Kentucky Law

Civil Decisions (TIPs): Court of Appeals - Feb. 17, 2006

PUBLISHED:

LEON MANUFACTURING CO. V. WILSON KUBOTA, LLC
CONTRACTS - Franchising Agreements
2004-CA-002256
PUBLISHED 
REVERSING AND REMANDING (TAYLOR)
DATE: 2/17/2006

The CA overturned the Trial Court Judgment and found that under the law at the time of the contract there was no Franchise Agreement and thus the Defendant didn't have to repurchase snow blades. 

CITIZENS BANK OF NORTHERN KENTUCKY, INC.  V. PBNK, INC.
PROPERTY - LIENS (EQUITABLE; PRIORITY)
2004-CA-001351
PUBLISHED   
AFFIRMING (MILLER)
DATE: 2/17/2006

It a general rule that where a mortgagor has previously disposed of property, his subsequent execution of a mortgage, the description of which included the land disposed of, does not create a lien upon it. Miller v. Williams, 137 S.W. 779 (1911).

GILLIAM V. PIKEVILLE UNITED METHODIST HOSPITAL OF KENTUCKY, INC.
TORTS - Defamation (elements of  compensable damage, failure to prove and summary judgment)
2004-CA-001573
PUBLISHED 
AFFIRMING (VANMETER)
DATE: 2/17/2006

Affirmed summary judgment to Pikeville United Methodist Hospital of Kentucky, Inc. (Hospital) and Danny Briscoe dismissing dismissed Gilliam’s complaint, which alleged that appellees made defamatory statements about him and breached a contractual duty of confidentiality by causing his personnel and employment records to be made public and cast in a false light because Gilliam could not establish damages in connection with the defamatory statements.

As Gilliam failed to identify compensable damages in his deposition testimony, he failed to meet this element of his defamation case. Furthermore, Gilliam’s failure to set forth his damages during his deposition constitutes a judicial admission which forecloses further dispute on the issue.

SEE:  Kentucky Employment Law Blog Note addressing this decision - Ky. COA Affirms Dismissal Of Defamation Claim That Arose In The Context Of A Labor Dispute.

NOT PUBLISHED:

CHIARAMONTE V. SEXTON
APPEALS - Final and Appealable
2004-CA-002582
NOT PUBLISHED 
DISMISSING (JOHNSON)
DATE: 2/17/2006

The CAs have jurisdiction only over final orders or judgments of circuit courts.  Here, several parties were arguing as to whom should be considered a de facto custodian of an orphaned child.  The trial court made a judgment on that issue and included within it the "magic" final and appealable language.  CAs held that this language alone does not constitute finality, that the CA must determine for itself whether an order or judgment is truly ripe for review, and that the issue of custodianship was merely an intermediate issue ancillary to the parties' various custody claims. Appeal dismissed.

SMITH V. CREWS
CIVIL PROCEDURE - Constitutional Challenges and notice to Attorney General
2004-CA-001178
NOT PUBLISHED  / AFFIRMING (BUCKINGHAM)
DATE: 2/17/2006

KRS 418.075 mandates that in any proceeding involving the validity of a statute or the constitutional validity of a statute, the Attorney General shall be served with a copy of the petition and given an opportunity to be heard.  Since the inmate who filed this petition for a declaration of rights failed to notice the AG, the CAs declined to rule on the constitutionality of the statutes he argued were not so.     

WILLIAMS V. FARMERS INSURANCE EXCHANGE
INSURANCE - Exclusion (water damaged to house from ruptured liner)
2004-CA-002554
NOT PUBLISHED   
AFFIRMING (TACKETT)
DATE: 2/17/2006

COA affirmed declaratory judgment action to determine whether homeowner’s insurance policy covered water damage to his house resulting from the rupture of a swimming pool liner.  Homeowner contended the rupture should be regarded as a covered event, and thus the exclusion for water damage in the policy should not apply.  COA disagreed.

MOTORISTS MUTUAL INS. CO. V. HOWARD
INSURANCE - Years of protracted litigation and estoppel to deny coverage risked punitives
TORTS - Insurance Bad Faith (punitive damages)
2004-CA-001174
NOT PUBLISHED  / AFFIRMING (BARBER; W/JOHNSON FILING SEP. DISSENT)
DATE: 2/17/2006

CA affirms jury verdict in favor of insured in bad faith action. (Shelby Cir. Ct., Hon. William F. Stewart, judge, presiding).

The facts of the case date back to 1991. Insured's auto policy had lapsed for nonpayment. She sent a check on advice of her local agent, which was received and cashed. Insured assumed her policy was in effect. Some weeks later, insurer sent a refund check to the agent with a notice of no coverage; the insurer sent nothing to the insured. The agent forwarded the check and letter to the insured, but it was not received before an accident occurred. Insurer denied coverage and refused to cooperate with defense counsel for 6 years as the case wound its way through Kentucky courts. The S.Ct. ultimately held in 1997 that the insurer was estopped by its actions from denying coverage and that the insured was covered as a matter of law and that this decision bound all parties. The bad faith claim was remanded; a jury verdict of $425K was returned.

On appeal, insurer tried to argue the issue already decided by the S.Ct., i.e., that coverage existed. CA held that punitives and compensatories were properly claimed and awarded.

CAUDILL, DMD   V. KENTUCKY BOARD OF DENTISTRY
PROFESSIONS -  Dentists; Licensure (Alford plea constitutes criminal conviction)
2004-CA-001595
NOT PUBLISHED  / AFFIRMING (VANMETER)
DATE: 2/17/2006

B450 PROPERTIES, LLC  V. EAP CONCEPTS, INC.
PROPERTY - Rental Agreement
2004-CA-002229
NOT PUBLISHED
AFFIRMING (MINTON)
DATE: 2/17/2006

Stranger to lease not obligated to agreement he is not a  party.

POIRIER, M.D. V. OUR LADY OF BELLEFONTE HOSPITAL, INC.
TORTS - Defenses (Immunity of members on hospital review board ); Findings of administrative review board
2004-CA-002335
NOT PUBLISHED   
AFFIRMING (BARBER)
DATE: 2/17/2006

Affirmed trial court's dismissal of doctor's complaint against hospital peer review board.  The law provides that members of a hospital review board are immune from claims for monetary damages by the Health Care Quality Improvement Act of 1986, 42 U.S.C Section 11111 if the action taken by the board is reasonable, and a fair hearing  is provided to the affected physician. Meyers v. Columbia/HCA Health Care Corp., 341 F.3d 461 (6th Cir. 2003).

The findings of an administrative body cannot be set aside unless the evidence presented by the plaintiff is so persuasive that the determination must be made in favor of the plaintiff. Kentucky Unemployment Insurance Commission v. Murphy, 539 S.W.2d 293, 294 (Ky. 1976).

VANNOVER V. VANNOVER
WILLS, TRUSTS, AND PROBATE - Fraudulent transfers and survivor's marital rights
2004-CA-001475
NOT PUBLISHED  / REVERSING AND REMANDING (EMBERTON)
DATE: 2/17/2006

Reversed and remanded lower court decision that certain transfers of funds by her husband shortly before his death did not constitute fraud on her dower interest in that property. The undisputed facts of this case fall within the purview of well-established caselaw holding that such transfers raise a rebuttable presumption of a fraud on the survivor’s marital rights.  It is clear that the trial court failed to give effect to the long-standing law of this Commonwealth that the non-probate transfer of the bulk or a substantial portion of the spouse’s property, which has the effect of diminishing the surviving spouse’s share, raises a rebuttable presumption of fraud on the survivor’s marital rights.

