Kentucky Court Report - SCOKY & COAKY

Attorney Fees; Withdrawing representation on contingency fee arrangement, lawyer still entitled to quantum merit recovery: Bradley v. Est. of Herman Lester, COA, Pub., 11/11/2011

Termination of representation on a contingent fee contract places payment for  your services from the recovery in jeopardy.  In the following COA decision, withdrawing cost the attorney his contractual contingent fee but permitting the attorney a quantum merit recovery for his services.

 1045.  ATTORNEY FEES.  CONTRACT VS. QUANTUM MERUIT UPON VOLUNTARY WITHDRAWING.
BRADLEY (SAM), ET AL.
VS.
ESTATE OF HERMAN LESTER
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002157-MR
TO BE PUBLISHED
FLOYD

ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.

SCOKY: Torts, Statute of Limitations, MVRA and loading or unloading vehicle; Interlock Industries v. Rosenman's Inc. 10/27/2011

SCOKY delineated the statute of limitations on unloading a truck as one year and not two years as is typical for the MVRA.  I must state the dissents are better reasoned and follow a more common sense approach which is in line with basic reasoning, to wit:  if reparation benefits are paid per the Kentucky Motor Vehicle Reparations Act then associated torts are covered by that statute of limitations - 2 years from the last PIP payment.  Easy, peasy.

This time the Court of Appeals got it right and gave us an easy and simple rule to follow with bright lines.  Imagine the absurdity of the majority's analysis - the statute of limitations under the section relative to torts does not apply to torts but the statute of limitations under the same section relative to the payment of PIP benefits does apply. Go figure folks.

176.  STATUTE OF LIMITATIONS. MVRA. UNLOADING.
INTERLOCK INDUSTRIES V. ROSENMAN'S INC.
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2008-CA-1686-MR
SHELBY CIRCUIT COURT NO. 06-CI-00119
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING AND REMANDING
Questions Presented:
Statute of Limitations. Personal Injury. MVRA. Issues include whether the KRS 413.140(1) one-year personal injury statute of limitations or the KRS 304.39-230 two-year MVRA statute of limitations applies to the injury suffered by a trucker when he was struck by part of his load of aluminum bundles as he was rolling up tie-down straps beside the flatbed truck being unloaded.

OPINION by SCHRODER:

Discretionary review was granted in these three appeals, which arose from a single case in Shelby Circuit Court. We reviewed and heard the appeals together to decide a common issue: whether the one-year personal injury statute of limitations (KRS 413.140(1)(a)) or the two-year Motor Vehicle Reparations Act (MVRA) statute of limitations (KRS 304.39-230(6)) applies to an action for the injuries suffered by Charles Rawlings as he was rolling straps beside his tractor-trailer as it was being unloaded.

We opine that Rawlings' activity in releasing the straps and rolling them qualifies him as a participant in the unloading process. Therefore, for the reasons previously stated, the trial court correctly applied the one-year personal injury statute of limitations found in KRS 413.140(1)(a). As the trial court properly granted summary judgment, the remaining issues are moot.

Accordingly, the opinion of the Court of Appeals is reversed, and the order of the Shelby Circuit Court is hereby reinstated. Minton, C.J.; Abramson, Cunningham, and Noble, JJ., concur. Scott, J.,concurs in part and dissents in part by separate opinion in which Venters, J.,
joins.

SCOTT, J., CONCURRING IN PART AND DISSENTING IN PART: I concur with the majority that Rawlings was involved in the unloading of his truck at the time of the accident. However, I would nonetheless affirm the Court of Appeals' decision because the two-year Motor Vehicle Reparations Act (MVRA) statute of limitations applies when any reparation obligor actually pays basic reparation benefits (BRB). See KRS 304.39-230(6) ("An action for tort liability not abolished by KRS 304.39-060 may be commenced not later than two (2) years after the  injury, or the death, or the last basic or added reparation payment made by any reparation obligor, whichever later occurs.") (emphasis added). Simply put, the payment of these benefits by a reparation obligor automatically brings recipients within the purview of the two-year statute of limitations. The statute plainly says so as the underlying action was one not abolished by KRS 304.39-060.

In this case, Rawlings' insurance company paid him BRB, thereby triggering MVRA relief. As a result, I concur in part and dissent in part.

Venters, J., joins

 

SCOKY: TORTS. PERSONAL INJURY. SPOLIATION OF EVIDENCE. UNIVERSITY MEDICAL CENTER (UofL) V. MICHAEL G. BEGLIN, ETC.

171.  TORTS. PERSONAL INJURY. SPOLIATION OF EVIDENCE.
UNIVERSITY MEDICAL CENTER (UofL)  V.  MICHAEL G. BEGLIN, ETC.
Questions Presented:
Personal Injury. Jury Instructions. Missing evidence. Issues include propriety of giving spoliation instruction and other evidentiary and instructional rulings.

ON REVIEW FROM COURT OF APPEALS
CASE NOS. 2007-CA-000018-MR AND 2007-CA-000133-MR
JEFFERSON CIRCUIT COURT NO. 04-CI-001605
OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART

We granted discretionary review in this matter to examine when it is
proper for the trial court to give a missing evidence instruction, and whether it was permissible here to hold an employer liable for punitive damages based upon the gross negligence of an employee. University Medical Center, Inc. d/b/a University of Louisville Hospital ("University Hospital"), appeals from an opinion of the Court of Appeals which affirmed a judgment entered by the Jefferson Circuit Court in favor of Appellee, Michael G. Beglin. 1Based upon a jury verdict, the trial court entered judgment awarding the following
compensatory damages: $1,922,102.00 for the destruction of Jennifer Beglin's power to labor and earn money; 367,358.09 for her medical expenses; 7,543.00 for her funeral and burial expenses; and $3,000,000.00 for her children's loss of parental consortium. The jury also awarded $3,750,000.00 in punitive damages, resulting in a total award of $9,047,003.09.

The damages were based upon a finding of the jury that the hospital, through its employees and agents, acted negligently in causing the death of Jennifer Beglin.2Codefendants, Dr. Susan Galandiuk (the surgeon) and Dr. Guy M. Lerner (the anesthesiologist), were found not liable by the jury.

University Hospital3presents the following three issues: (1) the trial court erred by giving a missing evidence instruction; (2) the trial court erred by giving a punitive damages instruction; and (3) the giving of the missing evidence and punitive damages instructions violated its due process rights. For the reasons stated below, we determine that the trial court properly gave a missing evidence instruction, and we affirm the judgment awarding compensatory damages. However, we hold that the trial court erred in giving a punitive damages instruction under the circumstances of this case. We therefore reverse the punitive damages award and remand for entry of a new judgment. By these determinations, University Hospital's due process arguments relating to punitive damages are moot, and it is not otherwise entitled to relief under these claims.

HE MISSING EVIDENCE INSTRUCTION WAS PROPERLY GIVEN University Hospital first argues that the trial court erred by giving the missing evidence instruction in connection with the unexplained disappearance of the occurrence report that Cantrall testified she prepared immediately following the operation pursuant to normal hospital procedures. Although University Hospital had exclusive care, custody, and control of the report (if it existed), it is unable to offer any explanation to account for its disappearance. University Hospital contends that it was fundamentally improper and contrary to Kentucky law for the trial court to give the missing evidence instruction when -there was no evidence to show that it had intentionally and in bad faith lost or destroyed the document. It further argues that the instruction improperly influenced both the general verdict of liability and the punitive damages award by insinuating that the hospital covered-up adverse evidence. For the reasons stated below, we conclude that the instruction was properly given.

Following the form approved in Sanborn v. Commonwealth, 754 S.W.2d 534, 539-540 (Ky. 1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006), the trial court gave, over the hospital's objection, this missing evidence instruction:
If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin's surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.

This remains the approved instruction in both criminal and civil cases.    See Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) ("Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and 'missing evidence' instructions.") All agree that the Sanborn instruction accurately sets forth the elements necessary to permit a jury to draw an adverse inference from missing evidence. 6

COA 2011 Minutes for March 4, 2011 -- Nos. 202 - 223

COA 2011 Minutes for March 4, 2011 --  Nos. 202 - 223 

• Click on the above link for the full text of minutes with link to full text of each decision.
• Link to AOC Page with current minutes and archived minutes links
• Total number of decisions:  21
• Published Decisions: 5 (202; 203; 204; 205; 216)

PUBLISHED DECISIONS (with link to full text at AOC):

202. TORTS: Summary Judgement dismissing employment claims involving tortious interference and defamation affirmed; Qualified privilege re employment;

HARSTAD (MICHAEL J.) VS. WHITEMAN (RAY), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-000190-MR
2009-CA-000194-MR
2009-CA-001045-MR
TO BE PUBLISHED
JESSAMINE

ACREE, JUDGE: Appellant, Michael Harstad, brings three appeals from separate Jessamine Circuit Court judgments relating to termination of his employment with appellee Asbury College. The first and second appeals challenge summary judgments for appellees Ray Whiteman, Shelby Thacker, and Verna Lowe on Harstad’s claims of defamation and tortious interference with contractual relations. In the third appeal, Harstad claims reversible trial errors resulted in the jury verdict for Asbury on his breach of contract claim. We have consolidated these cases for the convenience of the Court and, after careful review, we affirm in all cases.

