Jun. 2012 SCOKY Monthly Case Summary of Published Decisions

June 2012 SCOKY Summary of Published Cases

Tort Report:

Tanya A. Childers; Jeffrey J. Childers v. Sandra F. Geile, M.D.; Marshall Emergency Services Associates, P.S.C.
Intentional Infliction of Emotional Distress (outrage) is gap filler and not a substitute for medical negligence clim
2009-SC-000790-DG
June 21, 2012

Opinion of the Court by Justice Noble. All sitting. Tanya and Jeffrey Childers filed suit claiming intentional infliction of severe emotional distress from a physician’s alleged mishandling of a pregnancy. Specifically, the physician was alleged to have told the woman she had miscarried when she had not yet done so and to have prescribed drugs that could have a negative effect on the fetus. The  woman miscarried a few days later. The trial court granted summary judgment for the physician. The Supreme Court held that the facts establish that summary judgment is proper because the doctor’s conduct was properly the subject of a traditional tort claim, namely, medical malpractice. Because the tort of outrage, also known as intentional infliction of emotional distress, was meant only to be a gap-filler, it cannot be maintained when such a traditional claim is available for the same set of facts.

Brandon Benningfield v. Helen Zinsmeister, Deceased; And Wade Zinsmeister
Dog bite/attack and liability of landlord
2009-SC-000660-DG
June 21, 2012

Opinion of the Court by Justice Noble. All sitting.
Laurie Benningfield filed suit on behalf of her son, Brandon Benningfield, for injuries sustained by a dog attack against the landlords of the dog’s owners. The suit alleged that the landlords were statutory owners under KRS 258.095(5) and thus were strictly liable for the attack under KRS 258.234(4). The trial court granted summary judgment for the landlords.

The Supreme Court held that a landlord can be the statutory owner of a tenant’s dog for the purposes of liability under certain circumstances, but that any such liability extends only to injuries caused on or immediately adjacent to the premises. For that reason, the landlord in this case was liable under the statutes because the attack occurred off the premises.

Justice Schroder issued a dissenting opinion but concurred in the result, in which Justice Scott joined, stating that Kentucky’s dog bite statutes have never considered the landlord an “owner” of a tenant’s dog.

Justice Minton issued an opinion that concurs in part but dissents as  to the result, in which Justice Venters joined, stating that a landlord whose tenant’s dog injures a third party can be held liable under general negligence principles even when the injury occurs off the leased property.

Justice Venters issued an opinion concurring in part but dissenting as to the result, in which Justice Minton joined, stating that he disagrees with the conclusion to confine the area “about” the property to the land “so close [to the subject property] as to be within [a person’s] immediate physical reach” of the property.

Garry Hall, et al. v. Mortgage Electronic Registration Systems, Inc., et al.
Tort for failure to release a lien and defense of good cause
2010-SC-000559-DG
June 21, 2012

Opinion of the Court by Justice Scott, in which Minton, C.J.; Abramson, and
Cunningham, JJ., concur. Schroder, J., dissents by separate opinion in which
Noble and Venters, JJ., join.

Appellant owned a tract of property on which he executed a mortgage with Appellee. After Appellant satisfied the mortgage in full, Appellee attempted to release the mortgage in the county clerk’s office, but  failed to do so effectively due to a simple scrivener’s error, of which Appellant was aware. Appellant subsequently secured another mortgage on the property with a different financial institution which notified Appellee that the original mortgage had not been released. Five months later, Appellant filed a civil action to obtain a release of the original mortgage, also claiming statutory damages pursuant to KRS 382.365. The trial court found that Appellant’s notice to Appellee was misleading, that Appellee therefore had “good cause” under the statute not to file a new release, and concluded that Appellant was therefore not entitled to statutory damages.
The Court of Appeals affirmed.
The Supreme Court likewise affirmed, holding that, in certain circumstances, human error can form the basis upon which “good cause” exists for failure to timely release a lien under KRS 382.365, and under the totality of the circumstances, Appellee had established this “good cause” requirement.

