SC: September 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the September 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Insurance Law:

Samantha G. Hollway v. Direct General Insurance Company of Mississippi, Inc. 
2014-SC-000758-DG September 22, 2016

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Hollaway was involved in a low speed collision in a parking lot with Direct General’s insured. Direct General arguably assumed liability for causing the accident, but later recanted and disputed liability. Hollaway filed a multitude of claims, including a bad faith claim against Direct General for failing to fairly negotiate her claim. The trial court awarded Direct General summary judgment and the Court of Appeals affirmed.

A unanimous court affirmed the Court of Appeals. Though it is debatable whether the insurance company admitted causing the accident, it never conceded liability for the injuries she claims she sustained from the accident—Hollaway’s profession rendered itself to injuries of this type. But even if Direct General conceded liability, Hollaway failed to establish that the insurer acted with the level of intent necessary to prove a bad-faith claim. Notably, the Court removed the word “evil” from consideration in this aspect of the analysis.

Malicious Prosecution:

Gary Martin v. Stephen O’Daniel 
Mike Sapp v. Stephen O’Daniel 
Bobby Motley v. Stephen O’Daniel 
September 22, 2016

Opinion of the Court by Justice Venters. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Cunningham, J., dissents by separate opinion in which Keller, J., joins. Police officers sued for malicious prosecution arising from their investigatory activities which led to the indictment and trial of the plaintiff for forgery, arising from his effort to obtain legal title to a stolen vehicle. Issues presented: 1) Whether police officers have governmental immunity from suit for malicious prosecution; 2) whether officers who turned over evidence to the prosecutor, who in turn made the prosecutorial decision to seek indictment, could be liable for malicious prosecution upon plaintiff’s acquittal. Held: 1) the doctrine of governmental immunity does not protect government employees for malicious conduct. Plaintiff asserting claim of malicious prosecution must prove malice, which if proven, negates the defense of governmental immunity; 2) “procuring” a criminal or civil judicial proceeding is synonymous with being the proximate and efficient cause of putting the law in motion against another person; 3) abrogating 4

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky.1981), the Supreme Court restated the elements of malicious prosecution action as follows: 1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff; 2) the defendant acted without probable cause; 3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based; 4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and 5) the plaintiff suffered damages as a result of the proceeding.

Medical Malpractice Discovery.  Writ of Prohibition.

Baptist Health Richmond, Inc. v. Hon. William G. Clouse, Jr., Judge, Madison Circuit Court, Division 1, et al.
2015-SC-000657-MR September 22, 2016 

Opinion of the Court by Justice Keller. All sitting. Keller, Cunningham, Noble and Venters, JJ., concur. Hughes, J., concurs by separate opinion in which Minton, C.J., and Wright, J., join. The issue before the court involved the interaction of Kentucky’s discovery rules in medical malpractice cases and the federal Patient Safety and Quality Improvement Act (the Act). Note that the Court had previously addressed this interaction in Tibbs v. Bunnell, 448 S.W. 3d 796 (Ky. 2014), a plurality opinion.

Congress enacted the Act to encourage hospitals to engage in self-analysis. It therefore provides that certain information obtained during that self-analysis and contained in the hospital’s safety evaluation system is protected from discovery. However, the Act also states that its intent was not to interfere with existing state reporting requirements and discovery rules. Thus, information mandated by state requirements and otherwise discoverable would not be protected by the Act. The plaintiff in this case requested a number of documents which Baptist Health refused to produce claiming protection under the Act.

The Court, based on recently generated guidance from the Department of Health and Human Services, noted that the Commonwealth requires hospitals to collect certain information which has traditionally been discoverable. A hospital cannot, 6

based on the Act, claim that such otherwise discoverable information is protected by the Act. Furthermore, a hospital cannot take otherwise discoverable information, place it in a protected safety evaluation system, and claim that the information is not discoverable. As long as a hospital is complying with its state mandated reporting requirements, the trial court has no reason to examine the information in the protected safety evaluation system. However, if a hospital is not complying with state mandates, the court can conduct an in camera review of the information in the protected safety evaluation system to determine if any state mandated information is contained therein.

In her concurring opinion, Justice Hughes further delineates the procedure a court should undertake in determining whether and to what extent contested information is discoverable.