Case Notes: Masterson vs. Siemens Industry, Inc., COA NPO 10/31/2014

An interesting read on the complexity of multiple issues and need to keep on your toes in a car accident case with issues involving causation, pre-existing, burdens, expert testimony, laying foundation for medical bills, vicarious liability, burdens, and more.

Masterson vs. Siemens Industry, Inc.
COA Not Published 10/31/2014; Affirming in part, reversing in part (Jefferson County, J. McDonald)

In this nonpublished decision by the Kentucky Court of Appeals, a multitude of issues were addressed within the context of a motor vehicle collision personal injury claim. We had a defense expert versus a treating physician,  introduction and proof of the medical bills, causation and pre-existing conditions, vicarious liability,  motion for a new trial and the application of an affirmative defense the sudden emergency doctrine.

Case Notes: Watch out for the 1 year Statute of Limitations and Premises Liability – Landel vs. The Kroger Company (COA NPO 1/16/2015)

Not actual parking lot in this case.  Used solely for illustrative purposes.

Not actual parking lot in this case. Used solely for illustrative purposes.

The one-year state of limitations for most torts may be the law, and may work in many cases, but it can be way too short in this era of trying to figure out who the proper party is in this complex world of hide the ball from the Plaintiff.  The recent Court of Appeals’ decision in Landel vs. Krogers out of Russell County demonstrates this in relationship to whose parking lot is it anyway.

In this case, Vickie Landel was a Kroger customer who fell and injured herself in the parking lot.  She filed suit against Krogers since it was the parking lot outside of the Krogers’ store.  She fell on March 10, 2011, and filed her original complaint on November 2, 2011, but sought to amend the complaint to add the shopping center on March 21, 2012 – just eleven days after the one year anniversary and the expiration of the statute of limitation.  The shopping center obtained summary judgment dismissing the complaint against it for untimely filing (SOL), and Krogers obtained a dismissal of the complaint since it had no duty over the parking lot.

The plaintiff Landel claimed she did not know the identity of the shopping center, but Krogers had notified her by letter that the shopping center was responsible and provided her a copy of the lease.

Before discussing the issue of tolling as raised by the plaintiff in this case, let us take a look at some lessons to be learned in this case and those of a similar nature.

The identity of the “real” plaintiff can be difficult in the commercial context, and the identification of the real party can be fatal.  Most Krogers’ stores, however, have the actual name of the owner of the store location in black letters on the window near the door.  The name of the entity can be confirmed at the Secretary of State for the proper name for the style and the proper person for service.  However, this does not get you past possible problems, such as a the dangerous condition of the floor was the work of a vendor (eg., the Brown Hotel case and indemnity), or the mats were placed and cleaned by a contractor, or as in this case the parking lot is not the store’s responsibiilty.    The solution, unfortunately, is “fast filing with fast followup” since delay and deny and do nothing by the defendant does not inure a benefit to the plaintiff.

Some useful techniques for getting around this improperly denominated party defendant are:  correcting a misnomer “, and CR 15.03 involving relation back of amendments (eg., nexus between corporations and/or subsidiaries and the relating back (An amended pleading that changes or adds defendants only relates back to the filing of the original pleading when (1) the claim in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the new party received notice of the institution of the action so that he will not be prejudiced in asserting his defense; and (3) the new party knows or should have known that without the mistake concerning identity, the action would have been brought against him. CR 15.03. party relates back.”  Within this context, I would have suspected that Krogers would have notified it lessor of the lawsuit (and thus notice under 15.03(2)(a) who would have know from the filing of the original complaint that they/shopping center would have been the proper party.

However, these outs are not an adequate solution to what I believe are the real problems: a. who they are may not be who you think they are with a name hidden in corporate names, agreements; and b. the insurer/insured may not be forthright about the correct identity of the responsible party (delay has its benefits, especially as the statute’s expiration approaches; and c. the  one-year is just too darn short when you have ten years for written contracts with the defendant usually self-evident, but with defective products made in China and distributed under other’s names).

The solution? Some are file soon, notice the corporate-representative for his/her deposition per CR 30.02(6).  The better solution is a longer statute of limitations with an easier tolling/relation back doctrine to avoid hide the ball and to allow the potential of resolving these cases short of suit.  One year.  Seriously!

