The Courier-Journal from Louisville, Kentucky • Page 15

4 THE COURIER-JOURNAL, FRIDAY, JUNE 9, 1989 Lawyers show displeasure at three proposals to reduce flow of liability suits By ANDREW WOLFSON Staff Writer Designed to discourage the litigation of frivolous lawsuits, a proposal presented at a gathering of Kentucky lawyers yesterday seemed to offer both a carrot and a stick to get parties to settle before going to court The lawyers, however, balked at the suggestion. Concocted by a legislative task force charged with stemming a perceived crisis in liability insurance, the measure would work like this: If Joe Injured rejects a defendant's settlement offer, insists on going to trial, and recovers less than the offer, he'd have to pay all costs racked up by the defendant after the offer was made, Including attorney fees. Conversely, If Joe Injured's offer to settle the case Is rejected by the defendant and Joe wins more at trial then the defendant would have to pay all of his costs and fees. The measure was proposed by the Kentucky Insurance and Liability Task Force, and the 1988 General Assembly agreed to ask the state Supreme Court to consider the high-stakes settlement inducer. But floated before the state's lawyers yesterday, the measure all but sank, inundated by a wave of criticism from lawyers who said it would inject new gamesmanship into the process and deny the little guy his day in court.

"This would create injustice," predicted Louisville lawyer Gary Weiss. Lawyers say the average person could ill afford the risk of going to trial if it meant be might have to pay tens of thousands of dollars in fees and costs upon recovery of any verdict less than the settlement offer even if the jury awards him only II less. That would discourage the prosecution of even reasonable lawsuits not just frivolous ones, the lawyers said. Weiss predicted that Insurance companies would routinely offer $1 settlements so they could recover their costs if the jury awards nothing. But defenders of the measure, chiefly its sponsor, state Rep.

William Lear D-Lex-ington, points out that it can reward or punish both sides. "The Idea Is to try to put a penalty on the frivolous maintenance of an action or the frivolous defense of an action," he said in an interview. "That risk is not there now." An existing rule does require the payment of the defendant's costs in the event of a verdict smaller than the offered settlement But the rule does not define "costs," doesn't cover attorney fees, and is rarely Invoked, lawyers say. The offer-of-settlement rule was one of three proposals presented yesterday at a Supreme Court hearing held at the Gait House East' in conjunction with the Kentucky Bar Association's annual meeting. Under one of the proposals, which was endorsed by the Kentucky Medical Association, judges would be empowered to raise or lower unreasonable jury verdicts; judges now may throw out unreasonable verdicts entirely, ordering a new trial, but they can't add or reduce damages.

Under another proposal, lawyers would have to certify the merit of lawsuits within 90 days of their filing and swear that they have an expert witness to back them up. The Supreme Court's civil-rules committee, which reviews such changes for the court, voted thumbs down on all three proposals, finding them "legally unworkable" and "bad ideas," said the panel's chairman, Justice Charles Leibson. The full court will still consider them, apparently in the nSxt few weeks. But Shelby-ville lawyer W. Stephen Wilborn, task force chairman, said he doesn't expect the court to adopt them, at least as written.

TV program spotlighting fugitives brings man's arrest Jail officials untied themselves and called police, who gave chase. Zerillo said the inmates turned down a dead-end country road and abandoned the truck. Footsteps led to Interstate 65 nearby but neither man could be found, he said. Ralph Boling, U. S.

marshal for the Western District of Kentucky, compared the "Unsolved Mysteries" program to the "wanted posters on the post office walls of the 1800s." With television, "a fugitive Is just not safe from apprehension anywhere because there are 100 million people out there looking for them," Boling said. caped was never found; nevertheless, Rich's death was ruled a suicide. The day of the escape, Zerillo said, Hutchison allegedly lured a jailer into his cell about 5:30 a.m. by complaining of a problem with his toilet then put a homemade weapon a sharpened bolt taken from an air-conditioning duct to the jailer's throat Rich overpowered a trusty with another sharpened object The jailer and trusty were tied up, and the two inmates allegedly took a pistol from the jail's control booth and keys to the jailer's truck. learning of the Kentucky charges, sent him back to the state.

