COAKY Minutes: April 19, 2013 — Issues of professional nonlawyer negligence; directed verdicts and JNOV; statute of limitations and PIP carrier’s designation of payments problems; post-McIntosh distractions deny another claimant a jury trial; judicial estoppel’s “oooh I like to sidestep”

Published and Unpublished Decisions for COAKY for April 19, 2013

Click here for this week’s COA minutes and decisions
No. 375-415;  41 decisions; 8 decisions “To Be Published”
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This week the following issues were addressed by COAKY:

Professional negligence claim against non-lawyer for preparation of a trust agreement that cost the heirs lots of money.

Motion for directed verdict and judgment notwithstanding verdict (JNOV).

Statute of limitations from MVRA (car accident) runs from last PIP payment runs afoul from designation by insurer of medical payments as PIP first, then Medpay, which messed with the running of the statute.

Car accident case looked at causation in negligence claim, plus some Daubert issues with accident reconstructionist and toxicologist.

Another post-McIntrosh retreat into the folds of open and obvious dangers from an outdoor natural hazard.  Distractions, distractions, distractions, continue to distract the court in their analysis in a world intent on denying claimants of their jury trials and substitute a single judge’s judgment in lieu of the collective wisdom of a jury from the community.  Ouch.  Whither goes SCOKY, will COAKY follow. Methinks not.

Judicial estopped and the obvious corollary causes some consternation when litigant seeks to change their positions.  Eg., Judicial estoppel generally operates to “preclude[ ] a party from assuming a position in a legal proceeding which is inconsistent with one previously asserted where the inconsistency would allow a party to benefit from deliberate manipulation of the courts.” 28 Am. Jur. 2d Estoppel and Waiver § 34 (2004). And, a corollary rule specifically recognizes that “parties to . . . agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, in the absence of fraud, inadvertence, or mistake.” 31 C.J.S. Estoppel and Waiver § 200 (2008).

PUBLISHED DECISIONS –

376.  PROPERTY LAW.
MAYS (TERRY), ET AL. VS.PORTER (LIDDIA)
OPINION AFFIRMING

MOORE, JUDGE: Terry and Brenda Mays appeal the judgment of the Boyd Circuit Court finding that the real property transfer to them was the result of undue influence. After a thorough review of the record, we affirm.

382. CRIMINAL LAW
REILLY (CHARLES R.) VS.COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING

THOMPSON, JUDGE: Charles R. Reilly appeals the denial of his motion to enter the deferred prosecution program provided for in KRS 218A.14151. He contends that the circuit court had authority to decide that the prosecutor’s reasons for denying deferred prosecution were not substantial and compelling and that deferred prosecution should have been ordered. We conclude that Reilly’s interpretation of KRS 218A.14151 is erroneous and would render the statute unconstitutional under the separation of powers doctrine. For those reasons, we affirm.

383.  TORTS. PROFESSIONAL NEGLIGENCE. MOTION FOR DIRECTED VERDICT AND JNOV
ESTATE OF MABEL C. MOLONEY VS. BECKER (JOHN D’ARCY)
OPINION AFFIRMING

VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm.KRE3 403 provides that relevant evidence may be excluded by the trial court “if its probative value is substantially outweighed by the danger of undue prejudice[.]” Here, since the jury found John’s actions to be negligent, we fail to appreciate any prejudicial effect his testimony regarding prior work for Mabel may have had on the jury. The jury inferred from the evidence that John’s negligence was not a substantial factor in causing injury to the Estate. The Estate fails to explain how John’s testimony had any prejudicial effect on that outcome.

The judgment and order of the Bracken Circuit Court are affirmed. ALL CONCUR.

389. ARBITRATION.
KINDRED NURSING CENTERS LIMITED PARTNERSHIP, ET AL. VS. LEFFEW (JERRY), ET AL.
OPINION AFFIRMING

ACREE, CHIEF JUDGE: Kindred Nursing Centers, LP2 appeals the Mercer Circuit Court’s denial of its motion to compel arbitration. We agree with the circuit court that the arbitration agreement upon which Kindred Nursing Centers relies is not valid. We affirm.