Thanks to  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger,  Stephen Keller,  Bryan Pierce,  Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's CIVIL appellate decisions. 

Civil Decisions: Feb. 10, 2006 Court of Appeals

CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)

COURT OF APPEALS - Feb. 10, 2006

PUBLISHED:

UNITED STRUCTURAL SYSTEMS, LTC V. ERI FALLS, INC.
CIVIL - Indemnity
2004-CA-002103
PUBLISHED   
VACATING AND REMANDING (COMBS)
Date: 2/10/2006 MODIFIED BUT ORIGINALLY RENDERED ON 11/23/2005

This decision was originally rendered on 11/9/2006.  A finding of liability to the injured party is required before indemnity can arise at common law.

TOLER V. RAPID AMERICAN
CIVIL PROCEDURE - Dismissal for lack of prosecution
2004-CA-002281
VACATING AND REMANDING [HENRY, J.]
Published 
Date: 2/10/2006

COA vacated and remanded dismissal for lack of prosecution.  The two year delay was based on the Jefferson County Asbestos Master Order, and the record was unclear whether the Ward v. Housman, 809 S.W. 2d 717 (Ky. App., 1991) factors were properly considered.  See also, Scarborough v. Eubanks, 747 F.2d 871 (3d. Cir, 1984).

The following factors should be considered: (1) the extent of the party’s personal responsibility; (2) the history of dilatoriness; (3)  whether the attorney’s conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions.

'The responsibility to make such findings as are set forth in Ward before dismissing a case with prejudice falls solely upon the trial court. Accordingly, even though we understand and sympathize with the court’s desire to move the cases on its docket along in a timely and expeditious manner, we find ourselves compelled to vacate its orders as to dismissal here and to remand this action for further consideration in light of Ward. In doing so, we express no view as to whether dismissal with prejudice will ultimately be merited.'

BROCKMAN (LAVIT)  V. COM. OF KY (JUDGE GEORGE)
CIVIL PROCEDURE - Contempt
2004-CA-000982
Rendered 12/9/2006;
PUBLISHED 2/10/2006
VACATING AND REMANDING (JOHNSON, J.)

Theodore H. Lavit, Real Party In Interest, appealed order entered by Judge Doughlas M. George of the Taylor Circuit Court which held Lavit in contempt of court and fined him $825.001 for his failure to appear in court on November 10, 2003, for the trial of Commonwealth of Kentucky v. Catina Brockman.  Held the trial court erred by finding Lavit in indirect criminal contempt of court without allowing him to have a jury trial.

STEWART V. COM.
EVIDENCE - Opinion Evidence (reputation, bad acts, change of KRE 608)
2004-CA-002573
Published 
REVERSING AND REMANDING (POTTER, J.)
Date: 2/10/2006

Criminal conviction was reversed when trial judge sustained Commonwealth's objection striking opinion evidence as KRE 608 had been changed in 2003 to mirror the Federal Rules of Evidence and the evidence was admissible.  "Because Beve’s (Stewart)  trial occurred in 2004, after the effective date of the amendment to KRE 608(a), the issue of the admissibility of the testimony regarding Brenda’s truthfulness must be determined under the new rule that a witness, if qualified, can express an opinion as to another witness’s character for telling the truth. Although Kentucky has yet to address the scope of KRE 608(a), the advisory notes to the federal rule and cases applying that rule make clear that opinion testimony such as that offered in this case is admissible."

In addition to presenting two alibi witnesses, Beve called Brenda’s mother as a witness to give evidence concerning Brenda’s character for truthfulness. When asked, she responded, “I don’t know if she’ll tell you the truth or not. She might and she might not.” The trial court sustained the Commonwealth’s objection to the response and admonished the jury to disregard the question and the answer. We agree with Beve that the trial court erred when it sustained the Commonwealth’s objection. (emphasis added).

EMBRY V. TURNER
PROPERTY - Real Property (boundary line dispute, nov, new trial)
2004-CA-002040
Published 
AFFIRMING (HENRY, J.)
Date: 2/10/2006

This appeal arose from a boundary line dispute (aka the 'fence') in which the Turners prevailed with the Embrys filing a motion for new trial and judgment NOV.  The judge granted the new trial motion (one year later!), and then set aside the new trial order after the Turners so filed their own motion. (Confuses yet?)   In setting aside the order for a new trial and reinstating the trial verdict, the judge admitted in his order that he was only trying to get the litigants to settle the matter.  COA took the trial judge (Ronnie C. Dortch) to task for this misapplication of the rules.

Here is the trial judge's acknowledgement of same in his order setting aside the new trial order.  Emphasis is from the opinion of the COA.

This matter was tried before a Jury in Butler Circuit Court and the Jury returned a verdict in favor of Defendant on January 28, 2002. Prior to this matter being tried, this Court had required the Plaintiff and Defendant to attempt to settle this matter on more than one occasion. This Court had always felt that, for various reasons, this is a matter that should have been settled without the necessity of trial; however, the parties were unable settle [sic] the matter with the resultant jury trial. Thereafter, on February 11, 2003, this Court entered its Order sustaining the Plaintiff’s motion for a new trial but overruling the Plaintiff’s motion for a judgment notwithstanding the verdict. Candidly, this Court issued its Order for a new trial simply to allow the parties an additional chance to settle the case without the necessity of an appeal, with the parties incurring additional attorneys’ fees, etc. even at that point in the litigation. This Court felt that the  parties could and should be able to settle this matter but this Court was wrong. Therefore, this Court finds that it was in error when it sustained the Plaintiff’s motion for a new trial and it is therefore this Court’s prerogative to correct its earlier error. (Emphasis added by COA in their opinion).

The first issue addressed was 'minor' in that "the grant of a new trial under CR1 59.01 terminates the running of time for appeal. CR 73.02(1)(e).  In this case there was no new trial and therefore no new final judgment from which to appeal.  Nevertheless, the COA was satisfied that the court continued to have jurisdiction to enter an order setting aside its prior order granting a new trial, as was done here.  Thus, the appeal in this case was timely filed.

The next issue was 'major' after addressing the 'procedural anomalies' was the denial of the new trial motion.  In undertaking the analysis of the trial judge’s eventual decision not to allow a new trial here, the COA "must be mindful that the decision is presumptively correct, and that we cannot reverse unless it was clearly erroneous. McVey v. Berman, 836 S.W.2d 445, 448 (Ky.App. 1992) . . .; see also Prater v. Arnett, 648 S.W.2d 82, 86 (Ky.App. 1983). . . ."

In affirming the the denial of the new trial motion, the COA rejected these issues raised by the losing party - evidence not substantial and the credibility of an expert was question (rejected since function of jury is to determine questions of credibility and issues of fact where the evidence is conflicting, Woods v. Asher, 324 S.W.2d 809 (Ky., 1959));  verdict was contrary to the law (reject the loser's arguments on 'agreed boundary line' which would have allowed for parol agreements to establish the property line and which was premised on estoppel). 

