author: Opinion of the Court by Justice COOPER. ROACH, Justice,

text:
    Megan BENTLEY; and American International South Insurance Company, Appellants, v. David BENTLEY, Appellee.
    No. 2003-SC-1051-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Robert L. Steinmetz, Diane Rose Conley, Frost, Brown, Todd, LLC, Edward H. Stopher, Darryl S. Lavery, Boehl, Stopher & Graves, LLP, Louisville, Counsel for Appellants.
    Bruce W. MacDonald, McBrayer, McGinnis, Leslie & Kirkland, Greenup, Counsel for Appellee.
   Opinion of the Court by Justice COOPER.

In Thompson v. Thompson, 264 S.W.2d 667 (Ky.1954), our predecessor court held that a parent could not maintain an action in tort against his or her unemancipated minor child for injuries arising out of the child’s negligent operation of a motor vehicle. We now conclude that we should depart from this aspect of intra-family immunity, and overrule Thompson.

Appellee, David Bentley, filed suit in the Greenup Circuit Court for damages arising out of a two-vehicle accident that occurred on September 24, 2000. Bentley was a passenger in a vehicle owned and insured by his wife, Carol Bentley, and being operated at the time by his daughter, Megan Bentley. He sued Megan in tort, and also sued the insurer, American International South Insurance Company, asserting “bad faith” refusal to settle his claim against Megan in violation of the Unfair Claims Settlement Practices Act (UCSPA). KRS 304.12-230. The insurer’s refusal to settle was specifically premised upon the holding in Thompson. The record of the Greenup Circuit Court contains no proof, by way of interrogatory, admission, or stipulation, that Megan Bentley was David Bentley’s daughter, that she was a minor, or that she was unemancipated. Nevertheless, the trial court dismissed the complaint, accurately noting that Thompson had never been overruled. The Court of Appeals reversed, holding in a “not to be published” opinion that “Thompson is no longer good law.” Bentley v. Bentley, No.2002CA-001455-MR, slip op. at 9, 2003 WL 22801134 at *4 (Ky.App. Nov.26, 2003). Of course, neither a circuit court nor the Court of Appeals has authority to overrule precedents of this Court or our predecessor court. SCR 1.040(5); SCR 1.030(8)(a); Charash v. Johnson, 43 S.W.3d 274, 277 nn.2 & 3 (Ky.App.2000). Because both parties and both lower courts have assumed that Megan Bentley is David Bentley’s unemancipated minor child, we choose to address the issue despite the inadequacy of the record.

In Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970), our predecessor court abrogated the concept of “parental immunity” that precluded a child from suing his or her parent in tort, “except in the two following situations: (1) where the negligent act relied on for a recovery involves the reasonable exercise of parental authority over the child, and (2) where the alleged negligent act involves the exercise of ordinary parental discretion with respect to provisions for the care and necessities of the child.” Id. at 923. Parental immunity first entered our jurisprudence in Harralson v. Thomas, 269 S.W.2d 276 (Ky.1954), a case rendered four months after Thompson was decided. Rigdon indicated that it was addressing the immunity created by Harralson, and did not mention Thompson at all. Rigdon, 465 S.W.2d at 922.

The principle that a parent may not prosecute a tort action against his or her unemancipated minor child is a recognized corollary to parental immunity. Mauk v. Mauk, 12 Ohio St.3d 156, 466 N.E.2d 166, 167 (1984). Such actions are far rarer than tort actions by the child against the parent — perhaps because an adult is more likely to injure a child than vice versa. However, the Restatement (Second) of Torts § 895G (1979) recommends abolition of all parent-child immunities with some exceptions, viz:

(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.

(Emphasis added.) The Comment to subsection (2) cites commonplace incidents of family life as an exception to the rale of liability:

A child thoughtlessly leaves his skates in a hallway and the parent trips over them or slides on them and falls, or a parent delays fixing a slightly broken step or calling in a carpenter to do it and the child falls as a result; these occurrences are normally regarded as commonplace incidents in family life and usually treated as accidents rather than the basis for imposing legal liability.

Rest. (2d) Torts § 895G cmt. k.

The reporter’s notes to Section 895G state that as of 1979, seventeen jurisdictions had abolished parent-child immunity in its entirety (erroneously citing Rigdon as including Kentucky in that category), and that eight additional states have abolished the immunity if the tort arises out of the operation of a motor vehicle. Rest. (2d) Torts § 895G reporter’s notes. At least six jurisdictions have specifically held that a parent can sue his or her unemanci-pated minor child for damages arising out of the child’s negligent operation of a motor vehicle. Jagers v. Royal Indem. Co., 257 So.2d 806, 808 (La.Ct.App.1972); Ales v. Ales, 650 So.2d 482, 487 (Miss.1995); Guterman v. Guterman, 66 N.J. 69, 328 A.2d 233, 234 (1974); Price v. Price, 19 Ohio App.3d 245, 483 N.E.2d 1222, 1223-24 (1985); Silva v. Silva, 446 A.2d 1013, 1017 (R.I.1982); Erie Indem. Co. v. Kerns, 179 W.Va. 305, 367 S.E.2d 774, 776 (1988). Such holdings are consistent with the public policy behind our Motor Vehicle Reparations Act (MVRA), KRS 304.39-010, et seq., and our holdings in Bishop v. Allstate Insurance Co., 623 S.W.2d 865, 866 (Ky. 1981), and Lewis v. West American Insurance Co., 927 S.W.2d 829, 835 (Ky.1996), that household exclusion clauses in policies of automobile liability insurance are contrary to that public policy.

The concept of parental immunity did not exist in the English common law and appears to have been fashioned out of whole cloth in Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). Rest. (2d) Torts § 895G cmt. b. The justifications usually advanced for parent-child immunity are:

(1) Public interest in maintaining family harmony and tranquility.
(2) Maintenance of parental authority and discipline.
(3) Prevention of fraud and collusion.
(4) Preservation of equal distribution of the family exchequer.
(5) Avoidance of useless litigation in that the parent may, in the event of the death of the child, inherit any money which the child may have recovered from the parent [and vice versa].
(6) Prevention of assertion of stale claims of minors on their reaching majority.

Thurman v. Etherton, 459 S.W.2d 402, 403 (Ky.1970) (citation and internal quotations omitted). However:

[None] of these reasons would appear to outweigh the more urgent desirability of compensating the injured person, and particularly a child, for genuine harm that may cripple him for life and ruin his entire future. The development of liability insurance, especially in the area of automobile accidents, has removed to a considerable extent whatever theoretical justification this reasoning may once have afforded.

Rest. (2d) Torts § 895G cmt. c.

We now adopt the rule stated in the Restatement (Second) of Torts § 895G (1979), subject to Comment k’s exception for “commonplace incidents in family life.” We will not attempt to anticipate in this opinion the nature of all possible “commonplace incidents in family life,” except to say that such incidents do not include acts that are as likely to cause harm to the general public as to family members, such as the negligent operation of a motor vehicle. Nor need we address here the other exceptions described in Comments d through i of Section 895G, none of which have any application to the facts of this case.

However, with respect to David Bentley’s claim against American Indemnity South Insurance Company, an insurer cannot be held to have acted in “bad faith” by fading to settle a claim unless it is shown “that the insurer either knew there was no reasonable basis for denying the claim or acted in reckless disregard for whether such a basis existed.... [A]n insurer is ... entitled to challenge a claim and litigate it if the claim is debatable on the law or the facts.” Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky.1993) (quoting Fed. Kemper Ins. Co. v. Homback, 711 S.W.2d 844, 846-47 (Ky.1986) (Leibson J., dissenting)). Since the insurance company in this case denied the claim in reliance on existing precedent which had not been overruled, i.e., Thompson, a fortiori, there was a reasonable basis for denying the claim and the trial court properly dismissed the UCSPA claim against the insurer. Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437, 454 (Ky.1997) (“In view of ... existing law ... that defense was not only fairly debatable, it had substantial merit.”).

Accordingly, we affirm the Court of Appeals’ opinion insofar as it reverses the Greenup Circuit Court’s dismissal of David Bentley’s cause of action against Megan Bentley; we reverse the Court of Appeals’ opinion insofar as it reverses the Greenup Circuit Court’s dismissal of David Bentley’s cause of action against American International South Insurance Company; and we remand this case to the Greenup Circuit Court with directions to conduct such further proceedings as are consistent with this opinion.

LAMBERT, C.J.; GRAVES, JOHNSTONE, ROACH, SCOTT, and WINTERSHEIMER, JJ., concur.

ROACH, J., concurs by separate opinion, with GRAVES, J., joining that concurring opinion.

ROACH, Justice,

concurring.

Generally, the declaration of public policy is the prerogative of the General Assembly. See Farm v. McGuffey, 534 S.W.2d 770, 779 (Ky.1975) (“It is elementary that the legislative branch of government has the prerogative of declaring public policy and that the mere wisdom of its choice in that respect is not subject to the judgment of a court.”). However, the General Assembly has not addressed the issue of parent-child immunity since our predecessor court abrogated the concept of parental immunity in Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1970). Therefore, because there is no principled distinction between abandoning parental immunity and retaining immunity for children against tort actions by their parents, I concur.

GRAVES, J., joins this concurring opinion.

      . Harralson also cited the hypothetical scenario of a child suing a parent for injuries sustained by falling down negligently repaired steps in the home as a reason for adopting parental immunity. 269 S.W.2d at 278.


source: Caselaw Access Project

author: Chief Justice, LAMBERT. JOHNSTONE, Justice,

license: Public Domain

text:
    Lisa Ann THOMPSON, Appellant, v. Paul Richard THOMPSON, Appellee.
    No. 2004-SC-000062-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Arnold Scott Coburn, Grayson, Counsel for Appellant.
    Robert W. Miller, Grayson, Counsel for Appellee.
   Opinion of the Court by

Chief Justice, LAMBERT.

This case arises from a dispute concerning the amount of child support owed by Appellee, Paul Richard Thompson, for the period of December 1999 through August 2000. His two children were in the custody of their mother, Paul’s now former wife, Lisa Ann Thompson (now McCleese), during this period. Two orders, each issued by a different court, are alleged to govern Paul’s child support obligation during this period. Lisa contends that an order of the Carter District Court governs the obligation, while Paul contends that an order of the Carter Circuit Court is controlling. Consequently, we must thoroughly review the convoluted procedural history of this ease.

