2013:07. Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of JULY 2013

KTR2013.07Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of September 2013

Synopsis of this month’s tort report of selected decisions on civil procedure, torts, appeals, insurance.

  • COA held that contractual statute of limitations in UIM policy that mirrored no fault statute was unreasonable and unenforceable.  Pending MDR.  FWIW this makes perfect sense to me since UIM is essentially a hybrid claim (contractual sounding in tort) (Riggs v. State Farm)
  • COA affirmed dismissal of UIM claim for failure to comply with notice and subrogation provisions in policy.  Watch out for this (either include in complaint or put them on KRS 411.188 notice is a thought)(Rodgers-Murphy v. Fair)
  • Sending a message to the community argument in medical negligence claim that comments were not prejudicial (Shy v. Walker)
  • Another COA decision narrowly reading McIntosh and the open and obvious doctrine holding that unequal steps at business were open and obvious.  COA affirmed trial court. (Speats v. Schneider)
  • Superceding cause addressed in wrongful death action involving child (Patton v. Bickford)
  • Arbitration award dismissing claim on statute of limitation affirmed in published decision (Wagner v. Drees)
  • Brief prepared by attorney stricken by COA for a multiple errors.  (Calvert v. Rector)
  • Circuit court retained limited jurisdiction over issues in case pending appeal (Walters v. Smith)
  • Published decision revisited issues in an underinsured motorist claim  following Coots advance when less than policy limits (Progressive Max v. Jamison)
  • Other tort decisions involved no duty re overgrown brush on property when person injured on premises; nursing home negligence and expert witnesses; proximate cause and remoteness when two unrelated events involved (actually a superceding cause analsysis)(Cadle v. Cornett)


Charles Wagner vs. The Drees Company – Boone County
COA Published 7/26/2013
Affirmed arbitration award dismissing claims on statute of limitations.


Calvert vs. Rector
COA Not Pub 7/26/2013
Brief prepared by attorney stricken by COA stating for errors.
Regrettably, the failures in this case are so blatant as to compel our striking the brief. We affirm the Daviess Circuit Court.” Kentucky Rule[s] of Civil Procedure (CR) 76.12 provides guidelines for appellate briefs. “A brief may be stricken for failure to comply with any substantial requirement of this Rule[.]” CR 76.12(8)(a). We routinely exercise leniency with parties proceeding pro se. However, in this case, Calvert is represented by counsel, and the errors are both serious and numerous.  Court found problems in INTRODUCTION,  STATEMENT OF THE CASE, and references to the record re preservation of error omitted in ARGUMENT.

Eugene Walters v. David O. Smith
COA Pub 7/5/2013
Jurisdiction in circuit court pending appeal

Walters vs. Smith
COA Not Pub 7/5/2013
Attorneys fees and frivolous appeal
The appellants, Eugene Walters, Jeff Walters, and Kathy Walters, appeal the Whitley Circuit Court’s March 30, 2011 order that they pay to appellees, Edith Lanham, Michael Santos, and Deborah Santos, the sum of $5,000.00 in attorney’s fees for previously having filed a frivolous appeal of that court’s October 13, 2008 judgment. In lieu of filing a supersedeas bond, the appellants paid the attorney’s fees to the appellees.2 We reverse and remand with instructions.


Progressive Max Insurance. Co. vs. David Jamison
COA Published 7/19/2013
Underinsured motorist benefits, Coots advance when less than policy limits, and procedures on credits, PIP, etc.

Lonnie Riggs vs. State Farm Mut. Auto. Ins. Co.
COA Published 7/19/2013
Underinsured motorist benefits, statute of limitations and held the 2 years after mva or last pip as used for underlying tort claim was unreasonable for contractual UIM claim

Rodgers-Murphy vs. Fair
COA, Not Pub 7/19/2013
Insurance. Subrogation notice re UM payments.

Melissa Rodgers-Murphy appeals an order of the Casey Circuit Court granting the motion for summary judgment filed by Safeco Insurance Company of Illinois. The court concluded that Rodgers-Murphy breached the notice and subrogation provisions of Safeco’s automobile policy. On appeal, Rodgers-Murphy argues that the motion was improvidently granted because she did provide adequate notice that she intended to pursue a claim for uninsured motorist coverage under the policy and because she filed the action against Safeco within the applicable period of limitations. In the alternative, she contends that the issue of whether Safeco might have been prejudiced by a breach of the policy’s notice provision is one to be resolved by the trier of fact. After our review, we affirm.

