Tort Report: Dec. 4, 2009 COA Decisions (none published)

Dec. 4, 2009 COA Decisions Dealing with Torts and Insurance

Names, intro, and links to full text:

TORT DECISIONS:

1232 Medical Negligence
John  D. King vs. Dr. John R. Allen
OPINION AFFIRMING
APPELLEE
RENDERED: DECEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2008-CA-000540-MR
APPEAL FROM FAYETTE CIRCUIT COURT v.    HONORABLE KIMBERLY N. BUNNELL, JUDGE
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
STUMBO, JUDGE: John King appeals several adverse evidentiary rulings by
the trial court during the course of a medical malpractice trial. Mr.
King claims the trial court erred in its rulings on expert testimony,
the admission of medical records, and the application of the collateral
source rule. Dr. Allen argues that the trial court made the proper
rulings and would have us affirm. We affirm the judgment in favor of
Dr. Allen.

1234 Medical Negligence
JEAN LUTTRELL VS. JEWISH HOSPITAL & ST. MARY'S HEALTHCARE, INC., d/b/a FRAZIER REHAB INSTITUTE; AND DAVID SELIGSON, M.D.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE SUSAN SCHULZ GIBSON, JUDGE
ACTION NO. 06-CI-008007

OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Jean Luttrell appeals the order of the Jefferson Circuit
Court granting the motions for summary judgment filed by Jewish
Hospital and St. Mary’s Healthcare, Inc., d/b/a Frazier Rehab Institute
(Frazier) and David Seligson, M.D. After a careful review of the
record, we affirm because Luttrell failed to put forth expert evidence
in support of her claims and the circuit court did not abuse its
discretion in denying Luttrell’s motion for a continuance.

1238 UNDERINSURED MOTORIST BENEFITS
OCCIDENTAL FIRE & CASUALTY COMPANY  VS. RONDAL WAYNE HARMON AND PAUL B. STEELE 
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 05-CI-00118

OPINION REVERSING AND REMANDING
** ** ** ** **
APPELLEES
BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE.
CLAYTON, JUDGE: Occidental Fire & Casualty Company (Occidental)
appeals from the June 30, 2008, judgment that followed a jury verdict
in favor of the plaintiff, Rondal Harmon, and awarded him $250,448.14
in damages. As a result of the judgment, Occidental, as Harmon’s
contract provider of underinsured motorist (UIM) benefits, was held
responsible for $120,000. Occidental also appeals the circuit court
August 8, 2008, order overruling Occidental motion to alter, amend, or
vacate the verdict or, in the alternative a new trial. For the reasons
stated below, we reverse and remand for a new trial. * * *

Having determined that under Kentucky caselaw it was not necessary
to name Occidental as a party to the action, we must now decide whether
the trial court’s decision to name Occidental as a named party was an
abuse of discretion. Abuse of discretion occurs when a decision is
arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008)
(internal citations omitted). Accordingly, we shall review the issue
presented by the parties in light of the aforementioned abuse of
discretion standard.

For sound policy reasons, Kentucky courts have long adopted the rule
that liability insurance is not to be mentioned at trial for such a
matter. The basis for this policy decision is the inherent prejudice
resulting from a jury’s knowledge of the existence of liability
insurance. UIM benefits, notwithstanding the plaintiff’s procurement of
the coverage, are based on the liability of a tortfeasor, and
therefore, are considered liability insurance. KRS 304.39-320.

A trial court abuses its discretion when it makes a decision that is
unsupported by sound legal principles. Here, because Occidental was not
a real party in interest, it was legally unsound for the trial court to
deny Steele’s motion to exclude from the jury the information that
Harmon had UIM benefits. Given the prejudicial effects of giving the
jury knowledge of insurance, we believe that it was an abuse of
discretion for the judge to give notice to the jury that Harmon had an
UIM benefit coverage provider, Occidental. Hence, in light of the
caselaw set forth above, and for the reasons set forth in the preceding
analysis, we reverse and remand this case to the Knox Circuit Court for a new trial on the issues of damages.

1239 FELA
MICHAEL HUDSON VS. CSX TRANSPORTATION, INC. 
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 03-CI-008385
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
** ** ** ** ** BEFORE: CAPERTON AND DIXON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Michael Hudson appeals from a jury verdict and
judgment of the Jefferson Circuit Court in favor of CSX Transportation,
Inc. Hudson filed suit against CSX under the Federal Employers’
Liability Act (FELA), 45 U.S.C. §§ 51 et seq., claiming that he had
sustained a permanent brain injury as a result of his exposure to
various industrial solvents and cleaners during his employment with
CSX. On appeal, Hudson claims that the trial court erroneously excluded
evidence, including expert testimony, relating to his alleged exposure
to the solvent trichloroethylene. After our review, we affirm.

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