While the procedural history of this case before the circuit court is somewhat complex, only a brief summary is necessary for purposes of this appeal. Harstad’s claims of defamation and intentional interference with his employment contract against Whiteman, Thacker, and Lowe were dismissed by summary judgment. The breach of contract claim against Asbury was the only issue to proceed to trial. Asbury prevailed on this claim, the jury having found that the college did not terminate Harstad without cause under the terms of the faculty handbook. Harstad did not move for a new trial postverdict.

On appeal, Harstad argues that the circuit court improperly granted summary judgment as to his defamation and intentional interference claims. With regard to the trial, Harstad argues that the circuit court improperly excluded evidence that other faculty members were treated differently under similar circumstances, and that additional jury instructions should have been provided.

203. CRIMINAL:  DOUBLE JEOPARDY
BEELER (TIMOTHY QUINN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING
COMBS (PRESIDING JUDGE)
CLAYTON (CONCURS AND FILES SEPARATE OPINION) AND WINE (CONCURS IN RESULT ONLY AND JOINS IN JUDGE CLAYTONS CONCURRING OPINION)
2009-CA-001133-MR
TO BE PUBLISHED
HARDIN

COMBS, JUDGE:    Timothy Beeler appeals from his conviction in the Hardin Circuit Court of conspiracy to manufacture methamphetamine. After carefully examining the record and the pertinent law, we vacate the conviction.

204.  REAL PROPERTY; ADVERSE POSSESSION
MCCOY (GARY), ET AL.
VS.
THOMPSON (MARQUIETTE), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2009-CA-001585-MR
TO BE PUBLISHED
LAWRENCE

ACREE, JUDGE: The appellants, Gary and Susie McCoy, seek reversal of the Lawrence Circuit Court’s order finding that appellee, Willie Thompson, acquired a twenty-five-acre parcel of land via adverse possession. We affirm.

The existence of the fence and Thompson’s efforts to keep it in good repair coupled with the other uses found by the circuit court support the circuit court’s conclusion. Therefore, its finding of adverse possession was not clearly erroneous and we affirm.

205.  APPEAL OF INTERLOCUTORY ORDERS; NO JURISDICTION
TAX EASE LEIN INVESTMENTS 1, LLC
VS.
BROWN (MARKITA), ET AL.
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2009-CA-001662-MR
TO BE PUBLISHED
LAUREL

ACREE, JUDGE: Tax Ease Lien Investments, LLC (Tax Ease) appeals two Laurel Circuit Court orders; the first order, denominated a “partial summary judgment,” invalidated Tax Ease’s lien as to Markita Brown’s real property, and the second order denied Tax Ease’s “Motion to Alter, Vacate, or Amend” the first. Both orders are interlocutory and this Court lacks jurisdiction to consider them. Therefore, we dismiss the appeal.

First, we note that this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality. Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970). The orders from which this appeal is taken lack finality. However, the ins and outs of this case create a kind of procedural Gordian knot that we cannot simply hack through, but must unravel. A closer look at the case’s procedure is therefore helpful. We start at the beginning.

216.  BILLBOARD ADVERTISING ACT
HARSTON (JIMMY), ET AL.
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART AND REVERSING IN PART
NICKELL (PRESIDING JUDGE)
VANMETER (CONCURS) AND SHAKE (CONCURS)
2010-CA-000615-MR
2010-CA-001124-MR
TO BE PUBLISHED
HART

NICKELL, JUDGE: Jimmy Harston and Norman Cottrell appeal an opinion and order granting summary judgment to the Kentucky Transportation Cabinet, Department of Highways (Cabinet) entered on February 16, 2010, by the Hart Circuit Court. The court found Harston and Cottrell in violation of Kentucky’s Billboard Advertising Act2 by maintaining a “billboard, sign, [or] advertising device” in a protected area. The same opinion and order was entered in LaRue Circuit Court Civil Action No. 08-CI-00026 against Harston and Bill Sullivan. Both cases present identical issues and were consolidated by the trial court on motion of the parties. This Court has become aware of a third case, Jimmy Harston; Donnie Kimbro and Brenda Kimbro v. Commonwealth of Kentucky Transportation Cabinet, Department of Highways, No. 2010-CA-001124-MR, with similar issues and on its own motion has consolidated it with the Hart and LaRue actions. Having considered the briefs, the record and the law, the opinion and orders entered by the Hart and LaRue Circuit Courts are affirmed. The final order and judgment entered by the Warren Circuit Court is affirmed in part, and the language requiring appellants to apply for a permit is reversed.

Nonpublished Tort, Procedure, etc - AKA TORT REPORT

Tort Report for: Jan. 2011 (Civil Pro., Torts, Defenses, Workers Comp)

I am trying something new.  A Monthly Tort report of Kentucky SC and COA decisions. It is just a useful compilation of just the civil cases dealings with torts, insurance, defenses, equity, civil procedure, trials, workers compensation.  No criminal law or family law cases, for example. 

If you want family law, then you should go to the blog of Diana Skaggs at http://www.divorcelawjournal.com.  Outstanding resource and very, very current.  The COA decisions from Feb. 18 (yeserday) are already posted.  This is a blog so you can obtain updates using an RSS reader with Google or Yahoo or etc.

For those who want an outstanding and current updated resource for workers compensation decisions in Kentucy, then go to http://www.comped.net which is provided by ComEd.  An email newsletters of Kentucky Workers Compensation News, Updates and Analysis is provided.

 

CIVIL PROCEDURE:

DEFAULT JUDGMENTS, PRISONERS/CONFINED DEFENDANTS, AND C R 17.04(1)
WEIRD (THOMAS) VS. EMBERTON (ERIC)
OPINION REVERSING IN PART AND REMANDING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2007-CA-000938-MR
NOT TO BE PUBLISHED
JEFFERSON

EXPERTS. DISCLOSURES.  CLOSING ARGUMENTS.
PERRY (SUSIE), ET AL. VS. LARSON (GERALD M.), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2009-CA-001352-MR
2009-CA-001389-MR
NOT TO BE PUBLISHED
JEFFERSON

CIVIL. PERSONAL JURISDICTION. MINIMUM CONTACTS. JUSTICIABILITY (RIPENESS); VENUE. FORUM NON CONVENIENS
AMERICAN TRADE ALLIANCE, INC. VS. SOUTHERN CROSS TRADING, INC.
OPINION AFFIRMING
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001353-MR
NOT TO BE PUBLISHED
BARREN

ATA presents three allegations of error. First, ATA contends the trial court erred in concluding sufficient minimum contacts existed to exercise personal jurisdiction. Next, it contends the Barren Circuit Court was the improper venue for resolution of the matter. Finally, ATA argues the trial court erred in granting summary judgment to Southern Cross as genuine issues of material fact existed and the record was not ripe for adjudication. After a careful review of the briefs, the record and the law, we affirm.

 

PREJUDGEMENT INTEREST DENIAL AFFIRMED
BARNETT (HARLON), ET AL. VS. HAMILTON MUTUAL INSURANCE COMPANY OF CINCINNATI, OHIO
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
COMBS (CONCURS) AND ISAAC (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-002234-MR
NOT TO BE PUBLISHED
TAYLOR

DIXON, JUDGE: Appellant, Harlon Barnett, individually and as Administrator of the Estate of Steven Ray Barnett, appeals from a decision of the Taylor Circuit Court denying his claim for prejudgment interest on a statutory interest award in a bad faith action against Appellee, Hamilton Mutual Insurance Company of Cincinnati, Ohio. Finding no error, we affirm.

 

 

 

DEFENSES:

GLEN AVERY BRYANT V. PULASKI COUNTY DETENTION CENTER; AND BRIAN BISHOP
2009-SC-000036-DG PULASKI TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – AFFRIMING IN PART, REVERSING IN PART,
VACATING IN PART AND REMANDING

Questions Presented:
Qualified Official Immunity. Issues include whether a governmental employee may assert qualified immunity in a lawsuit brought by a prisoner, where the prisoner was physically injured by the governmental employee's acts of "horseplay" or teasing of the prisoner while supervising him on work release detail.

 

FELA, FRSA. PREEMPTION.
BOOTH (LARRY W.) VS. CSX TRANSPORTATION, INC.
OPINION REVERSING AND REMANDING
ISAAC (PRESIDING JUDGE)
ACREE (CONCURS) AND HENRY (CONCURS)
2009-CA-002103-MR
TO BE PUBLISHED
JEFFERSON

ISAAC, SENIOR JUDGE: Larry W. Booth appeals from a Jefferson Circuit Court order granting summary judgment to CSX Transportation, Inc. Booth allegedly injured his knees while employed as a railroad carman for CSX. The Jefferson Circuit Court ruled that Booth’s claims for damages under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”) were preempted by regulations promulgated under the Federal Railway Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”). We conclude that although a regulation promulgated under the FRSA may preclude a FELA claim, it did not do so in this case because the regulation at issue does not cover or substantially subsume the subject matter of the suit. The summary judgment of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings in accordance with this opinion.