Hutchison was being held without bail in the Barren County Jail and had not been to trial when he escaped with another inmate who was being held on a murder charge, Zerillo said. That inmate, Fred Rich, age and address unknown, was found dead in a hotel room in Dallas about a month later, Zerillo said. Rich had been shot in the head. Zerillo said the weapon used to kill Rich believed to be the .357 Magnum that Hutchison and Rich took from the jail when they es- 1 -f 4. v.

i hvi fin if By FRAN ELLERS Staff Writer A Kentucky jail escapee on the lam for more than two years was captured in California Tuesday on an anonymous tip received after his picture appeared on NBCs "Unsolved Mysteries" program April 12. California authorities will return Joseph Lee Hutchison, 41, to Kentucky, where he faces drug and escape charges, said chief deputy William Zerillo of the U.S. Marshal's Service in Louisville. Hutchison, who had escaped from the Barren County Jail in Glasgow on Dec. 30, 1986, was working as a mechanic in Chico, when U.S.

marshals tracked him down, Zerillo said. Hutchison ran but was captured after a brief chase. A tipster who had seen Hutchison's picture on the nationally televised program, which briefly highlighted his case, clued federal authorities to his most recent alias and job, Zerillo said. In September 1986 he was indicted by a federal grand jury In Louisville on charges of conspiracy to manufacture methamphetamines, a form of "speed," and possession of the drug with intent to distribute it, Zerillo said. Hutchison, formerly of Union County, apparently learned of the indictments and fled to Canada, Zerillo said.

About 15 days later, however, Canadian authorities arrested him on a weapons violation and, Summer of '89 Sale 0 OFF all spring summer merchandise Including Accessories STARTING FRIDAY JUNE 9th Just in time for summer, don't miss Karen's hottest sale of the year! STAFF PHOTO BY DAVE YODER HOME FOR TOYS: Adela Brown distributed toys to children at the Home of the Innocents Wednesday through the Louisville Employee Activities Program at Brown Williamson Tobacco Corp. The group gave more than 125 stuffed animals. 4903 Old Brownsboro Road (502)425-9200 High court rules juvenile appeal trials closed vCrrJ! I trr" I per wanted to report on the arguments regarding the constitutionality of the Juvenile code. Fleischaker said yesterday's ruling may allow such an important matter to be disposed of in "a secret decision." "What the court is apparently saying is, the citizens of this commonwealth do not have a right to see, or to have access to, legal discussions and arguments about the constitutionality of state statutes if they pertain to juvenile proceedings," Fleischaker said. He said he did not know if the newspaper will appeal.

In a dissenting opinion yesterday, Justice Charles Leibson agreed with Fleischaker's contention that certain information should be made public. Leibson wrote that the defendant is not entitled to confidentiality in matters beyond those dealing with himself. David Niehaus, an attorney representing the alleged killer, said he believed the Supreme Court's majority decision implicitly addressed the newspaper's argument about separating the facts of the case from the constitutionality question when it noted that everyone is guaranteed at least one appeal. A Juvenile's decision about whether he wants to appeal should not be based on a fear that the facts of his case might be divulged in the newspaper, Niehaus said. And an appeal can't be properly decided unless arguments are couched within those facts, he said.

By CARY B. WILLIS Staff Writer The Kentucky Supreme Court ruled yesterday that the press and public may not have access to appeals of rulings from juvenile court. Ruling against The Courier-Journal, the high court said that juvenile cases, which are closed to the public by law, do not shed their confidentiality requirement when a ruling is appealed to a higher court Yesterday's 4-2 decision grew out of a maze of legal wrangling over the 1987 beating death of 16-year-old Steven Dale Moore, who was living at a state-run group home on Westport Road in eastern Jefferson County. Various appeals have delayed a decision on whether the boy who allegedly committed the beating, also 16, should be treated as a juvenile or tried as an adult The boy has been in the Jefferson County Youth Center for 564 days. In January 1988 Jefferson District Judge Robert Delahanty who has since retired declared the juvenile code unconstitutionally vague in ruling that the alleged killer could not be tried as an adult (The ruling removed the possibility of his being sent to prison.) When prosecutors appealed Dela-hanty's ruling to circuit court, the newspaper asked to see the file on the case, which it claimed had become public.

