September 2009
Court of Appeals
Insurance - Authority to Settle
Fields v. Womack , 294 S.W.3d 470, 2009 WL 2901196 (Ky.App. September 11, 2009)
The Court reaffirmed the idea that a liability insurer has the authority to settle on behalf of an insured regardless of whether the insured agrees. This was a consent policy, to which this principle would not ordinarily apply. However, the policy provided for consent to settle only while the policy was in force, and the insured declined to purchase a tail. The Court therefore ruled that the consent provision did not apply and enforced the settlement.
Standard of Care - Necessity for Experts
Boland-Maloney Lumber Co. v. Burnett , 302 S.W.3d 680 (Ky.App. September 11, 2009)
Where an injury was caused by a fall on stairs, even though while construction was underway, the fact that a stair riser was not uniform with the height of all other stairs was clearly an unreasonable risk of injury without any expert testimony.
Apportionment - Effect of Dismissal on the Merits
Boland-Maloney Lumber Co. v. Burnett , 302 S.W.3d 680 (Ky.App. September 11, 2009)
The Court did not venture into new territory when it held that a party who had been dismissed on the merits should not be included in the apportionment instruction. However, the language used by the Court may be more absolute than is called for. It seems that there could be a situation where a party is dismissed on the merits but is shown at trial to have been at fault based on evidence not considered on the motion to dismiss. While it could still be argued that the prior ruling became the "law of the case", the co-defendant may not have even had standing to resist the original motion. The Court has yet to consider this potential issue.
Damages - Loss of Earning Capacity
Boland-Maloney Lumber Co. v. Burnett , 302 S.W.3d 680 (Ky.App. September 11, 2009)
The defendant objected to the testimony of John Tierney because he based his earnings calculations on hypothetical earnings rather than actual earnings. This is a frequent problem and it is not clear on what legal theory any expert should be allowed to do this if the actual earnings are the best evidence. In that case, however, at least a reason was given in that the plaintiff was engaged in a new business which was reinvesting income. This does not explain why simply adjusting for that issue wouldn’t be the best evidence, but the Court simply does not seem willing to restrict this type of expert to the facts. The unfortunate aspect of the opinion is that it reinforces that idea that earning capacity is the measure of damages independent of actual earnings. The simple fact is that all the capacity in the world does not translate into damages unless the capacity would have been converted into actual earnings. The struggle for fairness in damages continues.
Employment - Redefinition of Job Qualifications as Race Discrimination
Woods v. Western Kentucky University , 303 S.W.3d 484 (Ky.App. September 11, 2009)
Woods had been employed as assistant director for a section, and served as interim director while a job search was underway. While she was interim director, the qualifications for director were changed so as to require a doctorate degree. Utilizing the McDonnell Douglas burden shifting analysis found a failure of proof. It was apparently uncontradicted that the change was at the instance of an accreditation agency. The Court held that the mere statement by an employee that she felt that the reason for the change was racial was insufficient to raise an issue of fact.
Statute of Limitations - Board of Claims Wagoner v. Bradley, 294 S.W.3d 467, 2009 WL 2835122 (Ky.App. September 4, 2009), overruled in Hammers v Plunk, __S.W.3d __, 2011 WL 5008045 (October 21, 2011)(en banc) Actions against employees of the state are governed by the one year statute of limitation found in KRS 44.110 regardless of where the claim is asserted and even though an automobile accident was the cause of the injury.
Employment - Retaliation Colorama, Inc. v. Johnson , 295 S.W.3d 148 , 2009 WL 2834950 (Ky.App. September 4, 2009)
This was a claim for wrongful discharge in which the employee claimed he was discharged in retaliation for having filed a workers’ compensation claim. The Court held first that the employees proof that he called and asked to be put back to work was sufficient to show a termination where he was not put back on the schedule. The opinion contains no real analysis on this issue. The opinion also discusses the need for a showing of a causal connection between the filing of the workers’ compensation claim and the termination. Again, the analysis is superficial, and does not even identify a decision maker, let alone whether the decision maker had knowledge of the workers’ compensation claim.
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