COAKY Minutes: April 5, 2013 — Re: “unforeseen situation”, PIP benefit reimbursement, pro se representation

Published and Unpublished Decisions for COAKY
April 5, 2013

Five decisions address tort-related matters.

  •  In Smith v. Bear, COA, Published, the propriety of sole shareholder and owner of an administratively dissolved corporation to defend pro se (not an attorney) was discussed, as well as other matters.
  • In Medlin vs. Progressive Direct Inc. the COA shot down a procedure followed by many insurers of paying the PIP benefits directly to the insured claimant which would enable the claimant to negotiate reductions etc. by requiring an actual medical expense for which to reimburse payment (include the provider on the check or pay the provider directly).  For the record, I think this decision was poorly analyzed and decided by Judge Stumbo and am hopeful and expectant that attorney Sam Aguiar to seek discretionary review to SCOKY rather than allow this case to stand unchallenged.
  • In Carrol v. Wright, COA Pub, a directed verdict on liability was reversed.
  • In two not to be published decisions res judicata was addressed in Smith vs. Lexington-Fayette Urban County Gov’t and “up the ladder” and “independent contractors” were examined in a workers compensation case, Van Meter v. Weber Group, Inc.
  • rom a wilfull trespasser’s removal of limestone; and in

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No. 330-358;  29 decisions; 5 to be published

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PUBLISHED DECISIONS –

330. Business litigation.  Pro se representation; summary judgment on liability; right to jury trial;
Smith v. Bear, Inc.
NICKELL, JUDGE: Tony Smith and Smith Services, Inc. (Smith Services) appeal from judgments and orders of the Laurel Circuit Court in favor of Bear, Inc. d/b/a Lake Express (Lake Express) awarding judgment to Lake Express in the amount of $90,863.22 for unpaid fuel charges and accrued interest incurred by Smith Services through August 1, 2010, plus additional interest thereon accruing at the rate of twelve percent (12%) per annum until paid in full, together with the amount of $42,330.38 for costs and fees paid to counsel. Upon a review of the record, we affirm in part and reverse in part and remand.

338.  Administrative Law – Medical licensure.
Doyle vs. Commonwealth of Kentucky
KELLER, JUDGE: Dr. John L. Doyle III (Doyle) appeals from the trial court’s denial of his Kentucky Rules of Civil Procedure (CR) 60.02 motion to set aside the dismissal of his petition for judicial review of an order from the Kentucky Board of Medical Licensure (the Board) suspending and indefinitely restricting his license. On appeal, Doyle argues that the trial court abused its discretion when it denied his motion. Having reviewed the record from the proceedings before the Board, the record from the proceedings before the circuit court, and the arguments of the parties, we affirm.

343. PIP benfits
Medlin v. Progressive Direct Ins.
STUMBO, JUDGE: Kyle Medlin appeals from an order of the Jefferson Circuit Court denying his motion for declaratory relief and entering judgment in favor of Progressive Insurance Company. We find no error and affirm.

In the case at hand, the PIP benefits, or basic reparation benefits, are

reimbursement for losses suffered due to an automobile accident. Losses are defined by statute as “accrued economic loss”. Medlin has not accrued any economic loss in this instance because he has not personally paid his medical bills; therefore, he cannot be reimbursed for losses he has not yet sustained. Progressive has offered either to reimburse Medlin for medical expenses he has paid or to pay the medical providers directly. Both of these are designated in the MVRA statutes, but Medlin has declined both options. The MVRA does not require Progressive to do what Medlin requests; therefore, we affirm on this issue.

Medlin also argues that Progressive is obligated to pay his PIP benefits to him directly because the company agreed to do so. Medlin is referring to the section of PIP benefits application where he checked the box “PLEASE PAY ME DIRECTLY”. Medlin is correct that Progressive agreed to pay him directly, but it only agreed to do so if the draft also included the name of the medical provider.

