SCOKY: Ky Supreme Court - Published - Feb. 2005

FEB 2005 KY SUPREME COURT
If you would like a complete listing of the published and nonpublished decisions of from the Kentucky Supreme Court  posted by the Louisville LawWire, then click on the following dates (organized by subject matter, with short summaries and links to the full text of the decision posted at the AOC Web Site).

• Feb. 17, 2005 - Supremes - 2005/07

KBA  V. DAVID P. CHINN
ATTORNEYS
2004-SC-001010-KB.pdf
Date: 2/17/2005 - PUBLISHED

ROSCOE  C.  BRYANT, III   V. KBA
ATTORNEYS
2004-SC-000918-KB.pdf
Date: 2/17/2005 - PUBLISHED

INQUIRY COMMISSION   V.  BARRY SLOAN SMITH
ATTORNEYS
2004-SC-001014-KB.pdf
Date: 2/17/2005 - PUBLISHED

JOHN R. HANSEN   V. KBA
ATTORNEYS
2004-SC-001102-KB.pdf
Date: 2/17/2005 - PUBLISHED

DONNA K. MCNEW   V. KBA
ATTORNEYS
2004-SC-001122-KB.pdf
Date: 2/17/2005 - PUBLISHED

SPOULL  V.   KBA
ATTORNEYS
1999-SC-000597-KB.pdf
Date: 2/17/2005 - PUBLISHED

PEDIGO   V.   BREEN
CIVIL PROCEDURE - STATUTES OF LIMITATION (Legal Negligence)
2003-SC-000028-DG.pdf
Judge: LAMBERT
REVERSING AND REMANDING
Date: 10/21/2004
Modified: 2/17/2005 - PUBLISHED

Ms. Pedigo retained the legal services of Mr. Breen way back in 1992 when he advertised his plans to pursue a class action lawsuit against breast implant manufacturers for defective products.  She claims she took her original medical records to his office for review, and that later he declined to represent her yet never returned her records, despite repeated requests that he do so (he claims she never brought him those records).  Several years passed, during which time Ms. Pedigo sought the services of other attorneys for her medical problems, but the lack of her original medical records precluded her from joining class action suits against the manufacturers.  She eventually settled with 3M for $50,000 in 1998 but later discovered her settlement would have been five times that amount had she been able to participate in the class action suit.

In 1999, she brought suit against Mr. Breen for legal negligence, arguing that the date of her 1998 settlement was when he damages ceased to be speculative and thus began the statute of limitations.  The trial court and the CA both ruled she filed against Mr. Breen outside the SOL of one year as per KRS 413.245.  The Supremes took discretionary review and held that professional negligence claims do not accrue until there has been a negligent act and reasonably ascertainable damages are incurred.  It found that she was unable to ascertain her damages until she reached a settlement with 3M, and since she had filed against Mr. Breen within one year of that settlement, her suit against him fell within the applicable SOL.  The Court noted that this ruling illustrates the desirability of strictly construing the occurrence rule and requiring that all tort elements be fully developed.   It also serves public policy by allowing parties an opportunity to seek mitigation of damages by pursuing an underlying claim and by leaving the professional negligence claim open until the underlying claim is concluded.

The COA decision dismissing the malpractice claim was reversed and remanded.

GERLAUGH   V.  COM.
CRIMINAL - Hearsay, Co-Conspirator letter
2002-SC-000382-MR.pdf
Judge: COOPER
REVERSING AND REMANDING -
Date: 2/17/2005 - PUBLISHED

In 5-2 decision, SC reversed Defendant's conviction and 20 year sentence for Robbery 1st degree.  TC improperly admitted hearsay letter from alleged co-conspirator in perjury allegation.  Letter was not admissible as "a statement by a coconspirator made during the course and in furtherance of the conspiracy." KRE 801 A(b)(5).  The letter was the only evidence offered to prove the existence of the alleged conspiracy or Defendant's and co-conspirator's participation in it.

