Ky. Decisions: Supreme Court - Dec. 22, 2005

Supreme Court Minutes for Dec. 22, 2005 with link to all decisions by name, published and not published.

PUBLISHED DECISIONS OF SUPREME COURT

CAVALIER HOMES OF ALA. V. JUDGE COLEMAN
ADR - Extraordinary Remedies
2005-SC-000160-MR
Published
AFFIRMING
LAMBERT
Date: 12/22/2005

Cavalier Homes sought to compel enforcement of contract's arbitration clause.  Trial court disagreed finding appellee did not have actual knowledge of the arbitration policy.  Cavalier sought extraordinary relief. Both COA and SC denied since appeal was adequate remedy.   The Uniform Arbitration Act at KRS 417.220, expressly provides that "An appeal may be taken from [a]n order denying an application to compel arbitration made under KRS 417-060. . . . The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action ." Thus, the foregoing enactment, created a statutory interlocutory right of appeal where no such right would otherwise exist.

DAVID GRIGSBY V. KBA
ATTORNEY DISCIPLINE - Suspension from practice of law
2005-SC-000463-
Published
Date: 12/22/2005

HAMILTON V. KBA
ATTORNEY DISCIPLINE
2004-SC-000105-
Published   
Date: 12/22/2005

KBA V. NANCY CALLOWAY
ATTORNEY DISCIPLINE
2005-SC-000563-
Published 
Date: 12/22/2005

KBA V. STUART LYON
ATTORNEY DISCIPLINE - Suspension from practice of law.
2005-SC-000736-
Published 
Date: 12/22/2005

HUGH RICHARDS V. KBA
ATTORNEY DISCIPLINE - Public reprimand
2005-SC-000851-
Published 
Date: 12/22/2005

COM. V. KELLY
CRIMINAL - Search & Seizure; Anonymous Tips
2004-SC-000385-DG
Published 
REVERSING AND REMANDING
GRAVES
Date: 12/22/2005

Upon discretionary review, SC reversed CA and Circuit Court's order suppressing evidence seized as a result of a traffic stop following tip by restaurant employees.

Lexington police received a call from two persons who identified themselves simply as Waffle House employees. The employees reported that they suspected a recent patron of their restaurant of being intoxicated and that the suspect was about to drive away from the restaurant. They stated their location and gave details about the suspect and his vehicle.  The suspect was described as being a white male and the vehicle was identified as being a red, older model Camaro with Tennessee tags.  Upon pulling into the parking lot, Officer Hastings saw two people standing outside whom he assumed were the employees who had reported the suspected drunk driver. Upon seeing the police vehicle, the two people then started pointing in the direction of a night club across the street from the restaurant. When Officer Hastings looked toward the area where the people were pointing, he immediately spotted a red, older model Camaro. Officer Hastings drove across the street to the night club and followed the Camaro to a nearby hotel. He then activated his emergency lights and proceeded to conduct an investigatory stop of the vehicle and its driver, who identified himself as Appellee, Michael Kelly.

It is well-established that investigatory stops, such as the one performed by Officer Hastings in this case, are permissible if the officer has reasonable and articulable suspicion that a violation of the law is occurring.  The significance of whether this tip was generated from "anonymous" informants or not bears upon our overall determination of reliability.  We find that the setting and circumstances of this case do not support a conclusion that the tip was truly "anonymous." While the tipsters did not give their names, they (1) identified themselves as employees of the Waffle House restaurant; and (2) provided the location of the particular restaurant where they  worked.  Finally, the reliability and veracity of the tip in this case was corroborated by Officer Hastings to the extent that: (1) he was able to verify most of the details given in the tip, including the identity of the tipsters; and (2) he was able to personally observe the tipsters.  When all of these circumstances are considered in their totality, we are unable to conclude that Officer Hastings lacked the requisite reasonable suspicion to justify his stop of Appellee that night.

Note:  Following a national trend, this decision expands the scope of investigative stops permitted by police.  In restricting the definition of "anonymous", spying on your neighbor is further encouraged.

