Case Notes: A River Runs Through It in Jurisdiction issues in case involving medical treatment in Louisville but followup surgery across the Ohio River (Cooper vs. Dr. Ajith Nair, Kentuckiana Pain Specialists and Metro Specialty Surgery Center, COA NPO 1/9/2015)

 

Screenshot capture from Google Maps.

Screenshot capture from Google Maps.

This decision highlights what the risks are when you select a Louisville physician who then ships you across the river to Indiana for surgery (where there is more favorable medical malpractice protection for the doctor but a most tortuous path for those who have been injured when trying to get their lives back from a doctor’s mistakes).  The doctors say it keeps their costs down by operating in Indiana, but another way to look at it is that it frustrates the patient’s care and needs, especially when the procedure is believed to have been botched.

Here’s the case and a recommended read for the limits of prosecuting medical negligence claims when a river runs through it.  Note, the decision indicates the actual act of negligence arose from the surgery in Indiana which has a two year statute of limitation with Kentucky having a one-year statute.  The lawsuit was filed in Kentucky on the eve of the one year Kentucky SOL (statute of limitation), and the trial court ruled nearly a half-year prior to the two-year SOL for Indiana.  Nothing was said in this opinion whether they was concurrent or subsequent filing in Indiana, and one can clearly understand the fight to stay in the Commonwealth to avoid the harsh and nearly insurmountable obstacles to recovery through the Indiana medical malpractice system.  Thus, the results might not be so harsh as originally suspected if there was concurrent filing in Kentucky and Indiana.  And, this my friends is why medical malpractice prosecution and defense is not for the faint hearted, and why the traffic snarls are not the only reason to stay on this side of the river when it comes to medical treatment.

And, of course, these litigants have yet to address the choice of law issues in this one, and will still have to navigate how the office visits and treatment might allow personal jurisdiction over Dr. Nair and Kentuckiana Pain Specialists.

Medical Negligence.  Venue and in personal jurisdiction re Indiana surgery center; Long Arm Statute (interesting read since physicians treated plaintiff in Louisville, but physician performed surgery in Indiana at the Metro Specialty Surgical Center)

Teddy Cooper vs.  Dr. Ajith Nair, M.D.
COA NPO 1/9/2015
Affirming in part, vacating in part and remanding;  Jefferson County

Teddy Cooper and Lori Cooper, his wife, appeal from the order of the Jefferson Circuit Court dismissing their negligence action against Dr. Ajith Nair; Kentuckiana Pain Specialists, P.S.C.; and Metro Specialty Surgery Center, L.L.C. On appeal, the Coopers argue that the trial court erred in determining that Jefferson County was not the proper venue for their claims and that the court lacked in personam jurisdiction over Metro Specialty Surgery Center, a business entity organized under the laws of Indiana and domiciled there. Having reviewed the record and the arguments of counsel, we affirm in part, vacate in part, and remand.

In this case, a Hardin County resident was treated by Dr. Nair at Kentuckiana Pain Specialists for 22 separate visits for low back complaints, but has back surgery in Indiana at the Metro Specialty Surgery Center.  One day before the one-year anniversary of the surgery, Cooper filed suit in Jefferson County against Dr. Nair, Kentuckiana Pain, and Metro Specialty Surgery Center claiming they deviated from the standard of care.  What was not included in the complaint was the basis for jurisdiction over Metro Surgery who raised personal jurisdiction and venue in defense.  It was not disputed that the med-mal claim was based upon the Indiana surgery.

Judge Bisig, Jefferson Circuit Court, dismissed the claims against Metro Surgery for lack of jurisdiction and dismissed the claims against Dr. Nair and Kentuckiana Pain for lack of venue.

Jurisdiction was noted to be a two-step process.   First was jurisdiction authorized under the long arm statute?  Second, does jurisdiction comport with federal due process.

While the Coopers are required to set forth the necessary facts supporting a finding of jurisdiction, they failed to identify to the trial court which of these circumstances was relevant to its  determination. Nor have they offered any basis for the exercise of  personal jurisdiction in their brief on appeal. Instead, the Coopers argue that they are entitled to an opportunity to conduct further discovery since they adduced evidence sufficient to show: that Dr. Nair is an agent of Metro Specialty Surgery Center; that other Kentucky doctors have a relationship with the surgery center; and that the surgery center maintains contact and does business with Kentucky patients. The Coopers contend that the trial court erred by denying them the opportunity to conduct further discovery with respect to these issues.

