Tort Report for: Jan. 2011 (Civil Pro., Torts, Defenses, Workers Comp)

I am trying something new.  A Monthly Tort report of Kentucky SC and COA decisions. It is just a useful compilation of just the civil cases dealings with torts, insurance, defenses, equity, civil procedure, trials, workers compensation.  No criminal law or family law cases, for example. 

If you want family law, then you should go to the blog of Diana Skaggs at http://www.divorcelawjournal.com.  Outstanding resource and very, very current.  The COA decisions from Feb. 18 (yeserday) are already posted.  This is a blog so you can obtain updates using an RSS reader with Google or Yahoo or etc.

For those who want an outstanding and current updated resource for workers compensation decisions in Kentucy, then go to http://www.comped.net which is provided by ComEd.  An email newsletters of Kentucky Workers Compensation News, Updates and Analysis is provided.

 

CIVIL PROCEDURE:

DEFAULT JUDGMENTS, PRISONERS/CONFINED DEFENDANTS, AND C R 17.04(1)
WEIRD (THOMAS) VS. EMBERTON (ERIC)
OPINION REVERSING IN PART AND REMANDING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2007-CA-000938-MR
NOT TO BE PUBLISHED
JEFFERSON

EXPERTS. DISCLOSURES.  CLOSING ARGUMENTS.
PERRY (SUSIE), ET AL. VS. LARSON (GERALD M.), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2009-CA-001352-MR
2009-CA-001389-MR
NOT TO BE PUBLISHED
JEFFERSON

CIVIL. PERSONAL JURISDICTION. MINIMUM CONTACTS. JUSTICIABILITY (RIPENESS); VENUE. FORUM NON CONVENIENS
AMERICAN TRADE ALLIANCE, INC. VS. SOUTHERN CROSS TRADING, INC.
OPINION AFFIRMING
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001353-MR
NOT TO BE PUBLISHED
BARREN

ATA presents three allegations of error. First, ATA contends the trial court erred in concluding sufficient minimum contacts existed to exercise personal jurisdiction. Next, it contends the Barren Circuit Court was the improper venue for resolution of the matter. Finally, ATA argues the trial court erred in granting summary judgment to Southern Cross as genuine issues of material fact existed and the record was not ripe for adjudication. After a careful review of the briefs, the record and the law, we affirm.

 

PREJUDGEMENT INTEREST DENIAL AFFIRMED
BARNETT (HARLON), ET AL. VS. HAMILTON MUTUAL INSURANCE COMPANY OF CINCINNATI, OHIO
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
COMBS (CONCURS) AND ISAAC (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-002234-MR
NOT TO BE PUBLISHED
TAYLOR

DIXON, JUDGE: Appellant, Harlon Barnett, individually and as Administrator of the Estate of Steven Ray Barnett, appeals from a decision of the Taylor Circuit Court denying his claim for prejudgment interest on a statutory interest award in a bad faith action against Appellee, Hamilton Mutual Insurance Company of Cincinnati, Ohio. Finding no error, we affirm.

 

 

 

DEFENSES:

GLEN AVERY BRYANT V. PULASKI COUNTY DETENTION CENTER; AND BRIAN BISHOP
2009-SC-000036-DG PULASKI TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – AFFRIMING IN PART, REVERSING IN PART,
VACATING IN PART AND REMANDING

Questions Presented:
Qualified Official Immunity. Issues include whether a governmental employee may assert qualified immunity in a lawsuit brought by a prisoner, where the prisoner was physically injured by the governmental employee's acts of "horseplay" or teasing of the prisoner while supervising him on work release detail.

 

FELA, FRSA. PREEMPTION.
BOOTH (LARRY W.) VS. CSX TRANSPORTATION, INC.
OPINION REVERSING AND REMANDING
ISAAC (PRESIDING JUDGE)
ACREE (CONCURS) AND HENRY (CONCURS)
2009-CA-002103-MR
TO BE PUBLISHED
JEFFERSON

ISAAC, SENIOR JUDGE: Larry W. Booth appeals from a Jefferson Circuit Court order granting summary judgment to CSX Transportation, Inc. Booth allegedly injured his knees while employed as a railroad carman for CSX. The Jefferson Circuit Court ruled that Booth’s claims for damages under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”) were preempted by regulations promulgated under the Federal Railway Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”). We conclude that although a regulation promulgated under the FRSA may preclude a FELA claim, it did not do so in this case because the regulation at issue does not cover or substantially subsume the subject matter of the suit. The summary judgment of the Jefferson Circuit Court is reversed, and this matter is remanded for further proceedings in accordance with this opinion.