The three cases addressed on the agreed boundary line issue are:  Faulkner v. Lloyd, 253 S.W.2d 972 (Ky. 1952); Redman v. Redman, 240 S.W.2d 553 (Ky. 1951); and Wolf v. Harper, 313 Ky. 688, 233 S.W.2d 409 (1950).

In addressing the impropriety of the trial judges actions, the COA stated the trial judges "interference was inappropriate at best and injudicious at worst."

Finally, we must address the major peculiarity present  in this case – the trial judge’s grant of a new trial upon grounds that he ultimately admitted that he fabricated in an effort to coerce a  settlement. It is one thing for a judge to mediate settlement of a case prior to trial, which may be done if ethical requirements are scrupulously observed. See SCR3 4.300 Canon 3 B(7)(d); Home Depot U.S.A., Inc. v. Saul Subsidiary I Ltd. Partnership, 159 S.W.3d 339, 341 (Ky.App. 2004). It is quite another to set aside an otherwise valid jury verdict for reasons of personal belief or bias. The overturning of a jury verdict in favor of a new trial is a matter of the utmost seriousness, and should only occur when the specific criteria set forth in CR 59.01 are carefully considered and met.   To flout those criteria due to one’s personal belief about a case is incompatible with our system of justice. Such conduct tends to erode public confidence in the fairness and  impartiality of our court system. Nearly four years have passed since a Butler County jury unanimously decided this case in favor of the appellees. At least two years of delay in bringing this case to its ultimate conclusion was caused by the trial judge’s improper – even if well-intentioned - intervention. His interference was inappropriate at best and injudicious at worst.

NOT PUBLISHED:

ANGEL V. COM.
CRIMINAL - RCr 11.42 Denied
2005-CA-000819
NOT PUBLISHED 
AFFIRMING (JOHNSON)
Date: 2/10/2006

SHIFERAW V. MILLS
APPEALS - Error not timely raised or addressed in lower court re proper service of motion
2004-CA-002171
NOT PUBLISHED   
Date: 2/10/2006

HARLAN COUNTY BOARD OF ED. V. INTERNATIONAL UNION
CIVIL - ADR;  Enforcement of arbitor's decision
2004-CA-002175
NOT PUBLISHED   
AFFIRMING (JOHNSON)
Date: 2/10/2006

Affirmed lower court and arbitor's award as UMWA was entitled to judgment as a matter of law.  Courts in general “have no business weighing the merits of the grievance, considering whether there is equity in a particular claim.”

WELCH V. EDDS, M.D.
CIVIL - STATUTE OF LIMITATIONS - Discovery Rule in Medical Negligence
2004-CA-002255
NOT PUBLISHED 
VACATING AND REMANDING (KNOPF)
Date: 2/10/2006

Plaintiff/patient was entitled to rely on what her physicians told her, and CJOA did not believe she should have discovered the false statements any sooner. Her claim based on the lack of informed consent is thus not barred by the statute of limitations.

However, the COA was not willing to go beyond that issue.  The parties did not treat this as an informed-consent case, and  did not present the trial court with the appropriate sources for determining whether the plaintiff/patient had raised material issues of fact on all the elements of her cause of action.  They have raised the informed-consent issue on appeal, but as a Court of review it is  generally unwilling to address matters the trial court has not had an opportunity to rule upon.  These are important and complex issues deserving of a fully developed record and the summary judgment is thus vacated and the matter remanded in light of the law of informed consent.

STEELE VL. MCDONALD
CIVIL PROCEDURE - Writ of Prohibition (denied)
2005-CA-002038
NOT PUBLISHED   
OPINION AND ORDER DENYING PETITION FOR WRIT OF PROHIBITION (KNOPF)
Date: 2/10/2006

CA denies petition for writ of prohibition preventing DNA testing of petitioner's children, finding that TC was justified in ordering this type of physical examination.  [John Hamlet]

FERRELL V. RUDD
CIVIL PROCEDURE - Costs to Prevailing Party
2005-CA-000530
NOT PUBLISHED   
AFFIRMING IN PART, VACATING IN PART, AND REMANDING (DYCHE)
Date: 2/10/2006

As a general rule, attorney fees and the costs of retaining an expert witness are not recoverable absent contractual or statutory authority, even in cases where a party is successful in litigation that was necessitated by the negligence of a fiduciary. 

CR 54.04 deals with the recovery of costs.  A prevailing party is to serve the party liable for costs with an itemized accounting of the expenses incurred in the action, and the liable party is also required to be given an opportunity to review and object to the bill of costs.  Because the trial court did not follow this procedure in awarding costs, the CAs vacated and remanded that portion of the judgment relating to costs.

LOVELACE V. HOLIDAY INN HURSTBOURNE
CIVIL PROCEDURE - Judgment NOV
2004-CA-001412
NOT PUBLISHED   
REVERSING AND REMANDING; MINTON
Date: 2/10/2006

The trial court granted j.n.o.v. to Holiday Inn Hurstbourne, setting aside a substantial jury verdict awarded to Richard Lovelace on his personal injury claim against the hotel  for a slip and fall jury verdict awarding plaintiff  $887,379.86 (subject to 15 per cent comparative).  Jefferson Circuit Court trial judge Thomas Wine was reversed after he granted judgment NOV (notwithstanding the verdict). 

COA  reversed the j.n.o.v. and remanded the case back to the circuit court with direction to reinstate the original judgment because the COA held that Lovelace presented proof at trial sufficient to create a rebuttable presumption of Holiday Inn’s liability, which precluded entry of the j.n.o.v.

A trial court may not enter judgment notwithstanding the verdict (j.n.o.v.) unless there is a complete absence of proof on a material issue or there is no dispute on issues of fact upon which reasonable jurors could differ. I

NOTE:  Judge Thomas Wine who was reversed in this decision is a candidate for Court of Appeals.

BARRISTER FARM LLC V. UPSON DOWN FARMS, INC.
CIVIL PROCEDURE - Summary Judgment (No genuine issue of material fact in hay storage case)
2004-CA-002651
NOT PUBLISHED   
AFFIRMING (SCHRODER)
Date: 2/10/2006

MERRICK V. COM.
EVIDENCE - Opinions ('collective facts rule' and lay testimony)
2002-CA-002034
NOT PUBLISHED   AFFIRMING (GUIDUGLI)
Date: 2/10/2006

This was a criminal case involving testimony by avowable that the victim was 'out of control'.  COA did not buy it, and affirmed conviction and exclusion of the opinion.   A nonexpert witness may express an opinion which is rationally based on the perception of the witness and helpful to a determination of a fact in issue. KRE 701.  A corollary to this rule is the concept known as the “collective facts rule,” which permits a lay witness to resort to a conclusion or an opinion to describe an observed phenomenon where there exists no other feasible alternative by which to  communicate that observation to the trier of fact. See R. Lawson, The Kentucky Evidence  Law Handbook § 6.05, at 275-76 (3d ed. Michie 1993).

