May 30, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:27)
PUBLISHED (COA).
WYRICK V. DEPARTMENT OF REVENUE, FINANCE, AND ADMINISTRATION CABINETIn this open records request case, the Department of Revenue sought review of the Attorney General's decision, requiring disclosure of certain records requested by taxpayer's attorney, Mitzi D. Wyrick, who appealed the circuit court order which barred her from inspecting the documents.
COA held there was no time limitation to appeal open records
denial to the attorney general and declined the DOR’s request there be a 30-day time limitation for seeking review before the Attorney General and hold that pursuant to the plain language of the statute, Wyrick’s appeal to the Attorney General would have been timely whenever she chose to file it.
With regard to the records requested, the DOR cannot on the one hand argue, successfully, that the material sought in the tax appeal case is irrelevant to that litigation to defeat the discovery request, and then on the other hand argue in the Open Records proceeding that it is pertaining to that litigation and therefore subject to the limitation. The DOR is not “permitted to feed one can of worms” to the Board of Tax Appeals and another to the circuit court in the Open Records action.
COA then rejected the DOR’s argument that just because a record requested in discovery is deemed irrelevant, does not mean that it is not related to that litigation.
The public agency bears the burden of establishing that a requested record is exempt from release.
When ruling on party litigation defense to Open Records Act request, trial court was required to first determine whether a listed exemption
applied. However, the party litigation limitation was inapplicable because underlying litigation
in this was case was a tax appeal and was administrative, not civil.
Digested by Michael Stevens
NOT PUBLISHED (COA)
ROGERS V. COUNTS
TRIAL: UIM and injury claims tried without bifurcation
2006-CA-001087
NOT PUBLISHED: 114
DATE RENDERED: 5/30/2008
Paul and Barbara Rogers (Rogers) filed suit for personal injuries against Counts and against GEICO for underinsured motorist benefits. The jury entered found against the defendant Counts but awarded the Rogers nothing on their claim for medical expenses and pain and suffering. The COA affirmed.
The Rogers allege four grounds of error. The first two challenge the court's failure to grant the motion for a new trial based on the jury's failure to award damages for past medical bills as well as future medical expenses. FN2 The Rogers also challenge the refusal of the trial court to allow the introduction of evidence to substantiate the Rogers' claim their insurer GEICO had breached its contractual responsibilities to them. Finally, they challenge the court's refusal to strike the testimony of Counts' medical expert or, in the alternative, to allow for the examination of Counts' trial counsel.
Although it is not common, a zero damage award is not the basis for a new trial if the evidence sufficiently supports the jury's conclusion that the plaintiff did not suffer any damages as a result of the defendant’s tortuous conduct. Medical expenses must not only be reasonable but they must be incurred as a result of the accident and when the evidence is not conclusive, a jury is not required to accept the medical bills submitted by the plaintiff.
The Rogers do not cite, nor can we find, any case law which holds the decision of GEICO to pay the limits of the Rogers' no fault benefits constitutes some form of admission against interest or concession to the claim that the expenses are reasonably necessary.
Because there was a material issue of fact as to whether the Rogers were damaged by the collision, we find that the trial court did not abuse its discretion by denying the motion for a directed verdict and the Rogers' post-trial motions as to damages.
The plaintiffs Rogers amended their complaint to include a claim for UIM benefits against GECIO. A few days prior to trial, GEICO filed a cross-claim against Counts, asserting a subrogation claim for any amounts paid to the Rogers, subject to the underinsured motorist coverage. On the morning of trial, the parties discussed, outside the jury's presence, various motions in limine. All parties recognized the difficulty of presenting the Rogers' claims as well as GEICO's cross-claim for subrogation against Counts. Rogers' counsel agreed not to mention the amount of coverage or introduce the documents to which GEICO objected. Then counsel for the Rogers decided they should have the right to present their claims separately, allowing for two openings, etc., to balance the effect of both defendants questioning witnesses and making separate openings and closings. The court denied the Rogers' motion. The court then advised Rogers' counsel he could advise the jury the Rogers had sued both the tortfeasor and the underinsured carrier and that GEICO would seek to enforce its subrogation rights against Counts. None of the parties objected to this procedure.
The COA agreed with the Rogers that the decision, under these facts, to try the negligence claims and contract claims together, is unusual. It must be presumed that the damages sought by the Rogers exceeded the coverage provided by the tortfeasor's insurer. We make this assumption because the Rogers do not provide us with any reference to the record; rather, they argue that GEICO breached its contractual obligations as the underinsured motorist carrier. If the Rogers had settled with Counts and her carrier, they could have then proceeded against GEICO for any excess damages. Pursuant to Coots v. Allstate Ins. Co., 853 S.W.2d 895 (Ky.1993), GEICO could have advanced its own monies for the settlement amounts offered by Counts' carrier. GEICO would have been the real party in interest and would have been named for the jury in any subsequent trial. Earle v. Cobb, 156 S.W.3d 257, 261 (Ky.2004). However, there is no evidence the Rogers ever settled with Counts. Rather, they elected to proceed directly against both Counts, the tortfeasor and their own carrier, GEICO. It is not uncommon for the underinsured motorist carrier to then make a motion to bifurcate the proceedings to avoid any discussion of insurance coverage or policy limits during the trial of the negligence claim. Wittmer v. Jones, 864 S.W.2d 885 (Ky.1993). Neither the Rogers nor Counts or GEICO refer to any portion of the record to show any of the parties made a motion to bifurcate. Nor do the Rogers refer to the record to show the court ruled on such a motion if in fact it was made. The Rogers' objection based on inadequate time to complete discovery is not an adequate substitute for a motion to bifurcate. As such, a failure to properly preserve the record or to designate the appropriate portion of the record is fatal to the Rogers' claim before this Court. CR 76.12(4)(c)(v).
