The COA published 6 torts decisions and 1 insurance law decision in January 2010.
TORTS
A. Baxter v. AHS Samaritan Hospital, LLC
2008-CA-000541 01/15/2010 2010 WL 133796
Opinion by Judge Keller; Judge Acree concurred; Judge Caperton dissented in part by separate opinion. The Court affirmed a judgment of the circuit court dismissing a medical malpractice action after a jury found that a doctor was not negligent in failing to remove a surgical sponge following an appendectomy. Following the holding in Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009), the Court first held that the trial court did not err in overruling motions for partial summary judgment and directed verdict against the doctor under the doctrine of negligence per se. The Court next held that trial court correctly denied motions for partial summary judgment and directed verdict under the doctrine of res ipsa loquitur. Although the presence of the sponge constituted prima facie evidence of negligence, the expert testimony created a question of fact as to the doctor’s liability for the injuries. The Court next held that the trial court did not err by failing to give an instruction on the doctrine of res ipsa loquitur. Although Nazar allowed the jury to infer negligence and a party to avoid a directed verdict or to win a directed verdict, the instructions on the doctrine should not be submitted to a jury. The Court finally held that the trial court did not err in granting partial summary judgment, precluding a deceased infant from bringing a wrongful death action pursuant to KRS 411.130, because the experts concluded that the infant was never viable and was not capable of sustaining life apart from his mother. Even so, because the jury determined that the doctor was not negligent, he could not have been liable for the death of the infant.
B. Bobbitt v. Collins
2007-CA-001422 01/22/2010 2010 WL 199308
Opinion by Judge Wine; Judges Stumbo and Thompson concurred. The Court reversed and remanded summary judgment orders dismissing personal injury claims arising from a multi-vehicle collision. The Court held that the trial court did not err in finding that the clear language of a general release discharged all the defendants. Because the claimant did not make a timely acceptance of an offer of judgment and the settling defendants did not extend the settlement offer beyond the ten-day period allowed by CR 68, the settlement offer was subject to ordinary contract law. The Court then held that the trial court correctly found that the general release, signed by the claimant, was enforceable as a contract provision. Because the release was not ambiguous, the trial court was not required to look beyond its terms to interpret it. However, the Court held that the trial court erred in finding that the release precluded the claimant from seeking rescission and that the parol evidence rule precluded an equitable claim for rescission or reformation based on fraud, illegality or mutual mistake. The Court then held that the evidence clearly established a mutual mistake and that the parties to the contract never intended the general release language to be included. Therefore, the trial court erred by denying the request for rescission of the release.
C. Brett v. Media General Operations, Inc.
2008-CA-000620 01/29/2010 2010 WL 323136
Opinion by Senior Judge Harris; Judges Lambert and VanMeter concurred. The court affirmed a summary judgment entered by the circuit court in favor of appellant’s former employer, a television station, and its general manager and an order awarding costs to the employer. The Court first held that summary judgment was not based upon improper evidence when the majority of the proof consisted of witness depositions that were properly certified and notarized. Further, appellant’s deposition was complete, as he did not request a re-direct examination, nor did he file an affidavit to explain, correct, or contradict the testimony he gave under examination by opposing counsel, which was authorized by CR 56.03. The Court also held that although the employer and general manager may have violated office policies by destroying documents, appellant failed to demonstrate that any law or court orders were violated or that they were lost or destroyed in anticipation of litigation. The Court next held that appellant failed to present evidence demonstrating any genuine issue of material fact on his breach of contract claim. His contract contained a morals clause and his termination letter made it clear that he was terminated for cause after four women complained that he had sexually harassed them on numerous occasions. Absent a specific contractual provision, the employer was under no obligation to provide additional investigative measures or an opportunity to be heard. The Court next held that appellant failed to demonstrate the existence of any genuine issue of material fact on the basic element of material misrepresentation to support his claim that he was fraudulently induced into entering the employment contract. The Court next held that appellant failed to show how his allegations of misrepresentations and improper termination constituted contractual interference. The Court next held that appellant failed to specifically describe any alleged defamatory statements or state where they were published to show how the employer was responsible for dissemination of information to support a claim for defamation. The Court next held that appellant failed to produce evidence to show that his termination was outrageous or intolerable in the manner required under Kentucky law to support his claim for intentional infliction of emotional distress. The Court finally held that the ruling by the Kentucky Supreme Court in the employer’s favor, in an original action wherein appellant argued that the trial court lost jurisdiction under CR 52.02 to award costs after appellant filed his Notice of Appeal, was dispositive of the appeal from the order awarding costs.
