
This matter was heard by the circuit court without a jury, and the circuit court entered written findings of fact and conclusions of law in compliance with Kentucky Rules of Civil Procedure (CR) 52.04. The circuit court concluded that Sandy Beach Lane was a private road for the sole use and benefit of lot owners in Sandy Beach Subdivision. The court also held that the one-foot strip was restricted in use and could not be utilized by lot owners of either Sandy Beach II or Taylor’s Landing to access Sandy Beach Lane. This appeal follows.
In the case sub judice, it is uncontroverted that no written or recorded instrument evidencing a restriction of use upon the one-foot strip is found in the record. Rather, the only evidence demonstrating the existence or terms of such restriction consisted of merely oral testimony. Under these facts, any purported restriction on the one-foot strip is presently unenforceable against the Carriers as no such restriction was recorded within the property’s chain of title.15 See Oliver, 885 S.W.2d 699.
In sum, we hold that Sandy Beach Lane is a public roadway and that the one-foot strip of land is not restricted in use.
For the foregoing reasons, the Findings of Fact, Conclusions of Law, and Judgment of the Breckinridge Circuit Court is reversed and this case is remanded for further proceedings consistent with this opinion.
345. MEDICAL NEGLIGENCE. DAMAGES (INCREASED LIKELIHOOD OF FUTURE COMPLICATIONS)
GILL (PAULA K.)
VS.
BURRESS (SUSAN M.)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000332-MR
TO BE PUBLISHED
FAYETTE
MOORE, JUDGE: Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress’s alleged professional negligence in failing to detect a mass in Gill’s breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
We begin our analysis by identifying Gill’s injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress’s negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress’s negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.
In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)
A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.
As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).
As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).
348. WORKERS COMPENSATION
DALLAS NATIONAL INSURANCE COMPANY
VS.
BOARD (JEFFREY), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2011-CA-001645-WC
TO BE PUBLISHED
WORKERS’ COMP
THOMPSON, JUDGE: Dallas National Insurance Company appeals from an opinion and order of the Workers’ Compensation Board affirming the decision of the Administrative Law Judge (ALJ) awarding permanent total disability benefits to Jeffrey Board and assessing sanctions pursuant to KRS 342.310. Dallas presents four issues: (1) whether Dallas provided insurance coverage to Bruce Stull, D/B/A J.B.T. Trucking (Stull), Board’s employer; (2) whether Kentucky had jurisdiction over Board’s claim; (3) whether Board was entitled to permanent total disability benefits; and (4) whether sanctions were appropriate. We conclude there was no error and affirm.
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346. TORTS. PREMISES LIABILITY (LANDLORD-TENANT)
MARTIN (LATASHA)
VS.
MOORE (JEFF)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000376-MR
NOT TO BE PUBLISHED
FAYETTE
KELLER, JUDGE: Appellant Latasha Martin appeals from the Fayette Circuit Court’s entry of summary judgment in favor of Appellee Jeff Moore. Appellant filed a premises liability action after falling down a staircase in a residence owned by Appellee and breaking her ankle. After careful review, we conclude that the trial court’s grant of summary judgment was appropriate. Thus, we affirm.
The law governing landlord-tenant liability in a case such as this is well established and agreed upon by the parties. “[A] landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979); see also Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 775 (Ky. App. 2000). However, “[i]t has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein.” Milby, 580 S.W.2d at 728. Moreover, “the landlord is under no implied obligation to repair the demised premises in the absence of a contract to that effect, nor is he responsible to a tenant for injuries to persons or property caused by defects therein, where there has been no reservation on the part of the landlord of any portion of the rented premises.3 In such cases the law applies to the contract or lease the doctrine of caveat emptor.” Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751, 751 (1920); see also Lambert, 37 S.W.3d at 775-76. Thus, “[w]here the tenant is put in complete and unrestricted possession and control of the premises, as here, the landlord is liable only for the failure to disclose known latent defects at the time the tenant leases the premises.” Lambert, 37 S.W.3d at 776; see also Carver v. Howard, 280 S.W.2d 708, 711 (Ky. 1955).
Knowledge of a patent defect does not necessarily give rise to constructive notice to search for latent defects.
“The latent defect must be known; it is not required by any precedent to be intuited.” Schneder v. Erdman, 752 S.W.2d 789, 791 (Ky. App. 1988).
Although Appellant fails to support her assertion that a step gave way beneath her with anything beyond her own testimony, the parties do not dispute that if the step was actually defective, such a defect would be latent since it could not be readily seen or observed. The record plainly shows that Appellee was unaware of such a defect and Appellant has failed to present adequate proof showing otherwise. Therefore, summary judgment was appropriate.5
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
Posted by Michael Stevens on June 28, 2012 at 08:32 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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PUBLISHED DECISIONS OF COA:
313. CRIMINAL LAW
CAWL (KYRUS LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-000358-MR
TO BE PUBLISHED
JEFFERSON
THOMPSON, JUDGE: Pedro Higareda appeals from an order and amended judgment of the Boone Circuit Court vacating Higareda’s conviction for being a persistent felony offender in the second degree and modifying his sentence but reaffirming his burglary in the first degree conviction. We affirm.
