SC: Discretionary Reviews Pending Before SCOKY – Tort, Insurance Civil Law Cases Only

 

Harlan County Justice Center, Harlan, Kentucky.  Photo from flickr by "OZinOH", a retired librarian who now lives in Australia who takes reallly good photos

Harlan County Justice Center, Harlan, Kentucky. Photo from flickr by “OZinOH”, a retired librarian who now lives in Australia who takes reallly good photos with link to his profile and pics below. https://www.flickr.com/photos/75905404@N00/.

Pending tort, insurance, and civil procedure cases before SCOKY with dates discretionary review granted for each.  These are simply extracts from the published list from the AOC which is current through October 2014.

Miami Management Company v. Bruner, 2012-SC-318-DG
MDR Granted 12/12/2012
Torts. Open and Obvious Doctrine. The issue in this case, arising out of a fall in a restaurant parking lot which had been plowed and salted after a winter storm, involves the applicability of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010).
Oral argument-June 2013

Scott v. Davis, 2013-SC-228-DG and
(Cross-Motion) Davis v. Scott, 2013-SC-682-DG
MDR Granted 9/18/13 & cross motion granted 11/13/2013
Statute of Limitations. Law of the Case Doctrine. Issues include whether the statute of limitations is tolled when the underlying action was dismissed due to the improper assignment of a legal malpractice claim, so as to allow the plaintiff to re-file the action.
Oral argument-August 2014

Sargent v. Shaffer, 2013-SC-111-DG
MDR Granted 12/11/13
Evidence Law. Jury Instructions. Medical Malpractice. Informed Consent. KRS 304.40-320(2). Issue is whether a jury instruction on informed consent in a medical negligence action must contain the duty enumerated in KRS 304.40-320(2).
Oral argument-June 2014

Carter v. Bullitt Host, LLC, 2013-SC-325-DG
MDR Granted 2/12/14
Torts. Personal Injury. Open and Obvious Doctrine. Issues include whether application of the open and obvious doctrine allows for summary judgment in this case, arising out of a fall in an icy hotel parking lot.
Oral argument- October 2014

Sparkman v. CONSOL Energy, 2013-SC-119-DG
CONSOL Energy v. Sparkman, 2013-SC-831-DG
MDR Granted 3/12/14
Civil Procedure. Parties. Standing. Issues include whether the Court of Appeals properly vacated the trial court’s judgment in favor a business entity that was not a named plaintiff.

Kentucky Farm Bureau Mutual Ins. Co. v. Conley, 2013-SC-252-DG
MDR Granted 3/12/14
Civil Procedure. Appeals. CR 59.05. CR 7.02. The issue is whether a timely CR 59.05 motion which does not state grounds is invalid due to the particularity requirements of CR 7.02 and, if so, whether filing of the CR 59.05 motion tolls the time to file an appeal.
Oral argument-September 2014

Beaumont v. Zeru, 2013-SC-489-DG
MDR Granted 4/19/2014
Motor Vehicle Insurance. Statute of Limitations. KRS 304.39-230(6). Issues involve the date of the last basic reparation payment when the last check as reported by the basic reparations obligor to the plaintiff actually was a replacement check for one previously lost by a different payee.
Oral argument-October 2014

Wright v. Carroll, 2013-SC-528-DG
DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT 4/9/14
Torts. Motor Vehicle Accident. Issues include whether, on retrial, plaintiff was entitled to a directed verdict as to defendant trucker’s liability for injuries resulting from the trailer portion of the tractor-trailer striking plaintiff’s vehicle in the proper lane of travel on a two-lane highway.
Decision Dated Oct. 2014 - Click here

Wright v. Ecolab, Inc., 2013-SC-653-DG
MDR GRANTED 6/11/2014
Appellate Procedure. Issues involve whether a premature notice of appeal from an interlocutory decision not containing the necessary CR 54.02 recitations of finality can be salvaged by the “relation forward” rule or entry of a nunc pro tunc order adding the CR 54.02 recitations.
Oral argument-February 2015

Cadle v. Cornett, 2013-SC-538-DG
MDR Granted 6/11/2014
Torts. Negligence. Causation. Superseding Cause. Issues include whether Kentucky’s acceptance of the law of comparative fault has changed the effect of the doctrine of superseding cause, and if so, to what extent.
Oral argument-February 2015

Patton v. Bickford, 2013-SC-560-DG
MDR Granted 6/11/2014
Torts. Negligence. Causation. Qualified Immunity. Issues include whether summary judgment was properly granted based on qualified immunity of school officials and whether suicide is a superseding cause which extinguishes tort liability.
Oral argument-March 2015