Spears vs. Robert A Schneider
COA Not Pub 7/12/2013
Premises Liability.
Amanda Spears appeals the Campbell Circuit Court’s December 22, 2011 order dismissing her premises liability claim against Appellees Robert A. Schneider, Jr., d/b/a Sweet Tooth Candies and Cincinnati InsuranceCompany (collectively, “Sweet Tooth”) for lack of a duty owed. The question before us is whether the circuit court erred in classifying the danger at issue, i.e., a step of unequal height, as an open and obvious hazard and, as a result, concluding the open and obvious doctrine barred Spears’ negligence suit as a matter of law. Finding no error, we affirm


Guinn v. Thomas
COA, Not Pub 7/19/2013
Premise liability
COA found no breach of duty re overgrown brush and debris on property when plaintiff injury walking horse and was injured when his horse stepped and broke plaintiff’s ankle.

Sheila Patton v. Davida Bickford
COA Published 7/19/2013
Wrongful death case involving child at school raising immunity issues and superceding causation

Hazard Nursing Home, Inc. vs. Ambrose
COA Not Pub 7/19/2013
Nursing home negligence.
COA found sufficient expert witnesses to take case to jury and directed verdict should not have been granted.  Expert witness on nursing home administration permitted to testify in that limited area.

Cadle vs. Cornett
COA Not Pub 7/12/2013
Insurance. Proximate cause. Superceding intervening cause.Ronald Cadle, individually and as Administrator of the Estate of Jane Cadle, and Sarah Cadle (the Cadles) appeal the Jefferson Circuit Court’s order of summary judgment dismissing their negligence claims against the appellants, i.e., their uninsured motorist insurance carrier, Allstate, and Wilma Cornett. The circuit court dismissed the Cadles’ claims after finding that any negligence on the part of Cornett was too remote to be a proximate cause of the Cadles’ injuries in this matter, and that the Cadles’ injuries were wholly due to two other events of unrelated, superseding negligence. Finding no error, we affirm.

Village Campground vs. Middleton & Reutlinger
COA Not Pub 7/12/2013
Legal Negligence.
Village Campground, Inc. and Maynard Fernandez (collectively “Village”) appeal from an order entered by the Jefferson Circuit Court on June 29, 2010, dismissing its legal malpractice complaint against Middleton & Reutlinger, P.S.C. (“M&R”). Village alleged the firm failed to timely itemize a punitive damages claim and file a slander of title claim in a mortgage dispute. Village also appeals from an order denying its motion to alter, amend, or vacate the order entered on June 29, 2010. Having reviewed the record, the law and the briefs, we affirm.

Mokhtarei vs. Sohan
COA Not Published 7/12/2013
Legal Malpractice.
John Mokhtarei and Kaelins, Inc. (collectively, “plaintiffs” or “appellants”) have appealed from the summary judgment dismissing their legal malpractice complaint against attorney Patrick J. Sohan as well as the order denying their Kentucky Rules of Civil Procedure “CR” 59.05 motion to alter, amend, or vacate. The Jefferson Circuit Court ruled that the appellants’ assignment of their claim pursuant to an agreement and order in a separate case was improper pursuant to Davis v. Scott, 320 S.W.3d 87 (Ky. 2010). We agree, and we affirm the summary judgment on appeal.


Shy, D.O. vs. Walker
COA, Not Pub 7/19/2013
Argument. Motions in limine.
Dr. Shy contends he was prejudiced when the Estate’s counsel urged the jury to send a message to the medical community and make their community safe and entitled to a mistrial or new trial. The Estate counters that the issue was not properly preserved for review and, if it was, there was no reversible error. After review of the record, we agree that even if improper, counsel’s comments were not so prejudicial that the trial court erred when it denied Dr. Shy’s motions.

Dr. Shy did not object to counsel’s statements during closing argument and did not move for a mistrial until its conclusion, and after the jury was excused from the courtroom to begin deliberation. At that point, Dr. Shy moved for a mistrial contending that counsel’s argument suggested to the jury that if they did not render a verdict against Dr. Shy, they would be endangering the residents of Floyd County and they should send a message to the Floyd County medical community to consider every possible diagnosis regardless of the patient’s symptoms. He argued that counsel’s statements were improper under Kentucky law and violated an order in limine issued by the trial court prohibiting any such references. Dr. Shy did not request a curative admonition.

Barker vs. Thurman
COA Not Pub 7/19/2013
CR 60.012 motion.  No error found in trial court’s denial.

Appellant failed to keep in contact with his original attorney, failed to respond to discovery requests, and failed to obtain new counsel within the time permitted by the trial court. These reasons are not of an extraordinary nature required to invoke the relief sought via CR 60.02. The proper procedure for setting aside or vacating the order dismissing the action would have been to file a CR 59.05 motion or a direct appeal to this Court. The trial court did not abuse its discretion in overruling Appellant’s CR 60.02 motion. Appellant’s reasons for not participating in the legal action he initiated do not meet the criteria listed in CR 60.02(a)-(f).

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