Tort news and developments for week ending March 2, 2007:
A busy week with six published decisions from the Kentucky Court of Appeals addressing tort and insurance law topics.
In Batts v. Illinois Central Railroad, the need for strict compliance with the revival statute regarding the appointment of the administrator under KRS 395.278 came into play.
Although Rippetoe v. Feese was another in the line of zero pain and suffering verdicts following Miller v. Swift, there was a footnote addressing (or actually not addressing) CR 26.02 expert disclosures and whether treating physicians came under that prescription. Rippetoe noted Kentucky had not addressed that issue yet, and dit not do so then either having found other grounds to dispose of the case.
Dram shop issues were addressed in Jackson v. Tullar as no apportionment or punitive damages are to be had against the bar owner due to the unique nature of dram shop liability under the statute as there are two and independent negligent acts. CA concludes that punitives cannot be recovered in a dram shop action.
The flip site of the Earle v. Cobb decision has now come forward. In Cobb, a UIM carrier was not permitted to hide and was identified as a party at trial after advancing the liability limits to preserve its subrogation rights. Now,in Stinson v. Mattingly a UIM carrier is to be identified as a party even when it does not advance the liability limits. When the UIM carrier is a party, it is a part for all purposes and the procedures formerly used of not participating and agreeing to be bound by the verdict will wither on the vine.
A newscaster died in a car accident driving his own vehicle. He collected liability and all the UIM coverages that he owned, but failed in implicating his employer's UIM coverage as the COA rejected his argument that he normally drove a company car on assignment but this time was driving his own car instead. COA did not find this was a "replacement" vehicle. Est. of Turner v. Globe Indem. Co.
The residency issue of Dana Seum Stephenson continues to haunt her. She previously lost her legislative seat when it was determined she was an Indiana resident within the critical time period prior to filing. Now, she was in a car accident with an Indiana policy covering her, but since the insurer did not do business in Kentucky, she would not have been "deemed" to have had Kentucky PIP for her Kentucky accident. However, American Family Ins. provided her PIP and when it finally figured they were not supposed to, it was two years post accident (and beyond the statute of limitations). COA said tough cookies to the insurer and appied promissory estoppel against it as Dana had detrimentally relied upon the PIP. She got pip in Stephenson v. American Family Mut. Ins. Co.
There were no SCOKY decisions or arguments at COA or SCOKY during this past week.
NOT FOR PUBLICATION DECISIONS FROM KENTUCKY COURT OF APPEALS ARES BELOW THE FOLD which addressed equitable estoppel to enforce arbitration rights, no requirement of privity for third party beneficiaries of attorney's work, admission of negligence by hospital did not cover causation of injury, police officer's qualified immunity on probable cause determination, permitting attorneys fees for taking remedial action in litigation, no agreement means no settlement, and a lack of prosecution case.