State Farm v. Riggs, 2013-SC-555-DG
MDR GRANTED 6/11/2014
Contract. Automobile Insurance. Underinsured Motorist Coverage. Issues include whether an automobile insurance policy provision requiring underinsured motorist claims to be brought within the same time period as tort claims under the Motor Vehicle Reparations Act—two years from the date of the accident or last basic reparations payment, whichever is later—is valid and enforceable.
Oral argument- February 2015

Overstreet v. Kindred Nursing Centers Limited Partnership,
2013-SC-620-DG
MDR GRANTED 6/11/2014
Limitation of Actions. KRS 216.515. Issues include whether KRS 216.515 created a new cause of action or whether the cause of action was one for personal injury, and whether the statute of limitations for personal injury or for a newly established statutory action applies.
Oral argument-March 2015

Nissan Motor Company v. Maddox, 2013-SC-685-DG
MDR Granted 6/11/2014
Torts. Products Liability. Design Defect. Punitive Damages. Issues include whether the plaintiff presented sufficient evidence to warrant a punitive damages instruction where the defendant car manufacturer complied with federal safety standards.

Saint Joseph Healthcare, Inc. v. Thomas, 2014-SC-8-DG
MDR Granted 9/10/2014
Punitive Damages. KRS 411.184. Issues include whether or not physicians whom the hospital alleges are independent contractors are considered as employees of the hospital for the purpose of assessing punitive damages under the provisions of the federal Emergency Medical Treatment and Active Labor Act (EMTALA), whether an award of punitive damages was so excessive as to constitute a denial of federal Constitutional due process, and the interplay between the EMTALA and KRS 411.184.

SC: Pending Grants of Discretionary Review, effective 10/15/2014 (from AOC List)

Court Room in the Harlan County Justice Center, Harlan, Kentucky.

Court Room in the Harlan County Justice Center, Harlan, Kentucky.

Here is the most recently available list of pending grants of discretionary review before the Supreme Court of Kentucky as of Oct. 15, 2015.  The following is the PDF from the AOC’s web site with some annotated highlights of cases involving tort, insurance, civil procedure, and appellate procedure cases.

Download (2014.10.15.DiscretionaryReview.pdf, PDF, Unknown)

SC: October 2014 Discretionary Review Grants – Seven (7)

On October 15, 2014, the Supreme Court of Kentucky granted discretionary review to hear seven (7) cases.  The case number below contains a link directly to the respective case information page maintained by the Administrative Office of the Courts (AOC).  For this month’s complete minutes which includes the denials of discretionary review, then click here.

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – OCTOBER 15, 2014

ESTATE OF MILDRED L. MCVEY V. DEPARTMENT OF REVENUE, FINANCE AND ADMINISTRATION CABINET, COMMONWEALTH OF KENTUCKY
2014-SC-000013-DG FRANKLIN

TOWER INSURANCE COMPANY OF NEW YORK V. BRENT HORN, ET AL.
2014-SC-000015-DG MARTIN

ASBURY UNIVERSITY V. DEBORAH POWELL, ET AL.
2014-SC-000095-DG JESSAMINE

JERRY JAMGOTCHIAN V. KENTUCKY HORSE RACING COMMISSION,ET AL.
2014-SC-000108-DG FRANKLIN

JOHN CHARALAMBAKIS V.  ASBURY UNIVERSITY, ET AL.
2014-SC-000215-DG JESSAMINE

JEFFREY PETTINGILL V. SARA YOUNT PETTINGILL
2014-SC-000456-DGE JEFFERSON

N.J.S. V. C.D.G.
2014-SC-000495-DGE JEFFERSON

SC: September 2014 Discretionary Review Grants – Five

On September 10, 2014, the Supreme Court of Kentucky granted discretionary review to hear five (5) cases.  The case number below contains a link directly to the respective case information page maintained by the Administrative Office of the Courts (AOC).  For this month’s complete minutes which includes the denials of discretionary review, then click here.

CABINET FOR HEALTH AND FAMILY SERVICES V. J.M.G., ET AL.
2013-SC-000797-DG FAYETTE

RUTH ANN SADLER V. BARBARA LOIS VAN BUSKIRK
2013-SC-000809-DG FAYETTE

COMMONWEALTH OF KENTUCKY V. ADRIAN PARRISH
2013-SC-000830-DG JESSAMINE

SAINT JOSEPH HEALTHCARE, INC.,  D/B/A SAINT JOSEPH HOSPITAL V.  LARRY O’NEIL THOMAS, AS ADMINISTRATOR OF THE ESTATE OF JAMES “MILFORD” GRAY, DECEASED, ET AL.
2014-SC-000008-DG FAYETTE

KEVIN ADDISON V. LYDIA ADDISON
2014-SC-000309-DGE HARDIN

SC: August 2014 Grants of Discretionary Review

Ten (10) motions for discretionary review were granted by the Supreme Court of Kentucky for June 2014.  The links to the Supreme Court’s case information page are entered based upon templates, but should the link not work, then please email me AND then try the AOC’s case information pages directly.

