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KENTUCKY COURT OF APPEALS CASES –

LawReader Synopsis For:  NOVEMBER 23, 2016

17 Cases –  6 to be Published

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CIVIL CASES & CRIMINAL CASES

1

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2011-CA-001657-MR

TO BE PUBLISHED

 

RESNICK (ROBERT), ET AL.

 VS.

PATTERSON (CHARLES OMER)

OPINION VACATING AND REMANDING

J. LAMBERT (PRESIDING JUDGE)

KRAMER (CONCURS)

AND THOMPSON (DISSENTS AND WILL NOT FILE SEPARATE OPINION)

OPINION

VACATING AND REMANDING

 

** ** ** ** **

 

BEFORE:  KRAMER, CHIEF JUDGE; J. LAMBERT AND THOMPSON, JUDGES.

 

LAMBERT, JUDGE: Robert Resnick initially appealed from an August 2011 order of the Bullitt Circuit Court entering summary judgment in favor of Charles Patterson.  Upon review, this Court affirmed the trial court’s entry of summary judgment in Patterson’s favor.  Resnick filed a motion for discretionary review with the Supreme Court of Kentucky.  By order dated March 13, 2013, the Supreme Court ordered this Court’s opinion be held in abeyance pending final resolution of Miami Management Company v. Bruner, 2012-SC-000318.  On December 10, 2015, the Supreme Court granted Resnick’s motion for discretionary review, vacated our prior opinion, and remanded the case to this Court for consideration in light of Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015); Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013); and Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013).  After consideration of these cases, we vacate the trial court’s August 15, 2011, order granting summary judgment to Patterson and remand for proceedings consistent with this opinion.    

On January 29, 2008, the appellant, Robert Resnick, received a phone call from his mother, Marilyn McQuillen, asking him to help her move out of the residence she shared with her boyfriend, Charles Patterson.  McQuillen had been living with Patterson for approximately four years at that time, but their relationship and living situation appears to have been somewhat tumultuous.  In the days prior to the phone call, McQuillen and Patterson had fought, and McQuillen had left to stay with a friend for a few days. 

On December 19, 2008, Resnick filed suit against Patterson, alleging negligence and failure to warn. On August 15, 2011, the Bullitt Circuit Court entered summary judgment in favor of Patterson, finding that the hole and/or tree stump Resnick tripped on was an open and obvious natural hazard, and, as such, Patterson had no duty to warn Resnick of its existence.  The trial court held that Patterson had no knowledge that Resnick would be on the property and therefore could not anticipate the harm that befell him.  In our initial opinion, we acknowledged the confusion the Supreme Court’s opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), created regarding the interplay of contributory negligence and comparative fault.  Subsequent to our opinion, which was rendered on August 10, 2012, the Supreme Court rendered Shelton v. Kentucky Easter Seals Society, Inc, supra; Dick’s Sporting Goods v. Webb, supra; and Carter v. Bullitt Host, LLC, supra.  We now reexamine whether summary judgment was appropriate in light of the Supreme Court’s more recent analysis of premises liability. 

In McIntosh, the Kentucky Supreme Court held that the primary focus in determining whether a duty exists is on foreseeability

 

The principles stated in the Restatement (Second) of Torts § 343A relate directly to foreseeability and facilitate consideration of the duty issue.  Whether the danger was known and appreciated by the plaintiff, whether the risk was obvious to a person exercising reasonable perception, intelligence, and judgment, and whether there was some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the analysis than merely labeling a particular risk “open and obvious.”  In sum, the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on the defendant, despite its potentially open and obvious nature. 

 

Coln v. City of Savannah, 966 S.W.2d 34, 42 (Tenn. 1998).

 

McIntosh, supra, at 390-91. The Court criticized the open and obvious doctrine. While the mats that Webb stepped on were wet and constituted an open and obvious hazard, when Webb stepped onto tile that she believed to be dry but was not, the danger was not open and obvious anymore, as Webb did not appreciate the danger involved. 

 

The Court reasoned:

Supporters of continued applicability of the Manis rule might argue that the comparative-fault statute only requires allocation of fault among the parties if a party is actually at fault, and that the oil company in Manis and the lodge in Corbin Motor Lodge could not be at fault because they had no duty to the plaintiffs.  But the legal reason for a no-duty finding—plaintiffs were aware of the danger and thus caused their own injuries by proceeding—is nothing more than applying a contributory-negligence standard, which is no longer the law of this state. 471 S.W.3d at 296.

 

Accordingly, we vacate the Bullitt Circuit Court’s August 15, 2011, entry of summary judgment and remand for proceedings consistent with this opinion, specifically for an analysis of the comparative fault, if any, of both Resnick and Patterson and whether summary judgment was appropriate under the circumstances.  Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991).

                         

KRAMER, CHIEF JUDGE, CONCURS.

THOMPSON, JUDGE, DISSENTS

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2

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2014-CA-000012-MR

TO BE PUBLISHED

BURKHEAD

(CARL), JR.

VS.

 DAVIS (LORI),

 ET AL.

OPINION AFFIRMING

NICKELL (PRESIDING JUDGE)

ACREE (CONCURS)

AND TAYLOR (CONCURS)

OPINION – AFFIRMING

** ** ** ** **

 

BEFORE:  ACREE, NICKELL AND TAYLOR, JUDGES.

