Kentucky Court of Appeals
Arbitration – Authority Under Power of Attorney
GGNSC Stanford, LLC v. Rowe, 388 S.W.3d 117, 2012 WL 4208924 (Ky.App. September 21, 2012)

In this case the Court of Appeals declined to enforce an arbitration agreement in connection with care provided by a nursing home. Deborah Rowe had been mentally incompetent from birth, and legal guardian had never been appointed. In 2001, the parents executed what was described as a power of attorney in favor of Nancy Meadows. In 2007, Ms. Meadows decided it was in Ms. Rowe's best interest to be admitted to a nursing home. In the admission process she provided the written power of attorney and executed, among other documents, an arbitration agreement. About two years later she died. Her brothers filed a wrongful death suit against the nursing home.

The Court first determined that a parent does not have the authority to enter into contracts on behalf a minor or mentally disabled child, unless they have been appointed legal guardian. If they could not enter into the contract themselves, then it follows that they could not delegate such a power to a third person. The Court based this conclusion on KRS 405.020(2), which establishes custody on behalf of the father and mother of a minor or adult dependent that are physically or mentally disabled. The Court also found support in KRS 387.280, which allows custodial parents to collect sums under $10,000.00 without a guardian. The Court determined that this grant of power implies the absence of such a power above that sum.

The Court also considered whether the power to execute an arbitration agreement could be found in KRS 311.631, which allows under certain circumstances for healthcare decisions to be made by parents or a person acting under a power of attorney. The Court determined that an arbitration agreement was not a healthcare decision. In effect, the Court severed the arbitration agreement from the admission process, and factually this is a fiction. However, this decision is consistent with the hostile view Kentucky Courts have concerning business generally and arbitration in particular, and for that reason this view is probably a clear statement of Kentucky law.

Kentucky Supreme
Professional Liability – Experts - Disclosure
Hashmi v. Kelly, 379 S.W.3d 108, 2012 WL 4213472 (Ky. September 20, 2012)

The gravamen of this opinion, while technically dicta, is that if a party wants to elicit opinion testimony from a treating physician, that opinion needs to be disclosed in accordance with C.R. 26.02(4). A mere recitation that treating physicians may testify is not sufficient to give notice of expert opinion testimony. In the context of professional liability cases, the treating physicians are often deposed so this is feasible. However, there is no reason why this principle would not apply to treating physicians in damage cases as well. This can be problematic in terms of scope of disclosure since a defendant cannot communicate with a treating physician, and may not have deposed them. In such a case, the only advise we can give is to provide as much information as possible, and perhaps point out that the plaintiff can obtain all potential opinions from the physician.

The Court did not decide the case on the disclosure issue, however, since it found that the trial Court's allowance of the testimony was so minor that the error was harmless. The case stands as a warning that in the future complete Rule 26 disclosures are necessary for all expert witnesses, even if they are not retained or if their expert testimony is adjunct to their role as a fact witness.

Kentucky Supreme Court
Premises Liability – Building Code
Wright v. House of Imports, 381 S.W.3d 209, 2012 WL 4243648 (Ky. September 20, 2012)

The decision was actually premised on the failure to preserve error, and the circumstances under which the Court may review an alleged error under the palpable error rule. However, the underlying alleged error was that the trial Court admitted testimony concerning code violations without instructing the jury as to when the code is applicable. The Court seems to say that had the error been preserved, the testimony should not have been admitted at all.

The plaintiff selected a pair of shoes to purchase and climbed three stairs to an elevated area where the cash register was located. After paying for the shoes, he slipped on the top step of the elevated area, fell was injured. The plaintiff offered expert testimony to the effect that the premises violated several provisions of the building code. The Court of Appeals reversed based on the holding of O'Conner & Raque Co. v. Bill, 474 S.W.2d 344 (Ky. 1971), which required an instruction to advise the jury as to the relevance and legal effect of the building code. The concurring opinion also noted that building codes apply to new construction, and are not retroactive. Existing structures are subject to housing or property maintenance codes only where such codes have been adopted by local governments.

The Court first noted that this was pled as a common law negligence case, as opposed to a negligence per se case. This is interesting because traditionally these are the same thing. In fact, the opinion cites cases which say that the latter is but a special case of the former. Negligence per se is simply a description of when a statute may define the standard of care in a common law action. This Court, however, equated negligence per se with the application of KRS 446.070. While this is inconsistent with the history of that statute, it seems to be gaining credence with the Courts, both state and federal. The Court held that a violation of statute was therefore not relevant to a common law negligence case. It is not hard to predict that this part of the opinion will lead to cases which the Court will have to struggle to remain consistent with this dictum or will have to disregard it altogether.

Kentucky Court of Appeals
Insurance – Uninsured Motorist Coverage
Lovell v. St. Paul Fire & Marine Insurance Company , 2012 WL 4037361 (Ky.App. September 14, 2012), motion for discretionary review denied June 20, 2013, with order de-publishing opinion (2012-SC-656-D).

This opinion fits most squarely in the "hard cases make bad law" category. The holding of this opinion, if it were to be followed by the high court, would completely rewrite commercial "fleet" insurance policies. Every employee could stack such a policy, and would be coverage at all times. This case desperately needs review by the Supreme Court.

The plaintiff was a deputy sheriff, and found himself on the running board of a truck operated by an uninsured ne'er-do-well. The driver lost control and the plaintiff struck a telephone pole head first, causing serious injuries. St. Paul had issued an automobile insurance policy to plaintiff's employer, which covered the sheriff department's fleet. The Court's first step off the path of truth was its assessment of the policy language itself. The policy clearly was intended to cover a person such as plaintiff while occupying the insured's covered automobiles. The Court came to the conclusion that the insured itself had to occupy a covered vehicle, suggesting that the coverage was illusory. The Court talks about uninsured motorist coverage [UM] being personal, but this refers to the coverage purchased by the insured. The plaintiff's personal policy covered him, but his employers did not. It is almost as though the Court thought an employer's automobile policy was the same as workers' compensation. The Court also seemed troubled that there was no person who could be a first class insured. The concept of first class and second class insured is a court made categorization through which the court made silliness called stacking was implemented. There is not requirement that there actually be first or second class insureds, and by definition employees of an insured who have purchased a fleet policy are always second class.

Kentucky Court of Appeals
Open Records - Standing
Taylor v. Barlow, 378 S.W.3d 322, 2012 WL 4038434 (Ky.App. September 14, 2012)

This case makes clear what should have been obvious. Anyone can make an open records request, and do not have to show a personal interest in the records. It also makes clear that the appellate courts will step in where local politics block public access to records.