SC concluded, as did the U.S. Supreme Court in Bourjaily v. United States, 483 U .S. 171, 107 S .Ct. 2775, 97 L.Ed .2d 144 (1987), that KRE 104(a) now permits partial "bootstrapping" to the extent that the trial court may consider the challenged out-of-court statement in making the required preliminary findings. However, SC also concluded, as did every federal court of appeals that considered the issue before the 1997 amendment of FRE 801(d)(2)(E), that the foundational requirements cannot be proven solely by the out-of court statement of an alleged co-conspirator but must be supported by some independent corroborative evidence of those facts. Since there was no independent corroborative evidence of a "perjury conspiracy" in this case outside the inference the Commonwealth draws from the statement in DeWitt's letter, the trial court erred in admitting the excerpt from the letter into evidence. Meredith v. Commonwealth, 959 S.W.2d 87, 91 (Ky. 1997).

Defendant's speedy trial rights were not violated.  The nine-month delay in this case was not presumptively prejudicial.  The in-trial identification of Defendant was not tainted by the improper photo-pack line-up in which Defendant was the only fairhaired, light-eyed person depicted.  Unless additional identification evidence is produced upon retrial, the evidence concerning the pistol shall not be admitted.  Detective did not improperly comment on Defendant's post-arrest silence.  Eyewitness identification of Defendant as the perpetrator was admissible.

HALE    V.   COM
CRIMINAL - Competency Hearing
2003-SC-000284-MR.pdf
Judge: KELLER
AFFIRMING
Date: 2/17/2005 - PUBLISHED

SC affirmed Defendant's guilty pleas and 30 year sentence for First-Degree Robbery, Second-Degree Assault, Kidnapping, Criminal Attempt to Commit Murder, and being a First-Degree Persistent Felony Offender.  Because the trial court did not have reasonable grounds--either before or after Defendant's evaluation to believe that Defendant was incompetent to stand trial, the trial court did not err in accepting Defendant's guilty pleas or in not conducting a competency hearing.  The acceptance of the pleas prior to the completion of the evaluation was entirely proper, and because the evaluation found that Defendant was competent, the failure to hold a competency hearing was not error.

HILLIARD   V.   COM.
CRIMINAL - Sexual Contact

2002-SC-000702-MR.pdf
Judge: COOPER
AFFIRMING IN PART, VACATING IN PART
Date: 2/17/2005  - PUBLISHED

SC affirmed in part and vacated in part Defendant's convictions and 20 year sentence for unlawful transaction with a minor in the first degree, KRS 530.064(1), for knowingly inducing A.W., age fifteen, to engage in illegal sexual activity; and one count of unlawful transaction with a minor in the third degree, KRS 530.070(1)(a).  The evidence was sufficient for a jury to believe beyond a reasonable doubt that Defendant committed the offense of unlawful transaction with a minor in the first degree.  Minor's "fisting" of Defendant constituted "sexual contact.  KRS 510 .010(7) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party."  Defendant's statement that it "felt great" sufficed to prove that Defendant solicited the conduct for the purpose of his own sexual gratification.

TC properly sustained the Commonwealth's motion to exclude evidence of A.W.'s sexual history.  SC rejected Defendant's claim of juror misconduct.  Commonwealth's use of subpoenas to compel witnesses to attend a pretrial interview with the prosecutor was improper, but since the same information may have been obtained during voluntary interviews, SC was unable to conclude that manifest injustice resulted from the improper interviews.

Note:  As the lone dissenter, Justice Johnstone strenuously attacked the majority's analysis, referring to its "absurdity".  Johnstone believes Hilliard was denied the fundamental constitutional right to be given notice of the specific charges against him before he was put on trial.  On another note, the majority was extremely forgiving of a significant amount of prosecutorial misconduct that appeared to take place here.

WEAVER   V.   COM
CRIMINAL - Escape; Home Incarceration

2003-SC-000353-DG.pdf
Judge:  JOHNSTONE
AFFIRMING
Date: 2/17/2005 - PUBLISHED

On discretionary review, SC affirmed CA's reversal of Jefferson Circuit Court order dismissing Escape 2nd charge against the Defendant in 4-3 decision.  The sole issue before SC was whether a conviction for escape may arise from a violation of home incarceration that was imposed as a condition of pretrial release.   SC concluded that it may.

