Kentucky Court of Appeals - Unpublished
Subject
Cornett v. Bright, 2010 WL 3360875 (Ky.App. August 27, 2010), Supreme Court ordered opinion not to be published (2010-SC-634-D)

Plaintiff sustained a contusion and laceration to her lower right leg. She presented to the emergency room and was treated with medicated ointment and antibiotics. She went to doctors for a month or so after the accident, but received no treatment. She had not seen a physician since. The defendant offered medial expert testimony that there was no reason for plaintiff to have suffered pain. The jury made an award for medical expenses and lost wages, but awarded zero for pain and suffering. The Court upheld the pain and suffering award as justified by the evidence, noting that the jury did not have to believe the plaintiff’s physician experts.

Kentucky Court of Appeals - Unpublished
Insurance – No-Fault – Setoff for Amounts Paid or Payable by PIP
Cornett v. Bright, 2010 WL 3360875 (Ky.App. August 27, 2010), Supreme Court ordered opinion not to be published (2010-SC-634-D)

The jury awarded the plaintiff $3,500.00 in medical expenses and $440.00 in lost wages. The trial court held that plaintiff could not recover these amounts because they were paid or payable by no-fault benefits. The Court rejected plaintiff’s argument that this was error because tort liability is abolished not just for loss paid by no-fault, but also loss that could have been paid by no-fault. The defendant therefore does not have to show payment, and it does not matter that the expenses were paid by health insurance.

Kentucky Supreme Court
Premises Liability – Open and Obvious Conditions
Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. August 26, 2010)

This case arose out of an injury sustained by a paramedic who tripped on a curb while a patient was being transported from an ambulance into the emergency room. The ambulance dock was eleven feet across and constructed in such a way that there were curbs on each side. A jury found for the paramedic, and the hospital asserted on appeal that it should have been granted a directed verdict. While the court noted that the curb areas were unmarked and unprotected, it seemed to be undisputed that the curbs constituted an open and obvious condition. The opinion will likely create more confusion than it provides clarification.

After a brief review of foreign cases, the court draws the concept of comparative fault into the equation. After almost 25 years, one would think it would be understood that comparative fault simply altered the effect of a finding of fault on the part of the plaintiff – it has nothing to do with whether a plaintiff or defendant owed a duty, breached a duty, or caused an injury. In fact, the principle in question predates the adoption of comparative fault. After this opinion, it remains the general rule that a landowner is not liable for open and obvious conditions. It also remains an exception to the rule a landowner may be liable if he has reason to anticipate the harm despite its obviousness. In this case, the court put a lot of emphasis on the proof that a paramedic is obligated to focus entirely on the patient, which would mean that the hospital should anticipate that a paramedic could not be focusing on where he or she was stepping. Since there was this evidence, it was for the jury to determine whether the condition was in fact unreasonably dangerous. That is all that was necessary to decide the case, but the opinion mixes and matches a number of different principles in a way that is going to make application of a rather simple rule difficult to administer.

Some will read the opinion as holding that the entire open and obvious issue is to be decided by the jury, and that may have in fact been the intent of the court. But the opinion does not so hold, at least not expressly.

Kentucky Supreme Court
Professional Liability – Attorneys - Assignment
Davis v. Scott, 320 S.W.3d 87 (Ky. August 26, 2010)

This case deals with a clever attempt to circumvent the Kentucky rule prohibiting the assignment of personal claims such as claims against attorneys for professional negligence. The client entered into a settlement agreement with a successor to his employer over a claim that he had breached a non-compete agreement. As part of the agreement, client agreed to file suit against the attorney who had allegedly failed to properly advise him as to the non-compete. The successor was to receive 80% of the proceeds from the suit, and exercised control over such things as choice of counsel. The court rejected the argument that it was just an assignment of proceeds, and held that it was invalid. Of course this did not invalidate the client’s claim, if any. The court held that the case would be dismissed without prejudice, with leave to re-file only if a showing could be made that the assignment was not in effect. The remaining question is, if the case is refilled, why would it not be barred by the statute of limitations?

Kentucky Supreme Court
Defamation – Qualified Privilege
Calor v Ashland Hospital Corp., 2010 WL 3374251 (Ky. August 26, 2010), petition for rehearing was granted and a new opinion, 2011 WL 4431143 (September 22, 2011).