For other posts on this blog about the statute of limitations, click here.

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
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).

DEFENSES: Qualified Official Immunity, Ministerial vs. Discretionary, County Roads, Fiscal Court & Road Forman, & Design, repairs and maintenance. Estate of Megan Morris vs. Tony Smith (COA,Published 5/9/2014)

A detailed analysis was undertaken by the Court of Appeals addressing responsibilities and duties of the fiscal court and county road official for the operation and maintenance of county roads within the context of official immunity and individual liability with a focus on discretionary acts (immune) and ministerial acts (not so immune).

421.  Official Immunity.  Ministerial acts vs. discretionary acts.
Estate of Megan Morris vs. Tony Smith
Published, COA, 5/9/2014 from Graves County

ACREE, CHIEF JUDGE: The Estate of Megan Morris, by and through her personal representative, Diane Mobley (the Estate), and Diane Mobley, individually, appeal the August 15, 2012 order of the Graves Circuit Court granting summary judgment to each member of the Graves County Fiscal Court, including the county judge executive, individually, and Danny Travis, the road foreman, individually. The circuit court concluded the Appellees are each cloaked with, and protected by, official immunity. We agree and affirm.

* * *

in June 2007, Megan was one of seven teenagers riding in a car. She was a passenger. It was dark and raining, and the driver failed to negotiate a sharp curve on Dooms Chapel Road. The car struck a tree; Megan died from her injuries. Her estate sued alleging Graves County, the Graves County Fiscal Court, and the Graves County officials listed above were negligent in not providing warning signs at the curve, thus causing Megan’s death,

* * *

 “‘Official immunity’ is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions[.]” Yanero, 65 S.W.3d at 521. If a public officer “is acting in a discretionary manner, in good faith, and within the scope of his employment,” then he or she is entitled to the protections of qualified official immunity. Nelson Co. Bd. of Educ. v. Forte, 337 S.W.3d 617, 621 (Ky. 2011).

[W]hen an officer or employee of the state or county (or one of its agencies) is sued in his or her individual capacity, that officer or employee enjoys qualified official immunity, which affords protections from damages liability for good faith judgment calls made in a legally uncertain environment. Application of the defense, therefore, rests not on the status or the title of the officer or employee, but on the [act or] function performed.

Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (alteration in original) (citations omitted).

Because “qualified official immunity applies only where the act performed by the official or employee” is in its nature discretionary, we must first classify “the particular acts or functions in question” as either discretionary or ministerial. Id. Discretionary acts involve “the exercise of discretion and judgment, or personal deliberation, decision, and judgment.” Yanero, 65 S.W.3d at 522. These acts “require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued.” Haney, 311 S.W.3d at 240.

Conversely, “ministerial acts or functions – for which there are no immunity – are those that require ‘only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.’” Id. (citing Yanero, 65 S.W.3d at 522). The official’s burden to ascertain those fixed and designated facts does not convert a ministerial act into a discretionary one. Upchurch v. Clinton County, 330 S.W.2d 428, 430 (Ky. 1959). Classifying an act or function as discretionary or ministerial is an inherently fact-intensive inquiry necessitating a “probing analysis[.]” Haney, 311 S.W.3d at 240. It must not be made in haste for “few acts are ever purely discretionary or purely ministerial.” Id. Indeed, in carrying out his or her daily tasks, an official often engages in numerous acts, any of which may be classified as ministerial or discretionary depending on “the dominant nature of the act” or function in question. Id. (emphasis in original). With these standards as our guide, we turn to the specific case before us.

* * *

Kentucky law is clear that a fiscal court’s acts regarding improvement of county roads are discretionary. Madison Fiscal Court v. Edester, 301 Ky. 1,  190 S.W.2d 695, 696 (1945) (“[I]t is within the discretion of the fiscal court to determine the road or roads which shall be improved and the time and method of such improvements.”); see KRS 67.080(2)(b)(“[F]iscal court shall . . . , [a]s needed, cause the construction, operation, and maintenance of all county . . . structures, grounds, roads and other property.” (emphasis added)).

