Tort Report for COA Decisions of May 17, 2013 re: Free medical record copy; CGL insurance policy coverage dispute; supplementing damage interrogatories; liquidated damages; sovereign immunity

tort.imagesThis weeks tort report addresses decisions from the Court of Appeals for May 17, 2013.

490.  Free copy of medical records.
Eriksen PSC vs. Gruner & Simms, PSC
COA, Published 5/17/2013
Jefferson County

See our separate post:  Medical Records: Statute entitling patient one free copy means what it says one free copy and no charging! (Erikson vs. Gruner & Sims, COA, Pub. 5/17/2013)

484.  Insurance
Piles Chevrolet vs. Auto Owners Ins. Co.

COA, Not Published 5/17/2013
Grant County

VANMETER, JUDGE: This case involves an insurance coverage dispute between Piles Chevrolet Pontiac Buick, Inc. (“Piles”) and its Commercial Liability carrier, Auto Owners Insurance Co. (“Auto Owners”). The Grant Circuit Court concluded that Piles was entitled to recovery for one occurrence of employee embezzlementunder three applicable provisions of the Commercial Umbrella Policy (“Policy”) and to that extent, granted summary judgment requiring Auto Owners to pay $35,000 to Piles in accordance with the Policy. Piles appeals, and Auto Owners cross-appeals, from the summary judgment. For the following reasons, we affirm.

485.  Fela.  Evidence (Subsequent Remedial Measures). Liquidated Damages. Harmless Error by Judge for Not Permitted Supplemental Answer to Damage Interrogatories (Eg., Fratzke)
Durbin vs. CSX Transportation
COA, Not Published 5/17/2013
McCracken

MAZE, JUDGE: Robert Lee Durbin appeals from a judgment of the Jefferson Circuit Court dismissing his claims under the Federal Employers’ Liability Act against CSX Transportation, Inc. (CSX) following an adverse jury verdict. Durbin argues that the trial court improperly excluded evidence of subsequent remedial measures taken by CSX, improperly instructed the jury, and improperly dismissed his claim for unliquidated damages. On the first two issues, we conclude that the trial court’s evidentiary ruling was not an abuse of its discretion and the court’s instructions to the jury were not clearly erroneous. On the third issue, we find that the trial court erred by concluding that it lacked discretion to allow Durbin to file an untimely supplement to his pre-trial interrogatory response in order to state an amount of damages for pain and suffering. Nevertheless, we conclude that, under the circumstances presented in this case, the trial court’s error was harmless. Hence, we affirm.

494.  Sovereign Immunity
Farmer vs. Grieshop
COA, Not Published 5/17/2013
Harlan

THOMPSON, JUDGE: Silas Farmer and Lorene Farmer appeal from an order of the Harlan Circuit Court dismissing their complaint for failure to state a claim pursuant to Kentucky Rules of Civil Procedure (CR) 12.02. The circuit court ruled that Harlan County is entitled to sovereign immunity and Harlan County Judge

Executive, Joe Grieshop, was sued only in his official capacity and, therefore, entitled to the same immunity. Although we agree that Harlan County and Grieshop are entitled to sovereign immunity regarding any tort claims against them, we hold that the complaint sufficiently states a claim for reverse condemnation against Harlan County not barred by sovereign immunity.

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