Kentucky Court of Appeals - Unpublished
Settlement - Fraud
Abney v. Kentucky Farm Bureau Mut. Ins. Co., 2010 WL 668749 (Ky.App. February 26, 2010)

This case arose out of a rear end accident where the plaintiff was a passenger in the vehicle which rear ended the other. The opinion is oddly silent as to whether plaintiff was represented by counsel at the time of the settlement. In discussing settlement, the adjustor pointed out that he could settle and proceed with a claim against the driver of the vehicle in which he was a passenger. The release provided by the adjustor was later construed to be a release of all claims against all persons. The plaintiff sued for fraud based on the representation that a future claim could be brought. The Court held no fraud shown, largely because of comments by the Supreme Court when they reviewed the release that the issue was one of first impression. Thus, reasoned the panel, it had not been show that the adjustor knew his statements to be false. There are probably several other reasons why fraud was not proven here, but the case does point out the danger in using form releases without confirming they meet the actual agreement. Also, we find it puzzling that the plaintiff did not pursue reformation, since the opinion indicated that both sides contemplated that future claims could be brought. Of course, they would have had to raise that issue in the prior action concerning the release, and apparently did not.

Sixth Circuit Court of Appeals
Fiduciary Duty - Aiding and Abetting
Miles Farm Supply, LLC v. Helena Chemical Co., 595 F.3d 663, (6th Cir. February 25, 2010)

An unhappy employee of Miles farm reached out to Helena for a job and had discussions with three of its employees. The discussions led to the opening of a new Helena branch to be opened in western Kentucky. The Helena office then raided Miles Farm employees, and apparently a breach of fiduciary duty claim remains pending in state court between Miles and the former employee. This suit was initiated to claim that Helena aided and abetted the former employee in the breach. The Court held the claim failed because of the absence of actual knowledge that the former Miles employee was a fiduciary, or that his conduct in recruiting employees was a breach of fiduciary duty.

Kentucky Court of Appeals - Depublished
Procedure - Revival Where Plaintiff Dies During Litigation
Burnham v. Radiology Group of Paducah, 2010 WL 567923 (Ky.App. February 19, 2010), ordered depublished November 10, 2010 (2010-SC-188-D)

In this cancer misdiagnosis case, the plaintiff died during the pendency of the action from the cancer. The Court did not quarrel with the fact that revival is mandatory and that it did not occur in this case. However, the Court ruled that the defendant waived the requirement, which if it stands would be new law, and potentially an end to the requirement. If the opinion stands, it may be significant that the panel relied on litigation conduct after the one year time for revival had expired. The concern would be that if the defense had to bring the issue up during the year, the plaintiff’s estate could remedy the problem. At the same time, though, it is difficult to see how conduct, which occurred after the case was essentially without a plaintiff could, consitute a waiver of that fact since it was not remediable at that point. The moral, subject to further review, is that one should raise failure to revive by motion to dismiss soon after the time has expired.

Kentucky Court of Appeals - Depublished
Workers’ Compensation Exclusive Remedy
Helton v. Tri-County Cycles Barbourville, LLC, 2010 WL 567319 (Ky.App. February 19, 2010), ordered depublished March 16, 2011 (2010-SC-350-D)

The plaintiff was an employee for a car dealership, which owned 50% of Tri-County. The majority owner and CEO of the dealership directed the plaintiff to ride with him on a test drive of an ATV owned by Tri-County. The ATV flipped and broke the plaintiff’s leg. The Court held that plaintiff was the employee of both companies, to some extent based on the fact that both companies used the same employees. The Court also rejected the claim that the CEO was engaged in horseplay at the time of the accident that would have exempted him from the exclusive remedy.

Kentucky Court of Appeals
Insurance - Uninsured Motorist Coverage - Hit and Run
Baldwin v. Doe, 2010 WL 392343 (Ky.App. February 5, 2010), reversed August 23, 2012, Supreme Court Report

The traditional rule has been that the striking requirement meant actual, direct, physical contact between the hit and run vehicle and the insured’s vehicle. However, in 2005 the Supreme Court the Court held that where the hit and run vehicle hit a vehicle which in turn struck the insured vehicle there was sufficiently direct contact. In this case, the Court of Appeals had to decide where to draw the line between these two cases. In Baldwin, a tarp blew off of a flatbed truck in front of him and landed on the insured vehicle. The driver continued to the next truck stop, and fell while on his truck while trying to remove the tarp. The Court of Appeals held this was sufficiently direct. If this stands the need for contact will have been stretched beyond all recognition, but it is likely the Supreme Court would accept review (or order the opinion unpublished) if asked.

Sixth Circuit Court of Appeals
Statute of Limitations - Discovery Rule
Elam v. Menzies, 594 F.3d 463 (6th Cir. February 4, 2010)

A divided panel decided that the facts were sufficiently disputed to preclude summary judgment on the statute of limitations. Following a stent procedure performed byt eh defendant plaintiff continued to experience chest pain. Plaintiff saw another doctor, who performed a cardiac catheterization. Following that procedure, plaintiff and the doctor had a conversation, the content of which was disputed other than the fact that the doctor recommended bypass surgery. Over a year later, suit was filed against the original doctor. The Court first noted that the mere fact that the patient knew a bypass would be necessary if the stent was unsuccessful did not prove knowledge of an injury since success could be simply a poor outcome as opposed to negligence. The post catheterization conversation admittedly communicated to the plaintiff that the stent had been in a place they should not have been, and bypass surgery would be necessary. The plaintiff admitted that the doctor seemed a little bit critical, but he didn’t know what was going on and thought it might just be more blockage. Two of three judges decided an issue of fact existed for a jury to decide.