author: Justice JOHNSTONE.

text:
    Steven Thomas RICHARDSON, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2003-SC-0654-MR.
    Supreme Court of Kentucky.
    March 17, 2005.
    As Modified on Grant of Rehearing May 19, 2005.

      Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

Appellant, Steven Thomas Richardson, was convicted in the Franklin Circuit Court of first-degree rape, first-degree sodomy, second-degree rape, second-degree sodomy, and two counts of first-degree sexual abuse. He was sentenced to forty years’ imprisonment and appeals to this Court as a matter of right. Finding no error, we affirm.

Appellant’s convictions stem from acts committed against J.R., a mentally handicapped minor, from the time she was about eleven years old until sometime after her thirteenth birthday. J.R.’s grandmother was the manager of the apartment complex where Appellant lived, and apparently J.R. and her mother had known Appellant since J.R. was four or five years old. The evidence indicated that J.R.’s mother frequently allowed J.R. to spend the night with Appellant, and that he often bought J.R. clothes and other presents.

In 2001, then thirteen-year-old J.R. was interviewed by a caseworker for the Cabinet for Families and Children in connection with an investigation of J.R.’s stepfather for allegations of sexual abuse against J.R. During that interview, J.R. first disclosed that Appellant was her boyfriend and that the two had been engaging in various sexual activities since before her twelfth birthday. J.R. even stated that she and Appellant wanted to get married and have a baby. Based upon J.R.’s statements, the Cabinet initiated an investigation of Appellant.

Appellant was initially indicted on twenty counts of second-degree rape. However, that indictment was superseded by a second indictment charging the offenses at issue herein. Following a trial, the jury convicted Appellant on all counts and recommended a sentence of eighty years’ imprisonment. The trial court reduced the jury verdict to forty years’ imprisonment. This appeal ensued. Additional facts are set forth as necessary.

I.

Appellant first challenges the trial court’s refusal to permit cross-examination of the Commonwealth’s expert, forensic pediatrician Dr. Betty Spivak, on J.R.’s psychiatric problems and medications she was taking. Appellant claims that J.R.’s mental health problems and her past hospitalization were relevant to impeach her credibility as a witness, since it was his theory at trial that J.R. fantasized that Appellant was her “boyfriend” and that her descriptions of the sexual activities were, in fact, attributable to the sexual abuse by her stepfather.

Dr. Spivak conducted a physical examination of J.R. at the behest of authorities investigating the allegations against Appellant. At trial, Dr. Spivak testified as to her physical findings, namely that J.R.’s hymenal tissue showed abnormalities attributable to multiple episodes of penetration. Dr. Spivak noted that her findings were consistent with J.R.’s disclosure of repeated instances of sexual intercourse with Appellant and with her stepfather. Dr. Spivak made no reference to any mental health issues.

On cross-examination, defense counsel sought to elicit information regarding J.R.’s psychiatric history and any medications given therefore. At a bench conference, the trial court sustained the Commonwealth’s objection on the grounds that J.R.’s psychiatric records were confidential and that defense counsel had not followed the proper procedures for disclosure of the information.

Relying on this Court’s recent decision in Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.2003), Appellant argues that he was entitled to cross-examine Dr. Spivak about J.R.’s mental health status, because such evidence could have had a direct impact on J.R.’s ability to recall, comprehend, and accurately recount events regarding the alleged sexual abuse. Appellant maintains that because Dr. Spivak noted in her written report that J.R. suffered from psychiatric disorders, she should have been permitted to testify about the nature of those disorders. We disagree.

This Court held in Barroso, as we previously did in Eldred v. Commonwealth, 906 S.W.2d 694 (Ky.1994), cert. denied, 516 U.S. 1154, 116 S.Ct. 1034, 134 L.Ed.2d 111 (1996), that “[i]f the psychotherapy records of a crucial prosecution witness contain evidence probative of the witness’s ability to recall, comprehend, and accurately relate the subject matter of the testimony, the defendant’s right to compulsory process must prevail over the witness’s psychotherapist-patient privilege.” Barroso, supra, at 563. However, Appellant fails to recognize that Eldred and Barroso mandate that certain procedures must be followed before such confidential information is disclosed. Only upon a preliminary showing of “evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence” are a witness’s psychotherapy records subject to production. Barroso, supra, at 564. And even at that point, the production is limited to an in camera inspection by the trial court to determine whether the records, in fact, contain exculpatory evidence, including that relevant to the witness’s credibility-

Appellant was in possession of Dr. Spivak’s report for over a year prior to trial and, thus, was aware that J.R. suffered from several psychiatric disorders. However, defense counsel neither sought review of J.R.’s records nor produced any evidence that the records contained exculpatory evidence relevant to J.R.’s credibility. Moreover, contrary to defense counsel did not argue during the bench conference that J.R.’s psychiatric history was relevant to her credibility; counsel merely stated he wanted to question Dr. Spivak about J.R.’s disorders because it was noted in her written report. However, as Dr. Spi-vak testified, her role was limited to the physical examination of J.R. Dr. Spivak neither provided psychiatric treatment nor rendered any psychiatric opinions. As such, she was not qualified to give expert testimony as to J.R.’s psychiatric disorders.

J.R.’s psychiatric records may or may not have been relevant to impeach her credibility as a witness. We note, however, that there is no evidence in the record to support Appellant’s claim that J.R. fabricated or “fantasized” the alleged activities. Nevertheless, disclosure of J.R.’s confidential mental health information for the first time at trial would not have been appropriate. Had Appellant wished to explore that avenue of evidence, he was required to follow the procedure mandated by Eldred and Barroso. Appellant failed to do so. As such, the trial court did not err in prohibiting Dr. Spivak’s testimony.

II.

Appellant next argues that the trial court erred in refusing to remove Juror 6 for cause after she disclosed that she had been the victim of sexual abuse fourteen years earlier. Appellant claims he was prejudiced by such as he was required to use a peremptory strike to remove Juror 6. Thomas v. Commonwealth, 864 S.W.2d 252 (1993); We disagree.

When questioned at the bench, Juror 6 explained that the abuse did not involve a family member and that she did not require psychiatric counseling as a result. Further, Juror 6 stated that her case did not go to trial because the charges were eventually dropped. Juror 6 confirmed that it did not bother her to sit on a sexual abuse case and that she was capable of deciding the case based on the evidence presented.

The decision whether to remove a juror for cause is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Mills v. Commonwealth, 996 S.W.2d 473 (Ky.1999), cert, denied, 528 U.S. 1164, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000); Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003); Pendleton v. Commonwealth, 83 S.W.3d 522 (Ky.2002). “It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause.” Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky.1958).

Appellant makes much of the fact that Juror 6 asserted that she was a “victim” of sexual abuse rather than stating she had been involved in an incident that resulted in sexual abuse charges. It is a distinction without a difference. The fact that a prospective juror has been a victim of a similar crime is insufficient, in and of itself, to warrant removal for cause. Bowling v. Commonwealth, 942 S.W.2d 293 (Ky.1997), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997); Butts v. Commonwealth, 953 S.W.2d 943 (Ky.1997). Moreover, we find Appellant’s reliance on Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1991) misplaced. Unlike the juror in Montgomery, Juror 6 did not need to be rehabilitated. Other than admitting she had been a vie-tim of a sex crime fourteen years earlier, Juror 6 made no statements indicating that she had any bias or preconceived opinions of Appellant’s case. She unequivocally confirmed that she could fairly and impartially decide the case.

The trial court was in the best position to evaluate Juror 6’s demeanor and answers during voir dire. Bowling, supra. See also Whalen v. Commonwealth, 891 S.W.2d 86 (Ky.App.1995). We cannot conclude that the trial court abused its discretion in refusing to remove her for cause once she satisfied the court that she could objectively evaluate the evidence on all counts and render a fair verdict.

III.

Appellant next claims that he was prejudiced by J.R.’s testimony that he gave her Marlboro cigarettes and alcoholic drinks. Appellant argues that this irrelevant “evidence of collateral criminal activity” likely led the jury to believe he was “unsavory” and more likely to have committed the charged offenses. Appellant concedes that this issue is unpreserved, but urges review pursuant to RCr 10.26 as palpable error.

