PUBLISHED DECISIONS.
455. Powers v. Commonwealth of Kentucky
Criminal Law. Evidentiary issues relating to involuntary rape, sodomy, incest by forcible compulsion/incapable of consent (intoxicated victim). Jury misconduct. Affirmed convictions.
460. Watson v. United States Liability Ins. Co.
Statute of limitations. Accrual for third party bad faith claim and Unfair Claims Settlement Practices Act (five years).
On appeal, the dispositive issue presented is when Watson’s badfaith claim accrued. USLI maintains that Watson’s claim accrued no later thanJ une 30, 2012, when an offer of settlement was conveyed to Watson from USLI. Watson, on the other hand, argues that his claim should have been deemed asserted as of February 2012 (when he moved for leave to amend his complaint a second time to assert his bad faith claim against USLI) or on April 17, 2012 (the date the circuit court denied him leave to do so). Alternatively, Watson argues his bad faith claim did not accrue until December 2012,5 when he executed the agreement that settled his claims against Pure Country and was paid the settlement amount.
On August 9, 2017,2 Watson moved to amend his second amended complaint.
Held Watson’s claim did not accrue until December2012, we reverse.
In short, third-party claims against insurers generally cannot be maintained, and thus cannot accrue, until after: (1) a judgment fixing liability against the insured has been entered; or (2) the insured becomes legally obligated to pay pursuant to terms of the insurance contract. See Kentucky Hosp. Ass’n Tr. v. Chicago Ins. Co., 978 S.W.2d 754, 755-56 (Ky. App. 1998); see also Martin Cnty. Coal Corp. v. Universal Underwriters Ins. Co., 792 F.Supp.2d 958, 961 (E.D. Ky. 2011) (explaining that there are only two conceivable bases for holding an insurer liable for its insured’s liabilities: Either a judgment; or a contractual agreementbetween the parties that the insurer would pay for its “insured’s voluntary settlements no matter whether the insured could have actually have been held liable.”).
SELECTED UNPUBLISHED TORT, INSURANCE, CIVIL CASES.
443. Infinity Energy Inc. v. Henson
Apportionment of fault against empty chair defendant requires finding of fault/liability against the empty chair (phantom) defendant.
Apportionment is appropriate “[i]f there is an active assertion of a claim against joint tortfeasors, and the evidence is sufficient to submit the issue ofliability to each[.]” Floyd v. Carlisle Const. Co., Inc., 758 S.W.2d 430, 432 (Ky. 1988). Our Supreme Court tells us that “[e]mpty-chair defendants who have settled are to be treated no differently than participating defendants in regard to what must be proved to apportion fault against them [even t]hough the empty-chair defendant will not actually be held liable in the trial, since it is literally not on trial[.]” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 74 (Ky. 2010).
Fault, in this context, is synonymous with liability. “When, under the evidence, only one party is shown to have caused an injury, fault and its resulting liability cannot legally or rationally be apportioned elsewhere.” Morgan v. Scott, 291 S.W.3d 622, 634 (Ky. 2009) (plurality opinion). Neither comparative negligence nor its apportionment counterpart “give a party the right to apportion fault to persons whose liability has been judicially determined not to exist.”Jenkins v. Best, 250 S.W.3d 680, 686 (Ky. App. 2007). “This means sufficient evidence of all the elements of the tort must be presented against every tortfeasor to which fault is assigned. If there is insufficient evidence as to a tortfeasor, the jury [or the court in the case of a bench trial] cannot properly apportion fault against it.” CertainTeed, 330 S.W.3d at 73.
Here, the circuit court found only one party at fault – Infinity Energy.See KRS 411.182(1) (apportionment appropriate “[i]n all tort actions . . . involving fault of more than one (1) party to the action[.]”). It found Infinity Energy’soverloading of the truck to be the sole cause of the accident. Because Infinity Energy failed to prove to the circuit court’s satisfaction that the trucking company or the truck driver’s alleged negligence caused the accident, it failed to prove “all the elements of the tort” of negligence.4 That is, there is no liability – no fault –attributable to the trucking company or its driver and, therefore, nothing to apportion to either.
445. Estate of Dorthy Brown v. Louisville/Jefferson County Metropolitan Sewer District
Wrongful death. Immunity
450. Jeffries v. Barnes
Statute of limitations and tolling for unsound mind.
451. Davis v. Lowery
Tort and exclusive remedy under workers compensation for injuries from slip and fall at school.
452. DeSpain v. Hartford Fire Ins. Co.
Workers compensation and exclusive remedy defense. Discovery of claims file. Duty of insurer to defend.
456. Lexington Alzheimers Investors LLC v. Estate of Katherine Fisher
Affirmed denial of motion to compel arbitration.
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