320. CRIMINAL LAW. SENTENCING.
LAND (GARY L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2010-CA-001840-MR
TO BE PUBLISHED
CRITTENDEN
STUMBO, JUDGE: Gary Land is appealing from a conditional guilty plea to the offense of second-degree escape. Land reserved the right to appeal the legal question of whether the failure to report for an alternative sentence that was ordered to be served on weekends constitutes second-degree escape. We agree with the trial court that failure to report to a weekend jail sentence does constitute escape and affirm.
322. EMPLOYMENT LAW.
PLUCINSKI (DIANET)
VS.
COMMUNITY ACTION COUNCIL
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-002056-MR
TO BE PUBLISHED
FAYETTE
LAMBERT, JUDGE: In this discrimination and retaliation action, Dianet Plucinski has appealed from the October 18, 2010, final judgment of the Fayette Circuit Court entered following the return of a jury verdict in favor of her former employer, Community Action Council (CAC). After a review of the record and the parties’ arguments, we find no merit in Plucinski’s arguments and therefore affirm.
On appeal, Plucinski raises two issues. The first argument addresses the circuit court’s decision to grant summary judgment in favor of CAC on her disparate treatment claim. Her second argument addresses the jury instructions. We shall address each argument in turn.
Before we reach the merits of Plucinski’s appeal, we must recognize that Plucinski failed to comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iv) by including “ample references to the specific pages of the record” or of the videotaped record in the statement of the facts section of her brief. Although Plucinski did include references to several depositions, those depositions were not included in the certified record on appeal; only a few of the pages she cited were included as exhibits to filings below, but the specific pages where they appear in the record were not identified. Nevertheless, we shall decline to impose the penalty of striking Plucinski’s brief at this time. CR 76.12(8)(a).
324. COMMERCIAL LAW.
DEAN (MARK D.)P.S.C.
VS.
COMMONWEALTH BANK & TRUST COMPANY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND VANMETER (CONCURS)
2010-CA-002152-MR
TO BE PUBLISHED
SHELBY
ACREE, JUDGE: Appellant Mark D. Dean, PSC (Dean) appeals the Shelby Circuit Court’s entry of summary judgment in favor of the Appellee, Commonwealth Bank & Trust Company (Commonwealth). Dean argues the circuit court erred by failing to apply the discovery rule to its claim under the Uniform Commercial Code, Kentucky Revised Statutes (KRS) 355.1-101, et seq. (Code or UCC); Dean also argues that the court erred by granting summary judgment in favor of Commonwealth despite the existence of genuine issues of material fact. Finding no genuine issue of material fact and that Commonwealth is entitled to judgment as a matter of law, we affirm.
330
GOLDEN (JASON)
VS.
PAINTSVILLE CITY UTILITIES
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000929-MR
TO BE PUBLISHED
JOHNSON
LAMBERT, JUDGE: Jason Golden appeals from the Johnson Circuit Court’s April 5, 2011, entry of summary judgment in favor of defendant Paintsville City Utilities and the court’s April 15, 2011, order denying his motion to alter, amend, or vacate the entry of summary judgment. Discerning no reversible error, we affirm the orders of the trial court.
All claims asserted against Fred Rose, California Casualty, and Hartford Insurance were dismissed with prejudice as settled. The claims against Randy Hale were dismissed with prejudice by entry of summary judgment. Golden’s remaining cause of action was his negligence claim against Paintsville City Utilities.
Paintsville City Utilities filed a motion arguing that it was entitled to summary judgment on all claims asserted against it as the record was devoid of any evidence to support or provide a legitimate basis for Golden’s negligence claims against it or its employees. On April 5, 2011, the trial court granted Paintsville City Utilities’ motion for summary judgment and dismissed Golden’s action. Golden then filed a motion to alter, amend, or vacate the court’s order granting summary judgment to Paintsville City Utilities. Golden argued that material issues of fact existed which were supported by the testimony of witness Janet Preece. Preece had testified that immediately prior to the accident at issue, the vehicle operated by Larry Herald, an agent/employee of Paintsville City Utilities, fishtailed. Golden’s motion to alter, amend, or vacate was denied on May 9, 2011. This appeal now follows.
In the case at bar, the evidence of record clearly establishes that Paintsville City Utilities’ employee, Larry Herald, did not breach his duty to exercise ordinary care under the circumstances of the subject automobile accident.
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Posted by Michael Stevens on June 26, 2012 at 10:42 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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PUBLISHED DECISIONS OF COA:
299. CRIMINAL PROCEDURE. PRO SE PRESENTATION (FARETTA V. CALIF.)
AYERS (WILLIAM)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-000590-MR
TO BE PUBLISHED
JEFFERSON
ACREE, JUDGE: William O. Ayers requests that this Court reverse his conviction of five counts of failure to file a tax return. He alleges the circuit court erred to his substantial detriment in declining to grant him a continuance to hire counsel and for additional time to examine documents produced by the Commonwealth pursuant to a discovery order. Ayers further contends the circuit court erred in failing to conduct a hearing as mandated by Faretta v. California before permitting him to proceed to trial pro se. 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Finding the circuit court’s failure to conduct a Faretta inquiry rendered the conviction invalid, we reverse and remand for a new trial.
