Kentucky Court of Appeals - Unpublished
Defamation - Truth
Akins v The News Enterprise, 2011 WL 255447 (Ky.App. January 28, 2011)

This case could have raised the question of how is one defamed if he had no reputation to injure, but instead turns on the application of truth as a defense. Mr. Akins was upset because of how his crimes were described in the paper. The article used the phrase “car jacking”, and Akins’ points out he was not charged with that offense. Of course, the newspaper did not say he was charged with that crime, but used the phrase to describe his conduct in allegedly kidnapping a woman and raping her in a car ride. The Court held that truth was a complete defense.

Kentucky Court of Appeals - Unpublished
Defamation - Reports of Court Proceedings
Akins v The News Enterprise, 2011 WL 255447 (Ky.App. January 28, 2011)

One who complains that his criminal charges were reported in a defamatory manner must comply with KRS 411.060 before a suit can be filed against a publisher. That statute requires a showing of either malice, or that a request to publish an explanation or contradiction was denied.

Kentucky Court of Appeals
FELA - Preemption by Federal Railway Safety Act
Booth v CSX Transportation, Inc., 334 S.W.3d 897 (Ky.App. January 28, 2011)

Booth brought an FELA claim alleging that he was required to undergo knee replacements because of the size of the ballast (rocks supporting the track) he was required to walk on through the years. The Federal Railway Safety Act [FRSA] spawned regulations which specifically deal with the support required for the tracks. The Court of Appeal “agreed” with the 6th Circuit that the FRSA was preclusive in an FELA claim, but chose to ignore the 6th Circuit in determining whether this particular case was precluded by the FRSA. Since the issue is one of federal law, it is a little surprising that the Court felt unconstrained to reach the conclusion it thought “correct”. In any event, the Court held that since the regulations dealt with the support for the tracks it did not apply to walkways. In essence, the Court held that where the regulation could be complied with using various materials, the failure to use the safest could be negligence under the FELA.

Kentucky Court of Appeals
Arbitration - Effect of Kentucky Statute on Common Law Arbitration
Jacob v Dripchak, 331 S.W.3d 278, 2011 WL 181295 (Ky.App. January 21, 2011)

This case was first reported in August of 2009, and the Supreme Court granted discretionary review, reversed, and directed that the Court of Appeals consider the case in light of KRS 417.050. On remand, the Court of Appeals acknowledged that the Kentucky Arbitration Act excluded employment contracts from arbitration, but held that such a contract was nonetheless enforceable at common law. In other words, the Court held that the Act was supplementary rather than preemptive of the common law. Therefore, arbitration agreements in employment contracts are enforceable under state law, but that the procedural aspects of the statute do not apply. We suspect that this will draw further attention from the Supremes. If drafting a contract, avoid the mess that has been made of state law and invoke the federal statute, or both.

Kentucky Court of Appeals - Unpublished
Professional Liability - Attorneys - Conversion
Edwards v. Croley, 2011 WL 181304 (Ky.App. January 21, 2011)

A Kentucky attorney represented a Tennessee estate in a wrongful death action. A Tennessee attorney handled administration of the estate in Tennessee. The case was settled and the net proceeds were paid to the estate. The Kentucky attorney was then sued by a person claiming to be an heir to the estate. The court rejected the application of the tort of conversion, and in fact it is difficult to see how an attorney handling a wrongful death case would have any duty of any kind to an heir unless he was also involved in the administration of the estate. This case also has a good discussion of personal jurisdiction in the context of an out-of-state attorney.

Kentucky Supreme Court
Insurance – No-fault – Subrogation vs Reimbursement
Progressive Max Insurance Company v. National Car Rental Systems, Inc., 329 S.W.3d 320, (Ky. January 20, 2011)

While this opinion primarily discusses issues that have been well settled for some time, and are for the most part obvious from a reading of the statute, this is the first time the high court has addressed the two distinct cost shifting mechanisms contained in the no-fault act. Subrogation is governed by KRS 304.39-070. Subrogation is the recovery from a secured tortfeasor’s insurer or an unsecured tortfeasor based on fault. It is different from common law subrogation only in the sense that the statute imposes limitations on how and against whom subrogation may be had. Reimbursement from one no-fault carrier by another is governed by KRS 304.39-050, and has nothing to do with fault. This reimbursement applies only where a no-fault carrier that is primarily responsible for payment of benefits does not pay and instead a carrier with secondary liability is forced to pay. This remedy is the mechanism by which the secondary carrier can shift responsibility back onto the primary carrier. The limitations on subrogation set out in KRS 304.39-070 has no application to an action for reimbursement under KRS 304.39-050.

There is a hidden nugget in the opinion that may be of particular interest to automobile rental agencies. As the owner of the vehicle, the rental agency was primarily responsible for the no-fault benefits due to the renter/driver. The opinion suggests, however, that National could have pursued a subrogation action against Progressive had it complied with the procedural requirements of KRS 304.39-070. Our guess is that the Court did not give this any thought and is incorrect in this regard. An action for subrogation can only be brought against the primary insurer for the tortfeasor, which would be National. In this regard the opinion creates more confusion than any clarity it could provide, so stay tuned.