JOHNSON V. COM.
CRIMINAL - Defining Reasonable Doubt 
2004-SC-000516-MR
Published 
AFFIRMING
ROACH
Date: 12/22/2005

In a 5-2 opinion, SC affirmed Johnson's convictions for Robbery in the First Degree and PFO 2 and his underlying sentence of 20 years.  The Commonwealth presented evidence that Johnson was the getaway driver in a liquor store robbery.  During voir dire, the prosecutor made a statement to jurors concerning the concept of reasonable doubt.  Although he noted that no one could define it for the jury, he explained that it was not the equivalent of beyond the shadow of a doubt.  Defense counsel objected, stating that the prosecutor was actually defining reasonable doubt by ruling out alternatives (i.e. stating what it was not).  The trial court overruled the objection.  Not surprisingly, the primary issue on appeal was whether the trial judge had erred in denying this objection.  The majority opinion held that the prosecutor's statement at worst was harmless error and that it did not violate Commonwealth v. Callahan, 675 S.W.2d 391 (Ky. 1984).  Callahan prohibits counsel from offering any definition of reasonable dbout at any point in a trial.  However, in that case, the Court affirmed Callahan's convictions even though the prosecutor essentially attempted to state what reasonable doubt was not.  The majority stated that what the prosecutor did in Johnson's case was no different and therefore should require the same result.  Justices Cooper and Lambert offered an eloquent dissent in which they traced the evolution of case law on the definition of "reasonable doubt."  In short, they claim that the majority's view will encourage trial counsel to offer their own client-serving definitions of this concept despite the clear prohibition in Callahan. 

COM. V. PRIDDY
CRIMINAL - Terry Stops and Reasonable, Articulable Suspicion
2003-SC-000041-DG
Published
REVERSING
SCOTT, J.
Date: 12/22/2005

In another 5-2 opinion, the SC reversed the CA's decision and effectively upheld the trial court's denial of Priddy's motion to suppress drug evidence seized during his arrest.  The case arose when a police officer was on his way to a domestic disturbance.  While en route, a citizen flagged him down and said that a six foot tall, 170 pound white male with shoulder-length, black, curly hair, driving a late 1970s model black Ford truck with primer on the hood was in the K-mart parking lot on 191 Outer Loop and was about to (sell drugs).  The officer then went to the K-mart parking lot and found the man and vehicle exactly as described.  The trial judge concluded that the officer had testified that the man was leaving the lot after having met another person.  (The dissent noted that the officer gave no such testimony.)  As the truck left the lot, the officer followed it and initiated a traffic stop.  The man appeared to move frantically in his vehicle.  When he got out of his truck, he had a bulge in his front pocket that he stated was a crack pipe.  He was arrested and charged with Possession of a Controlled Substance, Possession of Drug Paraphernalia, and No Motor Vehicle Insurance.  A suppression hearing was held in which the trial judge denied the motion to suppress the drug evidence, stating that the officer had sufficient reasonable, articulable suspicion of criminal activity under the circumstances.  Priddy entered a conditional guilty plea that preserved his right to appeal the trial judge's denial of his motion to suppress.  CA reversed the suppression ruling, stating that the crucial evidence suggesting reasonable suspicion was contained in the officer's citation which was not offered into evidence at the suppression hearing (i.e. the reference to the defendant meeting another person at the parking lot).  The SC reversed, holding that the statements contained in the officer's citation were effectively admitted at the hearing because the officer testified about them.  It further held that the citizen's tip contained sufficient predictive reliability to justify the officer's reasonable suspicion.   Justices Cooper and Lambert dissented, noting that the key evidence supporting reasonable suspicion was the cryptic phrase in the officer's citation regarding the defendant's having met another subject before leaving the parking lot.  Because the officer never testified to that and because the citation was not entered into evidence, the CA was right and the trial judge wrong.    

BAYLESS V. BOYER, M.D.
DAMAGES - Inadequate Damages, New Trial (medicals awarded with no pain and suffering)
2003-SC-000250-DG
Published 
AFFIRMING
ROACH, J.
Date: 12/22/2005

In this medical negligence case involving a missed diagnosis of a wrist fracture by the doctor, the jury awarded the minor his medicals but nothing for pain and suffering. Both the radiologist and the ER doctors missed the fracture.

