Kentucky Law Review

Kentucky Tort Report of Decisions Posted from August 6, 2010

TORT REPORT OF CIVIL AND INSURANCE DECISIONS: COA 2010 Minutes Aug. 6, 2010 (Nos. 748-764) from the Kentucky Court Report www.KyCases.com.

KENTUCKY TORT REPORT: COA 2010 Minutes July 23, 2010 (Nos. 702-728)

KENTUCKY TORT REPORT:
COA 2010 Minutes July 23, 2010 (Nos. 702-728)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Total number of decisions:  27
• Published Decisions:  4 (704, 707, 713, 718)
• Tort, Civil, Insurance, Workers Compensation:  8 (702, 708, 715, 718, 720, 723, 727, 728)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

702.  TORTS.  EMPLOYMENT DISCRIMINATION.
CATRON (EDWARD)
VS.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
OPINION AFFIRMING
WHITE (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2008-CA-002081-MR
NOT TO BE PUBLISHED
FAYETTE

HITE, SENIOR JUDGE: Edward Catron, a former candidate for an environmental inspector position at the Lexington-Fayette Urban County Government (LFUCG), Department of Environmental and Emergency Management (DEEM), appeals from a Fayette Circuit Court summary judgment in favor of LFUCG. The trial court based its decision upon Catron’s failure to prove that he was disabled or that LFUCG regarded him as disabled. The trial court also concluded that Catron was unable to perform the duties required of an environmental inspector due to his heavy lifting restriction. On appeal, Catron claims that the summary judgment was erroneous because: (1) LFUCG perceived that Catron was disabled; (2) Questions of fact existed concerning whether heavy lifting was an essential function of the position; and (3) Catron was physically capable of performing the job. After a careful review of the record, we affirm the Fayette Circuit Court’s summary judgment.

708. EMPLOYMENT DISCRIMINATION.  PREGNANCY.
CORE MEDICAL, LLC (CORE LLC)
VS.
SCHROEDER (DEBORAH)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
DIXON (PRESIDING JUDGE)
VANMETER (CONCURS) AND LAMBERT (CONCURS)
2009-CA-000670-MR
NOT TO BE PUBLISHED
KENTON

715. WORKERS COMPENSATION
SMALLWOOD, JONATHAN
VS.
LON. MOUNTAIN PROCESSING, INC.;
HON. LAWRENCE SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
2009-CA-001251-WC
NOT TO BE PUBLISHED
WORKERS’COMP

VANMETER, JUDGE: Jonathan Smallwood petitions for the review of an opinion of the Workers’ Compensation Board (Board) affirming in part and reversing and remanding in part an opinion of the Administrative Law Judge (ALJ) with respect to Smallwood’s injury claims. Finding no error, we affirm.  On appeal, Smallwood argues that the Board erred by concluding the evidence supported the ALJ’s finding that (1) his bowel and bladder dysfunctions did not result in permanent impairment and (2) he did not sustain a psychological impairment as a result of his work injury. We disagree.

720. SEXUAL HARASSMENT
ABNEY (REBECCA)
VS.
GULLEY REMODELING AND MAINTENANCE, INC. , ET AL.
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BUCKINGHAM (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
CAPERTON (CONCURS) AND MOORE (CONCURS)
2009-CA-001490-MR
NOT TO BE PUBLISHED
FAYETTE

BUCKINGHAM, SENIOR JUDGE: Rebecca Abney appeals from an order of the Fayette Circuit Court granting summary judgment in favor of Gulley Remodeling and Maintenance, Inc., Kenny Johnson, Calvin D. Gulley, and Josephine Gulley, and dismissing Abney’s claims relating to alleged sexual harassment. We affirm in part, reverse in part, and remand.

724. 42 USC SECTION 1983 CLAIM, PRO SE
JONES (DEBI)
VS.
JONES (TRACY)
OPINION VACATING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2009-CA-001968-ME
NOT TO BE PUBLISHED
CAMPBELL

TAYLOR, CHIEF JUDGE: Larry E. Watkins-El brings this pro se appeal from a September 15, 2009, Opinion and Order of the Jefferson Circuit Court dismissing his complaint brought under 42 U.S.C. § 1983. We affirm.

