September 27, 2016
Kentucky Accident Information has a new post discussing how businesses are still responsible for injuries when they misuse or overuse yellow caution signs to warn of dangers on their property. The article discusses not only the misuse of yellow caution signs by businesses, but the habitual overuse of those same yellow caution signs when no danger is present.
The article goes in depth to identify the most common misuse or overuse mistakes that businesses make and how they attempt to avoid liability by misusing and overusing yellow caution signs. It is a very interesting read and something every customer should keep in mind when they visit a business or commercial venue. It is important to remember that the obligation businesses owe their customers extends beyond slapping a yellow caution sign up on the property in hopes to avoid injury. Kentucky Accident Information explains the extent of that obligation and the steps customers can take to protect not only themselves but other customers as well.
September 19, 2016
The Court of Appeals recently decided Houchens v. GEICO, a case that questioned whether a reparations obligor in Kentucky is entitled to utilize “paper reviews,” which are not tendered to nor reviewed by a court, as the sole basis for terminating or denying an insured’s no-fault benefits (BRB’s).
Houchens contended that the only “medical review expressly sanctioned by Kentucky’s MVRA is contained in KRS 304.39-270 and requires court oversight. GEICO, on the other hand, argues that the statutory language is purely permissive in nature, and that it has the discretion whether to utilize the statutory procedure or to seek its own paper review of an insured’s medical records.”
September 7, 2016
The Kentucky Court of Appeals recently published two cases dealing with apportionment involving third-party defendants that are of interest.
In the case of Memorial Sports Complex, LLC v. McCormick, et al., the Court was required to determine whether the dismissal, but subsequent allowance of apportionment, of the third-party defendants was appropriate. Memorial was sued after a minor (Mowery) suffered personal injury running into one of its fences during a baseball game. Memorial filed a third-party complaint, seeking contribution, indemnity, and apportionment against McCormick, (Mowery’s Coach), Mowery’s father (Dale), and Geddes Fence Company (Geddes).
The trial court granted McCormick’s and Dale’s respective motions and dismissed Memorial’s third-party claims against them with prejudice in identical judgments, stating “Due to the applicability of apportionment of fault, as required in [Kentucky Revised Statutes] KRS 411.182, there is no right to contribution” and “indemnity is not appropriate as the kind of fault alleged by Plaintiff Mowery against Memorial Sports Complex, LLC is that it created and/or maintained the hazard that was the alleged cause of Mr. Mowery’s claimed injuries.” The final judgments contained language that; “This dismissal will not prevent Third-Party Plaintiff [Memorial] from seeking an apportionment instruction relevant to the claims against it to the extent that any fault can be proved against the now
dismissed Third-Party Defendant[s][.]” Geddes moved for summary judgment which was granted by the trial court, dismissing Memorial’s claims “with prejudice, as a matter of law, subject to apportionment in Plaintiff’s [Mowery’s] claim against Memorial.” Memorial appealed both rulings.
The Kentucky Supreme Court recently issued an opinion regarding which of two insurance policies provided primary insurance for purposes of uninsured motorists (UM) benefits provided to a passenger.
The car in which the passenger was riding was struck by a car later found to be uninsured. The driver of the car maintained an insurance policy that provided coverage for UM benefits. The passenger also owned a car of her own, which likewise provided UM benefits in the event she was injured by an uninsured car.
An argument arose between the two insurance companies regarding which insurance company was responsible to provide primary coverage to the passenger or whether they were both responsible for providing coverage under their respective “other insurance” clauses that provided coverage on a pro rata basis.
The Court identified two issues for determination. First, should the competing insurance companies “other insurance” clauses apply so that they were mutually repugnant and therefore pro rata apportionment was necessary or should they be deemed in violation of the Motor Vehicle Reparations Act (MVRA), and second, who bears the primary responsibility for providing UM coverage the vehicle’s insurance company or the passengers?
