Tort Report for COA Decisions of Dec. 21, 2012 – medical negligence, experts, Daubert discussion, judicial estoppel, Firefighters Rule, PIP benefits and occupying vehicle, failure to plead affirmative defense excluded evidence

December 21, 2012 Court of Appeals Minutes

1186.  MEDICAL NEGLIGENCE.  DAUBERT DISCUSSION RE EXPERTS!
RIES (BILLIE JO), ET AL.
VS.
OLIPHANT, M.D. (RICHARD C.), ET AL.
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
STUMBO (CONCURS) AND CLAYTON (CONCURS IN RESULT ONLY)
2011-CA-000100-MR
TO BE PUBLISHED
JEFFERSON

TAYLOR, JUDGE: Billy Jo Ries and Kevin Ries, each, individually and as next friend of Lauren Elizabeth Ries, an infant child, (collectively referred to as the Rieses) bring this appeal from a December 14, 2010, judgment upon a jury verdict dismissing the Rieses’ medical negligence claims against Richard C. Oliphant, M.D.; Louisville Physicians for Women, PLLC; Tonya Robinson, M.D.; and Neonatal Associates, PSC (collectively referred to as appellees). We reverse and remand.

1198.  BAD FAITH CLAIM.  JUDICIAL ESTOPPEL.
MARTINDALE (MICHAEL), ET AL.
VS.
FIRST NATIONAL INS. CO. OF AMERICA, ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
VANMETER (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2011-CA-001747-MR
TO BE PUBLISHED
WOODFORD

NICKELL, JUDGE: Michael Martindale, and his wife, Velicia Martindale, appeal from an opinion and order entered by the Woodford Circuit Court on August 29, 2011, dismissing them from a bad faith claim1 they had filed against First National Ins. Co. of America, Safeco Ins. Co. of America and insurance adjuster Laura Harp (referred to collectively as “Safeco”). Having reviewed the record, the briefs and the law, we affirm.

1202.  MEDICAL NEGLIGENCE
SEATON (PHILLIP), ET AL.
VS.
PATTERSON (JOHN M.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
DIXON (CONCURS) AND CAPERTON (DISSENTS)
2011-CA-001874-MR
NOT TO BE PUBLISHED
SHELBY

STUMBO, JUDGE: Phillip Seaton and Deborah Seaton appeal from a Judgment of the Shelby Circuit Court reflecting a jury verdict in favor of Dr. John M. Patterson and Commonwealth Urology, PSC setting out a claim of civil battery arising from a surgical procedure. The Seatons contend that Dr. Patterson partially amputated Mr. Seaton’s penis without authority, that there was no medical emergency justifying the procedure, and that the Seatons have proven the elementsof medical battery. They also argue that the circuit court improperly failed to sustain their motion for a directed verdict, and that it handed down improper jury instructions. We conclude that the jury properly determined that Dr. Patterson had consent to perform a partial penectomy and find no error.

1206.  PIP BENEFITS AND “OCCUPYING” THE VEHICLE.
MCCALL (KEOLIVER)
VS.
ZURICH AMERICAN INSURANCE COMPANY, ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MAZE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-002059-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Keoliver McCall appeals from an Opinion and Order of the Jefferson Circuit Court holding that he was not using and occupying his employer’s motor vehicle within the meaning of KRS 304.39-020(6)(b) thus rendering him ineligible for Basic Reparation Benefits (“BRB”). McCall argues that he was occupying the vehicle within the statutory framework and that the trial court erred in failing to so rule. We find no error, and accordingly affirm the Opinion and Order on appeal.

In rejecting McCall’s contention that he was “occupying” the vehicle, the Jefferson Circuit Court found that “the facts of this case are analogous to those in Clark because McCall was standing on a platform outside the vehicle and that platform was there for the sole purpose of aiding in the loading and unloading of the vehicle.” In its Order addressing McCall’s renewed motion, the court determined that McCall’s first accident occurred when he was standing on a ramp and not on the trailer carrier itself.

We find no error in the circuit court’s reasoning, nor its application of KRS Chapter 304 and the case law. Goodin, upon which McCall relies, is distinguished from the instant facts in that the plaintiff therein was inside the vehicle when he fell through a hole in the trailer. Conversely, McCall was not inside the car carrier at the time of either of the accidents in question. The record demonstrates that he was standing on a ramp the first time he fell, and then standing on a platform at the front of the cab when the second fall occurred. The particulars of these falls are similar to the facts of various cases holding that being outside the vehicle (Clark, supra), under the vehicle (Commercial Union Assurance Companies v. Howard, 637 S.W.2d 647 (Ky. 1982)), or beside the vehicle (State Farm Mut. Auto. Ins. Co. v. Hudson, 775 S.W.2d 922 (Ky. 1989)) do not constitute “occupying” the vehicle for purposes of BRB coverage.

1208.  IMMUNITY.
WALES (WALLACE) SR.
VS.
PULLEN (TED), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-002109-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Wallace Wales Sr. appeals the entry of summary judgment in favor of the appellees, Ted Pullen, individually and in his capacity as Director ofthe Louisville Metro Government Department of Public Works, and Richard Storm, individually and in his capacity as Jefferson County Engineer. Based on the reasons stated herein, we reverse in part, affirm in part, and remand.

1209.  FIREFIGHTER’S RULE.
RICE (ANDREA)
VS.
VANDERESPT (DAVID), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2011-CA-002152-MR
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE: Andrea Rice appeals the October 24, 2011, order of the Jefferson Circuit Court which granted a motion for summary judgment filed by David Vanderespt and Patricia Vanderespt, his wife. Rice is a police officer who responded to a call at the Vanderespts’ property and was injured in the process. The sole issue on appeal is whether Rice is barred by the public policyconsiderations of the Firefighter’s Rule from seeking recovery in tort. After our review, we conclude the trial court did not err in ruling that the Vanderespts cannot be held liable for Rice’s injuries.

1214. RELEASE EXCLUDED BY TRIAL COURT RE PROPERTY DAMAGE WHEN NOT PLED AS AN AFFIRMATIVE DEFENSE.
EDWARDS (ASHLEY N.)
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2012-CA-000033-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Ashley N. Edwards (now Torres) appeals the judgment of the Jefferson Circuit Court awarding State Farm Mutual Insurance Company (State Farm) damages in the amount of $13,970.91 for damage to property arising out of an automobile accident on May 7, 2010. After careful review, we affirm the trial court’s judgment.

1216. MEDICAL NEGLIGENCE. EXPERT QUALIFICATIONS.
TOMES (SHELLIE)
VS.
HALTERMAN. D.O. (ROBERT L.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2012-CA-000059-MR
NOT TO BE PUBLISHED
LOGAN

STUMBO, JUDGE: Shellie Tomes appeals from a Judgment of the Logan Circuit Court reflecting a jury verdict in favor of Dr. Robert L. Halterman in her action alleging medical negligence. Tomes contends that the trial court erred in refusing to allow her trial counsel to question Dr. Halterman’s qualifications to render expert medical opinions regarding whether his treatment of Tomes fell within the appropriate standard of care. Tomes also argues that the court erred when it responded to a juror’s question by stating that evidence of Tomes’s medical insurance, if any, was not relevant. We find no error, and affirm the Judgment on appeal.

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