Kentucky Court Report - SCOKY & COAKY

Attorneys Fees, Class Action: Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A. (COA 10/16/2009)

Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A.
2007-CA-001374 10/16/09 2009 WL 3336065 Rehearing Pending
Opinion by Judge Dixon; Judge Nickell and Senior Judge Knopf concurred.

The Court affirmed a judgment of the circuit court ruling that the appellant attorney was not entitled to any attorney’s fees from a class action lawsuit involving child sexual abuse against the Roman Catholic Diocese of Covington. The Court ultimately held that the trial court properly denied the request for attorney’s fees. In reaching that conclusion the Court first held that the trial court did not err in denying appellant’s motion for partial summary judgment. The denial was not interlocutory and not reviewable on appeal. Further, appellant could not have been prejudiced because she was provided the right to establish the merits of her position during trial. The Court next held that the trial court did not err in dismissing appellant’s individual claims against two class attorneys. Appellant entered into an agreed order specifying that the firm was the proper defendant, there was no merit to appellant’s claim that she was forced to enter the agreed order, and she waived the issue upon the signing of the agreed order and the filing of an amended complaint. The Court next held that the trial court properly limited appellant’s access to discovery as to other class actions and practices regarding fee splitting and opting out class members as the information did not have any correlation to whether appellant was entitled to a fee. The Court next held that the trial court did not abuse its discretion in prohibiting testimony regarding other counsels’ fee arrangements that had no relevance to whether appellant was entitled to a fee or if so, how much. The Court next held that the trial court properly excluded appellant’s expert evidence when appellant failed to show that the retired former judge possessed any specialized knowledge that would assist the trial court, since the trial court did not need guidance on the ultimate issues to be decided. The Court next held that appellant was not denied a fair trial as the trial court’s comments regarding her ethical violations could not improperly influence the same court during the bench trial. The Court next held that there was no merit to the claim that the trial court erred by entering orders that were inconsistent with prior court rulings. First, the issue was unpreserved as appellant failed to raise it in her prehearing statement as required by CR 76.03(8). Further, the prior judge in the case did not enter an order on the record that could be construed the law of the case. The Court next held that the trial court did not err in relying on Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), in addressing the proper measure for the allowance of a fee. Because the trial court concluded that appellant voluntarily withdrew from the case due to a conflict of interest, the appropriate method of determining what compensation she was owed was based on quantum meruit. Even if appellant could prove that she had a binding fee agreement, it could not be enforced when she voluntarily withdrew in the initial stages of the case. The Court next held that the trial court’s findings with respect to appellant’s ethical violations were based upon substantial evidence in the record that she violated SCR 3.130(1.3), (1.7), (1.9), and (1.16).

TORTS - Punitive damages, impeachment by employment of witness, pain and sufferering prior to death, voir dire, juror signing verdict: Fuel Transport, Inc. v. Gibson (COA 9/25/2009)

Fuel Transport, Inc. v. Gibson
2008-CA-000969 9/25/09 2009 WL 3047578 Rehearing pending

Opinion by Judge Clayton; Judge Thompson and Senior Judge Lambert concurred. The Court affirmed in part and reversed in part a judgment of the circuit court entered subsequent to a jury verdict in favor of an estate in a wrongful death case awarding compensatory and punitive damages.

The Court first held that the trial court did not abuse its discretion in denying a motion for a new trial based on a claim of juror misconduct. During voir dire, appellants failed to ask a proper question to elicit a response they complained was prejudicially omitted by the juror. Further, the juror did not sign the verdict form awarding compensatory damages. The Court next held that, although appellant failed to exercise reasonable care in failing to fix the coal truck that caused the accident, the failure did not rise to the level of wanton or reckless disregard for others so as to prove the gross negligence necessary for an award of punitive damages. Therefore, the trial court erred in overruling appellant’s motion for a directed verdict on the issues of punitive damages. The Court next held that the trial court properly admitted an affidavit regarding the ownership of the coal truck and the employment of the driver, as it affected the credibility of a key witness. The Court next held that appellants waived the right to challenge the award for pain and suffering when they failed to object to the $2 million limit on possible recovery. Even so, the award was supported by evidence that the deceased had intervals of consciousness until her death. The court then held that appellants’ failure to object to jury instruction until immediately prior to the reading of the instructions to the jury, and failure to request an instruction limitation for “conscious” pain and suffering, waived the issue. The Court finally held that the trial court properly denied appellants’ requests for change of venue.

TORTS - TP Negligence claim and workers comp injury, experts, impaired earning capacity, discovery sanctions: Boland-Maloney Lumber Company, Inc. v. Burnett (COA 9/11/2009)

Boland-Maloney Lumber Company, Inc. v. Burnett
2008-CA-000059 9/11/09 2009 WL 2901206 DR pending

Opinion by Judge Wine; Judges Acree and Stumbo concurred. The Court affirmed on direct appeal and reversed on cross-appeal a judgment of the circuit court entered subsequent to a jury verdict in favor of the injured person in a negligence action involving an injury occurring on a staircase.