* * *

Judicial reasoning cannot turn a blind eye to the practicalities of a fiscal court’s decision-making. There is a cost attributable to the installation of signs and guardrails; discretion in the allocation of taxpayer/road-fund dollars is imperative. Kentucky has long recognized this:

The fiscal court of every county is, in effect, a legislative board, invested with the power by law of making appropriations in cases where the needs of the county require it; and while they may neglect their duties, or omit to improve the roads, or to make other appropriations necessary for that purpose, it is beyond the power of a judicial tribunal to interfere and determine what improvements should be made, and the extent of the expenditure necessary for that purpose. Madison Fiscal Court v. Edester, 301 Ky. 1, 190 S.W.2d at 696 (quoting Highbaught v. Hardin County, 99 Ky. 16, 34 S.W. 706, 707 (Ky. 1896)).

If we adopted the Estate’s argument, we would be fashioning a rule whereby every fiscal court or governing authority in Kentucky would have to conduct an engineering study and implement an engineering judgment as to every curve on every mile of every road in every county in the Commonwealth. And, if the engineering study or judgment found the placement of a warning sign warranted, the fiscal court would have no choice but to comply with that recommendation, regardless of policy considerations, fiscal concerns, and alternate safeguards. Such cannot possibly be the intent of the Department of Highways when it issued 603 KAR 5:050 directing the MUTCD be the guiding standard for the placement and maintenance of traffic control devices in Kentucky.

Again, a ministerial rule “must, at least, be sufficiently specific to restrict significant discretion in its enforcement. That cannot be said here.” Haney, 311 S.W.3d at 243. We are firmly convinced that the act of placing or not placing signs or a guardrail on county roads is a discretionary act on the part of the fiscal court, not a ministerial one.

Such discretion, of course, is not without limitation. One “qualification” of qualified immunity is that the discretionary act be one within the official’s authority. Forte, 337 S.W.3d at 621 (official must be acting “within the scope of his employment” to be entitled to official immunity). The Estate has never made an issue of the Fiscal Court’s authority; in fact, the Estate conceded it. The only other qualification is that the official will not be immune from prosecution if he fails to act in good faith, including his willful failure to act at all. “Once the officer or employee has shown prima facie that the act was performed within the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act was not performed in good faith.” Yanero, 65 S.W.3d at 523. The Estate has not met that burden.

The term “good faith” “is somewhat of a misnomer, as the proof is really of ‘bad faith.’ In fact, in most cases, ‘good faith’ is just a presumption that exists absent evidence of ‘bad faith.’” Sloas, 201 S.W.3d at 475. Bad faith encompasses both an objective and subjective component, and can be shown in one of two ways: (1) that the official “willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive, which requires a subjective analysis[,]” or (2) upon proof that a clearly-established right of the plaintiff was violated, which requires an objective analysis. Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011) (quoting Yanero, 65 S.W.3d at 523).

DEFENSES / INSURANCE: Estoppel to deny coverage by failure to timely raise reservation of rights (Ohio Cas. Co. vs. Wellington Place Council, COA NPO 1/20/2014)

Insurance.  Estoppel to deny coverage.
Ohio Ca. Ins. Co. vs. Wellington Place Council of Co-Owners Homeowners Association
COA NPO 1/10/2014
The COA affirmed the trial court’s determination that the insurance company was estopped from denying coverage by defending without advising insured of a reservation of rights.  Lesson learned here is that counsel retained by an insurance company to defend should be quiet on a reservation of rights issue and not push it.  Should they force the issue rather than allow the passage of time to set up an estoppel, would that a. raise a claim of legal negligence; b. conflict of interest; and/or c. result in an estoppel any way since the retained counsel breached his/her fiduciary duty and potentially saved money for the carrier paying his legal bill.  This would sorely test the three-legged stool (aka tri-partite relationship) of client-lawyer-insurance company.  A discovery can of worms could provide a reason for re-examining this time-honored rule and remember the duties are owed to the insured client and no one else.

