Insurance Law

House Bill 478 to Remove Choice of Reserving Lost Wages.

Posted on February 11, 2008
The Kentucky Law Review posted an op-ed on HB 478, which apparently removes the right of an insured to direct withholding of no fault benefits for the payment of lost wages, in cases of emergency care. It would require the no fault obligor to pay emergency services directly to the medical provider and that the benefits be considered primary to all other forms of payment...

Court of Appeals Cases for February 8th.

Posted on February 11, 2008
The Court of Appeals has published its minutes for February 8th, here. There are no published opinions dealing with tort and insurance law.

Judge Tells Attorneys to Zip It.

Posted on February 06, 2008
Interesting article in the Courier Journal today, titled Judge tells attorneys to zip it. The Courier reports statements attributed to Judge Sean R. Delantey, saying "that certain prosecutors were wasting court time by making "obnoxious, ridiculous, abundant and useless objections" during probable-cause hearings...

Department of Highways Owes Duty to One Traveling Portion of the Public Highway on ATV.

Posted on February 04, 2008
The Supreme Court recently published Commonwealth of Kentucky v. Guffey, a case resulting from the death of Jeremiah Guffey, who was killed when his ATV struck a cable stretched across an old abandoned section of Hwy. 167 in Wayne Co. The issue before the Court was whether the Department of Highways owed a duty to the operator of an all-terrain vehicle (ATV) who is riding his ATV upon a public highway, even though persons are prohibited by statute from operating ATV's upon public roadways...

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In Matter of First Impression Supreme Court Sets Forth Rule for Franchisor Vicarious Liability.

Posted on February 04, 2008
In Papa John's International, Inc. v. Mccoy, the Supreme Court decided the issue of franchisor vicarious liability, an issue of first impression in Kentucky, arising in the context of a malicious prosecution and defamation lawsuit filed by a customer as a result of a Papa John's pizza delivery gone wrong...

Court of Appeals Cases for February 1st.

Posted on February 04, 2008
Click here for the minutes to the Court of Appeals cases for February 1st. There were no published cases involving tort and insurance law.

Supreme Court Adopts the Initial Permission Rule!!!

Posted on January 31, 2008
In a stunning decision, the Supreme Court has adopted the "initial permission rule", which alters the omnibus clause of most, if not all, insurance policies and expands coverage to all subsequent users of an "initial permissive user." In Kentucky, coverage is now afforded to anyone who is granted permission by an initial permissive user, regardless of the owner's intent...

Court of Appeals Cases for January 25th.

Posted on January 25, 2008
The Court of Appeals has posted its minutes for January 25th, here. There were no published cases dealing with tort and insurance law.

Supreme Court Minutes Posted

Posted on January 25, 2008
The Kentucky Supreme Court has posted its first minutes of the new year. Click here to see the entire list of published and unpublished cases. I will be posting on those published Supreme Court cases discussing tort and insurance law shortly.

Bill Proposed to Increase Small Claims Jurisdiction

Posted on January 21, 2008
The Kentucky Law Review recently reported on several recently proposed legislative bills. Of interest was house bill 280, here, which seeks to raise the jurisdiction of small claims court to $5,000.00. No comment on what affect this would have on the district/circuit court maximum/minimum limit of $4,000...

Court of Appeals Cases for January 18th.

Posted on January 18, 2008
The Court of Appeals has published its minutes for January 18th, 2008, here. One interesting published case involving a malicious prosecution case. In Craycroft v. Pippin, the Court of Appeals ruled that a prior finding of probable cause by a criminal court is not determinative of that issue in a case of malicious prosecution...

Chiropractor on Trial, PIP Abuse, and Other Thoughts

Posted on January 17, 2008
The Kentucky Law Review reported on a Courier Journal article discussing the beginning of the criminal fraud trial of Dr. Paul Hollern, described by the article as someone "who once headed a chiropractor-training empire from Louisville." The trial is taking place in U...

Court of Appeals Cases for January 11th.

Posted on January 11, 2008
The Court of Appeals has published its minutes for January 11th. Click here to view the entire list. Only one interesting published case closely related to torts, involved a reversal of a default judgment. In Leedy v. Thacker, the Court addressed an appeal of a default judgment and award of damages in two separate cases dealing with the same subject matter...

Happy New Year to the Kentucky Law Review

Posted on January 08, 2008
Mike Stevens of the Kentucky Law Review has recently posted some kind words about the Kentucky Tort and Insurance Law Journal here. Mike was one of the first of our kind to take his well respected and highly useful Louisville Law Wire to the Blogosphere...

New Changes for 2008!

Posted on January 08, 2008
2008 brings some new changes to the blog. First, I have changed the name to Kentucky Tort and Insurance Law Journal. I have dropped the use of the term blog, not because I take issue with the word or because I don't fancy myself a blogger. Given that my posts are not posted everyday and that the topical nature of the blog is governed more by scheduled occurrences than day to day issues, I thought the word "journal" more closely fit with what it was I did here...

Court of Appeals Published Decisions January 4, 2008.

Posted on January 07, 2008
The Court of Appeals minutes for January 4, 2008 have been posted. There were not any tort or insurance law cases published. To view the Court's minutes, click here.

2008 New Year's Resolution!

Posted on January 03, 2008
The New Year is upon us. Newspapers, television, the internet, and the local water cooler are abuzz with talk about New Year's resolutions and thoughts on how to keep them. Despite a significant failure rate, every year millions of people vow to change or do something different than the year before...