Expert testimony noted that if the doctor had examined the x-rays he would have noticed the fracture. However, the ER doctor testified there was no acute pain so he probably did not review the films.  Patient was discharged and to return as needed if pain developed.  Patient continued to be active upon discharge and played baseball (with much icing of his sore wrist).  There was no follow-up care by the minor or at direction of his parents for two months.  It was disputed whether the minor discovered the break before or after the end of the baseball season, but the orthopedist examined the wrist two months later, noted the break and calcification could not be repaired by a cast, performed surgical repair, was confident of a good result and  that he should return to normal strength with no more increased risk of arthritic pain than if had been casted properly following the injury.

At trial, the jury found no fault on the ER doctor but found the radiologist negligent.  The jury also apportioned fault on the minor and his parents combined for half the fault.

The COA then went through the basics in analyzing a zero pain and suffering verdict and rejected the contention that surgery constituted uncontroverted evidence of pain entitling the young man to those damages.  The appellate standard is a review of the motion for new trial on inadequate damages under a 'clearly erroneous' standard and further reminded us that a "new trial depends to a great extend upon factors which may not readily appear in an appellate record."  Miller v. Swift was then mentioned as a brief reminder that zero pain and suffering verdicts "may sometimes be appropriate (emphasis added).  Hazel v. Beauchamp was relied upon by the claimants (hand in a shredder case followed by surgery had inadequate/nominal damages) but distinguished by the Supremes who added a caveat that Miller v. Swift was being followed but not extended.

With all that said, Justice Roach did address the facts at trial in the form of depositions, testimony and medical records to conclude the jury had a basis to conclude no pain following the break, no pain following surgery, and no interference with his day to day activities (play baseball, do pushups etc), to name a few. "Dr. Wyrick testified that there would likely have been significant pain associated with treatment of Michael's fractured wrist regardless of the treatment option, either casting or surgery, that was used. He further testified that he could not predict  any significant difference in pain between the two options. Finally, Michael's surgery was performed under general anesthesia, preventing or limiting the acute pain directly related to the procedure . There was substantial evidence for the jury to conclude that Appellants were not entitled to a damages award for pain and suffering. "

STEPHENSON V. WOODWARD
ELECTIONS - Contests, Qualifications
2005-SC-000603-TG
2005-SC-000604-TG
2005-SC-000645-TG
Published
JOHNSTONE
REVERSING IN PART AND AFFIRMING IN PART
Date: 12/21/2005

In this on-going election contest dispute, the SC held that it was a question of statutory interpretation rather than a constitutional separation of powers and political question, holding that the separate circuit court action which was not appealed by either of the two candidates vying for the 37th District's senatorial seat now constituted the law of the case with the Republican candidate Stephenson conclusively determined not be to a Kentucky resident and that the challenger Woodward who got fewer votes did not win and cannot sit. The result is the injunction continues to prevent Stephenson from taking her seat even though the Kentucky Senate has approved and determined she is qualified to sit.

BROWN V. INDIANA INS. CO.
INSURANCE - Automobile Liability Coverage if no workers comp
WORKERS COMP - Exclusive Remedy and Liability Insurance
2004-SC-000065-DG
Published 
AFFIRMING
COOPER, J. 
Date: 12/22/2005

COMPANION CASES:
2004-SC-000067-DG
2004-SC-000070-DG
2004-SC-000071-DG

The issue presented by this appeal is whether a commercial automobile liability insurance policy affords coverage for damages sought in a tort action brought against the insured employer for the wrongful death of its employee, where the action would have been barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act but for the fact that the employer failed to procure a policy of workers' compensation insurance. SC held that the automobile liability policy neither affords coverage for such an action nor requires the insurer to pay the cost of defending such an action.

HARRISON V. VALENTINI M.D.
TORTS - Medical Negligence (SOL and continuing treatment)
CIVIL PROCEDURE - Statute of Limitations (medical Negligence)
2004-SC-000015-DG
Published 
LAMBERT
REVERSING AND REMANDING
Date: 12/22/2005

Continuing treatment by the Defendant physician tolls the running of the statute of limitations for the patient under rule called the "continuous course of treatment rule." Rationale is that both are afforded the opportunity to cooperate with each other to correct the problem and mitigate the damages. However, no benefit shall inur to a patient who feigns a desire to continue treatment in order to shop around for an expert or give a lawyer more time to file a complaint.