The Court of Appeals in an opinion written by Judge Combs concluded there was no personal jurisdiction over Metro Specialty Surgery Center.

It is undisputed that Metro Specialty Surgery Center is an Indiana business entity with its principal place of business in Jeffersonville, Indiana. It is not registered with the Kentucky Secretary of State, and it is not authorized to conduct business in the Commonwealth. In fact, given the breadth of services that it offers on an outpatient basis, it is specifically prohibited from conducting business here. It is undisputed that the surgery center  as not involved with the care and treatment that Teddy Cooper was offered or  provided in the Commonwealth. The surgery center provided care to him only  in Indiana. The surgery center does not supply goods nor does it contract to supply goods in the Commonwealth. It has no agents or employees working on its behalf in Kentucky. It maintains no office in Kentucky; it does not insure any party in the Commonwealth; it does not own property here; and the Coopers have never alleged that it caused tortious injury here. Under these circumstances, we  conclude that the requirements of our long-arm statute have not been satisfied.

However, with regard to personal jurisdiction over Dr.  Nair and Kentuckiana Pain Specialists, the COA vacated the order of the Jefferson Circuit Court “dismissing the claims asserted by the Coopers against Dr. Nair and Kentuckiana Pain Specialists and remand for further proceedings. However, based upon the foregoing analysis, we affirm the order of the court dismissing the claims asserted by the Coopers against Metro Specialty Surgery Center. ”

[continue reading below for the entirety of the appellate opinion]

Defenses: Failure to revive cause of action upon defendant’s death dismissed as untimely and “equitable estoppel” not help the plaintiff under facts (Allen vs. Emily Conner, COA, NPO 2/28/2013)

Geraldine Allen vs. Emily Conner (now deceased) and Ohio Cas. Ins. Co.
COA NPO 2/28/2013
Affirming
Jefferson County

COMBS, JUDGE: Geraldine H. Allen appeals the April 8, 2013, order of the Jefferson Circuit Court dismissing her personal injury action against her alleged tortfeasor, Emily M. Conner, for failure to revive it within one year of Conner’s death. After our review, we affirm.  Court rejected application of equitable estoppel defense under these facts.

Ephriam McDowell Home in Danville, Kentucky.  "Father of modern surgery" conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809.  Patient sang hymns during procedure, recovered and died in 1842.

Ephriam McDowell Home in Danville, Kentucky. “Father of modern surgery” conducted the first successful abdominal operation when he removed 22 pound ovarian cyst in 1809. Patient sang hymns during procedure, recovered and died in 1842.

This suit arose from a car collision in which Geraldine Allen sued Emily Conner.  Allen’s attorney gave Conner’s liability insurer an indefinite extension while preparing and submitting a demand; thus no attorney was retained by the Ohio Cas./Liberty Mutual adjuster to represent or defend Conner.  However, Conner died, and an estate opened (unbeknown to the Ohio Cas adjuster or the attorney.  After the demand was received and while invesigating the claim, Ohio Casualty/Conner’s attorney discovered Conner had died more than a year previously.  The insurance lawyer filed an answer to the complaint and asserted that her claim was barred by the provisions of Kentucky Revised Statute[s] (KRS) 395.278, since an application to revive the action had not been made within one year of Conner’s death. On January 10, 2013, Allen filed a motion to revive the action and requested leave to file an amended complaint that included allegations against Ohio Casualty for unfair claims settlement practices and violations of Kentucky’s Consumer Protection Act.

When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

If an action is not revived against the administrator of the When a party to litigation pending in a Kentucky court dies, the action is abated – unless and until the action is revived by substituting the decedent’s representative. The provisions of KRS 395.278 direct that the “application to revive an action . . . shall be made within one (1) year after the death of a deceased party.” (Emphasis added.) KRS 395.278 is “a statute of limitation, rather than a statute relating to pleading, practice or procedure, and the time limit within this section is mandatory and not discretionary….” Therefore, neither a court nor a party may extend the one-year statute of limitations. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky.App. 1989).

