Ky. Decisions: Supreme Court Published on Nov. 23, 2005

KENTUCKY SUPREME COURT DECISIONS - PUBLISHED
NOV. 23, 2005

Minutes for NOV. 23, 2005

LEWIS V. JACKSON ENERGY COOPERATIVE CORP.
ADMINISTRATIVE LAW - Electric Cooperatives
2003-SC-000119-DG.pdf
Published 
REVERSING
WINTERSHEIMER
Date: 11/23/2005

It was plain error for both the circuit court and the Court of Appeals to construe KRS 279 .020 as permitting rural electric cooperatives to engage in non-electric ventures.   Rural electric coop not permitted to sell propane.

KBA V. ROBERT M. BEAL
ATTORNEYS - Discipline
2005-SC-000697-KB.pdf
Published
Date: 11/23/2005

One year suspension from practice of law.

KBA V. NICKIE BARTON VANMETER
ATTORNEYS - Discipline
2005-SC-000724-KB.pdf Published 
Date: 11/23/2005

Permanent disbarment.

INQUIRY COMMISSION V. KENNETH EUGENE RYLEE, JR.
ATTORNEYS - Discipline
2005-SC-000776-KB.pdf
Not Published  105 kb
Date: 11/23/2005

Temporary suspension.

RUSSELL L. CROLEY
ATTORNEYS - Discipline
2005-SC-000826-KB.pdf
Published 
Date: 11/23/2005

Public reprimand.

YEAGER V. MCLELLAN
CONTRACTS - Breach, illegality
2003-SC-000180-DG.pdf
Published 
AFFIRMING
GRAVES
Date: 11/23/2005

This appeal arose from an action for breach of contract/breach of warranty based  upon alleged misrepresentations made by the sellers of a home.  Appellee charged that Appellants falsely completed the disclosure form because the two incidents listed (March 1989 and 1999) were not the only times that the basement had leaked . The Jefferson Circuit Court entered partial summary judgment in favor of Appellants, reasoning that the disclosure form clearly stated that it was not a warranty.

A court may refuse to enforce a contract on grounds of illegality where the contract has a direct objective or purpose that violates the federal or a state Constitution, a statute, an ordinance, or the common law .  the clause in this contract creates a warranty. The contract incorporates the disclosure form by reference and explicitly warrants the truthfulness and accuracy of the form and must be enforced as such .

As the Court of Appeals correctly noted, the contract does not violate KRS 324.360 or 201 KAR 11 :350 because the parties are in compliance with these provisions and merely sought to give greater weight to the disclosure form than was statutorily required.

ROBERTSON V. COM.
CRIMINAL - RCr 11.42; Equitable Tolling
2003-SC-000948-DG.pdf
Published
REVERSING AND REMANDING
COOPER
Date: 11/23/2005

 

SC reversed Circuit Court's dismissal of pro se Defendant's RCr 11.42 motion as untimely.  Case remanded to the Nelson Circuit Court for an evidentiary hearing to determine whether the three-year period of limitation was equitably tolled in this case.

 

"Considering the similarities between 28 U.S .C. § 2255 and RCr 11.42(10), and the fact that the denial of a motion under RCr 11.42 often results in the filing of a habeas petition within the jurisdiction of the Sixth Circuit, we now adopt the Dunlap test for determining whether equitable tolling is applicable to an otherwise limitation-barred RCr 11.42 motion."  In Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001), the United States Court of Appeals for the Sixth Circuit adopted for equitable tolling purposes in habeas cases the same five-factor test it had approved for employment discrimination cases in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988): (1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.

 

Note:  The Justices must have felt strongly about this case given the three separate dissenting opinions.

 

WILLIAMS V. COM.
CRIMINAL -  Sexual Exploitation
2003-SC-001024-MR.pdf
Published
AFFIRMING IN PART, REVERSING AND REMANDING IN PART
WINTERSHEIMER
Date: 11/23/2005

 

SC affirmed Defendant's convictions of four counts of use of a minor in a sexual performance but reversed the 40 year sentence.