 

BLACKOUT DEFENSE INSTR UCTIONS
MAHANES (DONALD LEE) VS. SHUGARS (MICHAEL R.), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2009-CA-002047-MR
NOT TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Following a jury trial, Donald Lee Mahanes appeals the judgment of the Jefferson Circuit Court entered on October 8, 2009, finding in favor of Michael R. Shugars. On appeal, Mahanes advances two arguments [1    Nationwide General Insurance Company and American Family Insurance Company were named defendants in the circuit court action but were not named in the Notice of Appeal. All claims against Nationwide were dismissed with prejudice following trial.]  regarding the court’s instructions. Upon careful review of the record, the briefs, and the law, we affirm.

 

EQUITY:

UNJUST ENRICHMENT
JAVIER STEEL CORPORATION VS. CENTRAL BRIDGE COMPANY, LLC.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
HENRY (SENIOR STATUS JUDGE) (CONCURS) AND ISAAC (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-002124-MR
TO BE PUBLISHED
JEFFERSON

INSURANCE:

PROGRESSIVE MAX INSURANCE COMPANY V. NATIONAL CAR RENTAL SYSTEMS, INC.
2009-SC-000577-DG JEFFERSONTO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCOTT – REVERSING
Questions Presented:
Insurance. Basic Reparations Obligors. Subrogation. The issue is whether a rental car insurer that pays basic reparations benefits to the injured is entitled to subrogation from the driver's liability insurer. If so, which insurer has priority.

This appeal arises from a subrogation dispute regarding basic reparations benefits (BRB) paid by Appellee, National Car Rental Systems, Inc. (National) to a passenger of one of its rental vehicles. After payment, National sought full reimbursement against Appellant, Progressive Max (Progressive), the insurer of the driver of National's vehicle.

After the Jefferson Circuit Court granted summary judgment in National's favor, the Kentucky Court ofAppeals affirmed, holding that (1) Progressive was primarily liablefor BRB; and (2)Nationalmay pursue its claim via KRS 304.39-050. We granted discretionary review to determine the correctness of that opinion and now reverse.

Here, once again,we are asked to determine an issue of priority,but, under different circumstances. Rather than addressing two excess clauses as we did in Shelter, this Court now faces the question ofwhether the vehicle  owner's insurance should take priority over the driver's insurance when BRB are owed to an injured third party. We again hold that, per the policies established in the MVRA, priority lies with the vehicle owner.

 

INSURANCE.  SUBROGATION AND INSOLVENT COMPANY.  KRS 304.36-050.
ONE BEACON INSURANCE COMPANY VS.KIGA
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND ISAAC (CONCURS)
2010-CA-000220-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: One Beacon Insurance Company (One Beacon) appeals from the January 5, 2010 order of the Jefferson Circuit Court granting summary judgment in favor of Kentucky Insurance Guaranty Association (KIGA). After careful review, we affirm.

One Beacon is clearly an insurer which now seeks to recover from KIGA
one-half of the amounts it paid on behalf of the injured employee for medical fees. One Beacon has admitted that it is an insurer and that its claim is a subrogation claim. By the clear language of the statute, One Beacon is not an insured making a first-party claim or a person seeking a liability claim. Thus, One Beacon is not a claimant under KRS 304.36-050. Further, One Beacon’s claim for subrogation of paid medical benefits is not a covered claim, as subrogation claims are specifically prohibited in the statute. Accordingly, the trial court’s holding that One Beacon’s claims are not covered claims was correct as a matter of law.

We note that this is a matter of first impression in the state of Kentucky, but that other states have dealt with the question in a decisive manner. See California Union Insurance Co. v. Central National Insurance Co. of Omaha, 117 Cal. App. 3d 729 (Cal.App.2.Dist. 1981) (court rejected insurer’s subrogation claim upon the grounds that the legislature chose to provide a very limited form of protection for the public rather than a fund for the protection of other insurance companies from insolvencies of fellow members of the Fund). See also Ferrari v. Toto, 402 N.E.2d 107 (Mass. App. 1980) (court held that in Massachusetts the Fund is excused from paying claims if the ultimate beneficiary is an insurance company).

In the instant case, One Beacon is not a claimant, as defined in KRS 304.36- 050(3), nor is a subrogation claim a “covered claim” for which KIGA is responsible under the statutory scheme. Accordingly, the trial court was correct as a matter of law and summary judgment was appropriate. Therefore, we affirm the January 5, 2010, order of the Jefferson Circuit Court.

 

TORTS:

MARY JANE CALHOUN, ET AL. V. CSX TRANSPORTATION, INC., ET AL.
TO BE PUBLISHED 2009-SC-000100-DG BULLITT
OPINION OF THE COURT BY JUSTICE SCOTT –
AFFIRMING IN PART AND
REVERSING IN PART
VENTERS, J., DISSENTS BY
SEPARATE OPINION, IN WHICH
CUNNINGHAM, J., JOINS.
Questions Presented:
Personal Injury. Negligence. Railroad Duty of Care. Extra Hazardous Private Crossing. Issues include the proper standard for evaluating whether a crossing is extra hazardous and the general duties owed by railroads at private crossings.

TORT, AGENCY, LIBILITY FOR ACTIONS BASED UPON SPECIAL RELATIONSHIP
EDWARDS (RONALD) VS. HENSLEY (JARRED), ET AL.
OPINION REVERSING AND REMANDING
BUCKINGHAM (SENIOR STATUS JUDGE)(PRESIDING JUDGE)
CAPERTON (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION) AND CLAYTON (CONCURS)
2008-CA-002348-MR
TO BE PUBLISHED
MEADE

BUCKINGHAM, SENIOR JUDGE: Ronald Edwards appeals from a Meade Circuit Court judgment against him and in favor of Jordan Gruver in excess of $1 million following a jury trial. Finding error, we reverse and remand for a new trial.

 

TORTS.  LIBEL.
AKINS (DERRICK D.) VS. THE NEWS ENTERPRISE
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-002188-MR
TO BE PUBLISHED
HARDIN

THOMPSON, JUDGE: Derrick D. Akins appeals from the Hardin Circuit Court’s dismissal of his complaint for libel against The News Enterprise, a newspaper. For the reasons stated herein, we affirm.

On February 13, 2009, Akins filed an action for libel against The News Enterprise, alleging that the newspaper’s use of the term “carjacking” in an article describing his criminal case constituted an incorrect, inflammatory, and reckless statement of fact. Although he acknowledged being charged with rape, kidnapping, possession of a firearm by a convicted felon, and being a persistent felony offender in the first degree, he stated that he had been acquitted of the rape and kidnapping charges and was only found guilty of the remaining two offenses. Most notably, he contended that he had never been charged with carjacking.

“Four elements are necessary to establish a defamation action, whether for slander or libel, to wit: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation.” McBrearty v. Kentucky Community and Technical College System, 262 S.W.3d 205, 213 (Ky.App. 2008). A writing is defamatory when it subjects a person to public hatred, causes a person to be shunned, or injures a person’s occupation. Id. at 214. Notwithstanding, Kentucky adheres to the legal principle that the truth is an absolute defense for an action of libel regardless of the intent of the publishers. Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84, 87 (Ky. 1966).

After reviewing the record, we conclude that The News Enterprise did not commit the tort of libel by publishing the article regarding Akins.

TORTS. DUTY TO PREVENT HARM FROM INTERVENING THIRD PARTY CRIMINAL ACTS.
ISON (JOHN M.) VS. BROWN BROS. CADILLAC CHEVROLET, INC., ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
HENRY (CONCURS) AND ISAAC (CONCURS)
2009-CA-002345-MR
NOT TO BE PUBLISHED
JEFFERSON

WORKERS COMPENSATION:

MATTHEW HUDSON V. CAVE HILL CEMETERY, ET AL.
2010-SC-000223-WC FROM COURT OF APPEALS
OPINION OF THE COURT – AFFIRMING   TO BE PUBLISHED
Questions Presented:
Workers' Compensation. Whether parties’ correspondence constituted an adequate memorandum of agreement under KRS 342.265(1); more specifically, whether the amount of lump sum proceeds to be allocated to a Medicare Set-Aside Account is an essential element of a settlement that includes such an account.

 

TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes Aug. 27, 2010 (Nos. 807-833)

http://opinions.kycourts.net/coa/2010-CA-000319.pdf

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:

COA 2010 Minutes Aug. 27, 2010 (Nos. 807-833)

• Above link to minutes is full text of minutes with link to full text of each decision.

The Court of Appeals issues four decisions in this area.  The real suprise was the published decision in Cornett v. Bright which affirmed a zero pain and suffering verdict and even though the plaintiff was awarded medical expenses (all covered by PIP) and lost wages ($440, such that presumably 20 per cent was NOT covered by PIP) she was not considered the prevailing party and was NOT awarded her costs. 

In Cornett v. Baker, the COA affirmed summary judgement dismissing plaintiff's claims holding no genuine issue of material fact and concluding the defendants were not negligent and the plaintiff was solely negligent. 

Two workers compensation decisions were issued, but not to be published.

