The deadline to get your CLE credits is quickly approaching. I recommend checking with your local bar association first. Click the link in the sidebar to access the Louisville Bar Association for information on upcoming CLEs. For those looking for CLEs on upcoming tort and insurance law topics, I have listed some that may be of interest.

I recommend the Kentucky Academy of Trial Attorneys website. KATA consistently offers seminars on a monthly basis throughout the state on tort and insurance law topics. I will forgo trying to list them all and simply recommend that you visit their website and bookmark their event registration page which offers links to each seminar up to September 2007.

PESI is offering an Insurance Law Update 2007 in Lexington, Thursday, May 10th and in Louisville, Friday, May 11th. It is also offering an Evidence Workshop in Lexington, Thursday, April 26th and in Louisville, Friday, April 27th. You can get details and register at www.pesi.com.

The National Business Institute (NBI) is offering a seminar on Preparing and Trying a Bodily Injury Case in Louisville on June 5th. A basic to intermediate course designed to benefit both plaintiff and defense attorneys. For details or to register go to www.nbi-sems.com.

For those who need ethics credits the NBI is also offering Legal Ethics: Solutions to the Most Common Challenges in Lexington, June 25th and Louisville, June 27th. For details or to register go to www.nbi-sems.com.

I will continue to post seminars I think would be of interest to my readers. If your aware of a seminar and would like for me to post it, please email with the information, and I will try to get the word out.

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In Adkins v. Kentucky National Ins. Co. the plaintiff (Adkins) appealed from a summary judgment. Specifically, he argued that Kentucky National improperly sought to unilaterally amend an insurance contract for the purpose of preventing Adkins from stacking three units of UM coverage.

The Adkins family (Adkinses) paid three separate premiums for UM coverage for three vehicles, representing one unit of coverage per vehicle. Kentucky National mailed renewal materials, which stated that it would begin charging a single UM premium for the three units of coverage on the three vehicles. The Adkinses accepted the new coverage and began paying premiums according to its terms. Adkins’ argued that he was not given notice of Kentucky National’s intention to change the terms of coverage and that the Adkinses never consented to the policy change.

The Court of Appeals found that this argument was refuted by the record, which contained the notification of change in coverage mailed to the Adkinses as well as the “new” policy declaration. Adkins’ real argument was that the Adkinses were not told of the ramifications of that change. However, this too, was refuted by the record, which showed that the notice contained unambiguous language detailing the affect of the change. HOWEVER,

More important than the notice issue was this underlying question of whether UM coverage may be stacked where a single UM premium is charged for multiple vehicles, and where the premium is not based on the number of vehicles covered. The Adkins’ Court answered in the negative, stating:

[T]he Kentucky Supreme Court held that an insured had no reasonable expectation of aggregate or stacked UIM coverage if a single premium is paid for two or more units of coverage, where the premium is not based on the number of vehicles covered… Because there is no rational distinction between UM and UIM coverage for purposes of aggregation or stacking, and because Marcum resolves single premium UIM coverage in favor of the insurer, we therefore hold that an insurer is not required to stack multiple units of UM coverage which have been paid by a single premium, if that premium is not based on the number of vehicles insured. As in Marcum, we base this conclusion on our recognition that an insured has no reasonable expectation of stacking where he or she pays a single premium which does not vary based on the number of vehicles insured. (citations omitted).

The purpose of insurance is to provide for the insured in the event a condition covered in the policy comes to pass. Don’t wait until the death of a loved one killed by a negligent uninsured driver to start reading your policy and questioning the amounts you have in coverage. While economics certainly comes into play, you simply are not entitled to more coverage than that for which you bargained. The decrease in premiums, while certainly welcome to most, is not a gift, but usually an indicator that your coverage has changed, and most likely, not for the better.

The Court of Appeals was busy this week publishing three decisions, impacting tort and insurance law. Below are short digests of the cases with links to each. I hope to have a more thorough digest of the cases involving automobile insurance issues in the very near future.