KRS 531.300 et seq. pertains to the Sexual Exploitation of Minors. KRS 531.310(1) provides that "[a] person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance." A "sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a minor[ .]" KRS 531.300(6) . A "[p]erformance" includes any play, motion picture, photograph or dance." KRS 531.300(5) (emphasis added) .  Here, the plain language employed in the definition of "performance" focuses on "any photograph ." The singular form of "photograph" read in conjunction with the term "any" clearly indicates that the Legislature intended prosecution for each differing photograph . Accordingly, a person who generates differing and multiple prohibited photographs or causes a child to engage in the creation of such photographs commits multiple offenses of KRS 531.310, even though each such differing photograph involves the same subject captured in a narrow timeframe.

SC ordered new sentencing hearing as TC permitted non-final convictions to be admitted during sentencing phase.

WOOD V. COM.
CRIMINAL
2003-SC-000535-MR.pdf
Published 
AFFIRMING
JOHNSTONE
Date: 11/23/2005

SC affirmed Defendant's conviction for capital murder and life sentence without parole.  SC rejected the nine claims of error alleged by the Defendant.

 

WHITE V. COM.
CRIMINAL - Murder
2004-SC-000082-MR.pdf
Published 
AFFIRMING
ROACH
Date: 11/23/2005

Affirmed conviction of Pulaski County Sheriff Catron finding all claims to be without merit.

THOMPSON V. COM
CRIMINAL - 11.42 Granted
2004-SC-000217-DG.pdf
Published
REVERSING AND REMANDING
SCOTT
Date: 11/23/2005

11.42 granted and reversed/remanded on ineffectiveness of counsel issue as it was unreasonable not to attempt in some  way to contest evidence or at least insure its reliability

COM. V. STACEY
CRIMINAL - 11.42
2004-SC-000358-DG.pdf
Published
REVERSING
JOHNSTONE
Date: 11/23/2005

SC reinstated the trial court's order denying Stacey's motion for post-conviction relief pursuant to RCr 11 .42.

The issue to be considered is not whether Stacey was, in fact, competent at the time he entered his plea, but rather whether he alleged sufficient grounds in his untimely RCr 11 .42 motion to warrant an evidentiary hearing.

BUCKLEY V. HON. WILSON
EXTRAORDINARY REMEDIES
2004-SC-000727-MR.pdf
Published 
AFFIRMING
LAMBERT
Date: 11/23/2005

Denied writ of prohibition on claim that judge was misinterpreting the law.  It  was the trial court's duty to interpret and apply the controlling appellate court decision. A trial court, in interpreting an appellate court's decision, is not acting outside its jurisdiction even if its interpretation is erroneous.

KENTUCKY FARM BUREAU MUT INS CO V. RYAN
INSURANCE - Uninsured motorist
CIVIL PROCEDURE - Apportionment, Warning order attorney
2003-SC-000944-DG.pdf
Published
reversing
JOHNSTONE
Date: 11/23/2005

The basic holding permitted a UIM carrier to third party an unknown motorcyclist defendant for purposes of apportioning fault even though there was no personal jurisdiction over that unknown motorcyclist.  An odd twist in this case was that the UIM was also a UM carrier and was permitted to use the 'no contact' rule to defeat the plaintiff's claim for uninsured motorist benefits.

Comment:  However for now, note the inconsistent positions permitted KFBM in talking what were essentially inconsistent positions by parsing the policy provisions and not reading the policy as a whole and ignore the intent and purpose of the 'no contact' rule to prevent fraudulent claims.  Justice Johnstone wrote for the majority and made some black letter law pronouncements that a UIM claim is not controlled by the apportionment statute since it is a contract and not a tort and its tweener status (my word not his) does not change that fact.  However, in a UIM case the damages are in tort and the third party claim for apportionment is permitted.  Of course, would a constructively served third party complaint suffice if a direct action against the tortfeasor?  Time will tell on that one, but in that scenario I would suggest a motion to dismiss by the plaintiff for failure to state a cause of action since indemnity in this situation is non-existent and apportionment is a legal conclusion and not a claim, Kevin Tucker case notwithstanding in creating the legal fiction.