Dr. Calor is an anesthesiologist who entered into a services agreement with Staff Care which in term provided Dr. Calor locum tenens to Kings Daughter Hospital. While there, Dr. Calor and others were recruited to join King Daughters new anesthesiology group. Dr. Calor claimed an extraordinary number of hours worked, which was noticed by Staff Care’s scheduling coordinator. These hours impacted the billing for services, the amount paid to Dr Calor, and the amount of malpractice insurance premiums. The Staff Care coordinator expressed concerns over the hours turned in to King’s Daughter’s recruiter. In the meantime, the cost of the locum tenens was exceeding the amount budgeted, and the CFO, McDowell, questioned their reasonableness. King’s Daughter began withholding payments, but did not inform either Dr. Calor or Staff Care at the time. Then allegations arose that Dr. Calor refused to fill out the proper forms and her time could not be accounted for using hospital records. A meeting was attempted with Dr. Calor, but was aborted when her husband and record keeper appeared as well. Instead, her services were terminated. McDowell called a supervisor at Staff Care and advised that Dr. Calor had been terminated due to falsifying timesheets. The dispute continued between King’s Daughter and Staff Care, and King’s daughter refused to pay Staff Care who in turn refused to pay Dr. Calor. Dr. Calor sued King’s Daughter claiming that it had not conducted a thorough investigation, had made defamatory statements, and was motivated by a desire to cut locum tenens costs.

A jury returned a verdict in favor of Dr. Calor. The Court of Appeals reversed, holding that King’s Daughter was protected by a qualified privilege as a matter of law. The Supreme Court reversed the Court of Appeals, but held that the case should be retried with a jury instruction on qualified immunity. King’s Daughter had failed to plead the qualified privilege, and raised it for the first time shortly before trial. The court held that the pleadings should have been conformed to the evidence, but that a question of fact existed as to whether the privilege had been “abused” or exceeded. Using the Restatement, the court identified four circumstances under which the privilege would be lost: 1) the publisher knew of or acted in reckless disregard of the falsity of the statement; 2) publication for an improper purpose; 3) excessive publication; or 4) by publishing material not necessary to accomplish the purpose on which the privilege is based.

Kentucky Supreme Court
Sudden Emergency Doctrine
Henson v. Klien, 319 S.W.3d 413 (Ky. August 26, 2010)

The Plaintiff asked the Court to reconsider its decision in Regenstreif v. Phelps, 142 S.W.3d 1 (Ky. 2004) in which the Court clarified that the sudden emergency doctrine remains intact notwithstanding the adoption of comparative fault. It is indeed a sad commentary on our time that this issue could even arise, since one who has the slightest understanding of what the sudden emergency doctrine could not seriously argue that it has anything to do with comparative fault. The sudden emergency doctrine serves to excuse conduct which but for the emergency would have been a breach of a specific duty, usually one created by statute. It has nothing to do with the conduct of the plaintiff, unless the plaintiff created the emergency. Even then, it is not material whether the creation of the emergency was negligence. The Court sets out a primer on the subject for the bar, which I am sure will ignored by the portion of the bar that did not understand the concept in the first place.

Kentucky Supreme Court
Arbitration – Applicability to Rehabilitator
Ernst & Young, LLP v. Clark, 323 S.W.3d 682 (Ky. August 26, 2010)

This case arises out of the insolvency of AIK Comp, which was a workers’ compensation self-insurance group. The rehabilitator brought an action against the group’s former accountant, who invoked an arbitration clause which was premised on the federal act. The accountant’s motion to compel arbitration was overruled, and while not an issue, it is interesting that the case reached the court by a direct appeal of the order denying the motion to compel. The court has been all over the map in dealing with this issue in the context of federal law, but this is the correct procedure. The court held that the Kentucky statute which authorized the rehabilitator “preempted” the Federal Arbitration Act because in this case it relates to insurance. The court went on to hold, however, that a companion case brought by members of the group was bound by the arbitration agreements.

Kentucky Court of Appeals
Intentional Infliction of Emotional Distress
Bennett v. Malcomb, 320 S.W.3d 136 (Ky.App. August 20, 2010)

Plaintiff initially filed a complaint alleging that the defendant had intentionally, recklessly or negligently pinned him to a post with a tractor. The complaint was dismissed but plaintiff was granted leave to amend. He did so, alleging that the same facts amounted to the tort of intentional infliction of emotional distress, which has been held subject to a longer statute of limitations. The court noted that the tort was a gap-filler and that the injuries complained of were subject to traditional intentional torts. In affirming the dismissal, the court also relied on the fact that the intent on the part of the defendant was to cause injury and not emotional distress only, which may prove to be a helpful bit of guidance in the future.