CRAWFORD V. MARTIN
PROPERTY - Leases
2003-CA-002494
NOT PUBLISHED   
AFFIRMING IN PART, REVERSING AND REMANDING IN PART [TAYLOR]
Date: 2/10/2006

Complicated case involving default of payment on sublease.  Appeal on issue of whether a lease was mutually terminated or not.  Remanded on that issue alone. 

BRINKLEY V. WILSON
PROPERTY - Real Property (quasi-easement)
2005-CA-000892
NOT PUBLISHED   
AFFIRMING (GUIDUGLI)
Date: 2/10/2006

CA denies appeal denying Brinkley either a prescriptive or quasi easement over parcel.

MIFFLIN V. MIFFLIN
WILLS, ESTATES, PROBATE -
2002-CA-000225
NOT PUBLISHED   (GUIDUGLI)
REVERSING AND REMANDING
Date: 2/10/2006

This case was before the Court of Appeals following a remand by the Kentucky Supreme Court. The Supreme Court addressed a procedural issue and instructed the Court of Appeals to consider the appeal despite the records’ inclusion of only 28 seconds of the videotaped trial and 3 pages of testimony. It was up to the appellee to designate additional portions of the record. After summarizing the resolution of that procedural issue, the Court held that the Circuit Court had erred in calculating the damages. While sympathizing with the Circuit Court’s difficulty, the Court of Appeals remanded with a suggested strategy for the calculation. The Court of Appeals noted that the difficulty rose in part from incomplete record-keeping during the time that the family agreed on matters. The case thus serves as a reminder of the important role of a skilled, competent fiduciary even when it appears that the estate will be a harmonious one.

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.

Civil (TIPs) Decisions: Feb. 3, 2006 Court of Appeasl

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

CA affirms dismissal of South Louisville Community Ministries' contract claim against Anthem Health Plans. SLCM claimed that Anthem breached a contract when it refused to provide a PPO at an erroneously quoted rate. HELD: Rate quote is not an offer to contract that SLCM accepted by submitting an insurance application; the application is the offer that Anthem was free to reject.  [John Hamlet] 

 

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. 

Civil Decisions (TIPs): Jan. 27, 2006 Court of Appeals

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.

ERISA: Some Non-Kentucky Research Assistance

From the Erisa Benefits and Disability Blog is a great reference to another blog's tips:

Great Resource for ERISA Research and Updates

I recently game across The Employee Benefits Legal Resource Site maintained by Carol Calhoun. It contains a well organized resource library with a number of useful tools for attorneys handling ERISA cases. It includes, among other things, a cross-reference chart... [click on heading for entire posting]

Civil Decisions (TIPs): SCOKY (Jan. 19, 2006) and COA (Jan. 2006)

CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
SUPREME COURT - Jan. 19, 2006
COURT OF APPEALS - Jan. 203, 2006

PUBLISHED:

STRATTON  V. KENTUCKY CABINET FOR FAMILIES AND CHILDREN
FAMILY LAW - GOVERNMENTAL IMMUNITY-DEATH OF ABUSED CHILD NOT IN CUSTODY
TORTS - Governmental Immunity
2003-SC-000580-DG.pdf
Published  Affirming Scott, J. Date: 1/19/2006

Investigation by social workers into alleged abuse are “simply discretionary, and therefore, there was no waiver of immunity”, affirming the Court of Appeals which upheld the Board of Claims’ dismissal of an action taken by the estate of the deceased minor child who had been murdered by her mother’s live-in boyfriend.  The Franklin Circuit Court of Appeals found that the duties of the Cabinet were ministerial and that governmental immunity was waived and the Court of Appeals reversed that decision.   Administrative regulations do outline the types of individuals to be interviewed when an allegation of child abuse is made.  Several allegations of abuse had been made concerning this child and at one point the child was removed from her mother’s custody.  Even at the time of the removal, however, no evidence of the actual abuser was found.  The mother cooperated with the Cabinet’s requirements and custody was returned to her.  After the return, more allegations of abuse were made to the Cabinet but these allegations included information from the child that her injuries were the results of accidents; when the regular case worker did visit two day after the last report, on a regularly scheduled visit, he limited his interviews to the child and her natural mother, both of whom claimed the injuries were accidentally inflicted by a neighbor child during play. The social worker’s visit was on May 17, 1994, and the child was murdered four days later.  The very first physical abuse, resulting in the temporary removal from the mother, was February 11, 1994.   The Court of Appeals opinion explains that the first decision is to determine whether investigation of child abuse is ministerial (applying routine duties) in which the agency has no discretion or discretionary (involving policy-making decisions and significant judgment).  Discretionary acts cannot be a basis for recovery under the Board of Claims Act.  Which witnesses to interview, which witnesses to believe, interpreting the information received, etcetera,  are acts of Cabinet social workers which require significant judgment and discretion.  The Franklin Court of Appeals had relied on the case of Collins v Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122 (Ky. 1999).  The Supreme Court distinguished Collins  which concerned the death of a child who drowned in a flooded drainage culvert because the culvert was too small to handle the expected rain run-off and found the negligent performance of  Natural Resources actionable under the Board of Claims Act; the majority in that case said that the inspection of drainage culverts to see if they conform to regulations would only require mathematical engineering calculations and no statutory interpretation, discretionary judgment or policy-making decisions.

BAKER V. JONES
Government - Open Records Statute (Inadvertent Disclosure, Waiver of exemption)
2004-CA-002126
Published   
Affirming (Vanmeter, Presiding Judge)
Date: 1/20/2006

This appeal dealt with an Open Records Request for emails, memos, and other documents pertaining to the legal bills of attorney Steven Catron to the City of Bowling Green which was identified in a local newspaper article.  When part of the request was denied based upon the vagueness of the request and the confidentiality of the emails drafted between members of the council etc., Baker filed suit.  COA held records of a public agency which are preliminary in nature are not required to be disclosed under the Kentucky Open Records Act, and the inadvertent or unauthorized disclosure of emails to a local newspaper reporter did not constitute a waiver of the disclosure exemption. Affirmed the judgment of the Warren Circuit Court.

NOT PUBLISHED:

ADKINS V. PATTON
CIVIL PROCEDURE - CR 60.02 (mistake)
2004-CA-002471
Not Published   
Date: 1/20/2006

When Paul's wife Judi Patton went to Court over a disputed parcel of land, surprise, surprise, she won the case! 

The opposing party claimed some two years after the fact that she had not received a copy of the judgment, though the Court's docket and distribution list showed it did go to her counsel.  She sought to have the Court re-enter the judgment under CR 60.02.  The CAs held that rule would not apply in this case, especially since (1) appellant had waited over two years to bring the matter up (CR 60.02 provides for a one-year limitation); and (2) that her attorney did find a copy of the judgment in some old papers of one of his paralegals sometime after receiving a note from the Court that final judgment had been entered.  The CAs focused a bit on the differences between using 60.02(a) and (f) (mistake v. extraordinary & compelling equities).

WHEELER V. EVANS
PROPERTY - Real Property (Boundary dispute, encroachment, estoppel)
2004-CA-001272
Not Published 
Date: 1/20/2006

Wheelers claimed Evan’s successor’s in interest where encroaching.  TC found against Wheelers.  Wheelers appealed.  COA finds that Wheelers joined in deed that granted land to Evan’s and, thus, argument is precluded by estoppel.