With respect to the first question the Court found that the “other insurance” clauses should be disregarded entirely in the UM context. It stated:
This case illustrates the importance of that point, and makes clear that our reasons in Shelter for “declin[ing] . . . to further embroil Kentucky courts in unduly complicated two-step insurance policy interpretations of continually emerging and changing insurance avoidance clauses,” apply just as much to priority disputes between vehicle and passenger insurers in UM cases as to similar disputes between vehicle and permissive-driver insurers in liability cases. We agree with the Court of Appeals, accordingly, that between such insurers, “[a]bolishing the rule of apportionment for UM coverage is a logical and natural extension of Shelter.” (Citations omitted).
With respect to the second question the Court found that the car in which the injured passenger is riding owes primary coverage for UM benefits. It stated:
As we indicated in Shelter, however, given the increasing demise of the “general rule” as an industry standard, and given the proliferation of “other insurance” clauses and
the inevitable litigation they spawn, any contrary result runs directly counter to the MVRA’s basic purposes of minimizing insurance litigation and “encourag[ing] . . . prompt payment of needed medical care and rehabilitation” to accident victims. As in Shelter, therefore, we find in the stated purposes of the MVRA a legislative intent to the effect that in instances where both the vehicle owner and a non-owner passenger are separately insured with UM coverage, the vehicle owner’s coverage shall be primary. (Citations omitted).
This case closely mirrored the problems that the Supreme Court was concerned about with these types of clauses and issues. Two insurance companies arguing over who is supposed to provide UM coverage to an injured passenger that both companies agree she should receive. It took four years, however, before either insurance company paid any benefits to the passenger. As such, the Court found that allowing competing insurance clauses did nothing more than give the insurance companies a reason to argue with each other and delay payment to the insured in violation of the MVRA’s specific purpose of prompt payment of claims. It also noted the inherent difficulty in finding the insurer for a passenger as opposed to a car, which was readily identifiable and required.
A very thorough and well-reasoned opinion that should bring the different coverages available into agreement with one another. Frankly, I have on several occasions had this issue come up in the UM and UIM context and have never had an insurance company for the car in which my client was riding try to deny its primary role in providing coverage. This opinion effectively renders these two issues resolved in Kentucky as to all types of insurance coverage.
You can read the entire opinion, here.
August 22, 2016
I will be speaking at a seminar hosted by National Business Institute titled; “Litigating Bad Faith Insurance Claims in Kentucky.” The seminar will take place on Friday, September 23, 2016, at the Holiday Inn Louisville East-Hurstbourne. Here is the program description:
Gain the Practical Skills You Need to Handle Bad Faith Claims
Can you easily distinguish circumstances in which bad faith exists vs. where it does not? Are you aware of the tips, tricks and best practices utilized by both sides of the table? Augment your insurance knowledge with the concrete strategies you need to avoid traps, overcome challenges and reach your goal in the next bad faith case. Whether you’re counsel for the plaintiff, the defense, or are an insurance professional trying to prevent bad faith claims, you won’t find instruction this practical anywhere else. Register today!
Get a clearer understanding of what bad faith is and isn’t.
Anticipate and avoid the commonly-mishandled aspects of bad faith cases.
Accurately determine the validity of a claim with surefire discovery tactics.
Understand the effectiveness bad faith defenses and know alternatives when they’re not accepted in court.
Get pointers for presenting bad faith in court, from voir dire to verdict.
Walk through the major stages of a case and get practical pointers from experienced faculty along the way.
The class qualifies for 6.0 Kentucky CLE credits. You can click the following link for the complete details on how to register, costs, and program and course content.