Paul filed a petition for dissolution of the marriage on December 1, 1999, in Carter Circuit Court. On December 10, 1999, Lisa obtained a domestic violence order (DVO) against Paul in Carter District Court. The DVO awarded Lisa temporary custody of the two minor children and a temporary support order requiring Paul to pay child support in the amount of $500.00 per week. Thereafter, on June 12, 2000, the district court purported to set aside its child support order and “sent” the matter to the circuit court where the dissolution of marriage case was pending. The circuit court rendered a dissolution decree on July 28, 2000, but reserved jurisdiction to calculate and order child support after receiving evidence of the parties’ incomes.

On August 14, 2000, Lisa made a motion for the circuit court to set final child support. The Domestic Relations Commissioner (DRC) heard the motion on August 28, 2000, and apparently recommended child support at $568.00 per month. We cannot discern the exact terms of the recommendation because it is not a part of the record. Rather, our only evidence of the recommendation is a subsequent recommendation by the DRC which refers to the hearing and prior recommendation. Nonetheless, the parties in various court filings have agreed that August 28, 2000, is the end of the time period in which support is disputed. On February 20, 2001, Lisa filed another motion to set child support, and on April 27, 2001, she moved to increase child support retroactive to August 28, 2000.

By order dated June 8, 2001, the circuit court confirmed recommendations made by the DRC on May 9, 2001, validating the district court order of $500.00 per week for temporary child support, and setting support at $568.00 per month for the period thereafter. However, upon Paul’s motion on August 14, 2001, the circuit court vacated its June 8, 2001, order because Paul had not received proper notice of the proceeding. Upon the parties’ agreement, child support was set at $568.00 per month from August 2000 until changed by the court, and the case remanded to the DRC for a hearing, inter alia, on the issue of “support for the period of December 1999 through August 28, 2000.”

On May 15, 2002, after a hearing, the DRC recommended the amount of child support at $822.24 per month, retroactive to December 1999. Thus, while the recommendation reflected a decrease from the $500.00 per week amount that Lisa claimed during the relevant period, it also reflected an increase for the period thereafter.

On May 30, 2002, Lisa filed exceptions to the DRC’s recommendations. On June 17, 2002, the circuit court overruled the exceptions and on June 19, 2002, the circuit court entered a final judgment denying Lisa’s exceptions and incorporating the DRC’s recommendations into the final judgment, setting child support at $822.24 per month retroactive to December 1999. It is this judgment from which Lisa appealed.

The Court of Appeals affirmed the circuit court. As with the parties, the Court of Appeals incorrectly recited the date the divorce petition was filed. It relied on KRS 403.160 but failed to take account of KRS 403.213. In effect, the Court of Appeals’ view disregarded the December 1999 DVO which provided for temporary child support.

Lisa contends that the circuit court lacked jurisdiction to retroactively modify child support. According to her view, the district court child support order would remain in effect until one of the parties, Lisa or Paul, moved the circuit court to set child support. She relied on KRS 403.213 which states in pertinent part:

The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing.

However, at the time of her motion, the district court had already granted and then set aside its temporary child support order and further ordered that “the child support question shall be, and the same hereby is, sent to the circuit court in action no. 99-CI-00354, being a dissolution of marriage proceeding pending between the parties.”

To summarize the relevant facts, after Paul’s divorce petition was filed, but prior to service of process, Lisa obtained a district court custody and support order in conjunction with a domestic violence proceeding. Neither party took any action on the case for several months, but on June 12, 2000, pursuant to Paul’s motion, the district court purported to vacate its support order and send the case to circuit court. Thereafter, in August 2000, Lisa moved the circuit court to set child support and this was ultimately, albeit not expeditiously, accomplished. Moreover, the final circuit court judgment relative to child support purported to vacate the district court support order. Thus, we have a district court support order arising out of a domestic violence proceeding that was subsequently vacated by the district court and that was also subsequently vacated, expressly or by implication, by the circuit court when it set child support from December 1999.

From these facts the issue that emerges is whether a child support order rendered by a district court, ancillary to a domestic violence proceeding, may be retroactively modified by the rendering court or by a circuit court in a dissolution proceeding. In other words, was the district court order of December 1999 subject to subsequent eradication, and elimination of the accumulation of child support at $500.00 per week from December 1999 until June 12, 2000?

KRS 403.750(l)(e) and (f) provide that a district court may award temporary custody and temporary child support ancillary to a domestic violence protection proceeding. KRS 403.750(l)(f) incorporates the criteria of KRS 403.213. The reason for these statutes would appear obvious. Where parties are restrained from contact with one another due to domestic violence, it is necessary that one party have custody and receive support for the children during the effective period of the domestic violence order. Moreover, the Cabinet for Health and Family Services is often a party in interest as an “agency substantially contributing to the support of the child.” Of course, the Cabinet is entitled to reimbursement to the extent that child support equals or exceeds the amount it contributes. Thus, it appears that the December 1999 order concerning custody and child support was a lawful order.

We recognize that KRS 403.160(6) allows a temporary order to be revoked or modified before final decree. Notwithstanding, KRS 403.213(1), incorporated in KRS 403.750(l)(f), provides that “the provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification .... ” Where two conflicting statutory provisions cannot be reconciled, the one containing “express and positive language relating to the particular subject should take precedence over a provision dealing with a matter in general terms.” Thus, as we have often held, child support orders may not be retroactively modified and the statutes permit no departure from this rule for child support orders entered in a domestic violence proceeding. Accordingly, as with other child support orders, when each weekly installment payment of $500 became due pursuant to the December 1999 district court order, that installment became a fixed, liquidated debt, not subject to retroactive modification.

By their very nature, child support payments are exigent. Such payments cannot be indefinitely postponed while parties litigate. If a subsequent court order retroactively cancels a child support debt, parties would be encouraged to refrain from payment in the hope of obtaining relief subsequently. Moreover, a party aggrieved by a district court child support order may seek relief by a motion in circuit court for an order of support. Thus, Paul or Lisa, if dissatisfied with the district court order, could have gone to circuit court seeking an order of support that would apply thereafter. Their failure to seek such relief suggests, at a minimum, acquiescence or waiver of complaint.

This case well illustrates the desirability of having all matters relating to a family’s domestic conflicts handled by the same court. This case began in circuit court, orders were entered in district court, hearings were held before commissioners in circuit court, and orders and judgments were rendered by the circuit court. The complex, contradictory nature of this proceeding would likely have been eliminated if a single judge presiding over both the district court and circuit court elements of the case had conducted all proceedings as is done in family court.

For the foregoing reasons, the opinion of the Court of Appeals is reversed and this cause is remanded to the circuit court for entry of orders consistent herewith.

COOPER, GRAVES, and ROACH, JJ., concur.

JOHNSTONE, J., dissents by separate opinion in which SCOTT and WINTERSHEIMER, JJ., join.

JOHNSTONE, Justice,

dissenting.

While I do not disagree with the majority’s procedural analysis, I think the opinion misses the point. The issue is not which court had the authority to modify the child support ordered from December 1999 to August 2000, but whether the parties agreed that the Carter Circuit Court should resolve the matter of the child support in question. The answer to that inquiry lies in the Order entered August 15, 2001, which provides:

This matter having come before the Court upon a motion to alter, amend or vacate filed by the Respondent; and the Court having reviewed the motion and the file herein, does hereby find that the Respondent, Paul Thompson, was without counsel at the time of the hearing scheduled by the Domestic Relations Commissioner, and that prior counsel had made a motion to withdraw, and Respondent was afforded thirty days to obtain new counsel, and therefore, does SUSTAIN said motion, and does hereby vacate the order entered herein on June 8, 2001.
The Court hereby ORDERS, upon agreement of the parties hereto, that child support shall be paid by the Respondent to the Petitioner in the sum of $568.00 per month from August 28, 2000 until changed by orders of this Court.
The Court further ORDERS that this case be remanded to the Domestic Relations Commissioner for hearing on the issue of child support for the period of December 1999 through August 28, 2000, for any increases from August 28, 2000, and for any and all other issues involved herein.

(Emphasis added).

The above Order was signed by the circuit judge, and counsel for both parties certified that they had “Seen and Agreed to” the Order. It is clear that, by agreement, the terms of the Order provided that Paul was to pay no less than $568.00 per month from August 28, 2000, and that the matter was to be remanded to the domestic relations commissioner for a determination of the proper amount of child support for the disputed period of December 1999 through August 2000.

Ironically, Lisa does not challenge the circuit court’s jurisdiction to increase the amount of child support from August 2000 (which it did), but takes issue with the court’s authority to modify support during the period in which the decision was not in her favor (December 1999 through August 2000). In my opinion, the issue in this case is resolved by Lisa’s own agreement. I would affirm the Court of Appeals.

SCOTT and WINTERSHEIMER, JJ., join this dissenting opinion.

      . These parties assert in their briefs to this Court that the petition was filed on December 13. However, the case history and the petition reveal that the date of filing was actually December 1, 1999. The summons shows issuance by the clerk on December 1, 1999, and return by the sheriff on January 17, 2000, unserved due to inability to locate Lisa.

      . Ironically, neither party acknowledges, in brief, this order of the District Court. This order states as follows: "Upon motion of the Respondent, it is hereby ordered and adjudged that all matters concerning child support heretofore entered are set aside and the child support question shall be, and the same hereby is, sent to the Circuit Court in action no. 99-CI-00354, being a dissolution of marriage proceeding pending between the parties. IT IS SO ORDERED this 12 day of June, 2000.”

      . KRS 403.211(1).

      . KRS 205.780.

      . Commonwealth v. Martin, 777 S.W.2d 236, 238 (Ky.App.1989) (quoting Morgan County Board of Education v. Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935)).