Although KRE 404(b) was not raised at trial, the Commonwealth now defends the admission of this evidence as relevant to Appellant’s opportunity, planning, and preparation to induce J.R. to engage in sexual activities with him. We agree that the evidence was certainly part of Appellant’s modus operandi in controlling J.R. Further, under the circumstances of the entire case, we do not find that there is a substantial possibility that the result would have been different had the evidence in question not been admitted. Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002). While the unobjected to evidence may be considered prejudicial, it was not improper and did not affect Appellant’s substantial rights. No palpable error occurred. RCr 10.26.

The judgment and sentence of the Franklin Circuit Court are affirmed.

All concur.

      . The Barroso opinion departed from the less restrictive standard set forth in Eldred which only required a showing of "articulable evidence that raises a reasonable inquiry of a witness's mental health history.” Eldred, supra, at 702.


source: Caselaw Access Project

author: McANULTY, Judge.

license: Public Domain

text:
    Glenn WEST v. COMMONWEALTH of Kentucky.
    No. 2001-CA-002779-MR.
    Court of Appeals of Kentucky.
    April 30, 2004.
    Discretionary Review Denied by Supreme Court May 11, 2005.

      Emily Holt, Frankfort, for appellant.
    Albert B. Chandler, III, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Frankfort, for appellee.
    Before JOHNSON, KNOPF, and McANULTY, Judges.
   OPINION

McANULTY, Judge.

Glenn West (hereinafter appellant) appeals his conviction in the Calloway Circuit Court for one count of criminal mischief in the first degree, one count of criminal mischief in the second degree, seven counts of wanton endangerment, one count of possession of marijuana and one count of carrying a concealed deadly weapon. On appeal, he argues that the trial court erred in failing to conduct a competency hearing as required by Kentucky Revised Statutes (KRS) 504.100; that the testimony of a jailhouse informant should have been excluded; that he should have been charged with no more than three counts of wanton endangerment; and finally, that excessive security surrounding him at trial violated his constitutional rights. We have reviewed these allegations, and we affirm.

The charges in this case arose after the residences of Donald Crawford and Glen Crawford were shot at from a vehicle by an unknown assailant. On September 10, 1997, at about 9:30 p.m., Margaret and Donald Crawford were at home when someone shot at their house. Neither was injured. A neighbor observed a vehicle’s taillights pass slowly by the Crawford house at the time he heard the gunshots. The next night, September 11, 1997, at about 8:00 p.m., Donald and Margaret Crawford were in their living room when they heard what sounded like “machine gun fire” and numerous bullets entered their home. They dropped to the floor and avoided injury. A neighbor observed a dark car with one headlight out parked in front of the Crawford residence which drove off quickly. Also on September 11, someone shot at the residence of Glen Crawford, Donald’s brother. Glen Crawford, his daughter Cathy, and granddaughter were in the residence at the time. Cathy Crawford ran outside and observed a dark vehicle drive slowly away.

While investigating the shooting at the Glen Crawford house on September 11, 1997, a law enforcement officer observed an “Explorer-type” vehicle with a headlight out drive past the house. Officers saw a dark green “Bronco-like” vehicle with one headlight drive by the Donald Crawford house twice while they were collecting shell casings from the road. Appellant owned a 1994 Explorer on September 10 and 11. He traded it at Parker Ford for a newer model on September 11. On September 15, one of the owners of Parker Ford allowed a search of the vehicle. Eleven 9mm shell casings were recovered from inside the vehicle, which had a front headlight out.

During a search of appellant’s home pursuant to a search warrant, officers recovered a Norinco 9mm semi-automatic pistol, a Browning 380 semi-automatic pistol, 9mm fired shell casings and a box of 9mm ammunition. The Kentucky State Police crime lab determined that 9mm shell casings found on the highway in front of Donald Crawford’s house on September 11, 1997, came from the Norinco semiautomatic pistol found in appellant’s home. Two bullet fragments recovered from the residence also matched the Norinco. A 380 shell casing found on the highway in front of the Donald Crawford residence on September 11, 1997, was fired from the Browning 380 semi-automatic pistol found in appellant’s residence. Two 9mm shell casings found on September 11, 1997, on the highway in front of the Glen Crawford residence were fired from the Norinco semi-automatic found in appellant’s residence.

On appeal, appellant first argues that the trial court erred in failing to conduct a hearing, as required by KRS 504.100(3), on his competency to stand trial. The competency hearing referenced in KRS 504.100(3) is mandatory and cannot be waived by a defendant. Mills v. Commonwealth, Ky., 996 S.W.2d 473, 486 (1999), cert. denied, 528 U.S. 1164, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000). Appellant’s trial took place before the Court in Mills stated that the hearing is mandatory. ’When such a hearing is held it must be an evidentiary hearing allowing the defendant to cross-examine witnesses, including the psychiatrist or psychologist. Gab-bard v. Commonwealth, Ky., 887 S.W.2d 547, 551 (1994).

Appellant acknowledges that this error is not preserved. He argues that because the statute mandates a hearing, this is an issue which cannot be waived and constitutes a palpable error pursuant to RCr 10.26. We agree that appellant has identified an issue which may be reviewed on appeal. In reviewing a trial court’s failure to hold a competency hearing, the standard is “[w]hether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being' reviewed, should have experienced doubt with respect to competency to stand trial.” Mills, 996 S.W.2d at 486, quoting Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir.1983). If the reasonable judge would not have experienced doubt, the lack of a hearing may be considered harmless error. Id.

In Thompson v. Commonwealth, Ky., 56 S.W.3d 406, 407-408 (2001), the trial court ordered a defendant evaluated to determine his competency to stand trial, but the court did not hold a competency hearing following the mental evaluation. On review, the Kentucky Supreme Court held that “the trial court’s own order establishes the sufficiency of the trial judge’s level of doubt as to Thompson’s competence to plead guilty.” Id. at 408. That order stated that the court had been informed of issues of mental illnesses and neurological problems which might affect the defendant’s ability to perceive and interpret information provided by counsel. Because of the concerns expressed by the judge, the trial court’s failure to hold the mandatory hearing pursuant to KRS 504.100(3) violated the defendant’s due process rights. Id.

In Mills, however, the Kentucky Supreme Court concluded that a trial court’s failure to hold a hearing was harmless error. The defendant had given notice of his intention to introduce evidence concerning mental illness, insanity, or a mental defect. Mills, 996 S.W.2d at 485. The trial court ordered a psychiatric evaluation to address the issues of his competence to stand trial and his sanity. Id. at 485-86. The psychiatrist reported that the defendant was competent and able to assist in his defense. Thereafter, defense counsel informed the court that Mills waived the competency hearing. Id. at 486. The Supreme Court, on appeal, held that the defendant could not waive a competency hearing, but under the standard for failure to conduct an evidentiary hearing there was nothing to cause a reasonable doubt as to Mills’ competence to stand trial. The Supreme Court determined the trial court only ordered the examination “out of expediency in response to Mills’ notice.” With no factual basis for the trial judge to reasonably doubt the defendant’s competence, the failure to hold a hearing was harmless error. Id.

In the case at bar, defense counsel asserted in his motion that appellant did not exhibit the capacity to comprehend the nature and consequences of the proceedings against him and did not appear to either want or be able to participate in his defense. Counsel cited the following reasons for the motion: the bizarre nature of the offense; family members’ revelation that there were mental or chemical disorders within three generations of the family; and appellant’s denial “in totality” of any mental condition or substance abuse.

The trial court ordered a mental evaluation as to both appellant’s competence to stand trial and his mental condition at the time of the offense. The judge did not include any facts in support of the order. The evaluating psychologist found that appellant understood the charges against him, had the ability to understand the significance of a plea of guilty or not guilty, and was competent to participate rationally in his own defense. Although appellant’s counsel asked for a second evaluation, this was based on his belief that a more comprehensive examination could be conducted at the Kentucky Correctional Psychiatric Center, and not on any new or different behaviors or information pertaining to appellant’s mental condition.

We believe the case at bar bears more similarity to Mills than Thompson in the facts surrounding the issue of competency. It appears that the court’s order was only in response to appellant’s motion for a determination of his competence to stand trial. Appellant’s motion, in turn, was based more on conjecture than on any clear facts. Appellant points to no additional facts, such as his behavior or other information external to the proceedings, which would cause a reasonable judge to doubt appellant’s competence. Therefore, we conclude that the failure to hold a hearing in this case was harmless error.