THE DECISIONS:

817. DAMAGES. ZERO PAIN AND SUFFERING VERDICT AFFIRMED.
CORNETT (ARLENA) VS. BRIGHT (LURA), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)  STUMBO (CONCURS) AND WHITE (CONCURS)
2009-CA-001186-MR
TO BE PUBLISHED
LETCHER

NICKELL, JUDGE: Arlena Cornett appeals from a jury verdict entered by the Letcher Circuit Court in an automobile negligence case and an order denying her motion for a new trial. Cornett contends she was entitled to a new trial because the jury awarded her zero dollars for pain and suffering despite awarding her damages for past medical expenses and lost wages. After a careful review of the record, the law, and the arguments of the parties, we affirm.

Analysis:

I find two items from this decision disturbing.  The first relates to a redefinition of "pain and suffering" and the second centers on failure to recognize a prevailing party does not mean recovering a dime (but in this case she should have recovered some wages not paid by PIP).

The injury was a laceration to the right leg which is presumably a scar and thus a permanent injury and meets the first threshhold for filing a claim (and also met the $1,000 medical expense threshhold as well).

The jury awarded the plaintiff $3,500 in past medicals, $440.00 in lost wages, and nothing for future medical expenses and past and future "pain and suffering and permanent impairment to labor and earn money."  The plaintiff claimed the verdict was inconsistent and also sought an award of her costs.  The trial judge dismissed the action with prejudice upon defendant's motion AND denied plaintiff's motion for costs BUT awarded the defendant Bright his costs of $1,732.61.

Several errors were raised but I wish to address the zero "pain and suffering" verdict and the awarding/denial of costs.

Pain and suffering.   Lawyers and the courts limit the instructions to just pain and suffering when the statute says more  "a plaintiff may recover damages in tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle".   Although I submit that inconvenience is not an item that will break the bank, I think the Courts (trial and appellate) need to get off that judicial throne and recognize that a zero pain and suffering verdict needs to scrutinized more closely within the context of the law rather than what I perceive to be a redefinition of these damages by judicial fiat. 

Why do I say this?  Because it should be obvious to all that trips to the emergency room for treatment, resolution of medical bills, and missed work (for which you are never compensated fully by pip and for which you must wait a month or so at a minimum by statute) constitutes an inconvenience, at a minimum, and anguish from the unknown.

Thus, it is not a factual question of no "pain and suffering" but rather a judicial avenue permitting jury nullification.  Or to put it differently, there is pain and suffering which is not compensable and there is pain and suffering that is compensable.

Please note that the decisions originally addressing and permitting these zero pain and suffering verdicts addressed prior conditions and aggravation and subsequent incidents as being the source of the pain and suffering (while all along ignoring KRS 304.39-.060's prescription for damages - http://www.lrc.ky.gov/KRS/304-39/060.PDF).  Admittedly, an argument based upon inconvenience is not the strongest card in the deck, but to permit zero awards under the guise there is no factual pain, suffering, mental anguish, or inconvenience is dishonest if claiming there is none.  The real answer is that judicial economy is prevailing and an unspoken belief that not all pain, suffering, mental anguish, and inconvenience is compensable.  If so, say it outright.

As I indicated earlier, the zero verdicts of yesteryear would focus on some other cause for blaming the pain and the suffering (prior condition etc).  Now, the Court has grasped a particular sentence from the Miller v. Swift decision that "The law in Kentucky, however, does not require a ury to award damages for pain and suffering [note no mention of the other two items per statute] in every case in which it awards medical expenses."  42 S.W.3d at 601.  [This is not new as the Court of Appeals in Delphin v. Morely ignored a tibial plateau fracture, bleeding, and surgery as involving any pain and suffering and seemed to imply that pain medication might nullify pain and suffering.  Please note the undersigned handled that appeal (and lost), but now Justice Abramson was the trial judge, and now Justice Wilfrid Schroder dissented in the Court of Appeals.  Even more disturbing was language in the Delhin v. Morely decision ignoring assertions by all medical providers of pain and suffering, concessings by defense counsel of pain and suffering during opening and closing.  Motion for discretionary review was denied by the Supreme Court.  The COA decsion is not binding and has never been cited by a single appellate court.]

This analysis in Cornett is suspect for the following reasons:

• Medical expenses are not the only driving force behind the award of pain and suffering etc.
• Two physicians testified no reason for he plaintiff to suffer from pain, the injury did not impair her ability to engage in activities,  and her initial complaint at the hospital was "numbness in the area of her injury."  Whether or not these were treating physicians or hired examiners in the pay of the insurance company's counsel is not clear.  What is clear was there was numbness. 
• Another doctor did testify that the plaintiff did suffer a nerve injury in her leg.

What was the COA's response?  A jury is not bound to believe a plaintiff or her doctors.  Well, believe the "numbness" which in itself is inconvient and may cause anguish by its persistence.

The next issue on appeal related to the judge's offset for medicals and wages against the verdict.  The trial court and the Court of Appeals are correct regarding the post-verdict resolution of this award.  What they have missed is that lost wages (unlike the medical expenses) are not awarded en toto.  KRS 304.39-120 subtracts therefrom 15% in the calculation of net loss.  What does this mean?  Presumably, the plaintiff's gross wage loss was greater than $440.  This should have been awarded (in  spite of case law which may be to the contrary regarding the first $10,000 being excluded since this is sloppy analysis ignoring the details).  Thus, the plaintiff prevailed, should have been awarded costs, and the defendant should not have been awarded costs.

The net effect of this decision is more offers of judgment on the low end, more jury nullifications in the area of pain and suffering (and mental anguish and inconvenience), and an increased lack of sensitivity to the real world by the judiciary.

 

COA 2010 Minutes for August 20, 2010 (Nos. 786-806)

COA 2010 Minutes for August 20, 2010 (Nos. 786-806)
Note:  Corrected this post to reflect decisions were for Aug 20 rather than previous post that the minutes were dated Aug. 13.... Sorry).

SINCE THERE IS ONLY ONE NPO DECISION INVOLVING TORTS, THEN CONSIDER THIS ALSO THE TORT REPORT FOR THIS WEEK TOO.

 

• Above link to minutes is full text of minutes with link to full text of each decision.
• Link to AOC Page with current minutes and archived minutes links
• Total number of decisions:  21
• Published Decisions:  7 (786; 787; 790; 793; 794; 796; 797)
• Tort, Civil, Insurance, Workers Compensation: 
• • PUBLISHED: 787 (Sov. Immunity); 790 (W.Comp); 794 (SOL, outrage); 796 (UIM);
  • NONPUBLISHED: 799 (W.Comp).

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

786. KASPER RECORDS. PRIVILEGE. DISCLOSURE.
ERIC A. NORSWORTHY VS. THOMAS O. CASTLEN AND COMMONWEALTH OF KENTUCKY
OPINION AND ORDER GRANTING
KELLER (PRESIDING JUDGE) TAYLOR (CONCURS) AND ACREE (CONCURS)
2010-CA-001117-OA
TO BE PUBLISHED
(RENDERED AUGUST 12, 2010)
OHIO

An Ohio County Grand Jury returned an indictment against the petitioner,
Eric A. Norsworthy, a physician practicing medicine in Beaver Dam, Kentucky, charging him with 13 counts of unauthorized disclosure of prescription records from the Kentucky All-Schedule Prescription Records (KASPER) system and one count of intentional disclosure of those prescription records. The indictment is based upon allegations from an investigation by the Kentucky State Police and the Kentucky Board of Medical Licensure that Norsworthy, or someone acting on his behalf, accessed the KASPER system for the improper and unlawful purpose of using that information to defend himself in a complaint filed before the Kentucky Board of Medical Licensure by a former patient. The findings of the investigations allege that Norsworthy improperly obtained and shared the patient’s KASPER records with Mr. David Lambertus, his counsel, during the administrative hearing concerning the complaint filed before the Board of Medical Licensure.

Therefore, having considered the petition for a writ of prohibition filed herein by the petitioner, the response filed thereto by the real party in interest, and being otherwise sufficiently advised, this Court ORDERS that the petition for a writ of prohibi- tion be, and it is hereby, GRANTED. The Ohio Circuit Court is hereby PROHIBITED from enforcing the June 2, 2010, order. This Court hereby DIRECTS the Ohio Circuit Court to conduct an evidentiary hearing to determine whether the exception to the attor- ney-client privilege of KRE 503(d)(1) would apply. Should the Ohio Circuit Court deter- mine that an exception under KRE 503(d)(1) applies after making findings of fact under CR 52.01, it may then order an in camera review. The petitioner would then be entitled to request review of any order granting in camera review to this Court by means of an original action.

787. SOVEREIGN IMMUNITY.  GOVERNMENT EMPLOYEE CONTRACTS.
MARK BLANKENSHIP, ET AL VS. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS IN RESULT ONLY) AND WINE (DISSENTS AND FILES SEPARATE OPINION
2008-CA-002044-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: This is an action by the Lexington and Fayette County Firefighters seeking overtime wages and related benefits from the Lexington- Fayette Urban County Government (“LFUCG”). The Fayette Circuit Court dismissed the action on sovereign immunity grounds. For the reasons that follow, we affirm the decision of the trial court.

he firefighters also contend that the Kentucky Attorney General and Labor Cabinet’s Application of the Kentucky Wage and Hour Law to County Employees is indicative of the waiver of sovereign immunity. LFUCG argues that neither the Attorney General nor the Labor Cabinet has the authority to waive sovereign immunity. Rather, as set forth above, only the General Assembly has that authority.

