Kentucky Tort Report (COA) for Oct. 26 , 2007 (2007:51 )

Kentucky Tort Report (COA) for Oct. 26 , 2007 (2007:51 )

Published Decisions - COA

LARKINS V. MILLER
SETTLEMENTS AND RELEASES
2006-CA-002043
PUBLISHED: AFFIRMING
PANEL:  THOMPSON PRESIDING; WINE HENRY CONCUR
COUNTY: BOONE
DATE RENDERED: 10/26/2007 

Larkins appeals TC's entry of summary judgment for Miller on their claims for breach of contract and fraud stemming from the sale of an unimproved lot in a new subdivision being developed by Miller. At the time of sale, Larkins alleged that Miller advised them that the slope of the lot would result in additional construction costs that would not exceed a few thousand dollars. Larkins completed the sale and signed a formal Release Agreement that disclaimed any reliance on Miller's representations about slope stability and released Miller from all claims and demands relating directly or indirectly to slope stability issues. When the Larkins finally moved forward with construction 5 years later, they learned that the slope of the lot would result in an additional $83,000 in building costs. Larkins moved forward with this lawsuit, which Miller defended on the clear wording of the Release. Larkins countered that the Release was invalid because it wasn't supported by valuable consideration.

On appeal, the COA summarily rejected Larkins' argument that the Release was not enforceable, pointing out that the Release was executed by them on the same date the check was written by them to Miller for the full purchase price of the property. The COA held that the check constituted valuable consideration and therefore validated the Release. Consequently, the TC's entry of SJ for Miller was affirmed.

Chad Kessinger
Schiller, Osbourn, Barnes & Maloney

CONNER V. PATTON
TORTS: EXECUTIVE IMMUNITY AND RETRIBUTION
2006-CA-001370
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; WINE, GUIDUGLI CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 10/26/2007 

CA affirms TC order denying appellant Tina Conner's motion to amend her complaint and granting appellee Paul Patton's motion to dismiss her action. (Franklin Cir. Ct., Hon. Roger L. Crittenden, Judge, presiding)

Appellant and appellee had a sexual relationship while appellee was Governor of the Commonwealth of Kentucky. Conner alleges that, after she terminated the relationship, her construction business "no longer had access to public construction projects and her nursing home suffered from a pattern of harassment from [state] agencies." Conner filed suit against Patton and the Commonwealth, raising various claims including sexual harassment, intentional infliction of emotional distress, outrage, defamation and waste. All claims against the Commonwealth were dismissed, as were the sexual harassment and waste claims against Patton, individually and in his official capacity. Conner appealed, but the CA affirmed the dismissals. During that appeal, the TC also entered an order dismissing Conner's defamation claim against Patton, which Conner did not appeal, leaving only the IIED claim against Patton.

Conner then moved for leave to file a 2nd amended complaint. In response, Patton moved to dismiss her claim for want of prosecution, which was granted, and denied her motion to amend and her subsequent motion to alter, amend or vacate.

CA holds that denial of Conner's amendment was proper in that, if Patton enforced laws and regulations against her nursing home, if his actions fall under his lawful authority, his motives are irrelevant. Further, Conner cannot prove Patton's actions before she exercised her constitutional right to free speech were retaliatory and in violation of those rights. Also, Conner did not make any of the necessary allegations to succeed in a due process claim. Conner's slander per se claim was properly dismissed as it is based on the same allegations of the defamation claim, which was dismissed and not appealed.

As to the IIED claim, the CA holds that "[t]he fact that Patton was in a powerful position as the Governor of Kentucky, and that he therefore was able to express vindictiveness relating to their personal relationship in a manner which could interfere with her financial stability or career, does not elevate the situation to the level of outrageousness required for a plaintiff to recover on a claim for IIED.

As to her failure to prosecute her claims, Conner did not take any action in this matter, other than to change counsel, from January 2003 until October 2005.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

GREENE V. PASCHALL TRUCK LINES
WORKERS COMP:  ALJ REVIEW OF SETTLEMENT AGREEMENT; SUBROGATION AND TORT RECOVERY PROCEEDS
2006-CA-001974
PUBLISHED: AFFIRMING IN PART, VACATING IN PART, REMANDING
PANEL:  NICKELL PRESIDING; TAYLOR, PAISLEY CONCUR
WORKERS COMP BOARD
DATE RENDERED: 10/26/2007 

The ALJ’s opinion dismissed claimant Greene's claim for permanent disability income benefits and granted partial future medical benefits for injuries arising from a work-related collision. The ALJ also declined to review, citing a lack of jurisdiction, an agreement reached between Greene and his former employer, Paschall Truck Lines (hereinafter “PTL”), pertaining to payment of a subrogation lien. A petition for reconsideration filed by Greene was summarily dismissed by the ALJ, and the WCB then affirmed the ALJ's decision in all respects and this appeal ensued.

