KTR 2013:09. Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of September 2013

KTR2013.09Kentucky Tort Report of Selected Decisions from the Kentucky Supreme Court and Court of Appeals for the month of September 2013.

Highlighted issues from this month’s cases dealt with certification of class for class action under CR 23; what is the standard for damages involving future medical expenses, impaired earning capacity; reimbursable court costs including both deposition transcript and video plus costs of trial exhibits (judge’s discretion); no sovereign immunity for TARC bus driver; juror misconduct and timely raising the issue; choice of law issue on “regular use” exception’s enforcement in out of state policy; the public policy exception shooting down the out of state UIM policy’s offset provision against liaibility.

CIVIL PROCEDURE

Hughes v. UPS Supply Chain Solutions, Inc.
Jefferson
COA Not Published 9/6/2013
Certification of Class.  Decision of trial court appealed.
Taken together, CR 23.01 and CR 23.02 provide a comprehensive scheme to navigate the legal morass of class certification. Under this scheme, a class may be only certified if the legal mandates outlined in both CR 23.01 and CR 23.02 are fulfilled. Under CR 23.01, there are four separate prerequisites that must be satisfied, and under CR 23.02, one of three conditions must be satisfied.

DAMAGES

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Future Medical Expenses.  Impaired earning capacity.
Physician testified to $5,000 in future medicals, and his medical records identified the need for two MRI’s.  Plaintiff claimed both as items of future medicals, the trial court admitted the evidence, and the COA found no error.

“Evidence of future medical expenses must be ‘positive and satisfactory.’ ” Ellison v. Kentucky Farm Bureau Mut. Ins. Co., 2010 WL 2696289, 5 (Ky. App. 2010), quoting Howard v. Barr, 114 F.Supp. 48, 50 (W.D. Ky. 1953).4 Here, we have the medical records of Dr. Wheeler which ordered two MRI’s and physical therapy. Specific orders for these future medical expenses are “positive and satisfactory” evidence. In addition, Occidental did not introduce evidence demonstrating they were not medically necessary. We find no error.  Note that the plaintiff did not follow through with those orders because he could not afford the cost, hence why it was presented as future medical expenses.

With regard to permanent impairment, the COA noted that Dr. Heilig testified that Moore suffered a permanent impairment due to the injuries he received in the accident. Dr. Heilig testified that Moore sustained a 12% permanent whole body impairment. Dr. Heilig utilized the AMA Guide to the Evaluation of Permanent Impairment to come to this conclusion. This evidence of permanent injury was sufficient to make this an issue for the jury.

“[E]vidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and … the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of
 such impairment, and the amount of damages for such impairment.” Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226, 229 (Ky. 2007).

DEFENSES
Transit Authority of River City vs.  Bibelhauser
Jefferson Cir. Ct.
Published 9/27/2013
Torts. Immunity.
COA agreed with trial court that TARC did not enjoy immunity from the underlying negligence action filed to recover injuries by passenger sustained after being struck by a TARC and thus TARC is not immune from suit and affirm trial court’s order denying TARC’s motion for summary judgment.

Reeves vs. In-Town Suites Louisville South LLC
Jefferson
COA NotPublished 9/6/2013
Motion for New Trial.  Juror Misconduct
COA found no error in trial court’s denial of motion for new trial based on juror misconduct.  The plaintiff Reeves had duty to report the instance of alleged juror misconduct which occurred at lunch, as he was present at that occurrence. He did not do so until after the verdict was returned, the jury was released and the Judgment rendered. As to the two other instances – the “thumbs up” gesture and the two female jurors in the hallway – the claims of misconduct are both untimely and insufficiently specific to demonstrate that the Jefferson Circuit Court’s denial of Reeves’ motion was clearly erroneous. The “thumbs up” gesture could have meant anything or nothing, and the two female jurors in the hallway were never identified and were released from service some 18 months ago. While these claims likely would have been investigated by the court if raised in a timely manner, when the totality of the circumstances is considered, including the vagueness and untimeliness of the allegations, and Reeves’ failure to raise the instance of alleged misconduct at which he was present, we cannot conclude that the Jefferson Circuit Court abused its discretion in denying Reeves’ motion for a new trial. Accordingly, we find no error. We hold as moot In-Town Suites’ cross-appeal, wherein it asserted cross-examination and evidentiary issues in the event there was a retrial of Reeves’ underlying cause of action.