Cause of Action. Kentucky is not a “direct action” state. Insurance company not proper defendant in wrongful death claim resulting in dismissal withOUT prejudice (Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co. COA, NPO 2/21/2014)

Estate of Moore vs. Kentucky Farm Bureau Mutual Ins. Co
COA, NPO 2/21/2014 PJ Caperton Affirming in Part, Reversing in Part, and Remanding
Allen County
Affirmed dismissal of wrongful death claim (but without prejudice) asserted against insurer rather than insureds.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

Dr. Ephraim McDowell, Danville,Kentucky marker in front of his home. Picture of home next post.

CAPERTON, JUDGE: The Appellant, Dovie Moore, Administrator of the Estate of Peyton Spencer Green (hereinafter “Moore”), appeals the February 5, 2013, order of the Allen County Circuit Court, dismissing her wrongful death claimagainst the Appellee, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”). Upon review of the record, the arguments of the parties, and the applicable law, we affirm. However, because we also conclude that the dismissal should be without prejudice, we reverse that portion of the order and remand for entry of an order dismissing without prejudice.

COA: Sept. 5, 2014 Minutes ( 797-819): applicability of immunity defenses to claim against state trooper for malicious prosecution; and service on wife not good enough for jurisdiction for default judgment

The Kentucky Court of Appeals announced 23 decisions  on Sept. 5, 2014, with one case published (criminal law).  Our tort report of decisions of interest to Louisville and Kentucky injury attorneys dealing with torts, insurance and civil procedure include: malicious prosecution and applicability of governmental immunities available to arrest by state trooper; and setting aside default judgment when shown no service and thus no jurisdiction on named defendant (wife not count!).

2014.08.Boyle.First PO In West Star.IMG_9938

Another first for Danville, Kentucky. “First US Post Office in the West 1792”. Marker outside of Boyle County Court House.

There was one published case:

802.  Criminal Law;  Search and Seizure
Brandon Spann vs. Commonwealth of Kentucky
Graves County
9/5/2014, Affirming
Capterton, PJ

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (continue reading).

Rule 11 Sanctions: Local counsel must sign pleadings!

You write it!  You sign it.

In this decision, local counsel was sanctioned when hired to assist national collections law firm in a Kentucky court case.  Their “agreement” was no need to sign or appear, but the Court of Appeals thought differently.  The sanction was only $1.00, but it was a sanction; and it’s on the record and official.

Rule 11 sanctions against local counsel for not signing pleadings they prepared.
Persels & Associates LLC v. Capital One Bank
C
OA PUB 2/14/2014 (Presiding Judge Clayton)
Daviess County, Trial Judge Joseph Castlen, III
COA affirmed trial court’s granting of Rule 11 sanctions against defendants arising from debt collection case. Persels was a national law firm and hired local counsel, and trial judge ordered local counsel to show cause why they should not be held in contempt for failure sign pleading and enter an appearance (limited retention of local counsel per agreement did not require them to sign pleading, enter an appearance or attend a court hearing).  The $1.00 sanction was not considered onerous.

CIVIL PROCEDURE – MISJOINDER OF PARTIES: Permissive joinder and misjoinder of parties in claim arising from two closely related car collisions (Hughes vs. Lawrence-Hightchew, COA PUB 12/20/2013)

Civil Procedure (misjoinder, leave to amend)
Hughes v. Lawrence-Hightchew
COA Published 12/20/2013
Vacating and Remanding
COMBS, JUDGE: Teresa Hughes appeals from an order of the Campbell Circuit Court dismissing her personal injury action. The court granted the defendants’ motion to dismiss for misjoinder without leave to amend her complaint. After our review, we vacate and remand for further proceedings. 

On appeal, Hughes contends that the trial court erred by dismissing the complaint. We agree.

Court Costs. Trial Court’s Discretion. Video and transcript of deposition reimbursable; Costs of Trial Exhibits Reimbursable (Occidental Fire and Casualty Co. vs. Moore COA Not Pub. 9/6/2013)

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Court costs included transcript and video of same deponent and costs of trial exhibits.  COA affirmed both awards by the trial judge.

Depositions.  The award of costs to the prevailing party is within the discretion of the trial court. Lewis v. Charolais Corp., 19 S.W.3d 671 (Ky. App. 1999).  Costs are recoverable for depositions “whether taken stenographically or by other than stenographic means.” This means the costs for the original written and videotaped depositions are recoverable.

