2013:08. Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of August 2013, Published and Not Published

KTR2013.08Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of August 2013, Published and Not Published.


  • Complex case involving multiple parties and issues of bifurcation, PIP, workers compensation etc (Elam V. Smith)
  • Definition of motor vehicle examined in context of UM/UIM (Chaney Est)
  • Exclusive remedy of workers compensation (Falk)
  • Nunc pro tunc and Copass (Wright v. Swigart)
  • Med mal cases with one reversing trial judge’s dismissal on causation (Baker) and multiple inssues of challenges, undisclosed expert testifying, instructions (Miller)
  • Statute of limitation defense preserved on appeal since it was obvious on the face of the pleadings (Laycock)
  • No fault two year statute of limitations applied (rather five year period for statutory actions.  Note this is a published decision and should be a good start when have atypical cause of action (other than LOC) involving motor vehicle collision (eg., dram shop?)(Kindred Nursing Centers)
  • Fen Phen Phollow up on cases and breach of attorney’s fiduciary duty (Chesley)
  • Another post-McIntosh appeal, but this time COA sent it back since judge’s order dismissing on open and obvious reasoning was not contained in order (Stinson v. Wal Mart)
  • Meanwhile, back to the litany of COA decisions eviscerating the McIntosh decision on premises liability and open and obvious when patron tripped on one of many rolling ladders scattered about Lowes. (Coleman)
  • Jury verdict re defective seat belt claim again Nissan affirmed by COA (Nissan v. Maddox)


Wright v. Swigart
COA PUB 8/16/2013
Nunc Pro Tunc and Copass v. Monroe County Medial Foundation, Inc.


Falk vs. Alliance Coal, LLC
COA, Not Pub, 8/16/2013
Workers Compensation. Exclusive Remedy.
COA affirmed summary judgments in favor of coal company re exlusive remedy of workers  compensation act.


Chaney Estate vs. Safe Auto
COA, Not Pub. 8/2/2013
MVRA and definition of motor vehicle for coverage for UIM.
Uninsured/Underinsured Motorist Benefits and Policy Interpretation as to coverage and “motor vehicle”

Elam v. Smith, Franz, Harco National Ins. Co. Kentucky Farm Bureau Mutual Ins. Co.
COA, Not Pub. 8/23/2013
Complicated issues involving multiple tort feasors and their insurers, multiple UIM carriers, and workers compensation, plus bifuration/separate trials re UIM claim.


Baker vs. Memorial Healthcare System
COA, Not Pub., 8/2/2013
Medical Negligence. Causation.
COA reversed summary judgment dismissal of med-mal claim holding the trial court incorrectly found the plaintiff could not prove causation.

Miller vs. Dornbusch
COA, Not Pub., 8/30/2013
Medical negligence case with multiple issues raise.  COA affirmed jury verdict finding no negligence agains ER doctor and employer, and hospital.

Dornbusch presents five arguments on appeal. He claims first that the circuit court erroneously granted Dr. Miller and St. Luke three peremptory challenges each for a total of six rather than three challenges to be exercised between them. Second, he claims the circuit court erred by permitting an undisclosed expert witness to testify at trial. Third, he asserts the circuit court improperly limited Dornbusch’s cross-examination of defense expert Dr. Greg Henry. Fourth is his claim that the circuit court committed prejudicial error when it allowed defense expert Dr. George Thomas to testify at trial. Fifth and finally, Dornbusch argues that the jury instructions published to the jury unacceptably emphasized certain portions of those instructions. We do not find Dornbusch’s arguments convincing and, therefore, affirm.


Laycock v. Keagle
COA,  Not Pub 8/16/2013
Raising Defense of Statute of Limitations
COA addressed issue of waiver but noted the statute of limitations was obvious on its face. However,  dismissal was affirmed.


Kindred Nursing Centers Limited Partnership d/b/a/ Harrodsburg Health Care Center vs. Overstreet
Mercer County, Published, 8/9/2013
Statute of Limitations.
COA found as controlling the one or two-year period of limitation for personal injury actions set out in KRS 413.140 or KRS 413.180, rather than KRS 413.120(2)’s five-year period of limitation for statutory actions.


Abbott v. Chesley
SCOKY, Pub, 8/29/2013
Breach of fiduciary duty by attorneys in class action. Fen Phen.
Torts. Fen-Phen Litigation. Issues include whether plaintiffs were entitled to summary judgment regarding alleged breaches of attorneys’ fiduciary duty.

Stinson v. Wal-Mart
COA, Not Pub, 8/9/2013
Premises Liability.
COA reversed trial court’s  summary judgment dismissal of premises liability claim arising from entry sliding door broke out injuring patron. Open and obvious doctrine argued on appeal but nothing in trial court record to show judge relied upon that defense.  Held the break out feature of the door was not an open and obvious defect.  Case addresses procedural standard of review when trial court summarily dismisses with prejudice and no reasoning in order.

Coleman vs. Lowe’s Home Improvement
COA,  Not Pub., 8/16/2013
Premises Liability.
COA affirmed summary judgment by trial court dismissing premises liability claim agains store and its employees under open and obvious doctrine.  Claim arose from tripping on rolling ladder in aisle at store.  McIntosh discussed.

Nissan Motor Co. vs. Maddox
COA, Pub, 8/30/2013
Defective seat belt case.
COA affirmed jury verdict against auto manufacturer.