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Product Liability – Design and Safety Devices
Messerly v Nissan North America, Inc., ___ S.W.3d ___, 2011 WL 6004318 (Ky.App. December 2, 2011)
In this split opinion a panel of the Court of Appeals essentially held that a jury could reasonably conclude that most automobiles operating on the highway are unreasonably dangerous because it is possible to run over a child in a driveway. While the opinion discusses a number of reports concerning the dangers inherent in backing up around children, the opinion offers no analysis of how they relate to its decision. This case will almost certainly be reviewed by the Supreme Court as it contains interesting and significant issues which are left unaddressed by the opinion.
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Employment – Whistleblower Statute
Patton v Pollard, ___ S.W.3d ___, 2011 WL 6003893 (Ky.App. December 2, 2011)
Patton was a French teacher in the Knott county school system, and was reprimanded by Pollard, the principal, for several things, one of which was calling him a “twit”. She responded by asking in writing that the letter be removed from her personnel file for a number of reasons, one of which that she claimed Pollard violated Kentucky Department of Education rules and statutes governing the use of sick leave. She claimed that in retaliation her position was eliminated, effectively terminating her employment. Because she copied the superintendent with the letter, the Court considered it a report of a violation of law.
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Insurance – UIM - Stacking
Howe v The Cincinnati Insurance Company, 2011 WL 5301592 (W.D.Ky November 1, 2011)
The District Court granted a motion to dismiss to an automobile insurer on an insured’s claim that he was entitled to stack his underinsured motorist coverage limits. Because the policy was adopted and incorporated into the Complaint, the Court was able to consider the motion without resort to matters outside the Complaint. While the policy did insure three vehicles, it charged only one premium for that coverage. The policy also contained a provision limiting coverage to stated limits regardless of the vehicles shown on the policy.
The plaintiff requested time to conduct discovery to determine if the single premium was merely illusory. However, the policy history refuted such a claim. Vehicles had been added and dropped in the policy history, but the premium for UIM coverage had not changed. The Court deemed this conclusive on the legitimacy of the single premium.
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Damages – Inadequacy – No Pain and Suffering
Schulze v Hinton, ___ S.W.3d ___, 2011 WL 5105382 (Ky.App. October 28, 2011)
The jury awarded a small fraction of the claimed medical expense and some lost wages but nothing for pain and suffering. The testimony demonstrated that plaintiff had a prior back condition, and the Court held the jury could reasonably have believed that the accident did not cause her subsequent treatment and surgery. One more useful way to look at a case of this type is that the jury attributed the diagnostic expense associated with accident to the defendant but not the treatment itself. Viewed in this way, there is no inconsistency between the award of medical expense and the absence of pain and suffering.
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Spoilation
University Medical Center, Inc. v Beglin, ___ S.W.3d ___, (Ky. October 27, 2011)
The Court held that a spoliation instruction was properly given where there was testimony that a post-occurrence report was prepared, the report was in the exclusive control of the defendant, and there was no explanation for the fact that the report was missing. The instruction given required that the jury find that the report was intentionally or in bad faith destroyed or lost. The Court never addressed the issue that was actually before it, whether there had to be evidence of intent or bad faith in order to create a factual issue, and thus the opinion can be read as holding that intent or bad faith may be inferred from the fact it was lost without explanation. The Court essentially said that loss under these circumstances raised an inference of intent or bad faith. This is incorrect, since it is just as likely that the document was simply misplaced. If there were facts that tilted the balance of probability in one direction or another, it is not found in the opinion. In other words, this issue will have to be dealt with again in the future, but in the meantime the moral is to make sure there is some kind of explanation for a missing document. The Court does, however, provide a listing of a number of examples of circumstances where the instruction is not appropriate.
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Insurance – No-Fault – Arising out of the Use
Interlock Industries, Inc. v Rawlings , ___ S.W.3d ___, (Ky. October 27, 2011)
While the issue in this case was whether the no-fault two year statute of limitations applied, this in turn depends on whether the application of the Act. The definition of “arising out of the use” specifically excludes “conduct in the course of loading and unloading the vehicle.” The plaintiff was standing on the trailer rolling the straps while a forklift operator was unloading the load and the plaintiff was injured by the load. The Court held that the rolling of the straps was a part of the unloading process, and that the claim therefore had to be brought within one year. The result is clearly correct, but the Court’s language implies a requirement that is not present. The majority opinion focuses on whether the plaintiff’s conduct was part of the unloading, while the statutory language requires only that the accident arise out of the unloading. In this case this makes no difference, but could in a future case.
In a dissent two Justices argued that the two year no-fault limitations should be applied because the no-fault carrier paid benefits. No explanation was given as to how the mistaken conduct of a third person could change the statute of limitations, but this assertion cannot be justified by the language of the statute itself.