Appellant’s second assignment of error is that the trial court should not have permitted the jailhouse informant, Jeffrey Bray, to testify. Appellant identifies problems with jailhouse informants generally and with this one in particular: Bray was serving sentences for crimes involving dishonesty (possession of a forged instrument and theft by deception); Bray admitted that he had read the legal documents sent to appellant by his attorney, affording him background knowledge about the case; and Bray had testified against at least one other criminal defendant. Appellant argued at trial that the evidence should have been excluded under KRE 403 because it was more prejudicial than probative, and cross-examination of the informant would not be sufficient to overcome the prejudice. Appellant also argued that the witness was not competent to testify under KRE 601(4) because he lacked the capacity to understand the obligation of a -witness to tell the truth.

Bray testified that appellant told him in jail he was mad and did some shooting at a residence with a semi-automatic weapon. He said appellant told' him there was a little girl there. The Commonwealth argues that the evidence was properly allowed, and that it was not crucial since a firearms expert testified that the shell casings and bullets found outside the homes of Glen and of Donald Crawford came from appellant’s 9mm Norinco pistol. However, we believe that the evidence offered by the informant had significance since appellant’s defense was that the guns must have been taken from his home or vehicle before being fired at the Crawford residences. The informant’s evidence helped to tie appellant to the crimes and undercut his defense that his guns were stolen and used by someone else.

Appellant argues on appeal that the courts of this Commonwealth should enforce stricter limitations on the use of government informers because their testimonial assistance is inherently unreliable. He urges the courts of the Commonwealth to adopt specific guidelines, such as in the Oklahoma case of Dodd v. State, 993 P.2d 778, 784 (Okla.Crim.App.2000). The Dodd court warned: “Courts should be exceedingly leery of jailhouse informants, especially if there is a hint that the informant received some sort of a benefit for his or her testimony.” Id. at 783. Dodd provided for increased disclosure in discovery so that defense counsel could more knowledgeably cross-examine informants, and for an instruction to the jury informing them of the “greater care” required when assessing the testimony of an informant. Id. at 784.

We find no authority for such an approach in Kentucky. Similar issues have been raised and rejected as policy in our courts. In Parrish v. Commonwealth, Ky., 121 S.W.3d 198, 203 (2003), the defendant argued that the testimony of a jailhouse informant should have been excluded because it was inherently suspect, and its reliability should have been the subject of a cautionary admonition. The Kentucky Supreme Court rejected this argument, stating that the rule is that “the credibility of witnesses and the weight to be given sworn testimony are matters for the jury to decide.” Id. The Court observed that the informant was cross-examined by the defense. Id. In a capital case, the Supreme Court found no authority for the proposition that the trial court must instruct on a jailhouse informant’s benefit from testifying. Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 804 (2001). We conclude that the trial court was not required to give greater scrutiny to the jailhouse informant’s testimony. We affirm the trial court’s decision that the probative value of the evidence was not substantially outweighed by the dangers of undue prejudice.

Appellant next argues that the trial court erred when it instructed the jury as to seven counts of wanton endangerment rather than three counts. Appellant was charged with seven counts of wanton endangerment on the basis that there were seven people in total in the houses when shots were fired. Appellant contends he should only have been charged with three counts for each of the three occurrences of shooting. We disagree.

Under KRS 508.060, a person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person. Appellant cites Justice Leibson’s dissent in Alexander v. Commonwealth, Ky., 766 S.W.2d 6B1 (1988), in which Justice Leibson contended that a “single act of wanton endangerment may endanger one or many, but it is only one offense” under the Penal Code. Justice Leibson argued that the statute was designed to prohibit the conduct which endangered another, but fortuitously did not cause actual harm, and so constituted a single punishable act. Appellant believes the words of the statute support his claim that the act creates the offense, not the number of people affected by the act.

When considering whether multiple offenses and punishments for a single transaction are valid, the controlling factor is legislative intent. Hennemeyer v. Commonwealth, Ky., 580 S.W.2d 211 (1979); see also KRS 505.020(l)(c). In Hennemeyer, the Kentucky Supreme Court examined the legislative intent behind the enactment of the wanton endangerment statute to determine whether it was to punish a particular act or a continuous course of conduct. Id. at 214-215. In Hennemeyer, the defendant was charged with six counts of wanton endangerment for firing six shots at a group of policemen. The Court held that the wanton endangerment statute was not designed to punish a continuous course of conduct, and that each of the six shots constituted a separate offense. Id. at 215.

The case left open the question raised in the case at bar — whether a defendant may be charged with wanton endangerment for each person endangered. We believe the Supreme Court’s elucidation of legislative intent in Hennemeyer supports charging for wanton endangerment according to the number of persons imperiled:

Did the General Assembly, by the enactment of KRS 508.060, intend to punish a particular act or did it intend to punish a continuous course of conduct? We have no difficulty in arriving at the conclusion that it was designed to protect each and every person from each act coming within the definition of the statute. It is not a statute designed to punish a continuous course of conduct.

Id. (Emphasis added).

Appellant fails to convince us that Hen-nemeyer was not decided correctly. Accordingly, we conclude that the shootings which endangered seven persons in total could be charged as seven separate offenses of wanton endangerment.

Finally, appellant contends that he was denied a fair trial by having to wear handcuffs in the courtroom and being closely guarded by deputy sheriffs during the trial. The Commonwealth argues that this issue is unpreserved for review on appeal under RCr 9.22. Appellant did not raise at trial the issues of how he was guarded or handcuffed. Not until his motion for new trial did he assert this issue as error. At trial, defense counsel had argued that appellant was denied due process, equal protection of law and effective assistance of counsel due to failings of the new courthouse facilities to afford him effective opportunities to speak with his client and witnesses, and to avoid encounters with jurors. Appellant moved for a mistrial, which the trial court denied.

The premise for the principle that issues not presented to the trial court are unpreserved for appellate review is that the trial court should be afforded a reasonable opportunity to rule upon alleged errors that could have been corrected at trial. Manns v. Commonwealth, Ky., 80 S.W.3d 439, 440 (2002). Appellant’s failure to raise the issue at trial he cites on appeal means that the trial court had no opportunity to adopt any changes, to question jurors as to what they had observed or to give a curative admonition if the situation called for it. Objection to alleged improprieties that occurred during the trial cannot be made after the jury verdict. Patrick v. Commonwealth, Ky., 436 S.W.2d 69, 74 (1968). We agree with the Commonwealth that appellant failed to preserve this alleged error for appellate review by contemporaneous objection.

For the foregoing reasons, we affirm the judgment of the Calloway Circuit Court.

ALL CONCUR.


author: COMBS, Chief Judge.

text:
    Joyce SNOW, Administratrix of the Estate of Jasmine Snow, Deceased; and Arthur Wydell Snow, Appellants, v. WEST AMERICAN INSURANCE COMPANY, Appellee.
    No. 2003-CA-001062-MR.
    Court of Appeals of Kentucky.
    July 2, 2004.
    Discretionary Review Denied by Supreme Court May 11, 2005.

      Carroll M. Redford, III, Michael J. Cox, Michael P. Casey, Lexington, KY, for appellants.
    Douglas L. Hoots, Jeffrey A. Taylor, Lexington, KY, for appellee.
    Before COMBS, Chief Judge; TACKETT and VANMETER, Judges.
   OPINION

COMBS, Chief Judge.

The appellants, Arthur and Joyce Snow, appeal from a summary judgment entered in favor of the appellee, West American Insurance Company. They contend that West American owed Arthur a duty to defend and to indemnify him for claims made by Joyce in her capacity as the administratrix of the estate of their daughter, Jasmine Snow. After reviewing the record, we find no error in the judgment of the Fayette Circuit Court finding- that West American had no liability as a result of the automobile accident underlying this litigation. Thus, we affirm.

The facts pertinent to this matter are not in dispute. On September 14, 2001, Jasmine was a passenger in a vehicle owned and operated by her father, Arthur. Arthur had recently purchased the vehicle but had not yet obtained liability coverage for it. He collided with another driver. Tragically, nine-year-old Jasmine died as a result of injuries she sustained in the accident. Joyce filed a lawsuit against both Arthur and the driver of the other vehicle, Glenn Wainscott.