405. CRIMINAL LAW
LEMASTER (CHARLES) VS.COMMONWEALTH OF KENTUCKY
OPINION DISMISSING

COMBS, JUDGE: Charles Lemaster appeals the order of the Boyd Circuit Court that revoked his probation. Because Lemaster is a fugitive at large, we must dismiss the appeal.

409. MVRA. STATUTE OF LIMITATIONS. PIP CARRIER’ DESIGNATION OF PAYMENTS BETWEEN PIP AND MED PAY
COLE (SUSAN) VS.FAGIN (KEVIN), ET AL.
OPINION REVERSING

MOORE, JUDGE: Susan Cole appeals from the Madison Circuit Court’s summary judgment in favor of Appellees, Kevin Fagin and Grange Mutual Casualty Company, which it entered on the basis of the statute of limitations. Upon review, we reverse.

Both Grange and Fagin advanced the argument that Cole had received $3,976.57 in Med Pay benefits instead of BRBs; the last date for Cole to file any tort or BRB recovery action was therefore two years after July 1, 2009; and, consequently, that the suit that she filed on October 13, 2011 was untimely. In support, Grange contended that it had the option of paying Cole’s medical expenses from either the $5,000 in Med Pay coverage provided in Cole’s insurance policy or the $10,000 in BRB coverage that was imputed into her policy by Kentucky law because nothing in Cole’s policy prohibited it from doing so. Also, it asserted that Cole “raised no objection” to its decision to characterize its reimbursements to Cole as Med Pay, and that Cole was therefore “estopped” from “re-characterizing” those payments as BRBs.

Furthermore, allowing an insurer to apply medical expenses toward Med Pay coverage, when those expenses could also have been applied toward BRBs, would be fundamentally at odds with the concept of “no-fault” in Kentucky. A provider of Med Pay benefits may typically file a subrogation claim directly against a tortfeasor to recover the amount of Med Pay benefits paid to its insured. Lawson v. Helton Sanitation, 34 S.W.3d 52, 60, note 5 (Ky. 2000). However, as to any insurer or party other than a reparations obligor, the right of subrogation is derivative of the right of the injured person. State Auto. Mut. Ins. Co. v. Empire Fire & Marine Ins. Co., 808 S.W.2d 805, 806 (Ky. 1991). Inasmuch as Cole has no right to recover her $3,976.57 in accrued medical expenses from Fagin under the MVRA, her carrier, Grange, has no right of subrogation against Fagin for that amount. As such, Grange’s attempt to characterize its payments to Cole as Med Pay rather than BRB was at best a self-defeating exercise. At worst, it was an impermissible attempt by Grange to give itself a legal remedy directly against Fagin that is prohibited by statute.

However, we find no inconsistencies between Lawson, Stull, and the result we have reached. Ultimately, the Courts in Lawson and Stull both

4 As noted in Lawson, 34 S.W.3d at 55, the specific provision at issue appeared in a policy from Kentucky Farm Bureau Mutual Insurance Company. It stated:

Part B—Medical Payments Coverage shall be excess insurance over any Personal Injury Protection benefits paid or payable but for the application of a deductible under Personal Injury Protection Coverage because of bodily injury sustained by an Insured.

determined that BRB coverage preceded Med Pay coverage. The Court in Lawson was not presented with and did not address the question of whether the MVRA (as opposed to a contract) required BRB to be exhausted before Med Pay. And, to the extent that this question was raised in Stull,5 Stull undermines Grange’s argument because it emphasizes that Kentucky courts take a narrow view of an insurer’s attempt to “‘game the system’ by arbitrarily designating payments as [BRB] or MedPay,” Id. at 358, and further states in broad terms: “[W]e agree that all PIP benefits must be paid before an insurer can disburse MedPay benefits.” Stull, 374 S.W.3d at 357 (emphasis added).

CONCLUSION

For these reasons, the order of the Madison Circuit Court is REVERSED.

