Kentucky Law Summaries
K.R.S. § 44.072
Limited Waiver of Sovereign Immunity in Negligence Claims
It is the intent of the General Assembly to preserve the sovereign immunity of the commonwealth, except in limited situations set forth in the statute. Except as specifically indicated otherwise, the Board of Claims shall have exclusive jurisdiction to hear claims for damages against the commonwealth.
K.R.S. § 227.220
Duties of State Fire Marshal and Chief State Building Official Relating to Fire Loss
Details actions the State Fire Marshal shall or may take in the event of a fire loss.
K.R.S. § 227.260
Records of Fire Inspections, Investigations and Losses
State Fire Marshal shall keep a record of all fire inspections, investigations and fire losses occurring in this state and of facts concerning them. The records shall be public except for limited circumstances.
K.R.S. § 227.370
Inspection of Property by Fire Chief or Other Department Personnel - Inspection and Investigation Reports
Fire department is authorized to inspect all property for the purpose of ascertaining and causing to be corrected any conditions likely to cause fire loss, or determining the cause or origin of any fire loss, or discovering any violation of a law or ordinance relating to fire prevention and protection.
K.R.S. § 304.12-230
Unfair Claims Practices Act
This statute imposes duties on insurers on both first-party and third-party insurance claims. Under the statute, claims are to be paid within thirty (30) days upon notice and proof of claim unless the insurer is able to demonstrate why the claim cannot or should not be paid. The statute imposes interest at an annual rate of twelve percent (12%) after the expiration of the thirty (30) day period. The statute also allows an insured to recover attorneys’ fees for violations of this statute.
K.R.S. § 304.20-160
Power of Authorized Agency to Require Insurer to Furnish Information Concerning Fire Loss
An authorized agency may require an insurer to release information or evidence in the insurer’s possession deemed important to the investigation of a fire loss of suspicious origin. Such information may include, but is not limited to:
(1) Pertinent insurance policy information pertaining to such fire loss and any application for such a policy;
(2) Policy premium payment records;
(3) History of previous claims made by the insured;
(4) Material relating to such loss or potential loss.
Furthermore, when an insurer has reason to believe a fire loss may be of other than accidental cause, the insurer shall notify, in writing, an authorized agency.
Any insurer, or person acting in its behalf, or authorized agency who in good faith releases information in compliance with this section, shall not be held civilly or criminally liable.
K.R.S. § 304.20-020
Uninsured Vehicle Coverage
No automobile insurance policy shall be issued unless it provides coverage for injuries caused by the owners or operators of uninsured motor vehicles. An insured shall have the right to reject such coverage in writing. The term “uninsured motor vehicle” shall be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured due to insolvency.
K.R.S. § 304.39-320
Underinsured Motorist Coverage
A tortfeasor’s liability insurance is the primary coverage and the underinsured motorist coverage insurance is the secondary or excess coverage. Therefore, UIM coverage is payable only to the extent that judgment exceeds the tortfeasor’s liability coverage. Kentucky Farm Bureau Mut. Ins. Co. v. Rogers, 179 S.W.3d 815, 818 (Ky. 2005).
(1) Every insurer shall make available upon request to its insureds underinsured motorist coverage.
(2) If an injured person agrees to settle a claim with the liability insurer and the settlement would not fully satisfy the claim for personal injuries so as to create an uninsured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage.
(3) The underinsured motorist insurer then has a period of 30 days to consent to the settlement or retention of subrogation rights.
(4) The underinsured motorist insurer is entitled to a credit against total damages in the amounts of the limits of the underinsured motorist liability policies in all cases. Nothing, however, including any payments or credits, reduces or affects the total amount of underinsured motorist coverage available to the injured party.
K.R.S. § 304.47-060
Immunity for Cooperation with Law Enforcement
Under this statute an insurer is immune from civil liability if it notifies law enforcement authorities of suspected insurance fraud.
K.R.S. § 304.47-080
Special Investigative Units
All insurers licensed in Kentucky must have a special investigative unit to investigate possible insurance fraud. The unit may be staffed either by employees of the insurer or individuals specifically contracted by the insurer to investigate.
K.R.S. § 342.690
Exclusiveness of Workers’ Compensation Remedy
If an employer secures payments of Workers’ Compensation for his employees, the liability of the employer shall be limited to such Workers’ Compensation payments and shall be exclusive and in place of all other liability.
K.R.S. § 405.025
Parent or Guardian Liable for Willful Damage to Property Caused by Minor
The parent or guardian of any minor, in his care and custody, against whom judgment has been rendered for the willful marking upon, defacing or damaging of any property, shall be liable for the payment of that judgment up to an amount not to exceed $2,500.00 and not to exceed $10,000.00 in a cumulative amount.
K.R.S. § 411.186
Assessment of Punitive Damages
In any civil action where claims for punitive damages are included, the jury, or judge if the jury trial has been waived, shall determine concurrently with all the other issues presented whether punitive damages may be assessed.
