TORT REPORT: COA 2010 Minutes July 9, 2010 (Nos. 657-672)

TORT REPORT:
COA 2010 Minutes
July 9,
2010 (Nos. 657-672)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • Total number of decisions:  16
  • Published Decisions: 2 (658, 661)
  • Tort Decisions:  661, 662,
  • Workers Comp:  671

TORT DECISIONS (CIVIL, INSURANCE, TORTS):

661. JURORS (CHALLENGE FOR BIAS, POLICY HOLDERS OF DEFENDANT); HEARSAY
GIBSON (ROY), ET AL. VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND WINE (CONCURS)
2009-CA-000048-MR
TO BE PUBLISHED
JEFFERSON

ACREE,
JUDGE: Appellants Roy Gibson and Clinton Bowman appeal the October 3,
2008 judgment of the Clay Circuit Court entered upon a jury’s verdict
finding them liable for fraud and ordering them to pay $43,778.53 to
Appellee Kentucky Farm Bureau (KFB) and $14,000 to Appellee Gary Speth.
For the following reasons we affirm in part, reverse in part, and remand
for additional findings.

On June 24, 2005, Gibson and Bowman
reported to KFB their 2000 Ford F150 had been stolen approximately three
weeks earlier; KFB established the date of the loss as June 1, 2005. At
the request of KFB, Gibson and Bowman filed a police report. Because
they no longer possessed the vehicle’s certificate of title, they also
obtained a duplicate title. In accordance with the terms of their KFB
insurance policy covering theft of the insured vehicle, Gibson and
Bowman soon received a check in the amount of $17,291.50.

In late
2005, an individual named Rogelio Mendez attempted to register the
vehicle. He presented the original certificate of title to the clerk;
the back of the certificate showed that on March 22, 2005, Gibson and
Bowman had executed an assignment of the title to Mendez and their
signatures were notarized.1 However, because the vehicle had been
reported stolen, the clerk refused to permit Mendez to register the
vehicle in his name. Police seized the truck and returned it to KFB. The
insurer sold the truck for approximately $7,200.

Believing it had
been defrauded, KFB filed a complaint seeking a declaration of rights
to the truck as against Sanchez and Speth and asserting a fraud claim
against Gibson and Bowman. Gibson and Bowman were represented in the
action by counsel and defended against the fraud claim. Speth appeared
pro se with the benefit of some assistance from KFB’s counsel. Sanchez
was never served and did not appear in the action.

Following
trial, a jury determined Gibson and Bowman had defrauded KFB and awarded
KFB $43,778.53. The jury also awarded Speth $14,000.3    This appeal
followed.

Gibson and Bowman claim the circuit court erred as
follows: (1) by failing to strike for cause jurors who were
policyholders of insurance issued by KFB; (2) by admitting hearsay
testimony of out-of-court statements made by Sanchez; (3) by awarding
KFB costs of investigating and prosecuting the claim; and (4) by
awarding damages to Speth in absence of a finding he was defrauded and
without proof of his loss. We address those assignments of error in that
order.

Jury Selection.  Gibson and Bowman claim the circuit
court erred by overruling their motion to strike for cause prospective
jurors who were also holders of KFB polices.   The argument Gibson and
Bowman present is that no KFB policyholder was capable of sitting as an
unbiased juror in this case. That is, they argue the policyholders’
status alone required striking them for cause. True, by statute, certain
persons are subject to challenge for cause merely because of their
status. Howell v. Commonwealth, 489 S.W.2d 21, 22-23 (Ky. 1972)(Former
Kentucky Revised Statute (KRS) 29.025, now KRS 29A.080(2)(b),
disqualifies felons from jury service; “a juror in such status is
subject to challenge for cause”). However, this panel may not, by
creating the bright line test suggested by this argument, take from the
province of the trial court the discretion to determine the
qualifications of any jurors in the venire not otherwise disqualified by
KRS 29A.080(2).
We do not exclude the possibility that one or more
jurors in this case may have had such a concern about their relationship
with KFB that they might be deemed biased. However, we can only
speculate as to the existence of actual bias because Gibson and Bowman
simply did not inquire further into the matter during voir dire either
with any individual juror or with the venire. Relevant inquiries could
have determined whether any particular juror had a concern that a
judgment in the case would affect them personally. In this case, the
only information about the juror-policyholders available to the trial
court was that the potential for bias existed. Absent further indication
from the voir dire that any juror, because of his or her relationship
with KFB, was actually biased or would have difficulty fairly Deciding
the case, we cannot label the trial court’s refusal to strike any jurors
for cause an abuse of discretion.