The Court first held that the trial court did not abuse its discretion in allowing the matter to proceed to the jury absent expert testimony on the defendant’s duty. The uniformity of stair risers on a stairway is an abundantly apparent standard, even among laypersons, so that anyone could interpret the exceptional foreseeability of risk. The Court then held that the trial court did not err in refusing to allow any apportionment of fault to a subcontractor. The right to apportionment did not extend to the subcontractor that had been determined not to be liable as a matter of law. The Court then held that the trial court had the inherent authority to enforce its orders and therefore, did not err in refusing to grant a motion to allow expert testimony when the defendant failed to disclose the experts after an order was entered that no additional discovery would be allowed. The Court then held that the trial court did not abuse its discretion in allowing testimony from an economic expert concerning the injured person’s earning capacity. Although the testimony was not based on actual earnings at the time of injury, nothing precluded testimony on the impairment to earn money or the use of a “proxy” to do so, where current earnings were not indicative of earning power. The Court then held that the trial court did not err in allowing testimony in violation of an order that the plaintiff’s witnesses could not testify that the stairs violated the Kentucky Building Code. The defendant waived the issue when it failed to object to the testimony at trial, defendant’s counsel brought up the reference to the Kentucky Building Code, and the testimony was not in violation of the order. The Court then held that the defendant’s failure to specifically object to the final written instructions precluded review but even so, although the present case was not a premises liability case, the use of the term “unreasonably dangerous” was often found instructed in cases other than products liability when dealing with an ordinary care standard so that the trial court did not abuse its discretion in including the instruction. The Court finally held that the trial court erred in excluding evidence related to plaintiff’s claim for future prescription medication expenses. Although there was no expert testimony as to the amount of medication required or the likely cost of the medication over the remainder of the plaintiff’s lifetime, the plaintiff entered the yearly cost of the prescription drugs by avowal and the doctors testified that the plaintiff suffered from a seizure disorder which would likely require him to take medication for the remainder of his life. The Court reversed and remanded for a determination on the sole issue of future prescription medication expenses.

EMPLOYMENT - Workers compesation, retaliatory discrimination, attorneys fees: Colorama, Inc. v. Johnson (COA 9/4/2009)

Colorama, Inc. v. Johnson

2008-CA-000443 9/4/09 2009 WL 2834950 Released for pub. Opinion by Judge Caperton; Judges Thompson and Wine concurred. The court affirmed a judgment entered subsequent to a jury verdict finding that the employer retaliated or discriminated against a worker for filing a workers’ compensation claim

The Court first held that the worker met his burden to establish a prima facie case of discrimination Filing the workers’ compensation claim was an activity expressly protected under KRS 342.197, the employer knew that he had done so, the jury’s factual finding that the worker was terminated was not clearly erroneous, and the worker presented sufficient evidence for the jury to believe he was terminated in retaliation for seeking workers’ compensation benefits. The Court distinguished the case from Wymer v. JH Properties, Inc., 50 S.W.3d 195 (Ky. 2001), because the worker in the instant case was released to return to work without restriction, he said he wanted to try to perform the work and he may have been able to assume a light duty position. While the evidence might have been conflicting, it was for the jury to weigh the evidence and reach a conclusion. Therefore, the Court did not err in denying the employer’s motion for a directed verdict. The Court finally held that the award of attorney fees and costs were authorized by KRS 342.197(3) and the trial court did not abuse its discretion in making the award. Even so, the employer’s failure to name the worker’s attorney as a party to the appeal ultimately precluded review of the issue.

CIVIL PROCEDURE- Amending complaint, ad damnum clause: Holly Creek Production Corp. v. Banks (COA 9/25/2009)

Holly Creek Production Corp. v. Banks
2008-CA-001851    9/25/09    2009 WL 3047857    Rehearing pending

Opinion by Senior Judge Lambert; Judges Acree and VanMeter concurred.

The Court affirmed in part and reversed in part a default judgment terminating an oil and gas lease and awarding compensatory and punitive damages. The Court first held that the trial court erred in allowing appellees to amend their complaint to include additional compensatory and punitive damages, pursuant to CR 15, at a CR 55.02 hearing on damages and other relief. The complaint filed by appellees, and upon which the default judgment was entered, was not sufficiently broad to support additional claims for nonpayment of royalties and punitive damages without additional process. The demand for accounting in the ad damnum clause was not sufficiently broad to support a judgment in compensatory damages for a term pre-dating any date identified in the complaint or a punitive damage judgment where there was no hint that punitive damages were sought or justified. However, the Court held that, applying the liberal pleading standards of CR 8.02, evidence presented at the CR 55.02 hearing was sufficient to justify the trial court’s determination that the lease between the parties should be terminated.

