Civil Law Decisions (TIPS): SCOKY and COA for Dec. 22, 2005

TORTS, INSURANCE, PROCEDURE (TIPs) DECISIONS
SCOKY AND COA FOR Dec. 22, 2005

PUBLISHED

CAVALIER HOMES OF ALA. V. JUDGE COLEMAN
ADR - Extraordinary Remedies 
2005-SC-000160-MR
Published
AFFIRMING
LAMBERT 
Date: 12/22/2005

Cavalier Homes sought to compel enforcement of contract's arbitration clause.  Trial court disagreed finding appellee did not have actual knowledge of the arbitration policy.  Cavalier sought extraordinary relief. Both COA and SC denied since appeal was adequate remedy.   The Uniform Arbitration Act at KRS 417.220, expressly provides that "An appeal may be taken from [a]n order denying an application to compel arbitration made under KRS 417-060. . . . The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil 
action ." Thus, the foregoing enactment, created a statutory interlocutory right of appeal where no such right would otherwise exist.

BAYLESS V. BOYER, M.D.
DAMAGES - Inadequate Damages, New Trial (medicals awarded with no pain and suffering)}
2003-SC-000250-DG
Published  
AFFIRMING
ROACH, J.
Date: 12/22/2005

In this medical negligence case involving a missed diagnosis of a wrist fracture by the doctor, the jury awarded the minor his medicals but nothing for pain and suffering. Both the radiologist and the ER doctors missed the fracture. 

Expert testimony noted that if the doctor had examined the x-rays he would have noticed the fracture. However, the ER doctor testified there was no acute pain so he probably did not review the films.  Patient was discharged and to return as needed if pain developed.  Patient continued to be active upon discharge and played baseball (with much icing of his sore wrist).  There was no follow-up care by the minor or at direction of his parents for two months.  It was disputed whether the minor discovered the break before or after the end of the baseball season, but the orthopedist examined the wrist two months later, noted the break and calcification could not be repaired by a cast, performed surgical repair, was confident of a good result and  that he should return to normal strength with no more increased risk of arthritic pain than if had been casted properly following the injury.

At trial, the jury found no fault on the ER doctor but found the radiologist negligent.  The jury also apportioned fault on the minor and his parents combined for half the fault.

The COA then went through the basics in analyzing a zero pain and suffering verdict and rejected the contention that surgery constituted uncontroverted evidence of pain entitling the young man to those damages.  The appellate standard is a review of the motion for new trial on inadequate damages under a 'clearly erroneous' standard and further reminded us that a "new trial depends to a great extend upon factors which may not readily appear in an appellate record."  Miller v. Swift was then mentioned as a brief reminder that zero pain and suffering verdicts "may sometimes be appropriate (emphasis added).  Hazel v. Beauchamp was relied upon by the claimants (hand in a shredder case followed by surgery had inadequate/nominal damages) but distinguished by the Supremes who added a caveat that Miller v. Swift was being followed but not extended.

With all that said, Justice Roach did address the facts at trial in the form of depositions, testimony and medical records to conclude the jury had a basis to conclude no pain following the break, no pain following surgery, and no interference with his day to day activities (play baseball, do pushups etc), to name a few. "Dr. Wyrick testified that there would likely have been significant pain associated with treatment of Michael's fractured wrist regardless of the treatment option, either casting or surgery, that was used. He further testified that he could not predict  any significant difference in pain between the two options. Finally, Michael's surgery was performed under general anesthesia, preventing or limiting the acute pain directly related to the procedure . There was substantial evidence for the jury to conclude that Appellants were not entitled to a damages award for pain and suffering. "

BROWN V. INDIANA INS. CO.
INSURANCE - Automobile Liability Coverage if no workers comp
WORKERS COMP - Exclusive Remedy and Liability Insurance
2004-SC-000065-DG
Published  
AFFIRMING
COOPER, J.  
Date: 12/22/2005

COMPANION CASES:
2004-SC-000067-DG
2004-SC-000070-DG
2004-SC-000071-DG

The issue presented by this appeal is whether a commercial automobile liability insurance policy affords coverage for damages sought in a tort action brought against the insured employer for the wrongful death of its employee, where the action would have been barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act but for the fact that the employer failed to procure a policy of workers' compensation insurance. SC held that the automobile liability policy neither affords coverage for such an action nor requires the insurer to pay the cost of defending such an action.