      . Pursley v. Pursley, 144 S.W.3d 820 (Ky. 2004).


author: Justice GRAVES. WINTERSHEIMER, Justice,

text:
    KENTUCKY RETIREMENT SYSTEMS, Board of Trustees, Appellants, v. H. Dennis HALFHILL, Appellee.
    No. 2003-SC-0771-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    Lisabeth Ann Tulley, James D. Allen, Stoll, Keenon & Park, LLP, Lexington, J. Eric Wampler, Kentucky Retirement Systems, Perimeter Park West, Frankfort, Counsel for Appellant.
    Stephen D. Wolnitzek, Donna Michelle Bloemer, Wolnitzek, Rowekamp & Bonar PSC, Covington, Counsel for Appellee.
   Opinion of the Court by

Justice GRAVES.

Appellee, H. Dennis Halfhill, a deputy sheriff with the Kenton County Sheriffs Office, sought and was denied disability retirement benefits after he was injured in an automobile accident in the course of his employment. A former Kentucky Administrative Regulation barred disabled state employees from being eligible for disability retirement benefits if they were independently eligible for unreduced normal retirement benefits. It mandated that the employee accept the “non-disability” normal retirement benefits in lieu of claiming disability retirement.

Halfhill filed suit against the system’s administrator, Kentucky Retirement Systems, Board of Trustees (“Kentucky Retirement”), contending that 105 KAR 1:205, the former regulation which dictated this result, discriminated based on age and violated KRS 344.040, Kentucky’s version of the Age Discrimination in Employment Act (ADEA). The trial court found the regulation to be valid, but the Court of Appeals reversed and declared the regulation a violation of KRS 344.040. Kentucky Retirement sought review in this Court and we granted discretionary review. For the reasons set forth herein, we reverse the Court of Appeals and reinstate the trial court’s judgment in favor of Kentucky Retirement.

The Court of Appeals held that 105 KAR 1:205 violated KRS 344.040. As the appellate court noted, the regulation was subsequently repealed and its language was codified into statutory law in 2000. However, at the time of Halfhill’s claim, the regulation was not yet codified and the Court of Appeals determined that it conflicted with KRS 344.040, the statute prohibiting age discrimination. Consequently, it held that the regulation could not stand. The regulation stated in pertinent part:

A member of the Kentucky Employees Retirement System, County Employees Retirement System or State Police Retirement System, who is eligible for a retirement allowance not subject to the reductions specified in KRS 16.577 or KRS 61.595(2)(a), as of the last day of paid employment, shall not be eligible to apply for disability retirement under KRS 16.582 or KRS 61.600.
KRS 16.576 provides in relevant part:
Any member with at least five (5) years of service credit may retire at his normal retirement date, or subsequent thereto, upon written notification to the system, setting forth at what time the retirement is to become effective, if the effective date shall be after his last day of service and subsequent to the filing of the notice at the retirement office.

And finally, KRS 16.505(15) defined “normal retirement date” as:

[T]he first day of the month following a member’s fifty-fifth birthday, except that for members over age fifty-five (55) on July 1, 1958, it shall mean January 1, 1959. A member of the State Police Retirement System, a member of the County Employees Retirement System or a member of the Kentucky Employees Retirement System covered by this section with twenty (20) or more years of service credit, at least fifteen (15) of which are current may declare his “normal retirement date” to be some date prior to his fifty-fifth birthday.

Halfhill was fifty-seven years old and had ninety-four months of service credit when he applied for disability retirement benefits. Thus, under the above statutes, he was eligible for unreduced normal retirement benefits. Pointing out that he would have been eligible for disability retirement benefits had he been fifty-four years old with the same amount of service credit, he alleges that he was disparately treated solely because of his age.

KRS 344.040 prohibits employers from discriminating against an employee “with respect to compensation, terms, conditions, or privileges of employment, because of the individuars ... age forty (40) and over.” It also prohibits employers from limiting, segregating or classifying employees in any way which would tend to create a deprivation of employment opportunities or adversely affect the individual’s status as an employee, inter alia, because of age. The general purpose of KRS 344.040 is to execute the policies embodied in its federal counterpart, the Federal Age Discrimination in Employment Act of 1967 (“Federal ADEA”). Consequently, we look to federal precedent for guidance.

Most notable to this case is the fact that Halfhill asserts a claim of age discrimination based solely on a disparate treatment theory. “In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.” “When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age.”

In the instant case, Kentucky Retirement administers the state retirement plan which distributes disability retirement benefits as well as normal retirement benefits. These two types of benefits are drawn from the same retirement fund and are mutually exclusive. Thus, the former regulation simply established that when an employee was eligible for one type of benefit, he would not be eligible for the other. The necessity, function, and conformity section of the regulation provided the following explanation: “Because the enhanced benefits provided under disability retirement are intended to bridge the gap between the date the member becomes disabled and the date the member would have been eligible for a [normal retirement] benefit without reduction, this administrative regulation establishes that members who are eligible for retirement without a reduction, regardless of age, shall not be entitled to disability retirement.” In other words, Kentucky Retirement contends that disability retirement benefits are barred for those who have access to unreduced normal retirement benefits because the purpose of disability retirement is to provide a permanent source of income to those who would not otherwise have retirement income due to the fact that they became disabled before they had an opportunity to accumulate retirement benefits.

The trial court found that the explanation provided above was legitimate and that Halfhill failed to show any discriminatory motive whatsoever on the part of Kentucky Retirement when it enacted the above regulation. The Court of Appeals reversed the trial court, finding that Kentucky Retirement had effectively admitted discriminatory motive in the introductory annotations to the regulation. The Court of Appeals explained that prior to the enactment of the regulation at issue, KRS 16.582 provided that applicants were not eligible to receive disability retirement benefits unless they were “less than normal retirement age.” The Equal Employment Opportunity Commission (“EEOC”) challenged the statutory scheme as being based solely on age (and thus, in violation of the Federal ADEA). In response, that portion of KRS 16.582 was amended and the regulation currently in dispute was issued as a “corrective” measure.

As explained by the Court of Appeals, the “corrective” measures in the regulation did two things: (1) it allowed applicants who had been denied benefits in the past to reapply for benefits without application of the previous “age restriction,” and (2) it replaced the age restriction language (“less than normal retirement age”) with language barring disability retirement eligibility to all applicants who are independently eligible for “an unreduced normal retirement allowance.” Applicants who were eligible for an unreduced normal retirement allowance included all those who were greater than normal retirement age (over age fifty-five) and all those who had twenty (20) years of service or more. Thus, the pool of applicants who were barred from seeking disability retirement benefits was enlarged, not reduced by the “corrective” regulation.

With this background in mind, the Court of Appeals framed the pivotal question in this case as follows: “whether expanding the pool of excluded claimants from only those over normal retirement age to include those who have served 20 years transforms the exclusion from one ‘based solely on ... age’ into something more acceptable.” We find the Court of Appeal’s framing of this issue along with the underlying assumptions associated with it to be misplaced. It is unreasonable to presume or to construe a discriminatory motive from the mere fact that a regulation was issued as a “corrective” measure or in response to a challenge levied by the EEOC. Not only would such a strict construction discourage the taking of such “corrective” or “precautionary” measures in the future, but it would unfairly presume that all such “precautionary” or “corrective” measures are taken only when the issuing agency had a discriminatory motive in the first place. We believe closer scrutiny is required since there are a variety of legitimate reasons why an agency might issue such a “corrective” regulation.

Furthermore, a careful reading of the introductory annotations to the regulation at issue actually belies the presumption of a discriminatory motive by Kentucky Retirement:

NECESSITY, FUNCTION, AND CONFORMITY: KRS 16.582 and KRS 61.600 provide for long-term disability benefits for members of the Kentucky Employees Retirement System, County Employees Retirement System and the State Police Retirement System. 29 USC 623(i) (1) (A) and 29 CFR 1625.10(f)(ii) prohibit a pension system from limiting long-term disability benefits solely on the basis of age. KRS 61.645(9)(f) provides that the provisions governing the Kentucky Employees Retirement System, County Employees Retirement System and the State Police Retirement System shall conform to federal law. Because the enhanced bene-ñts provided under disability retirement are intended to bridge the gap between the date the member becomes disabled and the date the member would have been eligible for a beneñt without reduction, this administrative regulation establishes that members who are eligible for retirement without a reduction, regardless of age, shall not be entitled to disability retirement.

(emphasis added). We find such a statement to be an express rejection of discriminatory intent, with the “corrective” measures being imposed as a means of clarifying and endorsing a non-discriminatory scheme. Without further evidence establishing that the above stated intent is somehow irrational or is otherwise clearly a pretext for age discrimination based primarily on “inaccurate and stigmatizing stereotypes,” we find that evidence simply showing the regulation was issued as a “corrective” measure in response to a challenge by the EEOC is insufficient, in and of itself, to establish that Kentucky Retirement had a discriminatory motive when it enacted the former regulation.

Without sufficient evidence to establish proof of discriminatory motive by Kentucky Retirement, Halfhill’s claim of disparate treatment under KRS 344.040 must fail. Accordingly, we reverse the Court of Appeals and reinstate the trial court’s judgment in favor of Kentucky Retirement. Our decision renders moot all other issues raised by the parties.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, and SCOTT, J.J., concur.

ROACH, J., not sitting.

WINTERSHEIMER, J., dissents by separate opinion.

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because Halfhill was denied a substantial and permanent benefit solely because of his age. Under such circumstances, the anti-discrimination provisions of KRS 344.040 were violated by 105 KAR 1:205. Thus, he was entitled to the disability retirement benefits.

The protestations by the Kentucky Retirement Systems that age was not a factor in this action are unacceptable. Halfhill was employed for 94 months, much less than the twenty years of service credit that seems to be the foundation of the eligibility argument. Halfhill was 57 years of age at the time of his application and had he been 54 years of age, he could have properly elected to receive disability retirement benefits rather than being required to accept normal retirement benefits. It is inescapable that the sole factor in determining his eligibility for unreduced retirement benefits was his age. The Franklin Circuit Court in its consideration of this situation admits that the rule in question may have a discriminatory effect on Halfhill’s situation, but that the rule does not have a discriminatory intent. This is, of course, little comfort to Halfhill.

Under all the circumstances in this matter, the decision of the Court of Appeals should be affirmed because Halfhill is entitled to disability retirement benefits.