DEFENSES: Application of collateral estoppel as defense to legal malpractice and fraud claims (Simpson vs. Chesley, COA NPO 11/27/2013

Legal Malpractice, Breach of fiduciary duty and fraud. Defense of collateral estoppel.
Simpson vs. Stanley M. Chesley
Kenton;  Judge Gregory Bartlett
COA, Not Published 11/27/2013

VANMETER, JUDGE: Appellants1 appeal from a Kenton Circuit Court order granting Appellees’ motion for summary judgment and dismissing Appellants’ claims of breach of fiduciary duty, professional negligence (legal malpractice), and fraud. We agree with the circuit court that Appellants’ claims are barred by the doctrine of collateral estoppel, and affirm its order.

DEFENSES: Statute of limitations applied to legal negligence claim, date of discovery vs. date of occurrence (BDT Products vs. Higgs, Fletcher & Mack, COA NPO 12/13/2013)

Legal Malpractice. Statute of Limitations.
BDT Products, Inc. vs. Higgs, Fletcher & Mack
12/13/2013 COA NPO
Following a careful review, we find the circuit court erred when it concluded that BDT’s legal negligence complaint was timely filed within the applicable one- year statute of limitations. Accordingly, we reverse that portion of the circuit court’s May 24, 2011 order and remand for entry of an order consistent with this opinion (2011-CA-001131). Likewise, we affirm the circuit court’s August 1, 2011 order on statute-of-limitations grounds (2011-CA-001475). Because resolving the cross-appeal is dispositive of all other issues, BDT’s remaining direct appeal, 2011-CA-001088, is denied as moot.

Defenses: Police officer not entitled to qualified official immunity for injuries caused when car being chased crashed and killed passenger (Mattingly vs. Mitchell,

Police vehicle LouisvilleCourt of Appeals affirmed trial court and held that the police chase in this case did not entitle the police officer driver immunity from civil liability as a result of the collision that killed a passenger in the other car and injured another driver. Police office did NOT follow departmental guidelines for commencing and ending the chase.

Decision is pending motion for discretionary review filed by Appellant on 7/18/2013.

Mattingly vs. Mitchell
COA PUB 6/21/2013
Jefferson County
NO. 2012-CA-000083-MR
Affirmed COA decision denying police officer qualified official immunity.

THOMPSON, JUDGE: William Mattingly filed this interlocutory appeal from an order of the Jefferson Circuit Court determining that he was not entitled to qualified official immunity and that a question of fact remained regarding whether Mattingly’s actions were the proximate cause of an accident in which Latonia Mitchell was killed. Daisy Mitchell, as Administrator of the Estate of Latonia Mitchell, (the Estate) cross-appealed from that portion of the court’s order granting summary judgment in favor of Mattingly in his official capacity as a Louisville Metro Police Department Officer and on the Estate’s 42 U.S.C. § 1983 claim. We affirm the circuit court’s determination that Mattingly is not entitled to qualified official immunity in his individual capacity. Because the remaining portions of the circuit court’s order are not subject to immediate appeal, we do not address those issues.

Whatever discretion Mattingly may have had in initiating and continuing a pursuit, it was limited by the Louisville Metro Police Department’s Standard Operating Procedures. As set forth earlier in this opinion, those procedures provide specific directives to its officers when initiating or engaging in a pursuit. The repeated use of the term “shall” establishes that compliance with its provisions involve “merely execution [or nonperformance] of a specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at 522. Mattingly’s pursuit of the BMW constituted an “identifiable deviation from an absolute, certain, and imperative” order. Haney, 311 S.W.3d at 245 (internal quotations omitted). He either violated the procedures or he did not. Under the undisputed facts that Mattingly violated the procedures, the circuit court properly ruled that Mattingly is not entitled to qualified official immunity.


Defenses. Immunity. Coleman vs. Smith, COA, Pub. 9/21/2012


ACREE, CHIEF JUDGE: The narrow issue presented is whether either, or both, of the appellants, Dexter Coleman and Mark Cantrell, is entitled to qualified official immunity. We find Cantrell engaged in a discretionary act and, as a result, may qualify for official immunity. With respect to Coleman, we find he failed to comply with a ministerial directive but, because a genuine issue of material fact exists, summary judgment was premature. Accordingly, for the following reasons, we reverse the circuit court’s June 28, 2011 order denying appellants’ motion for summary judgment on immunity grounds and remand for additional proceedings.