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Punitive Damages – Employer or Principal Liability
University Medical Center, Inc. v Beglin , ___ S.W.3d ___, (Ky. October 27, 2011)
The Court considered the provisions of KRS 411.184(3) insofar as it defines the circumstances under which an employer or agent may be assessed punitive damages based on the conduct of an employee or agent. At the outset it should be noted that Court left open the provision’s constitutionality. In predicting what will occur, it might be noteworthy that the Court has undercut every other substantive provision of the Tort Reform Act of 1988. The Court considered the circumstances under which an employer “authorized or ratified or should have anticipated the conduct in question”.
The Court assumed that the conduct resulting in a delay in providing blood was sufficiently egregious to justify punitive damages. First, the Court determined that “authorized” implies some pre-approval of the conduct, which had not been proven. The Court secondly rejected the argument that ratification could be inferred from what plaintiff claimed was of poor quality, or that ratification could be inferred from the loss of an incident report. Worthy of note is the third aspect of the analysis, in terms of what “should anticipate” means. The Court rejected the application of this principle where such an incident had not occurred before, and the staff was trained not to let this occur. The Court noted that the conduct in question was itself a deviation from the training. The Court’s work here is entirely consistent with the intent of the statute, although it may be of little significance if the Court in the future further extends the luddite “jural rights” doctrine to strike down this statute.
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Civil Rights – State Action for Constitutional Violation
St. Luke Hospital, Inc. v Straub , ___ S.W.3d ___, (Ky. October 27, 2011)
This case arises out of an involuntary extraction of blood and urine at a hospital under the direction of a police officer. She initially filed a federal claim which was dismissed. She therefore filed a new state Court suit and claimed her rights under the Kentucky Constitution were violated. The Court declined to create such a cause of action, and the most interesting part of the case is the construction of KRS 446.070. The short view of the holding is that the Court held that KRS 446.070 applies only to state statutes, and not the Kentucky Constitution. However, in describing the statute, the Court says the statute was enacted in 1942 to codify the common law concept of negligence per se. This is simply untrue. This statute was first enacted in 1892 following the Constitutional Convention, and in 1942 there was simply a renumbering and recodification of the Kentucky Acts. More importantly, the statute has almost always been used in non-negligence cases. The purpose of the statute is not override a common law principle that a penal statute could not form the basis for a civil action. The Court is correct, however, in noting that its scope is limited to statutes.
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Statute of Limitations – Board of Claims
Hammers v Plunk, ___ S.W.3d ___, 2011 WL 5008045 (Ky.App. October 21, 2011)(en banc)
In this case, the Court of Appeals, sitting en banc, overruled its 2009 decision in Wagoner v Bradley, 294 S.W.3d 467 (Ky.App. 2009) in which the Court held that the one year statute of limitation found in KRS 44.110 applied to all claims brought against the government regardless of where the claims were brought. The Court held that that the scope of KRS 44.110 is commensurate with that of the Board of Claims Act itself and applies only to actions brought there. Actions brought in Circuit Court are governed by the normal statute of limitations. This result, while logical and in comport with the statutes in question, leaves an interesting potential loophole. Suppose a claimant has a potential claim against the state that can only be brought in the Board of Claims but that statute has run. Could it be filed in Circuit Court and when dismissed for lack of jurisdiction, then be timely filed based on KRS 413.270, which allows an additional ninety days to file if so dismissed?
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FELA – Preemption by FRSA Regulations (Unpublished)
Loy v CSX Transporation, 2011 WL 5008081 (Ky.App. October 21, 2011)
Plaintiff was a lead carman and, while performing a brake certification test, lost his balance when a large piece of ballast (the gravel on which track is laid) rolled under his foot. He lost his balance and when he grabbed hold of a handrail he tore his rotator cuff. While FSRA [Federal Railroad Safety Act] regulations deal with the proper ballast to use, the Court held that dealt with a safe railway for the train, and not a safe walkway for employees.
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Negligent Selection and Retention
Edwards v Gruver, ___ S.W.3d ___, 2011 WL 4860431 (Ky.App. October 14, 2011)
Edwards was the head of a group of KKK wannabes called IKA, which was an unincorporated association. Members of the IKA assaulted a visitor at the Meade County Fair under the impression he was an illegal immigrant from south of Texas. While Edwards encouraged members to recruit new ones, and there were some recruiting efforts made at the fair, Edwards did not send them to the fair and may not have even known they were there. This case was initially decided and reported, but a rehearing was granted. The original opinion discussed these bizarre facts in the context of respondent superior, while the plaintiffs suggested the result was supported under the theory of negligent selection.