727. WORKERS COMPENSATION
WATKINS (GARY)
VS.
L3 COMMUNICATIONS, ET AL.
OPINION AFFIRMING
HARRIS (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2010-CA-000383-WC
NOT TO BE PUBLISHED
WORKERS' COMP

HARRIS, SENIOR JUDGE: Gary Watkins has petitioned for review of an opinion of the Workers’ Compensation Board (the “Board”) entered on January 29, 2010, which affirmed the Administrative Law Judge’s (“ALJ”) June 23, 2009, order dismissing his claim. We affirm.

728. WORKERS COMPENSATION
MEANS (ROBERT)
VS.
SCHNEIDER NATIONAL, INC. , ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2010-CA-000387-WC
NOT TO BE PUBLISHED
WORKERS' COMP

STUMBO, JUDGE: Robert Means appeals from an Opinion of the Workers’ Compensation Board affirming an Opinion and Order of the Administrative Law Judge (“ALJ”). The ALJ determined that Kentucky did not have jurisdiction to adjudicate Means’ workers’ compensation claim because Means’ contract of hire with Schneider National, Inc. was entered into in Green Bay, Wisconsin. We affirm the Board’s conclusion that the evidence did not compel a different result than the one reached by the ALJ.

TORT REPORT: COA 2010 Minutes July 9, 2010 (Nos. 657-672)

TORT REPORT:
COA 2010 Minutes July 9, 2010 (Nos. 657-672)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Total number of decisions:  16
• Published Decisions: 2 (658, 661)
• Tort Decisions:  661, 662,
• Workers Comp:  671

TORT DECISIONS (CIVIL, INSURANCE, TORTS):

661. JURORS (CHALLENGE FOR BIAS, POLICY HOLDERS OF DEFENDANT); HEARSAY
GIBSON (ROY), ET AL. VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND WINE (CONCURS)
2009-CA-000048-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: Appellants Roy Gibson and Clinton Bowman appeal the October 3, 2008 judgment of the Clay Circuit Court entered upon a jury’s verdict finding them liable for fraud and ordering them to pay $43,778.53 to Appellee Kentucky Farm Bureau (KFB) and $14,000 to Appellee Gary Speth. For the following reasons we affirm in part, reverse in part, and remand for additional findings.

On June 24, 2005, Gibson and Bowman reported to KFB their 2000 Ford F150 had been stolen approximately three weeks earlier; KFB established the date of the loss as June 1, 2005. At the request of KFB, Gibson and Bowman filed a police report. Because they no longer possessed the vehicle’s certificate of title, they also obtained a duplicate title. In accordance with the terms of their KFB insurance policy covering theft of the insured vehicle, Gibson and Bowman soon received a check in the amount of $17,291.50.

In late 2005, an individual named Rogelio Mendez attempted to register the vehicle. He presented the original certificate of title to the clerk; the back of the certificate showed that on March 22, 2005, Gibson and Bowman had executed an assignment of the title to Mendez and their signatures were notarized.1 However, because the vehicle had been reported stolen, the clerk refused to permit Mendez to register the vehicle in his name. Police seized the truck and returned it to KFB. The insurer sold the truck for approximately $7,200.

Believing it had been defrauded, KFB filed a complaint seeking a declaration of rights to the truck as against Sanchez and Speth and asserting a fraud claim against Gibson and Bowman. Gibson and Bowman were represented in the action by counsel and defended against the fraud claim. Speth appeared pro se with the benefit of some assistance from KFB’s counsel. Sanchez was never served and did not appear in the action.

Following trial, a jury determined Gibson and Bowman had defrauded KFB and awarded KFB $43,778.53. The jury also awarded Speth $14,000.3    This appeal followed.

Gibson and Bowman claim the circuit court erred as follows: (1) by failing to strike for cause jurors who were policyholders of insurance issued by KFB; (2) by admitting hearsay testimony of out-of-court statements made by Sanchez; (3) by awarding KFB costs of investigating and prosecuting the claim; and (4) by awarding damages to Speth in absence of a finding he was defrauded and without proof of his loss. We address those assignments of error in that order.