BURTON V. OUR LADY OF BELLEFONTE HOSPITAL
TORTS - PREMISES LIABILITY - 
2004-CA-002368
Not Published 
Date: 1/20/2006

CA reverses and remands dismissal of slip-and-fall claim against hospital.

Appellant was driven to hospital by daughter, who parked in a marked no parking area near a driveway leading to the ER. There was snow and ice on the ground. Appellant exited the vehicle, slipped, a fell over a 13" section of retaining wall, falling to the ground on the other side 4' below. He suffered a broken neck and other serious injuries. Appellant sued alleging: 1) negligent removal of snow and ice; 2) negligent design of the driveway; and 3) failure to install a railing on the retaining wall.  The TC tersely dismissed on SJ holding it "indisputable that [the hospital] owed no duty to [the appellant] to insure the safety of the no-parking zone as regards pedestrians or inclement weather."

CA reverses and remands, holding that the record showed that invitees regularly parked in the no parking zone and the hospital was aware of it and could reasonably foresee this happening. Also, TC failed to address the negligent design/construction and failure to install railing claims sufficiently. 

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.

Civil Decisions: Court of Appeals - Jan. 13, 2006

CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Jan. 13, 2006

PUBLISHED:

COM. V. MORRIS
BOARD OF CLAIMS - Jurisdiction (settlement and release of employee)
2005-CA-000370
PUBLISHED   
REVERSING
BUCKINGHAM
DATE:  1/13/2006

A release of the tortfeasor (cabinet employees) for personal injuries constitutes a release of the government in a board of claims action.  The cabinet  was relieved of any liability in connection with the claims due to the claimants having executed releases to its employee, Lancaster. Citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67 (Ky.App. 1989).  The claimants’ settlements with Lancaster inured to the benefit of the employer, the Labor Cabinet, notwithstanding attempts by the claimants in their releases to reserve the right to file claims against the Labor Cabinet.

FORD V. RATLIFF
CIVIL - INSURANCE (Settlement, release, assignment)
2004-CA-000022 PUBLISHED 
AFFIRMING
VANMETER
DATE:  1/13/2006

CA affirms TC dismissal of direct action against insurance company, citing release of tortfeasor.

In this auto collision case, plaintiff settled with tortfeasor, signing a settlement agreement and release (in exchange for policy limits under a Kentucky Farm Bureau policy) that attempted to leave open the option to sue general liability insurer Scottsdale Insurance. An agreed order dismissing "any and all" claims against the tortfeasors, with prejudice, was entered. After, plaintiff amended complaint to include general liability carrier. Carrier moved to dismiss, arguing that, under Kentucky law, plaintiff must file against tortfeasor, not directly against his carrier. Plaintiff claimed he had an executed assignment of rights, but was unable to produce it. Plaintiff moved the court to require plaintiff to sign a new one, which it declined, citing the language of the agreement. Plaintiff cannot proceed against the insurer directly; dismissal affirmed.

NOT PUBLISHED:

GREENE V. CHIPPENDALE SQUARE ASSOCIATION, INC.
APPEALS - Timeliness (no extensions per CR 60.02 to set aside, etc.)
2004-CA-000202 NOT PUBLISHED 
DATE:  1/13/2006

CAs noted plaintiff was attempting to address issues in her 60.02 motion that could have been heard in earlier motion for summary judgment, which is impermissible under CR 73.02.  That rule states that parties may not resort to 60.02 to gain an additional extension of time to prevent the application of 73.02, i.e., 30 days to appeal from a judgment.  CAs also note that issues must be preserved for appellate consideration and that 60.02 rulings will not be disturbed unless clearly erroneous.

HUTCHISON V. COWAN
CIVIL PROCEDURE - Summary Judgment (opposing evidence)
2004-CA-002279 NOT PUBLISHED 
DATE:  1/13/2006

Wayne Circuit Court, Hon. Vernon Miniard, Jr.

 

Hutchinson appealed TC's entry of SJ in a dispute between abutting landowners over the location of the boundary line. North side of property was owned by Hutchinson while south side was owned by the Cowan's who had obtained the property through a foreclosure proceeding instituted by the bank against the prior owner (Hutchinson's son to whom the property had been deeded). As part of the sale, the bank had the parcel of property surveyed. This survey revealed a boundary line that was more favorable to the south parcel that the bank ultimately sold to the Cowan's.

 

The COA upheld the entry of SJ, finding that Hutchinson had failed to identify what evidence he could have provided that would arguably have required a trial. The boundary line contained in the deed granting the south property to the son made reference to the line as determined in an earlier lawsuit, but the TC found a lack of evidence to this effect and the COA agreed.

CASE V. ISRATEX, INC.
CONTRACTS - Failure of consideration
2004-CA-002095 NOT PUBLISHED 
DATE:  1/13/2006

The trial court did not  improperly grant partial summary judgment on the failure of consideration claim because of an improper reliance on the forcible detainer proceeding. In this case.  It is clear that the trial court did not rely on the prior proceeding so as to give it a res judicata effect, but merely reached the same conclusion that the November agreement constituted a sale.  Neither failure of consideration nor default upon review of the record. Summary judgment on this issue was proper.

PRESTON V. DEPT. OF VOCATIONAL REHAB.
EMPLOYMENT - Government
2004-CA-001716 NOT PUBLISHED 
DATE:  1/13/2006

Affirmed Kentucky Personnel Board's decision for suspension as applied the law correctly and substantial evidence to support decision.

LEWIS V. C & C ENTERPRISES
EVIDENCE - Res Ipsa Loquitor
2004-CA-001936 NOT PUBLISHED 
DATE:  1/13/2006

CA affirms jury verdict for the defense in this carnival ride negligence case. (Jefferson Cir. Ct., Hon. Geoffrey P. Morris, Judge, presiding).

Child's finger was severely injured on ride that had been cited as needed repair, but OK for operation. Appellants argue the TC erred in failing to instruct the jury on res ipsa loquitur per their tendered instruction. CA holds that, as res ipsa loquitur is an evidentiary doctrine creating a rebuttable presumption, appellants could request its application to avoid or win a directed verdict, but not to instruct the jury.

MOLLETT V. WRIGHT and GRANGE MUTUAL INS. CO.
INSURANCE - Coverage (underinsured motorist benefits, resident relative)
2004-CA-001797 NOT PUBLISHED 
DATE:  1/13/2006

Mother was driving son's car with permission when injured by third party.  Settled with tortfeasor  for policy limits and made claim for UIM against son's insurer (Grange).  Grange's definition of insured for UIM benefits was restrictive and only included "you or any family member", and family member must live in the household.  Since mother did not live with her son, the COA held the UIM coverage was not available to the mother.

Comment.  Looks like Grange is following a trend started by Safe Auto of including non-standard exclusions in policies.  Most ISO policies in Kentucky include UIM benefits for those occupying the car (insured's of the second class as referred to in many cases).  This case is not one of exclusion, but one of a restrictive inclusion such that there is no insureds of the second class.  Subtle changes in policy definitions which deny or limit coverage substantially (eg., stacking, single premium, motor cycles) from previous policies should require an affirmative notice by the insurer with a documented acknowledgement by the insured.  However, this stealthy change in expectations does not seem to require confirmation.  This is not published and not binding and not to be cited in any court in this commonwealth.  This panel consisted of Judges Combs, McAnulty, and Johnson.

