Kentucky Court of Appeals - Depublished
Automobile - Parked vehicle as a Cause
Higginbotham v. Keeneland Association, 2010 WL 323287 (Ky.App. January 29, 2010), ordered depublished December 9, 2010 (2010-SC-132-D)

An employee of Keeneland was parked partially on the shoulder waiting for the time to initiate temporary signs prepatory to the meet that day when the driver of a vehicle lost control and struck the Keeneland vehicle. The Court correctly described the two step process involved in the analysis of any basic causation issue. It is true that the auto occupied by the plaintiff would not have struck the Keeneland vehicle had it not been parked there, and that would satisfy the “but for” test. However, since the parked automobile had nothing to do with the loss of control, its position was not a substantial factor in causing the accident. To recite an old test which has lost fashion but not vitality, the parked car was a condition to which the accident happened, not a cause of the accident.

Kentucky Court of Appeals - Depublished
Duty - Universal Duty Concept Refuted
Higginbotham v. Keeneland Association, 2010 WL 323287 (Ky.App. January 29, 2010), ordered depublished December 9, 2010 (2010-SC-132-D)

Ever since Justice Liebson laid the legal egg he called the universal duty of care, this has been the battle cry of plaintiffs whose case falls outside existing precedent. This Court all but called an egg an egg. The fact is that there has never been such a universal duty. Duty is not and never has been owed to all. Rather, a duty is owed to those who are within the foreseeable scope of the risk. In this case, if the parking of a vehicle partially on the shoulder of a roadway breached a duty, the risk which was created did not extend to a motorist who lost control of a vehicle and happened to strike it.

Kentucky Court of Appeals
Civil Rights - 1983 - First Amendment Retaliation
Fritz v, Charter Township of Comstock, 592 F.3d 718, (6th Cir. January 28, 2010)

In this context, an adverse action is any action that would deter a person of ordinary firmness from exercising protected conduct will suffice, which may include harassment or publicizing facts damaging to a person’s reputation. The extent to which the state may deter the exercise of free speech depends on who the plaintiff is. A prisoner may be expected to a higher level of deterrence than a public employee, while an average citizen is required to tolerate the least amount.

Kentucky Court of Appeals
Insurance - UM -Disability Subrogation Claim
Lynch v. Claims Management Corporation, 306 S.W.3d 93 (Ky.App. January 22, 2010)

A disability insurer who paid benefits to the plaintiff and held a contractual right to subrogation against responsible third parties could not recover under a UM policy. This is consistent with the long standing principle that UM insurance is for the benefit of the insured, not other insurers.

Kentucky Court of Appeals - Depublished
Settlement - Rescission of Release for Mutual Mistake
Bobbitt v. Collins, 2010 WL 199308 (Ky.App. January 22, 2010), ordered depublished Janaury 14, 2011 (2010-SC-107-D)

In a case with multiple defendants, the plaintiff settled with one. The settling defendant tendered a general release and an order of dismissal with reserved all other claims. The remaining defendants asserted the general release as a ground to dismiss the claims against them as well. As written, it was sufficient to support such a defense. both parties, however, agreed that the language which made the release general was a mistake, and the Court ordered that plaintiff was entitled to rescission as a matter of law.

Kentucky Court of Appeals
Defamation - Privilege
Flint v. Stilger, 2010 WL 199566 (Ky.App. January 22, 2010), affirmed on February 21, 2013, Supreme Court Report

The plaintiff wanted to see the books of a condominium association, and among other things wrote to the Attorney General’s office seeking assistance and asking the office to “prosecute this matter to the fullest”. The attorney for the association responded by letter in terms unflattering to the plaintiff. The trial Court had held that this letter was a statement made preliminary to a judicial proceedings and thus was absolutely privileged. The Court of Appeals panel reversed, holding that the letter was a statement made relating to an investigation rather than judicial proceeding, and thus was subject only to a qualified privilege.

Kentucky Supreme Court
Insurance - UIM Applicability to Recovery of Workers’ Compensation
Jewell v. Kentucky School Board Association, 309 S.W.3d 232 (Ky. January 21, 2010)

It has long been established that Workers’ Compensation subrogation claims cannot be asserted against the employee’s UIM coverage. The Court held that this rule did not change where the employer’s subrogation claim was assigned to the employee and was thus being asserted by the insured. The holding was based on the proposition that an assignment does not increase the rights held by the assignor, which in this case was none. Accordingly, the UIM carrier was entitled to a credit against the judgment for the amount paid by the workers’ compensation carrier. Further, the credit for the workers’ compensation benefits should not e reduced by attorneys fees.

Kentucky Supreme Court
Insurance - No-Fault - Credit for Benefits Paid or Payable
Jewell v. Kentucky School Board Association, 309 S.W.3d 232 (Ky. January 21, 2010)

The opinion states that the plaintiff had $20,000.00 of basic reparation benefits available to him, which is impossible since no claimant may recover more than $10,000 basic reparation benefits for any one accident by statute. It may be that half of the amount available was added reparation benefits. In any event, the no-fault carrier had only paid $333.45, and the amount of medical expenses uncompensated by workers’ compensation was in excess of $20,000.00. The Court denied the credit for procedural reasons, but in its confusion may have cast doubt on the previously well settled proposition that the plaintiff’s right to recover for damages paid or payable in basic reparation benefits cannot be recovered by the plaintiff because liability for those sums are abolished.