KUBAJAK V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
WORKERS COMP
2003-SC-000974-WC
Published 
AFFIRMING
Date: 12/22/2005

It is undisputed that the claimant police officer suffered from post-traumatic stress disorder, that the condition is disabling, and that it is work-related . An Administrative Law Judge (ALJ) determined, however, that the condition was due to observing gruesome crime scenes. Therefore, it was not an "injury" as defined by KRS 342.0011(1) and was not compensable . See Lexington-Fayette Urban County Government v. West, 52 S .W.3d 564 (Ky. 2001) . Having determined that the evidence did not compel a finding that the condition resulted from a physically traumatic event, the Workers' Compensation Board (Board) and the Court of Appeals have affirmed . Likewise, SC affirmed.

HILLTOP BASIC RESOURCE, INC. V. BOONE COUNTY
ZONING - Zoning Amendment; Standard of Review
2004-SC-000003-DG
2003-SC-001052-DG
Published   
REVERSING AND REMANDING
GRAVES
Date: 12/22/2005

Hilltop Basic Resources, Inc. (“Hilltop”) sought to mine underground limestone in a rural area of Boone County not zoned for such use. Hilltop requested an amendment to the zoning map. The Planning Commission, by a vote of seven (7) to five (5) recommended approval. The Fiscal Court disagreed. It voted three (3) to zero (0) to deny the zoning amendment.

Hilltop appealed the Fiscal Court’s decision, arguing (1) that it acted arbitrarily and capriciously, and (2) that it violated due process requirements because two of its members were biased. Hilltop alleged that the members’ biases were evidenced by their public and private comments opposing mining activities in general. Specifically, one member allegedly stated that she “would never vote for a mine in this area of Boone County” because “[t]he people in Boone County just don’t want it.” The Boone Circuit Court upheld the decision of the Fiscal Court, finding that it was neither arbitrary nor erroneous as a matter of law.

Hilltop had better success at the Court of Appeals. There, the Court held that procedural due process was violated because two of the Fiscal Court members were biased.

The Kentucky Supreme Court granted discretionary review. The Court, in a unanimous decision, reversed the ruling of the Court of Appeals. Citing American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, 379 S.W.2d 450 (Ky. 1964), the Court noted that a zoning determination is reviewed for the limited purpose of determining if it is arbitrary. The issue of arbitrariness involves three questions: (1) whether an action was taken in excess of granted powers, (2) whether affected parties were afforded procedural due process, and (3) whether determinations are supported by substantial evidence. While the Court of Appeals held that due process required the Fiscal Court to be a completely “impartial tribunal,” the Supreme Court disagreed. It held that fiscal courts are legislative bodies and do not perform a judicial function. Thus, the Court reasoned, fiscal courts should not be held to the heightened standards of impartiality that are applied in the judicial context. (The Court noted that there were no allegations of “malice, fraud, corruption or other conflicts of interest.”) It stated that policy-based controversies in nonjudicial settings are best “ferreted out in the legislative arena, i.e., through expression of the will of the voters.”

The Supreme Court remanded the matter to the Court of Appeals with instructions to consider Hilltop’s argument concerning whether the Fiscal Court’s decision was based on substantial evidence, and whether its decision was “in conformance with the comprehensive plan and applicable zoning law,” issues the Court of Appeals did not previously consider.

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlett, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Alma Puissegur, Richard Schiller, Paul Schurman, and James Worthington for their efforts in digesting Kentucky's appellate decisions.

Comments

[David Kramer]

If anybody questioned the vitality of the Miller v. Swift medicals/no-pain-and-suffering holding, Bayless v. Boyer should answer that question.

It's pretty clear that the Court's treatment of the issue is premised on a general reluctance to overturn jury verdicts that arguably are supported by some evidence.

But I also suspect that the doctrine is based to some extent on a recognition that a verdict awarding some damages but nothing for P&S could have arisen from a jury compromise that reviewing courts shouldn't selectively override. Some prior decisions in these cases wrestled with the issue whether reversal of a verdict that seems inconsistent on damages but that might have been based on jury compromise necessitated a retrial on damages alone, versus a retrial of both liability and damages.

The solution appears to be deciding whether there's any basis to uphold the denial of P&S while awarding other damages. If there isn't, then the case law is split on whether there should be retrial on all issues or just damages.