Hearsay evidence
At trial
KFB introduced certain of Sanchez’s statements through its investigator,
Keller, because Sanchez was unavailable to testify.  Additionally, the
statements made by Sanchez to the investigator were not used against
Sanchez. Rather, they were used against Gibson and Bowman in prosecution
of the fraud claim. KFB never claimed that Sanchez had defrauded
anyone. Therefore, Sanchez’s out-of-court statements could not be
permissibly introduced pursuant to this rule. 

In the context of
Keller’s interview with Sanchez, it becomes clear the statements at
issue were actually self-serving. Keller was conducting the interview to
determine which scenario was accurate: (1) that Sanchez stole the truck
and then used it as collateral on a $7,000 loan, or (2) that Gibson had
legally conveyed the truck to Sanchez and then fraudulently reported it
stolen. Given those options, it was decidedly in Sanchez’s interest to
state he acquired the truck from Gibson in a legal manner and then left
it with Speth. The conversation with Keller was therefore inadmissible
as statements against the declarant’s interest.
In light of the other
evidence of fraud, however, any error in admitting Sanchez’s statements
to KFB’s investigator was harmless.

662. FORESEEABILITY ON
INJURIES (ASSAULT); INSURANCE COVERAGE FOR ASSAULT AND OCCURRENCE;
DIRECTED VERDICT AND FUTURE MEDICAL EXPENSES
ELLISON (NELLIE) VS. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000116-MR
NOT TO BE PUBLISHED
FLEMING

ACREE,
JUDGE: Nellie Ellison appeals three decisions of the Fleming Circuit
Court. First, she asserts the circuit court improperly granted summary
judgment in favor of the Fleming County Little League. Second, she
claims the circuit court erred by granting summary judgment in favor of
Kentucky Farm Bureau Mutual Insurance Company. Lastly, she asserts the
circuit court erred by entering a directed verdict in favor of the
remaining defendant and refusing to instruct the jury as to future
medical expenses. We affirm.

On July 9, 2005, a physical
altercation erupted between Andrew Jones, then president of the Fleming
County Little League, and Nellie Ellison, grandmother of a little league
softball participant. As a consequence of the altercation, the
Commonwealth of Kentucky filed criminal charges against Jones who
pleaded guilty to first-degree wanton endangerment and fourth-degree
assault. Ellison subsequently filed her complaint in this civil action
in December of 2005. Ellison sought recovery from Jones, but also from
the Fleming County Little League.
The cause of action against the
Little League initially alleged that it failed to provide adequate
security. However, she replaced this claim in an amended complaint and
alleged negligent employment and/or retention of Jones as Little League
President. On August 8, 2008, the circuit court entered summary judgment
in favor of the Little League.

The action against Jones went to
trial and the jury returned a verdict in favor of Ellison. The only
issue arising from the trial is whether it was proper for the circuit
court to refuse to instruct the jury as to future medical expenses and
instead granting directed verdict on that issue.

Ellison asserts
the Little League negligently hired and retained Jones as president.
There is considerable question as to whether Jones was an employee given
that he was an uncompensated volunteer selected by Little League
parents to serve on the board of directors, and by the board to head the
league. Nevertheless, Even if he is considered an employee for purposes
of our review, Jones’ actions were not foreseeable.

An
employer’s liability for negligent hiring and retention is based on the
employer’s negligence in failing to exercise reasonable care in the
selection and hiring of its employees. Ten Broeck Dupont, Inc. v.
Brooks, 283 S.W.3d 705, 732 (Ky. 2009). Thus, Ellison must establish
that the Little League owed her a duty of care, that the duty was
breached as a result of the Little League’s hiring and retention of
Jones, and that the breach of that duty caused her injury.
The
primary issue here is whether the Little League owed a duty to Ellison.
Ellison asserts the existence of a universal duty of care that required
the Little League to protect her from Jones’ actions.