At the time of the accident, Arthur, Joyce, and Jasmine were living with Arthur’s father, George Snow. Prior to the accident, George had obtained liability insurance coverage for his two automobiles from West American. After the accident, Joyce made demand on West American for $100,000 — George’s policy’s limits — for her daughter’s injuries and wrongful death. West American denied coverage. It cited a policy exclusion for injuries arising from the use of unscheduled vehicles owned or available for the regular use of a family member. West American then filed a complaint seeking a declaration of rights to support its denial of liability coverage.

The appellants filed a motion for summary judgment, contending that since the exclusion relied upon by West American was ambiguous, it should be construed more strictly against the insurer. They also argued that the exclusion was analogous to the family or household exclusion that was struck down in Bishop v. Allstate Insurance Company, Ky., 623 S.W.2d 865 (1981), and Lewis v. West American Insurance Company, Ky., 927 S.W.2d 829 (1996).

In its judgment entered on May 7, 2003, the trial court determined that the exclusion was valid and enforceable and that George’s policy with West American provided no liability coverage for the accident. This appeal followed.

We review an order granting summary judgment de novo without deference to the decision of the trial court. Lewis v. B & R Corporation, Ky.App., 56 S.W.3d 432, 436 (2001).

The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.

Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).

In their appeal, the appellants cite as error the ruling of the trial court that the “owned or regular use” exclusion bars coverage for Joyce’s claims. They argue that the exclusion is ambiguous and contrary to the public policy expressed in Bishop and Lewis, supra. West American contends that the policy exclusion is not ambiguous and that the household exclusion invalidated by the Kentucky Supreme Court is not implicated in this matter.

The provisions of the policy pertinent to this appeal are as following:

PART A — LIABILITY COVERAGE

INSURING AGREEMENT

A. We will pay damages for “bodily injury” or “property damage” for which any “insured” becomes legally responsible because of an auto accident. ...
B. “insured” as used in this Part means.
1. You or any “family member” for the ownership, maintenance or use of any auto or “trailer.”
2. Any person using “your covered auto.”
3. For “your covered auto,” any person or organization but only with respect to legal responsibility for acts or omissions or a person for whom coverage is afforded under this Part.
4. For any auto or “trailer,” other than “your covered auto,” any person or organization but only with respect to legal responsibility for acts or omissions of you or any “family member” for whom coverage is afforded under this Part. This provision (B.4.) applies only if the person or organization does not own or hire the auto or “trailer.”

EXCLUSIONS

A. We do not provide Liability coverage for the ownership, maintenance or use of: ...
3. Any vehicle, other than “your covered auto,” which is:
a. Owned by any “family member,” or
b. Furnished or available for the regular use of any “family member.”
However, this Exclusion (B.3.) does not apply to you [the named insured or the spouse of the named insured] while you are maintaining or “occupying” any vehicle which is:
a. Owned by a “family member;” or
b. Furnished or available for the regular use of a “family member.”

The insuring agreement provides liability coverage for all members of George Snow’s household, including his son, Arthur, when operating George’s two covered automobiles or any other “non-owned” vehicle. There is no dispute that the vehicle Arthur which was driving at the time of the fatal collision was owned exclusively by him. Arthur’s vehicle was not one of the two covered vehicles scheduled under the West American policy. Therefore, if valid, the exclusion precludes liability coverage for the accident.

The appellants argue that an ambiguity exists because the exclusion “purports to take something away, but then appears to give it back.” (Appellants’ brief, p. 7.) However, that argument overlooks the policy’s definition of “you” as meaning exclusively the named insured; that is, George Snow and his spouse. Contrary to the appellants’ contention, the exclusion does not take away coverage for unscheduled vehicles owned by family members while giving it back in the next paragraph. Instead, it takes away coverage for unscheduled vehicles from all insureds under the policy and then gives it back to a limited class of insureds—specifically, the named insured and his spouse.

While we agree that the exclusion could have been written more perfectly, it is not so inartfully drafted as to become ambiguous. “Only actual ambiguities, not fanciful ones,” are required to be construed against the drafter. True v. Raines, Ky., 99 S.W.3d 439, 443 (2003). We conclude that the exclusion cannot be interpreted as the appellants suggest. See, St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milivard Inc., Ky., 870 S.W.2d 223, 227 (1994). Thus, the trial court did not err in failing to find any ambiguity in the exclusion.

Next, relying on Lems and Bishop, supra, Arthur and Joyce contend that the exclusion at issue violates public policy and the Kentucky Motor Vehicle Reparations Act (MVRA). However, unlike either of those cases (where the issue wholly centered on the status of a family member as the injured claimant), there was no liability coverage in this case because the vehicle was uninsured—not because the victim was or was not a family member. Even if a total stranger had been injured by Arthur’s operation of his own vehicle, the exclusion would still apply because he failed to obtain insurance for his vehicle.

The appellants also argue that the “owned but not scheduled for coverage” exclusion is invalid because “it explicitly hinges an exclusion of liability coverage upon ownership or regular use of a non-covered vehicle by a ‘family member’.” (Appellants’ brief, p. 11.) However, that contention would allow an insured to obtain insurance and to pay premiums for one vehicle while exposing the insurer to liability for injuries arising from the use of multiple vehicles owned by other family members for which coverage had not been obtained. Extending coverage in this case would provide benefits which were neither paid for nor reasonably contemplated by the named insured or the members of his family.

Reasonable conditions, restrictions, and limitations on insurance coverage are not deemed per se to be contrary to public policy. Jones v. Bituminous Casualty Corporation, Ky., 821 S.W.2d 798, 802 (1991). We cannot construe either Bishop or Lewis as requiring that West American provide coverage for this tragic accident. Appellants also cite Chaffin v. Kentucky Fa,rm Bureau Insurance Companies, Ky., 789 S.W.2d 754 (1990), which held unenforceable an antistacking provision related to uninsured motorist benefits that was person-oriented rather than vehicle-related. We do not find it relevant in this case due to the failure of Arthur to obtain coverage for his vehicle.

The judgment of the Fayette Circuit Court is affirmed.

ALL CONCUR.


author: BUCKINGHAM, Judge.

text:
    Tom WRIGHT, Appellant, v. DOLGENCORP, INC. and Dollar General Corporation, Appellees.
    No. 2003-CA-001715-MR.
    Court of Appeals of Kentucky.
    Sept. 24, 2004.
    Discretionary Review Denied by Supreme Court May 11, 2005.

      Steven D. Downey, Bowling Green, KY, for appellant.
    H. Brent Brennenstuhl, Bowling Green, KY, for appellee.
    Before BUCKINGHAM, JOHNSON, and KNOPF, Judges.
   OPINION

BUCKINGHAM, Judge.

Tom Wright appeals from a summary judgment rendered by the Allen Circuit Court in favor of Dollar General Corporation and Dolgencorp, Inc. We affirm.

Wright was a truck driver employed by Werner Enterprises, which was under contract with Dollar General to provide drivers and trucks for the purpose of transporting merchandise from Dollar General’s various distribution centers to its stores. On January 3, 2001, Wright picked up a trailer at Dollar General’s distribution center in Scottsville, Kentucky, for the purpose of delivering merchandise to Dollar General stores, including the store in Clintwood, Virginia. The merchandise loaded in the trailer included cases of paper towels and toilet paper and cases containing six one-gallon bottles of liquid bleach.

Wright had made at least one stop to unload merchandise along his route when he arrived at the store in Virginia. Shortly after climbing into the trailer to assist with the unloading of the merchandise, Wright was struck in the head and knocked to the floor by a case of liquid bleach that fell from the top of lighter boxes of paper goods. He sought medical attention for his injuries and submitted a workers’ compensation claim against his employer, Werner Enterprises. Werner’s insurer paid the claim.

Due to his injuries and the medication required to treat them, Wright was unable to continue truck driving for some time. The difficulties he encountered as a result of his injuries' led him to file a negligence claim against Dollar General and Dolgencorp. On November 11, 2001, Wright filed a civil action in the Allen Circuit Court alleging that the primary cause of his injuries was the negligent loading of the trader by Dollar General employees at the Scottsville distribution center.