We agree that neither the Attorney General nor the Labor Cabinet has the authority to waive sovereign immunity. Thus, as set forth above, we agree that sovereign immunity applies in this action and that the trial court did not err in dismissing the action based on this defense.

790.  WORKERS COMPENSATION.  EXCLUSIVE REMEDY. CONTRACTOR.
THORNTON (JAMES) VS. CARMEUSE LIME SALES CORPORATION , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND BUCKINGHAM (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-000090-MR
TO BE PUBLISHED
PENDLETON

CREE, JUDGE: The Appellant, James Thornton, asks this court to reverse the Pendleton Circuit Court’s order granting summary judgment in favor of the appellee, Carmeuse Lime Sales, Inc.2    Because Carmeuse falls within the statutory definition of a contractor under KRS 342.610(2), its liability is limited pursuant to KRS 342.690. Therefore, we affirm the circuit court’s order.

The relationship between Carmeuse and Bulk Transit is nearly identical to that discussed Blevins. Accordingly, this relationship also amounts to a contractor-subcontractor relationship as defined by KRS 342.610(2).

Thornton argues that even if Carmeuse Lime is a contractor under the statute, the motor-carrier agreement changes that relationship. In support of this argument he relies on an unpublished decision of the United States Court of Appeals for the Sixth Circuit, Morlan v. Green River Steel Corp., 35 F.3d 566 (Table), 1994 WL 502655 (6th Cir. (Ky.), Sept. 14, 1994).3    In Morlan, after determining that Green River Steel was not a statutory contractor, the Sixth Circuit considered whether it was a “statutory employer.” 1994 WL 502655 *5-6. In making this determination the Sixth Circuit relied on a decision of the Kentucky Supreme Court, M.J. Daly Co. v. Varney, 695 S.W.2d 400 (Ky. 1985). Thornton’s reliance on the reasoning of these cases is flawed

Therefore, because Carmeuse is a “contractor” under KRS 342.610(2), it is entitled to “exclusive remedy” immunity under KRS 342.690 and the decision of the circuit court is affirmed..

793. FAMILY LAW.  DISABLED PARENT. INDEPENDENT FINANCIAL RESOURCES OF CHILDREN. IMPUTED INCOME WHEN DISABLED. CHILD SUPPORT GUIDELINES.
JONES (ALLISON) VS. HAMMOND (MATTHEW JONES)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000546-MR
TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: Allison Jones (formerly Hammond) appeals from an order of the Jefferson Family Court entered on October 1, 2008, which terminated Matthew Jones Hammond’s child support obligation. For the reasons stated below, we affirm in part, reverse in part, and remand.

In March 2008, Hammond filed a motion to terminate his child support obligation based on any or all of the following reasons: the independent financial resources of the children, the parenting schedule, and Jones’s financial resources. Further, he also requested that the court impute income to Jones. After Hammond had filed this motion, Jones then filed a motion requesting an increase in child support.

The issues on appeal are whether it is appropriate to terminate the child support of a non-custodial parent (as designated in the child support formula), whether the evidence was sufficient to impute income based on unemployment, and whether the facts of this case allow for deviation from the child support guidelines. Jones argues that the trial court erred when it determined that she was voluntarily unemployed, when it decided that the trust income and the percentage of parenting time allowed it to deviate from the child support guidelines, when it considered gifts from the grandparents as assets or income for Jones and the children, and when it terminated Hammond’s child support obligation.

Having concluded that the family court did not abuse its discretion in imputing income to Jones or in finding that the children’s independent financial resources permitted deviation from the child support guidelines, we affirm in part. Having concluded, however, that the family court erred in completely eliminating Hammond’s child support obligation, we reverse in part. And we remand to the family court so that it can calculate child support according to the child support guidelines with the imputation of income to Jones. Then, the family court shall use the children’s income to deviate from the guidelines per each parent’s proportionate child support responsibility. For the foregoing reasons, we affirm in part, reverse in part, and remand the judgment of the Jefferson Circuit Court for entry of an order consistent with this opinion.

794.  STATUTE OF LIMITATIONS.  TORT OF OUTRAGE AND FILLING THE GAP.
BENNETT (EARL) VS. MALCOMB (CARTER)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND BUCKINGHAM (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-000871-MR
TO BE PUBLISHED
OWEN

ACREE, JUDGE: Earl Bennett, the appellant, seeks reversal of the Owen Circuit Court’s order granting summary judgment for the appellee, Carter Malcomb. The circuit court determined that Mr. Bennett’s claim was barred by the statute of limitations. We affirm.

On April 28, 2008, Mr. Bennett filed a complaint alleging that Mr. Malcomb intentionally, recklessly and negligently harmed him by pinning him against a post with a tractor on April 28, 2006. As a result of the incident, Mr. Bennett suffered physical injury, but sought no psychological treatment. The complaint was dismissed for lack of jurisdiction pursuant to KRS 413.140 because it was brought more than one year after the accrual of the action. Mr. Bennett was then given leave to amend his complaint. He did so adding a cause of action for the intentional infliction of emotional distress, otherwise known as the tort of outrage.
Subsequently, the circuit court granted the appellee’s motion for summary judgment finding the tort of outrage inappropriate because traditional tort remedies existed. Thus, the claim was barred by the one-year statute of limitations applicable to traditional torts and not the five-year statute of limitations applicable to the tort of outrage.

This Court must determine if Mr. Bennett may bring a claim of outrage. If he cannot, then the statute of limitations bars recovery. The tort of outrage is intended as a “gap-filler”, proving redress for extreme emotional distress where traditional common law actions do not. Where an actor’s conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.

Therefore, because recovery could appropriately be sought under the traditional common law torts and the evidence shows the actions were not intended to only cause emotional distress, a cause of action for outrage is not appropriate. Furthermore, the tort of outrage was intended to fill the gap left by outrageous conduct that harms a plaintiff, but leaves him without recovery via the traditional torts. The tort of outrage was not intended to provide a cause of action for plaintiffs who simply failed to bring a traditional tort claim within the statute of limitations.
The judgment of the circuit court is affirmed.

796. INSURANCE.  UIM.  DUTY TO PROVIDE AMOUNTS REQUESTED.
LITTLE (CARL D.) VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
STUMBO (CONCURS) AND WHITE (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-001030-MR
TO BE PUBLISHED
KNOTT

NICKELL, JUDGE: Carl D. Little appeals from summary judgments entered in favor of Kentucky Farm Bureau Mutual Insurance Co., Beth Clemons, and Michael R. Fannin Insurance, Inc. Little argues the trial court erred by concluding there is neither statutory duty nor a common law or fiduciary duty to provide a specific amount of underinsured coverage. We affirm.

Little was involved in an automobile accident. Prior to the accident, he had purchased an automobile insurance policy from Beth Clemons, who was acting as an agent for Michael R. Fannin Insurance and Farm Bureau. The policy provided liability limits of $100,000 per person and $300,000 per accident. The policy contained underinsured limits of $25,000 per person and $50,000 per accident. Little alleges he requested underinsured coverage up to the liability limits. Little brought suit against the tortfeasors and against Farm Bureau for underinsured benefits.

Little correctly states KRS 304.39-320(2) requires insurers to make underinsured coverage available if requested. Allstate Ins. Co. v. Dicke, 862 S.W.2d 327, 328-29 (Ky. 1993). However, nothing in Dicke states or even suggests insurers are required to provide underinsured coverage under terms unilaterally set by the request of the insured. The insurer is only required to provide underinsured coverage, if requested, under “such terms and conditions not . . . inconsistent with the section of the statute.” Id. at 329. Again, we discern nothing in Dicke requiring insurers to provide a specific amount of underinsured coverage.
Little next argues Farm Bureau violated a common law duty to provide him with the specific amount of insurance he requested.

In the present case, Little admitted Farm Bureau told him he would
not be sold underinsured coverage at the limits he requested. Little also admitted he knew the limits were not the limits he requested prior to the accident underlying this case. Little’s reliance on Grigsby v. Mountain Valley Ins. Agency, Inc., 795 S.W.2d 372, 375 (Ky. 1990), is of no moment as Grigsby is distinguishable from the current situation. In Grigsby, the Court held an insurer could be held liable because it failed to provide fire insurance for a particular piece of property and instead insured a different property. In Grigsby, the insured did not receive the policy bargained for and instead received a different unnecessary policy. In this case, Little knew he would be not be sold a policy at the limits he requested. In Brewer v. National Indem. Co., 163 S.W.3d 885, 886 (Ky. 2005), the Court simply held an insured may proceed against the insurer “pursuant to the bargained-for agreement entered into by the parties.” Here, it is undisputed there was no agreement by the parties. Underinsured policies are contractual in nature. Schwartz v. Hasty, 175 S.W.3d 621, 628 (Ky. App. 2005). Therefore, Little may not unilaterally dictate the terms of coverage or Farm Bureau’s acceptance of his terms.
Accordingly, the judgments of Knott Circuit Court are affirmed.