Adkins v. Kentucky National Ins. Co., affirming summary judgment on issue of whether plaintiff could stack UM coverage on three vehicles after insurer sent notice upon renewal that the formula for calculating the premiums would change from multiple premiums based on the number of vehicles to a single premium for units of coverage. No genuine issue on whether proper notice was sent and accepted.

Dyer v. Providian Auto and Home Ins. Co., affirming summary judgment on issue of whether plaintiff was entitled to recover UIM benefits for uninsured employee driver when settlement was paid by carrier of employer, who denied liability and coverage.

Mims v. Western Southern Life Ins. Co., vacating and remanding dismissal of claim of negligence in the change of beneficiary form by Western Southern when facts viewed in light most favorable to the nonmoving Mims clearly showed allegations of negligence claim. Claim merely needs to be asserted, in this case negligence. Whether it can be proved or is even a valid negligence claim is for summary judgment.

The Court of Appeals just published Sawyer v. Mills, an appeal from an action by Sawyer to recover a bonus, which she alleges that Mills promised to pay. Sawyer established that Mills had promised to reward her for her assistance in instituting a Fen-Phen class action lawsuit. However, the parties never specified the bonus amount or when the bonus would be paid. After the Fen-Phen settlement, Sawyer, her husband Steve Sawyer and Mills all met together on June 25, 2001, to discuss the bonus. Sawyer and Steve secretly recorded the conversation.

Mills did agree to pay Sawyer One Million Dollars ($1,000,000.00) plus the cost of a new luxury car, which all agreed would be another Sixty-Five Thousand Dollars ($65,000.00). The full amount was to be paid in monthly installments, on the first of each month, until paid in full. Mills also agreed to sign a writing to that effect, but refuse to once it was presented to him.

At trial, the jury found that Mills had entered into an oral contract for a bonus, and returned a verdict in favor of Sawyer in the amount of Nine Hundred Thousand Dollars ($900,000.00). Thereafter, Mills filed a motion for JNOV, arguing that any agreement between him and Sawyer was barred by the statute of frauds. The trial court agreed and granted the motion in a well written opinion.

The real issue was not whether a contract was reached between Sawyer and Mills. But whether the agreement (which was tape recorded) as to the amount to be paid Sawyer violated the statute of frauds, because it wasn’t evidenced in writing and could not be performed within a year. The court concluded:

After considering the evidence in a light most favorable to Sawyer pursuant to the JNOV standard, we are persuaded that the evidence supports the finding of the trial court that the JNOV was appropriate in this case. Undisputed testimony from Sawyer, Steve and attorney Moseley and his draft agreement of the parties’ June 25 conversation, coupled with the tape recording of that conversation, all confirm that the parties agreed the bonus would be paid in monthly installments over one hundred and seven (107) months. The tape recording clearly shows that Mills never intended to pay Sawyer the bonus as a lump sum and Sawyer is recorded agreeing to the monthly payments. The parties never contemplated that the bonus would be paid within one year. Furthermore, there are no facts showing that Sawyer fully performed her obligations pursuant to the contract, or that Mills should be estopped from relying on the statute of frauds. As such, the statute of frauds bars Sawyer’s claim against Mills as she produced no writing signed by Mills agreeing to the oral promise to pay her the bonus.

OUCH, Sawyer recognized the need for such a writing and even had her attorney draw one up that Mills refused to sign. Despite the tape recording evidencing his agreement, the court found this did not meet the statutes requirements that it, “be in writing and signed by the party to be charged therewith, or by his authorized agent.” KRS 371.010. A promise is a promise is a promise and nothing more. This case is made even more painful because of the tape recording, showing Mills agreement to pay the sums, which he later refused. Typically, the statute of frauds is designed to prevent exactly what it means, fraud in the claim that oral promises were made. Here there was evidence beyond self serving testimony that the promise was actually made. However, the statute makes no exception for this type of evidence.

While technically a victory for Mr. Mills, I wonder what has actually been accomplished in having a published decision in his favor. How much is your reputation worth? A million dollars?