TORTS / DAMAGE - Spousal Loss of Consortium claim recognized i Ky: Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually v. Ohio County Hospital Corporation (SC 10/1/2009)

Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually v. Ohio County Hospital Corporation
2008-SC-000211 October 1, 2009
Opinion by Justice Noble. All sitting; all concur.

Billie Carol Shreve died after suffering injuries in a car accident. Her estate and surviving spouse brought suit against the hospital under three causes of action: medical negligence, inadequate policies and procedures and violations of the Emergency Medical Treatment & Active Labor Act (EMTALA). The jury returned a verdict in favor of the plaintiffs, which included $250,000 in damages for Mr. Shreve’s loss of consortium for the period of time from the accident until Mrs. Shreve’s death (approximately 5 and a half hours). The Court of Appeals reversed, holding that the hospital was entitled to a directed verdict on the EMTALA claim and that Mrs. Shreve had not lived long enough after the accident to allow for loss of consortium damages since such damages terminated at her death.

The Supreme Court first addressed the loss of consortium issue, noting that at common law, damages terminated at the death of the spouse since the loss would then be covered by a wrongful death suit. However, the General Assembly enacted a loss of consortium claim by statute (KRS 411.145) which creates a cause of action for the spouse, not the estate. The Court noted that the statute is silent as to when the loss terminates. The Court determined that the focus of KRS 411.145 is compensatory in nature. Thus, the Court reasoned—full compensation could not be gained if damages are required to terminate at death. Further, the Court held that to put a value on loss of consortium while a spouse is incapacitated but to then say the loss is worthless after death defies common sense. The Court also pointed out that terminating loss of consortium damages at death provides a “perverse incentive” for tortfeasors to kill their victims instead of leaving them disabled. Lastly, the Court noted that the vast majority of states have statutory or case law providing that loss of consortium damages do not terminate at death. For these reasons, the Court reinstated the jury award and held that it would not impose a limitation on damages where the statute was silent on the matter.

The plaintiffs had also prevailed at trial on their claim that the hospital’s failure to follow EMTALA—the federal act designed to prevent hospitals from “dumping” patients who lack insurance or cannot pay—resulted in delayed treatment which caused Mrs. Shreve’s death. The Court upheld the Court of Appeals’ ruling that the hospital was entitled to a directed verdict on the EMTALA claim—agreeing that all statutory requirements were met. However, the Court held that the trial court’s refusal to grant a directed verdict on the EMTALA claim was harmless since the jury found liability for wrongful death on three theories of causation. Lastly, the Court provided appropriate jury instructions for use in EMTALA claims. These instructions do not include a general negligence instruction, since negligence is not a proper element of an EMTALA claim.

PROPERTY - Treble damages, real property, removing trees: Nellie Meece, et al. v. Feldman Lumber Company (SC 5/21/2009)

Nellie Meece, et al. v. Feldman Lumber Company
2007-SC-000785-DG May 21, 2009
Opinion by Justice Schroder; Justice Abramson not sitting.

Feldman Lumber Co. purchased acreage in Pulaski County which included, in part, 18 acres of standing timber. The adjoining landowner, Meece, claimed ownership of the 18 acres and Feldman filed a quiet title action. During the pendency of the suit, Feldman cut down the trees on the property. The circuit court quieted title in Meece’s favor, and awarded $3,186.46 representing the “stump value” of the timber. Both parties appealed—with Meece claiming she was entitled to treble damages and attorney fees under KRS 364.130. The Court of Appeals affirmed the circuit court, holding treble damages were not appropriate since “Feldman had reason to believe the timber was his and thus possessed color of title.” Feldman based its color of title upon the deed to the property.

The Supreme Court reversed and remanded to the circuit court to enter judgment for treble damages to Meece, holding that Feldman’s subjective belief of ownership was insufficient to create color of title. The Court noted that the legal description on Feldman’s deed did not describe the land with sufficient certainty to establish its borders—a condition precedent to a claim of color of title. The description on Meece’s deed, on the other hand, was “certain and ascertainable.” Chief Justice Minton (joined by Justice Cunningham) dissented, contending that under established case law, color of title is derived from any instrument purporting to convey the land “however defective or imperfect.” The dissent noted that questions as to the sufficiency of the description are issues of fact for a jury. Lastly, the minority claimed that the majority had “effectively abolishe[d] the color of title doctrine by making the standard to prove its existence impossibly high.”