The gravamen of the holding is that negligence in selection applies to all agents, not just employees. The dissent argued that this duty applied only in the context of a master servant relationship. While this limitation appears to be inconsistent with the Restatement view, many of the points raised by the dissent hint at the real problem with the opinion. If the recruiters were the agent of Edwards, was their conduct in beating up a young man thought to be an illegal immigrant within the scope of that agency. No one offers an explanation as to how the assault furthered the mission of the agency, which was recruiting new members. At best, the recruiting mission simply placed them at the scene of the assault, a place they had a right to be independent of any relationship they had with the IKA. While the majority opinion discusses at length references to violence found in the organization's philosophy and publications, this actually defeats the court's rationale. If the mission of the agents was to commit assaults, they were very well selected to accomplish the mission. It is frankly difficult to see how this is a negligence case at all. It sounds more like a conspiracy to commit assault, or maybe even a RICO action. While the unsavory nature of the parties and the torts committed drive the result, this case needs to be reviewed by the Supreme Court and viewed from the standpoint of how the rationale will impact future cases rather than just reaching the correct result in one case.
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Premises Liability – Licensee (Unpublished)
Bentley v Hall , 2011 WL 4861842 (Ky.App. October 14, 2011)
A key fact is missing from this opinion, without which one cannot assess the quality of the Court's analysis. Ms. Bentley fell on the steps leading up to a mobile home. Mr. Hall owned the mobile home as well as the mobile home park. One might assume that Hall also lived in the mobile home, in which case the issues are properly framed, but Ms. Bentley was reportedly returning from a date with her boyfriend. If Mr. Hall merely owned the trailer, then the decision should have turned on the absence of duty. If we assume that Mr. Hall occupied or otherwise controlled the trailer, then the Court correctly observed that Bentley was a social guest and therefore a licensee.
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Emotional Distress – Impact Rule (Unpublished)
Akemon v C & S Oil Pipeline Construction, L.L.C. , 2011 WL 4861851 (Ky.App. October 14, 2011)
This case involves the "impact rule", and while it reaches the correct result, it does not address the most obvious error committed by the trial Court. The claim was for emotional distress allegedly resulting from her witnessing a fire and being fearful because of it. The trial court held that the fact that she felt the heat from the fire was sufficient contact. The court went straight to the easy resolution based on causation, but by leaving this unaddressed this panel has invited great uncertainty once again as to the viability of the impact rule under Kentucky law.
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Professional Liability – Attorneys - Duty
Anderson v Pete, ___ S.W.3d ___, 2011 WL 4633096 (Ky.App. October 7, 2011)
The defendant attorneys unsuccessfully handled a wrongful death claim. Suit was filed alleging malpractice by the decedent’s spouse, who was also the personal representative, as well as two minor children. The minor children had not been included in the underlying suit, and the defendant attorneys argued that there was no attorney client relationship with the minor children.
There was no contract defining who the clients were, so the initial question was whether an attorney client relationship was created by the parties. The spouse filed an affidavit stating that she thought the attorneys represented all of them. The Court held that since the children were beneficiaries of the estate, this belief could be found to be reasonable. The Court did not address the question of how this belief could persist when the underlying litigation went on for some time and obviously the children were not parties. By the same token, the affidavit did not say that there were discussions about available remedies and the spouse was given improper advice, but rather the discussion of the children as described was in the context of their roles as beneficiaries of the wrongful death case. If this decision stands, the moral is for the attorney to clearly define who the client is in a written agreement. It should also be noted this the rationale of the decision does not clearly apply where the question is whether the attorney accepted the representation at all, of the claims/clients are not related by family considerations.
Perhaps due to a lack of comfort with its primary ruling, the Court went further and offered a second ground for finding a duty, and in this regard went astray. The court discussed both privity of contract and the circumstances under which a third part/non-client can be owed a duty. These concepts do not create an attorney client relationship, but rather govern when a non-client can be owed a duty otherwise owed to a client. While this analysis is not critical to the holding, it has potential to cause a great deal of confusion in future cases if allowed to stand.
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Damages – Loss of Consortium
Rehm v Ford Motor Company , ___ S.W.3d ___, 2011 WL 4632924 (Ky.App. October 7, 2011)
In this asbestos case, the Court suggested that a spouse could maintain even though not married at the time of the alleged exposure to asbestos. The Court’s decision was premised on the holding of the Supreme Court in Capitol Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky. 1994) that a cause of action for asbestos exposure does not accrue until there is a manifestation of symptoms. While actually obiter dictum, the opinion supports the idea that in order to bring a loss of consortium claim it is only necessary that the spouse was married at the time of accrual, which in a latent disease case is the date the injury is discovered, or should have been discovered.
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Warning: These opinions should not be cited as authority unless and until they become final except as provided in C.R. 76.28(4)(c).
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Commentary
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Upcoming Events
Attending October 20, 2011, Aviation and Space Law Litigation, Washington, D.C.
Presenting October 21, 2011, Property and Casualty Insurance: Issues in Claims and Litigation, Lexington, Kentucky
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Mission
This site is intended to evolve into a ready source of information that might be of interest to insurance adjustors, corporate counsel or attorneys who are working with cases in Kentucky involving personal injury, property damage or insurance coverage issues. We welcome all comments or suggestions as to what content might prove helpful.
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