On appeal, Tom and Donna1 Scattoloni (Scattoloni or Tom Scattoloni) appeal from an opinion and order of the Jefferson Circuit Court in which the trial court granted summary judgment in favor of Robert Hallenberg and Woodward Hobson & Fulton, PLLP, whom Scattoloni sued for legal malpractice.
Scattoloni alleged that Hallenberg had deviated from the standard of care for a lawyer by failing to advise Scattoloni about the necessity of including a default provision in the purchase agreement which would have returned Fleming to Scattoloni in the event WJEC defaulted on its obligations under the purchase agreement.
To prove legal malpractice, Scattoloni is required to prove (1) that an employment relationship existed between him, as the client, and Hallenberg, as the attorney; (2) that Hallenberg, in his capacity as an attorney, failed in his duty to exercise the ordinary care that a reasonably competent attorney acting in the same or similar circumstances would; and (3) that Hallenberg’s alleged negligence was the proximate cause of Scattoloni’s damages. Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky. 2003). To prove that Hallenberg’s alleged negligence caused him harm, Scattoloni was required to prove that, but for Hallenberg’s negligence, Scattoloni would have had a better result in the underlying claim. Id. In other words, Scattoloni was required to show that, absent Hallenberg’s alleged negligence, Scattoloni would have negotiated a purchase agreement containing a default provision that would have prevented his losses.
We find that an attorney/client relationship existed between Scattoloni and Hallenberg. However, Scattoloni cannot meet the remaining elements for a legal malpractice case.
SANDERS V COM
2006-CA-002282
NOT PUBLISHED: 134
DATE RENDERED: 5/30/2008
LIGHTNER V. COM
2007-CA-000110
NOT PUBLISHED: 83
DATE RENDERED: 5/30/2008
Angela G. Hill appeals from a judgment of the Hardin Circuit Court after a jury found her to be 45% liable for an automobile accident in which she suffered injuries. On appeal, Hill raises numerous assignments of error.
First, she argues that the trial court erred in not granting her motion in limine to prohibit the parties in the lawsuit from mentioning in the jury’s presence that Hill’s insurance company, State Farm Mutual Automobile Insurance Company (State Farm), had a valid subrogation cross-claim against the defendant, Terry M. Jankowski. Second, Hill argues that the trial court erred in denying her motion in limine in which she asked permission to inform the jury that State Farm was responsible for Jankowski’s remaining in the case. Third, Hill argues that the trial court erred when it denied Jankowski’s motion for directed verdict regarding State Farm’s subrogation claim against Jankowski. Fourth, Hill argues that the trial court erred when it denied her motion for directed verdict regarding her underinsured motorist (UIM) claim against her insurance company, State Farm.
Finally, she argues that the trial court erred when it refused to instruct the jury regarding the sudden emergency doctrine. Furthermore, Jankowski has filed a cross-appeal in this case claiming that the trial court erred when it failed to instruct the jury that Hill had a duty to keep a reasonable lookout for vehicles ahead of her.
Finding no substantial errors requiring reversal, we affirm.
Hill filed a personal injury claim against Jankowski. Nearly a year later,
Hill amended her complaint to add State Farm as a party for underinsured
motorist benefits (UIM).
Jankowski then agreed to pay Hill $45,000.00, and State Farm then advanced the
$45,000 to Hill to preserve its subrogation claim against Jankowski following the procedure set forth in Coots v. Allstate Insurance Company, 853 S.W.2d 895 (Ky. 1993), now codified at KRS6
304.39-320(4). Hill’s remaining UIM claim was set for trial.
One of Hill’s motions was to prohibit the defendants from revealing to the jury the existence of State Farm’s subrogation cross-claim against Jankowski. Hill argued that such a revelation was inappropriate. In response, State Farm argued that it had a valid cross-claim against Jankowski and that claim would not “kick in” unless the jury awarded Hill a judgment in excess of Jankowski’s insurance coverage
After hearing the evidence, the jury determined that Jankowski was 55% liable and that Hill was 45% liable for Hill’s damages. After taking into consideration the jury’s determination regarding liability, the trial court entered a judgment against State Farm awarding Hill $45,000.00. Because Hill’s judgment did not exceed Jankowski’s insurance coverage, Hill recovered no money pursuant to her UIM claim against State
Farm, and Hill appealed.