CIVIL PROCEDURE & DAMAGES aka FRATZKE - counsel waived strict CR 8.01(2) damages interrogatories by deposing on damages: James B. Tennill, Sr. v. Cyrus M. Talai (SC 2/19/2009)

James B. Tennill, Sr. v. Cyrus M. Talai
2007-SC-000046-DG 2/19/2009
2007-SC-000673-DG 2/19/2009
Opinion by Justice Schroder; all sitting.

Tennill received a default judgment against Talai for personal injuries suffered in a motor vehicle accident. Prior to a hearing on the issue of damages, Talai propounded written interrogatories to Tennill and took Tennill's deposition. The trial court took evidence on damages and awarded Tennill $45,076. The Court of Appeals reversed the damages award on the grounds that since Tennill did not respond or object to Talai's written interrogatories, he was in violation of CR 8.01(2). Following the rule in Fratzke, the Court of Appeals held that Tennill's failure to specify unliquidated damages in response to written interrogatories amounts to an effective answer that his claim for unliquidated damages was zero dollars. The Supreme Court reinstated the damages award, distinguishing the case from Fratzke. The Court noted that unlike Fratzke, Tennill's failure to respond to interrogatories was harmless since Tennill's counsel waived strict compliance with CR 8.01(2) when he deposed Tennill on the issue of damages but failed to ask about Tennill's unliquidated damages claim.

TORTS - MVA; "the" vs. "a" substantial factor in causation not substantial error; zero pain and suffering affirmed; no negligence per se against coal company: Trent v. Teco Coal Corporation (COA 5/22/09; 8/21/09 ordered published)

Trent v. Teco Coal Corporation
2008-CA-000486 5/22/2009 2009 WL 1424031 Ordered Pub 8/21/09

Opinion by Judge Clayton; Judges Moore and Stumbo concurred.

The Court affirmed a judgment of the circuit court entered subsequent to a jury verdict apportioning fault between the parties on appellant’s claim related to an automobile accident. The jury apportioned 50 percent liability to appellant, 50 percent to the driver of the bus that rear ended appellant after she stopped at a yellow traffic light and zero percent liability to the appellee coal company that appellant claimed left dust and debris to accumulate on the stretch of road where the accident happened. The jury awarded no damages to appellant. The Court first held that appellant properly preserved her objections to the jury instructions by submitting jury instructions and by participating in extensive discussion regarding the jury instructions. The Court then held that the jury instructions were not confusing and did not erroneously refer to a non-party to the action. The use of the phrase “the substantial factor” rather than “a substantial factor” was not so substantial as to cause prejudice and appellant failed to provide any evidence that the jury was prejudiced or would have decided the case differently. Further, the instructions were not erroneous and correctly stated the law as to the duty of care of the individuals. The Court then held that appellant was not entitled to an instruction on negligence per se as to the coal company’s negligence when she failed to prove that the coal company violated any regulation. The Court next held that the trial court did not abuse its discretion in denying appellant’s motion for a new trial with respect to the issue of damages. Although conflicting, the evidence was sufficient for the jury to conclude that appellant did not sustain a compensable injury.

Torts - discovery/admissibility of SSD application, Financial hardship exception to collateral source rule, aggravation of pre-existing condition instructions, judgment NOV denial affirmed: Peters v. Wooten (COA 7/17/2009)

Peters v. Wooten
2007-CA-001955 07/17/2009 2009 WL 2059085

Opinion by Judge Moore; Judge Acree and Senior Judge Knopf concurred.

The Court affirmed a verdict and judgment for the defense after a jury trial in a personal injury case arising from an automobile accident. The Court first held that the trial court erred in ordering discovery of appellants’ Social Security disability application. The Court then held that, although the error occurred, the trial court did not abuse its discretion in overruling appellant’s objection to the evidence at trial when the records were used only to point out inconsistencies in appellant’s prior testimony regarding his work history and did not reference appellant’s attempt to collect benefits or disclose the name of the agency. The Court next adopted the “financial hardship” exception to the collateral source rule and held that the trial court did not abuse its discretion in allowing appellee’s attorney to question appellant regarding collateral source benefits when appellant’s wife opened the door by testifying that appellant did not seek medical treatment due to financial hardship. The Court also held that the probative value of not leaving the impression with the jury that appellant lacked monetary means to seek medical treatment outweighed any prejudice produced by the evidence. The Court next held that the trial court did not err in refusing to give a jury instruction allowing an award of damages resulting from the aggravation of a pre-existing injury when the court provided a broad instruction consistent with case law. The Court finally held that the trial court did not err in denying appellant’s motion for a judgment notwithstanding the verdict as

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appellant’s testimony was subject to a credibility determination by the jury and there was nothing to suggest the verdict was palpably or flagrantly against the evidence such that it indicated the jury reached the verdict as a result of passion or prejudice.