CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Jan. 27, 2006
PUBLISHED:
HAMAEIZADEH V. KENTUCKY BOARD OF MEDICAL LICENSURE
ADMINISTRATIVE AND REGULATORY LAW - Professions and licensing (disciplinary action)
2004-CA-001768
PUBLISHED
PJ: COMBS
VACATING AND REMANDING (Appeal from Jefferson Circuit Court, Judge Willett)
DATE: 1/27/2006
Held any physician who is aggrieved by a final order of the board denying a license or rendering disciplinary action against a licensee may seek judicial review of the order by filing a petition with the Circuit Court of the county in which the board’s offices are located in accordance with KRS Chapter 13B.
HUGHES V. LAMPMAN AND COTTON STATES MUTUAL INS. CO.
INSURANCE - UIM Benefits, Coots Advance, and Real Party In Interest at Trial
TRIALS - Failure to identify UIM carrier, not harmless error
2004-CA-002600
PUBLISHED
PJ: COMBS
REVERSING AND REMANDING
Jefferson Circuit Court, Judge Willett
DATE: 1/27/2006
This case involved a jury trial that occurred before Earle v. Cobb, but an appeal that was decided after Earle v. Cobb. The UIM carrier advanced the liability limits and apparently participated in discovery. At trial, the judge ruled over plaintiff's objection that the underinsured motorist carrier would not be identified to the jury. The jury returned a defense verdict on liability. Appeal ensued, and the appellants claimed harmless error. Dissent was filed by Judge Dyche who opined it was harmless, but the majority relied upon Earler v. Cobb and reversed the remanded.
"While Lampman argues that the trial court’s error is harmless in view of the jury’s ultimate finding, we are not persuaded that the error is susceptible of such an analysis. In considering the parties’ arguments in Earle, the Supreme Court of Kentucky was persuaded by the decision of the Supreme Court of Florida in Medina v. Peralta, 724 So.2d 1188 (1999). The Medina Court held that the trial court’s error (in withholding full information from the jury) amounted to deception and constituted a complete miscarriage of justice, emphasizing that the error was not subject to review through a harmless error analysis. Medina at 1189-90. We agree. Earle has explicitly condemned as manifestly unjust the subterfuge or legal fiction
of disguising the alleged tortfeasor as the only real party with potential liability to the plaintiff at a trial against the plaintiff’s UIM carrier. Consequently, the error cannot be dismissed as merely harmless."
KLB COMMENTS: This case highlights a very good trial practice trip as plaintiff's attorney Ronald Hillerich from Louisville did not accept the normal way of doing business and agreeing or acquiescing to the defendant insurance company's bifurcation of the underinsured motorist claim. Until Earle v. Cobb, this was considered the "de rigeur" to be followed. However, the law changes, the objection was preserved, and a new trial will ensue with no hidden parties. Although it is not clear in this decision, but I wondered if the insurance company participated in discovery and depositions prior to its attempt to go 'sub rosa' and bifurcate.
The other point from this case is that it highlights the law has changed and is being strictly enforced. Of course, Judge Dyche does present a good point on harmless error since the UIM question was never legally implicated since the tortfeasor was held not at fault. However, Judge Dyche may have missed the point that the majority grasped intuitively and expressly - truth is truth and permitting a fiction to mislead the jury as to the real parties in interest is not simply harmless but goes to the verity and truth of the trial by jury process. Interesting question for this case which may be appealed to the Supreme Court. However, long term implications of this decision as the Earle v. Cobb interlude is probably minimal.
NOT PUBLISHED:
LUMPKIN V. COM.
APPEALS - Specific Grounds and Directed Verdicts (Criminal Case)
2004-CA-001631
NOT PUBLISHED
DATE: 1/27/2006
Defendant properly denied motion for directed verdicts. Cocaine residue (which is cocaine) is sufficient to entitle the Commonwealth’s charge to go to a jury when there is other evidence or the inference that defendant knowingly possessed the controlled substance.