Rodger W. Lofton v. Fairmont Specialty Insurance Managers, Inc., D/B/A Fairmont Specialty Group and D/B/A Fairmont Specialty P&C; Denise Maxey and Delbert K. Pruitt
Attorney fees not allowed when attorney withdrew upon client’s rejection of a personal injury settlement offer; not constitute “good cause”
2010-SC-000749-DG
June 21, 2012

Opinion of the Court by Justice Cunningham. All sitting; all concur.

Appellant was an attorney who represented a plaintiff in a personal injury action under a contingency fee agreement. Appellant withdrew from representation after the plaintiff client refused to accept a pre-trial settlement offer. Appellant cited the extreme differences of opinion regarding the value of the case as the reason for his withdrawal. The plaintiff then obtained new counsel and accepted a settlement offer for the same amount as the previous offer she had rejected.
Appellantfiled an attorney’s lien for the hours he had worked on the case and a
complaint in McCracken Circuit Court seeking recovery of his attorney fees under quantum meruit. The trial court declined to award attorney fees, finding that Appellant had breached his contract with the client, but awarded him funds to cover his expenses from the representation.
The Court of Appeals affirmed the trial court.

The Supreme Court held that in cases where an attorney has withdrawn from
representing a client under a contingency fee contract, recovery under quantum
meruit may be permitted only where there is “good cause.” The Court further
held that “good cause” to recover a quantum meruit fee is a high standard and
requires a showing greater than the “good cause” necessary to withdraw from representation of a client. Whether there is “good cause” to justify the award of a quantum meruit recovery is to be determined on a case-by-case basis.

The Supreme Court affirmed the Court of Appeals decision, holding that a
disagreement with a client over whether to accept a settlement offer was not
sufficient “good cause.”

Kenton Smith, et al. v. Richard Williams, et al.
Statute of frauds applied to oral buy/sell agreement of real estate
2010-SC-000332-DG
June 21, 2012

Opinion of the Court by Justice Schroder, reversing and remanding. All sitting;
all concur.

Partition action for sale of jointly held real estate. Parties opposing sale raised as defense existence of an oral buy/sell agreement between the co-tenants. Held: Statute of frauds, KRS 371.010(6), prevented enforcement of alleged oral buy/sell agreement in the absence of fraud or an equitable claim, neither of which existed in this case.

Hon. Annette Karem, Judge v. Justin Bryant
District court jurisdiction over guardianship accounting and restitution
2010-SC-000375-DG
June 21, 2012

Opinion of the Court, reversing and remanding. All sitting; all concur.

Held: District court acted within its jurisdiction, pursuant to KRS 387.520 and KRS 24A.120, when it issued an order requiring a guardian to provide all financial records related to a court-ordered accounting and to make restitution to a guardianship account.

Danielle N. Bidwell v. Shelter Mutual Insurance Company
Shelter step down liability coverage for permissive user in policy but not dec page not enforceable as violative of reasonable expectations
2010-SC-000560-DG
June 21, 2012

Opinion of the Court by Justice Scott. All sitting. All concur.

Appellant was seriously injured when the automobile in which she was riding as a passenger was in an accident. The car’s driver was not its owner, but a permissive user.

Appellant submitted her claim to Appellee, the car owner’s insurance company,
for $250,000—the amount listed on the policy’s Declarations page as the limit for bodily injury liability. Appellee claimed that the permissive user step-down
provision located within the policy, but not on the Declarations page, limited her
claim to $25,000. Appellant filed for a declaratory judgment, asking the circuit
court to declare the step-down provision unenforceable. The circuit court entered summary judgment for Appellee, and the Court of Appeals affirmed.

The Supreme Court reversed and remanded, holding that the specific provision at issue violated the doctrine of reasonable expectations.

Rest of the published decisions:

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