Dollar General and Dolgencorp filed a summary judgment motion asserting their immunity from tort claims due to the exclusive remedy provision of KRS 342.690(1). The circuit court agreed, and summary judgment was entered in their favor. This appeal by Wright followed.

The exclusive remedy provision in the statute states in pertinent part as follows:

If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term “employer” shall include a “contractor” covered by subsection (2) of KRS 342.610, whether or not the subcontractor has in fact, secured the payment of compensation.

342.690(1). Further, “[a] principal contractor, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any one (1) of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer.” KRS 342.700(2). Also, KRS 342.610(2) states in pertinent part as follows:

A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter.

Id. That portion of the statute further states that “[a] person who contracts with another: ... (b) To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person ... shall for the purposes of this section be deemed a contractor, and such other person a subcontractor.” Id.

Wright argues that the circuit court erred by granting judgment in favor of Dollar General and Dolgencorp because it interpreted KRS 342.610(2) inconsistently with the plain wording of the statute. He maintains that the court should not have interpreted the statute in such a manner that Dollar General was considered to be a contractor that was immune from tort liability under KRS 342.690(1). Citing the language of KRS 342.610(2), Wright maintains that the statute only applies to a contractor “who subcontracts all or any part of a contract.” Since Dollar General was not subcontracting with Werner Enterprises to undertake work that Dollar General was under contract to do for another party, Wright contends that Dollar General could not be held to be a contractor and thus cannot claim immunity from tort liability for its negligence in connection with his injuries.

In support of his argument, Wright cites Bright v. Reynolds Metals Co., Ky., 490 S.W.2d 474 (1973). That case involved facts similar to the case herein. Reynolds Metal Company desired to construct an additional rolling mill at its plant in Jefferson County, Kentucky. Rather than employing a general contractor, Reynolds hired independent contractors to perform specialized work such as excavating, masonry, and plumbing. Reynolds contracted with a business for the excavation work, and one of the business’s employees was injured on the job: The employee brought a negligence action against Reynolds, and Reynolds responded by alleging that it was a “principal contractor” within the meaning of KRS 342.060 (now KRS 342.700(2)). Therefore, it asserted that it was immune from tort liability pursuant to KRS 342.690(1).

Although the trial court accepted Reynolds’ argument and rendered summary judgment in its favor, the appellate court reversed the trial court. Id. • at 478. The appellate court stated that “an owner who undertakes to execute a work or complete a project under his own general supervision, contracting with others for specialized services, is not a ‘principal contractor.’ ” Id. at 476. Based on the Bright case and the provisions of KRS 342.610(2), Wright argues that Dollar General is not a covered contractor and, therefore, is not entitled to immunity from his tort claim.

The fallacy in Wright’s argument is that the Bright case was decided before the language in the last part of KRS 342.610(2) was added to the statute. That portion of the statute states that “[a] person who contracts with another ... (b) To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person ... shall for the purposes of this section be deemed a contractor, and such other person a subcontractor.” KRS 342.610(2). It is not disputed that the loading of the trailers and the transportation of the merchandise from the distribution center to the stores was a regular or recurrent part of Dollar General’s business. Therefore, under that portion of the statute, Dollar General is deemed to be a contractor and Werner Enterprises a subcontractor. Being a contractor, Dollar General would be liable for the payment of workers’ compensation benefits to the employees of Werner Enterprises unless Werner Enterprises secured the payment of such compensation. See KRS 342.610(2). Therefore, Dollar General is immune from tort liability pursuant to the exclusive remedy provision in KRS 342.690(1).

In Fireman’s Fund Ins. Co. v. Sherman & Fletcher, Ky., 705 S.W.2d 459 (1986), the Kentucky Supreme Court was again faced with a fact situation similar to the facts in this case. In that ease the owner of the business was acting as his own contractor, and an employee of a subcontractor was killed when a concrete block wall at the construction site collapsed.. The subcontractor provided workers’, compensation insurance with Fireman’s Fund, and Fireman’s Fund paid benefits to the estate. The fatally injured employee’s estate then filed a complaint in the Jefferson Circuit Court against the owner who had acted as his own contractor.

On appeal the Kentucky Supreme Court acknowledged its prior decision in the Bright case. Id: at 461-62. However, the court noted that KRS 342.610 had been amended following the decision in the Bright case. In reviewing the language in the latter part of KRS 342.610(2), the supreme court stated that “[w]e construe this to mean that a person who engages another to perform a part of the work which is a recurrent part of his business, trade, or occupation is a contractor.” Id. at 462. Thus, the court held that the owner/contractor had no tort liability due to the exclusive remedy provisions of KRS 342.690(1). See also U.S. Fidelity & Guar. Co. v. Technical Minerals, Inc., Ky., 934 S.W.2d 266 (1996), wherein the Kentucky Supreme Court stated that in the Fireman’s Fund case it held that the definition of “contractor” in KRS 342.610(2) included someone other than one who “engages subcontractors to assist in the performance of the work or the completion of the project which [he] has undertaken to perform for another.” 934 S.W.2d at 268.

While we hold that the trial court correctly determined that Dollar General was a contractor and was immune from tort liability, Wright urges us to disregard the Fireman’s Fund case and the U.S. Fidelity case because they are inconsistent with the plain statutory language and legislative intent. “The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” SCR 1.030(8)(a). See also Smith v. Vilvarajah, Ky.App., 57 S.W.3d 839, 841 (2001). In short, because this issue has been definitively resolved by the Kentucky Supreme Court, we are bound by precedent.

The judgment of the Allen Circuit Court is affirmed.

ALL CONCUR.

        . Dolgencorp, Inc., is a wholly-owned subsidiary of Dollar General Corporation. It owns and operates the distribution center in Scotts-ville. .

      . Kentucky Revised Statutes.

      . Rules of the Supreme Court.


author: MINTON, Judge.

text:
    Virginia GAITHER, Administratrix of the Estate of Lebron Elliott Gaither, Appellant, v. COMMONWEALTH of Kentucky, Board of Claims; Commonwealth of Kentucky, Justice Cabinet; and Commonwealth of Kentucky, Kentucky State Police, Appellees.
    No. 2003-CA-000481-MR.
    Court of Appeals of Kentucky.
    Oct. 1, 2004.
    Discretionary Review Denied by Supreme Court May 11, 2005.
    Daniel T. Taylor, III, Louisville, KY, for appellant.
    James M. Herrick, Kentucky State Police Legal Office, Frankfort, KY, for appel-lee, Kentucky State Police.
    Before the Full Court Sitting EN BANC.
   OPINION

MINTON, Judge.

In this appeal from a Board of Claims action, Franklin Circuit Court affirmed the Board’s determination that Virginia Gaither’s wrongful death action is barred by the statute of limitations. The circuit court’s ruling was in accordance with our prior precedent on the matter; however, because we believe that decision was in error, we now reverse and remand for further proceedings.

LeBron Gaither was killed on July 17, 1996. Virginia Gaither, LeBron’s grandmother, was appointed administratrix of his estate on February 14, 1997. On February 12, 1998, Virginia filed a wrongful death action with the Board of Claims, alleging that LeBron’s death came as a result of negligence on the part of the Kentucky State Police (KSP). Specifically, she alleges that KSP failed to adequately protect LeBron while he was working as a confidential informant, resulting in his death at the hands of drug dealers he had been sent to infiltrate.

The Board of Claims held that Virginia’s action was barred by the one-year limitations period regarding actions before the Board of Claims. On appeal, Franklin Circuit Court affirmed the Board’s decision, following our opinion in Gray v. Commonwealth, Transp. Cab., Dept. of Highways. Gray held that although the one-year statute of limitations generally applicable to wrongful death actions does not begin to run until after the appointment of a personal representative, actions before the Board of Claims are subject to a rigid limitations period of one’ year from the date of death, regardless of when a personal representative was appointed.

