CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Feb. 3, 2006
PUBLISHED:
SANDOZ PHARMACEUTICALS CORP. V. GUNDERSON
DAMAGES - Punitives not applicable to extra-territorial conduct
TORTS - Products Liability and FDA approval does not relieve duty to warn
2004-CA-001536
PUBLISHED
Date: 2/3/2006
This was an Oct. 21, 2005 decision published but modified on Feb. 13, 2006.
NOT PUBLISHED:
GATEWOOD V. DUVALL
DAMAGES - Pain and Suffering (zero verdict for pain and suffering)
2004-CA-002508
NOT TO BE PUBLISHED
Date: 2/3/2006
Affirmed trial court's denial of motion for new trial in reliance upon the Kentucky Supreme Court decision which held that it was not necessarily erroneous for a jury to award medical expenses without making an award for pain and suffering. Miller v. Swift, 42 S.W.3d at
602.
Evidence was presented from which the jury could have concluded that Gatewood’s pain resulted from conditions or injuries unrelated to his accident with Duvall. The fact that the jury awarded Gatewood some of his medical bills does not necessarily reflect that the jury believed that his claims of pain and suffering damages were warranted. As noted by Duvall, the award could simply reflect a belief that Gatewood deserved to have his medical condition fully evaluated following the accident. Plaintiff Gatewood had a prior accident which the jury could have attributed as the cause of his pain and suffering.
COMMENT: Miller v. Swift simply held that a zero verdict on pain and suffering (and mental anguish and inconvenience) is not clearly erroneous just be cause the jury awarded medical expenses. The question is one of causation, and here the defendant pointed the finger to a prior accident. It is submitted that the review on appeal may be under an abuse of discretion standard in ruling on the motion for new trial for inadequate damages, but the heart of the inquirey is one of causation and in the absence of evidence of a break in the causative link (eg., prior accident, subsequent accident, or the injury is not associated with additional or any pain and suffering) then it will not be disturbed on appeal. Of course, as said many times in these commentaries, it is counterintuitive to affirm a trial court's denial of the new trial motion in reliance upon the trial judge's better position to weigh the evidence and witnesses but not require the trial judge to enter into the record those actual findings. Just compare that unarticulated reliance in this situation to the typical family court reversal on appeal when the family court judge fails to adequately articulate the findings on factors mandated by the statute for making a child custody award (eg., in this issue Counts v. Counts, 2004-CA-002612). Oddly enough the rule that the appellant cannot argue one can of worms at the trial court and another at the appellate court is not necessary when there is no can serving as the repository for those worms.
WHOBREY V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT - Denial of benefits was not clearly erroneous; causation of injury questioned
2004-CA-001876
NOT TO BE PUBLISHED
Date: 2/3/2006
THOMAS V. COM.
EVIDENCE - Witnesses (weight and credibility determined by jury)
2004-CA-002354
NOT TO BE PUBLISHED
Date: 2/3/2006
Jury, not an appellate court, has the sole responsibility to weigh the evidence and judge the credibility of all witnesses that testify before it. Dunn v. Commonwealth, 151 S.W.2d 763, 764-765 (Ky. 1941). Affirmed criminal conviction.
SOUTH LOUISVILLE COMMUNITY MINISTRIES, INC. V. ANTHEM HEALTH PLANS OF KY, INC.
INSURANCE - Contract (ads, quotes, solicitations are invitations and not offers to be accepted)
2005-CA-000148
NOT TO BE PUBLISHED
Date: 2/3/2006
WESTERFIELD V. ILER
PROPERTY - Real Property (passway determination)
2004-CA-000924 (AFFIRMING; DYCHE, J.)
NOT TO BE PUBLISHED
Date: 2/3/2006
At dispute in the real property action was the location of a passway over properties. The determination of the location and dimensions of a passway are within the discretion of the trial court. Daniel v. Clarkson, 338 S.W.2d 691, 693 (Ky. 1960).
ENVIRONMENTAL CAPITAL INTERNATIONAL, LLC V. PBK BANK, INC.
