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The Coming Thing
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As this section evolves, it will alow the reader to locate all cases within the subject matter of this site which are pending before the Kentucky Supreme Court.
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Insurance – Claims Made – Continuous Coverage
AIG Domestic Claims, Inc. v. Tussey , 2010 WL 3603844 (Ky.App. September 17, 2010), motion for review granted September 14, 2011 (2010-SC-827-DG)
The Court of Appeals held that both "claims made" policies provided coverage where a suit was filed during the first policy period and the claim was reported to the insurer during the second policy period. Previous Report.
Professional Liability - Medical - Sponge Case
Three Rivers Medical Center v Savage, 2010 WL 2428454 (Ky.App. June 18, 2010), motion for review granted September 14, 2011 (2011-SC-348-DG)
The Court of Appeals, in an unpublished opinion, reversed a $2.5 million judgment on the ground that the evidence was insufficient to support a finding that the sponge was left in the subject surgery as opposed to two prior surgeries.
Premises Liability - Building Code
House of Imports v Wright , 2010 WL 336867 (Ky.App. February 4, 2011), motion for review granted September 14, 2011 (2011-SC-264-DG)
The Court of Appeals held that it was error to admit expert testimony concerning the building code and instead should have determined what if any provisions were applicable and instructed the jury as to those duties.
Arbitration
Harlow v Beverly Health and Rehabilitation Services, Inc., 2010 WL 4669189 (Ky.App. February 4, 2011), motion for review granted September 14, 2011 (2010-SC-808-DG)
Professional Liability - Medical - Expert Testimony
Tucker v Women's Care Physicians of Louisville, P.S.C., 2010 WL 2427438 (Ky.App. June 18, 2010), motion for review granted August 17, 2011 (2010-SC-466-DG)
The Court of Appeals held that while the meaning of a standing order could properly be the subject of expert testimony, such testimony was not relevant unless it was shown that there was a difference of interpretation by the parties.
Insurance - Permissive User - Ambiguity
Bidwell v Shelter Insurance Company. , 2010 WL 2427438 (Ky.App. August 13, 2010), motion for review granted August 17, 2011 (2010-SC-560-DG)
The Court of Appeals rejected an argument, in a 2-1 decision, that a step down provision which had the effect of reducing limits to the minimum limits was enforceable. Bidwell argued that the absence of any reference to it in the declarations page rendered it ambigious. It is troubling that the Supreme Court there was something to review here. Did anyone think to ask whether a permissive user even sees the policy language?
Professional Liability - Medical - Expert Testimony
Neonatal Intensive Care Experts, II, PLLC, 2010 WL 2427438 (Ky.App. November 19, 2010), motion for review granted August 17, 2011 (2010-SC-818-DG and 2010-SC-819-DG)
The Court of Appeals held that while the meaning of a standing order could properly be the subject of expert testimony, such testimony was not relevant unless it was shown that there was a difference of interpretation by the parties.
Professional Liability
Keeney v. Osborne , ___ S.W.3d ___, 2010 WL 743671 (Ky.App. March 5, 2010), motion for review granted May 19, 2011 (2010-SC-430-DG)
See March 2010 for extensive discussion of the many issues raised in this case.
Insurance – UM - Hit and Run
Reynolds v. Safeco Ins. Co. of Illinois, 2010 WL 3603982 review granted January 20, 2011, 2010-SC-000665-DG.
We predicted this would merit review in September of 2010. The plaintiff was injured when a piece of ice dislodged from a tractor trailer on the highway, and sought recovery under her UM coverage. This argument follows logically from the case of Baldwin v. Doe which we discussed in February. In Baldwin, a tarp came off of a truck and a panel of the Court of Appeals held that this “indirect” contact satisfied the UM policy definition.
Spoilation
University Medical Center, Inc. v. Beglin , 2009 WL 102800, review granted December 17, 2009, 2009-SC-0289-DG
The Court of Appeals affirmed 2-1 the giving of a spoilation instruction. An incident report was missing from the record, and the Court held that whether its loss was intentional or in bad faith was for the jury. The Court did not, however, point to any evidence beyond the fact that the document was lost that would support a finding of bad faith or intentional destruction. If upheld, the opinion might stand for the proposition that merely losing a document raises an issue of bad faith or intent, which of course would mean that the Court has once again abdicated its primary function of gatekeeping.
Punitive Damages
University Medical Center, Inc. v. Beglin , 2009 WL 102800, review granted December 17, 2009, 2009-SC-0289-DG
This case will present to the Kentucky Supreme Court the opportunity to clarify the standard for the imposition of punitive damages. The Court of Appeals focused exclusively on the due process limits on such awards, and just assumed the facts supported an instruction in the first place. Yet, it is difficult to ascertain just what facts would suggest any conduct beyond negligence, unless it is the fact that key witnesses changed their testimony. The case also deals with the imposition of punitive damages on an employer for the acts of its employee, although the Court of Appeals opinion essentially renders KRS 411.184(3) by requiring only knowledge that an employee might be negligent rather than notice of the particular conduction on which punitive damages is to be assessed.
