The Court of Appeals has posted its minutes for May 30th, here.  There weren’t any published opinions related to torts or insurance law.

According to Wired:

The U.S. Supreme Court on Tuesday dashed a bid by T-Mobile and AT&T to stave off a class-action lawsuit challenging the carriers’ policies against unlocking mobile phones.

The justices declined to review an October decision by the California Supreme Court that cleared the way for a lawsuit that attorneys claimed could represent “millions” of California customers.

In response to similar lawsuits, Verizon and Sprint, both CDMA carriers, have agreed to provide the software code to unlock cellphones after customers nationwide have completed their original contract, attorneys said. “That was the compromise we ended up with to get the cases settled,” said California attorney Robert Bramson, one of the lawyers suing carriers T-Mobile and AT&T.

T-Mobile and AT&T fought the lawsuit all the way to the nation’s high court. The two carriers, on the GSM network, are accused of unfair business practices by locking down their phones to their service plans. Last year, Librarian of Congress James H. Billington listed cell phone unlocking as one of six new exemptions to the Digital Millennium Copyright Act, or DMCA.

Click here for the entire article.

The Court of Appeals has posted its minutes for May 23rd, here.  There weren’t any published cases dealing with torts and insurance.

Companies agree to pay $24 million after animals were poisoned.

MSNBC reports on the proposed settlement between Companies that were sued over contaminated pet food linked to the deaths of perhaps thousands of dogs and cats and the pet owners.  Click here, for the article.

The Supreme Court posted its minutes for May 22nd. There weren’t any published cases dealing with torts and insurance.

However, there was an order denying the motion for discretionary review in the case of Condispoti v. First Financial Ins. Co, which I previously posted about, here. As you can tell from my previous post, I think this is a shame. I believe that the Court of Appeals not only got it wrong, but expressed a fundamental misunderstanding of insurance law, which is concerning. The Supreme Court’s failure to review the decision is equally disturbing. The SC did order the opinion to be unpublished, which is little consolation to the driver who is now personally liable for James Condispoti’s injuries, even though everyone agreed he was an insured under the policy.

The Court of Appeals published Kentucky Farm Bureau v. Coyle, which discussed the application of the inferred intent rule in a shooting case. The case involved Tweed, the love interest, Coyle, her husband, and Elliot, a spurned suitor. After some stalking and a disagreement between Coyle and Elliot, Coyle filed shots on two occasions, which eventually hit Elliot. Elliot sued Coyle on grounds of assault and battery, but eventually amended his complaint to claim negligence. Kentucky Farm Bureau had written a homeowner’s policy for Tweed, under which Coyle was an insured. Coyle sought coverage under the policy. Farm Bureau sought summary judgment on two occasions, claiming that Coyle’s testimony and the other facts surrounding the case clearly showed an intention on the part of Coyle to shoot Elliot, negating coverage. Both motions were denied. A jury determined at trial that the shooting was the product of negligence and not intentional.

On appeal the court noted; “We acknowledge the rule “that if injury was not actually and subjectively intended or expected by the insured, coverage is provided even though the action giving rise to the injury itself was intentional and the injury foreseeable.” However, it noted an exception to the rule, the doctrine of inferred intent. The Court noted Kentucky’s acceptance of the rule and cited to several different factual scenarios supporting the use of the rule, including shootings, physical assaults, and sexual molestation.

After reviewing Kentucky law, the Court ruled:

Pursuant to the inferred intent doctrine, Coyle’s subjective intent to harm Elliott is irrelevant. Once Coyle admitted that he intentionally pointed his weapon at Elliott and that he “intended to discharge that bullet at Elliott[,]” we cannot avoid, except through a contorted logic, the determination: (1) that “the insured’s conduct is both intentional and of such a nature and character that harm inheres in it,” (2) “that it is appropriate to apply the inferred intent rule,” and (3) that Coyle’s “actual subjective intent to harm . . . becomes irrelevant.”