The Court of Appeals recently discussed what qualifies as “occupying” a car for purposes of qualifying for underinsured motorists coverage (UIM) in Jackson v. State Farm Fire & Cas. Co., unpublished. The Court discussed the four factor test to determine if someone is “occupying” a car. The Court of Appeals found as follows:
Considering the facts most favorably to Jackson under an expansive interpretation of the State Farm policy, we conclude the trial court erred by determining as a matter of law that Jackson was not “occupying” Doyle’s vehicle: (1) there was a causal relationship or connection between where Jackson was located when he received his injury and the use of the insured vehicle; Hayes’s action of calling to Jackson, Doyle’s action of stopping his vehicle behind Jones’s vehicle, and Jackson conversing with Hayes through the open passenger window with his back to Jones’s vehicle put him in a vulnerable position behind her vehicle and the impact of the two vehicles resulted in his injuries from being pinned
between them and hitting his head on Doyle’s vehicle; (2) Jackson was in reasonably close geographic proximity to Doyle’s vehicle because he was in actual physical contact with it when he was hit by Jones’s vehicle; (3) Jackson was vehicle oriented because he had his hands on the vehicle and was talking to Hayes through the window; and (4) Jackson was arranging a ride which was an essential transaction to enable him to use the vehicle as a passenger and, although paused, the vehicle was still being driven which is also an essential use of the vehicle. Therefore, the trial court erred in granting summary judgment to State Farm.
The Court also determined that regardless of the four factor test, Jackson qualified as “occupying” the car under State Farm’s own policy, regardless of the four part test. The Court did not believe that Jackson’s receipt of Basic Reparations Benefits from GEICO as a “pedestrian” was significant, since Jackson qualified for those benefits under State Farm’s definition of “occupying” and he could have applied for the benefits from State Farm. Finally, the purpose of the Motor Vehicle Reparations Act (MVRA) is to expand coverage, not to limit it and the four part test should not be used to limit the application of coverage, but to expand it.
A very well reasoned and fact specific application of the four part test set forth in Kentucky Farm Bureau v. McKinney, 831 S.W.2d 164 (Ky. 1992). The fact specific nature of the four part test makes it doubtful that this case will have broad application with the exception of the discussion regarding expansiveness. In the summary judgment context both the policy of insurance and the MVRA’s purpose are to be viewed as expanding coverage to persons injured in car accidents, not in limiting it. This is keeping with the summary judgment standard of “viewing the facts in the light most favorable to the non-moving party” and the MVRA’s purpose in providing a “source of recovery for injured persons.”
This is a decision that was actually rendered in May by the Kentucky Supreme Court. However, it has serious implications as the most recent opinion the Court has issued on punitive damages and it’s worth your time.
Saint Joseph Hospital appealed from an opinion of the Court of Appeals that affirmed a Fayette Circuit Court judgment awarding $1,450,000.00 in punitive damages to the Estate of James Milford Gray. The award was based upon a jury verdict finding that the Hospital had engaged in gross negligence in its treatment of Gray following two visits to the Hospital’s emergency room after which he ultimately died.
The Hospital raised the following arguments for relief: (1) the trial court erred in failing to grant a directed verdict on the Estate’s claim for punitive damages; (2) the evidence failed to establish that the Hospital ratified its staffs misconduct so as to authorize an award of punitive damages against it pursuant to KRS 411.184(3); (3) the jury instructions provided for the Hospital’s liability based upon tortious conduct of the independent contractor
physicians engaged to provide emergency room services; (4) the punitive damage award was excessive and violated the Due Process provisions of the Fourteenth Amendment; and (5) the trial court’s failure to dismiss a sleeping juror deprived the Hospital of a fair trial.
This case endured a tortuous course through the courts. The verdict now under review was the second jury verdict awarding punitive damages against the Hospital. In the initial verdict, all the other defendants settled and the case went to trial on the claims against the Hospital and its employees. The jury returned a verdict in favor of the Estate, assessing compensatory damages in the sum of $25,000.00. The jury allocated 15% of the fault to the Hospital for a compensatory award was $3,750.00. The jury also assessed $1,500,000.00 in punitive damages entirely against the Hospital.