Jury Selection.  Gibson and Bowman claim the circuit court erred by overruling their motion to strike for cause prospective jurors who were also holders of KFB polices.   The argument Gibson and Bowman present is that no KFB policyholder was capable of sitting as an unbiased juror in this case. That is, they argue the policyholders’ status alone required striking them for cause. True, by statute, certain persons are subject to challenge for cause merely because of their status. Howell v. Commonwealth, 489 S.W.2d 21, 22-23 (Ky. 1972)(Former Kentucky Revised Statute (KRS) 29.025, now KRS 29A.080(2)(b), disqualifies felons from jury service; “a juror in such status is subject to challenge for cause”). However, this panel may not, by creating the bright line test suggested by this argument, take from the province of the trial court the discretion to determine the qualifications of any jurors in the venire not otherwise disqualified by KRS 29A.080(2).
We do not exclude the possibility that one or more jurors in this case may have had such a concern about their relationship with KFB that they might be deemed biased. However, we can only speculate as to the existence of actual bias because Gibson and Bowman simply did not inquire further into the matter during voir dire either with any individual juror or with the venire. Relevant inquiries could have determined whether any particular juror had a concern that a judgment in the case would affect them personally. In this case, the only information about the juror-policyholders available to the trial court was that the potential for bias existed. Absent further indication from the voir dire that any juror, because of his or her relationship with KFB, was actually biased or would have difficulty fairly Deciding the case, we cannot label the trial court’s refusal to strike any jurors for cause an abuse of discretion.

Hearsay evidence
At trial KFB introduced certain of Sanchez’s statements through its investigator, Keller, because Sanchez was unavailable to testify.  Additionally, the statements made by Sanchez to the investigator were not used against Sanchez. Rather, they were used against Gibson and Bowman in prosecution of the fraud claim. KFB never claimed that Sanchez had defrauded anyone. Therefore, Sanchez’s out-of-court statements could not be permissibly introduced pursuant to this rule. 

In the context of Keller’s interview with Sanchez, it becomes clear the statements at issue were actually self-serving. Keller was conducting the interview to determine which scenario was accurate: (1) that Sanchez stole the truck and then used it as collateral on a $7,000 loan, or (2) that Gibson had legally conveyed the truck to Sanchez and then fraudulently reported it stolen. Given those options, it was decidedly in Sanchez’s interest to state he acquired the truck from Gibson in a legal manner and then left it with Speth. The conversation with Keller was therefore inadmissible as statements against the declarant’s interest.
In light of the other evidence of fraud, however, any error in admitting Sanchez’s statements to KFB’s investigator was harmless.

662. FORESEEABILITY ON INJURIES (ASSAULT); INSURANCE COVERAGE FOR ASSAULT AND OCCURRENCE; DIRECTED VERDICT AND FUTURE MEDICAL EXPENSES
ELLISON (NELLIE) VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000116-MR
NOT TO BE PUBLISHED
FLEMING

ACREE, JUDGE: Nellie Ellison appeals three decisions of the Fleming Circuit Court. First, she asserts the circuit court improperly granted summary judgment in favor of the Fleming County Little League. Second, she claims the circuit court erred by granting summary judgment in favor of Kentucky Farm Bureau Mutual Insurance Company. Lastly, she asserts the circuit court erred by entering a directed verdict in favor of the remaining defendant and refusing to instruct the jury as to future medical expenses. We affirm.

On July 9, 2005, a physical altercation erupted between Andrew Jones, then president of the Fleming County Little League, and Nellie Ellison, grandmother of a little league softball participant. As a consequence of the altercation, the Commonwealth of Kentucky filed criminal charges against Jones who pleaded guilty to first-degree wanton endangerment and fourth-degree assault. Ellison subsequently filed her complaint in this civil action in December of 2005. Ellison sought recovery from Jones, but also from the Fleming County Little League.
The cause of action against the Little League initially alleged that it failed to provide adequate security. However, she replaced this claim in an amended complaint and alleged negligent employment and/or retention of Jones as Little League President. On August 8, 2008, the circuit court entered summary judgment in favor of the Little League.

The action against Jones went to trial and the jury returned a verdict in favor of Ellison. The only issue arising from the trial is whether it was proper for the circuit court to refuse to instruct the jury as to future medical expenses and instead granting directed verdict on that issue.

Ellison asserts the Little League negligently hired and retained Jones as president. There is considerable question as to whether Jones was an employee given that he was an uncompensated volunteer selected by Little League parents to serve on the board of directors, and by the board to head the league. Nevertheless, Even if he is considered an employee for purposes of our review, Jones’ actions were not foreseeable.