 

NICKELL, JUDGE:  Carl Burkhead, Jr., has appealed from the Bullitt Circuit Court’s August 20, 2013, judgment entered following a jury trial awarding Marty Davis, Lorie Davis and Yvonne Davis Hoover compensatory and punitive damages on their malicious prosecution claim against him.  The Davises and Hoover have cross-appealed from the same judgment.  Following a careful review of the record, the briefs and the law, we affirm.

Yvonne owned a home located on Ellis Lane in Taylorsville, Kentucky, where her son Marty resided with his wife, Lorie.  Burkhead resided next door to the Davises.  The neighborly relationship started off relatively well when the Davises moved into the residence and remained so for several years.  In 2000, Marty constructed a detached garage on his property.  He and Burkhead spoke often, and no complaint was raised about the construction.  During the building phase, Marty assisted Burkhead in clearing and grading a portion of Burkhead’s lot to construct a similar garage.  In the following years, however, the relationship between the neighbors became more and more acrimonious.  Apparently, the friction began when the Davises refused Burkhead’s request that they pay a portion of the cost of trimming a tree away from overhead power lines—an amount of approximately $20.00.

Following this incident, Burkhead began a series of complaints to government agencies regarding the Davis property, initially alleging the property was overgrown and needed to be “cleaned up.”  Marty was cited by the Bullitt County Planning and Zoning Department and ordered to clean up the property.  Marty took appropriate action to comply.  Burkhead then began complaining an unauthorized automobile repair business was being operated in the garage[1] and overpowering paint fumes and overspray were interfering with his enjoyment of his own property.  These complaints generated several investigations by the Bullitt County Enforcement Division of Solid Waste Management and the Kentucky Department of Environmental Protection.  No violations were noted.

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3

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2014-CA-000984-MR

TO BE PUBLISHED

THOMAS (KIMBERLY)

VS.

THOMAS (LOUIS)

OPINION REVERSING AND REMANDING

NICKELL (PRESIDING JUDGE)

VANMETER (CONCURS)

AND MAZE (CONCURS AND FILES SEPARATE OPINION)

OPINION

REVERSING AND REMANDING

 

** ** ** ** **

 

BEFORE:  MAZE, NICKELL AND VANMETER, JUDGES.

 

NICKELL, JUDGE:  Kimberly Thomas appeals from a judgment and three orders entered by the Hardin Circuit Court.  All four items are associated with a four-day jury trial resulting from a civil complaint filed against her by Louis Thomas, her ex-husband, alleging that more than two decades after their divorce she unduly influenced him to:  execute deeds conveying to her a half-interest in three pieces of property he owned individually; name her as his Attorney-in-Fact pursuant to a Power of Attorney; and, add her name to his single account at the Fort Knox Federal Credit Union from which she transferred more than $21,000 into her own account.  After careful review of the briefs, the law and the record, we reverse and remand for a new trial.

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4

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2014–CA–001199–MR

NOT TO BE PUBLISHED

HOPPIUS (ALANYA)

VS.

METROPOLITAN LIFE INSURANCE COMPANY

OPINION AND ORDER DISMISSING

 D. LAMBERT (PRESIDING JUDGE)

KRAMER (CONCURS)

AND STUMBO (CONCURS)

OPINION AND ORDER – DISMISSING

 BEFORE: D. LAMBERT, KRAMER, AND STUMBO, JUDGES.

D. LAMBERT, JUDGE: This matter is on appeal from an order entered by the Jefferson Circuit Court which set aside a portion of damages awarded to the Appellant, Alanya  Hoppius, upon motion by the Appellant, Metropolitan Life Insurance Company (hereinafter “Met Life”). For the reasons discussed herein, we dismiss the appeal.

 

Hoppius filed suit on September 10, 2012, alleging several causes of action relating to an allegedly wrongful denial of contractual and employment wage payments.

 

Hoppius specified that the claims arise solely under state law, going as far as to assert, in paragraph two of the complaint, that “Plaintiff expressly does not assert any claim arising under federal law” (emphasis in original). Hoppius was an employee of M-I, LLC, whose short-term disability benefits plan was administered by Met Life.

 

Among the claims asserted by Hoppius was a claim for tortious interference with contract, stemming from Met Life’s allegedly intentional inducement of M-I, LLC, to breach its contract by” failing to provide an accurate review of Ms. Hoppius’ short term disability wage payment claim. . ..” In her brief to this Court, Hoppius contends this alleged action prejudiced her ability to receive long term disability benefits.

 

Met Life failed to answer the complaint within 20 days.

 

Notwithstanding this default, Hoppius served Met Life with requests for admissions on December 27, 2012. Among the requests served on Met Life was Request for Admission No. 3, which asked Met Life to admit the following: “Ms. Hoppius’ damages resulting from Met Life’s intentional interference with her short-term disability benefits total $543,175, representing the value of her long-term disability insurance policy insured by Met Life.”

II. ANALYSIS

 

1.     THIS COURT LACKS JURISDICTION TO ENTERTAIN THIS A PPEAL

 

The facts here do not support this Court exercising jurisdiction. The first element is unquestionably fulfilled, as the entry of the final and appealable default judge-

ment occurred on April 22, 2013, and the motion to set it aside was filed on May 7, 2014. However, it is equally beyond question that the trial court did not disrupt the judgment based on extraordinary circumstances from 60.02(f).

 

The trial court’s order clearly reflects that the basis for granting the motion to set aside a portion of the award was the prevention of an inequitable result as

contemplated in CR 60.02(e). Thus, the exception does not apply here, and the general rule controls to preclude this Court from entertaining the appeal at this time.