D. Caudill v. Salyersville National Bank
2008-CA-000017 01/08/2010 2010 WL 45882
Opinion by Judge Thompson; Judges Caperton and Wine concurred. The Court affirmed a judgment of the circuit court granting a directed verdict to the appellee bank on a estate’s claim that the bank aided and assisted the deceased’s nephew, acting under the authority of a power of attorney and as an authorized signatory on the deceased’s personal checking account, to convert funds held by the Bank. The Court held that there was no evidence that the bank acted in bad faith or with knowledge that the nephew breached his fiduciary duty when it conducted financial transactions concerning the account. It acted pursuant to a valid power of attorney and Consumer Account Agreement and was not obligated to look beyond the language of the power of attorney to determine the extent of the power.
E. Flint v. Stilger
2009-CA-000475 01/22/2010 2010 WL 199566
Opinion by Judge Caperton; Judge Dixon and Senior Judge Henry concurred. The Court reversed and remanded a summary judgment entered in favor of appellee on appellant’s claim for defamation. The trial court found that statements made in response to appellant’s appeal for the Attorney General to prosecute a condominium association’s failure to comply with KRS 381.990 were entitled to absolute privilege. The Court first held that appellant’s naming of additional appellees as “Jane and John Does” was not fatal to the appeal. As members of the Board of Directors of the association, they were not necessary parties because the defamation claim was only between appellant and the named appellee, the attorney for the association. The Court next held that review was confined to one for manifest injustice, as appellant failed to properly cite to the record as required by CR 76.12(4)(c)(iv)-(v). The Court ultimately held that the statements made in the response to the appeal for the Attorney General to prosecute was not entitled to absolute privilege because the Attorney General’s office was undertaking an investigation and had not made known whether it would pursue a judicial remedy. Therefore, the statements were only entitled to a qualified privilege, which could be overcome by a showing of malice.
F. Higginbotham v. Keeneland Association
2009-CA-000301 01/29/2010 2010 WL 323287
Opinion by Judge Lambert; Judge Wine and Senior Judge Harris concurred. The Court affirmed a summary judgment entered in favor of appellee on appellants’ claims related to a motor vehicle accident. A passenger was killed and a passenger was injured when the driver improperly reacted to a flat tire, lost control of her vehicle, and a struck a vehicle owned by appellee’s employee who had parked the vehicle on the shoulder to activate temporary signs directing traffic into Keeneland racetrack. The Court held that the trial court properly granted summary judgment in favor of the employer. The Court first declined to review appellants’ argument or supporting documentation that the employee’s parking on the shoulder constituted negligence per se because the argument was not raised before the trial court and the documents, which were not part of the record on appeal, were improperly attached as an appendix to the brief. The Court then held that the employee did not owe appellants a duty to refrain from parking on the shoulder of the road. The particular harm was not foreseeable as no reasonable person could have foreseen the injuries sustained or that the driver would lose control to the extent that she could not bring her vehicle to a complete stop utilizing the portions of the shoulder available. KRS 189.450(3) did not impose a duty of care because the statute was inapplicable to the road where the accident occurred, nor did KRS 189.290(1) because the employee was not operating the vehicle at the time of the accident. The employee did not have a common law duty, as there was no authority for the proposition that the shoulder was reserved exclusively for emergency purposes. Public policy considerations also supported the finding that the employee did not have a duty to refrain from parking on the road, as he acted within the guidelines of the encroachment permit. The Court finally held that the trial court properly found that the employee’s actions were not the proximate cause of the collision, when it was undisputed that the driver lost control of her vehicle when she improperly reacted to a flat tire. Further, the evidence established that the vehicle was out of control, traveling at a high rate of speed, and would have collided with whatever was in its path - either the temporary sign, the steep earth berm or both.
INSURANCE
A. Lynch v. Claims Management Corporation
2007-CA-001840 01/22/2010 2010 WL 199343
Opinion by Judge Wine; Judges Clayton and Dixon concurred. The Court reversed and remanded a summary judgment in appellee’s favor on its intervening subrogation/reimbursement claim from settlement proceeds appellant received from his uninsured motorist carrier. Appellee was the claims administrator for a disability policy purchased by appellant, an independent contractor. The Court held that the trial court erred in granting summary judgment to appellee and denying summary judgment to appellant on the intervening claim. The insurance contract was both ambiguous and subject to a reasonable interpretation that appellee would only seek reimbursement from a third-party tortfeasor, not another insurer. Therefore, appellant was entitled to summary judgment.
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