KENTUCKY eLEGAL SUMMARIES
Short (very short) summaries of cases and news

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• THIS ISSUE'S HIGHLIGHTS

• THIS, THAT AND THE OTHER STUFF

• eLEGAL SUMMARIES - KENTUCKY (itty bitty summaries)

  • Supreme Court - no reported decisions

  • Court of Appeals

    • Consumer Protection Act

    • Legal Malpractice

    • Workers Compensation

  • Kentucky Nonpublished Opinions 3 KnNpo 7

  • Trial Court Review - Jury Verdicts 6 KTCR 4

    • Highest in the state for April

• LIST MAINTENANCE

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In this issue

• Surgery is not a trade or business under Consumer Protection Act
• Settlement of underlying med-mal claim does not automatically preclude legal malpractice claim
• Employer estopped from pleading statute of limitations if fails to give first notice of injury
• $800,000 plus jury verdict in Pike

THIS, THAT AND THE OTHER STUFF

KENTUCKY SUPREME COURT
Aug. 1 - 16, 2002

KENTUCKY COURT OF APPEALS - PUBLISHED 
Aug. 1 - 16, 2002

• CONSUMER PROTECTION ACT
  
  ROBERT F. SIMMONS and TAWANDA R. SIMMONS  v. DR. HARRY STEPHENSON
  Ky.App.,2002.AUGUST 16, 2002 

  Eye surgery does not constitute a "trade" or "commerce" within the meaning of the Consumer Practice Act.  Only when physician is acting in entrepreneurial, commercial, or business aspect of Dr. Stephenson's practice of medicine is CPA applicable.

• legal Malpractice
  
  Goff v. Justice
  Ky.App.,2002, Aug. 16, 2002.

  Summary judgment dismissing legal malpractice claim reversed.  Plaintiff claimed attorneys committed legal malpractice in prosecuting medical malpractice claim by failing to pursue medical experts timely and which resulted in a subsequent dismissal of two of the defendants and ultimate settlement against third defendant.  Subsequent settlement did not automatically extinguish legal malpractice claim. 

  "The mere fact that [the plaintiff] reached a settlement on her underlying medical malpractice claim against Dr. McCoy does not mean that she forfeited her right to pursue a legal malpractice claim against the [the other doctor and the hospital]. As in the Kirk case, we must look beyond the fact that the underlying claim was settled and consider the position in which the [plaintiff] had been placed by the appellees. Because of the alleged negligent actions of [plaintiff's lawyer], the [plaintiff was] limited in the presentation of evidence against [the doctor]."
   

• WORKERS COMPENSATION
  
  Galownia v. Starlink Satellites
  Ky.App.,2002. Aug. 2, 2002.

  Employer was estopped from asserting statute of limitations defense for failure to file first report of injury, and notice of failure to make payments, regardless of whether the omission was in good faith and claimant was not prejudiced.

KENTUCKY NONPUBLISHED OPINIONS
3 Ky.Npo. 7 - Apr. 5, 2002

• Torts, p. 1
  Wrongful death proceeds are distributed to the husband according to the statutory scheme that can only be defeated by divorce and not be a simple separation.
• Domestic Relations, p. 6
  Domestic violence order was improperly granted when there was no showing that husband had previously been violent or he might be violent again (husband through brick at wife).
• Sovereign Immunity, p. 13
  Teacher not clothed with sovereign immunity from injuries student sustained during a class project; teacher was engaged in ministerial duties. 
• Estates, p. 19
  Bare allegations that testator had lotsa cats at home among other strangeness (drinking and pills and liked to make wills) was not specific enough to to show testator was not of sound and disposing mind.  

KENTUCKY TRIAL COURT REVIEW - JURY VERDICTS
April 2002 (6 KTCR 4)

• Underinsured Motorist - p. 1
  Pat McElhone and Ron Hillerich prevail to the tune of $171,500 in a red light crash case where plaintiff suffered dislocated hip and herniated disk at L5-S1. Verdict against State Farm exceeded $100,000 floor.  Drs. Sweet and Petruska for the plaintiff. Jefferson County, Div. 12.
• Car Accident - p. 2
  Rear-end by tractor trailer nets $842,672 for plaintiff with bilateral rotator cuff tears and herniated lumbar disk.  Pike County.
• Medical Negligence - p. 2
  Plastic surgeon gets nothing for slip and fall at Krogers and malpractice claim against treating doctor.  Vocation experts were Tierney vs. Baldwin.  Court gave apportionment instruction in medical case that included original/non-medical tortfeasor.
• Bad Faith - p. 5
  Defense verdict for Kentucky Farm Bureau when stopped pip payments for plaintiff's chiropractic treatment.  Chiropractor was Dr. Alampi.  Hardin County.
• Car Accident - p. 6
  KFC customer plays chicken with car which comes through the window and pins him to the counter. (Should've gone through the drive-through and had the order to go; Now he ended up on the counter but not the menu;^) "Finger licking good" plaintiff vs. defendant from "Fancy Fingers Nail Salon" is a hands-down winner for the plaintiff even though defendant claimed to have blacked out on the way to church. Defendants were the Fancy Fingers driver and the UIM carrier - Safeco. Note plaintiff settled with driver for less than policy limits, but money was advanced under "Coots". Note Safeco and the driver were identified at trial. Black out defense rejected, and verdict was for $98,284. Set-offs included the underlying $25,000 policy and $10,000 pip. Jefferson County.
• Slip and Fall - p. 9
  Puddle of water succumbs to the 'dampness' defense, and defense verdict entered accordingly.  Warning signs were also posted. Jefferson.
•  Auto Negligence - p. 12
  Four-way stop sign car crash and $23,642 verdict for rotator cuff.  Defendants were driver and UIM carrier who elected not to participate at trial.  Verdict did not implicate UIM policy.  Treating Dr. Kuiper repaired rotator cuff but was not strong on causation. Jefferson.
• Auto Negligence - p. 14
  Dog fall verdict.  Jury finds neither driver at fault in head-on collision in curve on Trevillion Way.  Competing claims by both drivers; neither wins.  Jury questions included "Medical insurance?"; "out of pocket medicals?".  Jefferson.
• Auto Negligence - p. 16
  Lies, lies and damn lies but no perjury.  Honduran immigrant hit on his bicycle sues Montery Missionary from Mexico.  Eye witness Latin immigrant who was pumping gas nearby corroborated plaintiff pedestrian's version that car ran red light and hit biker.  On day of trial, the independed witness is a no-show, but is found per order from the bench.  On her arrival, she admits not seeing accident and knew nothing about perjury.  The matter is mulled over, the testimony is retracted without implicating perjury, and admits to the jury not seeing the accident but was asked to lie by the plaintiff.  Defense verdict on liability.  Jefferson.
• Largest Verdict of the Month
  • Jefferson
    • Patrick McElhone and Ron Hillerick
      $171,500 in auto case with dislocated hip and herniated disk.
  • Rest of the state
    • Gary Johnson and Anita Johnson, Pikeville
      $842,672 in tractor-trailer accident with multiple injuries, to include bilateral rotator cuff and herniated disk. 

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