Exhibit costs.  Occidental also claims that Moore’s counsel is not entitled to recover the costs for trial exhibits. KRS 453.050 states in relevant part: The bill of costs of the successful party shall include, in addition to other costs taxed, the tax on law process and official seals, all fees of officers with which the party is chargeable in the case, postage on depositions, the cost of copy of any pleading or exhibit obtained, the cost of any copies made exhibits and the allowance to witnesses, which the court may by order confine to not more than two (2) witnesses to any one (1) point.  This statute specifically allows for the recovery of the costs related to exhibits; therefore, there is no abuse of discretion or error.

Civil Rules: Liberal construction of pleadings followed to do substantial justice. Cardwell vs. Miller, COA, NotPublished, 3/1/2013

Liberal construction of pleading rules.  CR 8.01

CARDWELL (WILLIAM A.) VS. MILLER (REX), ET AL.
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND TAYLOR (CONCURS)
2012-CA-000400-MR
NOT TO BE PUBLISHED
BELL

DIXON, JUDGE: William A. Cardwell appeals an order of the Bell Circuit Court denying his motion for leave to file an amended complaint and dismissing his civil action. After careful review, we find that dismissal was premature; accordingly, we reverse and remand this matter for further proceedings in the trial court.

Pursuant to CR 8.01(1), the complaint must contain, “a short and plain statement of the claim showing that the pleader is entitled to relief and . . . a demand for judgment for the relief to which he deems himself entitled.” It is well-settled that technical precision “is not necessary to state a cause of action[.]” Cincinnati, Newport & Covington Transp. Co. v. Fischer, 357 S.W.2d 870, 872 (Ky. 1962). “The true objective of a pleading stating a claim is to give the opposing party fair notice of its essential nature.” Id. In McCollum v. Garrett, 880 S.W.2d 530, 533 (Ky. 1994), the Kentucky Supreme Court advocated a “commonsense” application of the Rules of Civil Procedure:

CR 8.06 requires that ‘All pleadings shall be so construed as to do substantial justice.’ This rule, sometimes called a ‘liberal construction’ rule, requires that a pleading be judged according to its substance rather than its label or form.

A negligence action requires a movant to “establish a duty on the defendant, a breach of the duty, and a causal connection between the breach of the duty and an injury suffered by the plaintiff.” Lewis v. B & R Corp., 56 S.W.3d 432, 436-37 (Ky. App. 2001). In the case at bar, Cardwell’s pro se complaint was not artfully drafted, but it plainly alleged that he was injured when the employees of the jail breached the duty of care owed to him by failing to provide medical treatment. Although Cardwell did not set forth the names of the individual Appellees in the body of the complaint, he identified them at the conclusion of his pleading, and each defendant was served with notice of the lawsuit. Indeed, as the Appellees had actual notice of the pending litigation, they timely filed an answer and a motion to dismiss.

In Steadman v. Gentry, 314 S.W.3d 760, 762 (Ky. App. 2010), this Court explained:

Commencement of an action requires the filing of a complaint and the good faith issuance of a summons . . . based on the allegations contained in the complaint. The statute of limitations runs until a summons is actually issued.

Id. at 762 (internal citations and quotation marks omitted).

We are mindful that Cardwell initiated this action as a pro se litigant.

Cardwell filed his complaint and summonses were issued in good faith, which tolled the statute of limitations. Id. Pursuant to CR 15.01, leave to file an amended complaint “shall be freely given when justice so requires.” Based upon the circumstances of this case, we are simply not persuaded that the Appellees would have been misled or prejudiced if the court had allowed Cardwell to file an amended complaint after he retained counsel. It is well-settled that the civil rules “should be applied to provide for a just determination on the merits, rather than to use a technicality to work a forfeiture.” West v. Goldstein, 830 S.W.2d 379, 384 (Ky. 1992). We conclude the trial court erred by dismissing Cardwell’s cause of action; consequently, we reverse and remand this matter for further proceedings consistent with this opinion.

For the reasons stated herein, the order of the Bell Circuit Court is reversed and remanded.

For full text of decision, see below.