Kentucky Supreme Court
Railroads - Private Crossings
Calhoun v CSX Transportation, 329 S.W.3d 320, (Ky. January 20, 2011)

This case arose from a collision between a train and an automobile at a private crossing. In general, a railroad owes no duty to a person crossing a private crossing unless and until the presence of the person is known, and then the duty to attempt to avoid injury. There are three exceptions to this rule. The primary thrust of the appeal was to reject the common law rules relating to duties, and embrace the “universal duty of care” concept. The majority opinion rejected this approach, but failed to firmly place this concept in the dustbin of history where it belongs.

The opinion actually turns on the application of the ultrahazardous crossing exception to the general rule. A railroad has no duty to clear vegetation at a private crossing, but such growth can cause a crossing to become ultrahazardous. Where the crossing has achieved that condition, there may be a duty to warn by sounding a signal. In this case, photographs showed that a vehicle could safely pull past the vegetation and see to the horizon. This was corroborated by admission the plaintiff made in her deposition, and the fact that a federal court had found that the same crossing was not ultrahazardous. This was contrasted with expert testimony to the effect that from 23 feet the sight distance was 263 feet. The trial and intermediate court rejected the expert testimony as contrary to the record, and the high court accused them of fact-finding. The court noted that photographs can be easily manipulated and can be a form of advocacy, which is true. However, experts are more often than not pure advocates, and the court seems to accept their views as evidence no questions asked, paying mere lip service to the court’s gatekeeping function. There is indeed a fine line between fact finding by the court and the gatekeeping function, but it is time for the Kentucky court to both allow and require trial courts to seriously perform the latter. If the law is whatever a particular jury wants it to be in any given case, then there really isn’t a need for courts and in too many occasions this ad hoc approach to the rule of law is the rule in Kentucky these days. While this result may be correct (there isn’t enough in the opinion to judge) it just reinforces the notion that judges are mere spectators to the trial process.

Kentucky Court of Appeals - Replaced By Subsequent Opinion
Liability for Criminal Acts of Third Persons
Edwards v. Hensley, 2011 WL 111969 (Ky.App. January 14, 2011), replacement opinion

This is an interesting read of a case. Edwards was the head of a group of KKK wannabes called IKA, which was an unincorporated association. Members of the IKA assaulted a visitor at the Meade County Fair under the impression he was an illegal immigrant from south of Texas. While Edwards encouraged members to recruit new ones, and there were some recruiting efforts made at the fair, Edwards did not send them to the fair and may not have even known they were there. The general rule is that one who has not created a risk of harm has no duty to prevent another from causing harm. Exceptions occur when there is a special relationship between the defendant and the third person or between the defendant and the injured person. The court held that the ability to control the third person was critical to the existence of a special relationship as that term is used here. The court therefore held that Edwards, as a leader of a group, had no ability to control the members under these circumstances.

Kentucky Court of Appeals - Unpublished
Duty to Prevent Criminal Acts
Ison v. Brown Brothers Cadillac Chrevrolet, Inc., 2011 WL 112997 (Ky.App. January 14, 2011)

Plaintiff was injured in a collision with a vehicle which had been stolen from a car dealership. The dealership provided one security guard and blocked the exits when the facility was closed, and the lot was surrounded by a large fence and concrete wall. This Court once again rejected the Liebson “universal duty of care” that plaintiffs repeatedly rely on when there is no recognized cause of action. The Court rejected the idea of a duty to prevent theft in these circumstances, and in obiter dictum, suggested the security measures takes were adequate. The Court went on to discuss KRS 189.430(3) which prohibits an owner from leaving the keys in the ignition of a car. In a prior opinion, the Court had held that this statute created no duty where the car was in a private drive, and this Court extended that holding to a dealership lot. Missing from the opinion is any evidence that the keys were left in the stolen automobile.

Kentucky Court of Appeals
Settlement - Mortgagor
Grafton v. Shields Mini Markets, 346 S.W.3d 306, 2011 WL 112833 (Ky.App. January 14, 2011), motion for discretionary review denied September 14, 2011

The store had been purchased by the Masons from Shields, and Shields in turn took a mortgage on the property. The Masons had been less than prompt with their payments, but no action had been taken by Shields. Grafton caused damage to a convenient store by negligently operating his tractor trailer. The Masons settled their claim for property damage, and subsequently Shields instituted a foreclosure action. Shields then attempted to assert its own claim for property damage. After noting that Kentucky followed the “lien theory” of mortgages, the Court held that it was proper to settle with the owner and the tortfeasor had no obligation to include the mortgagee in the settlement or payment.

Kentucky Court of Appeals - Unpublished
Blackout Defense
Mahanes v. Shugars, 2011 WL 43302 (Ky.App. January 7, 2011)

This case focused on the jury instruction. The instruction given allowed application of the defense if the incapacity “was not reasonably foreseeable by him.” The Court approved the instruction given, and rejected the argument that an objective standard (reasonable person) should have been applied.