This week’s Court of Appeals decisions numbered 505 through 536, with 32 decisions; 6 of which have been designated “to be published”. COA addressed Legal malpractice and Statute of Limitations; Dismissal of appeal for deficient brief; police immunity; child abuse reporting immunity; Post-Shelton Premises Liability; Bad Faith’s “evil motives” and jury question.
Bourbon County Court House at Paris, Kentucky with a “post card” vintage effect. Photo by Michael Stevens 3/2/2014
The Tort Report – Selected decisions this week on tort, insurance and civil law.
506. Legal Malpractice
Robert Hughes vs. J. Fox Demoisey
COA, Published 6/13/2014; Jefferson County (Cunningham, J.)
THOMPSON, JUDGE: We hold the legal malpractice action accrued on March 12, 2007, when Exact and Infocon entered into an oral settlement of the Exact litigation. At that time, a readily ascertainable event occurred for purposes of any alleged malpractice committed by DeMoisey in the Exact litigation, and any injury became fixed and non-speculative regardless of the delay in executing a formal written settlement agreement or dismissing the Exact litigation. Having concluded the action accrued on March 12, 2007, the malpractice action was not timely filed unless the discovery provision of KRS 413.245 applies.
502. Premises LIability and Post-Shelton Remand on Open and Obvious
Danny Embry vs. Mac’s Convenience Stores, LLC
COA Not published 6/13/2014; Jefferson County (Eckerle, J.)
This case was heard on remand from Supreme Court following Shelton v. Kentucky Easter Seals with Court of Appeals reversing and remanding summary judgment dismissing premises liability claim.
508. Appeal Dismissed For Deficient Brief.
David Krugman vs. CMI,Inc.
COA, Published 6/13/2014; Daviess County (Wethington, J.)
DIXON, JUDGE: In this case, CMI successfully moved to strike Appellants’ initial brief, and a panel of this Court ordered Appellants to file a brief that specificallycomplied with CR 76.12(4)(c)(v). Despite this explicit order, Appellants’ second brief still failed to fully comply with the rule. We cannot condone Appellants’ disregard for the procedural rules and an order of this Court. “If compliance with the Civil Rules were not critical, we would not have quoted the Rules in our Order striking the first brief.” Id.
COA, Not Published, 6/13/2014; Rockcastle County (Tapp, J.)
Stephen O’Daniel vs. Mike Sapp
COA, Published 6/13/2014; Franklin County (Isaac,J.)
Lavonne White vs. Norton Healthcare
COA Published 6/13/2014; Jefferson County (Cunningham, J.) Affirming
JONES, JUDGE: Appellant Lavonne White, in her individual capacity and as guardian and best friend for her minor daughter, D.R.W. White (Daughter), asks us to review the Jefferson Circuit Court’s order granting summary judgment in favor of Appellees. For the reasons set forth below, we affirm.
Immunity: Based on these undisputed facts, we believe there was sufficient evidence to support Appellees’ subjective belief of possible abuse entitling them to immunity pursuant to KRS 620.050(1). Having reviewed White’s complaint, we fail to appreciate how additional discovery would have produced material evidence related to the immunity issue. The record contained affidavits from the medical personnel as well as copies of Daughter’s admission and medical records. The record contained the evidence the trial court needed to determine whether Appellees were statutorily immune from suit. We find no error in this regard.
Medical Negligence: White was required to present expert medical testimony on the issue of medical negligence. Like the trial court, we find Powe’s affidavit insufficient to amount to expert testimony. A review of Powe’s affidavit reveals nothing more than a mere recitation of the law. Nothing in Powe’s affidavit provides any opinion of how the Appellees deviated from the applicable medical standard of care for negligence purposes. Therefore, we agree with the trial court that summary judgment was proper.
522. Bad Faith, Evil Motives of Insurer
Christy Larrimore vs. Travelers Insurance Company
COA Not Published 6/13/2014; Jefferson County (Gibson, J.) Reversing & Remanding
CLAYTON, JUDGE: This is an appeal of a summary judgment entered by the Jefferson Circuit Court in an action for bad faith and a violation of the Unfair Claims Settlement Practices Act (UCSPA). Based upon the following, we reverse the decision of the trial court and remand this case for further proceedings.
This case involves a motor vehicle accident that occurred in Jefferson
County on January 7, 2009. On that date, appellant Terry Larimore was traveling westbound on Highway 22 with his sons, Connor and Zachary, as passengers when a vehicle being operated by Kellan Emge crossed the center line and struck his vehicle head-on. There was no dispute that Emge was at fault.
The accident had catastrophic results as Larimore’s son Connor died from his injuries and both he and his son Zachary were severely injured. Larimore was insured by Travelers Insurance with maximum underinsured motorist (UIM) coverage of 250/500. Travelers did not pay the claim made by the Larimores, however, until nineteen months after the accident. The Larimores had retained counsel at this point and had filed suit. After settlement, the Larimores brought this action under the UCSPA and common law bad faith. The trial court granted summary judgment to Travelers on these claims. The Larimores now appeal the granting of summary judgment.
In entering summary judgment, the trial court essentially made its own finding of fact regarding the level of harm caused by the delay of Travelers in settling with the Larimores. A jury, as finder of fact, could have determined that the length of delay by Travelers was so egregious that it rose to the level of bad faith.
Here, Travelers repeatedly made demands of the Larimores including asking for a copy of their son’s funeral program, and refused to settle while admitting liability. Thus, the Larimores introduced evidence creating a genuine factual issue in which a jury might find that Travelers acted in bad faith, intentionally committed misconduct emanating from an evil motive, or acted with reckless indifference to their rights. It was an error, therefore, for the trial court to grant summary judgment on this issue. For the above reasons, we reverse the decision of the trial court and remand this case for further proceedings.
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