In Conner v. George W. Whitesides Co., the Supreme Court examined KRS 413.180, which provides that certain actions brought by a personal representative are timely if commenced within one year after the qualification of the representative. In analyzing whether wrongful death actions are within its scope, the Court reasoned:

The statute limits its scope to actions “mentioned” in KRS 413.090 to 413.160. The statute creating a wrongful death action, KRS 411.130, is not among the statutes listed nor is a wrongful death action “mentioned” explicitly in the listed statutes. However, KRS 413.140 is among these statutes. KRS 413.140(1) and its predecessors have been recognized for over 100 years as establishing a one year statute of limitations for wrongful death claims.[] We reaffirm the applicability of this statute to wrongful death claims. KRS 413.140(1) provides a one year statute of limitations for actions relating to “an injury to the person of the plaintiff.” Death is simply the final injury to a person.
Since KRS 413.140(1) is within the statutes listed in KRS 413.180, then the question becomes whether wrongful death claims naturally come within the purview of the latter statute.... Statutory changes to KRS 413.180 enacted in 1988 suggest that the exclusionary view taken in [older] cases is inappropriate. The General Assembly has reenacted the inclusive reference to KRS 413.140 which the courts have stated expresses the wrongful death limitation but restricted the extension in KRS 413.180(2) to one year so that the effect of including the wrongful death limitation in KRS 413.140(1) within the reach of KRS 413.180(2) is a reasonable extension to two years from date of death.

In Gray v. Commonwealth, Transp. Cab., Dept, of Highways, we were called upon to determine whether Conner’s holding that the limitations period for wrongful death actions is extended through operation of KRS 413.180 applies in actions before the Board of Claims. We held with little explanation that KRS 413.180 has no application before the Board of Claims.

Our reasoning followed the dissent in Conner by starting with the proposition that a cause of action for wrongful death never vests in the decedent but, rather, in the personal representative. We interpreted the reference in KRS 44.110(3) to a “claimant” in a personal injury action to refer to the individual who has suffered the actual injury rather than to a personal representative. Therefore, we concluded that KRS 413.180 had no application to an action before the Board of Claims, and all actions for wrongful death must be brought within one year of the decedent’s death, regardless of when the personal representative was appointed.

The central premise underlying our reasoning was refuted in a later case. In Boarman v. Commonwealth, the Supreme Court was called upon to interpret the word “claimant” as used in the statute establishing the Board of Claims and its substantive authority, KRS 44.070. In determining entitlement to a decedent’s life insurance policy, the Court found that “claimant” referred to the personal representative in her capacity as administratrix of the decedent’s estate.

While one could attempt to distinguish Boamian from the present case by emphasizing that the question before the Boar-man Court was whether “claimant” referred to the decedent’s widow individually or in her capacity as administratrix, we find it significant that nowhere is the decedent mentioned as a possible “claimant.” “Claimant” is defined as “[o]ne who asserts a right or demand, esp. formally; esp., one who asserts a property interest in land, chattels, or tangible things.” Since it would be impossible for a decedent to assert a right before the Board of Claims, Gray’s interpretation is strained and in error. Like the Supreme Court in Boar-man, we read “claimant” in KRS 44.110 as referring to an executor or administrator acting as personal representative for the estate.

KRS 44.110(3) allows for a personal injury action to be brought within one year from the time it is discovered, or reasonably should have been discovered by the claimant, but in no event longer than two years from the date on which it actually occurred. This can easily be applied to wrongful death actions in that KRS 413.180 allows an action which would otherwise be barred by limitations to be brought within one year of qualification of the personal representative; however, in the event more than one year passes between the death and qualification of a representative, the representative is deemed to have qualified on the last day of the one-year period. Therefore, KRS 413.180 establishes that no covered action may be brought more than two years from the date of the decedent’s death, which precisely mirrors the two-year maximum contemplated in KRS 44.110(3). Because the statutes are harmonious, we, like the dissent in Gray, see no reason to create different classes of plaintiffs/personal representatives in wrongful death cases based on whether the death is alleged to have occurred as the result of the Commonwealth’s negligence or that of another party.

Accordingly, we overrule our decision in Gray and hold that wrongful death actions against the Commonwealth may be pursued before the Board of Claims by a personal representative up to one year from the date of the qualification of the personal representative, with a maximum limitation of two years from the date of the death. Since Virginia Gaither’s claim before the Board of Claims was timely under this standard, we reverse and remand for further proceedings.

ALL CONCUR.

      . Ky.Rev.Stat. (KRS) 44.110(1).

      . Ky.App., 973 S.W.2d 61 (1997).

      . See Conner v. George W. Whitesides Co., Ky., 834 S.W.2d 652 (1992); KRS 413.180.

      . Gray, supra, at 64.

      . Supra, n. 3.

      . See Carden v. Louisville & N.R. Co., 101 Ky. 113, 39 S.W. 1027 (1897).

      . Conner, supra, n. 3, at 653-654.

      . Supra, n. 2.

      . Id. at 64.

      . Ky., 37 S.W.3d 759 (2001).

      . Id. at 762.

      . Id.

      . Black’s Law Dictionary (8th ed.2004).

      . KRS 413.180(2).

      . See Gray, supra, at 64 (Combs, 1., dissenting).


author: SCHRODER, Judge.

text:
    Charles Thomas WALKER and Joyce Walker, Appellants, v. Eugene B. DUBA and Dorothy Duba, Appellees.
    No. 2003-CA-001820-MR.
    Court of Appeals of Kentucky.
    Oct. 29, 2004.
    Rehearing Denied Jan. 7, 2005.
    Discretionary Review Denied by Supreme Court May 11, 2005.

      Charles Thomas Walker, pro se, Joyce L. Walker, pro se, Louisville, KY, for appellants.
    Wayne J. Cai’roll, J. Scott Sweeney, Louisville, KY, for appellees.
    Before SCHRODER and TACKETT, Judges; EMBERTON, Senior Judge.

      . Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

SCHRODER, Judge.

This appeal discusses the rights and obligations of an upper elevation owner in ridding itself of diffused surface waters onto lands below. Kentucky has adopted the “reasonable use” rule which is a modification of the “common enemy” doctrine. The reasonableness of a land owner’s actions is an issue of fact and the trial court’s findings will not be reversed absent an abuse of discretion. We see no abuse of discretion and affirm.

Eugene and Dorothy Duba own a lot and house on a hillside in a subdivision in Jefferson County. Below their property is a lot and house belonging to Charles and Joyce Walker. Across the street from the houses is Iroquois Park. Behind their houses are other developed subdivision lots. Apparently, when the subdivision was developed, there was no storm water drainage system constructed in the subdivision on the parties’ lots except for a ditch at the front of their lots fronting on Park Road. When it rains or when snow melts, diffused surface waters comes down the hill in Dubas’ and other’s back yards and front yards, draining into the Walkers’ which is at a lower elevation. Water also comes from Iroquois Park across the street into the lots on Park Road. Some of the homes have a curb along the road to divert the sheet water from Iroquois Park. The Walkers do not have a curb in front of their driveway and consequently their lot gets more of the Iroquois Park water than their neighbors. Also, at one time there was a ditch along the road to collect diffused surface waters but accretions seemed to have filled it in. As a result, after a rain or when the snow melts, both the Duba and Walker lots receive lots of water everywhere. In an attempt to eliminate their water problems, the Dubas added some topsoil and sod which sloped the water away from their house, cleared up some rutting in their yard, and eliminated some standing water. However, when it rains, the Dubas’ sump pump still kicks on and pumps out water that leaked into their house. The Walkers get all the Dubas’ water, plus all the water dumped on the Dubas’ property by upper elevation land owners, as well as the park runoff across the street.

The Walkers sued the Dubas for damages caused by the water coming from the Dubas’ property. The trial court dismissed holding that as a matter of law, the Walkers’ estate was a servient estate which had to accept drainage from upper elevation owners and that the Walkers had the burden to show the Dubas acted unreasonably in maintaining their property or that the Dubas unreasonably diverted water from its natural course onto the Walkers’ property. On appeal, the Walkers claim the Dubas raised the elevation of them lot, filled in ditches, and pumped water out of their basement, so as to divert excess water onto the Walkers’ property, all in an unreasonable manner.

In Klutey v. Commonwealth, Department of Highways, Ky., 428 S.W.2d 766 (1967), our Supreme Court switched from the “common enemy” doctrine to the rule of “reasonable use.” The rule of “reasonable use” balances the “common enemy” doctrine (which favors the upper owner) and the “civil law” doctrine (which favors the lower owner). Id. at 769. Under the “reasonable use” rule, the Court views the diffused surface water as a nuisance problem and attempts to balance the “reasonableness of the use by the upper owner against the severity of damage to the lower owner....” Id.

