TIPs Decisions: Court of Appeals for Nov. 23, 2005

Published decisions.

DOALL LOUISVILLE CO. V. FERRANTE
CIVIL PROCEDURE - Penalties (Appeal)
2001-CA-000848
Not to be Published 
On remand from S. Ct.
Date: 11/23/2005

This matter was on remand from the Kentucky Supreme Court per The Elk Horn Coal Corporation, where the Supreme Court held that KRS 26A.300 is unconstitutional because it denies equal protection in violation of both the Kentucky and Federal Constitutions and the separation of powers provisions of the Kentucky Constitution.  COA reconsidered its prior opinion and now conclude that the imposition of the penalty must be vacated. The judgment of the Jefferson Circuit Court imposing a penalty under KRS 26A.300 is vacated.

UNITED STRUCTURAL SYSTEMS, LTD. V. ERI FALLS, INC.
TORTS - Indemnity
2004-CA-002103
Published 
COMBS
VACATING AND REMANDING
Date: 11/23/2005

Claim for indemnity for negligent construction was premature until the alleged negligence was determined to be the proximate or contributing of the plaintiff's fall.  Accordingly summary judgment premature and inappropriate and the matter is remanded for a determination of the questions of fact pertaining to the causation of the accident.

Comment.  This presents an interesting aside in the context of the KFBM v. Ryan case decided by the Supreme Court this week which permitted an apportionment third party complaint against an unknown motorcyclist.  The heart of a third party claim in a negligence claim is usually alleged as contribution (now dead in the era of comparative negligence) or apportionment (a legal conclusion rather than a cause of action) such that why not move to dismiss the third party cause of action for failure to state a cause of action or not ripe (premature) until the determination of liability is made against the third party plaintiff.

SMITH V. HODGES
TORTS - Defenses (Absolute and qualified privilege, defamation)
2005-CA-000057
Published 
GUIDUGLI
AFFIRMING
Date: 11/23/2005

This case involved the application of the absolute privilege afforded to defamatory statements made by a witness in the course of a judicial proceeding.  A customer had sued Bob Smith dealership claiming  violation of Fair Credit Reporting Act as well as accessing his credit report during a dispute between the parties.  Bob Smith's former finance manager made statements during those proceedings as a witness that Smith found slanderous and sued over in this action. It was this second case that was the subject of this appeal for which COA found Kentucky still follows the American Rule and that the statements at issue were relevant and pertinent to the subject of inquiry and therefor absolutely privileged.

“The prevailing rule and the one recognized in this jurisdiction is is that statements in pleadings filed in judicial proceedings are absolutely privileged when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice.” Schmitt, 163 S.W.3d at 283 (citations omitted).

“On the other hand, statements which are not pertinent and material are only qualifiedly privileged, and immunity from the legal consequences of their being libelous depends on their being made in good faith.

NOT to be Published.

WEBB V. CITY OF NEWPORT
CIVIL PROCEDURE - Mootness
2004-CA-001780
Not to be Published 
Date: 11/23/2005

Since the Webbs have no sold all of their property to the city so that their claims that the neighborhood should not be declare 'blighted' are moot.

MOYERS V. ROMAN CATHOLIC BISHOP OF LOUISVILLE
CIVIL PROCEDURE - Statute of limitations
2004-CA-001886
Not to be Published 
Date: 11/23/2005

In one of the priest abuse cases, held that the plaintiff's claims were time barred by the one-year statute as she knew or should have known within one year prior to the filing of the complaint.

BROWN V. GONCHER
TORTS - No fault threshold instruction
2004-CA-001613
Not to be Published 
Date: 11/23/2005

Affirmed jury verdict finding plaintiff's medical expenses did not meet $1,000 threshold under No Fault Act and there was substantial evidence permitting judge to give jury the threshold instruction.