An employer’s liability for negligent hiring and retention is based on the employer’s negligence in failing to exercise reasonable care in the selection and hiring of its employees. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 732 (Ky. 2009). Thus, Ellison must establish that the Little League owed her a duty of care, that the duty was breached as a result of the Little League’s hiring and retention of Jones, and that the breach of that duty caused her injury.
The primary issue here is whether the Little League owed a duty to Ellison. Ellison asserts the existence of a universal duty of care that required the Little League to protect her from Jones’ actions.

We agree with the circuit court that Ellison’s injuries were not foreseeable. “Foreseeability is to be determined by viewing facts as they reasonably appeared to the party charged with negligence, not as they appear based on hindsight.” James v. Wilson, 95 S.W.3d 875, 891 (Ky.App. 2002).

* * *

The circuit court determined that Jones’ Farm Bureau homeowner’s policy did not extend coverage to damages resulting from the altercation between Jones and Ellison. The circuit court reasoned that Ellison’s harm was either intended or expected and coverage was excluded under the policy. As noted above, the decision of the circuit court is reviewed de novo.

The Farm Bureau policy extends coverage to bodily injury caused by an “occurrence.” An “occurrence” requirement, there is also an applicable exclusion. Specifically, the policy does not apply to bodily injury that is “intended.” Therefore, the policy only covers occurrences (accidents) that are not intended.“occurrence” is defined as an “accident.”ones’ actions were clearly not an “accident” and the criminal conviction and award of punitive damages in this case refute the legitimacy of Jones’ claim of self-defense. Thus, it was not necessary to submit the issue of self defense to the jury and coverage is excluded.

* * *

Ellison’s claim against Jones was the only cause of action that proceeded to trial. The circuit court concluded that Ellison failed to present sufficient evidence on the issue of future medical expenses and entered a directed verdict. Ultimately, the jury returned a verdict awarding Ellison $60,298.29 for past medical expenses, $20,000 for past and future pain and suffering, and $150,000 in punitive damages. Ellison now asserts that the circuit court’s directed verdict and prohibition on an instruction for future medical expenses was in error. She avers that the jury should have been allowed to consider the requested $7,900 of future medical expenses.

The only evidence of future medical expenses came via the testimony
of Dr. Lawson, Ellison’s treating physician. Dr. Lawson indicated that Ellison suffered multiple fractures in her face including a broken nose, septum, and permanent nerve damage. Ellison had to have reconstructive surgery to repair her jaw, nose, and eye socket at a cost of $7,900. However, when asked if Ellison would require future surgeries Dr. Lawson indicated that there was “no way to know” and he “had no idea what might happen in the future.”
Evidence of future medical expenses must be “positive and satisfactory.” Howard v. Barr, 114 F. Supp. 48, 50 (W.D.Ky. 1953). Speculation and supposition are insufficient to justify submission of a case to the jury. Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951). If a physician testifies that he does not know the need, length, or cost of future medical expenses then no instruction should be given. See Walton v. Grant, 302 Ky. 194, 199, 194 S.W.2d 366, 368 (1946)(where doctor had no way of anticipating the cost, need, or length of future medical treatment, there was no evidence to warrant a finding for future medical bills), overruled on other grounds by Rankin v. Green, 346 S.W.2d 477 (Ky. 1960); see also Terminal Railroad Co. v. Mann, 312 S.W.2d 451, 454 (Ky. 1958)(physician’s testimony that boy would need the services of a companion from time to time for the rest of his life was insufficient). The trial court correctly prevented the jury from engaging in speculation by granting the directed verdict as to future medical costs.
For the foregoing reasons, we affirm.

671. WORKERS COMP
PALM BEACH COMPANY VS. TARTAR (NORMA), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-002309-WC
NOT TO BE PUBLISHED
WORKERS' COMP

DIXON, JUDGE: Palm Beach Company seeks review of a decision of the Workers’ Compensation Board. The Board affirmed an ALJ’s order sustaining a medical fee dispute in favor of Palm Beach’s former employee, Norma Tartar. Finding no error, we affirm.

TORT REPORT: SCOKY Jan. 21, 2010 Decisions

There were three civil/tort decisions from SCOKY for Jan. 2010:

The Jewell decision is probably the most significant for those practicing motor vehicle insurance law since it addressed PIP, UIM, and Workers Compensation assignments.  I suggest it be read in its entirety.  Those who have tried to get a workers compensation assignment of the subrogation claim when settling workers comp claims and then proceeding against the UIM carrier have found (or will find an empty pocket with no recovery against the UIM insurer).   Of course, I would like to think that settling with liability carrier and any assignment of WC benefits will remain unaffected but not a likely scenario. 