WILLIAMS V. WAL-MART STORES, INC.
TORTS - Age Discrimination
2004-SC-000080-DG.pdf
Published 
AFFIRMING
ROACH
Date: 11/23/2005

Although plaintiff  was replaced by at least one of these substantially younger individuals,  this  case is one of those "instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory ."

In St. Mary's Honor Center, the Supreme Court rejected the "pretext plus" and "pretext only" approaches in favor of the "permissive pretext only' standard and held that it was permissible, but not mandatory, for the trier of fact to make an ultimate finding of intentional discrimination once the plaintiff has established pretext.   Considered together, and despite Williams's weak showing of pretext, these facts show that Medina was solely responsible for Williams's termination and that he did not know her age at the time he made that decision .

PREVIS V. DAILEY
TORTS- Negligence (duty of care, bicyclist and MVA)
2004-SC-000131-DG.pdf
Published
REVERSING AND REMANDING
JOHNSTONE
Date: 11/23/2005

The accident arose when a truck was cresting a hill and pulled into the left lane to pass a bicyclist.   Assuming he had passed her, the trucker maneuvered his truck back into the right-hand lane  and caught the bike's  handlebars which became wedged under the second flatbed wagon . The bike was pulled under the wagon and the bycyclist was thrown into a ditch on the side of the road .

Biker sued car in a personal injury action.  The trial court denied both parties' motions for a directed verdict, and the case was thereafter submitted to the jury, which returned a verdict in favor of Dailey .

Trucker's legal duty required that he not pass biker unless he could do so without interfering with the safe operation of her bicycle, and that if, in fact, he did pass her that he not drive to the right until he was reasonably clear of her.  Apparently, truck believed that it was solely biker's obligation to make sure he safely passed her. Clearly that is not the law. See KRS 189 .340(1). Nor are we sympathetic to truck driver's claim that he had no choice but to move back into the right lane so as to avoid a potential collision with oncoming traffic .

If the terrain was such that Dailey could not see oncoming traffic, then he certainly was in violation of his duty to exercise ordinary care for the safety of other persons using the roadway. See KRS 189 .340(4) .2

We hold that the trial court should have granted bicyclist a directed verdict on the issue of truck driver's negligence .

However, a jury is still entitled to consider Previs's duties in operating her bicycle, and apportion fault should it find that Previs was negligent as
well. The jury was given instructions on both Previs's duties and apportionment, but the roadway before coming within one hundred feet (100') of any vehicle approaching from the opposite direction. was directed not to consider them upon finding for Dailey . On remand, a jury must consider these additional issues.

LANE V. S & S TIRE, INC.
WORKERS COMP - Death Benefits (Suicide from denial of benefits Claimed)
2005-SC-000141-WC.pdf
Published
AFFIRMING
Date: 11/23/2005

Worker sustained work related injury and later died of self-inflicted gun shot wounds.  Widow claimed (and ALJ rejected) contention that decedent committed suicide due to his employer's unreasonable refusal to pay voluntary benefits following the injury and awarded Priscilla survivors' benefits under KRS 342.730(3) rather than the death benefits she sought under KRS 342.750.

The ALJ refused to increase the income benefit by a factor of 0.02 on the ground that Douglas had a GED diploma and also rejected a request for sanctions under KRS 342 .040 and KRS 342.310 on the ground that the employer's insurance carrier had a reasonable basis for refusing to pay
temporary total disability (TTD) and medical benefits voluntarily.