Comment.  The facts and procedural history of this case are a good read.  This case was a personal injury automobile accident with Brown suing the tortfeasor who offered its $25,000 policy limits which were accepted but then advanced under Coots v. Allstate by the UIM carrier.  Brown (plaintiff) amended complaint to include UIM claim against Travelers Ins. Co.   Then the Defendant filed a Third Party Complaint for indemnity and apportionment against Fout another driver.  The plaintiff objected as the statute of limitations had run for a direct personal injury claim, but the trial court permitted it since it was a claim for indemnity and apportionment (5 year sol).  Note that the plaintiff cannot recover against Fout since the statute had expired, but the jury can apportion fault against that third party driver!  However, this third party complaint issue tended to be moot since the jury found per instructions that the plaintiff had not met threshold for $1,000 in reasonably necessary medical expenses caused by the accident.

The good news for plaintiff is he gets to keep the $25,000, and the bad news for Travelers is they don't get it back and have a high defense bill. Also note that it does not appear that Travelers was identified at trial as now permitted under Earle v. Cobb.  Furthermore, this case was decided before the Supreme Court released KFBM v. Ryan which addressed apportionment of fault within the context of a UIM claim and unknown defendant.  Whether Ryan would have any applicability is doubtful but the dicta in Ryan is interesting if parsed in detail and might be useful in the personal injury claim rather than UIM claim context.

Note that the plaintiff lost a directed verdict on the medical expenses and the new trial motion.  Other defense stratagems which caused trial turbulence was the defense lawyers tactic of calling Dr. Harkess live rather than read his deposition which had already been taken.  COA found no problem with this since he had been listed as a witness.  However, the plaintiff had relied upon use of the deposition and had released his rebuttal witnesses.

Learning points to avoid being sandbagged is to plan for the worst and not to assume the obvious.  Just because the liability carrier tendered its limits and no issue existed as to causation by the liability carrier, does not mean the defense counsel is constricted by that decision at trial and can pursue the usual defense moves such as minor impact, pre-existing conditions, subsequent injury, or apportioning fault elsewhere (aka the SOD defense - some other dude).  Suggestions would be to have standard requests for admission on causation of medical expenses, pain and suffering, etc. and contention interrogatories regarding causation, fault, injuries etc.  For example, Florida has some contention type interrogatories that are standard and part of their Economic Litigation Docket.  In multiple vehicle accidents, an interrogatgory or RFA regarding fault early on might side step this problem.  However, the paper piles up and trees die as plaintiff's lawyers are forced to close off the defense's rabbit trails in advance. 

DAWSON V. STATE AUTOMOBILE MUT. INS. CO.
TORTS -  No Fault Threshold
2004-CA-001773
Not to be Published 
Date: 11/23/2005

COA affirmed jury's finding that plaintiff did not sustain at least $1,000 in reasonable medical expenses caused by the accident.  Plaintiff raised a Bolin v. Grider issue that the plaintiff should have been given a directed verdict on this issue.  However, the threshold instruction answered in the negative, as follows:

Are you satisfied from the evidence that plaintiff, Sherrie Dawson, sustained a permanent bodily injury within reasonable medical probability as a direct and proximate result of the motor vehicle accident of June 16, 2000?

A directed verdict is proper when viewing the evidence most favorable to the nonmoving party, a reasonable juror could only conclude that the moving party was entitled to a verdict. Lee v. Tucker, 365 S.W.2d 849 (Ky. 1963).

Comment.  This is the second no-threshold decision in this issue, and both cases involved a liability carrier tendering its limits.  In the other, the UIM carrier advanced the limits to preserve subrogation rights per Coots v. Allstate.  This time the UIM carrier did not advance the limits and defended a direct action and obtained a threshold verdict.  This case should be some evidence against the critics of Earle v. Cobb fearing verdicts will go awry when insurance is identified.  However, claimant's attorneys should not assumed just because they have received the liability limits that causation of injuries and medical treatment is no longer a concern. 

 

Thanks to Chad Kessinger, Cherry Hennault, Mike Stevens, and John Hamlett for assisting in digesting our torts, insurance and procedure summaries.