      . See KRS 16.582.

      . See KRS 16.576. These are the benefits a non-disabled state employee would receive upon retirement based on the employee's years of service and final compensation.

      . See KRS 16.582 et seq. The statutory scheme regulating the Kentucky Employment Retirement System has been amended significantly subsequent to Halfhill’s suit. We will refer to each statute as it existed at that time.

      . See KRS 344.020.

      . See Hazen Paper Company v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ("We long have distinguished between 'disparate treatment’ and ‘disparate impact' theories of employment discrimination.”)

      . Id. at 610, 113 S.Ct. 1701 (citing United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256, 101 S.Ct. 1089, 1093-1095, 67 L.Ed.2d 207 (1981); Fumco Constr. Corp. v. Waters, 438 U.S. 567, 576-578, 98 S.Ct. 2943, 2949-2950, 57 L.Ed.2d 957 (1978)).

      . Id. at 611, 113 S.Ct. 1701.

      . See KRS 16.510 et. al., KRS 61.515 et. al, KRS 78.520 et. al.

      . See Id.

      . 105 KAR 1:205 (repealed 2000).

      . Halfhill v. Kentucky Retirement Systems, 2003 WL 21419587, *2 (Ky.App.2003).

      . Id. The "normal retirement age” was defined as fifty-five years.

      . Id.

      . The amended statute now provides that applicants employed prior to August 1, 2004, may not receive disability retirement benefits if they are "eligible for an unreduced retirement allowance.” KRS 16.582(2)(b).

      . Halfhill, supra, at *2.

      . Id.

      . Id.

      . Id.

      . Such corrective regulations may be issued to avoid potential or perceived conflict, to clarify potentially confusing language, or to reduce the likelihood of disparate impact upon a protected class.


author: Justice ROACH.

text:
    Margaret COOMER, Appellant, v. Charlie PHELPS; and Progressive Northwestern Insurance Company, Appellees.
    No. 2004-SC-0294-DG.
    Supreme Court of Kentucky.
    Sept. 22, 2005.

      Bridget Leigh Dunaway, Taylor, Keller & Dunaway, Amanda Lester Hill, Taylor, Keller, Dunaway & Tooms, London, KY, Counsel for Appellant.
    John W. Walters, Timothy Culver Feld, Lexington, KY, Counsel for Appellee, Charlie Phelps.
    Donald L. Miller, II, Diane Rose Conley, Frost, Brown & Todd, Louisville, Kristi Mildred Smith, Frost, Brown & Todd, Lexington, KY, Counsel for Appellee, Progressive Northwestern Insurance Company.
   Opinion of the Court by

Justice ROACH.

I. INTRODUCTION

This ease arises on appeal from the Pulaski Circuit Court which granted summary judgment in favor of the Appellees, Charlie Phelps and Progressive Northwestern Insurance Company (“Progressive”), Phelps’s insurer. The Circuit Court’s decision, which was affirmed by the Court of Appeals, relied exclusively on a release that the Appellant, Margaret Coomer, executed in favor of Mr. Phelps and his insurer. Coomer challenges the validity of this release, and likewise the summary judgment, on three independent grounds: (1) that the doctrine of mutual mistake should apply to invalidate the release; (2) that the release is invalid as a result of constructive fraud; and (3) that Coomer did not have sufficient capacity to execute such a release. Coomer also claims that she is entitled to damages as a result of Progressive’s bad faith, as allowed by Kentucky’s Unfair Claims Settlement Practices Act. Having found no adequate grounds to support invalidating the release or to support her claim of bad faith, we affirm the Court of Appeals.

II. BACKGROUND

The facts underlying this case are largely undisputed by either party. On the evening of July 25, 2001, after accompanying Phelps to dinner, Coomer was injured when her left knee was struck by Phelps’s car. There was no question as to Phelps’s liability for the accident. Coomer was treated that same night at the Lake Cumberland Regional Hospital Emergency Room and was diagnosed with a bruised knee by the emergency room physician. She was sent home from the hospital with a prescription for Tylenol-3, which contains codeine, for her pain.

On July 26, 2001, Phelps reported the accident to his insurer, Progressive. That same day, a representative of Progressive contacted Coomer for the purpose of settling her bodily injury claim against Phelps. After questioning Coomer as to the extent of her injuries, Progressive’s agent offered a settlement of $250.00 in exchange for a full release of her claims. Coomer rejected the offer, informing the agent that she would contact the company later to discuss any settlement. That same afternoon, Coomer telephoned Progressive to discuss her claim, stating that she would accept a $500.00 settlement in exchange for her release. Progressive agreed to Coomer’s offer of settlement, and an agent for the company traveled to her house that evening to obtain her release. While the agent was at her home, Coomer executed a full release in favor of Phelps and Progressive in exchange for a check in the amount of $500.00. Coomer deposited the check in her bank account later in the week. There is no evidence that Progressive contacted either Coomer’s treating physician or Lake Cumberland Regional Hospital in preparation for or in anticipation of settlement of her claim.

Approximately one week later, Coomer learned that the physician who had treated her on the night of the accident had misdiagnosed her injury as a bruised knee when, in fact, her leg had been fractured. She initiated a lawsuit against Phelps in the Pulaski Circuit Court, claiming damages resulting from the injuries she sustained in the car accident. Nearly a year later, Coomer amended her original complaint, naming Progressive as a Defendant and alleging the company had engaged in bad faith during the settlement of her claim. Shortly thereafter, Phelps filed, and Progressive joined, a motion for summary judgment in the Circuit Court. That motion was granted as to both defendants and was subsequently affirmed by the Court of Appeals. This Court granted discretionary review to consider the case.

III. ANALYSIS

A. Validity of the Release

1. Mutual Mistake

In arguing that the effectiveness of her release should be ignored under the doctrine of mutual mistake, Coomer essentially asks us to overturn a long-standing rule of Kentucky law. In Trevathan v. Tesseneer, 519 S.W.2d 614 (Ky.1975), our predecessor Court held that a mutual mistake between parties to a release as to the “nature and extent of [the Plaintiffs] injuries” was insufficient grounds on which to invalidate a general release. Id. at 615. To retreat from this rule would cast great doubt on the finality of releases in this state and unnecessarily complicate settlement considerations. As the Court noted in Trevathan, “[t]his rule favors the orderly settlement of disputes and avoids multiplicity of suits and the chaos which would result if the releases were not treated seriously by the courts.” Id. at 616. We see no need to retreat from this rule, thus we expressly reaffirm the holding of Tre-vathan.

In an effort to avoid this result, Coomer has also attempted to distinguish her case from Trevathan. Coomer argues that she was suffering from a misdiagnosed, patent injury whereas the plaintiff in Trevathan sought to invalidate her release on the basis of an undiagnosed, latent injury that did not manifest until several months after the release was executed. This is a distinction without a difference. Absent fraud, incapacity, or other compelling evidence of wrongdoing, an injured party who executes a release of claims is bound by the terms of that release. This rule applies regardless of how the subsequently discovered injuries might have been characterized at the time of the release.

Coomer argues that this Court should follow a recent trend in the law of other jurisdictions to recognize mutual mistake as a proper ground for invalidating a release. She also cites a decision of the Court of Appeals, Kendrick v. Bailey Vault Co., Inc., 944 S.W.2d 147 (Ky.App.1997), that invalidated a workers’ compensation settlement on the basis of mutual mistake or constructive fraud, as an example of this trend. Kendrick, however, involved a dispute over workers’ compensation, an area that is governed by its own extensive and distinct body of law. This distinction was acknowledged, at least implicitly, by the Court of Appeals, which justified application of the mutual mistake doctrine in Kendrick because it was “in line with the workers’ compensation goal that injured workers receive the benefits to which they are entitled.” Id. at 150. The application of mutual mistake in the context of these cases can be fairly attributed to “the peculiar nature of workers’ compensation.” AIK Selective Self Ins. Fund v. Bush, 74 S.W.3d 251, 257 (Ky. 2002). Thus, despite some similarity between the facts in Kendrick and in this case, Kendrick’s use of the mutual mistake doctrine is limited to the field of workers’ compensation and has no applicability outside that field.

2. Constructive Fraud

As an alternative to her theory of mutual mistake, Coomer argues that the doctrine of constructive fraud should apply to invalidate her release. At the outset, it is important to note that Coomer has never alleged that Phelps or Progressive engaged in actual fraud in procuring her release. That being said, Coomer contends that the doctrine of constructive fraud should apply to invalidate her release.

Coomer again cites Kendrick for the proposition that constructive fraud may be sufficient to invalidate a settlement agreement. In Kendrick, as mentioned above, the Court of Appeals invoked the doctrine of constructive fraud (along with mutual mistake) to invalidate a settlement between the claimant and the insurance company. In that case, both parties relied, at least in part, on the optimistic, but incorrect, prognosis of the claimant’s physician. The Court of Appeals indicated that the insurance company’s reliance on the opinion of the claimant’s doctor created, in essence, an agency relationship between the company and the doctor. Consequently, the doctor’s medical misrepresentation was imputed to the insurance company, thus allowing the worker to claim constructive fraud. As noted in the previous section, however, the holding in Kendrick is limited to the context of workers’ compensation cases and is not applicable to this case.

This does not mean that the doctrine of constructive fraud is inapplicable to cases outside of the workers’ compensation field. Wood v. Kirby, 566 S.W.2d 751 (Ky.1978), which was cited by the Court of Appeals in Kendrick, sets out a useful definition of constructive fraud, “Constructive fraud arises through some breach of a legal duty which, irrespective of moral guilt, the law would pronounce fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.” Wood, 566 S.W.2d at 755. Coomer has acknowledged in her brief that “a presumption of fraud does not arise out of the bare fact that consideration was inadequate; inadequacy alone is not sufficient to show fraud in law or equity.” (Appellant’s Br. at 14 (internal citations omitted).) Despite having correctly stated this point of law, she has failed to identify a legal duty that either Phelps or Progressive can be said to have violated. Such a violation is a necessary prerequisite for any action premised on constructive fraud. Coomer has failed to produce any evidence that Phelps or Progressive violated any legal duty owed to her. As such, summary judgment on the issue of constructive fraud was proper.