 

BLACKOUT DEFENSE INSTR UCTIONS
MAHANES (DONALD LEE) VS. SHUGARS (MICHAEL R.), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2009-CA-002047-MR
NOT TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Following a jury trial, Donald Lee Mahanes appeals the judgment of the Jefferson Circuit Court entered on October 8, 2009, finding in favor of Michael R. Shugars. On appeal, Mahanes advances two arguments [1    Nationwide General Insurance Company and American Family Insurance Company were named defendants in the circuit court action but were not named in the Notice of Appeal. All claims against Nationwide were dismissed with prejudice following trial.]  regarding the court’s instructions. Upon careful review of the record, the briefs, and the law, we affirm.

 

EQUITY:

UNJUST ENRICHMENT
JAVIER STEEL CORPORATION VS. CENTRAL BRIDGE COMPANY, LLC.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
HENRY (SENIOR STATUS JUDGE) (CONCURS) AND ISAAC (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-002124-MR
TO BE PUBLISHED
JEFFERSON

INSURANCE:

PROGRESSIVE MAX INSURANCE COMPANY V. NATIONAL CAR RENTAL SYSTEMS, INC.
2009-SC-000577-DG JEFFERSONTO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCOTT – REVERSING
Questions Presented:
Insurance. Basic Reparations Obligors. Subrogation. The issue is whether a rental car insurer that pays basic reparations benefits to the injured is entitled to subrogation from the driver's liability insurer. If so, which insurer has priority.

This appeal arises from a subrogation dispute regarding basic reparations benefits (BRB) paid by Appellee, National Car Rental Systems, Inc. (National) to a passenger of one of its rental vehicles. After payment, National sought full reimbursement against Appellant, Progressive Max (Progressive), the insurer of the driver of National's vehicle.

After the Jefferson Circuit Court granted summary judgment in National's favor, the Kentucky Court ofAppeals affirmed, holding that (1) Progressive was primarily liablefor BRB; and (2)Nationalmay pursue its claim via KRS 304.39-050. We granted discretionary review to determine the correctness of that opinion and now reverse.

Here, once again,we are asked to determine an issue of priority,but, under different circumstances. Rather than addressing two excess clauses as we did in Shelter, this Court now faces the question ofwhether the vehicle  owner's insurance should take priority over the driver's insurance when BRB are owed to an injured third party. We again hold that, per the policies established in the MVRA, priority lies with the vehicle owner.

 

INSURANCE.  SUBROGATION AND INSOLVENT COMPANY.  KRS 304.36-050.
ONE BEACON INSURANCE COMPANY VS.KIGA
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND ISAAC (CONCURS)
2010-CA-000220-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: One Beacon Insurance Company (One Beacon) appeals from the January 5, 2010 order of the Jefferson Circuit Court granting summary judgment in favor of Kentucky Insurance Guaranty Association (KIGA). After careful review, we affirm.

One Beacon is clearly an insurer which now seeks to recover from KIGA
one-half of the amounts it paid on behalf of the injured employee for medical fees. One Beacon has admitted that it is an insurer and that its claim is a subrogation claim. By the clear language of the statute, One Beacon is not an insured making a first-party claim or a person seeking a liability claim. Thus, One Beacon is not a claimant under KRS 304.36-050. Further, One Beacon’s claim for subrogation of paid medical benefits is not a covered claim, as subrogation claims are specifically prohibited in the statute. Accordingly, the trial court’s holding that One Beacon’s claims are not covered claims was correct as a matter of law.

We note that this is a matter of first impression in the state of Kentucky, but that other states have dealt with the question in a decisive manner. See California Union Insurance Co. v. Central National Insurance Co. of Omaha, 117 Cal. App. 3d 729 (Cal.App.2.Dist. 1981) (court rejected insurer’s subrogation claim upon the grounds that the legislature chose to provide a very limited form of protection for the public rather than a fund for the protection of other insurance companies from insolvencies of fellow members of the Fund). See also Ferrari v. Toto, 402 N.E.2d 107 (Mass. App. 1980) (court held that in Massachusetts the Fund is excused from paying claims if the ultimate beneficiary is an insurance company).