The difficulty of course lies in determining and applying the tests of reasonableness. To begin with, the lower owner has the servient estate and he must accept drainage from his neighboring upper owner. Also it must be recognized that any artificial utilization of land by the latter may, in some degree, affect the natural drainage on adjoining lower lands. Acceleration of the flow of surface water onto his lower neighbor often results when the upper owner modifies his drainage system. Our problem is the extent to which this may be done without liability.

Id. at 769-770.

The Court went on to review how other states tested reasonableness and decided Minnesota’s approach, as set out in Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462, 26 L.R.A. 632 (1894), was the best approach and adopted its rule and test:

[T]he rule is that in effecting a reasonable use of his land for a legitimate purpose a landowner, acting in good faith, may drain his land of surface waters and cast them as a burden upon the land of another, although such drainage carries with it some waters which would otherwise have never gone that way but would have remained on the land until they were absorbed by the soil or evaporated in the air, if
(a) There is a reasonable necessity for such drainage;
(b) If reasonable care be taken to avoid unnecessary injury to the land receiving the burden;
(c) If the utility or benefit accruing to the land drained reasonably outweighs the gravity of the harm resulting to the land receiving the burden; and
(d) If, where practicable, it is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or if, in the absence of a practicable natural drain, a reasonable and feasible artificial drainage system is adopted.

Klutey, 428 S.W.2d at 769-770 (quoting Enderson v. Kelehan, 226 Minn. 163, 32 N.W.2d 286, 289 (1948)).

In Commonwealth, Dept. of Highways v. S & M Land Co., Inc., Ky., 503 S.W.2d 495, 497 (1972), the Court.recognized Kentucky used the “reasonable use” rule of Klutey and said the “reasonableness of use of the land by the upper owner against the harm to the lower owner resulting from such use is a matter for the jury.” Id. Justice Keller, in his opinion (concurring in part and dissenting in part) in Mason v. City of Mt. Sterling, Ky., 122 S.W.3d 500, 512 (2003), recognized Klutey and S & M Land Co., Inc. are still the law in Kentucky.

The reasonableness of the Dubas’ actions was tried to the bench and the trial court made findings: that the Dubas were the upper elevation owners dealing with a drainage problem that existed for many years, even before the parties moved into the neighborhood; that the Walker property was the lower property which by gravity would have to accept the water from above; that the Dubas did not add additional water to the drainage; that a lack of a curb in front of the Walker property contributed to drainage from Iroquois Park across the street; and that the Dubas did nothing unreasonable in diverting water from its natural course. We agree.

A review of the records, including the pictures, clearly shows the topography of the area which reveals that even before the houses were built, water ran down the hill. Both the Dubas’ lot and the Walkers’ lot received concentrations of diffused surface water from the area every time it rained. The Dubas’ house sits higher on their lot and they had some success with sloping the water away from the house, raising the elevation in parts of the low areas, and adding sod to slow down the flow. However, even these measures apparently were not enough because when it rains, water still gets into the Dubas’ basement and the sump pump has to pump it out. There does not appear to be any drainage pipe or ditches on the Dubas’ lot which concentrates the flow unreasonably toward the Walkers’ foundation, etc. The Dubas are not creating the Walkers’ problems and subsequent damages. A lack of a storm water drainage system in the area appears to be the real culprit. Therefore, the trial court’s findings were not clearly erroneous, and an appellate court will not set aside a trial court’s findings unless they are clearly erroneous. CR 52.01; Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 782 (2002), cert. denied, 537 U.S. 1110, 123 S.Ct. 892, 154 L.Ed.2d 782 (2003); Vinson v. Sorrell, Ky., 136 S.W.3d 465, 470 (2004). The need for or lack of permits, the neighborhood hostilities, and housing code violations are all moot and need not be discussed for resolution of this case.

For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.


author: VANMETER, Judge.

text:
    John SHROUT, Appellant, v. THE TFE GROUP; and Eddie Kendrick, Appellees.
    No. 2004-CA-000834-MR.
    Court of Appeals of Kentucky.
    April 1, 2005.

      Charles W. Arnold, Lexington, KY, Edward J. Lorenz, Williamstown, KY, for appellant.
    H. Lawson Walker II, Andrew R. Kaake, Cincinnati, OH, for appellees.
    Before SCHRODER, TAYLOR, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

John Shrout, a truck driver, was terminated from his employment after a positive drug test. However, the testing was not conducted as required by federal regulations, and the test results were inaccurate due to the improper- handling of the tested sample and Shrout’s use of legal, over-the-counter (OTC) medications. The issues we must decide on appeal are whether the employer’s failure to comply with federal testing regulations creates an exception to Kentucky’s employment at-will doctrine, and whether Shrout has stated a viable claim for defamation. We hold that the failure to comply with the federal drug testing regulations does not create an exception to the employment at-will doctrine, but that the employer may be liable for defamation for failing to accurately report the test results. Therefore, we affirm in part and reverse in part.

I. Facts.

According to Shrout’s complaint and first amended complaint, he was employed by The TFE Group, Inc. as a long-distance, over-the-road truck driver. As a condition of this employment, Shrout was subject to random drug and alcohol testing. On February 15, 2002, Shrout submitted to such a test, which was administered by an outside testing facility. Approximately 10 days later, TFE’s physician and medical review officer informed Shrout that he had tested positive for amphetamines. Shrout disputed the results and informed his supervisor, Eddie Kendrick, that the positive results must have been caused by his use of Contact and Vicks Sinex, which are legal OTC drugs.

At the time Shrout took the initial test, he requested that the sample be treated as a split sample so that a second test would be possible. However, for reasons which are unclear, the split sample did not occur and the testing laboratory did not retain any portion of the initial urine sample. After being notified of the positive test, Shrout requested a second test, including a blood or hair sample test. On March 11, 2002, TFE sent Shrout an evaluation form and a referral to a substance abuse evaluation firm in Florence, Kentucky. Shrout underwent an evaluation on March 13, and on March 18 the evaluation firm issued a clearance to “return to work in a safety-sensitive position.”

TFE nevertheless fired Shrout on March 14 based on the February 26 positive test result. On April 18 Shrout submitted to a body hair drug test. The results of that test were negative for amphetamine, demonstrating that the February test had indicated a false positive.

Since the time of his termination by TFE, Shrout has been unable to find work as an over-the-road truck driver. The record shows that whenever Shrout applies for a truck driving position, federal regulations require him to sign a consent and release form authorizing TFE to disclose any prior drug testing results. The disclosures provided by TFE have indicated that the February 2002 drag test result was positive.

On December 5, 2002, Shrout filed a complaint against TFE and Kendrick claiming wrongful termination (count I); defamation (counts II and III); and “fraud, oppression, malice and a wanton disregard for truth and reputation” (count IV). After TFE filed its initial motion to dismiss for failure to state a claim, Shrout filed an amended complaint which added a number of the factual allegations included within the factual recitation above, and claimed wrongful termination based on the failure to comply with federal drag-testing regulations (Count V), as well as defamation in reporting the results of a flawed test (Count VI).

After Shrout amended his complaint, TFE renewed its motion to dismiss. The Grant Circuit Court sustained the motion. This appeal follows.

II. Wrongful Discharge.

The parties agree that Kentucky adheres to the “terminable at will” doctrine, in that “[o]rdinarily an employer may discharge [an] at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible.” In Firestone Textile Co. Div. v. Meadows, the Kentucky Supreme Court recognized a narrow exception to the terminable at will doctrine and acknowledged a cause of action for wrongful discharge, but only in those limited circumstances in which (1) the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law; and (2) the policy is evidenced by a constitutional or statutory provision. “The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide[.]” In Grzyb v. Evans, the Kentucky Supreme Court further clarified Firestone by stating:

We adopt, as an appropriate caveat to our decision in Firestone Textile Co. Div. v. Meadows, supra, the position of the Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982). The Michigan court held that only two situations exist where “grounds for discharging an employee are so contrary to public policy as to be actionable” absent “explicit legislative statements prohibiting the discharge.” 816 N.W.2d at 711. First, “where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment.” Second, “when the reason for a discharge was the employee’s exercise of a right conferred by well-established legislative enactment.” 316 N.W.2d at 711-12.