3. Coomer’s Alleged Incapacity

Coomer also alleges that the release was ineffective due to her mental incapacity at the time of its execution. She claims this incapacity resulted from a combination of the severe pain of her injury and the medication she was prescribed for treatment of that pain. Our cases have allowed that incapacity, when properly proven, may provide sufficient grounds to invalidate a release. Louisville & Nashville R. Co. v. Lee, 154 Ky. 226, 157 S.W. 60, 62 (1913). This position was acknowledged in Trevathan v. Tesseneer, 519 S.W.2d 614 (Ky.1975), where the Court noted that “[sjince the record is devoid of any indication of fraud, overreaching, or physical impairment at the time of execution, the simple question becomes whether ... it may be invalidated on the ground of mutual mistake.” Id. at 615 (emphasis added). As the Court of Appeals correctly noted in its opinion, the prerequisite for capacity to execute a personal release is the same as that required for any contract.

Coomer’s bald allegation of incapacity, however, is insufficient to overcome the motion for summary judgment. Coomer claims she was incompetent to execute the release because she was experiencing a great deal of pain from the accident, was prescribed and took more than the recommended dose of Tylenol-3, and does not remember reading or executing the release.

As noted by the Court of Appeals, even though Coomer claims no recollection of reading or executing the release, she could remember calling the adjuster’s associate and offering to settle her claim for $500.00, she could remember the adjuster returning to her home with the check, and she acknowledges that her signature appears on the release. Furthermore, when describing in her deposition the face-to-face encounter with the adjuster, she stated: “He come in and I signed the release. He wished me good luck.” (Emphasis added.) Although she maintained that she did not remember reading the release, when asked if she thought she would have read it, she responded: “I’m quite sure I would have.”

Coomer’s own testimony shows that she telephoned Progressive on her own initiative, that she was lucid enough to negotiate a settlement twice that originally offered by the company, that she recalls the negotiations, that she recalls the adjuster coming to her house, and that she signed and likely would have read the release. Though she claims not to remember actually reading or signing the release, her recollection of other events surrounding her execution of the release are detailed, to say the least.

We also note that Coomer cashed the settlement check a day or two after executing the release. Additionally, the insurance adjuster’s sworn affidavit states that he found no reason to doubt Coomer’s capacity or suspect that she was intoxicated. Furthermore, Coomer has admitted that the $500.00 settlement was fair given what she believed at the time was a minor injury.

Even having reviewed the record in a light most favorable to Coomer, it is clear to this Court that she has failed to establish a genuine issue of material fact as to her competence to execute the release. This is insufficient to overcome summary judgment under Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Summary judgment on this issue was proper.

B. Bad Faith

In addition to her suit for damages against Phelps, Coomer claims that Progressive acted in bad faith in obtaining her release as prohibited by the Unfair Claims Settlement Practices Act (“UCSPA”). KRS 304.12-230. While an action for damages premised on violations of this statute is clearly permitted under Kentucky law, see State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116 (Ky.1989) (permitting a private right of action for violations of KRS § 304.12-230 pursuant to KRS § 446.070), such a claim does not lie in this case. Where, as here, an insurance company has promptly agreed to a reasonable offer of settlement proposed by an injured third party and there is no indication of fraud, there is no actionable claim for bad faith under the statute.

Coomer alleges that Progressive violated the UCSPA’s prohibition of bad faith in two ways. Specifically, she contends that Progressive acted in bad faith by failing to thoroughly investigate the merits of her claim before agreeing to settle and by providing a settlement that was not “fair and equitable.” KRS 304.12-230(6).

In arguing that Progressive failed to adequately investigate her settlement claim, Coomer relies on the combined authority of subsections three and four of the UCSPA, each of which sets forth an example of an unfair settlement practice. See KRS 304.12-230(3) (“[flailing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies”); KRS 304.12-230(4) (“[r]efusing to pay claims without conducting a reasonable investigation based upon all available information”). Based on the preceding subsections of the Act, Coomer would have this court impose a duty on insurers to investigate the validity of any and all statements offered to support claims by injured third parties during settlement negotiations. While KRS 304.12-230(4) prohibits any refusal to pay a claim without first conducting a reasonable investigation, no such obligation arises for an insurer that has agreed to the payment demands of an injured party. Such a duty to “double-check” the basis of third party claims would significantly and erroneously broaden an insurer’s obligation of good faith as set forth in the statute. See Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437, 454 (Ky.1997) (“The UCSPA does not require that a claim be evaluated, or that it be evaluated correctly. It only requires that payment of a claim not be refused without conducting a reasonable investigation based on all available information.”).

Coomer’s second contention, that KRS 304.12-230(6) imposes a broad obligation on insurers to reach settlements that are “fair and equitable,” is equally without merit. The full text of KRS 304.12-230(6) is as follows: “Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” This does not necessarily mean that an insurer’s proposed settlement amount must always provide wholly accurate or complete compensation for an injury. The statute only requires that an insurer make a good faith attempt to settle any claim, for which liability is beyond dispute, for a reasonable amount. The language of this provision is simply inadequate to establish a broad-based requirement that insurance settlements must always be “fair and equitable” in the traditional sense. Where, as here, there is no question of liability, settlement actually occurred within one day of the accident, and, as admitted by the claimant, the settlement was “fair” in light of the information known at the time, no action for bad faith exists under KRS 304.12-230(6).

In short, Coomer insists on an unprecedented, unwarranted, and unwise expansion of the statutory bad faith cause of action. She simply cannot claim bad faith on the part of Progressive when she received a settlement for the amount she demanded. With the benefit of hindsight, it is easy to conclude that Coomer would have been wise to avoid such a settlement, but improvidence alone is insufficient to justify a bad faith claim.

IV. CONCLUSION

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

All concur.

      . While it might be argued that this case involved a unilateral mistake on the part of Coomer, and not a mutual mistake as she alleges, we need not reach that issue having reaffirmed Trevathan.

      . Ultimately, the Court did not choose between the two theories to justify its reversed, though it did note that proceeding under “mutual mistake” might be "more apropos. ...” Kendrick, 944 S.W.2d at 150.

      . Since the issue of mutual mistake in a workers’ compensation case is not before this Court, we do not express an opinion on the soundness of the Court of Appeals' holding in Kendrick.

      .Again, since the issue of constructive fraud in a workers' compensation case is not before this Court, we express no opinion as to the soundness of that portion of the Court of Appeals’ holding in Kendrick.

      . Though she notes her use of the narcotic, Tylenol-3, in support of her claim of incapacity, Coomer asserts no specific claim that she was so intoxicated that this factor alone would support invalidating the release.


author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Gregory A. GABBARD, Respondent.
    No. 2005-SC-000548-KB.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
   OPINION AND ORDER

The Board of Governors (“Board”) of the Kentucky Bar Association (“KBA”) has recommended to this Court that Respondent, Gregory A. Gabbard, who was admitted to practice law in Kentucky on November 1, 1983, whose Bar Roster Address is 3629 Decoursey Avenue, P.O. Box 15196, Covington, Kentucky 41015, and whose KBA Member Number is 23955, be suspended from the practice of law in Kentucky for one year. The Board found Gab-bard guilty of eight counts of professional misconduct arising from two disciplinary cases.

The first disciplinary case, KBA File No. 11727, involves the following facts: On August 20, 2003, Linda Scully hired Gabbard to represent her in filing for bankruptcy. She paid him $500.00 and gave him some of the financial documents necessary to complete the bankruptcy petition. In September 2003, Scully paid Gabbard the $450.00 remainder of the agreed upon fee, for a total of $950.00, and gave him the rest of the financial documents necessary to complete the petition. Gabbard informed Scully that he would file the petition and that her debts should be discharged by February 2004.

Scully attempted to contact Gabbard about the status of her case in January 2004, but his office phone had been disconnected and her calls to his residence were not returned. Scully contacted the Kentucky Bar Association, which advised her that Gabbard had been suspended from the practice of law. Scully continued to try to contact Gabbard by phone, and in March or April 2004, she reached an unidentified person at his residence. The person said that her case would proceed immediately, but the bankruptcy petition was never filed.

Scully filed a bar complaint. Gabbard was served with a copy of the complaint on June 2, 2004 and a warning letter on July 16, 2004. He filed a response by letter on July 27, 2004 (dated July 26, 2004) in which he admitted that Scully’s allegations were substantially correct. He offered the explanation that he and his wife had been seriously ill in the last half of 2003, though he did not identify or explain the illness, and that he had been forced to reduce his practice to only a few cases because of the illness. Gabbard also claimed that he had not proceeded on Scully’s case during the winter of 2003-2004 because he was waiting for Scully to deliver more financial information, and that by the time he received the information, he had been suspended from the practice of law for failure to meet CLE requirements. Finally, Gab-bard claimed that he had returned Scully’s file to her and that he would return the $950.00 fee she had paid.

Gabbard, however, never returned the fee. The Inquiry Commission charged Gabbard with three counts of professional misconduct arising from these facts. Count I alleged that Gabbard violated SCR 3.130-1.3 by failing to act with reasonable diligence and promptness in representing Scully. Count II alleged that Gab-bard violated SCR 3.130-1.4(a) by failing to keep Scully reasonably informed about the status of her case, by failing to promptly comply with reasonable requests for information, and by failing to notify Scully that he was suspended from the practice of law. Count III alleged a violation of SCR 1.130 — 1.16(d) by failing to return an attorney fee in the amount of $950.00 and for failing to return Scully’s financial documents to her.

Gabbard was served with a copy of the charge by a sheriff on February 1, 2005. A warning letter was sent to his bar roster address on February 23, 2005, and the letter was returned as undeliverable on March 1, 2005. Gabbard did not file an answer to the charge, has not communicated with the KBA in any way concerning the charge since the time he was served, and did not appear to defend against the charges before the Board. Thus, the case was heard as a default case. The Board unanimously found Gabbard guilty of all three counts. The Board held its decision as to the penalty in abeyance until the presentation and review of Gabbard’s other disciplinary case.