797. CRIMINAL. SENTENCING.
MCNEW (CHARLES EDWARD) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2009-CA-001325-MR
TO BE PUBLISHED
HARDIN

LAMBERT, SENIOR JUDGE: Charles Edward McNew appeals from an order of the Hardin Circuit Court denying his motion for post-conviction relief filed pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. In the underlying case, pursuant to the terms of a plea agreement, Appellant had pled guilty to felony possession of drug paraphernalia and two misdemeanor offenses. He was sentenced to five years in prison. In this proceeding he contends that the sentencing judge lacked authority to enter a judgment and sentence, and he seeks vacatur of his convictions. Having reviewed the record and discovering no error, we affirm the denial of relief.

NONPUBLISHED TORT/CIVIL/WORKERS COMP:

799
NATIONAL DISTRIBUTION
VS.
CRAWLEY (MARVIN), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2009-CA-001424-WC
2009-CA-001456-WC
NOT TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: In this consolidated appeal, National Distribution appeals two opinions of the Workers’ Compensation Board finding that Kentucky has jurisdiction to adjudicate the claims of Marvin Crawley and Lloyd Maxwell. For the reasons stated herein, we affirm.

On June 20, 2008, Crawley, a truck driver, filed a claim for workers’ compensation benefits, alleging that he sustained work-related injuries to his neck, lower back, and left hip. He alleged that he sustained the injuries when his truck was in a serious crash in Franklin, Kentucky. Prior to filing for Kentucky benefits, Crawley had been paid benefits pursuant to Indiana’s Workers’ Compensation law.

National next contends that the Board erred by not enforcing the parties’ written agreement requiring Indiana law to govern Crawley’s workers'
compensation benefits regardless of where his injury occurred. Citing Industrial Track Builders of America v. Lemaster, 429 S.W.2d 403 (Ky. 1968), National contends that Kentucky provides that “a compensable claim in this state [can] be lost by an election to proceed under the laws of another state.” Thus, National contends that Crawley’s agreement waived his right to pursue a claim in Kentucky.

Although National contends that KRS 342.670(5)(e) permits parties to determine which state exercises jurisdiction over a claim, we do not believe that this statute can be read to determine jurisdiction in all contexts. The contracting authority of KRS 342.670(5)(e) is limited to determining where an employee’s employment is “principally localized” as provided in KRS 342.670(1), rather than to place exclusive jurisdiction in a particular state. That is, KRS 342.670(5)(e) permits parties to decide the result of the application of KRS 342.670(1), but does not preclude a Kentucky claim for an in-state injury.

From a review of these statutes, it is clear that the legislature has created a system for depriving Kentucky of jurisdiction to adjudicate these claims. KRS 342.395(1) mandates Kentucky jurisdiction unless the employer files, prior to injury, a written notice of an employee’s rejection with the Office of Workers' Claims. While National contends that KRS 342.670(5)(e) deprived Kentucky of jurisdiction, KRS 342.395(1), not KRS 342.670(5)(e), is the statute that must be utilized to accomplish the desires of National’s agreement with Crawley. Because there is nothing in the record to suggest National’s compliance with this statute, we conclude that the Board properly permitted Crawley to file a Kentucky claim.

TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes for August 13, 2010 (Nos. 765-785)

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:

COA 2010 Minutes for August 13, 2010 (Nos. 765-785)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Link to AOC Page with current minutes and archived minutes links
• Total number of decisions:  21
• Published Decisions:  2 (770; 781)

DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

PUBLISHED -------

770. Insurance.  Homeowners. Application of business pursuits exclusion relative to dog mauling on homebased day care centers premises.
HOLZKNECHT (SARAH) VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (CONCURS)
2009-CA-001022-MR
TO BE PUBLISHED
HARDIN

COMBS, JUDGE: This case involves a dispute as to coverage under a homeowner’s insurance policy. Sarah Holzknecht, as mother and next friend of Meghan Holzknecht, appeals from a summary judgment entered by the Hardin Circuit Court in favor of Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau). The trial court held that the policy was unambiguous in excluding coverage for injury arising out of an insured’s “business pursuit.” The court concluded that the exclusion applied to bar coverage under the circumstances of this case, a result challenged by Holzknecht on appeal. In the alternative, Holzknecht contends that the exclusion clause is subject to the policy’s severability provision. After our review of counsels’ arguments and the pertinent law, we affirm.

Sarah Holzknecht filed a complaint against the Mays and their homeowners’ insurance carrier, Kentucky Farm Bureau Mutual Insurance Company.    Holzknecht alleged that the Mays were liable for their daughter’s injuries when a dog kept at their home-based childcare center mauled her. Holzknecht asserted that the Mays failed to exercise ordinary care for the safety of her child. Additionally, she argued that they were liable under the provisions of KRS 258.235(4), which provides that the keeper of a dog shall be responsible for the damage that it causes. Holzknecht alleged that since Meghan was under two years of age at the time of the attack, she was incapable of comparative negligence as a matter of law. Farm Bureau defended the action under a reservation of rights.

It is undisputed that a home day care business was being operated from the insured premises but that the Mays had informed Farm Bureau that there would be no business pursuits conducted on the premises. Because they had had previous experience with securing a home day care coverage endorsement, the Mays were aware that their homeowner’s policy lacked such an endorsement to secure added coverage for their business.

It is true that the Mays’ liability did arise from their statutory duty as keepers of a dog. However, the policy expressly provides that the business pursuits exclusion is not limited to injuries resulting from an act or omission “involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business(.)” Instead, the policy exclusion is much more broadly drafted to encompass injuries “arising out of or in connection with a business engaged in by an insured.” We agree with the trial court’s observation as follows:

It should not be discounted that Holzknecht would not have been on this property and therefore not bitten by the dog were it not for the conduct of the day care business on the property. It is the increased risk associated with conducting such a business, including the presence of a number of children that calls for a specific rider or endorsement to provide appropriate commercial coverage.

NOTE:  This decision arose from a dog owned by the insured which mauled a child at the insured's day care business.  The insured contended that the dog was not related to the day care  business of the homeowner and thus should be covered.  KFBM contended the child would not have been on the homeowner's premises 'but for' the day care business. In holding the business pursuits exclusion applicable, it should also be noted that the following published decision addressing liability by the homeowner  under the 'dog bite' statute of KRS 258.235.(4) was applied in the 'companion' case.

781. Torts.  Dog bite statute and 'strict liability'.
MAY (JOHN DAVID), ET AL. VS.HOLZKNECHT (SARAH), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (CONCURS)
2009-CA-001905-MR
TO BE PUBLISHED
HARDIN

COMBS, JUDGE: Sherri May and John David May appeal from a partial summary judgment and a subsequent trial order and judgment of the Hardin Circuit Court in favor of Sarah Holzknecht, as mother and next friend of Meghan Holzknecht. The Mays contend that the trial court erred by concluding that they were strictly liable under the provisions of Kentucky Revised Statutes[s](KRS) 258.235(4), the dog-bite statute, by failing to direct a verdict in favor of John David May at trial, and by permitting the jury to award damages for future pain and suffering. After our review, we affirm.

KRS 258.235(4) provides that any dog owner (and every person who keeps or harbors the dog) “whose dog is found to have caused damage to a person . . . shall be responsible for that damage.”2    The trial court did not interpret the provisions of KRS 258.235 to impose strict liability upon the keepers of dogs under all circumstances. In fact, the court specifically rejected this notion. However, from the undisputed facts of this case, the trial court concluded that the Mays, and the Mays alone, were liable for the damages caused by the dog that they kept. Again, neither Meghan, the victim, nor any intervening third party was at fault to arguably exculpate the Mays. Carmichal, 251 S.W.3d at 327.

None of the factors that might have absolved or limited the Mays’ liability is involved in this case. There is no dispute that the Mays harbored the dog and that they knew or reasonably expected that the dog would have direct access to the children in their home, including Meghan Holzknecht. They had told Meghan’s mother that the dog would be kept outside – contrary to actual practice. Under the circumstances, they violated their statutory duty to prevent the child from being mauled by the dog. Evidence of the dog’s temperament is irrelevant, and the child was not comparatively negligent; again, she was legally incapable of negligence in light of her tender years. See Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897 (1944) (a child under seven years of age is not chargeable with contributory negligence). No third party and no fortuitous circumstance existed to implicate any aspect of comparative negligence.

This case involves application of the statute to undisputed facts. Under these facts, the Mays were liable as the dog’s keepers for Meghan’s injuries as a matter of law, and the only question that remained was the extent of her damages.