SHIFERAW V. MILLS
APPEALS - Preserving Appeal (family court)
2004-CA-002171
NOT PUBLISHED
DATE: 1/27/2006
Wife appealed from TC's postdissolution order directing the release of funds held in escrow after the sale of the parties’ marital residence on the basis that she was not served with a copy of the motion seeking the release of funds and so was not present in court for a hearing on the motion. CA ruled that this objection was not timely raised or addressed at TC level and thus was not preserved for review.
FERRIELL D/B/A KEITH UPHOLSTERING & DESIGN V. PODGURSKY
APPEALS - Finality
2005-CA-0000403
NOT PUBLISHED
DATE: 1/27/2006
Trial court rendered a judgment it deemed final, and it included the "there being no just cause for delay" language. The CAs noted that the inclusion of such language does not automatically render a judgment final; what's more, the CAs have a duty to examine the record to determine if an order truly is final. CR 54.02 states that when more than one claim for relief is presented in an action, the court may grant a final judgment as to one claim only if there is no just reason for delay. Here, the CAs found the judgment at issue did not wholly dispose of at least one claim of either party to the action. It therefore dismissed the appeal.
HARTWICH V. TODD AND WILKEY
CIVIL PROCEDURE - Summary Judgment Reversed as Question of material fact existed
2004-CA-002371
NOT PUBLISHED
DATE: 1/27/2006
Darrell Hartwich appeals from an order of the circuit court overruling his motion for summary judgment requesting reformation of a deed, and instead granting a money judgment in his favor in the amount of $3,100.00. Summary judgment was improperly granted. Either there are no questions of material fact or that the movant is entitled to judgment as a matter of law. CR 56.03. Determinations remain to be made that must be made in the trial court rather than in this Court, either through further discovery and motion practice or at trial.
WINKLER V. KENTUCKY ECONOMIC DEVELOPMENT FINANCE AUTHORITY
CIVIL PROCEDURE - SUMMARY JUDGMENT (Evidence needed to prevent)
2005-CA-000080
NOT PUBLISHED
DATE: 1/27/2006
CA affirms grant of SJ to KY Economic Dev. Finance Authority on promissory note and guaranty agreement
CA holds that the promissory note and guarantee agreement signed by the appellant constituted waivers of appellant's right to claim impairment of collateral under the UCC. Further, the loan agreement supports appellee's contention that no genuine issue of material fact existed.
BLOYD V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT LAW - Standard of Appellate Review
2004-CA-002327
NOT PUBLISHED
DATE: 1/27/2006
Since claimant has the burden of proof and since her claim was denied, COA may reverse under this standard only if the evidence in her favor is "so compelling that no reasonable person could have failed to be persuaded by it." COA found no basis to change or modify the standard so recently set out by this court.
BLOYD V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT LAW - Standard of Appellate Review
2004-CA-002327
NOT PUBLISHED
DATE: 1/27/2006
Since claimant has the burden of proof and since her claim was denied, COA may reverse under this standard only if the evidence in her favor is “so compelling that no reasonable person could have failed to be persuaded by it.” COA found no basis to change or modify the standard so recently set out by this court.
TRI-COUNTY WOOD PRESERVING, INC. V.
PROPERTY - REAL PROPERTY - Materialman's Lien (perfecting)
2005-CA-000517
NOT PUBLISHED
DATE: 1/27/2006
Tri-County appeals TC decision in favor of appellees. Issue is whether notice of lien was provided in a timely manner pursuant to KRS 376.010 (4). Relevant provision mandates notice to owner of intention to claim a lien within 75 days of last day of furnishing materials. Appellant argues that statute says “within 75 days of material OR labor”. CA finds that plain and unambiguous language of statute defines controlling event as giving notice within 75 days of providing material and that, in this case, notice was not given in time.
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.
Comments