We agree
with the circuit court that Ellison’s injuries were not foreseeable.
“Foreseeability is to be determined by viewing facts as they reasonably
appeared to the party charged with negligence, not as they appear based
on hindsight.” James v. Wilson, 95 S.W.3d 875, 891 (Ky.App. 2002).

* * *

The
circuit court determined that Jones’ Farm Bureau homeowner’s policy did
not extend coverage to damages resulting from the altercation between
Jones and Ellison. The circuit court reasoned that Ellison’s harm was
either intended or expected and coverage was excluded under the policy.
As noted above, the decision of the circuit court is reviewed de novo.

The
Farm Bureau policy extends coverage to bodily injury caused by an
“occurrence.” An “occurrence” requirement, there is also an applicable
exclusion. Specifically, the policy does not apply to bodily injury that
is “intended.” Therefore, the policy only covers occurrences
(accidents) that are not intended.“occurrence” is defined as an
“accident.”ones’ actions were clearly not an “accident” and the criminal
conviction and award of punitive damages in this case refute the
legitimacy of Jones’ claim of self-defense. Thus, it was not necessary
to submit the issue of self defense to the jury and coverage is
excluded.

* * *

Ellison’s claim against Jones was the only
cause of action that proceeded to trial. The circuit court concluded
that Ellison failed to present sufficient evidence on the issue of
future medical expenses and entered a directed verdict. Ultimately, the
jury returned a verdict awarding Ellison $60,298.29 for past medical
expenses, $20,000 for past and future pain and suffering, and $150,000
in punitive damages. Ellison now asserts that the circuit court’s
directed verdict and prohibition on an instruction for future medical
expenses was in error. She avers that the jury should have been allowed
to consider the requested $7,900 of future medical expenses.

The only evidence of future medical expenses came via the testimony
of
Dr. Lawson, Ellison’s treating physician. Dr. Lawson indicated that
Ellison suffered multiple fractures in her face including a broken nose,
septum, and permanent nerve damage. Ellison had to have reconstructive
surgery to repair her jaw, nose, and eye socket at a cost of $7,900.
However, when asked if Ellison would require future surgeries Dr. Lawson
indicated that there was “no way to know” and he “had no idea what
might happen in the future.”
Evidence of future medical expenses must
be “positive and satisfactory.” Howard v. Barr, 114 F. Supp. 48, 50
(W.D.Ky. 1953). Speculation and supposition are insufficient to justify
submission of a case to the jury. Chesapeake & Ohio Ry. Co. v.
Yates, 239 S.W.2d 953, 955 (Ky. 1951). If a physician testifies that he
does not know the need, length, or cost of future medical expenses then
no instruction should be given. See Walton v. Grant, 302 Ky. 194, 199,
194 S.W.2d 366, 368 (1946)(where doctor had no way of anticipating the
cost, need, or length of future medical treatment, there was no evidence
to warrant a finding for future medical bills), overruled on other
grounds by Rankin v. Green, 346 S.W.2d 477 (Ky. 1960); see also Terminal
Railroad Co. v. Mann, 312 S.W.2d 451, 454 (Ky. 1958)(physician’s
testimony that boy would need the services of a companion from time to
time for the rest of his life was insufficient). The trial court
correctly prevented the jury from engaging in speculation by granting
the directed verdict as to future medical costs.
For the foregoing reasons, we affirm.

671. WORKERS COMP
PALM BEACH COMPANY VS. TARTAR (NORMA), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-002309-WC
NOT TO BE PUBLISHED
WORKERS' COMP

DIXON,
JUDGE: Palm Beach Company seeks review of a decision of the Workers’
Compensation Board. The Board affirmed an ALJ’s order sustaining a
medical fee dispute in favor of Palm Beach’s former employee, Norma
Tartar. Finding no error, we affirm.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.