Download (PDF, 87KB)

Standard of Review: For appellate court in reviewing trial courts application of statute of limitations

Statute of Limitations Ruling by trial court.  A question of law, and when within the context of applying the SOL in a UIM context a question of contract interpretation, too. Review on appeal:

From Hill v. State Farm, COA, Pub., 7/6/2012

STATUTE OF LIMITATIONS RULING:

“‘Whether an action is barred by the statute of limitations is a question of law[,]’” which an appellate court reviews de novo. Ragland v. DiGiuro, 352 S.W.3d 908, 912 (Ky.App. 2010) (quoting Cuppy v. Gen. Acc. Fire & Life Assur. Corp., 378 S.W.2d 629, 631 (Ky. 1964)). We review a trial court’s grant of summary judgment to “determine whether the trial court correctly found that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law.” Combs v. Albert Kahn Assoc., Inc., 183 S.W.3d 190, 193-94 (Ky.App. 2006) (citation omitted).

INTERPRETATION OF INSURANCE POLICY:

“Interpretation and construction of an insurance contract is a matter of law for the court.” Kemper Nat’l Ins. Cos. v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002) (citations omitted).

A policy of insurance is to be construed liberally in favor of the insured, and if, from the language, there is doubt or uncertainty as to its meaning, and it is susceptible to two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted.Id. at 874 (quoting St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 227 (Ky. 1994)).

Section 5, Item 2.d in the State Farm contract precludes a right of action against State Farm for “underinsured motor vehicle coverage unless such action is commenced not later than two (2) years after . . . the last . . . reparation payment made by any reparation obligator[.]” Here, the accident occurred in 2006 but the last personal-injury protection (PIP) payment was received September 25, 2007. Therefore, Hill had until September 25, 2009, to commence an action against State Farm in order to comply with the contractual limitations period.

While State Farm did not define “commence” in its contract, the commonly accepted definition of “commence” in Kentucky jurisprudence is found in CR1 3.01, which provides that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons[.]” KRS2 413.250 further states that an action is commenced “on the date of the first summons or process issued in good faith from the court[.]”

AND NOW HOW DOES AMENDING THE COMPLAINT AFFECT THIS?

That being said, these definitions of “commence,” as well as use of the word in State Farm’s contract, apply to original complaints, which are distinguishable from amended complaints. For original complaints, CR 4.01 explains that “[u]pon the filing of the complaint . . . the clerk shall forthwith issue the required

summons[.]” Yet, no comparable rule exists for amended complaints. Bradford v.

Bracken County, 767 F.Supp.2d 740, 751 (E.D.Ky. 2011) (citations omitted). In the present case, Hill was required to file a motion for leave to amend her complaint because she was seeking to add a new defendant. Amended complaints are governed by CR 15.01, which provides, in part:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Although no responsive pleading had yet been filed by State Farm, it would be illogical to allow a party to amend a complaint to add a new party without leave of the court. See Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054, 1069 (6th Cir. 1995) (“If we accept this interpretation of [Federal] Rule 15(a), a plaintiff could always add a new party, at any point in the litigation, without court permission.”).

State Farm argues that for purposes of the contract, Hill’s complaint was not commenced until the trial court granted her motion and issued the summons. However, Hill’s motion for leave to amend was filed four days before the limitations period expired, even though the motion was not heard or granted until after the period had run. Hill had no control over when the trial court’s schedule would permit her motion to be heard. Since amended complaints that add new parties are procedurally different from original complaints in requiring leave of the court, a strict application of the definition of “commence” would be prejudicial to Hill. Thus, we hold that filing the motion for leave to amend and attaching the amended complaint adding State Farm as a party, given that the trial court subsequently granted the motion, was sufficient to commence the action for purposes of the limitations period in State Farm’s contract.

Moreover, the linchpin in determining when a party would be prejudiced if required to defend a case on its merits is notice, which State Farm received before the period expired. Nolph v. Scott, 725 S.W.2d 860, 862 (Ky. 1987) (citing Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 2385, 91 L.Ed.2d 18 (1986)). The record indicates that counsel for State Farm was served by mail with Hill’s motion for leave to amend her complaint and an attached copy of the amended complaint on September 18, 2009, three days before the motion was filed with the clerk and a week before the contractual limitations period expired. As a result, we find that State Farm was put on notice of the pending action and would not be prejudiced in having to defend the case on its merits.