In making its recommendation, the Board noted that Scully had been driven to seek bankruptcy because of bills from a medical emergency and because she had been laid off from her job. She was unemployed for seven months. During that time, she used all of her savings, financed all the equity in her home, and cashed out her interest in her retirement to try to stay current with her bills. When the bankruptcy petition was not filed, Scully received calls from creditors, who also tried to contact Gabbard and found that his phone number had been disconnected and that the bankruptcy petition had not been filed. Scully could not afford to hire another attorney.

The second disciplinary case, KBA File No. 11986, involves the following facts: On December 16, 2002, Darlene Wilson and her siblings hired Gabbard to represent them in probating their mother’s estate and to negotiate the payoff of a home equity loan on their mother’s real estate. The outstanding amount of the loan was $6,500.00. After funeral and other expenses, there were insufficient funds to pay off the loan. Wilson gave Gabbard the original of her mother’s will and paid him a flat fee of $450.00. Wilson is on Social Security Disability, has only a small monthly income, and cannot afford to hire another attorney.

On May 8, 2003, over four months after his representation began, Gabbard sent a letter to the attorney for the bank holding the home equity loan. Gabbard took no other action on behalf of Wilson or her mother’s estate as to the loan. Wilson, acting on her own, eventually reached an agreement with the bank as to repayment of the loan. Gabbard never filed a probate action regarding Wilson’s mother’s estate. Wilson and her siblings unsuccessfully tried to contact Gabbard by phone for several months; his office phone had been disconnected, and calls to his home were not returned. Gabbard never notified Wilson and her siblings that his representation was terminated, and he did not refund the $450.00 fee or return their original documents or their file.

Wilson filed a bar complaint. Service of a copy of the complaint and a later warning letter were attempted both through certified mail and by personal service by the Kenton County Sheriff. Both attempts were unsuccessful, so Gabbard was constructively served through service on the Executive Director pursuant to SCR 3.175(2), with the copy of the complaint arriving on November 5, 2004 and the warning letter on January 12, 2005.

Gabbard did not file a response to the bar complaint. On March 23, 2005, the Inquiry Commission charged Gabbard with five counts of professional misconduct. Count I alleged that Gabbard violated SCR 8.180-1.8 by failing to act with reasonable diligence and promptness in representing Wilson and her siblings. Count II alleged that Gabbard violated SCR 3.130-1.4(a) by failing to keep Wilson and her siblings reasonably informed about the status of their case and by failing to promptly comply with reasonable requests for information by failing to return phone calls or otherwise communicate with his clients. Count III alleged that Gabbard violated SCR 3.130-1.16(d) by failing to notify his clients that he was terminating representation, by failing to return his clients’ file and original documents, and by failing to refund the unearned attorney fee. Count IV alleged that Gabbard violated SCR 3.130-1.5(a) by accepting a fee from his clients, and then failing to file a probate action, negotiate payment of the home equity loan, or take any other action on behalf of his clients. Count V alleged that Gabbard violated SCR 1.120 — 8.1(b) by failing to respond to the bar complaint.

The charge was sent via certified mail to Gabbard’s bar roster address, but was returned as undeliverable on March 28, 2005. The Kenton County Sheriff attempted to serve Gabbard with a copy of the charge and reported that his office was vacant. Gabbard was constructively served with a copy of the charge pursuant to SCR 3.175(2) on April 4, 2005. Gabbard did not file an answer to the charge, has not communicated with the KBA in any way concerning the charge since the time he was served, and did not appear to defend against the charges before the Board. Thus, the case was heard as a default case. The Board unanimously found Gabbard guilty of Counts I-IV and found him guilty of Count V by a vote of 17-1.

The Board considered the two disciplinary cases jointly for purposes of its recommendation to this Court. In deciding the level of sanction, the Board considered Gabbard’s pattern of misconduct, including promises to repay the client’s fee in Scully’s case and the failure to do so, and the circumstances of Scully and Wilson and the significance of the sums taken from them by Gabbard. The Board also considered the following similar prior cases: Kentucky Bar Association v. Howard, 111 S.W.3d 864 (Ky.2003) (ordering ninety-day suspension where attorney failed to file motion for a trial date, failed to respond to a notice of dismissal, and failed to inform client of dismissal of his case); Kentucky Bar Association v. Perry, 102 S.W.3d 507 (Ky.2003) (ordering 181-day suspension where attorney told client she was retiring and would no longer represent him, then failed to respond to discovery requests, failed to respond to client’s request for his file, and failed to respond to bar complaint); Kentucky Bar Association v. Chinn, 64 S.W.3d 289 (Ky. 2002) (ordering thirty-day suspension where attorney filed bankruptcy petition incorrectly, resulting in dismissal, then failed to inform client of dismissal and failed to respond to client’s repeated attempts to contact him); Kentucky Bar Association v. Carrithers, 64 S.W.3d 290 (Ky. 2002) (ordering thirty-day suspension where attorney agreed to pursue a collections matter and a dental malpractice claim for a client, then did nothing for three and a half years, thus allowing the malpractice limitations period to expire, and failed to return client’s files upon request).

The Board, by a 13-5 vote, recommended a one-year suspension in each case, to run concurrently, with a requirement that Gabbard repay the unearned fees with interest. A five member minority voted to impose only a 181-day suspension. Gabbard has not filed a notice for this Court to review the Board’s decision, and we do not elect to review the decision of the Board pursuant to SCR 3.370(8). The decision of the Board is hereby adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED:

(1) Respondent, Gregory A. Gabbard, is suspended from the practice of law in Kentucky for a period of one (1) year. The period of suspension shall commence on the date of entry of this Order and shall continue until he is reinstated to the practice of law by this Court pursuant to SCR 3.510.
(2) Respondent is directed to refund $950.00, with interest at the legal rate, to Linda Scully within thirty (30) days of the entry of this Opinion and Order, and to refund $450.00, with interest at the legal rate, to Darlene Wilson within thirty (30) days of the entry of this Opinion and Order.
(3) In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $304.06, for which execution may issue from this Court upon finality of this Opinion and Order.
(4) Pursuant to SCR 3.390, Respondent shall, within ten (10) days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his suspension from the practice of law, and furnish copies of said letters of notice to the Director of the Kentucky Bar Association.

All concur.

Entered: September 22, 2005.

/s/ Joseph E. Lambert CHIEF JUSTICE

      . Gabbard was suspended from the practice of law by Order dated January 16, 2004 for failure to comply with CLE requirements. He had no prior disciplinary actions.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Jeffrey Lee WADE, Respondent,
    No. 2005-SC-0549-KB.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
   OPINION AND ORDER

Respondent, Jeffrey Lee Wade, whose last known bar roster address was 730 West Main Street, Louisville, Kentucky, was admitted to the practice of law in the Commonwealth of Kentucky on October 25, 1982. On August 21, 2003, Wade was suspended from the practice of law for two (2) years by this Court. Kentucky Bar Association v. Wade, 112 S.W.3d 388 (Ky. 2003). The Kentucky Bar Association has brought this action against Wade for a number of violations of the Supreme Court Rules of Professional Conduct constituting seven separate cases against him. Wade failed to tender a response and the matters proceeded as default cases. Pursuant to SCR 3.370(10), which governs default cases, this Court hereby adopts the decision of the Board of Governors.

File No. 10211

In 2000, Bruce Stansbury hired Wade to represent him in a custody and support matter regarding Stansbury’s disabled daughter, Stacey. Stansbury paid Wade $2,800. From mid-2000 until October 2002, Stansbury received few updates on his case and could not contact Wade. At an October 2002 hearing in family court, both parties were ordered to file briefs. Wade failed to do so and the family court judge entered a judgment awarding continued custody to Stacey’s mother. Wade further failed to notify Stansbury of the judgment. In January 2003, Stansbury filed a complaint with the KBA. Wade was personally served with the complaint on March 6, 2003, but failed to file a response.

On September 8, 2003, the Inquiry Commission charged Wade with violations of: SCR 3.130-1.3, for failing to act with reasonable diligence and promptness in representing his client; SCR 3.130-1.4(a), for failing to keep his client reasonably informed about the status of his case and promptly complying with a request for information; SCR 3.130-1.16(d), for failing to take reasonably practical steps to protect his client’s interests; SCR 3.130-1.15(b), for failing to render full and complete accounting for the monies that Stans-bury paid to him; and SCR 3.130-8.1(b), for failing to respond to the complaint.

The five-count charge was served upon Wade through the Secretary of State on October 29, 2003. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

File No. 10617

Robert Farris hired Wade in September 2002 to represent him with respect to recovery of will assets and a possible will contest action. Farris paid Wade $1,200 and signed a contract that provided Wade would receive one-third of all assets recovered. Apparently, Wade advised Farris he would be unable to take any action until the first part of 2003 due to other court deadlines. Between February and April 2003, Farris made repeated unsuccessful attempts to contact Wade. Farris filed a bar complaint on May 27, 2003. Wade was served through the Secretary of State and did not file a response.

On October 31, 2003, the Inquiry Commission charged Wade with violations of: SCR 3.130-1.3, for failing to act with appropriate diligence and promptness; SCR 3.130-1.4(a), for failing to keep his client reasonably informed about the status of his case; SCR 3.130 — 1.16(d), for failing upon termination of representation to return the unearned portion of his fee; SCR 3.130-1.15(b), for failing to provide his client with an accounting of the fee earned; and SCR 3.130 — 8.1(b), for failing to respond to the complaint.

The five-count charge was served upon Wade through the Secretary of State on December 17, 2003. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

File No. 1079k

In mid-2000, Russell Hinkle hired Wade regarding a marital dispute and possible estate planning. It is unclear whether any retainer was paid. Hinkle claimed that from June 2002 until July 2003, Wade did nothing to advance his case. In July 2003, Hinkle e-mailed Wade and advised him he no longer needed his services. Attached to Hinkle’s complaint was a lengthy e-mail from Wade discussing a number of marital property issues; however, there is no indication that any matter was pending in court. Hinkle’s complaint was served upon Wade through the Secretary of State on March 26, 2004. Wade did not respond.