308. CRIMINAL PROCEDURE. WRIT OF PROHIBITION. MOTION TO SUPPRESS ORAL CONFESSION.
COMMONWEALTH OF KENTUCKY
VS.
BELL (T. BRUCE), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000562-ME
TO BE PUBLISHED
FAYETTE
ACREE, JUDGE: The Commonwealth appeals an order of the Fayette Circuit Court denying its petition for a writ of prohibition. The issue underlying the Commonwealth’s writ petition is whether the Fayette District Court properly granted Appellee T.C.’s motion to suppress his oral confession on the basis that it was given involuntarily. Following a careful review, we affirm.
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Posted by Michael Stevens on June 25, 2012 at 09:32 PM | Permalink
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PUBLISHED DECISIONS OF COA:
290. DAMAGES. PUNITIVE.
O. (R.)
VS.
C. (A.)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-001677-MR
TO BE PUBLISHED
CALLOWAY
ACREE, JUDGE: The sole issue before us is whether the Calloway Circuit Court’s award of $6,000,000.00 in punitive damages against Appellant, R.O., is constitutionally excessive. We find it is not. Accordingly, we affirm.
STD OF REVIEW:
We review the constitutionality of punitive damages de novo. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 931 (Ky. 2007); McDonald’s Corporation v. Ogborn, 309 S.W.3d 274, 297 (Ky. App. 2009).
R.O. seeks to set aside the punitive damages award on the ground that it is grossly excessive. Specifically, R.O. contends the award violates the second and third guideposts set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S. Ct. 1589, 1595, 134 L. Ed. 2d 809 (1996).5 [
Kentucky’s punitive damages statutes, Kentucky Revised Statute (KRS) 411.184 and 411.186 also set forth “the level of punitive damages [Kentucky] will allow in different classes of cases and in any particular case [and they require] that the damages award be reasonably necessary to vindicate the State’s legitimate interests in punishment and deterrence.” Ragland, 352 S.W.3d at 916 (quoting Gore, 517 U.S. at 568, 116 S. Ct. at 1595). R.O. does not contend, however, that the circuit court’s punitive damages award violates state statute. Instead, R.O. solely asserts that the award is grossly excessive in violation of his federal due process rights. We focus our review accordingly.]
We disagree.
Punitive damages function “to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” Gore, 517 U.S. at 568, 116 S. Ct. at 1595; Kentucky Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 826 (Ky. 2005) (Wintersheimer, J., dissenting). “Only when an award can fairly be categorized as ‘grossly excessive’ in relation to those interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” Gore, 517 U.S. at 568, 116 S.Ct. at 1595 (citing TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 456, 113 S. Ct. 2711, 2719, 125 L. Ed. 2d 366 (1993)). As this Court has previously framed the question, “What constitutes a ‘grossly excessive’ award?” McDonald’s, 309 S.W.3d at 298.
In answering this question, the United States Supreme Court established three guideposts to aid reviewing courts, namely:
(1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S. Ct. 1513, 1520, 155 L. Ed. 2d 585 (2003) (citing Gore, 517 U.S. at 575, 116 S. Ct. at 1599); see also Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). We scrutinize the award of punitive damages in the framework of these guideposts.
“The combination of these factors supports a finding of reprehensibility.” Ragland, 352 S.W.3d at 918. In fact, as explained by our sister state, “[t]he sexual molestation of young children . . . is widely viewed as one of the most, if not the most, reprehensible crimes in our society.” State v. McKinniss, 795 N.E.2d 160, 163 (Ohio App. 2003). We find the degree of reprehensibility in this case to be significant.
The Calloway Circuit Court’s award of punitive damages was not grossly excessive so as to violate R.O.’s federal constitutional due process protections. We therefore affirm the circuit court’s May 26, 2010 trial order and judgment.
ALL CONCUR.
294. CRIMINAL PROCEDURE. SEARCH AND SEIZURE.
COMMONWEALTH OF KENTUCKY
VS.
CLINE (BENJAMIN) II
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2011-CA-000219-DG
TO BE PUBLISHED
HART
LAMBERT, JUDGE: On the Commonwealth’s motion, this matter is before the Court on discretionary review from the opinion and order of the Hart Circuit Court, sitting as an appellate court, reversing the Hart District Court’s order denying Benjamin Cline, II’s motion to suppress evidence. Because we agree with the Commonwealth that the circuit court improperly reversed the district court’s ruling, we reverse.
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Posted by Michael Stevens on June 25, 2012 at 09:10 PM in COA Minutes , Minutes - COA and SCOKY | Permalink
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