Although the COA agreed with the Board’s opening premise that tort damages paid by a tortfeasor to an employee, employer or employer’s carrier are paid outside the Workers’ Compensation Act and only a court may review them, COA did NOT agree that the use of tort recovery funds to pay an employer’s subrogation lien somehow converts questions about the amount of subrogation due the employer into part and parcel of the tort claim. Nor did the COA agree that an employee and his employer’s workers’ compensation carrier, simply by reaching a settlement, can transform a subrogation issue that would normally be within the jurisdiction of an ALJ into a tort issue that can only be reviewed by a trial court  and thus the COA did not agree that the use of tort recovery funds to pay an employer’s subrogation lien somehow converted questions about the amount of subrogation due the employer into part and parcel of the tort claim.  In light of Kentucky’s statutory scheme, it is wholly appropriate that the ALJ review the terms of the (settlement) agreement between the claimant Greene and his former employer PTL’s carrier.

Since the ALJ is the ultimate arbiter when it comes to resolving workers’ compensation subrogation issues, he erred in declining to exercise jurisdiction and the Board erroneously affirmed that decision.  The ALJ can and should disapprove any agreement submitted for review that does not comport with the beneficent purpose of the Workers’ Compensation Act.  COA further found nothing to prohibit an ALJ from granting future medical expenses for a specific work-related injury to the exclusion of others.

COA affirmed that portion of the Board's opinion dismissing Greene’s claim for permanent disability income benefits and the Board’s opinion limiting PTL's responsibility for future medical expenses to the ongoing removal of glass as it works its way to the surface of Greene’s skin.  However, because COA held the ALJ had jurisdiction to review the settlement agreement reached between Greene and PTL, but declined to exercise it, that portion of the opinion was vacated and remanded.

Peter Naake
Priddy, Cutler, Miller & Meade

Not Published Decisions

STRAUSBAUGH V. H & BLOCK FINANCIAL ADVISORS, INC.
ARBITRATION:  CHOICE OF LAW
2005-CA-001083
NOT TO BE PUBLISHED: 140
DATE RENDERED: 10/26/2007

HARROD CONCREDTE
TORTS: TRESPASS, STATUTE OF LIMITATIONS, ACCRUAL, AND LIMITING DAMAGES TO LAST FIVE YEARS FOR CONTINUING TRESPASS
2005-CA-001712
NOT TO BE PUBLISHED: 130
DATE RENDERED: 10/26/2007

BORQUE V. CSX TRANSPORTATION CORP.
TORTS: RAILWAY, FELA, FSAA
CIVIL PROCEDURE: NO PREJUDICE ON LATE PRODUCTION OF PHOTOS PER TRIAL ORDER
2006-CA-000093
NOT TO BE PUBLISHED: 100
DATE RENDERED: 10/26/2007 

CRAFT V. CRAFT
CIVIL PROCEDURE: DIRECTED VERDICT, SUFFICIENCY OF EVIDENCE FOR JURY VERDICT
2006-CA-001176
NOT TO BE PUBLISHED: 120
DATE RENDERED: 10/26/2007

KY DEPT. OF REVENUE V. CURTSINGER
APPEALS: ADVERSE RULINGS
REVENUE AND TAXATION: VEHICLE TAXES; AD VALOREM TAXES, REFUNDS, AND CONSTITUTIONALITY
2006-CA-001379
NOT TO BE PUBLISHED: 110
DATE RENDERED: 10/26/2007

LYONS LUMBER CO. V. ASHCRAFT
DAMAGES: LIQUIDATED AND CERTAINTY OF AMOUNT; JUDGMENT; PREJUDGMENT INTEREST; CLAIM NOT LIQUIDATED UNTIL JUDGMENT AND PREJUDGMENT INTEREST JUDICIAL DISCRETION
2006-CA-001705
NOT TO BE PUBLISHED: 80
DATE RENDERED: 10/26/2007

RATLIFF V. POTTER
TRIAL: INSTRUCTIONS AND FAILURE TO PRESERVE ERROR BY PRO SE LITIGANT
2006-CA-001727
NOT TO BE PUBLISHED: 76
DATE RENDERED: 10/26/2007