WILLIAMS V. STURGEON
PROPERTY - Boundary Disputes (clearly erroneous rule)
2003-CA-002281 NOT PUBLISHED 
DATE:  1/13/2006

Neighboring property owners dispute.   Master Commissioner recommends a boundary line after evidentiary hearing and TC adopts.   Williams appeals claiming numerous errors.  In order to overturn verdict, appellant must prove that decision was clearly erroneous and not supported by substantial evidence. CA upholds TC ruling finding that the Master Commissioner relied on substantial evidence, noting that Sturgeon provided testimony from expert surveyor and Williams did not.

MAGINNIS V. COM.
TORTS - Immunity (judges)
2005-CA-000256
NOT PUBLISHED   
DATE:  1/13/2006

McGinnis complains only of actions taken by Judge Horne in his official capacity when the judge, sua sponte, researched his driving record and provided the jury with information showing that he had prior traffic offenses. This was noted as grounds for reversal in the circuit court opinion vacating and remanding the conviction. The COA dismissed the claims against the judge as a  judge is immune for personal liability for acts taken while he has jurisdiction over a case. Vaughn v. Webb, 911 S.W.2d 273, 275 (Ky.App. 1995). Even where such action may be contrary to law, judicial immunity still applies. City of Louisville v. Bergel, 610 S.W.2d 292, 293 (Ky. 1980).

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.

Civil Decisions: Court of Appeals - Jan. 6, 2006

CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Jan. 6, 2006

PUBLISHED DECISIONS.

COMBS V. ALBERT KAHN & ASSOCIATES, INC.
CIVIL PROCEDURE - Statute of limitations (asbestos)
2004-CA-002178
Published  Affirming
Minton
Date: 1/6/2006

Combs appeals the TC's grant of SJ to Defendants, Albert Kahn and Turner Construction, due to expiration of statute of limitations. Combs had worked at GE's Appliance Park from 1973 to 1999, and was diagnosed with asbestosis in January 2000. He filed suit on July 27, 2000, alleging he was exposed to asbestos products at the Park and named a number of manufacturers and distributors as defendants. After being diagnosed with lung cancer in March 2003, Combs sought to amend his Complaint in April 2003 to add this to his personal injury claim and at the same time sought to add 2 new defendants, Kahn and Turner. Kahn was the architectural firm that designed the Park while Turner was a general contractor during the Park's initial construction. His claims against these defendants were that they negligently specified the use of asbestos products and/or failed to warn workers at the Park of such products' use. After allowing the amendment, the TC agreed with Kahn and Turner that Combs' cause of action against them began to accrue when he was diagnosed with asbestosis in January 2000, and that a 1-year SOL governed his claims.

 

Held: COA agreed with TC that 1-year SOL (KRS 413.140(1)) governed Combs' asbestos-related claims against Kahn and Turner. The COA dismissed the argument that these claims "related back" to the original, timely claims filed against the manufacturer and distributor defendants, as both Kahn and Turner were newly-added defendants not connected with the original defendants. As to when the cause of action began to accrue, the COA also agreed with the TC that January 2000 was the magic date. The COA reasoned that under the discovery rule, Combs first should have discovered that injury occurred from his asbestos exposure in January 2000, and it made no difference that the extent of the injury at that time (asbestosis) is not identical to the ultimate injury for which Combs seeks recovery from Kahn and Turner (lung cancer).  Combs need not fully appreciate the extent of the injury in order for a cause of action to begin to accrue, but rather only that some degree of injury has occurred. The COA recognized the application of this principle to asbestos exposure cases even though asbestosis and lung cancer are separate and distinct diseases that do not necessarily flow from one another. In this regard, Kentucky is a "one-disease" state where the first manifestation of an injury caused by toxic exposure begins a single statutory period rather than a "two-disease" state where a new cause of action accrues with each separate injury discovered. 

 

Among equitable considerations in upholding the TC's ruling, the COA noted that Combs was well aware of his increased risk of developing lung cancer upon being diagnosed with asbestosis, as this was specifically alleged in his original Complaint filed in July 2000. The COA also rejected Combs' argument that the cause of action against Kahn and Turner began to accure on July 19, 2002, the date Combs first learned of these defendants' involvement in the Park's construction, noting that Combs had offered no explanation why this information could not have been learned earlier if reasonable diligence had been employed.

DAVIS  V. DEPT. OF REVENUE OF THE FINANCE AND ADMINISTRATION CAB.
REVENUE AND TAXATION - Out of state bonds and taxability
2004-CA-001940
Published
MINTON - VACATING AND REMANDING
Date: 1/6/2006

Held Kentucky’s tax on the income derived from bonds issued outside Kentucky violates the Commerce Clause of the United States Constitution.

NOT PUBLISHED:

DARPEL V. ARNZEN
CIVIL PROCEDURE - Judgment Nunc Pro Tunc
2003-CA-001411
Not to be Published   
Date: 1/6/2006

Darpel, executor of wife's estate, appealed TC's judgment ordering partition of property held jointly by husband and wife, argung that dissolution decree could not affect wife's right to entire property upon her husband's death, which occurred prior to entry of the decree. While COA agreed with executor's argument, it held that the procedural posture of the case precluded granting him any effective remedy, and therefore affirmed the TC's judgment. The COA questioned the TC's entry of a decree nunc pro tunc, which is designed to record some act of the TC done at a former time that was not carrier into the record rather than to placing into record evidence of judical action that was not actually taken. The COA also noted that this rule cannot be used to enter an order that the TC might or should have made at some earlier time. The TC had held that the entry of the decree operated to terminate the survivorship rights of the wife by deed prior to her husband's death. The COA held, however, that the decree could not divest the wife of her interest in the property that immediately passed to her at the time of her husband's death. Procedurally, the dissolution judgment was now final and the property had already been partitioned and sold with the assets distributed. Thus, the COA was forced to affirm the TC's judgment even though the TC had improperly determined the legal effect of the entry of the dissolution decree.

EASTERN CRANE INC. V. KENTUCKY POWER CO.
CIVIL PROCEDURE - Dismissal for failure to prosecute
2004-CA-001676
Not to be Published
Date: 1/6/2006

CA held no abuse of discretion in trial court's grant of defendant's motion to dismiss for failure to prosecute under CR 41.02(1). CA's standard of review for such a decision is whether the trial court acted arbitrarily, unreasonably, unfairly or without sound legal principles.  Facts of the case revealed that the guidelines in Ward v. Housman, 809 S.W.2d 717 (Ky. App., 1991), which have been listed in the LawWire previously, warranted dismissal.

FOX V . FERNIHOUGH
CIVIL PROCEDURE - Pleadings (amendments, relating back, new parties, and statute of limitations)
2004-CA-001976
Not to be Published 
Date: 1/6/2006

Ron and Josh had an auto accident.  The last day of BRB payments was 1/14/02.  Ron sued Josh's dad Mark on 1/5/04, incorrectly alleging that JOSH, not Mark, was the father and owner of the car.  Mark was an out-of-state resident and was properly served by Ron's serving the KY Sec'y of State.  On 2/13/04, Ron moved to file an amended complaint naming Josh as a defendant.  Josh filed an answer and, later, a motion for summary judgment, arguing the amended complaint fell outside the two year SOL in KRS 304.39-230 and that the amended complaint did not "relate back" under CR 15.03.  The trial court granted summary, and this appeal followed.