Wagner’s Pharmacy, Inc vs. MelissaK. Pennington
2013-SC-000541-DG from Jefferson County
MDR Granted 8/21/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

Lawrence Pate vs. Commonwealth of Kentucky
Franklin County  2013-SC-000558-DG for case info
Bracken County 2013-SC-000559-DG for case info
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

James Overstreet, Adm of Est. of Lula Belle Gordon vs. Kindred Nursing Centers Ltd Partnership
MDR Granted 8/21/2014
2013-SC-000620-DG MERCER

Cassandra Falk v. Alliance Coal Co.
MDR Granted 8/21/14
2013-SC-000655-DG

NISSAN MOTOR COMPANY, LTD., ET AL. V. AMANDA MADDOX
2013-SC-000685-DG LINCOLN

ALLSTATE INSURANCE COMPANY V. CRAIG T. SMITH
CUNNINGHAM, J., WOULD DISPENSE WITH ORAL ARGUMENT
2013-SC-000732-DG JEFFERSON

COMMONWEALTH OF KENTUCKY, ET AL. V. AT & T CORPORATION
SCOTT, J., WOULD HEAR ORAL ARGUMENT
2013-SC-000800-DG JEFFERSON

THE BOARD OF REGENTS OF NORTHERN KENTUCKY UNIVERSITY V.ANDREA WEICKENANNT
2013-SC-000820-DG CAMPBELL

C.D.G. V. N.J.S.
2014-SC-000329-DGE JEFFERSON

INSURANCE (UM): UM Policies. Do they follow the car or the named insured, and are they primary or subject to excess and pro rata provisions? Well, let the Supreme Court decide! (Countryway vs. United Financial Cas. Co., COA 1/24/2014 pending discretionary review)

A heretofore sacred cow rule for uninsured motorist benefits that the uninsured motorist benefits (UM) follows the car  was re-examined with a new rule emanating from the Kentucky Court of Appeals in Countryway Ins. Co. v. United Financial Casualty Co..  However, this decision is not final and is up at the Supreme Court.

The following fact pattern comes across the desk of Kentucky personal injury attorneys frequently on a question of both underinsured and uninsured motorist benefits.

The scenario:  two car collision with the at fault car having no liability insurance leaving injured parties in the other car looking to uninsured motorist benefits for compensation.  Sometimes the car of the driver that was not at fault has UM benefits, sometimes it does not; sometimes the driver is not the owner  and/or a passenger in the car has therir own policy of UM benefits.    But what happens when there is a UM policy covering the vehicle with the non-owner driver or passenger all having UM coverages.  That’s when “other insurance” clauses come into play.  Until today, the UM “followed” the car and/or looked at the “other insurance” clauses which in Countryway resulted in the trial judge pro-rating the policies.  However, the Countryway decision reversed the Warren Circuit Court decision pro-rating the UIM policies and held  the UM policy covering the injured person (eg., UM is first-party coverage) will be deemed primary as a matter of public policy and judicial economy.  Well, don’t go jumping the UM adjusters on this issue just yet,  because the Supreme Court granted discretionary review, and all the insurance lawyers and companies as well as the automobile injury lawyers a little concerned which way the Supreme Court will go on this.

Some practical considerations beyond the legal analysis is that the insured owner of the car who paid for the UM coverage now has claim against his or her policy which may or may not affect underwriting and the insured owner’s  future premiums; and this arises from a collision when she did nothing wrong!   Next, imagine the complications under the follow the car rule and “other insurance” clauses when the coverages are different and the adjuster’s damages assessment also different.  How many adjusters does it take to make a claim go on forever and encourage suit and not settlement?  Any number greater than one.

Cary Grant looking a little perplexed in the movie, Gunga Din.

Cary Grant looking a little perplexed too in the movie, Gunga Din.

Many UM carriers use the “excess” language in their policies which means if two UM policies are deemed  “excess” then you go to pro-rata. Then add the “step down” language to minimum UM limits for second class insureds that Shelter uses, then the math gets a little complicated for some.  Although the Countryway decision does have some logic to it – “you bought it, you got it”, some fail to appreciate that UM and UIM coverages are nothing more than liability insurance purchased to protect yourself and your passengers against the possibility that the negligent vehicle has no or not enough liability insurance.  Thus, if you cut the labels of UM and UIM, you already have another car’s liability insurance being primary which works easily for UIM coverage but breaks down for UM coverage and which runs afoul of the number of cases that attempts treating UIM and UM benefits no differently. [if you can connect those dots in your head and follow my reasoning, then “You’re a better man than I am, Gunga Din!” from Rudyard’ Kipling’s poem Gunga Din.]

I like the “bought it, got it” rule since it’s easy to apply, only one adjuster at a time, and makes sense to the owner of the car who is not crazy about all those people making claims under his/her policy.