KEITH V. HOPPLE PLASTICS
WORKERS COMP -
2004-SC-000451-WC.pdf
Published 
AFFIRMING
Date: 11/23/2005


KRS 342.730(4) (DOES NOT) violate the equal protection clause of the United States Constitution and/or Section 3 of the Kentucky Constitution

DOUBLE L CONSTRUCTION INC. V. MITCHELL
WORKERS COMP - Temporary Total Disability
2004-CA-1316-WC
PUBLISHED
AFFIRMING
DATE: 11/23/2005

The employee was working at two employments, carpentry and an after hours cleaning job, when his eye was punctured by a nail. During the surgeries which followed he was able to return to the cleaning job, but not the carpentry job. The ALJ determined that the return to only part of his employment did not render him ineligible for temporary total disability benefits. The Workers' Compensation Board reversed, but the Court of Appeals reversed the Board, holding that when an employee is unable to return to his customary employment, and has not reached MMI, he is entitled to TTD based on the wages earned in both employments. The Supreme Court affirmed, on different grounds, holding that the inability to return to the employment in which the employee was injured entitled him to TTD based on that employment only. However, the employer failed to preserve that issue and the Supreme Court did not grant it a credit. This decision is practical, since denying TTD based on a relatively minor concurrent job would leave the worker destitute while he was unable to perform his major employment because of the injury. It makes a careful analysis of the definition of temporary total disability based on its definition in the statute. It may also provide an answer to situations where the employer can provide light work while the employee is recovering, but only at reduced wages. It is not fair to penalize the worker for being injured at work.

The newest member of the Court, Roach, makes a lone dissent which accuses the majority of creating law which should be statutory. However, he ignores the definition of TTD in the statute, which leaves open the meaning of "returning to employment". The statute is ambiguous in that the meaning of return to employment can mean returning to all employment, or only part of previous employment. Such an ambiguity requires judicial interpretation.

Thanks to Scott Byrd, Patrick Bouldin,  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

Comments

[David Kramer]

In answering your questions, I would say:
1. Yes, the unknown party could be subject of apportionment under the statute, not just under common law.
2. Under the Kevin Tucker case, an unknown third party could still be subject of apportionment even if dismissed on the theoretical basis that under CR 14 he/she could not be liable to the defendant for liability imposed on the defendant. Judge Johnson criticized his own holding in Kevin Tucker, but said he felt bound to follow precedent and rule the way he did. I think this unknown defendant case gives more credence (albeit indirectly) to the Kevin Tucker holding, as does the fact it was followed by the 6th Circuit in Adam v. J.B. Hunt.
3. If the policy requires physical contact for UM coverage, then I don't see it rising to the level of estoppel, though I understand your point about seeming inconsistency in the positions taken. The physical contact requirement doesn't directly say there was no other driver, just that the insurance company won't pay unless there is evidence of physical contact between the other driver and the insured. As Judge Johnson said in Kevin Tucker, the apportionment rules can lead to seemingly unjust results. But they serve valid purposes in the overwhelming majority of cases.

[Michael Stevens]

It was definitely a clever strategic move, but two questions are left unanswered by KFBM v. Ryan.

First, will the unknown third party constructively served and not personally liable defendant serve as a viable alterntive in a tort claim rather than a contractual underinsured motorist claim since the apportionment statute would apply?

Second, in spite of the Kevin Tucker case of years gone by, is there really a substantive third party claim for indemnity, contribution or apportionment and is it ripe at the time of the underlying claim?

Of course, I have not even ventured how an insurance company can rely on the exclusion in an uninsured motorist policy to protect itself from fraudulent claims (eg., physical contact rule in hit and run) but then claim in the underinsured portion of the claim that there was, in fact, a driver. Would they not estopped?

Estoppel is defined as "A bar preventing one from making an allegation or a denial that contradicts what one has previously stated as the truth."

[David Kramer]

It was interesting that in KFB v. Ryan the court held that the apportionment statute does not apply in UIM case (since it's a contract action), but there should nevertheless be an apportionment under the common law (Hilen v. Hays and its progeny).

Even more interesting was allowing apportionment against the unknown defendant brought in under CR 4.15. Certainly it was a clever strategic move by KFB to bring in the unknown defendant and thereby avoid the "no apportionment against nonsettling nonparty" rule.