 

The CA, noting the amended complaint definitely fell outside the 2 year SOL, looked to determine whether CR 15.03(2)'s notice requirement was satisfied:  an amended complaint adding a party only relates back if the new party received notice of the action within the SOL and knew or should have known of the action but for a mistake in identity of the proper party.  Here, Josh filed an affidavit stating he knew nothing of the action under 2/24/04, undisputed evidence that he had no actual notice of the suit.  Ron countered that actual notice is not necessary.  Halderman v. Sanderson Forklifts Co., Ltd., 818 S.W.2d 270, 273 (Ky. App., 1991), holds that the notice requirement can be satisfied by "actual, informal, imputed, constructive or a combination thereof, within the limitations period."  The trial court declined to find, and the CAs agreed, that the familial relationship between father and son, nor the alleged "business relationship, as owner and permitted driver" sufficed to impute notice.  Nor did the fact that Ron sent a courtesy copy of the amended complaint to Mark's insurance company, which was not a named party, suffice to impute notice to Josh of the suit.  See Gailor v. Alsabi, 990 S.W.2d 597 (Ky., 1999).   

 

CRAWFORD V. NATIONAL CITY BANK OF KENTUCY
CIVIL PROCEDURE - Law of Case
2005-CA-000247
Not to be Published 
Date: 1/6/2006

This was a pro se appeal of a foreclosure and eviction action by Marilyn W. Crawford.  Her first appeal of the lower court's decision was dismissed as untimely, and when the lower court began the eviction proceedings, she filed a second appeal.  The COA noted her status as a pro se litigant, but nonetheless dismissed the appeal noting  that as a result of the opinion and order entered by this Court in the earlier appeal, it was precluded by the law of the case doctrine from reviewing these issues in this subsequent appeal. See Grazini v. Ambrose, 201 Ky. 466, 257 S.W. 21 (1923).

JACKSON V. KY TRANSPORTATION CABINET
EMPLOYMENT LAW -  Resignations
2004-CA-001897
Not to be Published   
Date: 1/6/2006

This appeal stems from a Personnel Board (Board) action involving Steven Jackson (Jackson), and the Transportation Cabinet (Cabinet). Jackson’s employment with the Cabinet ended on July 25, 2001 after twelve years of service. The events leading up to and including July 25, 2001 are in dispute between the parties.

Jackson was issued a letter of suspension dated June 11, 2001 that stated his fifteen-day suspension was to begin June 12, 2001 and end on July 4, 2001.2 Jackson had been suspended on three prior occasions that year and was familiar with the procedure of returning to work at the end of a suspension.

The hearing officer concluded that Jackson’s July 25, 2005 resignation was moot because he could not resign from a position from which he had already been terminated. The finding by the Board that it was the intention of the Cabinet for its resignation to be effective at the close of business July 25, 2001 is not supported by substantial evidence. There was no testimony on this issue received from any witness.

A resignation pursuant to 101 KAR 2:102, Section 9(3) constitutes a penalization requiring appropriate notice be given to the employee in accordance with KRS 18A.095(9). The Board that the Cabinet’s July 25, 2001 letter failed to meet the requirements of KRS 18A.095(9).

MILLER V. CITY OF ANCHORAGE
PROPERTY - Arbitration Dispute Over Real Property (boundary line dispute)
2004-CA-000702
Not to be Published 
Date: 1/6/2006

The Millers make a convoluted argument on appeal, including that the award was obtained by fraud and that it violates public policy, and should therefore be vacated. Anchorage responds that the Millers are not entitled to relief on the grounds they claim, because the applicable statutes do not authorize setting aside an arbitration award for those reasons. The reasons alleged that are specifically authorized grounds for setting aside a reward, Anchorage argues, are not supported by the record. After a review of the record, the COA affirmed the circuit court’s decision.  The Uniform Arbitration Act provides no remedy for a violation of the deadline, and so the court made a determination that no prejudice to the Millers resulted. It was correct to do so, and that the Millers’ objection is a technical one only, which should not result in setting aside the order.

CORNETT V. EVERAGE
PROPERTY - Real Estate (Surface Rights and Mineral Rights)
2004-CA-002338
Not to be Published 
Date: 1/6/2006

COA affirmed as the trial court’s findings of fact are supported by substantial evidence.  Earlier in the proceedings the lower court had determined ownership of the surface rights, and the Cornetts did not dispute that the Everages owned the surface. The Cornetts dispute the mineral rights.  However, the Everages chain of title for the minerals is the same chain of title for the surface. The Cornetts have produced no probative evidence to challenge the Everage’s chain of title or establish that the two estates were ever severed.

PYLES V. WOODS
TORTS - Premises Liability (duties to invitees and dangerous conditions)
2004-CA-001872
Not to be Published 
Date: 1/6/2006

This is an appeal from a summary judgment granted to the Doll family in a civil action stemming from injuries Pyles received when he fell through a decayed hayloft floor in the Doll family’s barn. Held that the Doll family did not breach any duty owed to Pyles, and affirmed the dismissal.

The Doll family did not argue that Pyles was a trespasser into the barn loft. While general negligence law requires the existence of a duty, premises liability law supplies the nature and scope of that duty when dealing with injuries on realty. Thus, the duty the Doll family owed to Pyles is dependent upon the status Pyles occupied as invitee, licensee, or tenant at the time he climbed into the hayloft.

Accordingly, much of the litigation below and the arguments made on appeal concern Pyles’s status at the time of the accident. Pyles argues that he was an invitee at the time of the accident, whereas the Doll family contends that, at best, Pyles was a licensee or a tenant.

Under common law premises liability principles, the duty owed by the premises owner to an invitee is a general duty to exercise ordinary care to keep the premises in a reasonably safe condition and to warn invitees of dangers that are latent, unknown, or not obvious. The owner’s duty to invitees is to discover the existence of dangerous conditions on premises and either correct them or warn of them.

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.

Civil: Who owns the Black Box?

Here is an interesting posting from the Hoosier Lawyer Blog on who owns the black box in your car following the accident or who's property is that anyway?

Car's "Black Box" Information Is Property of Car Owner

Civil TIPs: Court of Appeals - Dec. 29, 2005

CIVIL DECISIONS
TORTS, INSURANCE, PROCEDURE (TIPs)
COA FOR Dec. 29, 2005

PUBLISHED.   None.

NOT PUBLISHED

SMITH V. HOUSING AUTHORITY OF MIDDLESBOROUGH
CIVIL PROCEDURE - Claims Preclusion
2004-CA-002190
Not Published 
Date: 12/29/2005

The CA reverses and remands this retaliatory discharge case containing a direct and a cross-appeal.