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5

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2014-CA-001321-MR

NOT TO BE PUBLISHED

HARDIN (LATONYA)

VS.

 HUMANA, INC

 OPINION AFFIRMING

JONES (PRESIDING JUDGE)

ACREE (CONCURS)

 AND CLAYTON (CONCURS)

OPINION – AFFIRMING

** ** ** ** **

BEFORE:  acree, clayton, and jones, JUDGES.

JONES, JUDGE: The Appellant, Latonya Hardin, appeals from the Jefferson Circuit Court’s order granting summary judgment in favor of the Appellee, Humana, Inc.  For the reasons set forth below, we affirm.      

I. Factual and Procedural Background

In 2012, Latonya Hardin (“Hardin”) was a full-time employee of Humana, Inc. (“Humana”).  While employed by Humana, Hardin received a summons from the Administrative Office of the Courts indicating that she had been selected for jury duty in Jefferson County, Kentucky.  After receiving the summons, Hardin notified Humana that she had been selected for jury duty and that she would need “approximately two weeks off.” 

Hardin was “on call” for jury service on both January 19 and 27, 2012.  It is undisputed that being “on call” did not require Hardin to personally report to the courthouse.  It is likewise undisputed that Hardin did not report to work at Humana on either of those dates, having previously informed her supervisor that she would be out for jury duty.                                                            

On February 3, 2012, after reviewing information provided by the court system and discovering that Hardin was not present for jury duty on either January 19 or January 27, 2012, and that she did not report to work on those dates, Humana terminated Hardin for violating its “Critical Offense Policy.”  A little over two years later, on February 10, 2014, Hardin filed suit against Humana.  In her complaint, Hardin alleged that Humana illegally terminated her for missing work for jury duty in violation of KRS[2] 337.415. Humana moved to dismiss the complaint on the basis that it was time-barred.

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6

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2014-CA-001917-MR

NOT TO BE PUBLISHED

HALL (AUBREY)

VS.

 KINZER INVESTMENT REALTY, LTD

OPINION AND ORDER DISMISSING

MAZE (PRESIDING JUDGE)

DIXON (CONCURS)

 AND TAYLOR (CONCURS)

OPINION AND ORDER

DISMISSING

 

** ** ** ** **

 

BEFORE:  DIXON, MAZE, AND TAYLOR, JUDGES.

MAZE, JUDGE:  Appellant, Aubrey Hall, appeals from an order of the Letcher Circuit Court ordering the sale of and distribution of proceeds from undeveloped real property in which Hall owned a share.  Hall argues that the trial court lacked jurisdiction to enter this order because an appeal of the court’s prior Final Judgment and Order of Sale was still pending before this Court.  However, Hall failed to name indispensable parties to this appeal when he filed his notice of appeal.  Hence, we dismiss.

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7

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2015-CA-000538–MR

NOT TO BE PUBLISHED

KERINS (PATRICIA A. DEPALMO), ET AL.

VS.

ESTATE OF ELAINE MARIE BUKOWSKI, ET AL.

OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

STUMBO (PRESIDING JUDGE)

D. LAMBERT (CONCURS)

AND THOMPSON (CONCURS)

OPINION

AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING

 

** ** ** ** **

 

BEFORE:  D. LAMBERT, STUMBO AND THOMPSON, JUDGES.

STUMBO, JUDGE:  Patricia Kerins and Jeanine DePalmo appeal from multiple orders of the Jefferson Circuit Court.  Those orders granted default judgments against Appellants and in favor of Michele Wojtyna on her counterclaims and also granted summary judgment in favor of the Estate of Elaine Marie Bukowski.  We find the trial court did not err in granting the default

judgments, but did err in granting summary judgment.

In 2012, Elaine Bukowski passed away in Louisville, Kentucky without a will and without a spouse, children, living parents, or living siblings.  A probate action was initiated in Jefferson District Court and it was estimated that her estate was worth approximately two million dollars.  Ms. Bukowski had living relatives in the form of aunts, uncles, and cousins.  Those relatives are heirs and are entitled to a portion of her estate.

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8

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2015-CA-000676-MR

TO BE PUBLISHED

LONGSHORE (ALEXANDER)

VS.

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.

OPINION REVERSING AND REMANDING

D. LAMBERT (PRESIDING JUDGE)

DIXON (CONCURS) AND

MAZE (DISSENTS AND FILES A SEPARATE OPINION)

Alexander Longshore comes before this Court seeking reversal of the Campbell Circuit Court’s dismissal of his petition for review of an administrative decision by the Kentucky Unemployment Insurance Commission (hereinafter, “the Commission”).  Longshore argues he substantially complied withthe verification requirements mandated by KRS 341.450(1), or in the alternative, that the trial court erred in denying his motion to file an amended petition.  We find that Longshore exhibited sufficient effort to comply with the statutory provisions to trigger the application of the doctrine of substantial compliance, and therefore reverse.

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9

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2015-CA-000703–MR

NOT TO BE PUBLISHED

GABBARD-WRIGHT (ANGELA MARIE)

VS.

WRIGHT (WILLIAM ALEXANDER)

OPINION AFFIRMING

VANMETER (PRESIDING JUDGE)

COMBS (CONCURS)

AND

THOMPSON (CONCURS)

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  COMBS, THOMPSON AND VANMETER, JUDGES.

