Kentucky Court of Appeals

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 vs. 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.

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Mike Stevens of the Kentucky Law Review posted on pending House Bill 643, which will expand the ability of certain plaintiffs to sue. You will recall that a similar bill was previously pending but did not pass. Mike discusses the need for the bill and the misuse or use of the current rules by both parties.

Mike concludes; “Thus you have two choices, permit the extension of the statute of limitations following a third party apportionment claim so that the plaintiff may amend his/her complaint OR apply a theory of estoppel or waiver on the defendant for asserting an untimely claim after they have already answered.”

While I certainly understand the perceived injustice that some think occurs, I simply do not believe this is such an issue, requiring a drastic change to the civil rules. See my previous thoughts on the same bill pending in the Senate in 2006, here.

The Court of Appeals published Jenkins v. Best, et al., which answered the age old question of whether one defendant can challenge the grant of summary judgment to another defendant on appeal. Baptist Hospital East (BHE) contracted with University Associates to provide perinatology services. University engaged Dr. Best to provide these services. Complications arose during the birth of Marilyn Jenkins’ child, resulting in a condition that rendered him totally disabled. One of the issues was a request for an ultrasound and Dr. Best’s involvement. Jenkins sued several providers for malpractice including Dr. Best, BHE, and University Associates. No cross claims were filed.

Dr. Best argued that because she never actually treated Jenkins she did not owe any duty to Jenkins. The trial court agreed and granted summary judgment. On appeal BHE and another doctor, Dr. Farmer, filed a notice of appeal. Dr. Best and University Associates moved to dismiss the appeal based on the lack of standing of BHE and Dr. Farmer to contest the summary judgment. The court noted:

It is a universal rule that a joint tort-feasor . . . will not be heard to complain on appeal . . . that the suit was dismissed as to a co-defendant.

Dr. Farmer and BHE agreed this would be the case, except for the Supreme Court’s adoption of comparative fault in Hilen v. Hays. The court asked:

Did Hilen create the right of a defendant in a tort action to appeal the dismissal of his co-defendant where such right did not previously exist? Appellants claim Hilen did create such a right. They identify it as “the right of the appellants for an apportionment of fault.

While the court agreed that this right existed, “it does not give a party the right to apportion fault to persons whose liability has been judicially determined not to exist. In this case, Dr. Farmer’s and Baptist Hospital’s right to apportion liability to Dr. Best and University Associates was extinguished when summary judgment was granted in their favor.”

The court discussed the ancient origins of apportionment of fault among joint tortfeasors. It noted that the apportionment of fault among joint tortfeasors was well established long before Hilen was announced. Therefore, the court concluded, “that Hilen created no new right to apportionment of fault among joint tort-feasors.” It further noted that if such a “right” was created it was taken away by KRS 411.182, which does not allow apportionment against a defendant who is found not legally liable.

The court found that Dr. Best and University Associates were not legally liable. It summarized its decision; “The claim that Dr. Best and University Associates are directly liable to Jenkins is her claim to assert. When that claim was denied, it was her right to appeal the decision. However, Dr. Farmer and Baptist Hospital are no more entitled to appeal the trial court’s denial of Jenkins’ claim than they would have been to file it in circuit court in the first place.”

Recall my concerns and criticisms of an unpublished case by another panel of the court of appeals in Apportionment Claim? There I criticized the opinion, which seemed to create a “cause of action or claim” for apportionment, which previously did not exist. This published opinion addresses that criticism. There is no “claim” for apportionment. Apportionment is a procedure to be applied when you have joint tortfeasors, to determine the extent of each tortfeasor’s fault. While a defendant has a “right” to have fault apportioned among codefendants, this “right” does not exist when the other defendant bears no percentage of fault to the plaintiff. Because there is no “claim” for apportionment, the defendant has no standing to appeal the grant of summary judgment to a codefendant based on such a claim. That standing belongs to the only party that has a claim against that defendant, the plaintiff.

The Court of Appeals in the published opinion, Jackson v. Duncan, et al., issued two important ruling regarding dram shop liability. First, it reiterated that apportionment of fault is not allowed against drams shops. Second, punitive damages are not recoverable. The Jackson case stems from an auto accident involving Jackson, a passenger in Duncan’s car. Both parties had been drinking at several nightclubs before the accident. Jackson sued Duncan, the Big Kahuna nightclub and its shareholders, Sweet and Sassy, Inc. d/b/a Ginger & Pickles, nightclub and its owner Tullar. Before trial Jackson settled with the Big Kahuna. The trial court allowed a four way apportionment against Duncan, the Big Kahuna, Jackson and Sweet and Sassy. The jury found negligence against all parties. It also awarded punitive damages against Sweet and Sassy and Tullar.

All the parties appealed, except the Big Kahuna, who for some reason was still listed as cross-appellee. Jackson contended that her 10% fault should be deducted from the total fault (100%) and that the remainder should be placed on Duncan. The dram shop defendants would then be vicariously liable for whatever portion Duncan could not pay? The dram shop defendants argued that apportionment simply was not available.

The Court of Appeals began by reviewing KRS 413.241, enacted in 1988 and commonly referred to as the Dram Shop Act. It noted that in DeStock # 14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky. 1999), the Kentucky Supreme Court concluded that liability may be imposed upon a dram shop despite the statute’s language regarding proximate cause. It noted; “Liability is imposed on the intoxicated tortfeasor for his actions in injuring the plaintiff, while liability is imposed upon the dram shop for the entirely separate and “independently negligent” act of serving alcohol to the intoxicated tortfeasor before the accident.” “Thus, since the actions of the dram shop and the intoxicated tortfeasor are separate, the two “ought [not] to be considered in pari delicto.””

“It is because of these distinctions between the tortfeasor and the dram shop, that apportionment of fault between the injured party, the tortfeasor, and the dram shop is improper.” “The instruction should have required the jury to apportion fault between just Duncan and Jackson. Then, only after the jury found Duncan to have some percentage of fault, should the jury have determined whether the elements under KRS 413.241 were satisfied such that either or both dram shops could be held secondarily liable.” Because it was impossible to determine how the jury would have apportioned fault between Jackson and Duncan the Court of Appeal reversed and remanded the case for a new trial.

Both parties also appealed the award of punitive damages. The Court noted; “Kentucky law is clear that a plaintiff cannot recover punitive damages against a defendant unless that defendant’s conduct was the proximate cause of any injury to the plaintiff.” Since there can be no punitive damages absent proximate cause and since the legislature had removed proximate cause in dram shop liability, there could be no punitive damages awarded as a matter of law.

The Court found this holding to be consistent with the dram shop statute, which allowed recovery only for “injuries suffered” and not simply damages, which might encompass punitives. It also noted that the punitive damages statute and the dram shop act were adopted during the same legislative session, and it was reasonable to assume the legislature was aware of the punitive damages scheme when it adopted KRS 413.241.

A very well written and well grounded opinion, using existing case law to reach the correct result. It should be noted that the jury returned a verdict for punitives of $500,000.00 against Sweet and Sassy and Tullar only. Duncan was not included, despite his obvious intoxication. It also raises the question; Where does Jackson’s gross negligence, if any, play in an instruction and award of punitive damages?