HUGHES V. LAMPMAN AND COTTON STATES MUTUAL INS. CO.
INSURANCE – UIM Benefits, Coots Advance, and Real Party In Interest at Trial
TRIALS – Failure to identify UIM carrier, not harmless error
2004-CA-002600
PUBLISHED
PJ: COMBS
REVERSING AND REMANDING
Jefferson Circuit Court, Judge Willett
DATE: 1/27/2006
This case involved a jury trial that occurred before Earle v. Cobb, but an appeal that was decided after Earle v. Cobb. The UIM carrier advanced the liability limits and apparently participated in discovery. At trial, the judge ruled over plaintiff’s objection that the underinsured motorist carrier would not be identified to the jury. The jury returned a defense verdict on liability. Appeal ensued, and the appellants claimed harmless error. Dissent was filed by Judge Dyche who opined it was harmless, but the majority relied upon Earler v. Cobb and reversed the remanded.
"While Lampman argues that the trial court’s error is harmless in view of the jury’s ultimate finding, we are not persuaded that the error is susceptible of such an analysis. In considering the parties’ arguments in Earle, the Supreme Court of Kentucky was persuaded by the decision of the Supreme Court of Florida in Medina v. Peralta, 724 So.2d 1188 (1999). The Medina Court held that the trial court’s error (in withholding full information from the jury) amounted to deception and constituted a complete miscarriage of justice, emphasizing that the error was not subject to review through a harmless error analysis. Medina at 1189-90. We agree. Earle has explicitly condemned as manifestly unjust the subterfuge or legal fiction of disguising the alleged tortfeasor as the only real party with potential liability to the plaintiff at a trial against the plaintiff’s UIM carrier. Consequently, the error cannot be dismissed as merely harmless."