VANMETER, JUDGE:  Angela Marie Gabbard-Wright appeals from the Jefferson Circuit Court’s order denying her motion to alter, amend or vacate the court’s January 9, 2015, Findings of Fact, Conclusions of Law, Orders, and Decree of Dissolution of Marriage.  For the following reasons, we affirm.

Angela and William Alexander Wright (“Bill”) were married on November 6, 2010, and filed a petition for dissolution of marriage in December 2013.  While married, the parties resided in a home purchased by Bill prior to the marriage.  After refinancing the home, Bill used the proceeds from the refinancing to pay off a student loan incurred by Angela prior to the marriage.  In the process of distributing marital debt, equity and assets, the trial court awarded the marital home and all debts, mortgages, and expenses associated with the home to Bill.  Both parties filed motions to alter, amend, or vacate the court’s dissolution order, and the court amended its order, reassigning to Angela the portion of the debt on the home used to pay off Angela’s student loan.  From that order, Angela appeals, arguing that the reallocation of the student debt requires a reallocation of other property to be equitable.

     “On appellate review of a trial court’s ruling regarding the classification of marital property, we review de novo because the trial court’s classification of property as marital or non-marital is based on its application of KRS[[3]] 403.190; thus, it is a question of law.”  Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky. App. 2008).  However, the trial court’s distribution of marital property is reviewed under an abuse of discretion standard. 

Herron v. Herron, 573 S.W.2d 342, 344 (Ky. 1978).

Wilder v. Wilder, 294 S.W.3d 449, 452 (Ky. App. 2009).  “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000), citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

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10

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2015-CA-000746-MR

NOT TO BE PUBLISHED

LIBERTY MUTUAL INSURANCE AGENCY

VS.

RAYMOND NELSON INSURANCE AGENCY, INC., ET AL.

OPINION AFFIRMING

ACREE (PRESIDING JUDGE)

J. LAMBERT (CONCURS)

AND THOMPSON (CONCURS)

OPINION AFFIRMING

 

** ** ** ** **

 

BEFORE:  ACREE, J. LAMBERT, AND THOMPSON, JUDGES.

 

ACREE, JUDGE:  Liberty Mutual Insurance Agency appeals from a summary judgment entered by the Perry Circuit Court dismissing its complaint for equitable subrogation against Appellees, Raymond Nelson Insurance Agency, Inc., and Judy Ledford.  Weighing the equities, the circuit court found Liberty was not entitled to equitable subrogation.  We affirm.

 

In late 2011, Hall & Sons Trucking, Inc., contacted insurance agent Judy Ledford, an employee of Raymond Nelson, and requested a comprehensive insurance policy for its fleet of vehicles for the upcoming year.  Ledford submitted a commercial insurance application to Liberty on Hall & Sons’ behalf.[4]  Liberty approved the application and issued a Motor Carrier Policy effective from December 15, 2011 through December 15, 2012.  The policy provided Hall & Sons a maximum of $1 million in liability insurance coverage per unit (tractors or trailers) for each of the separate units insured under the policy.  It also contained the following provision:

c. While a covered “auto” which is a “trailer” is connected to a power unit, this coverage form’s Liability Coverage is:

 

(1) Provided on the same basis, either primary or excess, as the liability coverage provided for the power unit if the power unit is a covered “auto”.

(2) Excess if the power unit is not a covered “auto”.

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11

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2015-CA-000752-MR

TO BE PUBLISHED

 

PUCKETT (TOMMY), ET AL.

VS.

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT

 

OPINION REVERSING AND REMANDING

 

KRAMER (PRESIDING JUDGE)

 

CLAYTON (CONCURS)

AND J. LAMBERT (CONCURS)

OPINION

REVERSING AND REMANDING

 

** ** ** ** **

 

BEFORE:  kramer, chief judge; clayton and j. lambert, JUDGES.

 

KRAMER, CHIEF JUDGE:  Appellants Tommy Puckett and Mario Russo are members of the Lexington-Fayette Urban County Government Policemen’s and Firefighter’s Retirement Fund (“Fund”).  On November 5, 2013, they filed an action pursuant to Kentucky Revised Statute (KRS) 67A.520, alleging the appellee, Lexington-Fayette Urban County Government (LFUCG), had failed to make its mandated 2011 contribution to the Fund.  Their suit sought a court order compelling LFUCG, pursuant to the version of KRS 67A.520 in existence in 2011, to immediately make the full amount of that contribution along with interest at the rate which would have been earned had that sum been invested by the Fund.

LFUCG answered, asserting as an affirmative defense that it actually had “made payments to the Fund which more than offset the alleged deficiency in the 2011 contribution, and which were intended to cover that deficiency.”  Alternatively, it asserted that even if it had failed to make its 2011 contribution, it was a moot point because the appellants could not compel it to make that payment.  As to why, LFUCG argued the current version of KRS 67A.520 entitled it to “subsume” whatever it had failed to contribute in 2011 into the “total unfunded actuarially accrued liability of the fund” (an aspect of the Fund described in KRS 67A.520(2) and discussed further below) and essentially pay whatever it owed over the course of the next 30 years.

LFUCG subsequently moved for summary judgment on the basis of its latter argument.  The circuit court ultimately entered summary judgment in favor of LFUCG on that basis.  This appeal followed.  Upon review, we reverse and remand.

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12

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2015-CA-000857-MR

NOT TO BE PUBLISHED

COWAN (CAITLIN P.)

VS.

COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING

CLAYTON (PRESIDING JUDGE)

STUMBO (CONCURS)

AND VANMETER (CONCURS)

BEFORE:  CLAYTON, STUMBO, AND VANMETER, JUDGES.

 

CLAYTON, JUDGE:  Caitlin P. Cowan appeals from a Madison Circuit Court judgment after entering a plea of guilty conditioned on her right to appeal the trial court’s denial of her motion to suppress evidence.

The following facts were elicited at the suppression hearing:  One evening, at approximately 9:30 p.m. in Berea, Kentucky, Officer Bradley and Officer Johnson observed a car with one headlight out.  The appearance of the car matched a description the police had received two nights before of a car involved in a disturbance, possibly drug-related.  The officers pulled the car over.  When Officer Bradley approached the vehicle, he noticed that the mirror was missing from the driver’s side.  There were two passengers in the car, Cowan, who was sitting in the front passenger seat and Ms. Baker, who was sitting in the back seat behind her.  The driver, Mr. Palmer, told the officer that they were headed for Lexington because Ms. Baker was late for work.  Officer Bradley drew the driver’s attention to the missing mirror and burned-out headlight, questioned the occupants of the vehicle and asked for their identification in order to check for outstanding warrants.  Mr. Palmer refused to allow the officer to search the car, stating that he had borrowed it and did not feel comfortable consenting to a search. 

Officer Bradley then called for a canine unit.  He was told that the Berea Canine Unit was unavailable.  Unbeknownst to Officer Bradley, however, dispatch contacted a canine officer from the Madison County Sheriff’s Department who was able to respond.                 

Meanwhile, Officer Bradley was in his car, checking the identification documents and writing a traffic citation.  While he was thus engaged, the canine officer, Deputy Bol, arrived, about eleven minutes after Officer Bradley made the call to dispatch.  The two officers briefly conversed, and Officer Bradley told Deputy Bol that the driver would not consent to a search.  The dog walked around the vehicle and alerted at two different locations.  A search of the car revealed a baggie of marijuana, a black make-up bag holding a flashlight containing heroin and some items of drug paraphernalia.  Cowan identified the make-up bag as hers.  She was arrested and taken to the police station, where she received a Miranda warning.  She was indicted for one charge of first-degree possession of a controlled substance and possession of drug paraphernalia.

Once Deputy Bol arrived, the stop continued for about eight minutes while the police officers conversed, Officer Bradley completed the traffic citation, and the dog performed the sniff of the car.  This period was within the ten to twenty minutes that Officer Bradley testified was the amount of time it would take an officer to prepare a citation.  “A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.”  Rodriguez v. United States, 135 S. Ct. 1609, 1612, 191 L. Ed. 2d 492 (2015) (citing Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)).  There appears to be no evidence that the stop was prolonged beyond the time reasonably required to complete its initial purpose – the issuance of the traffic citation. 

For the foregoing reasons, the trial court did not err in denying the motion to suppress the evidence, and its final judgment is affirmed. 

                        ALL CONCUR.

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13

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2015-CA-000901-MR

NOT TO BE PUBLISHED

BEASLEY (DANIEL) VS. COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING

CLAYTON (PRESIDING JUDGE)

STUMBO (CONCURS)

AND VANMETER (CONCURS)

OPINION

AFFIRMING

 

** ** ** ** **

 

BEFORE:  CLAYTON, STUMBO, AND VANMETER, JUDGES.

CLAYTON, JUDGE:  Daniel Beasley appeals the denial of his motion pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42.  Beasley raises multiple issues surrounding his juvenile transfer hearing.  Following a recitation of the facts, procedural history, and the relevant standard of review, we address Beasley’s arguments.

Ineffective assistance of counsel claims are reviewed under the standards announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Gall v. Commonwealth, 702 S.W.2d 37, 39 (Ky. 1985) (“This court is bound by the principles established by the Supreme Court of the United States in the case of Strickland . . .”).  Trial courts have been applying these standards for decades, and “[t]here is no reason to doubt that lower courts – now quite experienced with applying Strickland – can effectively and efficiently use its framework to separate specious claims from those with substantial merit.”  Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010).

Under Strickland, a defendant must establish two errors occurred in order to obtain relief:  (1) his counsel’s performance was deficient; and (2) that deficiency resulted in prejudice.  Under the first prong, counsel’s performance is presumed to be reasonable.  Commonwealth v. McGorman, 489 S.W.3d 731, 736 (Ky. 2016) (citing Commonwealth v. Bussell, 226 S.W.3d 93, 103 (Ky. 2007)).  See also Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (“. . . a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]”).  To overcome this presumption, a defendant must prove more than a mere error was made by his counsel, as Strickland establishes that “the proper standard for attorney performance is that of reasonably effective assistance.”  Id. at 687, 104 S.Ct. at 2064.  This standard is objective but is not dependent upon specific guidelines like the ABA Standards for Criminal Justice; instead, the attorney’s performance should be examined under “prevailing professional norms.”  Id. at 688, 104 S.Ct. at 2064.

 “Judicial scrutiny of counsel’s performance must be highly deferential.”  Id. at 689, 104 S.Ct. at 2065.  We must not “second-guess counsel’s assistance” or conclude an unsuccessful defense was unreasonable.  Id.  Counsel’s conduct must be determined in light of all the circumstances to determine if counsel’s performance fell within the “wide

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2015-CA-000980-MR

 

NOT TO BE PUBLISHED

 

RILEY (JEREMY A.) VS. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., ET AL. OPINION AFFIRMING JONES (PRESIDING JUDGE) ACREE (CONCURS) AND CLAYTON (CONCURS)

OPINION

AFFIRMING

 

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BEFORE:  Acree, clayton, and jones, JUDGES.