On October 13, 2004, the Inquiry Commission charged Wade with violations of: SCR 3.130-1.1, for failing to provide competent representation; SCR 3.130-1.3, for failing to act with appropriate diligence and promptness; SCR 3.130-1.4(a), for failing to keep his client reasonably informed about the status of his case; SCR 3.130-1.16(d), for abandoning representation of his client without notice to the chent; and SCR 3.130 — 8.1(b), for failing to respond to the complaint.

The five-count charge was served upon Wade through the Secretary of State on March 3, 2005. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

File No. 11109

In June 2001, Heather Wheeler hired Wade to assist her in the administration of her father’s estate. Wheeler paid Wade $600. Because Wade failed to file periodic reports or a final settlement, Wheeler was twice removed as administratrix of the estate. Wheeler was repeatedly unable to contact Wade regarding various estate matters. After Wade failed to handle several matters, Wheeler filed a complaint with the KBA. Wade was served through the Secretary of State on December 16, 2003, and did not respond.

On October 13, 2004, the Inquiry Commission charged Wade with violations of SCR 3.130-1.1, for failing to provide competent representation; SCR 3.130-1.3, for failing to act with appropriate diligence and promptness; SCR 3.130-1.4(a), for failing to keep his client reasonably informed about the status of her case; SCR 3.130-1.16(d), for failing upon termination of representation to provide his client with documents belonging to her; and SCR 3.130-8.1(b), for failing to respond to the complaint.

The five-count charge was served upon Wade through the Secretary of State on March 3, 2005. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

File No. 11159

Wade prepared the will of Ruby Pearly Tilley, who died on November 5, 2002. Herbert Pollick, who was named executor in the will, contacted Wade in November 2002 to probate the will. Pollick paid Wade $200. Other than one letter from Wade in April 2003, neither Pollick nor his wife was able to contact Wade about probating the will. In October 2003, Pollick contacted the KBA and learned that Wade was suspended from the practice of law. Pollick filed a complaint on October 12, 2003. Wade was served through the Secretary of State on December 16, 2003, and did not respond.

On October 13, 2004, the Inquiry Commission charged Wade with violations of SCR 3.130-1.1, for failing to provide competent representation; SCR 3.130-1.3, for failing to act with appropriate diligence and promptness; SCR 3.130-1.4(a), for failing to keep his client reasonably informed about the status of his case; and SCR 3.130-8.1(b), for failing to respond to the complaint.

The four-count charge was served upon Wade through the Secretary of State on March 3, 2005. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

File No. 11387

On December 11, 2002, Verlie Cato hired Wade to obtain a title to real estate situated in Meade County claimed by Cato and her relations. Cato paid Wade $2,500. Cato had no contact with Wade until she received a letter in September 2003, advising her of his suspension. Cato filed a bar complaint on January 17, 2004. Wade was served through the Secretary of State on March 11, 2004, and did not respond.

On October 13, 2004, the Inquiry Commission charged Wade with violations of SCR 3.130-1.3, for failing to act with appropriate diligence and promptness; SCR 3.130-1.4(a), for failing to keep his client reasonably informed about the status of her case; SCR 3.130-1.16(d), for failing upon termination of representation to return the unearned portion of his fee; SCR 3.130 — 8.3(a)(b)(c), for collecting a fee from his client but failing to provide representation and retaining those funds for personal use; and SCR 3.130-8.1(b), for failing to respond to the complaint.

The five-count charge was served upon Wade through the Secretary of State on March 3, 2005. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

File No. 11888

On January 31, 2002, Rosanne DiCioccio hired Wade to represent her in a divorce action and a medical malpractice claim. Wade agreed to accept the divorce action at an hourly rate of $175 and the medical negligence case on a contingent basis. DiCioccio informed Wade that she did not want the malpractice claim to go to trial and that she wished to have it settled as quickly as possible. Nonetheless, Wade refused to depose witnesses or demand a settlement offer. When the case was about to be dismissed, Wade had the matter reinstated despite DiCioccio’s instructions to allow the matter to be dismissed. After repeated requests to have the case dismissed, DiCioccio contacted the KBA and learned that Wade was suspended. Thereafter, DiCioccio wrote Wade demanding that he refund the $1,400 that she had paid him. Wade responded that he had billed time valued at $1,015. DiCioc-cio filed a complaint with the KBA on January 21, 2004. Wade was served through the Secretary of State on March II, 2004, but did not respond.

On October 13, 2004, the Inquiry Commission charged Wade with violations of SCR 3.130-1.1, for failing to provide competent representation; SCR 3.130-1.2(a), for failing to abide by his Ghent’s reasonable directions; SCR 3.130~1.4(a), for failing to keep his client reasonably informed about the status of her case; SCR 3.130-1.5, for collecting a fee and then failing to provide the agreed upon legal services; SCR 3.130-1.16(d), for abandoning representation of his client without notice and failing to return the unearned portion of his fee; SCR 3.130-8.3, for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation by failing to return the unearned portion of the fee; and SCR 3.130-8.1(b), for failing to respond to the complaint.

The seven-count charge was served upon Wade through the Secretary of State on March 3, 2005. Wade did not respond and the matter was submitted to the Board of Governors as a default case pursuant to SCR 3.210(1).

Board of Governors

All nineteen members of the Board of Governors present and voting found guilt with respect to all charges contained in KBA File Nos. 10211, 11387, 11109, 10617, and 11388. As to the Charge in File No. 11159, eighteen members found Wade not guilty as to Counts I,II, and III, but guilty on Count IV. The Board noted that it appeared from the scant record that Wade did perform some work for which the fee was paid, ie. probate of the Tilley will.

With respect to the Charge in KBA File No. 10794, all nineteen Board members found Wade not guilty of Counts I,II, and III, but guilty of Count IV. The Board concluded that even though Wade did not respond to the charges, the Board could not find guilt when it was unclear from the record whether Hinkle had actually retained Wade, whether any fees had been paid, and what the precise nature of the work was that he had been asked to do.

With respect to discipline, two members voted for permanent disbarment and seventeen voted for a five year suspension to run concurrent with all current suspensions, as well as restitution in File Nos. 10211,10617,11109,11387, and 11388.

Accordingly, upon the foregoing facts and charges, it is hereby ordered that the decision of the Board of Governors be adopted. It is further ordered that:

(1) Respondent, Jeffery Lee Wade, be suspended from the practice of law for a period of five (5) years, commencing upon the entry of this Opinion and Order, to run concurrent with any and all suspensions currently imposed. The suspension shall continue until he is reinstated to the practice of law by order of this Court pursuant to SCR 3.510.
(2) Wade shall not be permitted to apply for reinstatement until he has fully refunded the fees as outlined in this Opinion and Order.
(3) In accordance with SCR 3.390, Wade shall, within ten (10) days of the entry of this Opinion and Order, notify all clients of his inability to represent them and furnish copies of said letters of notice to the Director of the Kentucky Bar Association. He shall also provide such notification to all courts in which he has matters pending.
(4) Wade is directed to pay the costs of this action in accordance with SCR 3.450, said sum being $1,120.06, and for which execution may issue from this Court upon finality of this Opinion and Order.

LAMBERT, C.J.; COOPER, JOHNSTONE, ROACH, SCOTT, and WINTERSHEIMER, JJ., concur.

GRAVES, J., would take review and vote to disbar Respondent.

Entered: September 22, 2005.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    INQUIRY COMMISSION, Movant, v. Stephen P. ROBEY, Esq. Respondent.
    No. 2005-SC-000573-KB.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    Linda Gosnell, Chief Bar Counsel, Kentucky Bar Association, Frankfort, KY, Counsel for Movant.
    Gardner L. Turner, Sturgill, Turner, Truitt, Lexington, Steve P. Robey, Providence, KY, Counsel for Respondent.
   OPINION AND ORDER

The Inquiry Commission requests that Respondent Stephen P. Robey, KBA Member No. 59230, whose last known address is 508 East Main Street, Providence, KY 41450, be temporarily suspended from the practice of law in the Commonwealth of Kentucky as there is probable cause to believe, pursuant to SCR 3.165(l)(d), that Respondent is addicted to intoxicants or drugs and does not have the physical or mental fitness to continue to practice law. The Inquiry Commission states, further, that there is probable cause to believe, pursuant to SCR 3.165(l)(b), that Respondent poses a substantial threat of harm to his clients or to the public.

The Respondent is currently under indictment in the Hopkins Circuit Court having been charged with three counts of First Degree Wanton Endangerment, one count of DUI, one count of First Degree Traffickiing in a Controlled Substance, one count of Third Degree Possession of a Controlled Substance, and one count of Possession of Drug Paraphernalia. The indictment issued September 28, 2004 as a result of an August 12, 2004 automobile accident.

The Respondent is also under indictment in the Webster Circuit Court having been charged with having a Controlled Substance not in Original Container, one count of Second Degree Possession of a Controlled Substance, and three counts of Third Degree Possession of a Controlled Substance. The indictment and arrest warrant issued October 21, 2004 were obtained by Sgt. Todd Jones of the Kentucky State Police after Sgt. Jones arrested Respondent on the September 28, 2004 Hopkins County arrest warrant and discovered the drugs and related items on the Respondent’s person. Sgt. Jones, having known Respondent for approximately seventeen years, observed that the Respondent’s speech was slow and halting and that his movements were slower than normal.

On October 30, Sgt. Jones, in his affidavit to the Inquiry Commission, stated he observed the Respondent drive slowly past his house and the house of his neighbor, Tony Fletcher, a suspected drug trafficker. Sgt. Jones said he was off duty, but followed the Respondent to Fletcher’s house. He also stated he had heard a rumor that the Respondent and his girlfriend had been purchasing illegal drugs at Fletcher’s house. When he arrived at Fletcher’s house, he stated the Respondent appeared to be impaired and under the influence of an intoxicant; the female passenger in the Respondent’s car was extremely impaired and incoherent. The Respondent assured Sgt. Jones that he would not be driving.

The Respondent was charged on June 8, 2005, in Webster District Court, of two charges of Theft by Deception stemming from the passing of two worthless checks; one in the amount of $24.29 to the Webster County Clerk’s Office on January 26, 2005 and one in the amount of $125.75 to Redwood Market on April 11, 2005. The Respondent was provided written notice to pick up both checks, which he failed to do.