In the instant case, One Beacon is not a claimant, as defined in KRS 304.36- 050(3), nor is a subrogation claim a “covered claim” for which KIGA is responsible under the statutory scheme. Accordingly, the trial court was correct as a matter of law and summary judgment was appropriate. Therefore, we affirm the January 5, 2010, order of the Jefferson Circuit Court.

 

TORTS:

MARY JANE CALHOUN, ET AL. V. CSX TRANSPORTATION, INC., ET AL.
TO BE PUBLISHED 2009-SC-000100-DG BULLITT
OPINION OF THE COURT BY JUSTICE SCOTT –
AFFIRMING IN PART AND
REVERSING IN PART
VENTERS, J., DISSENTS BY
SEPARATE OPINION, IN WHICH
CUNNINGHAM, J., JOINS.
Questions Presented:
Personal Injury. Negligence. Railroad Duty of Care. Extra Hazardous Private Crossing. Issues include the proper standard for evaluating whether a crossing is extra hazardous and the general duties owed by railroads at private crossings.

TORT, AGENCY, LIBILITY FOR ACTIONS BASED UPON SPECIAL RELATIONSHIP
EDWARDS (RONALD) VS. HENSLEY (JARRED), ET AL.
OPINION REVERSING AND REMANDING
BUCKINGHAM (SENIOR STATUS JUDGE)(PRESIDING JUDGE)
CAPERTON (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION) AND CLAYTON (CONCURS)
2008-CA-002348-MR
TO BE PUBLISHED
MEADE

BUCKINGHAM, SENIOR JUDGE: Ronald Edwards appeals from a Meade Circuit Court judgment against him and in favor of Jordan Gruver in excess of $1 million following a jury trial. Finding error, we reverse and remand for a new trial.

 

TORTS.  LIBEL.
AKINS (DERRICK D.) VS. THE NEWS ENTERPRISE
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-002188-MR
TO BE PUBLISHED
HARDIN

THOMPSON, JUDGE: Derrick D. Akins appeals from the Hardin Circuit Court’s dismissal of his complaint for libel against The News Enterprise, a newspaper. For the reasons stated herein, we affirm.

On February 13, 2009, Akins filed an action for libel against The News Enterprise, alleging that the newspaper’s use of the term “carjacking” in an article describing his criminal case constituted an incorrect, inflammatory, and reckless statement of fact. Although he acknowledged being charged with rape, kidnapping, possession of a firearm by a convicted felon, and being a persistent felony offender in the first degree, he stated that he had been acquitted of the rape and kidnapping charges and was only found guilty of the remaining two offenses. Most notably, he contended that he had never been charged with carjacking.

“Four elements are necessary to establish a defamation action, whether for slander or libel, to wit: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation.” McBrearty v. Kentucky Community and Technical College System, 262 S.W.3d 205, 213 (Ky.App. 2008). A writing is defamatory when it subjects a person to public hatred, causes a person to be shunned, or injures a person’s occupation. Id. at 214. Notwithstanding, Kentucky adheres to the legal principle that the truth is an absolute defense for an action of libel regardless of the intent of the publishers. Bell v. Courier-Journal & Louisville Times Co., 402 S.W.2d 84, 87 (Ky. 1966).

After reviewing the record, we conclude that The News Enterprise did not commit the tort of libel by publishing the article regarding Akins.

TORTS. DUTY TO PREVENT HARM FROM INTERVENING THIRD PARTY CRIMINAL ACTS.
ISON (JOHN M.) VS. BROWN BROS. CADILLAC CHEVROLET, INC., ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
HENRY (CONCURS) AND ISAAC (CONCURS)
2009-CA-002345-MR
NOT TO BE PUBLISHED
JEFFERSON

WORKERS COMPENSATION:

MATTHEW HUDSON V. CAVE HILL CEMETERY, ET AL.
2010-SC-000223-WC FROM COURT OF APPEALS
OPINION OF THE COURT – AFFIRMING   TO BE PUBLISHED
Questions Presented:
Workers' Compensation. Whether parties’ correspondence constituted an adequate memorandum of agreement under KRS 342.265(1); more specifically, whether the amount of lump sum proceeds to be allocated to a Medicare Set-Aside Account is an essential element of a settlement that includes such an account.

 

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