JONES, JUDGE:  The Appellant, Jeremy A. Riley (“Jeremy”) appeals from an order of the Jefferson Circuit Court granting a directed verdict to State Farm Mutual Automobile Insurance Company (“State Farm”).  For the reasons set forth below, we affirm.  



 

I. Background

                        In February of 2012, Jeremy was seriously injured in an automobile accident when a drunk driver collided head-on with a vehicle in which he was a passenger.  After resolving his claim against the driver, Riley sought UIM benefits under a State Farm policy (the “Policy”) issued to Riley’s parents, George and Donna Riley.  George initially purchased the Policy with State Farm in 2007, while Jeremy was still a minor residing with his parents.  The Policy lists George Riley and Donna Riley as “named insureds” on the Declarations Page.  Jeremy is not a named insured on the policy; however, he is listed under the Policy as a “resident relative” that “regularly operate[s] any vehicle in [the] household[.]”

                        The Policy provides that rates for the UIM coverage purchased by the Riley family are calculated “based on 3 licensed drivers who are resident relatives in the household.”  The basis for the UIM rates is again noted on the Declarations Page, which indicates that State Farm charged an additional premium to include Jeremy for UIM coverage. 

On October 3, 2013, the circuit court denied State Farm’s motion for summary judgment on the basis that there was a factual dispute with respect to Jeremy’s primary residence.  Thereafter, State Farm moved to bifurcate the residency issue from the damages issue.  The circuit court granted this motion.  It also ruled that Jeremy could rely on a stipulation that State Farm charged an additional premium to the Riley family to include Jeremy under the Policy.[5] 

            A jury trial began on February 24, 2015.  At the close of Jeremy’s proof, State Farm moved for a directed verdict in its favor.  The circuit court granted State Farm’s motion

State Farm responded that Riley was not entitled to relief because it was undisputed that he was not a resident of his parent’s home at the time of the accident.  State Farm also asserted that the insurance policy was not ambiguous and there was no “illusory coverage” because it never promised to cover Jeremy if he ceased being a resident relative.   

                        The circuit court denied Jeremy’s motion to alter, amend, or vacate on the basis that Jeremy had not shown that the court’s prior decision was the product of any “manifest errors of law or fact, newly discovered or previously unavailable evidence, a manifest injustice, or an intervening change in controlling law.”  The circuit court then determined that policy “clearly and unambiguously defined ‘insured’” such that neither the doctrine of reasonable expectations nor the prohibition against illusory coverage was applicable. 

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2015-CA-001005-MR

 

NOT TO BE PUBLISHED

HERMANSEN (ERIC LLOYD), ET AL.

VS.

BEVIN (MATTHEW), GOVERNOR

OPINION AFFIRMING

KRAMER (PRESIDING JUDGE)

DIXON (CONCURS) AND

TAYLOR (CONCURS)

OPINION

AFFIRMING

 

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BEFORE:  KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.

 

KRAMER, CHIEF JUDGE:  Eric Lloyd Hermansen and Leo Spurling appeal the Franklin Circuit Court’s order granting the Governor’s[6] motion to dismiss their complaint concerning parole eligibility issues.  After a careful review of the record, we affirm because the circuit court did not err in granting the motion to dismiss.

the Governor has failed to exercise his authority to institute removal proceedings against the board pursuant to KRS 439.340(5); (d) the Governor should have exercised his Executive Authority to correct these violations of Kentucky law, rather than protecting the financial interests of Kentucky by permitting the parole board to violate Kentucky law so that Kentucky could continue receiving federal funds pursuant to 42 U. S. C. § 13703; and (e) the Governor, by his acts and/or omissions, has failed to exercise his Executive Authority to address, correct, and remedy all past, present and potential future irreparable harm caused by the forced forfeiture of the appellants’ right to parole eligibility that has been perpetrated upon them by the parole board.

The Governor moved to dismiss the complaint, and the circuit court granted the motion to dismiss.

 

Appellants now appeal, contending that: 

(a) appellants have a statutory right to parole eligibility;

(b) the parole board did not possess the authority to promulgate the serve-out provision in 501 KAR 1:030 that takes away appellants’ statutory right to parole eligibility;

(c) the decisions of the Governor’s executively appointed parole board requiring appellants to serve-out parolable sentences are null, void, and unenforceable;

(d) there is a remedy to redress the harm caused to the appellants by the parole board’s illegal promulgation of the serve-out provision, which forced appellants to forfeit their statutory right to parole eligibility;

(e) appellants can file suit and seek redress against the Governor for refusing to exercise his authority to declare the acts of the parole board illegal in a mandamus-like action;

(f) appellants have standing to seek mandamus relief against the Governor to declare the acts of his parole board as being illegal, null, void, and unenforceable; and

(g) the circuit court abused its discretion in denying appellants relief.

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2015-CA-001011-MR

NOT TO BE PUBLISHED

PREMIERTOX 2.0, INC.

VS.

DUNCAN (ERIC)

OPINION AFFIRMING

COMBS (PRESIDING JUDGE)

J. LAMBERT (CONCURS)

AND VANMETER (CONCURS)

OPINION

AFFIRMING

 

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BEFORE:  COMBS, J. LAMBERT AND VANMETER, JUDGES.