On February 3, 2004, the Respondent was appointed Executor of the Estate of Edna Emma Miller in Webster District Court. The Respondent filed an Inventory on March 22, 2004, and took no further action to finalize the estate. The Respondent was removed as Executor of the Estate after refusing to finalize the estate or respond to repeated inquiries from the heirs requesting information about the estate.

The Respondent obtained the client file for Mr. Van Nabb when he agreed to cover an associate’s cases during her prolonged medical leave in May — June of 2004. Mr. Nabb stated in his affidavit to the Inquiry Commission that, while in the possession of his file, the Respondent failed to return Mr. Nabb’s phone calls and was not keeping regular office hours and that the Respondent was exhibiting erratic behavior.

Kenneth Shouse retained the Respondent to represent him in a criminal matter in Union Circuit Court. Mr. Shouse spoke with the Respondent on April 12, 2005, and advised him that he would have a preliminary hearing on April 14, 2005. At that time, Mr. Shouse paid the Respondent a retainer fee. The Respondent failed to appear in court for the preliminary hearing with Mr. Shouse after agreeing to be there. Mr. Shouse testified to this at his preliminary hearing.

The Respondent was retained to represent Stephen and Dee Watson as a result of injuries suffered by Mr. Watson in an automobile accident. On February 27, 2004, the Respondent filed a civil action in Lyon Circuit Court on behalf of Mr. Watson. The Respondent filed an Amended Complaint on March 1, 2004, and thereafter failed to take any further action in the case. The case was dismissed on May 2, 2005 after the Respondent failed to answer interrogatories served on April 7, 2004, failed to appear for the first status conference on January 6, 2005, failed to comply with an Order to Compel entered January 7, 2005, failed to appear at a hearing on the Defendant’s Motion for Sanctions and the second status conference on April 4, 2005, and failed to appear at or cancel a mediation held on April 14, 2005.

In February of 2005, Benjamin Cruce retained the Respondent to represent him in a criminal matter in the Henderson Circuit Court. Mr. Cruce paid the Respondent approximately $2300.00 for his representation. Thereafter, the Respondent failed to appear in court with Mr. Cruce on three separate occasions, including January 3, 2005, February 7, 2005, and May 9, 2005. During the representation, the Respondent failed to file a Motion to Reduce Bond on behalf of Mr. Cruce, despite being requested to do so. Mr. Cruce was also unable to reach the Respondent by telephone. The Respondent refused to refund any of the approximately $2300.00 paid by Mr. Cruce, despite requests to do so. Mr. Cruce’s mother stated in her affidavit to the Inquiry Commission that a public defender was appointed to represent her son at one of his hearings as a result of the Respondent’s absence and that the Respondent never notified her son of his need to be absent.

On June 8, 2005, the Office of Bar Counsel received a Client’s Security Fund Application sworn to by Dorothy Miers, one of the Respondent’s Clients. Ms. Miers asserts that she paid the Respondent $5000.00 on February 18, 2005, to represent her. He advised her that he would appear in court with her, and he never appeared. She went to his office to request a refund, but he would not return her money. She also notes that the Respondent’s phone has been cut off.

After becoming aware of certain of these criminal matters and client complaints, due to information that has been provided regarding the Respondent’s substance abuse issues, the Office of Bar Counsel communicated with the Respondent through a series of letters, asking whether he would be willing to address his substance abuse issues and agree to allow the Office of Bar Counsel to communicate with KYLAP regarding his substance abuse problem. According to the Inquiry Commission’s Petition, the Office of Bar Counsel had hoped that the Respondent was aggressively addressing any substance abuse issues that he may have, and that proof he had seriously and aggressively participated in rehabilitation would allow the Inquiry Commission to forego temporary suspension proceedings.

In letters dated May 27, 2005 and June 17, 2005, the Office of Bar Counsel asked whether the Respondent would be willing to communicate with KYLAP and allow the Office of Bar Counsel to communicate with KYLAP in an effort to address his substance abuse issues. The Office of Bar Counsel further questioned whether the Respondent entered into a monitoring agreement with KYLAP, had attended any rehabilitation program, and would be willing to provide releases permitting the Office of Bar Counsel to review and use treatment records in disciplinary or temporary suspension proceedings and to use KYLAP records in disciplinary or temporary proceedings.

In response to the letters from the Office of Bar Counsel, the Respondent signed releases permitting the Office of Bar Counsel to review and use his medical records and KYLAP records in disciplinary or temporary suspension proceedings. He also enclosed a report dated February 8, 2005, from a drug counselor, Lawrence Peyton, indicating that he had been drug and alcohol free since September 15, 2004, and that the Respondent had tested negative on a seven-panel drug test on January 27, 2005. In his letters to the Office of Bar Counsel, dated June 3, 2005 and June 21, 2005, the Respondent asserted that he went through a “complete drug evaluation, and this year successfully completed the recommended twelve week program for rehabilitation.” He also stated that he had attended weekly NA and AA meetings.

The Office of Bar Counsel obtained the Respondents’s records from New Horizon’s Counseling and KYLAP. According to the New Horizon records obtained by the Office of Bar Counsel, the Respondent completed twelve weeks of outpatient counseling. The treatment contract indicated that the twelve week program was required as a result of his conviction for DUI, First Offense. He was also required to attend AA or NA meetings twice a week and obtain an AA or NA sponsor within thirty days. The Respondent advised the Office of Bar Counsel of the identity of two individuals, both volunteers with KYLAP, who he alleged were his sponsors.

The Respondent filled out a question-aire, wherein he described methamphet-amines as his favorite drug and indicated that he has used marijuana, cocaine, crack, methamphetamine, and amphetamines. He also indicated that he did not abuse prescription drugs. Mr. Peyton’s notes indicate that the Respondent met with him on approximately twelve occasions. Throughout the treatment, the Respondent completed a written analysis of three steps of this twelve step program. Mr. Petyon’s notes further reflect that on October 26, 2004, the Respondent told Mr. Peyton that he had not used drugs since September 15, 2004. On November 9, 2004, the Respondent reported to Mr. Pey-ton the identity of one of the individuals he claimed were his sponsors. On November, 30, 2004, the Respondent reported that he “was around cocaine,” but that he did not use any. Mr. Peyton advised him that that was very risky behavior. Mr. Pey-ton’s notes from January 22, 2005, reflect that both of the identified KYLAP volunteers attended the Respondent’s session with him, agreeing to be his twelve-step sponsors. On March 9, 2005, Mr. Peyton’s notes reflect that the Respondent “has completed all of his treatment goals and has completed his outpatient program.”

Although the Respondent has indicated that he has participated in a rehabilitation program and that he has not used drugs since September of 2004, and his records from New Horizons Counseling seem to corroborate his statements, the totality of the evidence together with the records received from KYLAP indicate that the Respondent has not aggressively sought treatment, has not taken his treatment seriously, and has significant ongoing problems that affect his ability to represent his clients.

The Respondent’s KYLAP records indicate that there were several misrepresentations in the Respondent’s records from New Horizons. For example, the Respondent admitted to KYLAP representatives that he was taking non-prescribed Valium on a daily basis. Further, on December 15, 2004, the Respondent indicated to a KYLAP representative that he had been off drugs for a period of weeks rather than the September 15, 2004, date that had been given to the counselor at New Horizons. The KYLAP records also reflect that the Respondent avoided attending meetings, that the Respondent is still surrounding himself with “druggie” clients and friends, and that he may be living with a “well-known addict.” Finally, and perhaps most tellingly, the Respondent reported to KYLAP (as well as New Horizons) that one of the KYLAP volunteers was his twelve-step sponsor. According to the KYLAP records, this particular volunteer has vehemently denied this assertion, saying that he has not heard from the Respondent in some time. There is no indication from the KYLAP records that either KYLAP volunteer had ever attended a New Horizons Counseling session with the Respondent, or that they had ever been successful in getting the Respondent to attend a single AA or NA meeting.

Although the Respondent indicated in his June 21, 2005, letter to the Office of Bar Counsel that he would immediately contact a local KYLAP member to enter into a monitoring and oversight agreement with KYLAP, the Respondent’s KYLAP records indicate that he did not request such an agreement until July 6, 2005. A blank agreement was forwarded to him on July 13, 2005. However, as of July 20, 2005, the Respondent has not signed and returned that agreement.

Although the Respondent has asserted that he has refrained from using drugs since September 15, 2004, the majority of the evidence discussed herein and relating to the Respondent’s criminal and client issues arises from the Respondent’s conduct since that time, indicating that the Respondent is being less than truthful in his assertion.

Thus, there is probable cause to believe pursuant to SCR 3.165(l)(b) and SCR 3.165(l)(d), that Respondent continues to pose a substantial threat of harm to his clients or to the public, and that he is currently addicted to intoxicants or drugs and does not have the physical or mental fitness to continue to practice law.

The Respondent has failed to file a timely response to the Inquiry Commission’s petition, and finding probable cause exists, we hereby grant the petition for temporary suspension in accordance with SCR 3.165(l)(b) and SCR 3.165(l)(d).

Accordingly, it is hereby ORDERED that:

1. The Respondent, Stephen P. Robey, is temporarily suspended from the practice of law in the Commonwealth of Kentucky pending further orders from this Court.

2. Disciplinary proceedings against the Respondent shall be initiated by the Inquiry Commission pursuant to SCR 3.160, unless already begun or unless the Respondent resigns under terms of disbarment.

3. Pursuant to SCR 3.165(5), the Respondent shall within twenty (20) days of the date of entry of this order notify all clients in writing of his inability to continue to represent them and shall furnish copies of such letters of notice to the Director of the Kentucky Bar Association.

4. Pursuant to SCR 3.165(6), the Respondent shall immediately, to the extent reasonably possible, cancel and cease any legal practices advertising activities in which he is engaged.

All concur.

ENTERED: September 22, 2005.

/s/ Joseph E. Lambert

CHIEF JUSTICE

      . The October 21, 2004 indictment and arrest warrant was served on October 21, 2004.

      . The Respondent filed a Motion for Extension/Expansion of Time to File Response to Petition For Temporary Suspension on August 30, 2005 which was denied August 31, 2005 by an Order of this Court.