Circuit Judge Martin Johnstone denied the newspaper's request to see the records, as well as an attempt by a Courier-Journal reporter to attend a September hearing on the appeal. Johnstone's ruling to close the hearing was overturned in February by the state Court of Appeals, which said there was no state law closing hearings on appeals in juvenile cases. However, the appeals court said that records pertaining to an appeal of a juvenile case may remain sealed. Yesterday the state's highest court rejected the Court of Appeals' decision to keep the hearings open. "The purpose of the shroud of secrecy and confidentiality is to protect the juvenile," wrote Justice Dan Jack Combs.

"It was intended that trials of juveniles not be publicized in the news media, as such publicity would possibly deprive the juvenile of a fair trial and, more particularly, would likely diminish his or her prospect for rehabilitation. "To exclude the press at the district level, but admit them at the appellate level, would tend to nullify the original intent and purpose of the legislature and the wholesome policy of the Uniform Juvenile Act." Courier-Journal lawyer Jon Fleis-chaker said he was surprised by yesterday's ruling. He said the newspaper was not interested in revealing the facts surrounding the killing, nor did it want to divulge the juvenile's identity. Instead, the newspa pfari nm All unclaimed watch repairs DIAMONDS WATCHES and jewelry repairs TENNIS BRACELETS, PENDANTS, GIFTWARE, FURNITURE, FIXTURES, EQUIPMENT Ruling favors natural parents in custody cases Charles David Johnson was a guest at an Erlanger motel in September 1985 when police were called about a disturbance. One officer believed him to be under the influence of drugs.

The door to Johnson's room was ajar and an officer shined a flashlight on a white powder and what he believed to be drug paraphernalia in the room. Through an opening in a window curtain, the officer also shined the flashlight under the bed and spotted a handgun. A search warrant was obtained and Johnson was ultimately found guilty of various drug possession offenses and possession of a handgun by a convicted felon. The court upheld that search. Three days later, while Johnson was out on bail, police obtained a warrant to search his car in the parking lot of another motel.

Evidence of physical injury, emotional harm or sexual abuse or allowing someone else to inflict such harm. Moral delinquency. Abandonment Emotional or mental illness. Failure, for reasons other than poverty, to provide essential care for the child. Search and seizure: In other action yesterday, the court ruled that people do not have the same privacy in a motel room as in a home or office.

"Without diminishing an individual's right to be protected from an unreasonable search of his motel room we note that when one takes lodging in a motel it is with the certain knowledge that substantial numbers of persons unknown to him will be nearby and in a position to invade his privacy unless caution is exercised to prevent it," Justice Joseph Lambert wrote. "As such, what would be sufficient vigilance to preserve one's privacy in a home, apartment or office may be insufficient in a motel room." The opinion, decided by a split court, was based on two Instances involving the same individual. According to court records, Associated Press FRANKFORT, Ky. A court must find specific evidence that a natural parent is unfit before removing a child from the parent's custody, the state Supreme Court ruled yesterday. The court, in a 5-2 ruling, noted that no standards had ever been set to help judges make such decisions.

The decision was issued in a custody dispute between a mother and a paternal grandparent in Menifee County. The court said the bias is in favor of natural parents' retaining custody. "The United States Supreme Court has recognized that parents have fundamental, basic and constitutionally protected rights to raise their own children and that any attack by third persons and we would include grandparents in that category seeking to abrogate that right must show unfitness by 'clear and convincing Justice William Gant wrote. The court said sufficient evidence to give custody of a child to a third party would include; gj yj 3 Come Early When Last Item Is Sold Sale is Complete Police kicked open the motel- ENTIRE INVENTORY INCLUDED MATFIELI room door after Johnson tried to slam it shut. Cash or Credit Cards Only ALL SALES FINAL! All major credit cards welcome Our only Louisville location.

Jewelers The Diamond Store Downtown in the Hyatt Regency 4th Jefferson 583-3997 Police said they feared Johnson was getting a weapon, but the court said that was not enough and ruled that the second search was improper. The drugs and paraphernalia they found were thrown out as Quality Since 1887 M-F Sat CLOSED SUNDAY.