Mays contend that John David May was entitled to a directed verdict since he did not operate the child care business, made no decisions with respect to Sherri’s care of the children, and was not even at home when the dog attacked Meghan. We disagree.
The Mays’ argument wholly disregards the existence of KRS 258.235(4). As we have concluded, under the circumstances of this case, the Mays were liable as the dog’s keepers for Meghan’s injuries as a matter of law. Since the trial court granted Holzknecht’s motion for partial summary judgment, no evidence to prove John David’s negligence was introduced at trial, and none was necessary. John David’s liability does not arise from his activities at the home on the day that Meghan was mauled. Instead, under the undisputed facts of this case, he is liable by virtue of his status as keeper of the dog. John David fed, watered, and otherwise cared for the dog. As an owner of the home, he could have assured that the dog be kept outside or even removed from the premises. He knew or reasonably expected that the dog would likely have direct access to the children kept at his house, including Meghan. John David violated his statutory duty to prevent the child from being mauled by the dog, and he cannot claim the relief he seeks.

NOT TO BE PUBLISHED-----

767.  TORTS. JURY VERDICT. SUFFICIENCY OF EVIDENCE.
HARRELL (LEE ROY)
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND BUCKINGHAM (CONCURS)
2009-CA-000532-MR
2009-CA-000819-MR
NOT TO BE PUBLISHED
KNOX

KELLER, JUDGE: Lee Roy Harrell (Lee Roy) appeals from a Judgment of the Knox Circuit Court based upon a jury verdict in favor of State Farm Mutual Automobile Insurance Company (State Farm). Consolidated with that appeal is Louise’s Harrell (Louise) and Anna Harrell’s (Anna) appeal from an Order Granting Partial Summary Judgment in favor of Lee Roy. For the reasons set forth below, we affirm.

Although there was evidence to support each party’s position, when looking at the evidence as a whole, and in the light most favorable to State Farm, we believe the jury could reasonably have found that Lee Roy breached his duty to exercise ordinary care when he entered the intersection and that Clark did not. Gorman v. Hunt, 19 S.W.3d 662, 671 (Ky. 2000) (citing Lewis, 798 S.W.2d at 461)). Thus, we simply cannot conclude that the jury’s verdict was palpably and flagrantly against the weight of the evidence so as to be the result of passion or prejudice. Lewis, 798 S.W.2d at 462.

Having concluded that Louise’s and Anna’s deposition statements constituted judicial admissions, we turn to the question of whether Lee Roy was entitled to summary judgment. A judicial admission has a conclusive effect on the party who makes it that prevents that party from introducing further evidence to disprove or contradict the admitted fact. Zipperle v. Welsh, 352 S.W.2d 556 (Ky. 1962). In order to state a cause of action for negligence, a plaintiff must establish a duty on the part of the defendant, a breach of that duty, and a causal connection between the breach of the duty and the injury to the plaintiff. Lewis v. B&R Corp., 56 S.W.3d 432, 436-37 (Ky. App. 2001). The absence of any one of these three elements is fatal to a claim.

Louise’s and Anna’s statements that Lee Roy had the green light, proceeded at ten to fifteen miles per hour behind another vehicle when entering the intersection, and that they did not see Clark in the intersection prior to being hit by the vehicle Clark was driving, effectively negated any claim that Lee Roy breached his duty to handle his vehicle in a reasonable manner. Thus, there are no genuine issues of material fact and Lee Roy was entitled to judgment as a matter of law.

For the foregoing reasons, we affirm the Judgment of the Knox Circuit Court and its Order Granting Partial Summary Judgment.

768.  WORKERS COMPENSATION.  INDEPENDENT CONTRACTOR.
KC TRANSPORTATION, INC.
VS.
THOMPSON (BILLY), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND HARRIS (CONCURS)
2009-CA-000617-WC
NOT TO BE PUBLISHED
WORKERS' COMP

NICKELL, JUDGE: KC Transportation, Inc., has appealed from a decision of the Workers’ Compensation Board affirming the award of benefits to Billy Thompson.  KC argues: (1) Thompson was an independent contractor and not its employee; (2) the Administrative Law Judge (ALJ) failed to make specific findings of fact; and (3) Thompson failed to establish work-related causation of his lower back injury. After reviewing the record and briefs, we affirm.

773. PREMISES LIABILITY. 'OPEN AND OBVIOUS' DANGER AND INVITEE.
LEWIS (PHILLIP)
VS.
FAULKNER REAL ESTATE CORPORATION , ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001224-MR
NOT TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: While walking his dog, Phillip Lewis was injured when he stepped into a hole on the retail property of Faulkner Real Estate Corporation, Central Retail, LLC, and Central Retail Outlot, LLC (hereinafter “Faulkner”). Lewis appeals from the grant of Faulkner’s summary judgment motion wherein the
trial court determined, as a matter of law that he would be unable to prove that Faulkner breached a duty of care owed to him. After careful consideration, we affirm the decision of the trial court.

775. INSURANCE. DROP DOWN PROVISIONS OF LIABILITY POLICY FOR PERMISSIVE USER.
BIDWELL (DANIELLE N.)
VS.
SHELTER MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (DISSENTS AND FILES SEPARATE OPINION) AND HENRY (CONCURS)
2009-CA-001298-MR
NOT TO BE PUBLISHED
KENTON

THOMPSON, JUDGE: Danielle N. Bidwell appeals a summary judgment of the Kenton Circuit Court finding that a provision of a Shelter Mutual Insurance Company motor vehicle insurance policy purporting to limit coverage to the legal minimum coverage for permissive users of an insured vehicle is sufficiently conspicuous, plain and clear to be enforceable. We affirm.

780. WORKERS COMPENSATION Retaliatory Discharge
BIHL (JERRY)
VS.
GRIFFIN INDUSTRIES
OPINION AFFIRMING
HARRIS (PRESIDING JUDGE)
KELLER (CONCURS)(SENIOR STATUS JUDGE) AND THOMPSON (CONCURS)
2009-CA-001567-MR
NOT TO BE PUBLISHED
CAMPBELL

HARRIS, SENIOR JUDGE: This appeal is from the Campbell Circuit Court’s award of summary judgment to Griffin Industries on Jerry Bihl’s cause of action for workers’ compensation retaliation. For the reasons stated herein, we affirm.

As a preliminary matter, Griffin argues that the Court should strike Bihl’s brief for failure to comply with Kentucky Civil Rule (CR) 76.12(8)(a). CR 76.12(8)(a) provides that “[a] brief may be stricken for failure to comply with any substantial requirement of Rule 76.12.” Griffin argues that Bihl failed to support his statement of the case and argument sections with “ample supportive references to the record” as required by CR 76.12(4)(c)(iv) and (v). We note that Bihl’s brief is devoid of specific references and citations to the record as required by the rules. Although noncompliance with the provisions of CR 76.12 is not automatically fatal to a party’s appeal, this Court would be well within its discretion to strike Bihl’s brief for these omissions. We decline to do so, however, and choose to address Bihl’s appeal on the merits.

784. WORKERS COMPENSATION
MAGOFFIN COUNTY BOARD OF EDUCATION
VS.
OWENS (DELORES), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-002128-WC
NOT TO BE PUBLISHED
WORKERS' COMP

NICKELL, JUDGE: The Magoffin County Board of Education (Magoffin) appeals from an opinion of the Workers’ Compensation Board (Board) affirming the Administrative Law Judge’s (ALJ) opinion finding causation and ordering Magoffin to pay for Delores Owens’s total shoulder replacement surgery. On appeal, Magoffin claims the Board erred in affirming the ALJ’s decision because there was no objective medical proof of causation and two orthopaedic surgeons attributed Owens’s need for surgery to a preexisting condition rather than the workplace slip and fall. We disagree and affirm.

TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes July 30, 2010 (Nos. 729-747)

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:
COA 2010 Minutes July 30, 2010 (Nos. 729-747)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Total number of decisions:  19
• Published Decisions:  4 (731, 732, 735, 741)
• Tort, Civil, Insurance, Workers Compensation: 
• • 732. Torts.
  • 738. Appeals.
  • 740. Torts, slip and fall.
  • 746. WORKERS COMPENSATION

DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

732. TORTS. PREMISES LIABILITY.  RESIDENTIAL LANDLORD AND LEASED PREMISES.
JAIMES (THERESA)
VS.
THOMPSON (MICHAEL D.)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2008-CA-002355-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: Appellant, Theresa Jaimes, seeks reversal of the Jefferson Circuit Court’s grant of summary judgment denying her recovery for injuries sustained when she slipped and fell on property owned by the appellee. The appellee, Michael Thompson, did not retain control of the premises where Theresa Jaimes’ injury occurred. Therefore, he is not liable and the decision of the Jefferson Circuit Court is affirmed.

738.  APPEALS. SUPERCEDEAS BOND.
THOMPSON (PAUL), ET AL.
VS.
SWETNAM (BRUCE A.), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2009-CA-000650-MR
NOT TO BE PUBLISHED
SHELBY

ACREE, JUDGE: Paul and Carla Renee Thompson appeal orders of the Shelby Circuit Court denying their requests for judgment on the supersedeas bond posted by Bruce and Patricia Swetnam, and for a hearing to determine whether the bond
amount was sufficient. After careful review of the parties’ arguments and the record, we affirm.