Forum Non Conveniens Again?

Posted on December 03, 2007
The Supreme Court has published Dollar General Stores, Ltd. v. Smith, another case dealing with the little known and seldom used doctrine of forum non conveniens. The court had previously held that the savings provision of KRS 413.270 applied to save cases filed in the improper venue, as well as, those filed in the wrong jurisdiction...

Kentucky Defense Counsel to Host Its Fall Seminar at Churchill Downs

Posted on October 23, 2007
The Kentucky Defense Counsel, Inc. has set its Fall Seminar for October 26, 2007, to take place at the Derby Museum at Churchill Downs. The program is approved for 6 hours of CLE credit, including 1 hour of ethics. The keynote speaker is Larry Pozner, who is identified as the co-author of America's all time best selling book on cross examination...

Court of Appeals Dispells the Misconception of "Universal Duty."

Posted on October 22, 2007
In addition to the issues discussed by the Court of Appeals in Jenkins v. Best, et al., in my prior post, the court also discussed the misuse of the "universal duty of care" language mentioned in many Kentucky cases. You will recall that the trial court granted summary judgment, finding that no physician/patient existed between Dr...

Court of Appeals Holds That Defendant Cannot Challenge Codefendant's Grant of Summary Judgment.

Posted on October 04, 2007
The Court of Appeals published Jenkins v. Best, et al., which answered the age old question of whether one defendant can challenge the grant of summary judgment to another defendant on appeal. Baptist Hospital East (BHE) contracted with University Associates to provide perinatology services...

Appeals Court Discusses Jurisdiction over Nonresidents and Forum Non Conveniens

Posted on September 17, 2007
The Court of Appeals recently published Elder, et. al v. Perry Co. Hospital, et. al, a medical malpractice case involving Kentucky residents and Indiana residents. The parents of the deceased were Kentucky residents who had their son treated in Indiana, where the medical negligence was alleged to have occurred...

Court Upholds Denial of Coverage for Insured Due to Status of Injured Party

Posted on August 23, 2007
The Court of Appeals just published Codispoti v. First Financial Insurance Company, which dealt with an exclusion to coverage for injury to an employee of the "insured." The circuit court entered summary judgment holding that an employee exclusion in the policy precluded coverage to Joseph M...

Expert Testimony Required in Finger Surgery Resulting in Loose Teeth?

Posted on August 23, 2007
The Court of Appeals recently published Green v. Owensboro Medical Health System, Inc., et al., a case involving allegations of medical negligence during an operation to repair a fractured finger. Green emerged from a surgery to repair a fractured finger to find her mouth bloody and her teeth loose and misaligned...

Supreme Court to Hear Whether Insured Can Prejudice Insurer's Right to Subrogation and Still Collect Under Policy.

Posted on August 01, 2007
The Supreme Court has granted discretionary review in the case of Gilbert v. Prime, Inc., et al. This was a nonpublished opinion, dealing with the statute of limitation for property damage, representations by claims personnel regarding settlement, but most importantly, whether an insured can collect against her own collision coverage after the applicable statute of limitation has run...

Workers Compensation Carrier Cannot Subrogate Against Injured Party's UIM Benefits.

Posted on July 24, 2007
The Court of Appeals just published G&J Pepsi-Cola Bottlers, Inc. v. Fletcher, et al. The primary issue became whether G&J could assert a subrogation claim against the UIM benefits Fletcher was seeking from US Fire Insurance Co. and Ohio Casualty Group...

Court of Appeals Upholds 2.54 million of 2.74 million FELA Verdict!

Posted on July 24, 2007
The Court of Appeals just published CSX Transportation, Inc. v. Moody, which dealt with several issues arising from a jury verdict awarding Moody $2.74 million in his FELA action. CSX sought review that: (1) the evidence was insufficient to submit the issue of foreseeability to the jury; (2) the trial court should have given a specific foreseeability instruction; (3) the evidence was insufficient to prove causation; (4) it was error to allow Moody to introduce evidence of other dissimilar claims filed by workers against CSX; (5) the evidence was insufficient to support the jury's award for future medical expenses and lost wages; (6) the trial court erroneously failed to instruct the jury that lost wages and future medicals are non-taxable; and (7) the trial court should have instructed the jury to discount the award to present value...

Inferred Intent Applies to Exclude Coverage When Actor Kills Another But Claims Lack of Mental Capacity

Posted on June 27, 2007
The Court of Appeals just published Nationwide Mutual Fire Ins. Co. v. Pelgen, et. al, which dealt with "inferred intent" as it applies to exclude coverage for intentional acts. "Under Kentucky precedent, certain actions by the insured give rise to an ?inferred intent,? regardless of the actor's actual intent, so as to preclude coverage...

Supreme Court Rules No Recovery for Pre-Impact Fear!

Posted on June 27, 2007
The Supreme Court recently published Steel Technologies, Inc., v. Congleton, et. al, which dealt with the award of damages for pre-impact fear. The case arose from a tractor-trailer accident, that resulted in the death of Melissa Congleton. Steel Technologies employed the driver to haul large steel coils...

Landowners Owe Implied Licensees Duty of Care for Known Unsafe Conditions

Posted on June 01, 2007
The Court of Appeals just published Hack v. Baker, which discussed the legal status of a child entering on a neighbor's property at play and the legal duty owed to that child. Hack resided with his family in a residence located in a cul-de-sac. (Think Ed, Ed, and Eddy)...

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