We further note that while limitations periods and promptness in filing are critical aspects of the judicial system, to bar Hill’s claims for reasons beyond her control after she exercised due diligence would be unfair. See Nanny v. Smith, 260 S.W.3d 815, 818 (Ky. 2008) (“under the unique facts presented here, we are simply deeming done what should have been done per CR 4.01 by recognizing an equitable tolling of the statute of limitations.”); Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005) (holding that equitable tolling is appropriate in

circumstances that are beyond the party’s control when the party has exercised due diligence and is clearly prejudiced). But see Steadman v. Gentry, 314 S.W.3d 760 (Ky.App. 2010) (holding that the statute of limitations period should not be tolled when defendant’s motion to amend was granted four months before limitations period expired but defendant waited seven months after period expired to ensure summons was issued).

Here, Hill exercised due diligence and cannot be expected to foresee exactly when her motion for leave to amend would be heard. Thus, we hold that filing a timely motion for leave to amend and attaching an amended complaint while also providing notice to the defending party is sufficient to timely commence the action against State Farm. For the foregoing reasons, the Boone Circuit Court’s grant of summary judgment to State Farm is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

Bifurcation of issues (separate trials) ordered on the morning of trial affirmed on appeal (Calhoun v. Prevence, COA, Pub., 6/22/2012)

Ordering separate trials, aka bifurcation, is a practice often applied in bad faith and underinsured motorist claims (no Coots advance).

In this COA decision, bifurcation was applied in a different context, and I thought the standards outside the usual venue might be useful to know and apply:

528.  TORTS. AUTOMOBILE COLLISION. BIFURCATION.
CALHOUN (MARY B.), ET AL.
VS.
PROVENCE (CHARLES E.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-001282-MR
2010-CA-001348-MR
TO BE PUBLISHED
LAUREL

STUMBO, JUDGE: Mary C. Calhoun (“Mrs. Calhoun”) and Leslie D. Calhoun (“Mr. Calhoun”) appeal from a Judgment of the Laurel Circuit Court reflecting a jury verdict in favor of Mrs. Calhoun in her action to recover damages arising from an automobile accident. She argues that the trial court erred in bifurcating the trial, failing to grant a directed verdict, failing to grant a new trial on the issue of causation, and prohibiting the introduction of the at-fault driver’s criminal charges. Cross-appellant Legend Motors, d/b/a Legend Suzuki, argues that the court erred in failing to conclude that it did not own the vehicle operated by the at-fault driver, and that the purchaser’s insurer provided primary insurance coverage as a matter of law. We find no error, and accordingly affirm the Judgment on appeal.

The first phase resulted in a directed verdict in favor of the Calhouns against Provence on the issue of liability and an order overruling the Calhouns’ motion for a directed verdict on the issue of whether the accident caused Mrs. Calhoun’s injuries. The jury returned a verdict against Mrs. Calhoun on the issue of comparative negligence and awarded damages as follows: 1) past medical expenses: $1,289.00; 2) past pain and suffering: $600.00; 3) future pain and suffering: none; 4) lost wages: $1,800.00; and 5) vehicle damage: $3,200.00. The jury denied Mr. Calhoun’s claim for loss of consortium and returned a verdict in favor of Provence on Mrs. Calhoun’s claim for punitive damages.

At the close of phase 2, the trial court directed a verdict in favor of Legend Suzuki and Yaden’s Auto Sales on the Calhouns’ claim of negligent entrustment. It denied the motion of Kentucky Auto Exchange for a directed verdict. The matter went before the jury, which returned a verdict in favor of Mrs. Calhoun and against Kentucky Auto Exchange on the issue of negligent entrustment. The jury apportioned liability as follows: 1) Charles E. Provence, II: 48%; 2) Mrs. Calhoun: 10%; and 3) Kentucky Auto Exchange: 42%.

A Judgment was rendered which reflected the verdicts, with credit given for basic reparations benefits payable pursuant to KRS 304.39-060(2)(a). The Calhouns’ motions for a Judgment Notwithstanding the Verdict and New Trial were overruled, and this appeal followed.

COURT’S ANALYSIS ON THE BIFURCATION ISSUE:

Extensive discovery was conducted and the trial court rendered an Order bifurcating the proceedings. The first phase of the trial was conducted to determine Provence’s liability, if any, as well as Mrs. Calhoun’s comparative negligence and damages. At the second phase, the claims against Legend Suzuki and Yaden’s Auto Sales would be tried. These claims included negligent entrustment, negligent hiring, retention and supervision, and apportionment among all parties.