INSURANCE

State Farm Mutual Automobile Ins. Co. vs. Karen Hodgkiss-Warrick
Reversing
Lower Court:  Rockcastle Cir. Ct.
SCOKY Published 9/20/2013
Choice of Law. Underinsured Motorist Coverage.
“Regular use” exclusion in optional Pennsylvania UIM coverage does not offend Kentucky’s public policy and is enforceable.  Pennsylvania law applies to this insurance coverage dispute and, contrary to the appellate panel’s surmise about Kentucky public policy, there is no prohibition on the type of UIM exclusion at issue here, an exclusion expressly approved by this Court in Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437 (1999).

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Underinsured Motorist Benefits (UIM), Coots, and Dismissal of Bankrupt defendant.
COA affirmed dismissal of bankrupt defendant even when UIM carrier substitutes payment of the proposed settlement between a tortfeasor and a claimant.  Although the UIM carrier has successfully preserved its subrogation rights and the tortfeasor remains a party to the action, the Defendant’s bankruptcy necessitated her dismissal from the case.  Because the individual defendant’s bankruptcy precluded Occidental (UIM) from recovering a judgment against her and summary judgment decided her liability, she was properly dismissed from the case.

Ward v. Nationwide Assurance Co.
COA Not Published 9/13/2013
Underinsured Motorist Benefits Offset Not Enforceable
COA applied the public policy exception to the conflicts of law test and held  the set- off provision contained in Ward’s insurance policy and authorized under Virginia law is contrary to Kentucky public policy.  The UIM set-off provision would have resulted in reducing the available UIM coverage under the out of state policy by the amount of liability insurance available.

SETTLEMENTS AND RELEASES

Jones Plastics and Engineering Co., LLC vs. Varro
COA Not Published 9/13/2013
Enforcement of mediation settlement and agreement
Parties settled claims at mediation, and Jones disputed tendered mediation agreement tendered by Varro who sought enforcement in circuit court. Summary judgment granted enforcing agreement, appeal followed, and COA affirmed.

Here, the issues presented are controlled by the language of the Settlement Agreement. Under the terms of the agreement, the parties agreed in unambiguous terms to release “all claims . . . arising from this action.” Thus, only those claims actually asserted by Varro may properly be included in a release. Clearly, under the language of the Settlement Agreement, the parties agreed to specifically include confidentiality, nondisclosure and mutual nondisparagement terms within the release. Although Jones Plastic argues the inclusion of the phrase “and other terms” was intended to encompass the global release language it seeks to impose on Varro, we cannot approve of such a broad reading. The unspecified and perhaps future claims Jones Plastic seeks to include in the release were not raised in the instant action. The clear and unambiguous language of the parties’ agreement required Varro to execute a release relating only to the claims raised in this litigation; it did not require Varro—contrary to Jones Plastic’s contention—to release any and all past, present and future claims against Jones Plastic, its parent, subsidiary, affiliated and related entities, arising under any one of a multitude of statutory provisions, whether those claims be known or unknown. If Jones Plastic sought to leave the mediation with aspirations of obtaining a global release, it would have been easy enough to include such a requirement in the Settlement

Agreement, but alas, that language is conspicuously absent. Jones Plastic’s contention that inclusion of the phrase “and other terms” was intended and understood to encompass global release language is without support in the record and does not comport to the plain and unambiguous language of the Settlement Agreement.

