Car Insurance PolicyThe 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 Co., unpublished.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.”

 

Kentucky_state_capitol_buildingThis 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.

Read the rest of this entry »

I decided to come back and post some again.  I might not post every day or every week, but I have decided to post again to Kentucky Tort Journal. I realize I miss posting my opinions and analysis of important Kentucky law.  More importantly, I miss letting people know my opinions on certain cases.  So, for what it is worth, I’m going to post again.  So, keep a lookout.  You might find something interesting.

After several years, several changes, and more than several posts it is with a heavy heart that I advise my readers that the Kentucky Tort Journal is signing off.  I will no longer be posting or updating original posts or decisions.

Kentucky Tort Journal was my first attempt at blogging.  Starting in 2004, my goal was to find a platform where I could express my thoughts about events, articles, cases and decisions that dealt with my area of practice.  I also wanted to explore the new medium and had great hopes for its use among lawyers.  Many of my contemporaries have also faded into the blogosphere, leaving behind remnants in time of their thoughts about whatever topic they chose to write.  Perhaps that is the fate of the KTJ.  It is somewhat interesting to know that while the journal is no more, my thoughts and opinions will linger like graffiti on an old wall in an old town.  Passed rarely, if ever, but there nonetheless, its true impact forever lost to its time and those who lived it, one day to be replaced by something else, something new.

While I am officially signing off, I will keep publishing the blog, at least for the time being, as a kind of archive.  There is simply too much information, too many hours, to much hard work and thought to simply turn out the lights.  Perhaps one day, but for now I’ll just leave the light on and shut the door.

I still have great hopes for blogs and the bloggers who blog them. Whle I am wrapping up this chapter, I am readily involved in opening another.  I encourage each of you to view my new blog; Kentucky Accident Information at http://kyaccidentinfo.com.  Look around and check back.  While something quite different than the KTJ, I think it’s truly the next frontier for blogs in the legal field.

I want to end by thanking each of you who supported me throughout the past four years.  I am always amazed at the number of attorneys who read my stuff and the good things they had to say.  I can’t begin to say enough about the good friends I met through this blog, so I won’t.  I’ll just say thank you to them too.

So, thank you all.  God Bless.  Good night and good luck.

Ed

The Court of Appeals recently posted its minutes for September 5th, here.  One published case dealing with torts and insurance.

The case of Rudolph v. Shelter Insurance Companies, the Court of Appeals dealt with the issue of a misrepresentation in a fire policy and whether summary judgment was proper for Shelter.  Rudolph applied for fire insurance policy with Shelter Insurance Company.  After his house burned to the ground it was revealed that he was convicted of a felony (manufacturing methamphetamine).  The application asked if anyone applying for insurance had been convicted of a felony.  Rudolph’s application denied any such convictions.  After Shelter found out about the misrepresentation they rescinded the policy, claiming it was material to the risk and had it known it would not have issued the policy.  The trial court granted summary judgment.

Rudolph claimed that he did not fill out the answers to the application, was not asked the question by the agent, and was not aware that the answer was false.  He alleged that he only signed the application in a perfunctory manner.  The court of appeals believed that an issue of fact existed whether Rudolph should be held responsible for a misrepresentation on an application when there was an issue as to whether he actually made the misrepresentation or whether the agent ever asked him the question.  The court of appeals noted that Kentucky law differentiates between those cases when the applicant in a fire policy fills out the application and signs it, and those when the agent fills out the information and the application is signed only as a formality.  It reversed the summary judgment.

The Kentucky Law Review recently reported on the $5.1 million dollar verdict in Jefferson County. The KLR notes it is one of the highest awards in recent memory and links to the Courier Journal article, discussing the case. Click on the link to read the entire KLR review with a link to the article.

I would also like to remark on the recent changes to the KLR. Congratulations to Mike Stevens on the recent upgrades in style and layout. Nice paint job, Mike! Very impressive.  Keep up the good work.

Today I discuss the Court of Appeals Minutes for August 29, 2008, and the interesting case of Lee v. Shower, MD and Maysville Obstetrics, a medical negligence case, which resulted after the death of an infant from complications during delivery.

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