HARRISON V. VALENTINI M.D.
TORTS - Medical Negligence (SOL and continuing treatment)
CIVIL PROCEDURE - Statute of Limitations (medical Negligence)2004-SC-000015-DG
Published  
LAMBERT
REVERSING AND REMANDING
Date: 12/22/2005

Continuing treatment by the Defendant physician tolls the running of the statute of limitations for the patient under rule called the "continuous course of treatment rule." Rationale is that both are afforded the opportunity to cooperate with each other to correct the problem and mitigate the damages. However, no benefit shall inur to a patient who feigns a desire to continue treatment in order to shop around for an expert or give a lawyer more time to file a complaint.

 

NOT PUBLISHED

EST. OF WILLIAM BAILEY V. JUDGE PECKLER
CIVIL PROCEDURE - Res judicata (dismissal)
2005-SC-000166-MR
NOT Published 
Date: 12/22/2005

A dismissal without mentioning with or without prejudice is considered under CR 41.02(3) as with prejudice for purposes of res judicata.  This case involved a claim asserted default on a promissory note and sought enforcement of a mortgage lien securing payment of the note. Discovery disputes occurred and the trial court placed MERS on terms to comply with discovery or risk involuntary dismissal . The court's terms were not met and dismissal of the claim was ordered. In the order of dismissal there was no indication that it was without prejudice and no appeal was taken from the order of dismissal .

CR 41 .02(3) provides that:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this Rule, and any dismissal not provided for in Rule 41, other than a dismissal for lack of jurisdiction, for improper venue, for want of prosecution under Rule 77 .02(2), or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

WEBB V. MALLORY
APPEALS - Failure to file brief
2004-CA-001585
Not To Be Published  
Date: 12/22/2005

Inmate's failure to file brief considered as a confession of error and reverse the judgment without considering the merits of the case. 

RITZERT CO. V. WEDDLE BROTHERS CONSTRUCTION CO.
ADR - Arbitration Agreement
 2004-CA-001629
Not To Be Published  
Date: 12/22/2005

This was an odd case to enforce an arbitration agreement by estoppel in a construction contract and applying Indiana law on estoppel.  However, the COA  reviewed the contract and correspondence and agree with the trial court that there was neither an agreement to arbitrate in the contract nor any modification thereafter. 

WRIGHT V. MAHLMANN
CIVIL - Instructions (car accident, sudden stopping)
2005-CA-000137
Not To Be Published 
Date: 12/22/2005

Trial court did not err in failing to give a 'sudden stopping' instruction. 

“The instructions given by the trial court should be confined to the issues raised by the pleadings of the case . . . and by the facts developed by the evidence[.]” Farrington Motors, Inc. v. Fidelity & Casualty Co. of New York, 303 S.W.2d 319, 321 (Ky. 1957). A party to civil litigation is entitled to have his or her theory of the case submitted to the jury if there is any evidence to sustain it. Risen v. Pierce, 807 S.W.2d 945, 947 (Ky. 1991). 

ACUITY V. GREAT WEST CAS. CO.
INSURANCE - Statute of Limitations to Recover BRB Subrogation
2005-CA-000027
Not To Be Published  
Date: 12/22/2005

Affirmed dismissal of Acuity's subrogation claim against the defendant's liability carrier (reparations obligor) for PIP/reparation benefits paid as untimely filed beyond the two-year period following last payment of PIP, and rejected claim of equitable estoppel.  It is well-established that the reliance necessary to establish a claim of equitable estoppal must be reasonable. Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999). The last payment of BRB was on July 21, 2000; thus, the statute of limitations had yet to expire. 

H & R MECHANICAL CONTRACTORS, INC. V. CODELL CONSTRUCTION CO.
TORTS - Negligent Misrepresentation (false information required)
2002-CA-000862
Not To Be Published  
Date: 12/22/2005

CA affirms the TC dismissal of complaint in construction deal gone bad.

In hospital construction deal, contractor sued construction mgmt company and architects for negligent performance of their duties which caused contractor injury. TC dismissed, holding that each party had signed a separate contract with the hospital, so there was no contractual relationship between them. Appellants argue that the complaint states a claim for negligent misrepresentation. CA disagrees because complaint alleges negligent performance of duties, not negligent misrepresentation.

STRANGE V. ALBERT KAHN ASSOCIATES, INC.
TORTS - Professional Negligence (architects, expert testimony)
2004-CA-002204
Not To Be Published  
Date: 12/22/2005

This was a wrongful death action against architects for design of GE Appliance park and asbestos exposure.   COA affirmed summary judgment dismissing claims.  Although alternatives to asbestos were available, there is no indication that specifying the use of asbestos during the 1950 or 1960’s fell below an architect or engineers standard of care.   An expert witness with knowledge regarding design drawings and specifications for buildings built during the 1950 and 1960’s is necessary to help the fact finder determine the standard of care (of architect) and whether Kahn met that standard of care.

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