Because the plain terms of the Settlement Agreement require Varro to release only those specific claims raised in the instant action, we hold the trial court correctly ruled a narrow release was all that was required and correctly rejected Jones Plastic’s urging for inclusion of global release language. “[A]n otherwise unambiguous contract does not become ambiguous when a party asserts —especially post hoc, and after detrimental reliance by another party—that the terms of the agreement fail to state what it intended.” Frear, 103 S.W.3d at 107. The Settlement Agreement called for a narrow release relating to Varro’s retaliatory termination claim and nothing further. “In the absence of an ambiguity a written instrument will be enforced strictly according to its terms,” Frear, 103 S.W.3d at 106 (citing O’Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966)), and language will be assigned its ordinary meaning without looking to extrinsic evidence. Id.

TORTS

Roberts v. Jewish Hospital Inc.
COA Not Published 9/16/2013
Premises Liability
Donna Roberts appeals from an opinion and order entered by the Jefferson Circuit Court granting summary judgment to Jewish Hospital, Inc. (“JHI”) in a slip and fall case. Upon review of the record, the briefs and the law, we affirm.  Summary judgment had been granted as plaintiff had never met her burden to show the mat at the entrance was a dangerous condition.  She did not establish the mat was frayed, askew, concealed, inappropriate or inadequate for its intended purpose. While no Kentucky court has stated that a commercial grade safety mat properly placed on a floor, in and of itself, is not a dangerous condition, we do so today.

Ollie Barker vs. John D. Northcutt
Rowan County, Judge William Evans Lane
COA Not to be Published, 9/20/2013
Torts. Slip and Fall, Premises Liability, Ice and Natural Hazards

CAPERTON, JUDGE: Ollie Barker appeals from the grant of summary judgment in favor of John D. Northcutt and Northcutt & Son Home For Funerals, Inc. (hereinafter “Northcutt”). After our review of the parties’ arguments, the record, and the applicable law, we agree with Barker that a genuine issue as to a material fact exists precluding summary judgment. Thus, we reverse and remand this matter for further proceedings. The facts of this case revolve around a slip and fall outside of Northcutt’s Home for Funerals.

In Kentucky, a danger is “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man in the position of the visitor exercising ordinary perception, intelligence, and judgment.” Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 529 (Ky. 1969) (citations omitted). “Whether a natural hazard like ice or snow is obvious depends upon the unique facts of each case.” Schreiner v. Humana, Inc., 625 S.W.2d 580, 581 (Ky. 1981).

Barker was aware of the inclement weather.  Contrary to the arguments of Northcutt this awareness by itself does not mandate summary judgment. Unlike the plaintiff in Green, it was not until after he fell that Barker could see that ice was present, that it had mounded2 up and that it was plainly visible. We believe that under these facts summary judgment was premature because there is an issue regarding the obviousness of the hazard prior to Barker’s falling. As such, we reverse and remand this matter for further proceedings.

TRIAL

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Court costs included transcript and video of same deponent and costs of trial exhibits.  COA affirmed both awards by the trial judge.

Depositions.  The award of costs to the prevailing party is within the discretion of the trial court. Lewis v. Charolais Corp., 19 S.W.3d 671 (Ky. App. 1999).  Costs are recoverable for depositions “whether taken stenographically or by other than stenographic means.” This means the costs for the original written and videotaped depositions are recoverable.

Exhibit costs.  Occidental also claims that Moore’s counsel is not entitled to recover the costs for trial exhibits. KRS 453.050 states in relevant part: The bill of costs of the successful party shall include, in addition to other costs taxed, the tax on law process and official seals, all fees of officers with which the party is chargeable in the case, postage on depositions, the cost of copy of any pleading or exhibit obtained, the cost of any copies made exhibits and the allowance to witnesses, which the court may by order confine to not more than two (2) witnesses to any one (1) point.  This statute specifically allows for the recovery of the costs related to exhibits; therefore, there is no abuse of discretion or error.

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