 

COMBS, JUDGE:  PremierTox 2.0, Inc., (PremierTox) appeals from a final judgment of the Fayette Circuit Court entered in favor of Eric Duncan, the corporation’s former chief executive officer.  PriemerTox had argued that its failure to perform the terms of the parties’ contract should be excused.  The trial court disagreed and concluded as a matter of law that Duncan was entitled to damages for breach of the parties’ severance agreement.  After our review, we affirm.

        PremierTox operates a clinical laboratory that performs urine drug testing ordered by physicians for the purpose of treating and monitoring addiction treatment patients.  It was established in Russell Springs in December 2010 and has its principal place of business in Russell County.  

           Eric Duncan has an undergraduate degree in psychology.  According to PremierTox, Duncan was offered the position of chief executive officer even though he possessed no management experience.  Duncan accepted the corporation’s offer, and on January 6, 2011, he entered into an employment agreement with PremierTox and Addixxion Recovery of Kentucky, LLC d/b/a SelfRefind.  SelfRefind operates a chain of addiction treatment clinics in Kentucky.  The owners of SelfRefind, Dr. Bryan Wood and Dr. Robin Peavler, also own 40% of PremierTox. 

    The employment agreement provided that Duncan could be terminated for cause.  Duncan resided in Lexington, and his office was located in Lexington.    

   PremierTox bills federal health care programs for its services.  During the relevant timeframe, PremierTox utilized an entity referred to in these proceedings as Liberty Billing to submit its reimbursement claims to Medicare and Medicaid.  Liberty Billing was owned and managed by Kristine Kaiser before it was acquired by the owners of PremierTox in December 2010. 

   After Liberty Billing was purchased by the owners of PremierTox, Kaiser was named president of the company; her job duties remained the same and her salary exceeded Duncan’s by a substantial margin.  In his deposition, Duncan indicated that he was instructed by the board of directors and the owners of PremierTox that Kaiser was in charge of billing; that she was experienced in coding claims; and that he would have no responsibility with respect to that aspect of the business.  Duncan had no training or experience in federal health care program reimbursement.  

   In April 2013, the United States Department of Justice launched an investigation into the nature of the drug testing requested by SelfRefind and Drs. Wood and Peavler as well as the billing practices of PremierTox.  Late in the year, the parties began to negotiate a settlement of the government’s claims.  By September 2013, a tentative agreement had been reached. 

   Eventually, Dr. Bryan Wood, Dr. Robin Peavler, PremierTox, and Addixxion Recovery of Kentucky, LLC d/b/s SelfRefind, entered into a formal settlement agreement with the United States Department of Justice and the Commonwealth’s attorney general.  The agreement recited that the United States had certain civil claims against the defendants arising from their conduct in submitting, or causing the submission of, allegedly false reimbursement claims for medically unnecessary services to the Medicare and Medicaid programs during the period from December 1, 2010, through April 1, 2013. 

   The settlement agreement recited that Dr. Wood and Dr. Peavler had each purchased a 20% ownership stake in PremierTox upon its inception in 2010.  It stated that Drs. Wood and Peavler had then instituted a practice at their clinics to require all the patient urine samples be referred to PremierTox for quantitative urine drug testing of a kind not required before they had acquired an ownership stake in the lab.  The agreement recited that Drs. Wood and Peavler and SelfRefind had been aware that PremierTox lacked the laboratory equipment necessary to test all of the SelfRefind patient urine samples that it had begun to receive in December 2010 and that, with their consent, PremierTox had begun to store the excess urine samples in freezers for up to eight months until PremierTox reached the capacity to process them.  The Department of Justice alleged that claims for reimbursement were then submitted to federal and state health care programs for drug tests which the defendants  knew were medically unnecessary.  The defendants did not acknowledge liability but agreed to pay some fifteen million seven hundred fifty thousand dollars ($15,750,000) to settle the matter.  Neither Duncan nor Kaiser was implicated.                 

   Duncan was notified on September 2, 2013, by the common owners of PremierTox and Liberty Billing and the entities’ shared attorney that his services were no longer required.  While the PremierTox representatives did not disclose the reason for the change in management, the parties specifically agreed that Duncan was entitled to a severance pay package that included a quarterly executive bonus and that PremierTox would provide a positive reference for him to any prospective employer.  The parties immediately executed a written agreement memorializing these terms.  In his verified complaint, Duncan stated that the PremierTox representatives advised him during their negotiations that Kris Kaiser was to be terminated as well.      

   In order to recover in an action for breach of contract, the plaintiff must plead and prove the existence of a promise, its breach, and resulting damages.  Barnett v. Mercy Health Partners-Lourdes, Inc., 233 S.W.3d 723 (Ky. App. 2007).  Neither of the parties has disputed that the severance agreement constitutes a binding contract between them.  Instead, PremierTox seeks to avoid the requirements of the contract.  It contends that it suffered financial harm as a “direct result of [Duncan’s] concealment of his failure to properly supervise billing and claims submission” and maintains that it is excused from further performance of the agreement by its discovery that Duncan did not disclose the magnitude of the billing errors made by Liberty Billing at the time the agreement was negotiated. 

           The burden of proving an affirmative defense rests upon the defendant

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2015-CA-001988-WC

TO BE PUBLISHED

HOMESTEAD FAMILY FARM

 VS.

 PERRY (DAVID), ET AL.

