Kentucky Defense Counsel have launched a newly redesigned website. The website features a members section, and members will be provided with a password for access. The site also contains other categories of interest to defense practitioners. For questions or comments mail Kathi McKeown.

The Supreme Court published City of Louisville v. State Farm Mut. Auto. Ins. Co., which questioned whether an insurance company which paid Basic Reparation Benefits (BRBs) could recover those payments against an entity which had opted not to provide those benefits. The City did not insure the vehicle involved in the accident but instead, appropriated funds for the payment of tort liabilities. The City opted out of providing BRBs under this scheme. State Farm paid BRBs on behalf of its insured and sought reimbursement against the City. The Court recognized that KRS 304.39-070(2) allowed subrogation claims against “any person or organization other than a secured person.”

The Court found that since the City had opted out of providing BRBs neither it or its employee Alpiger was a “secured person”against whom a subrogation claim was precluded. The Court reasoned that in order for the City and Alpiger to be “secured persons” the vehicle involved in the accident must have been a “secured vehicle.” “Security” under the MVRA required not just the payment of tort liabilities (as the City did), but also the payment of BRBs and any other obligations under the Act. Since the City’s scheme did not include these the Court concluded the vehicle was not a “secured vehicle”, and so the City and Alpiger could not be “secured persons.”

The effect of this opinion is clear. If an entity provides BRBs it is a reparations obligor entitled to recover those payments in accordance with KRS 304.39-070(3) and the rights extended under the MVRA, which include the option of arbitration. If an entity does not provide BRBs it is not entitled to the use of those provisions and can still be subrogated against as can any other “unsecured person”, such as an uninsured motorist. This is not a common law cause of action for subrogation but statutory under KRS 304.39-070(2).

The Kentucky Court of Appeals recently published Bledsaw v. Dennis, the latest attempt to distinguish Miller v. Swift medicals but no pain and suffering verdicts. The jury awarded Bledsaw her full medical expenses, but nothing for pain and suffering. Bledsaw attempted to distinguish Miller by arguing that it did not apply since evidence of her pain and suffering was uncontroverted.

The Court noted that “the Supreme Court recently rejected a similar argument in Bayless v. Boyer, noting that despite claims that the evidence of the plaintiff’’s “pain and suffering was uncontroverted, there were numerous instances where relevant testimony on the subject was either impeached or contradicted.”” As we have stated, “[a] jury is not bound to believe a plaintiff or her doctors.” “We cannot say that the jury’’s verdict was not supported by the evidence, or that the trial court clearly erred by failing to grant a new trial.”

This is a typical result in cases involving minor medical expenses and subjective injuries. The fact that the Court of Appeals published this case indicates to me a desire to resolve this issue once and for all. I think if there is going to be any substantial ruling affecting this issue, it will need to come from the Supreme Court in the Gibson case. Discretionary review has been filed in Gibson. I will keep readers posted if the Court decides to hear it.

The Kentucky Court of Appeals recently issued Humphrey v. Ameriquest Mortgage Co., unpublished, which reiterated when an insurance policy is properly cancelled for summary judgment purposes. The discussion of the law is standard, but the facts remind us that these cases involve real people, and well, real people can be stupid.

The case involved Humphrey, a divorced owner of a house on Kentucky Lake, his girlfriend, who was an exotic dancer, her boyfriend, who was her personal trainer, a scene from the movie “Indecent Proposal”,” candles, $7,000.00 in cash, a masked intruder, arson, assault, and robbery. When it was all over, Humphrey’s girlfriend and her boyfriend were in jail, Humphrey’s house was burned, and Ameriquest, Western Rivers, and Grange Mutual Casualty Company had all been sued.

Humphrey claimed Ameriquest was responsible because it had failed to pay insurance premiums on his behalf during the refinancing. He sued both Western Rivers (his agent) and Grange claiming they, among other things, did not give proper notice of the cancellation of insurance. The Court found it was indisputable that Grange gave “proper statutory notice that the policy would be cancelled for non-payment.” It was also undisputed that Grange sent the cancellation notices to the address on the policy where Mary, Humphrey’s exwife, continued to reside. As for Western Rivers, the Court found that it owed no duty to provide Humphrey with notice of the cancellation. Finally, the Court found that Ameriquest owed no duty to Humphrey’s to secure insurance, although it was certainly in its best interest. The summary judgments entered by the trial court were all affirmed.

The moral of this story is if your going to reenact a scene from a movie at least make sure the movie has a happy ending. Or, don’t leave your wife for an exotic dancer and expect she’ll forward your mail. Click on the link above for the complete sorid story.

Given my earlier rants regarding the use of unpublished opinions, I thought it only fair to post the new proposed amendments to CR 76.28(4)(c). This rule previously prohibited unpublished opinions from being “cited or used as authority in any other case of any court of this state.” The proposed amendments to section (4)(c) still prohibits unpublished opinions from being “cited or used as binding precedent in any other case in any court of this state”; however, it allows unpublished opinions rendered after January 1, 2003, to be cited for “consideration by the Court.” These opinions must be set out as unpublished in the filed document and a copy of the entire decision attached.

I am not sure what relevance January 1, 2003, has except that by then most if not all unpublished opinions were being provided by electronic resources and the internet. The new rule still withholds authority from these decisions, rendering them useful only for their persuasive value. While the amendment is certainly an improvement over the current rule, there is nothing to prohibit the courts from ignoring unpublished decisions with the same legal or factual issues. I think that it is this inconsistency that will continue to fuel criticism of this rule.