Product Liability - Economic Loss Doctrine
Industrial Risk Insurers v. Giddings & Lewis, Inc. , 2009 WL 1884386, review granted December 17, 2009, 2009-SC-0485-DG
The Court of Appeals reaffirmed the validity of the so-called Economic Loss Doctrine in Kentucky. See our discussion of the issue at the time the Court of Appeals opinion was released.
Arbitration - Unconscionability
Schnuerle v. Insight Communications Co., L.P., 2008 WL 4367840, review granted June 25, 2009, 2008-SC-000789-DG
The Court of Appeals affirmed the trial Court's ruling that an arbitration agreement contained in a cable television contract was enforceable, even though it also precluded class actions. It is possible that the Court's interest in taking review is the class action portion. It is possible that this case will provide the next step in answering the question of whether the Court has an interest in making a consumer arbitration clause impossible to enforce, or further define the circumstances under which they can be enforced. Compare this case to the recent Court of Appeals opinion in Valued Services (See home page).
Legal Malpractice - Assignment of Case or Proceeds
Davis v. Scott, 2009 WL 367219, review granted June 25, 2009, 2009-SC-000159-DG
The Court of Appeals held that not only was an assignment of a claim for legal malpractice invalid, but that the assignment of the proceeds of a legal malpractice claim was invalid as well.
Sovereign Immunity - Qualified Immunity
Bryant v. Pulaski County Detention Center , 2008 WL 5428547, review granted May 21, 2009, 2009-SC-0036-MR
An employee who, if one assumes the plaintiff’s version to be true, engaged in horseplay which caused an injury to prisoner under his supervision acted in good faith because he intended no injury.
Employment - Teacher Right to Hearing under KRS 161.790(3)
Sajko v. Jefferson Cty. Bd. of Educ. , 2008 WL 4268294 (Ky.App. 2008), review granted April 15, 2009, 2009-SC-000021-DG
Notice of intent to answer the charges was not timely mailed on the last day of the statutory period and sent by facsimile to the board's general counsel after business hours on the last day.
Employment - Preemption of IIED claims by Kentucky Civil Rights Act
Buckley v. The Kroger Co. d/b/a Country Oven Bakery 2007 WL 4210675, review granted April 15, 2009, 2008-SC-000415-DG
This case has a lot of history, and for a complete picture of the litigation see The Kroger Co. v. Buckley, 113 S.W.3d 644 (Ky.App. 2003) and Buckley v. Wilson, 177 S.W.3d 778 (Ky. 2005). The Court held that since the discrimination claims should be dismissed as premature, the IIED claims could proceed.
FELA - Res Judicata
Coomer v. CSX Transportation, Inc. 2008 WL 2610181, review granted April 15, 2009, 2008-SC-000784-DG
The Court of Appeals agreed with the Perry Circuit Court Judge that a second suit alleging a different injury arising from the same facts which were already litigated in Jefferson Circuit Court was barred by res judicata.
Statute of Limitations - Equitable Estoppel by Fraudulent Concealment
Lemaster v. Fluke Corp. , 2008 WL 2550711, review granted January 14, 2009, 2008-SC-0530-D
This a product liability case alleging that a voltage meter misled a worker into thinking a coal crusher being worked on was denergized, resulting in an explosion. The MSHA investigation revealed that the voltage meter was in good working order. Later, the manufacturer issued a recall because the type of meter in question could give false readings if the battery was low. The plaintiff’s amended their complaint, and as to the Lemasters the trial Court held it was time barred. (The trial Court did not grant a motion for summary judgement as to the person who was actually using the meter on the ground of mental incompetence. A legal disability does not usually toll the limitations unless it existed prior to the injury in question, but this issue does not appear to be before the Court on review). Since the product claim was clearly time barred when brought, the sole issue before the Court of Appeals was whether there was a basis for tolling the statute. While there is some mention of the discovery rule (even though not a latent disease case), the case holding related to the claim of fraudulent concealment. At the end of the day, the Court of Appeals held that the failure to report a defect to the Consumer Product Safety Commission estopped the manufacturer from asserting the statute of limitations. The opinion does not recite any facts to support 1) that manufacturer knew, prior to the accident, that false readings might occur when the battery was low; or 2) that either plaintiff actually relied upon the CPSC website. Both of these would have to exist to satisfy the elements of estoppel as set forth by the Court. The Court almost seems to assume that if the "defect" was reported, it would not have been on the market, but as with most assumptions misses the mark. First, even if there was a recall, meters produced prior to the date of injury would only be taken off the market if the owner took steps to accomplish that. Second, it is not clear that the CPSC would have taken any action, and if it did a warning might have been sufficient. Even more importantly, there is no indication in the case that the meter in question had a low battery at the time. All of these things might have been in the record, and in the Court’s defense the opinion was not to be published.
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