OPINION REVERSING AND REMANDING

 DIXON (PRESIDING JUDGE)

KRAMER (CONCURS)

AND TAYLOR (CONCURS)  

OPINION

REVERSING AND
REMANDING

 

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BEFORE:  KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.

 

DIXON, JUDGE:  Homestead Family Farm seeks review of a decision of the Workers’ Compensation Board that reversed the ALJ’s dismissal of David Perry’s claim for benefits.  The sole issue presented concerns whether the agriculture exemption applies to Perry’s claim. 

   Pursuant to KRS 342.630(1), an employer “engaged solely in agriculture” does not have to comply with the provisions of the Workers’ Compensation Act.  Similarly, KRS 342.650(5) provides that a “person employed in agriculture” is not covered by the Act.  The term “agriculture”

 

means the operation of farm premises, including the planting, cultivation, producing, growing, harvesting, and preparation for market of agricultural or horticultural commodities thereon, the raising of livestock for food products and for racing purposes, and poultry thereon, and any work performed as an incident to or in conjunction with the farm operations, including the sale of produce at on-site markets and the processing of produce for sale at on-site markets.  It shall not include the commercial processing, packing, drying, storing, or canning of such commodities for market, or making cheese or butter or other dairy products for market;

 

KRS 342.0011(18).

Homestead’s farming business includes 25,000 acres of corn, soybeans, and winter wheat that are harvested and eventually sold to grain elevators or distilleries.  Perry was employed by Homestead as a truck driver and operations laborer for approximately two weeks when he injured his back on December 28, 2013.  That day, Perry picked up a load of soybeans at one of Homestead’s farms in Boyle County and hauled them to Homestead’s grain bins in Springfield.  While using an auger to move the soybeans from the truck to the grain bin, Perry fell backward and injured his back.  Perry filed a claim for workers’ compensation benefits, which was bifurcated to address the applicability of the agriculture exemption.  Perry’s deposition testimony indicated he believed his job was primarily to transport grain and soybeans, but also included performing other tasks during the farm’s slow times.  Ashley Reding, a general partner with Homestead, also testified by deposition.  According to Reding, the sale of crops was Homestead’s sole source of income.  She indicated Perry’s other job duties included cleaning out grain bins, building repairs, and possibly running a tractor or sprayer.  Reding also explained the harvested crops were typically taken to one of Homestead’s storage bins because the crops had to be dried and dehumidified (to prevent mold) before the crops could go to market. 

 

The ALJ concluded both Homestead and Perry were engaged in agricultural work pursuant to KRS 342.630(1) and KRS 342.650(5) and dismissed Perry’s claim pursuant to the agriculture exemption.  Perry filed a petition for reconsideration, asking the ALJ to make additional findings regarding whether his activities as a truck driver engaged in drying and storing grain were excluded from the statutory definition of agriculture.  The ALJ made the following additional findings on reconsideration:

 

1.     The Defendant provided testimony from Ashley Reding, who stated that the Defendant’s activities consist exclusively of growing corn, soybeans, and winter wheat for sale either to grain elevators or distilleries.  She further testified that the farm has no other income other than from the sale of grain and the Plaintiff was injured while hauling grain that was grown on the farm to a bin at one of the other properties that is owned or leased by the Defendant.

 

2.     The Plaintiff testified that he was in the process of pulling a grain auger, which shoots grain out of the truck and into a grain bin.  He stated that he had taken the grain from one property owned by the Defendant to another that was either leased or owned by the Defendant.

 

3.     The ALJ finds that the activities of the Plaintiff fall squarely within the plain meaning of the definition of Agriculture found in KRS 342.0011(18) as follows in relevant part: the operation of farm premises, including the planting, cultivation, producing, growing, harvesting, and preparation for market of agricultural or horticultural commodities thereon, . . . and any work performed as an incident to or in conjunction with the farm operations . . .

 

4.     The work being performed by the Plaintiff was part of the preparation for market of agricultural commodities or at the very least part of work performed as an incident to or in conjunction with the farm operations.  The ALJ therefore declines to disturb the Opinion and Order dated May 26, 2015.

Perry appealed the ALJ’s dismissal of his claim to the Board, asserting that, at the time of his injury, he was engaged in the commercial drying and storing of grain, an activity excluded from the definition of agriculture.  The Board concluded the ALJ erred by finding Perry was an agricultural employee at the time of his injury. 

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Unpublished Opinions

This web site contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

 

Court OrdersEACH WEEK THE COURT ISSUES IT’S ORDERS GRANTING AND DENYING NUMEROUS MOTIONS

 

SEE THESE ORDERS AT:  CT. OF APPEALS MINUTES     SUPREME COURT MINUTES

 

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[2] Kentucky Revised Statutes.

 

[3] Kentucky Revised Statutes.

[4] The application was submitted through Liberty’s broker, GMI Insurance. 

[5] The stipulation provides:  “Stipulation No. 1:  That State Farm charged an additional, or greater, UIM premium on Policy Number 109 7686-A01-17C, to list Plaintiff Jeremy Riley as a driver reported to own or regularly operate any vehicle in the household at 15500 Mouser Hill Road, Louisville, Kentucky.  Mr. Riley and his parents were represented to be resident relatives in the household at the time the premium was calculated.  This policy was in effect on February 25, 2012, on a 1995 GMC K1500.” 

[6]  The initial complaint in this case was filed against then-Governor Steven Beshear.  However, pursuant to Kentucky Rule of Civil Procedure (CR) 76.24(c)(1), Governor Bevin is now substituted as the named party in this appeal.

 

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