740. TORTS. PREMISES LIABILITY. SLIP AND FALL AT  HOSPITAL. OPEN AND OBVIOUS.
SHELTON (WILMA)
VS.
KENTUCKY EASTER SEALS SOCIETY, INC.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2009-CA-000945-MR
NOT TO BE PUBLISHED
FAYETTE

WINE, JUDGE: Wilma Shelton appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Kentucky Easter Seals Society, Inc. For the reasons stated below, we affirm.
Factual and Procedural Background
On March 9, 2007, Wilma Shelton was visiting her husband at Cardinal Hill Rehabilitation Hospital (“Cardinal Hill”), which was owned and operated by Kentucky Easter Seals Society, Inc. (“Easter Seals”). Mrs. Shelton had visited her husband every day for five weeks since his admittance to Cardinal Hill. Before her husband was admitted to Cardinal Hill, Mrs. Shelton had been warned by a neighbor of the danger of numerous wires beside the beds at Cardinal Hill. After a visit with her father, the Sheltons’ daughter complained to staff at Cardinal Hill about the danger of these wires. Mrs. Shelton admits she always attempted to avoid the wires whenever she approached her husband’s bed. Because the left side of the bed was not accessible to her, Mrs. Shelton approached the right side of the bed, where the wires were located, each time she kissed her husband goodbye.

On March 9, 2007, as Mrs. Shelton approached her husband’s bed to kiss him, her foot became entangled in a wire, and she fell to the floor and onto her hands and knees. Both her husband and her daughter witnessed the fall. Mrs. Shelton experienced immediate pain in her left knee. She was later diagnosed with a non-displaced transverse fracture of the lower third of the patella. Mrs. Shelton filed suit against Easter Seals in March of 2008.

Mrs. Shelton had an unfortunate accident due to a known hazard at her husband’s bedside. Both parties agree that the wires beside the patient’s bed were open and obvious, and that the general rule remains that a landowner is not liable for such open and obvious hazards. Mrs. Shelton has failed to offer substantial evidence in support of her theory that she was distracted or had no alternate route to approach the bed. Without that evidence, there is no genuine issue of material fact to put before a jury. We affirm the trial court’s order granting summary judgment in favor of Kentucky Easter Seals Society, Inc.

746. WORKERS COMPENSATION.
STREET (DEIRDRE)
VS.
GOODY'S FAMILY CLOTHING, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (CONCURS)
2009-CA-002191-WC
NOT TO BE PUBLISHED
WORKERS' COMP

CLAYTON, JUDGE: This is an appeal of a decision of the Workers’
Compensation Board (the “Board”). [EDITOR'S NOTE.  This is a terrible way to write an introductory paragraph to an appellate decision.  No mention of the issues, holding, decision, procedural backdrop.  Just cold turkey into the case requiring the reader to ferret it out through several pages of discourse.  It smacks of a trial court order rather than an appellate decision. On the last page (12), it was written "For the foregoing reasons, we affirm the decision of the Board upholding the ALJ’s determination that Street’s case should be dismissed."]

[Buried in page 9 is the following:]

Street contends that this order took the issue of whether the University Evaluation should be admitted off the table and it was an abuse of discretion for the ALJ to change its opinion in its May 13, 2009 order. When confronted with this issue, the Board held:
“[T]he “law of the case doctrine” does not apply to the facts of this case so as to deny the ALJ the opportunity in reversing himself on the question of the admissibility of the university evaluation. (Footnote omitted). It first must be pointed out there can be no appeal from the ALJ’s prior order of March 16, 2009, omitting the university report since it was interlocutory in nature. As such, the ALJ retained jurisdiction in this case. To this extent, since there had been no appeal from this order, “the law of the case doctrine” had no applicability.
****
The Board recognizes the better practice would have been for the ALJ to have given notice by way of order he was changing his mind as to the admissibility of the university evaluation prior to the rendition of the final decision. Notwithstanding the above, the record reflects the parties were given ample opportunity to cross- examine the university evaluator and was also given the opportunity to rebut the university evaluator’s findings by other evidence.
Workers’ Compensation Board’s opinion, pages 31-32. We agree with the finding of the Board.
Since the ALJ had not reached a final decision in this case, any ruling would have been interlocutory. The ALJ’s decision to introduce the UE’s findings was not in error and the Board was correct in upholding that decision.

KENTUCKY TORT REPORT: COA 2010 Minutes July 23, 2010 (Nos. 702-728)

KENTUCKY TORT REPORT:
COA 2010 Minutes July 23, 2010 (Nos. 702-728)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Total number of decisions:  27
• Published Decisions:  4 (704, 707, 713, 718)
• Tort, Civil, Insurance, Workers Compensation:  8 (702, 708, 715, 718, 720, 723, 727, 728)

DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

702.  TORTS.  EMPLOYMENT DISCRIMINATION.
CATRON (EDWARD)
VS.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
WHITE (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2008-CA-002081-MR
NOT TO BE PUBLISHED
FAYETTE

HITE, SENIOR JUDGE: Edward Catron, a former candidate for an environmental inspector position at the Lexington-Fayette Urban County Government (LFUCG), Department of Environmental and Emergency Management (DEEM), appeals from a Fayette Circuit Court summary judgment in favor of LFUCG. The trial court based its decision upon Catron’s failure to prove that he was disabled or that LFUCG regarded him as disabled. The trial court also concluded that Catron was unable to perform the duties required of an environmental inspector due to his heavy lifting restriction. On appeal, Catron claims that the summary judgment was erroneous because: (1) LFUCG perceived that Catron was disabled; (2) Questions of fact existed concerning whether heavy lifting was an essential function of the position; and (3) Catron was physically capable of performing the job. After a careful review of the record, we affirm the Fayette Circuit Court’s summary judgment.

708. EMPLOYMENT DISCRIMINATION.  PREGNANCY.
CORE MEDICAL, LLC (CORE LLC)
VS.
SCHROEDER (DEBORAH)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
DIXON (PRESIDING JUDGE)
VANMETER (CONCURS) AND LAMBERT (CONCURS)
2009-CA-000670-MR
NOT TO BE PUBLISHED
KENTON

715. WORKERS COMPENSATION
SMALLWOOD, JONATHAN
VS.
LON. MOUNTAIN PROCESSING, INC.;
HON. LAWRENCE SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
2009-CA-001251-WC
NOT TO BE PUBLISHED
WORKERS’COMP

VANMETER, JUDGE: Jonathan Smallwood petitions for the review of an opinion of the Workers’ Compensation Board (Board) affirming in part and reversing and remanding in part an opinion of the Administrative Law Judge (ALJ) with respect to Smallwood’s injury claims. Finding no error, we affirm.  On appeal, Smallwood argues that the Board erred by concluding the evidence supported the ALJ’s finding that (1) his bowel and bladder dysfunctions did not result in permanent impairment and (2) he did not sustain a psychological impairment as a result of his work injury. We disagree.

720. SEXUAL HARASSMENT
ABNEY (REBECCA)
VS.
GULLEY REMODELING AND MAINTENANCE, INC. , ET AL.
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BUCKINGHAM (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
CAPERTON (CONCURS) AND MOORE (CONCURS)
2009-CA-001490-MR
NOT TO BE PUBLISHED
FAYETTE

BUCKINGHAM, SENIOR JUDGE: Rebecca Abney appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Gulley Remodeling and Maintenance, Inc., Kenny Johnson, Calvin D. Gulley, and Josephine Gulley, and dismissing Abney’s claims relating to alleged sexual harassment. We affirm in part, reverse in part, and remand.

724. 42 USC SECTION 1983 CLAIM, PRO SE
JONES (DEBI)
VS.
JONES (TRACY)
OPINION VACATING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2009-CA-001968-ME
NOT TO BE PUBLISHED
CAMPBELL

TAYLOR, CHIEF JUDGE: Larry E. Watkins-El brings this pro se appeal from a September 15, 2009, Opinion and Order of the Jefferson Circuit Court dismissing his complaint brought under 42 U.S.C. § 1983. We affirm.

727. WORKERS COMPENSATION
WATKINS (GARY)
VS.
L3 COMMUNICATIONS, ET AL.
OPINION AFFIRMING
HARRIS (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2010-CA-000383-WC
NOT TO BE PUBLISHED
WORKERS' COMP

HARRIS, SENIOR JUDGE: Gary Watkins has petitioned for review of an opinion of the Workers’ Compensation Board (the “Board”) entered on January 29, 2010, which affirmed the Administrative Law Judge’s (“ALJ”) June 23, 2009, order dismissing his claim. We affirm.

728. WORKERS COMPENSATION
MEANS (ROBERT)
VS.
SCHNEIDER NATIONAL, INC. , ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2010-CA-000387-WC
NOT TO BE PUBLISHED
WORKERS' COMP

STUMBO, JUDGE: Robert Means appeals from an Opinion of the Workers’ Compensation Board affirming an Opinion and Order of the Administrative Law Judge (“ALJ”). The ALJ determined that Kentucky did not have jurisdiction to adjudicate Means’ workers’ compensation claim because Means’ contract of hire with Schneider National, Inc. was entered into in Green Bay, Wisconsin. We affirm the Board’s conclusion that the evidence did not compel a different result than the one reached by the ALJ.