PROPERTY - Liens (security interests and priority)
2004-CA-001616
NOT TO BE PUBLISHED
Date: 2/3/2006
There is a dispute as to what type of relationship ECI had with PBK during their respective involvements with Maverick. ECI claims that it had an agreement with PBK that it was the priority lien holder for accounts receivable ECI purchased from Maverick. However, PBK maintains it always insisted that it was
the priority lien holder for all Maverick’s accounts receivable due to its November 24, 1998 financing statement.
Security agreements are effective according to its terms between the parties, against purchasers of the collateral and against creditors. KRS 355.9-201 (1998). [A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless: (a) . . . the debtor has signed a security agreement which contains a description of the collateral . . . (b) value has been given; and (c) the debtor
has rights in the collateral. KRS 355.9-203(1)(a)-(c) (1998).
Attachment occurs as soon as all of the events specified in subsection (1) of this section have taken place unless explicit agreement postpones the time of attaching. KRS 355.9-203(2) (1998).
A financing statement must be filed to perfect all security interests. KRS 355.9-302(1) (1998). A financing statement is sufficient if it gives the names of the debtor and the secured party; is signed by the debtor; gives an address of the secured party from which information concerning the security interest may be obtained; gives a mailing address and identification number of the debtor; and contains a statement indicating the types, or describing the items, of collateral. KRS 355.9-402(1) (1998). A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. Id. As such, actual notice of possible future advances to any would-be subsequent creditor is provided by the future advance clause appearing in the security agreement rather than the financing statement. First National Bank of Grayson v. Citizens Deposit Bank and Trust, 735 S.W.2d 328, 331 (Ky.App. 1987).
A filed financing statement is effective for a period of five (5) years from the date of filing.
PBK’s security interest in Maverick’s accounts receivable was perfected when the UCC financing statement was filed on November 24, 1998 in accordance with KRS 355.9-302(1)(1998). Perfection of a security interest gives constructive notice to the world of the claim or interest of the one asserting it. PBK’s lien on Maverick’s accounts receivable took priority over ECI’s lien because PBK perfected its security interest more than eight months prior to ECI’s perfection of their security interest.
Therefore, PBK was entitled to all Maverick’s accounts receivable, including those factored by ECI.
KINDRED HOMES, INC. V. COLVIN
PROPERTY - Mechanics and Materialmans Lien (insufficient notice)
2005-CA-000297
NOT TO BE PUBLISHED
Date: 2/3/2006
Colvin and Blackburn agree that no pre-filing notice of the lien was required, but assert that the law requires that the property owner must have notice after the lien is filed for notice to be considered statutorily effective. Middletown Engineering Co. v. Main Street Realty, Inc., 839 S.W.2d 274, 275 (Ky. 1992).
Because the lien sent to them was not stamped as filed by the clerk and was not sent within seven days after the lien was filed, it did not satisfy the notice requirement found in KRS 376.080(1). The language of the letter sent with the lien was too equivocal to be considered notice that a lien was filed. The letter appears to give the debtor thirty days to dispute the debt. The letter and copy of an unfiled lien was insufficient notice that a lien had been filed.
CONSOLIDATED INFRASTRUCTURE MANAGEMENT AUTHORITY, INC. V. ALLEN
TORTS - Whistleblower; KRS 61.103(2); Limitations on injunctive relief and punitives
2004-CA-001508
NOT TO BE PUBLISHED
Date: 2/3/2006
This 'whistleblower' case held the limitations under KRS 61.103(2) which created a 90 day limitation applied only to injunctive relief or punitive damages.
BRANHAM V. MAYNARD
WILLS, ESTATES, PROBATE
2004-CA-001069
NOT TO BE PUBLISHED
Date: 2/3/2006
Affirmed unanimous jury verdict which determined that the purported will of Clinton Maynard, and a deed and transfer of two certificates of deposit by him were executed either while Clinton was of unsound mind or as a result of undue influence by Floraine. Trial court did not err in instructing the jury or in denying Floraine’s motion to set aside the jury’s verdict, and that any improper closing arguments to the jury did not constitute reversible error.
Thanks to John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, Paul C. O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's CIVIL appellate decisions.
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