Issue  2002/16 - Nov. 17, 2002   

 
 Kentucky Supreme Court - Nov. 17, 2002
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 Kentucky Court of Appeals - Published Decisions - Nov. 17, 2002
  • Insurance Law
    • MURPHY V. KENTUCKY FARM BUREAU,  KY. APP. 11/8/ 2002
      Upheld 'regular use' exclusion in underinsured motorist policy.  This was "an appeal from a summary judgment entered in favor of the insurance company in an action on a claim for underinsured motorist benefits under policies of two household members who were not involved in the single-car accident in a car owned by another household member which killed a minor child in the household. The estate of the minor child argues that the regular-use exclusion in the policies of the two household members is against public policy and should not be applied so as to bar recovery of underinsured motorist benefits by the minor child. As the regular-use exclusion has been previously upheld to be not against public policy, the lower court correctly found that the claim for underinsured motorist benefits was barred and, thus, we affirm."   See, Motorists Mutual v. Glass, Ky., 996 S.W.2d 437 (1997); Pridham v. State Farm, Ky. App, 903 S.W.2d 909 (1995).  
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 KENTUCKY NONPUBLISHED OPINIONS - 3 Ky.Npo. 21
  • Attorney's Fees, Dispute over contingent fee contract, page 2
    Unhappy client complained about his contingent fee arrangement.  Court held 38.5 % contingent fee was fair and reasonable, as was provision that the attorneys fees were calculated out of gross recovery (not the net recovery AFTER expenses were paid).  Note this client was not happy with his first lawyer, he went to another.  The two lawyers were able to agree on their fee division, but the client felt he was coerced.  Case involved contract interpretation. The difference was $142,065 vs. $125,299.06, or about $16,765.06 difference.
  • Premises Liability - Fall at a Tobacco Barn owned by Dr. Robert Baker, p. 3
    Summary judgment was improperly granted by trial court since a factual dispute did exist.  Sharecropping/joint venture arrangement where resident tenant claimed worker/joint venturer knew that the barn had previously been blown off its foundation and had wind damage.  A question regarding knowledge of the latent defect existed, whether the worker knew about it, and whether the latent defect was discoverable on reasonable inspection.
  • Hospital-Physician Contract, Peer Review Documents Not Discoverable, p. 4
    Plaintiff physician sued hospital over bad faith in peer review process, but could not prove bad faith since the peer review documents are not discoverable not admissible at trial.  Please note that the doctor was cleared to perform surgery, but he voluntarily relinquished his privileges during investigation to avoid blemishes on his record in the National Practitioner Data Base if there had been a suspension.
  • Domestic Relations, Pre-nuptial and property value increase, p. 12
    Husband and wife had valid pre-nuptial agreement that separated wife's real estate interests.  At divorce, however, husband is still entitled to an interest in the increase in the value of the property  attributable to the parties joint efforts to improve it (not general economic conditions).
  • Other Cases:
    • Domestic Relations - res judicata
    • Employment Contract - at will employee and rehab
    • Breach of Contract - assignment of lease and guarantor issue
    • Insurance Coverage - applied anti-stacking in liability policies
    • Construction Contract - home builder was consultant or general contractor
    • Breach of Contract - modified lease by doctor 
  • IT'S LIKE GETTING A CLE IN YOUR MAIL BOX.
    THESE NON-PUBLISHED CASES GIVE YOU AN IDEA WHAT YOUR OPPONENTS     ARE TRYING OUT THERE TODAY. 
    These extracts were printed with permission of the Kentucky Appellate Non-Published Opinions. If you are interested in the full text of all     the opinions, sent to you bi-monthly, then call (502) 326--9794 or 1-(877)313-1944. $130.00 per year (Ky residents pay 6% sales tax - $137.80).
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 KENTUCKY TRIAL COURT REVIEW - 6 KTCR 6, June 2002
  • PRODUCTS LIABILITY - Weed trimmer shatters leg - p. 1
    Maintenance man uses modified Kawasaki weed eater that shatters and whacks his leg and causes permanent nerve damage - drooping foot and RSD. Nearly $44K in medicals with just under $500k in permanent impairment.  Case premised on defective design - trimmer cap came into contact with concrete.  Jury was out for an hour on liability, then went back on damages and gave the plaintiff every penny he was asking for - to include nearly $3 million in punitives.  Plaintiff's lawyer - Tyler Thompson;  Defendant's lawyer - Dudley Shanks.  Jefferson.
  • FAMILY AND MEDICAL LEAVE ACT - Fired when asked to go have back surgery - p. 6
    Elevator inspector's job has its ups and downs, but this down was one too many.  While on active duty with the National Guard, plaintiff sustains L4-5 disc injury (note soldier has limited recovery for injuries incident to military service - he either continues to be fit for duty and trains or is medically boarded out as unfit; he then may have a claim for Veterans Disability benefits - these were not mentioned in the summary).  The city claims plaintiff was fired for insurbordination; plaintiff claimed he was fired for asking for FMLA leave; jury agreed with the city.  Defense verdict. Jefferson (Federal Court).