As a matter of contract law, the Jewell decision regarding UIM's paymen of UIM benefits will be of minimal impact since many policies have a specific workers compensation exclusion.  See, eg., KFBM Kentucky Automobile Policy which states regarding UIM coverage that "This coverage shall not apply directly or indirectly to benefit any insurer or self-insurer under any workers' compensation, disability benefits or similar law."  A similar exclusion can be found in the same policy with KFBM regarding UM or uninsured motorist benefits, see, eg., "This coverage shall not apply directly or indlrectly benefit any insurer or self-insurer under any of
following or similar law: '1 .. Workers' compensation law; or 2. Disability benefits law."

In Jewell, the UIM carrier was attempting get a full offset for the $20,000 in reparation benefits under the automobile policy.  There had been a disputed that was not fully documented in the record such that only $333.45 in BRB had been paid of an available $20,000.  The trial judge only ordered an offset for what was actual paid, but KSBA wanted the whole $20,000.  The SCOKY did a bypass of this stating there were no findings of fact in the record, none were requested by the party with the burden, and thus KSBA was stuck.  This made a big difference in the net money that the claimant received.

Justice Scott's concurring opinion wished to limit the offset to PIP (reparation benefits "paid or payable"), eg.,

SCOTT, JUSTICE, CONCURRING IN RESULT ONLY OPINION: I concur
in the result of the majority's opinion, but would add as to Issue 111, that the
amount of any offset is limited to the BRB actually "paid or payable" - meaning
it has been, or will be paid. There is no offset for amounts that will not be
paid. Such an effect was never the intention o.f .KRS..304 .39-060(2) . , See Slone v. Caudill, 734 S.W .2d 480 (Ky. App. 1987) ; and Henson v. Fletcher, 957
S.W.2d 281 (Ky. App. 1997) .

Unfortunately, we will have to discern with difficulty the full extent of that opinion. 

The problem with the PIP offset is that that a verdict will award future medicals that are reasonably foreseeable at the time of the verdict and to be paid per the eventual judgment.  The future medicals and wages are not placed upon hold if needed but awarded.  Now, PIP has a statute of limitations which puts an end date on these, and as revealed in this case, there is a potential rub with PIP and workers compensation.  Thus, an offset would/could deprive the claimant of his award but never to be paid.  No solution offered, but it looked as if the statute of limitations had expired on making this PIP claim by the time the verdict was reached so there was NO PIP PAYABLE in the future by operation of law.

4 - PROFESSIONAL NEGLIGECE, ASSIGNMENT OF CLAIMS AGAINST BROKERS
ASSOCIATED INSURANCE SERVICES VS. DANIEL GARCIA, M.D
Questions Presented:
Professional negligence claims against insurance agents or brokers are assignable; and such assignment, when coupled with a settlement agreement as to damages and a covenant not to execute, is not against public policy where reasonable..

OPINION OF THE COURT BY JUSTICE CUNNINGHAM AFFIRMING IN PART AND REVERSING IN PART
In this case, we are asked to consider two issues of first impression in Kentucky:whether professional negligence claims against an insurance agent and an insurance broker are assignable, and, if so, whether such assignment, when coupled with a settlement agreement as to damages and a covenant not to execute, is illusory or void as against public policy.  The Star of Louisville ("the Star") is a pleasure craft operating on the Ohio River by the City of Louisville. In 1997, it sought marine insurance coverage through Associated Insurance Service, Inc.("Associated"), an insurance agency in Louisville . Given the specialized nature of the coverage, Associated contacted an insurance brokerage firm, AON Risk Services, Inc. of  Ohio ("ARS"). Thereafter, ARS provided a quote to Associated from an insurance company in Australia, HIH Casualty and General Insurance, Inc. ("HIH"). The Star ultimately purchased a policy from HIH in October 1997 . It renewed the HIH policy in 1998 and 1999.