414.  WORKERS COMPENSATION
WATKINS (KEVIN A.) VS.KOBE ALUMINUM, ET AL.
OPINION AFFIRMING

LAMBERT, JUDGE: Kevin A. Watkins has petitioned this Court for review of the July 30, 2012, opinion of the Workers’ Compensation Board (the Board) vacating in part the opinion, award, and order of the Administrative Law Judge (the ALJ) and remanding the case to the ALJ for further findings related to the 20% impairment rating assigned by Dr. Colin Looney. Watkins contends that the Board exceeded its authority in making inferences from the evidence and erroneously directed the ALJ to perform an analysis of the American Medical Association (AMA) Guides. We disagree with Watkins that the Board acted erroneously or exceeded its authority; hence, we affirm the Board’s decision.

TORT REPORT

383.  TORTS. PROFESSIONAL NEGLIGENCE. MOTION FOR DIRECTED VERDICT AND JNOV
ESTATE OF MABEL C. MOLONEY VS. BECKER (JOHN D’ARCY)
OPINION AFFIRMING
PUBLISHED.

409. MVRA. STATUTE OF LIMITATIONS. PIP CARRIER’ DESIGNATION OF PAYMENTS BETWEEN PIP AND MED PAY
COLE (SUSAN) VS.FAGIN (KEVIN), ET AL.
OPINION REVERSING
PUBLISHED

MOORE, JUDGE: This matter concerns two consolidated appeals of a defense verdict in favor of CSX Transportation, Inc. (CSX), relating to claims of negligence and wrongful death arising from a car accident. Finding no error, we affirm.

384. MVA. NEGLIGENCE. CAUSATION INSTRUCTIONS (ERROR NOT RAISED). DAUBERT AND ACCIDENT RECONSTRUCTIONIST AND TOXICOLOGY REPORT.
BERRY (PEGGY), ET AL. VS.CSX TRANSPORTATION, INC.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
NOT PUBLISHED

THOMPSON, JUDGE: James Carter was allegedly injured when he slipped and fell on ice under a canopy at a Holiday Inn (the hotel) owned and operated by Bullitt Host, LLC. Carter appeals the dismissal of his case by summary judgment. We determine that Bullitt Host did not owe Carter a duty to protect him from an open and obvious natural hazard and affirm.

396. PREMISES LIABILITY.  DUTY AND OPEN AND OBVIOUS CONDITIONS.  ANOTOTHE POST-MCINTOSH DECISION.
CARTER (JAMES) VS.BULLITT HOST, LLC
OPINION AFFIRMING

THOMPSON, JUDGE: James Carter was allegedly injured when he slipped and fell on ice under a canopy at a Holiday Inn (the hotel) owned and operated by Bullitt Host, LLC. Carter appeals the dismissal of his case by summary judgment. We determine that Bullitt Host did not owe Carter a duty to protect him from an open and obvious natural hazard and affirm.

McIntosh illustrates when an invitee is foreseeably distracted. The Court ruled it was foreseeable to expect that a paramedic focusing on caring for a patient while rushing to the emergency room entrance would be distracted and not notice the open and obvious danger of a raised curb, or would ignore or forget this known risk, and be injured. McIntosh, 319 S.W.3d at 393-394.

403.  JUDICIAL ESTOPPEL.
CLAY (ANTONIO) VS.MAGGARD (TODD), ET AL.
OPINION AFFIRMING

TAYLOR, JUDGE: Antonio Clay brings this appeal from a January 27, 2012, Opinion and Order of the Franklin Circuit Court granting Todd Maggard, ToddMaggard in his official capacity as Kentucky State Police Officer; Ryan Gosser, Ryan Gosser in his official capacity as Kentucky State Police Officer, Rodney Brewer, as Commissioner of the Kentucky State Police, Commonwealth of Kentucky, and the Kentucky State Police’s motion for summary judgment and dismissing Clay’s complaint in its entirety. We affirm.

Judicial estoppel generally operates to “preclude[ ] a party from assuming a position in a legal proceeding which is inconsistent with one previously asserted where the inconsistency would allow a party to benefit from deliberate manipulation of the courts.” 28 Am. Jur. 2d Estoppel and Waiver § 34 (2004). And, a corollary rule specifically recognizes that “parties to . . . agreements entered into in the course of judicial proceedings are estopped from taking positions inconsistent therewith, in the absence of fraud, inadvertence, or mistake.” 31 C.J.S. Estoppel and Waiver § 200 (2008).

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