  • AUTO NEGLIGENCE -  Chronic soft tissue injuries from rear end impact - p. 10
    12 year old was a passenger in her brothers car when hit from rear on Christmas Day 1996.  She developed myofascial pain syndrome, and although now better still has pain.  She treated with Dr. Jeff Berk and Jeff Fadel with case in Jeff County.   Plaintiff claimed nearly $44,000 in medicals and sought $150,000 in pain and suffering.  Jury awarded $10K in medicals and $50K in pain and suffering.  UIM coverage did not appear implicated.
  • DEFAMATION - Condo board members sue resident over flyer - p. 12
    Two condo board members sue resident over flyer she circulated alleging "dliberate decit", having "cheated us all", and "illegal activity."  Jury agreed and awarded the two board members approximately $56,000 each.
  • AUTO NEGLIGENCE - Soft tissue injury worth $8,681 - p. 13
    Elderly man backs out of his driveway and has moderate collision with 35 year old lady who sustains soft-tissue neck and back injury for which she was treated by family doctor and chiropractor, both of whom testified at trial.  IME doctor was Dr. Thomas Loeb.  Plaintiff's medicals were appx. $4,000 and lost wages were appx. $17,000.   Case had some twists and turns - elderly man died, widow moved away, and it took two years serve the widow; plaintiff's husband also died so at trial it was widow vs. widow.  Jury found for the widow plaintiff and awarded her $2000 in medicals and 1/10th of her lost wages.  Suffering was placed at $5,000. Jefferson.
  • FELA - Carpal tunnel syndrom - p. 15
    Failure to provide ergonomic work space results in clerical worker getting bilateral CTS.  Surgical releases provided little relief.  Defense expert linked CTS to plaintiff's obesity, age, arthritis and history of alcohol use.  Jury asked for a calculator during deliberations.  Uh oh.  Awarded plaintiff $12k for future meds and $16,800 for meds.   No pain and suffering.  Jefferson.
  • AUTO ASSAULT - Cop vs. Cop - p. 17
    Undercover cop on surveillance of crack house calls for back up when moving in to make arrests.  Back up shows up and pops off with allegation that crime scenes were always disorganized.  Two cops argue and forget about the crack heads.  Cooler heads prevail and back up leaves, but his cruiser clips the door of the undercover cop in his unmarked cruiser and thus injures his leg.  Workers Comp's exclusive remedy provisions by-passed via intentional ramming allegation.  Defense showed photos of almost invisible damage to the Monte Carlo.  For what it was worth, both cops knew the civil litigation scene too - Officer Crutcher was previously in a hit and run by an 80 year old man when directing traffic;  Officer Hancock was accused of beating up a convenience store customer who made a doughnut joke.  Defense Verdict.  Jefferson.  To protect and to serve.  Hmmmmm.
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 THE BIG LIST - JURY VERDICTS IN KENTUCKY FOR 2002
  • LARGEST VERDICTS FOR 2002 - Jefferson
    1. Tyler Thompson, Louisville
      $5,783,815 for lacerated lower leg and RSD from defective weed trimmer in product liability case.
    2. Thomas Conway, Louisville
      $3,294,883 against Norton's Hosp. for nurse's failure to note complications from drug administration resulting in infant with permanent brain damage.
    3. Lee Sitlinger & Curt Sitlinger, Louisville
      $1.1 million bad faith case against USAA for handling of UIM claim
    4. Matthew Troutman, Louisville
      $218,326 medical malpractice for doctor failing to stat page which was partially to blame for patient's death.
    5. Peter Perlman, Lexington & Timothy Lange, Louisville
      $218,137 for Mayor David Armstrong's myasthenia gravis from car accident.
    6. Patrick McElhone and Ron Hillerich, Louisville
      $171,500 for herniated disk from mva and against UIM carrier.
  • LARGEST VERDICTS FOR 2002 - Kentucky/rest of the state
    1. James M. Gary & Frank Miller, Louisville
      $3,595,000 in maritime negligence case for industrial worker killed falling 20 feet into empty barge.
    2. Phil Stalnaker, Pikeville
      $2,004,700 in case where nurse fired, arrested and fighting to keep her license from off-hand remark abut Columbine.
    3. Lee Huddleston, Bowling Green
      $1,768,584 for outrage in employment case when industrial bakery improperly forced her to be a "snitch" as condition of continued employment.
    4. Gary and Anita Johnson, Pikeville & Masten Children, Lexington
      $1.1 million to seven plaintiffs less comparative fault as result of post-surgical staph infections by seven patients of one orthopodist.
    5. Gary and Anita Johnson, Pikeville
      $842,672 from tractor-trailer rear ending plaintiff; several injuries including bilateral rotator cuff and herniate disc.
    6. Andrew Ruzicho, Lexington
      $790,000 in employment retailiation/sexual harassment claim, including
      $250,000 for humiliation and $500,000 in punitives.
    7. Tom Herren, Lexington
      $746,380 in loss of toe in industrial accident.
    8. Steven O. Thornton, Bowling Green
      $578,336 in wrongful death case of Corvette driver killed by dump truck.
    9. Glenn Denton, Paducah
      $544,794 in MVA from C2 fracture and other symptoms.

 
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