Both ARS and Associated argue that the Court ofAppeals erred by invalidating the arbitration award, but upholding the validity of the assignment . Pursuant to the terms of the arbitration agreement, they point out the award cannot be severed without invalidating the entire agreement. As explained above, we have not invalidated the arbitration award;rather, we have remanded this case for further proceedings, which may include an assertion that the arbitration award was unreasonable . Should it be determined that the arbitration award is unreasonable, only then would it be appropriate to argue that the entire agreement has been voided.  For the foregoing reasons, the opinion of the Court of Appeals is affirmed in part and reversed in part. The summary judgment of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
Minton, C .J.;Scott and Venters, JJ.,concur. Noble, J .,concurs by separate opinion. Schroder, J.,concurs in part and dissents in part and would
affirm the Court ofAppeals. Abramson, J.,not sitting.

5 - INSURANCE, NO FAULT, PIP, UIM AND WORKERS COMPENSATION
JEWELL VS. KENTUCKY SCHOOL BOARD ASSOCIATION
Questions Presented:
Insurance. UIM Coverage. Basic Reparation Benefits. Subrogation. Double Recovery . Workers Compensation. Issues include the proper prioritization of claims against workers'  Compensation carrier, no-fault carrier, and UIM carrier.

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART
This case arises from a motor vehicle collision where the injured party, at work when the collision occurred, pursued her remedies against her under-insured motorist insurer. Among other issues, we address the question of whether an injured worker, as assignee of her workers' compensation carrier's subrogation rights, may enforce those rights agains their underinsured motorist insurance provider. Although prior decisions have addressed separate
elements of the issue, we find none that have application to the combination of factors present here .

In Samples,we suggested that in appropriate circumstances persons other than the tortfeasor himself may fall within the range of "the other person in whom legal liability for damages exists." Specifically, we mentioned "the tortfeasor's employer, his parents-(if he is minor and the -parent had signed for his-driver's license, his insurer (if permitted), or any one else who could be held liable because of the tortfeasor's negligence." Samples, 192 S .W.3d at 315. That language refers to persons or entities (or their liability insurer) that under traditional tort law may be vicariously liable for another's conduct.  The  UIM carrier's responsibility to its insured does not arise from any relationship with the tortfeasor;it arises because of a contractual relationship with the tort victim to provide insurance forwhat the tortfeasor has failed to insure. In providing Appellant's UIM  coverage, KSBA undertook to insure damages owed by the tortfeasor to Appellant in her own right. It did not insure the damages the tortfeasor may owe to her workers' compensation provider. The assignment of its subrogation
rights to Appellant did not expand the UIM carrier's contractual obligation or
expose it to liability that did not exist prior to the assignment. The rights she acquired by taking the assignment are no greater than the rights of her assignor. Because it had no right to recover from the UIM carrier, Appellant had no right to do so. The Court of Appeals opinion in this regard is affirmed.

Notwithstanding the fairness to be found in Appellant's position, we agree with the Court of Appeals that the rationale for the holding in Minton is guided exclusively by the language of the statute quoted above, and that by its terms the statute is limited to offsetting the recoupment due to the workers' compensation carrier.  We see no authority that would justify the extension of Minton allowing an offset against the UIM provider's credits for Appellant's attorney's fees and expenses.

Accordingly, we affirm the Court of Appeals' denial of a credit for Appellant's attorney's fees and expenses .

KSBA's argument that Appellant cannot rely upon Slone and Henson, depends, in,this Court, as in the Court of Appeals, upon a finding of fact that - was never made by the trial court -whether Appellant followed the correct process to claim the full measure of BRB available to her.  CR 52.04 does not permit the trial court to be reversed for failure to make a finding on an essential fact unless a party has expressly requested such a finding. The Court
of Appeals erred in reversing the trial court's decisionon the BRB because of a disputed issue of fact,when the matter was never brought to the attention of the trialcourt. We therefore reverse the Court ofAppeals on that point and reinstate the decision of the trial court to deduct from the judgment the actual BRB payment of $333.45 rather than the full $20,000.00 of available BRB.

CONCLUSION For the forgoing reasons, we reverse the opinion of the Court of Appeals
insofar as it directs the trial court to deduct from the judgment the entire $20,000.00 of available BRB. Otherwise, we affirm the Courts of Appeals in remanding this case to the trial court for recalculation of damages consistent with this opinion .
All sitting. Minton, C .J.,Abramson, Cunningham, Noble and Schroder concur . Scott, J ., concurs in result only by separate opinion.