The first phase resulted in a directed verdict in favor of the Calhouns against Provence on the issue of liability and an order overruling the Calhouns’ motion for a directed verdict on the issue of whether the accident caused Mrs. Calhoun’s injuries. The jury returned a verdict against Mrs. Calhoun on the issue of comparative negligence and awarded damages as follows: 1) past medical expenses: $1,289.00; 2) past pain and suffering: $600.00; 3) future pain and suffering: none; 4) lost wages: $1,800.00; and 5) vehicle damage: $3,200.00. The jury denied Mr. Calhoun’s claim for loss of consortium and returned a verdict in favor of Provence on Mrs. Calhoun’s claim for punitive damages.

At the close of phase 2, the trial court directed a verdict in favor of Legend Suzuki and Yaden’s Auto Sales on the Calhouns’ claim of negligent entrustment. It denied the motion of Kentucky Auto Exchange for a directed verdict. The matter went before the jury, which returned a verdict in favor of Mrs. Calhoun and against Kentucky Auto Exchange on the issue of negligent entrustment. The jury apportioned liability as follows: 1) Charles E. Provence, II: 48%; 2) Mrs. Calhoun: 10%; and 3) Kentucky Auto Exchange: 42%.

A Judgment was rendered which reflected the verdicts, with credit given for basic reparations benefits payable pursuant to KRS 304.39-060(2)(a). The Calhouns’ motions for a Judgment Notwithstanding the Verdict and New Trial were overruled, and this appeal followed.

The Calhouns first argue that the trial court committed reversible error in bifurcating the proceedings. Directing our attention to CR 42.02, the Calhouns note that a trial court shall order separate trials if it determines that such trials “will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy[.]” The Calhouns argue that under the facts at bar, a bifurcated proceeding would not be conducive to expedition and economy, and that the trial court did not determine that two trials “will avoid prejudice.” Rather, the Calhouns maintain that in bifurcating the proceeding, the court merely opined the trial would be more efficient and “may” be less potentially prejudicial. Additionally, the Calhouns contend that the court made no indication of what the prejudice would be, nor which party would be prejudiced. In sum, the Calhouns argue that the bifurcation was not supported by the record and the law, that it resulted in conflicting verdicts, and that it was manifestly arbitrary, unfair, unreasonable and not supported by sound legal principles.

We have closely examined the record and the law on this issue, and find no error. CR 42.02 states that,

“[i]f the court determines that separate trials will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy, it shall order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims,counterclaims, third-party claims or issues.”

Accordingly, separate trials shall be conducted if the court determines that they will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy. In the matter at bar, the trial court stated as its basis for bifurcation its concern that the introduction of Provence’s criminal history and driving record could prejudice the proceedings against the remaining defendants if all of the claims were adjudicated in a single proceeding. In granting the defendants’ motion for bifurcation, the court held that bifurcation 1) would be cleaner, 2) the trial would be more efficient, 3) the proceedings may be less prejudicial and 4), the plaintiffs would not be prejudiced by bifurcation.

We are not persuaded by the Calhouns’ contention that the trial court’s basis for bifurcating the proceeding was unsupported by the law. CR 42.02 not only allows, but requires bifurcation upon the court’s finding that separate trials will be convenient, will avoid prejudice or will be expeditious. It is noteworthy that the language utilized in the civil rule is disjunctive; that is to say, the word “or” rather than “and” is used. To support the conclusion that bifurcation is warranted, the trial court need only determine either that separate trials will be convenient, or will avoid prejudice or will be expeditious and economical. In the matter at bar, the Laurel Circuit Court determined that separate proceedings would be more efficient. This finding, taken alone, is sufficient to support the court’s determination that bifurcation was warranted. As the Calhouns properly acknowledge, a trial court has broad discretion in ruling on a motion to bifurcate. Island Creek Coal Company v. Rodgers, 644 S.W.2d 339 (Ky. App. 1982). Such a decision will be overturned only if it constitutes an abuse of discretion, which is found where the decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). We do not conclude that the decision at issue constitutes an abuse of discretion and accordingly find no error on this issue.

The Calhouns also argue that the timing of the bifurcation, the morning of trial, was prejudicial because it required a substantial reorganizing of Appellants’ order of proof. While this court believes that an earlier decision on the bifurcation issue would have been preferable, we cannot say that the trial court abused it wide discretion on the issue.