Kentucky Supreme Court
Assignability of Claims
Associated Insurance Service, Inc. v. Garcia, 307 S.W.3d 58 (Ky. January 21, 2010)

The Court held that causes of action for a tort that arises out of a contract may be assigned. In this case, the issue involved a claim against an insurance agent and broker. Such a claim actually should not be in tort at all, but involves a mere breach of contract. The Court all but equated such a claim to a professional negligence claim, which is odd since prior cases refused to consider insurance agents professionals at all. It remains to be seen whether the Court intended this discussion to signal a change in the law governing insurance agent E&O cases.

Kentucky Supreme Court
Settlement - Assignment with Covenant not to Enforce
Associated Insurance Service, Inc. v. Garcia, 307 S.W.3d 58 (Ky. January 21, 2010)

When a tortfeasor’s liability insurer became insolvent, the claimants entered into an agreement with the tortfeasor in which the tortfeasor would admit liability, the parties would arbitrate the amount of damages, the claimants would not enforce the claim against the tortfeasor, and the tortfeasor would assign its E&O claims against its agent and broker who procured the insurance. This type of settlement is not new, but has been considered risky because of the potential for being found to be illusory. The holder of an assignment generally possesses not greater rights than did the assignee. Since the assignee could not be held to account, there is no basis for the assignor to have a greater claim.

The Court decided, however, that such settlements will nonetheless be valid and enforceable in Kentucky. While the Court did attempt a rationalization based on the supposed difference between a release and a covenant not to sue, the real basis is the "practical value of these types of arrangements". The Court did, however, provide that the arbitrated damage assessment was not binding on the agent and broker. In such cases, the plaintiff has the burden of presenting a prima facie case of the settlement’s reasonableness, while the defendant is free to rebut this proof with evidence of fraud, collusion, etc. In other words, for all of its supposed “practical value”, it really just adds and complicates a new issue to a case which could have been fully resolved utilizing ordinary procedure. Nonetheless, potential defendants who may subject to assignable claims will be seeing more of these arrangements, and may have an increased incentive to become self involved in cases before actually brought into the dispute.

Kentucky Supreme Court
Subject
Blankenship v. Collier, 302 S.W.3d 665 (Ky. January 21, 2010)

While a far cry from actually following the rules, the case does move in the direction of restoring the summary judgment to a meaningful role in civil litigation. The case was based on allegations of medical negligence, and the plaintiff had not identified an expert. The Court rendered two significant holdings. First, the decision of whether the plaintiff had sufficient opportunity to obtain and expert was subject to review under an abuse of discretion standard. Second, the Court held that it was not necessary for the trial Court to impose sanctions before granting the summary judgment. Whether this case is an aberration or a meaningful change in the Court’s attitude towards frivolous litigation remains to be seen.

Kentucky Court of Appeals
Professional Negligence - Medical - Foreign Objects
Baxter v. AHS Samaritan Hospital, LLC, 328 S.W.3d 687 (Ky.App. January 15, 2010)

This case illustrates to some extent the fallacy of the Kentucky Supreme Court’s reference to res ipsa loquitur to clear up the line of cases where a foreign object is left in the patient’s body following surgery. While the Court was correct to reject the negligence per se rule, the doctrine of res ipsa loquitur does not fit either. That doctrine requires that the object in question be under the exclusive control of the actor. While there might be an inference that someone was negligent in leaving a foreign object, res ipsa loquitur does nothing to resolve causation because, if properly applied, there can by definition only be one cause. In this case, the Court held that there was a factual issue about whose responsibility it was in that the sponge count reported all sponges accounted for. The Court needs to abandon the attempt to treat these cases differently, and apply standard negligence principles to them. In this case, while lip service was paid to res ipsa loquitur, the case was actually resolved without it and could not have been resolved using it.

Kentucky Court of Appeals
Subject
Northern Kentucky Area Planning Commission v. Cloyd, 332 S.W.3d 91 (Ky.App. January 15, 2010)

The Court held that a regional planning commission created under KRS 147.660(1) is an employer within the meaning of KRS 61.101(2) based on its enabling statute. Where the statute described such a Commission as a political subdivision, that could only mean a political subdivision of the Commonwealth.

Sixth Circuit Court of Appeals
Civil Rights - 1983 - Eighth Amendment
Mingus v. Butler, 591 F.3d 474 (6th Cir. January 5, 2010)

Misapplication of prison guidelines by a prison nurse in deciding whether a prisoner who was suffering from macular degeneration was qualified for a single occupancy room did not constitute deliberate indifference to the condition of the prisoner.

Kentucky Court of Appeals
Civil Rights - 1983 - First Responders - Fourteenth Amendment
Willis v. Charter Township of Emmett, 2010 WL 21873 (6th Cir. January 5, 2010)

The plaintiff claimed that a first responder failed to ascertain that an automobile accident victim was still alive and chose to treat other victims. The due process clause does not generally impose a duty upon the state to protect or aid individuals, although there are two exceptions, the custody and state created danger exception. The custody exception did not apply because the victim was restrained by the circumstances of the accident, not the defendant’s actions. The second exception cannot apply to a failure to act.