The Kentucky Court of Appeals announced 18 decisions on Aug. 15, 2014, four published). Some general issues include: taking prosecutor’s lap top back into jury during deliberations to view video statement in criminal case (Napier v. Com.); SOL for UIM accrues upon denial of claim (Hensley v. State Farm); business lawyer in business deal sued over conflict of interest ( J&B Energy vs. Caldwell); another Post-Shelton slip and fall easily affirmed verdict against property owner (Holbrook v. Dollar General).
Boyle County Court House, another view.
The four published decisions for August 15, 2014. The name, link to full text, and key issue for each decision are:
750. Criminal Law. Taking prosecutor’s lap top back into jury during deliberations to view video statement.
Tracy Napier vs. Commonwealth of Kentucky
COA, Published, Judge Thompson, Reversing and Rmanding, Perry County
Based on our Supreme Court’s most recent decisions cited, we reach three conclusions. First, a trial court commits error when it permits the jury to review testimonial evidence in the privacy of the jury deliberation room. Second, the trial court commits error when it permits the jury to review testimonial evidence after it has retired for deliberation without the presence of the defendant. Third, the trial court’s use of an unclean laptop to review non-testimonial or testimonial evidence during deliberations is error. Here, all three errors occurred: The jury viewed testimonial evidence in the jury deliberation room without the presence of defense counsel or Napier and was provided the Commonwealth’s unclean laptop.
754. Underinsured motorist benefits, Statute of Limitations Accrual
Hensley vs. State Farm Mutual Ins. Co.
COA, Published 8/15/2015; Judge Jones Reversing and Remanding, Jefferson County
Held the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage.
755. Retroactive Application of Unclaimed Life Insurance Benefits Act
United Ins. Co. of America vs. Commonwealth of Kentucky
COA Published 8/15/2014; Judge Maze Reversing, Franklin County
758. Criminal Law. Competency to stand trial
Cox vs. Commonwealth of Kentucky
COA Published 8/15/2014; Judge Jones Affirming
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 (continue reading).
PUBLISHED
754. Underinsured motorist benefits, Statute of Limitations Accrual
Hensley vs. State Farm Mutual Ins. Co.
COA, Published 8/15/2015; Judge Jones Reversing and Remanding, Jefferson County
Held the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage.
This appeal requires us to consider when the statute of limitations begins to accrue on an underinsured motorist (“UIM”) claim. For the reasons more fully explained below, we hold that the statute of limitations on a UIM claim begins to run when the insurer denies a claim for UIM coverage. While an insurer can shorten the limitations period by contract, KRS1 304.14-370 operates to prevent a foreign insurer from relying on policy provisions that bar claims filed less than a year from the accrual of the cause of action. Under both the policy terms at issue and the common law of Kentucky, the UIM claim in this case did not accrue until November 4, 2011, when State Farm denied Hensley’s claim, less than a year before this action was filed. Accordingly, the Jefferson Circuit Court erred when it concluded that this action was time-barred. As such, we reverse the circuit court’s summary judgment in favor of the Appellee, State Farm Mutual Automobile Insurance Co. (“State Farm”), and remand this action to the circuit court for adjudication on the merits.
755. Retroactive Application of Unclaimed Life Insurance Benefits Act
United Ins. Co. of America vs. Commonwealth of Kentucky
COA Published 8/15/2014; Judge Maze Reversing, Franklin County
NOT TO BE PUBLISHED
745. Business law. Attorney accused of legal negligence and conflict of interest in business dealings.
J & B Energy, Inc. vs Paul M. Caldwell
COA, Not Published 8/15/2014; Judge Caperton Affirming in part, reversing in part & remanding; Muhlenburg County
751. Premises Liability (jury properly instructed, Pos-Shelton)). Appeals (issues not raised in prehearing statements). Future medical expenses (proof of).
Lolita Holbrook vs. Dollar General Store Corp.
COA, Not Published 8/15/2014; PJ Lambert Affirming; Floyd County
On appeal, Holbrook raises four arguments: 1) that the trial court erred in instructing the jury on the open and obvious doctrine; 2) that the trial court erred when it admonished the jury by limiting Dr. Mann’s testimony related to future medical treatment, which led to an inadequate award of damages by the jury; 3) that the court erred in failing to sua sponte declare a mistrial for an intentional violation of Kentucky Rules of Evidence (KRE) 615 regarding the separation of witnesses; and 4) that the trial court erred in admonishing the jury as to the credibility of witness Delonda Hall.
However, issues No. 3 & 4 were not on appellant Holbrook’s prehearing statement and not palpable error per CR 61.02 and dismissed per CR 76.03(8).
Additionally, on page 31, Dr. Mann again agreed with Holbrook’s counsel when he asked, “And you believe that [treatment] will be necessary in the future and the possibility of surgery and a surgical evaluation. Do you believe, within reasonable medical probability, that that treatment will be required in the future?” We must agree with Dollar General that Dr. Mann’s testimony related to future surgical intervention did not meet the standard of a reasonable degree of medical probability to be considered by the jury. His opinion was made in terms of possibility rather than probability, and Holbrook’s argument that she cured this by asking if his answers were made within a reasonable degree of medical probability or certainty cannot work to alter his answers. Therefore, the trial court did not abuse its discretion in limiting Dr. Mann’s testimony regarding future surgical intervention.
[gview file=”https://kycourtreport.com/wp-content/uploads/2014/08/MNT08152014.pdf”]