The MVRA does not expressly offer this option in obtaining PIP benefits, nor does it exclude it. If Progressive wants to offer a third option, such as this, to its insured customers, it can do so by agreement. Medlin wants the draft to be made out to him alone. Medlin is seeking to unilaterally change the agreement, something he cannot do.

In examining the facts of this case, Medlin was offered three ways in which to collect his PIP benefits. He could have Progressive pay his chiropractor directly, reimburse him for money he spent on medical expenses out of pocket, or issue him a check in an amount equal to his medical bills and have the check include his name and the name of his medical provider. The first two options are included in the MVRA and the third was by agreement between the parties. Medlin declined all three options.

For the foregoing reasons we affirm the judgment of the circuit court. ALL CONCUR.

350.  Directed verdict reversed.
Carroll v. Wright
STUMBO, JUDGE: Kim Carroll appeals from a Judgment of the Elliott Circuit Court reflecting a jury verdict in favor of Reuben J. Wright, Matthew Keeton d/b/a Matthew Keeton Trucking in Carroll’s action alleging negligence resulting in a motor vehicle accident. Carroll contends that the trial court improperly failed torender a Directed Verdict in her favor, erred in failing to instruct the jury of the specific duty to drive in the right lane, and erred in allowing the Appellees to argue their driver faced an “unforeseeable situation” and did “the best he could” under the situation. For the reasons stated below, we reverse the Trial Verdict and Judgment, and remand the matter to the Elliott Circuit Court on the issue of damages.

351.  Juveniles. Habitual truancy.
B.S.  vs. Commonwealth of Kentucky
STUMBO, JUDGE: S.B. (hereinafter referred to as “Child”)2 appeals from the judgment finding her to be a habitual truant. We find that the trial court did not have subject matter jurisdiction over Child and vacate the judgment.

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THE TORT REPORT:

343. PIP benfits. Payments to provider or reimbursement.
Medlin v. Progressive Direct Ins.
PUBLISHED.
SUMBO, JUDGE: Kyle Medlin appeals from an order of the Jefferson Circuit Court denying his motion for declaratory relief and entering judgment in favor of Progressive Insurance Company. We find no error and affirm.

333.  Res Judicata
Smith v.  Lexington-Fayette Urban County Government
Not Published.
Simon presents four general allegations of error in seeking reversal. First, he contends the trial court abused its discretion in denying his motion to amend the complaint. Next, he argues the trial court erred in dismissing the complaint as it alleged a timely and actual controversy. Third, Simon alleges the issue of whether LFUCG is entitled to sovereign immunity on punitive damages claims under the Declaratory Judgment Act (DJA)5 is a matter of first impression and therefore should not have been summarily dismissed. Finally, Simon claims the trial court erroneously found his claims to be barred by res judicata. Following a careful review of the record, the briefs and the law, we affirm.

334.  Workers compensation, independent contractor and “up the ladder”
Van Meter v. Weber Group, Inc.
Not Published

THOMPSON, JUDGE: Dudley J. Van Meter, Jr. appeals from two summary judgments of the Jefferson Circuit Court. The first was entered in favor of Weber Group, Inc. on the basis that Weber was entitled to up-the-ladder immunity under the Kentucky Workers’ Compensation Act. The second summary judgment was entered in favor of CB Richard Ellis, Inc., BA Merchants Services, LLC and Bank of America, N.A. d/b/a BA Merchants Services, LLC, (we refer to the Bank of America entities collectively as BOA) on the basis that Van Meter was an employee of an independent contractor and, therefore, CB Richard Ellis and BOA cannot be liable for his injuries. The issues presented are: (1) whether an adequate opportunity to conduct discovery was granted; (2) whether Weber is entitled to up- the-ladder immunity provided in Kentucky Revised Statute (KRS) 342.690(1) and KRS 342.610(2); and (3) whether CB Richard Ellis and BOA owed a duty to provide a safe workplace to Van Meter. We affirm.

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