This case, and those preceeding it, have lengthy and complex factual histories briefly described as follows. Appellant Smith sued HAM for failure to pay him as an "on-call" employee. Bell Cir. Ct. granted him SJ and awarded $28K+. The CA reversed, holding that there was a factual question as to whether Smith was an "on-call" employee or "subject to call" employee.  On remand, Bell Cir. Ct. granted HAM's motion to dismiss for lack of subject matter jurisdiction. The CA reversed, directing that Smith and co-plaintiff be allowed to proceed. The SC affirmed.

Smith was terminated for allegedly using racial slurs at work. Smith filed a dec action to review the termination; he later amended to include a claim under the Whistleblower act. Both complaints were dismissed. He later filed this action for retaliatory discharge. HAM moved to dismiss, arguing res judicata.  The TC denied this motion. A jury awarded Smith $164K on the discharge claim and $200K on an IIED. HAM filed a motion to vacate, JNOV, new trial, arguing, among other things, claim preclusion. The TC granted JNOV on the IIED claim only. Amended Judgment was entered awarding Smith $164K. Both sides appeal.

CA only addresses the issue of claim preclusion, as it is determinative of the whole case. CA agrees with HAM argument that Smith impermissibly split his common law retaliatory discharge claim after the whistleblower claim was dismissed. The parties and issues were identical and the claim was dismissed on its merits.

KALLOP V. BLOOMFIELD
PROPERTY - Realty (adverse possession)
2004-CA-001539
Not Published
Date: 12/29/2005

Appeal of TC Summary Judgment regarding small parking lot in Winchester, Kentucky,  Confusing the issue was that parcel had been included in both parties chain of title, however, the Kallop’s inclusion was erroneous.  Kallops then argued that they had title by adverse possession because they had exclusively kept and maintained it for the statutory period of time.  CA upheld SJ based on finding that Kallops deed which included parcel also simultaneously provided assignment of lease which made ownership permissive and not hostile.

Thanks to Chad Kessinger, Cherry Hennault, Mike Stevens, Bryan Pierce, and John Hamlet for assisting in digesting our Civil Decisions, to include the TIPS -  torts, insurance and procedure summaries.

Trial Practice: No Pain, No Gain and the Judicial Discounting of Pain and Suffering

The current standard for the proposition that injuries associated with medical bills and treatment do not automatically entitle the claimant to an award of pain and suffering can be found in Miller v. Swift, 42 S.W.3d 599 ( Ky.,2001) ("Because the evidence at trial supported a finding by the jury that Miller did not suffer additional pain as a result of the accident, we find the jury's pain and suffering award legally proper and hold that the trial court acted within its discretion in denying Miller's motion for a new trial.").  Since that decision, no published decision from our appellate courts has disturbed a trial judge's denial of a motion for a new trial based upon such inadequacy of damages.

In the recent decision of Bayless v. Boyer, M.D., 2003-SC-000250-DG, Justice Roach writing for the Kentucky Supreme Court has continued that streak by affirming the Court of Appeals' decision which also affirmed the trial judge's denial of the injured person's motion for a new trial following a jury's award of medicals for surgery that was needed due to a missed diagnosis of a wrist fracture.

This Bayless decision is summarized briefly, as follows:

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

Expert testimony noted that the fracture was evident on the x-rays and  if the ER 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.

Comment: 

There are three major shortcomings in this Court's analysis of 'pain and suffering'.  First, is the willingness to overlook the actual record at trial.  Second, is the failure to understand that more than just pain is involved in pain and suffering.  Third, is that surgery does involve some emotional anguish and concern.

1. Judicial deference and assumptions that the record supports the trial judge's decision.
   The Bayless opinion reminded us again that an appellate judge can actually consider that which is not before them since there must be factors outside the record that the judge relies upon in denying the motion for a new trial.  This is not fiction but fact - a "new trial depends to a great extent upon factors which may not readily appear in an appellate record."   If the trial judge makes no special findings in his/her order, then those not-in-the-record factors are not before the Court and were not part of the lower court's decision and should not be part of the appellate court's rationale.  Of course, addressing those "factors which may not readily appear in the appellate record" is a formidable, if not impossible task, for any counsel.  A rule of judicial economy or deference should give way to a rule of record.  If the motion for a new trial is denied then state the reasons on the record.  Even simple evidentiary motions by counsel should state the reasons on the record.  No less should be allowed for new trials.
2. Pain and suffering includes anguish and emotional distress.
   Concentration on the 'pain' element of 'pain and suffering' to  the total exclusion of the other components reflect poor analysis.  Bayless made no mention at all of  the mental suffering, anguish and inconvenience associated with a missed diagnosis, delay in treatment, and an unnecessary surgical procedure (albeit sufficiently anesthetized) with its subsequent recovery and therapy.  In real life, every surgical procedure is cause for worry, plus the post-surgical worries and limitations for an additional time period following the failed recuperative time period from the missed diagnosis when the young man in Bayless thought he was well.
   
   Back to the basics might help.
       
   
   • "The words 'pain and suffering' as used in the law are a term of art meaning the 'physical pain and mental suffering' attendant to a personal injury." Department of Education  v. Blevins, 707 S.W.2d 782, 785 (Ky.1986)(emphasis added).
   • Restatement (Second) of Torts. Section 456 provides that:
     "If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for  (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it, and (b) further bodily harm resulting from such emotional disturbance. (emphasis added).
3. Corrective surgery is not a novel concept within our medical or legal system and that fear and worry from surgery (especially unnecessary surgery) has happened before.  My quick research found a corrective surgery appellate decision  following a missed sponge when our Courts at an earlier time recognized "[t]hat appellant suffered some pain, discomfort and mental anguish as a result of that operation is not a matter of pure speculation and under these circumstances the mere fact that the negligence of appellee, [Dr.] Harter, caused appellant to be subjected to an additional surgical procedure, if that finding is made by a jury, is sufficient to support a reasonable recovery for pain and suffering. Laws v. Harter, 534 S.W.2d 449, Ky.,1976.
   
   It should not be beyond the kith and kin of reasonable men and women, that someone who has been advised of all the risks of surgery and signed the detailed consent form and who is about to go under anesthesiology for what should have been an avoidable procedure might/probably/should have some  worry, distress, and anguish as to his future outcome and hope another mistake is not made.  Any competent physician will advise the patient of the risks and concerns with no guaranteed result.  In this case,  the young man did achieve a good result, but only through the passage of time was it finally determined that he had no limitations or increased risk of arthritis (all during which he might very well have had some concerns whether he would return to normal).
4. Finally, after all is said and done.  Is this decision that significant?  Well,  yes and no. 
   
   Yes, because it reflects continued fuzzy and narrow thinking by courts which repeatedly ignore all the elements of pain, suffering, inconvenience, and mental anguish with a trusting regard that there must be some unarticulated and non-documented factors that the trial judge saw and relied upon to justify the deference to that judge's denial of a new trial motion. 
   
   No, because Miller v. Swift has not been extended, and the judicial analysis continues to rely upon the trial record in spite of the appellate court's stated deference to the trial judge.  The appeals courts still list those factors upon which a jury may determine no pain was associated with the medical bills and treatment.
   
   However, Miller and its progeny are really nothing more than an analysis of proximate cause of the damages associated with the injury.   These causation issues are not a pretext for jury nullification, but are a legal requirement to support the verdict as the law requires.
   
   • Was there a pre-existing condition not aggravated by the accident?
   • Was t