Again, the Supreme Court has this one.  Click here for the case information and status of the case at the Kentucky Supreme Court.

Uninsured motorist benefits and priority between two policies
Countryway Ins. Co. v. United FinancialCountryway Ins. Co. v. United Financial Casualty Co. Co.
Warren Cir. Ct., Judge John R. Grise
COA, PUB 1/24/2014, Presiding Judge Allison Jones

The Warren Circuit Court determined that the policies contained mutually repugnant excess coverage provisions and, therefore, damages should be prorated between the two policies. On appeal, Countryway asserts that the trial court should have deemed United’s policy primary because it covered the vehicle involved in the accident. For the reasons more fully explained below, we hold that the policy covering the injured person should be deemed primary to the policy covering the vehicle. Accordingly, we reverse the Warren Circuit Court’s order prorating the coverage.

While we agree with Countryway that Shelter’s underlying logic in favor of a bright-line rule should be adopted with respect to UM coverage, we do not agree that Shelter compels us to follow the same order of priority when dealing with UM coverage as when dealing with general liability coverage. After a review of the applicable statutes and relevant case law dealing with UM coverage, we conclude that because UM coverage is first-party coverage, it should follow the person, not the vehicle, as a matter of priority.

In conclusion, we hold that under Shelter the repugnancy rule and apportionment are no longer applicable where two excess/other insurance UM provisions clash. Instead, the UM policy covering the injured person, in this case, Countryway’s policy, will be deemed primary as a matter of public policy and judicial economy.

 

SC: June 2014 Grants of Discretionary Review – 9 cases

On June 11, 2014, the Supreme Court of Kentucky granted discretionary review to hear nine (9) cases.  The case number below contains a link directly to the respective case information page maintained by the Administrative Office of the Courts (AOC).  For this month’s complete minutes which includes the denials of discretionary review, then click here.

TAMMY DILLARD V. COMMONWEALTH OF KENTUCKY
2013-SC-000425-DG JEFFERSON

NOBE BAKER, INDIVIDUALLY, ETC., ET AL. V. MAGNUM HUNTER PRODUCTION, INC.
2013-SC-000497-DG HARLAN

NORTON HEALTHCARE, INC. V. LUAL A. DENG, FORMERLY JACOB L. AKER
2013-SC-000526-DG JEFFERSON

RON CADLE, INDIVIDUALLY, ETC., ET AL. V. WILMA CORNETT, ET AL.
2013-SC-000538-DG JEFFERSON

HARROD CONCRETE AND STONE CO. V. B. TODD CRUTCHER, INDIVIDUALLY, ETC.,
2013-SC-000549-DG FRANKLIN

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY V. LONNIE DALE RIGGS
2013-SC-000555-DG HARDIN

SHEILA PATTON, AS ADMINISTRATRIX, ETC. V.DAVIDA BICKFORD, ET AL.
2013-SC-000560-DG FLOYD

COMMONWEALTH OF KENTUCKY V. BILLY COX
2013-SC-000618-DG MARION

BRIDGETT WRIGHT V. ECOLAB, INC., ET AL.
2013-SC-000653-DG KENTON

SC: April 2014 Grants of Discretionary Review

Nine (9) motions for discretionary review were granted by the Supreme Court of Kentucky for April 2014.  The links to the Supreme Court’s case information page and the links to the Court of Appeals case information page are entered based upon templates, but should the link not work, then please email me AND then try the AOC’s case information pages directly.

COPPAGE CONSTRUCTION COMPANY, INC. V.SANITATION DISTRICT NO. 1
2013-SC-000122-DG – Kenton County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

COMMONWEALTH OF  KENTUCKY V. MICHAEL YOUNG
2013-SC-000367-DG  – Lawrence County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here for 2011CA000956
COA Case info, and link to decision, if available — click here or 2011CA 000957

BONITA BEAUMONT V. MULUKEN ZERU
2013-SC-000489-DG  – Jefferson County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

REUBEN J. WRIGHT V. KIM CARROLL
2013-SC-000528-DG – Elliott County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

SHERMAN KEYSOR V. COMMONWEALTH OF  KENTUCKY
2013-SC-000531-DG – Graves County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

JAMES KIDD V. COMMONWEALTH OF  KENTUCKY
2013-SC-000608-DG – Lee County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

ADAMS AND ZEYSING, INC.  V. LEXMACK LEASING, INC.,
2013-SC-000654-DG – Scott County
4/9/2014
Appeal dismissed 6/16/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

DAVID MILAM V. COMMONWEALTH OF KENTUCKY
2013-SC-000681-DG – Fayette County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

COMMONWEALTH OF  KENTUCKY V. CHRISTOPHER DUNCAN
2013-SC-000742-DG – Webster County
4/9/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here