Causes of Action: Third party indemnity

Third party indemnity is always a bothersome concept with terms such as active-passive, primary-secondary, etc. entering into the lexicon.  Recent nonpublished decision entitled Greenwell v. Lowes Home Centers, COA, NPO, 7/27/2012, wrestles with this issue within the context of a collision in the parking lot and third-partying the parking lot owner for contributing to the collision because of the negligent installation of the traffic light (failure to have tether on light which was swinging in the wind at time of collision).

Basic facts is Barlow was injured in collision and sued Greenwell nearly 25 months after the collision.  No indication in decision whether complaint included Lowes, but since this was a third-party claim one can expect Lowes was now added as a party.  Trial court dismissed indemnity claim which was affirmed on appeal.  Greenwell also raised issue of error relating to apportionment and contribution, but these issues were not addressed by the judge in his order which will now be addressed when returned to the trial court.

Greenwell contends that the circuit court erred by dismissing his third-party indemnity claim against Lowe’s. Specifically, Greenwell contends that Lowe’s negligently installed the traffic light by failing to install a tether thereupon and that the wind caused the signal heads on the traffic device to swing, resulting in the obstruction of the traffic light from his view at the time of the accident. Under these facts, Greenwell maintains that Lowe’s was the active tortfeasor, and he was the passive tortfeasor. Thus, Greenwell claims entitlement to indemnity from Lowe’s.

Indemnity is a firmly entrenched principle in our common law and “is available to one exposed to liability because of the wrongful act of another with whom he/she is not in pari delicto [in equal fault].” Degener v. Hall Contracting Corp., 27 S.W.3d 775, 780 (Ky. 2000). Indemnity is an equitable principle and is based upon the theory “that where one party, whose fault is passive or secondary, incurs liability because of another party, whose fault is active or primary, the passive party should be allowed to recover from the active party for the liability paid.” 1 Comparative Negligence Manual § 9:14 (3d ed. 2012). In Kentucky, common law indemnity has been recognized under two “classes of cases”:

The cases in which recovery over is permitted in favor of one who has been compelled to respond to the party injured are exceptions to the general rule, and are based upon principles of equity. Such exceptions obtain in two classes of cases: (1) Where the party claiming indemnity has not been guilty of any fault, except technically, or constructively, as where an innocent master was held to respond for the tort of his servant acting within the scope of his employment; or (2) where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.

Degener, 27 S.W.3d at 780 (quoting Louisville Ry. Co. v. Louisville Taxicab & Transfer Co., 256 Ky. 827, 77 S.W.2d 36, 39 (1934)).

In this appeal, Greenwell asserts he is entitled to indemnity under the second class as “both parties have been in fault … and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.” See Degener, 27 S.W.3d at 780. Greenwell asserts that both he and Lowe’s are atfault or were negligent in causing Barlow’s injury but that Lowe’s negligence is the primary cause of the injury. Consequently, Greenwell alleges that the circuit court improperly rendered summary judgment dismissing his claim of indemnity against Lowe’s. For the foregoing reasons, we are compelled to disagree.

* * *

In this case, if we view the facts most favorable to Greenwell, it appears that Lowe’s contracted with others to construct the traffic light. Despite plans providing for a tether wire on the traffic light, no tether was fixed to the traffic light. On the day of the accident, there was evidence the wind was blowing the traffic light back and forth. Greenwell testified that he never saw the traffic light before the accident. The accident occurred at a four-way intersection which was heavily traveled. Immediately before the accident, Greenwell admitted to seeing the intersection and the traffic in the intersection but asserts he did not see Barlow’s vehicle before he hit it. Greenwell’s brother, a passenger in the vehicle, spotted the traffic light and Barlow’s vehicle seconds before the accident.

Viewing the facts most favorable to Greenwell, the absence of a tether on the traffic light may have been a contributing cause of the accident, and Lowe’s may have been negligent in so constructing the traffic light. If so, both Lowe’s and Greenwell could be considered tortfeasors in pari delicto or active tortfeasors. See City of Louisville v. Louisville Ry. Co., 156 Ky. 141, 160 S.W. 771 (1913). However, under no scenario of provable facts would Greenwell’s purported negligence be degraded to passive thus entitling him to indemnity. See id.

Accordingly, we are of the opinion that the circuit court properly rendered summary judgment dismissing Greenwell’s indemnity claim against Lowe’s.