This issue is one of statutory interpretation, specifically whether Appellant's placement on home incarceration as a condition of pretrial release fits the definition of "custody" within the meaning of KRS 520.010(2) . Pursuant to KRS 520.030, a person is guilty of escape in the second degree when he "escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody." KRS 520.010(2) defines "custody" for purposes of KRS Chapter 520 as "restraint by a public servant pursuant to a lawful arrest, detention, or an order of court for law enforcement purposes, but does not include supervision of probation or parole or constraint incidental to release on bail ."

Note:  Dissent notes this inconsistency:  Majority opinion holds that an individual on pretrial release conditioned on home incarceration is not in custody for purposes of jail-time credit, but nevertheless is in custody for purposes of charging him or her with escape from custody.

COM.   V.    C.J., A CHILD
FAMILY LAW - JUVENILES - INFORMAL ADJUSTMENT
2002-SC-001009-DG.pdf
Judge: JOHNSTONE
AFFIRMING
Date: 2/17/2005 - PUBLISHED

Commonwealth sought discretionary review of Supreme Court after Jefferson Circuit Court and Court of Appeals held that no appeal may be taken of an informal adjustment.

C.J. had been charged with unlawful possession of a weapon on school property and second-degree wanton endangerment.  Commonwealth requested C.J.’s detainment at the arraignment.  Over Commonwealth’s objection and without victim consultation, TC instead ruled that the case should be resolved by informal adjustment.  Both Circuit Court and Court of Appeals refused to hear an appeal of the informal adjustment.

SC affirmed, holding that an informal adjustment does not constitute a final action and is therefore unappealable.  The legislature specifically addressed appealable actions within the Juvenile Code, and an informal adjustment was not one of them. Although appeal via KRS 610.130 is permissive rather than restrictive, it still requires that the appeal come from “dispositional orders.”  However, by its very definition, an informal adjustment is neither an adjudication or disposition.  “There is simply no language in  Kentucky 's Juvenile Code authorizing an appeal of an informal adjustment. Had the legislature intended to include such language, it certainly could have done so . By omitting informal adjustments from those matters that are appealable, the inference is that the legislature intended no appeal be allowed from an informal adjustment by the juvenile court.  Because no appeal from an informal adjustment is available, the Commonwealth, if it desires review of such action, is required to bring an original proceeding in the circuit court in the nature of a writ of mandamus or prohibition.”

DISSENT:  “The Commonwealth, undisputedly a party, did not agree to an informal adjustment; therefore, it was not possible for the juvenile court to informally adjust C .J .'s case. Accordingly, by ‘adjusting’ the case over the Commonwealth's objection, the juvenile court in effect entered a formal adjudication and disposition, and thus the Commonwealth had the right to appeal from the juvenile court's disposition of C.J.'s case ..”

YORK  V.  KENTUCKY FARM BUREAU MUT. INS. CO.
INSURANCE - Coverage (Automobile, Non-Permissive User Exclusion)
2003-SC-000334-DG.pdf
Judge: GRAVES
AFFIRMING
Date: 2/17/2005 - PUBLISHED
COMPANION CASE: 2003-SC-000338-DG.pdf

The Supreme Court affirms the CA holding that a non-permissive user exclusion applied to absolve Kentucky Farm Bureau of providing liability coverage.

As folks socialized in the "Chat and Chew" parking lot, Driver-Appellant insisted on test driving Camaro despite owner's repeated and absolute refusal. Driver had a single-car wreck, injuring Passenger-Appellant.

Both Driver and Owner were insured by KFB. KFB moved for SJ arguing that both policies had a non-permissive user exclusion. TC granted SJ against KFB, holding that the exclusion applied in Owner's policy, but did not apply in Driver's policy. TC held that the exclusion for "any" non-permissive user did not specifically reference insureds under the policy, so Kentucky public policy favored a liberal construction in favor of coverage. A unanimous CA reversed.

The Supreme Court finds no ambiguity in the exclusion; "any" non-permissive driver is excluded.

