January 2009
Supreme Court
Premises - Asbestos - Landowner’s Duty to Warn Independent Contractors
Brewster v. Colgate-Palmolive Company, 279 S.W.3d 142 (Ky. January 22, 2009)
In this asbestos case brought against several property owners on whose property the Plaintiff had worked as an employee of an independent contractor, the Court reaffirmed and to some extent clarified the circumstances under which a possessor of property owes a duty to warn to an independent contractor. The plaintiff must show that the possessor had actual knowledge of the dangerous condition as well as actual knowledge that the condition was dangerous. In many cases these two issues are the same or similar, but in the case of asbestos exposure time and the advancement of science combine to separate the two. it was not sufficient that there was literature from which the possessor could have determined the danger. The two Justices who dissented were of the opinion that knowledge of the danger could be constructive. Secondly, the Plaintiff must show that the independent contract (the employer, not the Plaintiff) did not have such knowledge. The Court declined the invitation to adopt the burden shifting doctrine that applies to public invitees who fall in stores.
Insurance - Insured Has No Duty to Bring Suit for Property Damage
Gilbert v. Nationwide Mutual Ins. Co., 275 S.W.3d 690 (Ky. January 22, 2009)
This is an odd case involving the subrogation rights provision of the collision coverage part of an automobile policy. The insured owner sustained property damage and her daughter, the insured driver, sustained minor injuries. Based on indications that the tortfeasor’s liability insurer would accept responsibility for the claims, made no claim under her own collision coverage. The insured did give her insurer timely notice. Finally, it proved necessary for the insured driver to file suit. The insured owner did not bring her property damage claim because she thought it would be resolved once the daughter’s claim was resolved. As it turned out, the injury claim was resolved after the statute of limitation ran on the property damage claim, so she filed a claim against her insurer. Even though these facts lead to a loss of all subrogation rights, the Court held that the requirement that the insured "do nothing to prejudice" those rights because this provision requires an affirmative prejudicial act on the part of the insured (like settling the case without consent) and the failure to bring a claim was not an affirmative act. The moral of the story? If you care about subrogation, go ahead and pay the collision claim. If not, you take your chances.
Arbitration - Absence of an Enforceable Contract Precludes Jurisdiction under KRS 417.200
Ally Cat, LLC v. Hon. A. C. McKay Chauvin, 274 S.W.3d 451 (Ky. January 22, 2009)
In order to invoke KRS 417.200 (State Arbitration Statute) the arbitration provision must contain language requiring arbitration to occur in Kentucky. Accordingly, absent a provision in the contract requiring arbitration in Kentucky, the trial Court is without jurisdiction to compel arbitration. The Court did not go so far as to say that an arbitration which had already occurred in Kentucky could not be enforced, even if the provision did not require it.
Employment - Wrongful Discharge Claim for Union Organizing is Preempted by NLRA
Methodist Hospital of Kentucky, Inc. v. Gilliam, 283 S.W.3d 654 (Ky. January 22, 2009)
The Plaintiff filed an action alleging that he was discharged from his employment because he had participated in union organizing activities in violation of KRS 336.130. The Court held that this was clearly preempted by the National Labor Relations Act. The Court distinguished its prior decision in Pari-Mutual Clerk’s Union of Ky v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky. 1977) on the ground that the National Labor Relations Board had declined to exercise jurisdiction over the horse racing industry.
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