Kentucky Court of Appeals
Insurance – UIM - Scope of Compulsory Statute
Little v. Kentucky Farm Bureau Mutual Insurance Company, 320 S.W.3d 133 (Ky.App. August 20, 2010)

While an insurer is obligated by KRS 304.39-320(2) to make underinsured coverage available, it is not obligated to sell the coverage in any particular amounts. Nor does the statute require that an insurer sell the limits requested.

Kentucky Court of Appeals
Workers’ Compensation Exclusive Remedy
Thornton v. Carmeuse Lime Sales Corporation, 346 S.W.3d 297, 2010 WL 3270055 (Ky.App. August 20, 2010)

Plaintiff was employed by a trucking company which contracted with Carmeuse to haul lime from its facility to its customers. Plaintiff was injured while unloading a truck at the Carmeuse facility. The court held that Carmeuse was a contractor and that the trucking company was a subcontractor, and dismissed the civil suit filed by the employee as barred by the exclusive remedy statute.

Kentucky Court of Appeals
Insurance – Business Pursuit Exclusion
Holzknecht v. Kentucky Farm Bureau Mutual Insurance Company, 320 S.W.3d 115 (Ky.App. August 15, 2010)

The plaintiff was an attendee at the day care business operated by the Defendants out of their home. She was bitten by the Defendants’’ dog. Kentucky Farm Bureau was the homeowners insurer for the Defendants. The Court held that the injury was excluded because it only had to be shown that the injury arose out of the business pursuit. The plaintiff’s argument that the dog was not related to the business was held to be immaterial, since the plaintiff child would not have been on the premises but for the business in question.

Kentucky Court of Appeals
Insurance – Severability
Holzknecht v. Kentucky Farm Bureau Mutual Insurance Company, 320 S.W.3d 115 (Ky.App. August 15, 2010)

After holding that coverage was excluded by the business pursuit exclusion in a homeowner’s policy in a dog bite case, the husband/insured argued that he should nonetheless be covered because the business was his wife’s and he sought to invoke the severability clause. This argument was rejected in part because he was involved in the day care operation, although his involvement was limited, but more importantly because he was aware of the operation and the insureds had failed to procure such coverage that was available by endorsement.

Kentucky Court of Appeals
Animals – Dog Bite KRS 258.235(4)
May v. Holzknecht, 320 S.W.3d 123 (Ky.App. August 13, 2010)

The family dog attacked a two year old who was attending day care in the family’s home. The Court reaffirmed the idea that the statute does not impose strict liability in all circumstances, and noted the exceptions set forth in the statute. However, in this case the child was incapable of negligence. There was some suggestion that the child may have provoked the dog by pulling on a blanket it was lying on. The defendants knew or should have known that the dog had access to the children, and they had told the child’s parents that the dog was kept outside. The Court found liability under the statute, but it seems that liability, if any, would be more soundly premised on negligence in the operation of the day care rather than the dog bite statute. This opinion would support the proposition that conduct which causes the dog to bite would only be a defense if it was also negligence, which seems to impose liability beyond the intent of the statute and prior case law.

Kentucky Court of Appeals - Unpublished
Subject
Stewart Title Guaranty Co. v. Hayden & Butler, P.S.C., 2010 WL 3292931 (Ky.App. August 6, 2010)

The defendant law firm contracted with the plaintiff title company to allow it to issue title policies. On January 19, 2000, the law firm issued a title policy on a property with an existing mortgage. In a subsequent bankruptcy, on January 5, 2005 the mortgage was voided for various deficiencies. The mortgage company made a claim against the title company, which was paid in November 2006. The suit was not filed until December of 2008. The title company argued that the claim was not one for professional negligence but was premised on the agency contract. The agency contract provided that the law firm would be liable for any loss occasioned by “fraud, intentional act, or omission of negligence” on its part. The court rejected the attempt to describe the claim as one for indemnity. The fact that there was a contract really has nothing to do with the issue, since almost all professional relationship arise out of a contract of one form or another, and in fact, KRS 413.245 was enacted because the limitations applicable to contract actions was too long. Furthermore, whatever the legal theory, the claim was premised on the lawyer’s failure to recognize the deficiencies in the mortgage.