This case arose of out attorney representation of an employer through its insurer in the context of a workers’ compensation case. After the initial claim was decided, and after the employer became self insured, the former employee filed a motion to reopen the case alleging a worsening of his condition, and counsel filed a motion to add the employer’s self insurance entity as a party on the ground that the former employee was actually complaining of a new injury. The Board found it to be a new injury. The effect of this was to transfer liability from the insurer to the client, and the Court easily found a conflict of interest. The Court also found that there was no causation as a matter of law. In a legal malpractice case, causation often turns on the case within the case, or in other words, whether it can be shown that had the attorney not been negligent that the result would have been different. In this case, the Court observed that since the medical evidence would have been the same no matter who was hired by the insurer, it could not be said that withdrawal would have changed the result.
Statutes of Limitation - Fraudulent Concealment KRS 413.190(2) Emberton v. GMRI, Inc., 299 S.W.3d 565 (Ky. October 29, 2009)
A customer of a restaurant contracted Hepatitis A from food served there. While she did not know it at the time, his server had Hepatitis A at the time he was served. When it was learned that the server had contracted the virus, the other employees were tested and treated, but were told not to talk anyone about it. The restaurant also told a health department epidemiology team who was investigating the outbreak that the server’s hygiene was good and failed to disclose that she had been seen touching food with her bare hands, eating from the ice cream and drinking directly from a carton of milk. When plaintiff was interviewed by the epidemiology team he was not told of the other infections pointing to the restaurant. He learned the cause of his infection three years later when he was contacted by an attorney who had other litigation against the restaurant. The Court held that this began the limitations period.
In a unanimous opinion, the Supreme Court has now held that a spouse may being a claim for loss of consortium as part of a death claim. Prior to this, the loss of consortium claim was derivative of a personal injury action, and thus only the pre-death portion was deemed to survive. The Court’s biggest difficulty in extending this was the fact that under the Kentucky Constitution it is the legislature, not the Court, which is to determine the measure of damages for wrongful death. The Court simply ignored this fine point, and treated its ruling an a mere extension of the personal injury claim. This in turn ignores the long settled fact that the survival of a personal injury claim is separate and distinct from an action for wrongful death, and in fact for over a century a plaintiff as required to elect between them. All of this raises the question of whether the Court is hinting at a fundamental change in the theoretical basis for survival and death claims. The best guess is that it does not. The opinion is best explained as a political phenomenum and has more to do with votes than legal theory. The end result is, however, that it is likely here to stay.
Issues that will need to be dealth with in the near term, other than the fact that the value of death claims just went up substantially, include: 1) is the ruling retroactive; 2) can this new claim be used as a stealth vehicle for allowing emotional distress claims by a spouse which would otherwise be barred by the impact rule; 3) does the statute of limitations run from the date of death or the date a personal representative is appointed; and 4) does remarriage, and perhaps remarriage statistics, become relevant in a death case.
While the procedural context of this issue is clouded, the Court reaffirmed that the purpose of the EMTALA is not implicated where a hospital emergency room is guilty in a mere delay in treatment as opposed to a refusal to treat or screen as described by the Act. Of course, delay in treatment will continue to constitute a state malpractice claim.
The Court completed the rejection of the efforts made by prior Courts to establish a test for when a government agency is to have been considered a part of state government. The "Berns test" had previously been used to determine whether an agency served a governmental function, and this implicated the role of government control and funding. Now, the test is simply whether the agency is engaged in a governmental function, which presumably will be decided on an ad hoc basis. Once again, Kentucky law is set adrift in terms of sovereign immunity and each particular determination will be made based on who is sitting on the Court rather than any particular legal principle. Most on the defense side might ask why this should matter to them, but it should be recalled that a defendant cannot obtain apportionment against a tortfeasor who happens to be deemed to be serving a governmental function.
KRS 304.39-140 defines the amount of added reparation benefits which a carrier must offer, not the amount provided by a particular policy. The amount actually provided is defined by the amount requested by the insured.
The Court held that a report to a supervisor over the alleged wrongdoer was sufficient to support a whistleblower action, as all that is necessary is that the person have authority to address the subject matter of the report.
Battery - Statutory Immunity Hawes v. Lapointe, 2009 WL 3321082 (Ky.App. October 16, 2009), review granted September 15, 2010 (2010-SC-33-DG)
Effective July 12, 2006, the defenses available in the criminal law concerning the use of force were extended to civil cases as well. KRS 503.085(1). At the same time, the defenses were also enlarged and certain presumptions created in KRS 503.055, which among other things abolished the duty to retreat. The enhanced defenses are primarily directed at the sanctity of the dwelling, residence and occupied vehicle, and it creates a presumption of reasonable fear if the recipient of the force was unlawfully and forcibly entering (or had entered) a dwelling, residence or occupied vehicle, and the person using force knew of the entry. It then lists four exceptions to the presumption. It also creates a presumption that a person who unlawfully and by force makes such an entry did so with the intent of committing an unlawful act involving force or violence. While the primary issue in the case was retroactivity, the Court did question the application of the statute to the facts of the case. While the plaintiff had entered his home without invitation previously, when the defendant arrived at the house the plaintiff was standing in the driveway. At the time in question he was in his car and was backing out of the driveway, and the defendant fired his shotgun at the pavement below the car, but a ricochet injured the plaintiff. The Court indicated that to apply, the entry had to be contemporaneous with the use of force.
