Still playing catchup on updating blog.
Click here for this month’s monthly summaries for COA for December 2012.
Click here for entire listing of COA Monthly Summaries of Published Decisions.
Click here for this month’s summaries.
Here are the tort, insurance and civil decisions for this month.
- APPEALS. Notice of appeal
OAKLEY v. OAKLEY
Opinion by Judge Nickell; Judges Dixon concurred; Judge Maze concurred in result only by separate opinion.
Appeal dismissed on basis that notice of appeal was improperly filed from verbal order made during an evidentiary hearing. Court of Appeals held that appellant should have appealed from written order entered approximately one week after the hearing or amended his original notice of appeal to include the written order. In addition, Court of Appeals struck the appellant’s brief for failure to substantially comply with CR 76.12 with respect to pinpoint citations to either the written or video record and a statement as to how the alleged errors were preserved for review.
- INSURANCE. JUDICIAL ESTOPPEL.
MARTINDATE V. FIRST NATIONAL INS. CO. OF AMERICA
Opinion by Judge Nickell; Judge VanMeter concurred; Judge Taylor concurred in result only.
Court of Appeals affirmed dismissal of appellants from bad faith claim they filed after a jury verdict in an automobile accident case. Citing the doctrine of judicial estoppel, the trial court based their dismissal from the bad faith claim upon their concealment in a subsequent bankruptcy proceeding of the personal injury lawsuit and resulting jury award. Furthermore, even if the bad faith claim had been allowed to proceed, the Court of Appeals concluded that the appellants could not have prevailed at trial where, at most, appellants demonstrated only a disparity between the jury’s award and the insurance company’s offers. That factor alone is insufficient to establish a bad faith claim.
- INSURANCE. RELEASE.
EDWARDS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Opinion by Judge Lambert; Judges Combs and Nickell concurred.
Trial court did not err in refusing to admit release into evidence where appellant failed to plead release as an affirmative defense; failed to comply with mandatory disclosure order; and offered no explanation whatsoever why she did not come forth with release prior to the day of trial. Court of Appeals also upheld award of damages against contention that it was not based upon fair market value of vehicle. Appellant offered no evidence at trial of her opinion as to fair market value through the testimony of an expert or documentary evidence and did not object to the testimony presented by the insurer. Because NADA information was not available due to newness of the car, insurer’s testimony as to how the valued the car and the amount of damages it paid its insured was adequate to determine fair market value.
- INSURANCE. POLICY LANGUAGE DEFINING FAMILY MEMBER
SPARKS v. TRUSTGUARD INSURANCE COMPANY
Opinion by Judge Moore; Chief Judge Acree and Judge Thompson concurred.
Long-time companion of named insured who did not meet the definition of “family member” under automobile insurance policy sought UIM benefits under policy on basis that she, not named insured, had always been owner of the car insured. Court of Appeals held that trial court did not err in declining to impute her into coverage under the policy on basis of her claim of that she was a “de facto insured.” Neither did her arguments of estoppel, reasonable expectations, illusory coverage, and public policy provide a basis for reserving entry of summary judgment for insurance company.
- EXPERTS. NEGLIGENCE.
RIES v. OLIPHANT
Opinion by Judge Taylor; Judge Stumbo concurred; Judge Clayton concurred in result only.
In medical malpractice action, Court of Appeals held that trial court erred in permitting expert testimony in form of mathematical formula that essentially timed fetal blood loss. Expert admitted to having done no independent research in the area or having knowledge of any scientific study or other objective source directly setting forth his “mathematical model and equilibration theory” concerning a fetus in utero. Without an underlying objective basis of record to support expert’s assumption that the equilibration rate of a human fetus in utero is identical to that of a human adult or child, it is virtually impossible to assess the reliability of that assumption or the reliability of his mathematical formula. Because the timing of fetus’s blood loss was a critical factual issue for the jury to resolve, the persuasive effect of the expert’s testimony in stating that he could accurately time the blood loss within a fifteen minute window required reversal for new trial.
- EXPERTS. DAUBERT.
JACKSON v. GHAYOUMI
Opinion by Judge Lambert; Chief Judge Acree and Judge Thompson concurred.
Trial court did not err in excluding expert testimony to support claim in malpractice action that chiropractor’s us of an electrical stimulation treatment modality caused plaintiff to spontaneously miscarry her pregnancy. Excluded expert testified in his deposition that he had no knowledge whatsoever regarding the delivery of electrical stimulation to the human body and disclaimed any knowledge of how electrical stimulation delivered to plaintiff’s neck caused her alleged injurires. Court of Appeals found no error in trial court’s conclusion, after conducting a Daubert hearing, that expert’s testimony was speculative and unreliable.
- INFORMED CONSENT. MEDICAL NEGLIGENCE.
MILLER v. FRASER
Opinion by Judge Caperton; Judges Lambert and Nickell concurred.
Court of Appeals reversed jury verdict for physician in medical malpractice action on the basis that trial court erred in ruling plaintiff could not present his claim for failure to obtain informed consent prior to administration of therapeutic medication. Court of Appeals concluded that informed consent statute is not limited to surgical procedures and thus plaintiff should have been permitted to present his claim of negligence for lack of informed consent.
- VICARIOUS LIABILITY. PROOF.
COLLINS v. APPALACHIAN RESEARCH AND DEFENSE FUND OF KENTUCKY, INC.
Opinion by Judge Dixon; Judges Maze and Nickell concurred.
In negligence action stemming from automobile accident, Court of Appeals affirmed trial court’s determination that Appalred was entitled to summary judgment on plaintiffs’ claim that it was vicariously liable for their injuries under doctrine of respondeat superior. Where plaintiff offered no proof other than their own beliefs as to whether defendant driver was acting within scope of her employment at time of accident, no genuine issue of material fact is created to rebut defendant’s proof to the contrary. Further, a defendant’s general schedule is not determinative of what she was doing on the morning of the accident so as to bring her activities within the scope of her employment.
- FIREFIGHTERS RULE.
RICE v. VANDERESPT