Underpinning any cause of action for wrongful discharge is KRS 446.070, pursuant to which

a person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation. But this is limited to where the statute is penal in nature, or where by its terms the statute does not prescribe the remedy for its violation .... Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute.

Thus, important to a finding of wrongful discharge is the requirement that the public policy must be defined by statute and directed at providing statutory protection to the worker in his employment situation.

In the instant case, Shrout argues that the public policy violation underpinning his cause of action for wrongful discharge is that the drug test which ultimately led to his termination did not comply with federal drug testing regulations, that the federal regulations exist for the protection of workers who might otherwise be subject to disciplinary action as a result of flawed test results, and that employers cannot take disciplinary actions except based on test results which comply with the regulations.

Shrout’s argument fails for two reasons. The first is that KRS 446.070, the underpinning of a wrongful discharge, extends a right of action only for the violation of a Kentucky statute or a constitutional provision. The protection does not extend to the violation of a federal regulation. Since Shrout’s wrongful discharge claim hinges on the violation of a federal regulation, he cannot benefit from KRS 446.070.

The second reason Shrout’s argument fails is that, as noted above, the public policy must be defined by statute and must be directed at providing statutory protection to the worker in his employment situation. Shrout’s analysis relies on federal drug testing regulations promulgated under the authority of the Omnibus Transportation Employee Testing Act of 1991. The federal courts which have looked at Congress’s purpose in enacting this legislation have acknowledged employee rights as one of the purposes of the legislation, but have concluded that Congress “intended to provide a general benefit to the public by increasing the level of passenger safety[.]” Thus, protection of employees is not the primary purpose of this statute and the regulations governing drug testing.

Shrout claims that the failure to follow the federal regulations constitutes negligence per se, quoting at length from Alderman v. Bradley. , In Alderman, this court recognized the elements of negligence per se as being that (1) the plaintiff must be a member of the class of persons intended to be protected by the regulation, and (2) the injury suffered must be an event which the regulation was designed to prevent. However, as noted, the regulation is primarily designed to protect the public.

Shrout’s claim is not that he was fired for failing or refusing to violate a law in the course of his employment, and he cannot make any reasonable claim that he was discharged for exercising a right conferred by well-established legislative enactment. This is in contrast to the holdings in PariMutuel Clerks’ Union v. Kentucky Jockey Club, which recognized wrongful discharge because a worker had authorized a labor union to represent him as permitted by statute, and in Firestone, in which the worker had been fired for filing a workers’ compensation claim.

III. Defamation

Shrout’s claim of defamation is based on TFE’s disclosure of the positive results of the drug test he took in February 2002. Shrout argues that since the test was flawed, TFE may not publicize the results in disclosures to Shrout’s prospective employers.

In order to understand Shrout’s argument, a review of the Department of Transportation’s (DOT’s) regulatory scheme is necessary. Under DOT regulations, the employer is responsible for meeting all applicable procedures and requirements of workplace drug testing, and is “responsible for all actions of [its] officials, representatives, and agents (including service agents) in carrying out the requirements of the DOT agency regulations.”

One of those service agents is the medical review officer (“MRO”), who has a number of important functions as the “independent and impartial ‘gatekeeper’ and advocate for the accuracy and integrity of the drug testing process.” Among these functions are ensuring review of chain of custody of samples; providing feedback to employers and laboratories; determining whether legitimate medical reasons exist for confirmed positive, adulterated, substituted, and invalid drug tests; providing review of employees’ drug tests; investigating and correcting problems where possible and notifying appropriate parties when necessary (e.g., canceled or problematic tests, or incorrect results); and ensuring the timely flow of test results and other information to employers.

Specifically with regard to an employee’s positive drug test result, the MRO is to contact the employee, discuss the test result with the employee, and attempt to verify the test result or to ascertain whether any legitimate medical reason exists for the test result. If a legitimate medical reason exists, the MRO “must verify the test result as negative. Otherwise, [he or she] must verify the test result as positive.” If the test is verified as positive, the MRO must notify the employee of his or her right to a test of the split specimen. If the employee so requests, but the split sample is no longer available for testing, the entire test must be cancelled, including the original positive from the primary specimen, and the employer, through its designated employer representative, must obtain another sample under direct observation. “A cancelled drug test is neither positive nor negative.”

In the instant case, Shrout alleges that he gave a medically legitimate reason which should have caused the MRO to verify the February 16, 2002 test as negative. Failing that, the MRO should have verified that Shrout’s request for a split sample test was not able to be completed due to the unavailability of the split sample for testing, with the result that the test was cancelled, i.e., there was neither a positive nor a negative result. Notwithstanding these problems with the primary test sample, Shrout alleges that the MRO erroneously verified the primary sample as positive, and TFE improperly continued to report the test results as positive to subsequent, prospective employers. TFE argues “[Shrout] signed detailed consent forms authorizing TFE to release the results of his prior positive drug test.” Shrout’s counterargument is that since the test was properly either a verified negative test or a cancelled test, it should not have been disclosed as a positive test.

In Stewart v. Pantry, Inc., the court summarized the elements of defamation as “(1) defamatory language, (2) about the plaintiff (3) which is published and (4) which causes injury to reputation.” The court further defined “defamatory language” as “language which ‘tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or, (3) injure him in his business or occupation.’” On its face, Shrout’s complaint made such a case.

Having reviewed TFE’s arguments that Shrout consented to the disclosure and that disclosure to prospective employers was privileged, we conclude that both those arguments presuppose that the test involved was verified positive. As noted, for purposes of a motion to dismiss under CR 12.02, the material allegations of Shrout’s complaint are to be taken as true. Assuming that the facts as alleged by Shrout are true, ie., that the test was not verified positive but was actually negative or cancelled, our view is that he has stated a cause of action for defamation sufficient to survive a motion to dismiss.

The judgment of the Grant Circuit Court is reversed, and this matter is remanded to that court for further proceedings consistent herewith.

ALL CONCUR.

      . The circuit court dismissed Shrout's claim under CR 12.02(f) for "failure to state a claim upon which relief can be granted.” Under such a motion, the pleadings are liberally construed in a light most favorable to the plaintiff, and the material allegations in the complaint are regarded to be true. Pike v. George, 434 S.W.2d 626, 627 (Ky.1968); Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky.App.1987).

      . Grzyb v. Evans, 700 S.W.2d 399, 400 (Ky.1985). See also Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky.1983).

      . Firestone, 666 S.W.2d at 731 (citing Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 835 (1983)).

      . Grzyb, 700 S.W.2d at 401.

      . 700 S.W.2d at 402.

      . Id. at 401. (citation omitted).

      . Id. at 400.

      . 49 C.F.R., Part 40.

      . Alderman v. Bradley, 957 S.W.2d 264, 266 (Ky.App.1997).

      . Pub.L. No. 102-143, Title V (1991).

      . Drake v. Delta Airlines, Inc., 923 F.Supp. 387, 392 (E.D.N.Y.1996), aff'd in part, rev’d in part, 147 F.3d 169 (2nd Cir.1998); see Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299, 309 (6th Cir.2000).

      . 957 S.W.2d 264 (Ky.App.1997).

      . Id. at 267.

      . 551 S.W.2d 801 (Ky.1977).

      . Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 49 C.F.R. pt. 40.

      . 49 C.F.R. § 40.11(a).

      . 49 C.F.R. § 40.11(b).

      . 49 C.F.R. § 40.3.

      . 49 C.F.R. § 40.3. This section defines a Medical Review Officer as "[a] person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results.”

      . 49 C.F.R. § 40.123(a).

      . 49 C.F.R. § 40.123(b).

      . 49 C.F.R. §§ 40.129, 40.131, 40.137.

      . 49 C.F.R. § 40.137(d).

      . 49 C.F.R. § 40.153.

      . 49 C.F.R. §§ 40.187(d), 40.201(e).

      . 49 C.F.R. § 40.207.

      . 715 F.Supp. 1361, 1366 (W.D.Ky.1988) (citing Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270 (Ky.App.1982)).

      . 715 F.Supp. at 1366 (quoting McCall v. Courier-Journal & Louisville Times, 623 S.W.2d 882, 884 (Ky.1981)).