Allegations that a brother made repeated representations that each would receive one-half of their father’s estate was insufficient to support a misrepresentation claim because it was a mere promise to act in the future at best. Also, there could be no reliance since neither brother had control over the father’s right to change his will as he saw fit.
A son alleged that he reached an oral agreement with his father to devise one-half of his estate to him in consideration of his forbearance from filing criminal charges in connection with the father’s handling of his wife’s estate. The son then alleged that his brother interfered with the performance of the contract. The Court held that there was no contract for two reasons. First, it did not comply with KRS 394.540(1) which limits how a contract to make or not revoke a will can be made. Second, contracts that are intended to impede the regular administration of justice are void as against public policy.
A son alleged that he and his father reached a “side deal” in connection with the handling of his mother’s estate that when the father died the son would receive half of the estate. Thereafter, the father remarried and changed his will to devise his property to his new wife, and the will was prepared by the law firm his brother worked for. The Court held that the father owed the son no fiduciary duty as a beneficiary of the mother’s estate, and accordingly the brother could not have aided or abetted in a breach.
The gist of the plaintiff’s suit was that he was denied his inheritance from his father because he changed his will. His brother was an attorney at the firm which changed the will. However, there was no evidence that his brother actually created an attorney client relationship. He was not involved in the drafting of the will, and the wrongful acts alleged were part of the family disagreement rather than the rendering of professional services.
A son who was adversely effected by the drafting of a will was not a third party beneficiary where the will effectuated his father’s desire to devise all of his property to his new wife.
Insurance - UIM - Estoppel based on “Fronting” the Settlement Funds Under Coots Bryant v. Hopkins, 2009 WL 3231220 (Ky.App. October 9, 2009), ordered depublished April 14, 2010 (2009-SC-719-D)
A UIM insurer elected to protect its subrogation rights by "fronting" the settlement funds which the tortfeasor’s insurer agreed to pay and subsequently determined that its UIM coverage did not apply to the plaintiff. The plaintiff argued that the "fronting" was an admission of coverage and that the company was estopped from denying coverage. The Court held that the purpose of Coots had nothing to do with admissions of coverage and that the claim for UIM could be denied even though the company had sought to protect its subrogation rights.
Statute of Limitations - Tolling Provision allowing 90 days to Re-file if Dismissed for lack of Jurisdiction Applies to Actions Re-filed in Board of Claims Nelson County Board of Education v. Forte , ___ S.W.3d ___, 2009 WL 3231646 (Ky.App. October 9, 2009), review granted April 14, 2010 (2009-SC-715-D)
KRS 413.270 tolls the statute of limitation where a case is timely filed in the wrong court and dismissed for lack of jurisdiction (or venue), and allows the case to be refiled within 90 days of dismissal. The Court held that this provision applies to a suit filed in Circuit Court and dismissed because of sovereign immunity which was refiled in the Board of Claims.
Decisions regarding benefits are normally reviewed under an arbitrary or capricious standard, meaning that a plan administrator only need offer a reasoned explanation for its decision which is based on the evidence. However, closer scrutiny is required where there is a conflict of interest, which is the case when the decision maker also pays the benefits from its own funds. Where the plan does impart discretion but the decision maker also pays, the Court will employ the arbitrary and capricious standard while considering as a factor the potential conflict of interest. Where the only two factors weighing against the decision are the conflict and the failure to address the Social Security decision to allow disability, the decision to deny disability benefits would be upheld.
An amended complaint claiming that the plaintiff was denied towing referrals in retaliation for bringing a 1983 action based on the bidding process for towing referrals was held to have arisen out of the same transaction or occurrence for purposes of relation back.
In order for a handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to create a genuine issue of material fact that: (1) he or she complained the handcuffs were too tight; (2) the officer ignored those complaints; and (3) the plaintiff experienced “some physical injury” resulting from the handcuffing. Bruising and markings made by handcuffs constitute sufficient injury to raise an issue of fact of excessive force.
The use of force in pushing a detainee’s face into the ground each time she tried to talk after being handcuffed and while lying in a prone position was excessive as a matter of law. It was no defense that the detainee only sustained red marks which did not break the skin, and there was not a blanket de minimus immunity in excessive force cases.
On reconsideration as ordered by the United States Supreme Court under Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007), a prisoner is not required to plead exhaustion of administrative remedies under the Prisoner Litigation Reform Act. 42 U.S.C. sec. 1997e, et. seq.