While the record reveals that Hill filed a motion in limine seeking to prohibit the disclosure of State Farm’s subrogation claim to the jury and that she argued that point at a hearing, a review of the videotape of that hearing reveals that, during the course of the exchange between Hill and Jankowski, Hill ultimately agreed with Jankowski that the jury should know about all pending claims, including State Farm’s subrogation claim. By agreeing with Jankowski, Hill waived this issue.
The trial court did not err in denying Hill's motion in limine to inform the jury that State Farm was responsible for retention of Jankowski as a defendant at trial.
In Earle, the Supreme Court held that where an UIM carrier has exercised the procedure outlined in Coots to preserve its subrogation rights against a tortfeasor and where a plaintiff has filed suit against both the tortfeasor and the UIM carrier, the identity of the UIM carrier must be revealed to the jury to avoid the legal fiction that the tortfeasor is the only defendant involved. In a UIM claim, the UIM carrier is the only real party in interest. Earle, 156 S.W.3d at 260-261.
COA then affirmed the trial court’s denial of Hill’s motion to present evidence that State Farm was responsible for Jankowski’s retention in this case.
The trial court did not err in denying Jankowski's motion for directed verdict regarding State Farm's subrogation claim.
On appeal, Hill raised this as an issue. However, the party who is asserting standing must have more than a mere expectancy in the outcome of the proceeding but must have a present and substantial interest.
Therefore, we conclude that Hill lacked standing to pursue the denial of Jankowski’s motion and decline to address this assignment of error.
The trial court did not err in denying Hill's motion for directed verdict regarding her UIM claim against State Farm. At trial, after the presentation of the proof, Hill moved for a directed verdict regarding her UIM claim against the insurance company. According to Hill, State Farm failed to offer any defense to her UIM claim. The trial court denied Hill's motion. In the present case, there was no reasonable possibility of a different outcome because the jury did not award Hill a judgment in excess of Jankowski’s insurance coverage limits. Thus, even if this issue had been properly preserved, it would still lack merit.
The trial court did not err when it refused to instruct the jury regarding the sudden emergency doctrine.
According to the Supreme Court of Kentucky, the sudden emergency doctrine exists as a guide for juries to evaluate the allegedly negligent conduct of a party who suddenly encounters an emergency that leaves the party with no time to carefully consider the situation.
Thus, when a party encounters an emergency or a situation that “he has had no reason to anticipate and has not brought on by his own fault, but which alters the duties he would otherwise have been bound to observe, then the effect of that circumstance upon these duties must be covered by the instructions.” Harris v. Thompson, 497 S.W.2d 422, 428 (Ky. 1973).
Whether the trial court should qualify a party’s duties by including sudden emergency language in its instructions “does not depend upon whether the particular circumstance might be characterized in common parlance as a ‘sudden emergency,’ but whether it changes or modifies the duties that would have been incumbent upon [the party] in the absence of that circumstance.”
The sudden emergency doctrine is not an affirmative defense that has to be pled; instead, it concerns what a party’s duties are “under each state of facts inferable from the
evidence. The doctrine does not excuse a party of his fault; nor does it affect a plaintiff’s burden of proof. The doctrine attempts to define the conduct that one would expect from a prudent person faced with a similar emergency situation.
We determine that Hill faced a sudden occurrence, not a sudden emergency, and was not entitled to an instruction regarding the sudden emergency doctrine.
Because we have affirmed the jury’s verdict, we decline to address the merits of Jankowski’s cross-appeal.
Finding no substantial errors that would require reversal, the judgment of the Hardin Circuit Court is affirmed.
STACY V. ALLSTATE INS. CO.
APPEAL: Partial summary judgment and interlocutory
2007-CA-000365
NOT PUBLISHED: 102
DATE RENDERED: 5/30/2008
Thus, the partial summary judgment is plainly interlocutory and
nonappealable. A nunc pro tunc order cannot retroactively vest finality upon a judgment which was interlocutory when the notice of appeal herein was
filed.
We view such reasoning as sound and, likewise, hold that the subsequent entry of a nunc pro tunc order adding CR 54.02 finality recitations cannot “retroactively vest finality upon a judgment which was interlocutory when the notice of appeal . . . was filed.”
2007-CA-000835
NOT PUBLISHED: 111
DATE RENDERED: 5/30/2008
JONES V. BABBAGE
2007-CA-001496
NOT PUBLISHED: 89
DATE RENDERED: 5/30/2008
Mary Alice Raisor appeals from an opinion and order of the Jefferson Circuit Court that dismissed her complaint for negligent or intentional misrepresentation against William R. Burkett, Jr., William R. Burkett, III, Heather G. Burkett, Allen P. Dodd III, and Dodd & Dodd Attorneys,PLLC.
As grounds for the dismissal, the circuit court found that the complaint was barred by the operation of res judicata and by the statute of limitations for fraud or mistake. We affirm.
WILSON V. GROCE
2007-CA-002449
NOT PUBLISHED: 67
DATE RENDERED: 5/30/2008
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