7. MEDICAL MALPRACTICE
BLANKENSHIP, M.D. VS. COLLIER
Questions Presented:
Medical malpractice. Trial court’s grant of summary judgment against a plaintiff who fails to identify and expert witness.

OPINION OF THE COURT BY JUSTICE ABRAMSON REVERSING
The central question in this medical malpractice case is whether and when a trialcourt may grant summary judgment against a plaintiff who has failed to identify any expert witnesses. Pursuant to Kentucky law, in most medical malpractice cases, a plaintiff is required to put forth expert medical testimony to establish the applicable standard of care, any breach that occurred and any resulting injury to the plaintiff. This case being a typical medical malpractice case, Horace Collier, the plaintiff, never disputed that an expert was necessary to prove that Dr .Robert Blankenship and Caritas Health Services were negligent in the diagnosis and treatment of his appendicitis . Despite his repeated representations to the trial court that he would be using expert testimony and,his request,for an extension for more time to locate and identify an expert, Collier still had failed to provide the names of any expert witnesses more than one year following the filing of the complaint . Because under Kentucky substantive law Collier would be unable to sustain his burden of proof without expert testimony, the trial court granted Dr .Blankenship's  and Caritas's motions for summary judgment.  After the Court of Appeals reversed the trial court's grant of summary judgment, this Court granted
discretionary review.

KSBA's argument that Appellant cannot rely upon Slone and Henson, depends, in,this Court, as in the Court of Appeals, upon a finding of fact that - was never made by the trial court -whether Appellant followed the correct process to claim the full measure of BRB available to her.  CR 52.04 does not permit the trial court to be reversed for failure to make a finding on an essential fact unless a party has expressly requested such a finding. The Court
of Appeals erred in reversing the trial court's decisionon the BRB because of a disputed issue of fact,when the matter was never brought to the attention of the trialcourt. We therefore reverse the Court ofAppeals on that point and reinstate the decision of the trial court to deduct from the judgment the actual BRB payment of $333.45 rather than the full $20,000.00 of available BRB.

CONCLUSION For the forgoing reasons, we reverse the opinion of the Court of Appeals
insofar as it directs the trial court to deduct from the judgment the entire $20,000.00 of available BRB. Otherwise, we affirm the Courts of Appeals in remanding this case to the trial court for recalculation of damages consistent with this opinion .
All sitting. Minton, C .J.,Abramson, Cunningham, Noble and Schroder concur . Scott, J ., concurs in result only by separate opinion.

Tort Report: COA Decisions for COA Oct. 2, 2009

Tort Report: COA Decisions for COA Oct. 2, 2009

TORT REPORT (53): Tort decisions of COA from Oct. 31, 2008

On Oct 31, 2008, the Kentucky COA issued the following tort and insurance law decisions.  You will have to click on the minutes, scroll to the decision and click on the link to the AOC decision for full text.

• Entire minutes for this week.
• Tort and insurance decisions
  • 1242 - Transportation Cab. v. Kern (NPO)
    Re:  Board of Claims and duty of state over highway and adjacent area maintenance
  • 1243 - Bolin  Estate v. Davis (PUB)
    RE: qualified official immunity
  • 1249 - Holloway v. Holloway (NPO)
    RE: Wrongful death statute and negligence of beneficiary
  • 1250 Shafer Plaza v. Lang (NPO)
    RE: forum selection clause
• Some other decisions
  • 1255 Air Relief v. Centrifugal Technologies (NPO)
    Re: non-disclosure and non-compete clauses in agreement

MEDICAL: Malingering Tests - Tea Leaves or Science?

I am going to try and revive some life into my blog "Kentucky Tort Report" which focuses on torts, insurance, and personal injury plus trial and civil procedure issues.

Other than announcing I was back, here is my first post: MEDICAL: Malingering Tests - Tea Leaves or Science?

Kentucky Law Posts this Past Week from our affiliated sites

Kentucky Law Posts this past week include:

• Jun 25-29, 2007 6th Circuit Published Decisions (No Ky Cases)
• JUNE 15, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:29) - LAWWIRE
• June 2007 Grants of Discretionary Review by SCOKY
• June 29, 2007: Minutes for Kentucky Court of Appeals (COA)
• June 8, 2007 COA "Tort Report" for Civil, Tort & Ins. Decisions

Kentucky Tort Report for Week Ending March 2, 2007

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.