292. Johnson v. Guardian of Kaden Isaac Johnson – loss of consortium and interplay with wrongful death claim when children only beneficiaries and inadequate insurance proceeds.
“In this case, Basil asserted two loss of parental consortium claims, and the Estate asserted a wrongful death claim. Viewing the motor vehicle insurance proceeds as insufficient to fully compensate these claims, Basil argued that the insurance proceeds should be allocated to the loss of parental consortium claims to the exclusion of the wrongful death claim.7 And, Basil pointed out that funeral expenses, administrative costs, and recovery costs are not deducted from the
insurance proceeds in a loss of parental consortium claim. The circuit court ultimately agreed with Basil and ordered the insurance proceeds to be distributedin toto as compensation for the loss of parental consortium claims. This was error.
The claims of loss of consortium are derivative of the wrongful death claim insofar as both derive from the same injury, the wrongful death of Steven.See Daley v. Reed, 87 S.W.3d 247, 250 (Ky. 2002). While there are multiple parties and claims, the minor children of Steven are the only beneficiaries. Under these unique circumstances, we believe that the claims of loss of consortium are merely an item of damage recoverable for the wrongful death of Steven. Consequently, all recoverable damages must be distributed in accord with the requirements of KRS 411.130. Therefore, we reverse the May 30, 2017, Findings of Fact and Conclusions of Law and remand for the circuit court to disburse the insurance proceeds to the minor children after payment of funeral expenses, costs of administration, and costs of recovery per KRS 411.130.”
Published decisions–
285. University of Louisville vs Harper – whistleblower claim; compensatory damages; mitigation of damages
286. Manning v. Liberty Tire Services of Ohio – class actions, held met burden for class certification
291. DW Wilburn Inc v. The Painting Co. – affirmed rder awarding attorney fees, costs, and prejudgment interest to for their claims on contract balances due
293. Hammond v. Commonwealth of Kentucky – held the trial court abused its discretion by excluding Hammond’s expert’s testimony about sexual role playing without conducting aproper Daubert hearing and admitting the photograph of Hammond’s genitals
299. Cabinet for Health and Family v. Estate of Lennie Cooper – affirmed holding regulation precluding reimbursement by the Cabinet for payments made for a Medicaid covered service does not apply to those made while an application is pending
308. Jennings v. Commonwealth of Kentucky – We hold that the probation condition of “[n]o access to internet” in theinstant action is not narrowly tailored to serve a legitimate interest and is also unconstitutionally vague. We decline to establish a bright-line rule, and this holding should not be construed to mean that an internet ban for a defendant onprobation would never be “reasonably necessary to insure that the defendant willlead a law-abiding life or to assist him to do so.”
320. Giles v. Commonwealth of Kentucky – warrantless entry into Giles’ apartment and subsequent searchwere per se unreasonable
321. Robinson v. Kroger – opinion of the Workers’ Compensation Board affirming the decision of the Administrative Law Judge dismissing Robinson’s claim is vacated, and this matter is remanded to the Board to addresswhether Robinson’s repetitive work aroused her pre-existing, dormant condition into disabling reality
Selected Tort and Civil Decisions Not Published —
301. Hilton v. W&M of Kentucky, Inc. —
Affirmed summary judgment dismissing premises liability claim of invitee. “From the above deposition testimony, it is clear that Hilton does not know why she fell, merely assuming there was something on the floor. Importantly, Hilton could not testify that anything was “wrong with the floors” atthe Watterson Tower on the date of her accident. As for Ms. Duvall’s affidavit,she stated that her first thought at the time of the fall was that Hilton possibly could have fallen on a cleanout cover as it was located in the area of her fall. However,
Duvall does not state that she believed Hilton fell on the cleanout cover or that the cleanout cover in some way was dangerous. And, we agree with the circuit court that Mulheirn’s expert opinion was based totally upon conjecture and speculation as to how the cleanout cover could have caused the fall, and thus lacked probative value.
307. Dewitte v. Metropolitan Direct Property and Casualty Ins. Co.
Held claimant was not a resident of the household and thus not covered for UIM and PIP benefits under the policy.
299. Commonwealth of Kentucky Cabinet of Health and Family Svcs
