The Kentucky Court of Appeals announced 27 decisions on Aug. 1, 2014 (2 published). This week’s issues include work-related asbestos claim by estate affirmed with punitives; $1.9 million dollar underinsured motorist verdict reversed because of discovery; exclusive remedy not work when surgeon kicks nurse following surgery; DVO reversed for insufficient evidence (Lewis v. Lewis); Sex Offender Registration Act found constitutional.
General John Hunt Morgan “Thunderbolt of the Confederacy”
General John Morgan was born in Huntsville, Alabama on June 1, 1825. When John Morgan first joined the Confederate Army he served under General Simon B. Buckner, and was promoted to Colonel of the second Kentucky cavalry on April 4, 1862. He was promoted to Brigadier General on December 11, 1862. He became known as one of the most legendary Confederate commanders, known for his various raiding parties. General Morgan was a picture perfect cavalry fighter, much like JEB Stuart. Morgan was a perfect Southern gentlemen even during battle. Even though Morgan didn’t have much formal military training he possessed an instinctive talent that made up for his lack of training.” From Biography of General John Morgan by Gabe Wheeler. For detailed info on General John Morgan, click here.
The two published decisions for August 1, 2014 with name, link to full text, and key issue are:
704. Criminal Law. RCr 11.42 ineffective assistance of counsel
Carlton McIntosh vs. Commonwealth of Kentucky
Affirming; Warren County
721. Criminal Law. Sex Offender Law Act Challenged.
Jimmy Dale Sage vs. Commonwealth of Kentucky
Affirming; Jefferson County
Click here for links to all the archived Court of Appeals minutes.
“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law.
701. Asbestos Exposure of Employee. Judgement for Estate Affirmed with Punitives.
Garlock Sealing Technologies vs. Dexter Estate
COA, Not Published Opinion (NPO), 8/1/2014, Judge Dixon Presiding; Affirming
708. Exclusive remedy provisions for tort claim affirmed
Diane Powell vs. Ashland Hospital Corp. dba King’s Daughters Medical Center
COA, NPO 8/1/2014, Judge Dixon Presiding , Affirming, Boyd County
Claim against the hospital were affirmed on appeal which had been dismissed by the trial judge due to exclusive remedy provisions of the workers compensation act (negligent supervision and other claims against the hospital for actions of Dr. Robert Fried who had kicked Diane Powell, surgical nurse, following a procedure. However, the jury awarded Ms. Powell $5,000 compensatories and $35,000 in punitives against the cardio thoracic surgeon which was affirmed on appeal.
711. Underinsured Motorist Benefits. Discovery.
Motorists Mutual Ins. Co. vs. Gypsie Thacker
COA, NPO, 8/1/2014, Judge Dixon Presiding, Reversing and Remanding $1.9 million dollar jury verdict to Thacker for underinsured motorist benefits; From Bourbon County. Judge Caperton dissented with separate opinion about substituting judgment for that of jury.
Thacker, a Pikeville resident, was in Floridian and while on her bicycle she was struck by a Floridia driver. The liability carrier tendered their $20,000 in limits; and Thacker proceeded on her underinsured motorist claim (UIM). A Pikeville jury awareded her $3.9 million but apportioned fault between Thacker (pedestrian) and Higgins (driver) 50/50.
On appeal, Motorists Mutual lost on a multitude of issues but won a reversal and remand on the trial judge’s order denying discovery of Thacker’s psychotherapy records. Thacker sought a protective order on this discovery; and the trial court subsequently conducted an in camera review of the psychotherapist’s records and entered a protective order denying discovery on the basis that the records did not contain information relevant to Thacker’s claims, nor would they lead to discovery of relevant evidence.
Although the trial court herein made no mention of privilege under KRE 507, this is precisely the type of evidence that would be discoverable under Dudley. Further, we have carefully reviewed Spare’s records and must conclude that, contrary to the trial court’s ruling, the records are directly relevant to Thacker’s claims and Motorists Mutual was entitled to discovery of such. Accordingly, the trial court’s denial of discovery was an abuse of discretion and warrants a new trial. Because we are remanding for a new trial, we will also address those issues that are likely to recur.
Note that the complete list of errors raised by Motorist Mutual follow with only (2) resulting in a reversal and the remainder affirmed.
Motorist claimed the trial court erred by (1) refusing to give a sudden emergency instruction; (2) denying discovery of Thacker’s psychotherapy records; (3) refusing to allow its expert to testify regarding the speed of Higgins’ vehicle; (4) precluding its request for a Kentucky Rules of Civil Procedure (CR) 35 examination by a rheumatologist; (5) permitting Thacker to introduce Officer Medeiros’s opinion that someone in Higgins’ situation would apply maximum breaking and stop immediately; (6) excluding evidence of an alternative route; (7) permitting Thacker to introduce evidence that its reconstructionist did not have a Kentucky license; (8) precluding evidence from Thacker’s divorce pleadings; and (9) not dismissing as a matter of law Thacker’s claims for violation of the Consumer Protection Act, bad faith, and for punitive damages. After reviewing the record and applicable law, we conclude that Motorists Mutual was entitled to discover Thacker’s psychotherapy records and that the denial of such warrants a new trial.
[gview file=”http://apps.courts.ky.gov/Appeals/Minutes/MNT08012014.pdf”]
