Kentucky Supreme Court
Insurance - UIM Rights Lost Where Coots Letter Only Advised of Offer, Not Settlement
Malone v. Kentucky Farm Bureau Mutual Insurance Company, 287 S.W.3d 656 (Ky. June 25, 2009))

The tortfeasor's insurer offered to pay its limits and the plaintiff's counsel sent a letter advising the plaintiff's UIM insurer of the offer and that plaintiff was considering whether to accept the offer. No subsequent letter was sent to advise that the offer had been accepted. In this 4-3 decision the Court held that this was insufficient to preserve the UIM claim and accordingly the UIM insurer was protected by the release. The dissent read the statute to require notice of a proposal, but it actually is pretty clear that it is triggered by an agreement. As a practical matter, if the dissent were adopted, a UIM insurer might be required to make its Coots decision before there is even a settlement. The dissent is best read as an attempt to avoid what might have been considered a bad result based on the technical language of the letter. But for now, the settling plaintiff counsel best pay close attention to the statutory requirements of notice if he or she wishes to pursue a UIM claim.

Kentucky Supreme Court
Sovereign Immunity - Agents of State
Caneyville Volunteer Fire Department v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790 (Ky. June 25, 2009)

This is a long and interesting opinion which defies instant analysis. The Defendant was a volunteer fire department which by statute was declared to be an agent of the state and therefore entitled to sovereign immunity. The Court of Appeals had ruled that the statute, KRS 75.070, was unconstitutional in that it ran afoul of the so-called "jural rights" doctrine. The Court seems to have disregarded the legislature's proclamation of agency, suggesting that this being a constitutional question was one for the Courts to decide.  The Court discussed the two prong test set out in Kentucky Center for the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1990). That Court held that whether a municipal corporation was an agent of the state turned on 1) control by the state and 2) financing by the state. This opinion suggests that this test was really more of a "factorial analysis", holding that the "real thrust" is a third factor, whether the agency carries out an integral governmental function. The Court had no difficulty in finding that firefighting was an integral governmental function, and it is not clear that the two "factors" which were the Berns test carried any weight at all. While characterized as an application of existing law, this opinion has the potential to constitute another change in the law, although, depending on how the case is applied in other contexts, it could become consistent with the most recently developed case law in this area.

Kentucky Court of Appeals
Arbitration - Unconsionability
Valued Services of Kentucky, LLC v. Watkins, 309 S.W.3d 256 (Ky.App. June 19, 2009)

A loan agreement with a cash advance type of store contained an arbitration clause. The lender sought to compel arbitration where the customer claimed that he was falsely imprisoned because he had not repaid his loan on time. What is most interesting about the opinion is that it suggests that the test for enforceability lies in whether an ordinary person would understand that he was waiving his right to a trial by jury. Ordinary people don’t think about their right to a jury trial at any time, and this is a situation where attorneys are assuming that ordinary people think like them. This opinion does little to clarify Kentucky law on this subject but may be reviewed by the Supreme Court if asked.

Kentucky Court of Appeals - Depublished
Sudden Emergency - Brake Failure
Bailey v. MCM Business Services, Inc., 2009 WL 1562848 (Ky.App. June 05, 2009), ordered depublished October 19, 2010 (2009-SC-551-D)

Driver's testimony that he looked away from the road and when he looked back he saw a Fed Ex truck and a car stopped in front of him.  He said he applied his brakes but they did not work properly, so he swerved left and struck the plaintiff's vehicle head on.  His employer in the truck behind him said the driver did not skid and there were no skid marks.  The driver also told the police officer at the scene that the brakes failed.  The expert proof, however, was uncontroverted that an inspection of the brakes gave no reason to beleive there had been a mechanical failure.  The Court held that the driver's testimony and other circumstances were sufficient to support a defense verdict based on sudden emergency.