Justice Lambert wrote a dissenting opinion joined by Scott and Wintersheimer: "Kentucky law and public policy considerations mandate that we find coverage in cases involving the injury of an innocent 3rd party."

GRAYSON COUNTY BOARD OF ED.   V.   CASEY
TORTS -  DEFENSES  - SOVEREIGN IMMUNITY
2003-SC-000208-DG.pdf
Judge: COOPER
REVERSING
Date: 2/17/2005 - PUBLISHED

SC reinstates SJ for Board of Education entered by TC, overturning CA reversal.

Appellee was injured by the negligent operation of a forklift by a Grayson Cty. Board of Ed. employee. TC entered SJ for the Board, which was reversed by the CA. SC reviews and reverses.

"A board of education is an agency of state government and is cloaked with governmental immunity; thus, it can only be sued in a judicial court for damages caused by its tortious performance of a proprietary function, but not its tortious performance of a governmental function, unles the General Assembly has waived its immunity by statute." The Board of Claims Act is a partial waiver of immunity that permits a person damaged by a board of education's negligent performance of a governmental function to file a claim for damages in the Board of Claims, including a claim premised upon vicarious liability for the torts of the board of education's employees. Since Appellee's action was brought in the circuit court and not the Board of Claims, it was properly dismissed because there was no waiver under KRS 160.310.

DRAVO LIME CO., INC.  V.   WORKERS COMP BOARD
WORKERS COMP - CAUSATION
2003-SC-001027-WC.pdf
AFFIRMING IN PART AND REVERSING IN PART
Date: 2/17/2005 - PUBLISHED

The Supreme Court affirmed the Court of Appeals in finding that the ALJ had substantial evidence on which to base her finding that the disease he was suffering from - fibrosis- was caused by his work.  Mr. Eakins had brought a piece of lime (calcium oxide) with him to one of the evaluations to which he submitted, and showed the doctor that lime produces a chemical reaction when mixed with water.  While other doctors had evaluated him for limestone exposure and silicosis, the ALJ found that the proof of lime causing fibrosis was convincing.  The Supreme Court also affirmed the ALJ's decision finding that a privately funded disability policy did not duplicate workers' compensation benefits, and therefore no offset was allowed between the award and the disability policy.  The Supreme Court's reasoning was that the disability plan did not contain an offset provision by its terms.

BRUMMITT  V.  SOUTHEASTERN KENTUCKY REHABILITATION INDUSTRIES
WORKERS COMP – GRADUAL INJURIES
2003-SC-001028-WC.pdf
REVERSING AND REMANDING
Date: 2/17/2005 - PUBLISHED

The Supreme Court considered a case in which the worker was diagnosed with carpal tunnel syndrome in April 2000, and filed a claim on that gradual ‘cumulative trauma’ injury. However, the claimant also went to the doctor in October 2000, who diagnosed that the condition had worsened by that time.  The problem was, the employer had changed insurance carriers between those dates.  She settled against the carrier on risk for the first injury date, and this appeal involved an appeal against the carrier on risk for the second injury date.  The ALJ held that there was no liability against the carrier on risk in October, 2000, because the gradual injury had manifested itself in April, making that the injury date.  However, the Supreme Court sent the case back for a finding of whether the worsening of the condition occurring after April until October was the result of new trauma.  If so, the second carrier could be liable.  Justice Cooper dissented, pointing out that American Printing House for the Blind v. Brown, Ky. , 142 S.W.3d 145 (2004) was identical to this case, but there it was held that the first manifestation date created liability solely in the carrier on risk at that time. He also pointed out that this holding will complicate gradual injury claims endlessly, allowing carriers to discontinue coverage and avoid liability, and encouraging the termination of workers affected by cumulative trauma injuries.

Thanks to Scott Byrd, Patrick Bouldin, Melissa Dimeny, Reed Ennis, John Hamlett, Cherry Henault,      Sam Hinkle, Suzan J. Hixon, Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Bryan Pierce, Richard Schiller, Paul Schurman, and James Worthington for their efforts in digesting these decisions.

Michael L. Stevens, Editor