Accordingly, the Court concluded; “Application of the inferred intent doctrine compels the result that Farm Bureau was entitled to summary judgment following the completion of discovery, and the case should not have proceeded to trial. Thus, the trial court erred by denying Farm Bureau’s motion for summary judgment.”

Editor’s Note: (Disclosure: Farm Bureau is a client of mine). This case is interesting because it discusses in detail the adoption and application of the inferred intent rule in Kentucky. Frankly, I thought after the Stone and Nationwide cases that the issue of intent in shooting cases was resolved. You simply can’t point a gun at someone during a dispute, pull the trigger, and later claim you didn’t mean to harm them. It doesn’t make sense, and the Court was correct to reject that notion.

Another, interesting fact was that Coyle previously pled guilty to first degree assault under extreme emotional disturbance, which requires a finding of intent to cause physical injury. As a result, Coyle should have been estopped from claiming the shooting was unintentional at trial. However, this issue was never argued, apparently.

Of course, this case raises an interesting issue that comes up often. The claim that if the cause of action is not intentional then it was negligent. You see this most often when the facts suggest an intentional tort, but negligence is alleged to come within the coverage of a liability policy. The problem is that negligence does not mean unintentional conduct. It is a claim that has its own separate elements requiring its own separate proof, which does not include a finding of a “lack of intent”. Intentional conduct is conduct whose purpose is to result in harm, or in this case can be inferred to result in harm. Negligence is the failure of some legal duty that results in foreseeable harm. One is not necessarily the opposite of the other.

If someone claims they were assaulted, a finding that the act was not intentional does not mean the act was the result of negligence. It simply means the conduct was not an intentional tort for which recovery could be had. To hold otherwise, would result in conduct either being intentional or negligent, without any ability to find the conduct as neither.  It would place the defendant in a position of either being guilty of an intentional tort or of negligence, but never being found innocent of either.

This doesn’t mean that a finding of negligence can never be reached in a case where intentional conduct is also alleged.  It means only that to prove negligence, you must prove the individual elements, not merely show the defendant’s conduct was “unintentional.”

The Court of Appeals has posted its minutes for May 16th, here. Two cases dealing with tort and insurance law were published.

Kentucky Farm Bureau Insurance v. Coyle, 2006-CA-001335, dealing with intentional acts exclusion.

Keith v. Laurel Co. Fiscal Court, et al., 2007-CA-000446, related to slander of title.

Click on the link to read those opinions. Be sure to check back later for digests of those opinions.

The Mass Tort Litigation Blog reports on a New York Times Article, discussing the Texas Court of Appeals decision which overturns a multimillion dollar award against Merck, the company that manufactured and marketed the prescription painkiller Vioxx. Click here to read the post, with a link to the New York Times Article.

An interesting note was an apparent admission by one juror that she had borrowed money from the plaintiff widow, although its noted that this was not a factor in the Court of Appeals decision.

I will be publishing a series of articles on Finis Price’s, TechnoEsq, which discuss freeware that I have incorporated into my solo law practice.  For those who don’t know, freeware is software that is available for download on the internet for free.  While there are certainly multiple offerings that perform the same function for free, my articles will deal with those that I have effectively incorporated into my law practice.

The first article titled, Scan to PDF has been posted, here.  It discusses the software that I use to convert standard scanned images into PDF format with a software program called Scan2PDF 1.5.  Other articles will discuss similar technology.

I want to thank Finis for the opportunity to write about my own passion for technology.  Click on the link to see my post.  While your there read about Finis’ own efforts to incorporate his background in technology and computers into his own law practice.

Just after I published my post on Justice Minton’s election as the new Chief Justice of the Supreme Court of Kentucky, I came across an interesting post by Mike Stevens at the Kentucky Law Review.  In my post I mentioned the political agendas and special interests that occupy the Supreme Court.  Well, Mike has an interesting post about the disagreements and internal disputes over the reappointment of Jason Nemes to the position of Administrator of the Office of Courts (AOC).  The article written earlier this month is an interesting look into the inner workings of the Supreme Court.  Read the entire post with links to the original article, here.