In determining the amount of punitive damages to be assessed, the trier of fact should consider the following factors:
(1) The likelihood at the relevant time that serious harm would arise from the defendant’s misconduct;
(2) The degree of the defendant’s awareness of that likelihood;
(3) The profitability of the misconduct to the defendant;
(4) The duration of the misconduct and any concealment of it by the defendant; and
(5) Actions by the defendant to remedy the misconduct once it became known to the defendant.
K.R.S. § 411.188
Collateral Source Payment Rule
Collateral source payments, except life insurance, the value of any premiums paid by or on behalf of the plaintiff for same, and known subrogation rights shall be an admissible fact in any civil trial.
K.R.S. § 411.190
Obligations of Owner to Persons Using Land for Recreation
An owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for such purposes.
Nothing in this section limits in any way any liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
K.R.S. § 411.310
Statute of Repose
(1) In any product liability action it shall be presumed that the subject product was not defective if the injury occurred more than five years after the date of sale to the first consumer or more than eight years after the date of manufacture.
(2) In any product liability action it shall be presumed that the product was not defective if the design, methods of manufacture and testing conform to the generally recognized and prevailing standards or the state-of-the-art in existence at the time the design was prepared and the product was manufactured.
K.R.S. § 411.310
Presumptions in Product Liability Actions
(1) In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the subject product was not defective if the injury, death or property damage occurred either more than five years after the date of sale to the first consumer or more than eight years after the date of manufacture.
(2) State of the Art Defense.
K.R.S. § 411.82
Apportionment of Fault
In cases involving more than one alleged wrongdoer, the jury is to consider the fault not only of the defendants remaining in the case but also of any parties who may have been dismissed or were never joined as parties. Each defendant is liable only for their proportionate share of fault.
K.R.S. § 413.120
Actions to be Brought within Five Years
The following actions shall be commenced within five years after the cause of action accrued:
(1) An action upon a contract not in writing, express or implied.
(2) An action for personal injuries suffered by any person against the builder of a home or other improvements. This cause of action shall be deemed to accrue at the time of original occupancy of the improvements which the builder caused to be erected.
K.R.S. § 413.241
Liquor Liability
The consumption of intoxicating beverages, rather than the serving, furnishing, or sale of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or another person.
No person holding a permit under KRS 243.030, 243.040, 243.050, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises including, but not limited to, wrongful death and property damage.
Insurance Coverage Decisions
Coleman v. Bee Line Courier Services, Inc., 2009 WL 1439788 (Ky. 2009)
Release Agreements and Effect on Indemnification Claims
The plaintiff was injured in a motor vehicle accident by a vehicle owned by the defendant and operated by the defendant’s employee. The plaintiff’s insurance carrier, Nationwide Insurance Company, paid a portion of her medical bills under the Motor Vehicle Reparations Act. The plaintiff then settled her personal injury claim for an amount paid by the defendant’s insurance carrier, Zurich American Insurance, and signed a release and hold harmless agreement. Nationwide then sought indemnification against Zurich, who cited the release, demanding the plaintiff defend against the indemnification claim.
The court of appeals upheld the trial court’s summary judgment for defendant Bee Line. However, the Supreme Court reversed, finding the release agreement was only intended to relate to the personal injury claims, and not to any other forms of recoupment claims such as for the separate and distinct recoupment of “no-fault” (basic reparations) benefits paid. Therefore, the plaintiff was not contractually bound to defend Zurich against Nationwide’s indemnity claim.
Gilbert v. Nationwide, 275 S.W. 3d 690 (Ky. 2009)
Preserving Insurer’s Subrogation Rights
Plaintiff’s daughter was involved in an auto accident and promptly notified her own insurance provider, Nationwide. On assurances by the offender’s insurer, plaintiff waited to collect collision damages while there was pending litigation for her daughter’s personal injuries. The daughter’s personal injury case was settled and plaintiff tried to collect from the offender’s insurance company, which denied her claim because the two year statute of limitations had run. Plaintiff then sought damages from her own insurer, Nationwide. The issue before the court was whether the insurer’s subrogation rights had been violated since the plaintiff failed to file before the two year statute of limitations.
The court determined that because the plaintiff promptly notified her insurer, she satisfied her contractual duty not to interfere with insurer’s right to protect its subrogation rights and therefore preserved her right to collision coverage.
Malone v. Kentucky Farm Bureau Mut. Ins. Co., 2009 WL 1819487 (Ky. 2009)
UIM Coverage and Proper Notice Under the Policy
The plaintiff was involved in a motor vehicle collision, and brought suit against the other driver and against Kentucky Farm Bureau (KFB) as plaintiff’s UIM carrier. Plaintiff advised KFB that plaintiff was considering accepting an offer. The plaintiff then accepted a settlement offer from the other driver’s insurance, notifying KFB thereafter that the settlement was accepted and a release was already signed. KFB was then awarded summary judgment due to the fact that the lack of proper notice of the settlement violated the UIM policy, and KRS § 304.39-320.
The Supreme Court affirmed the summary judgment. The UIM policy clearly set forth the insured’s duty to notify the defendant before any agreement to settle was accepted by the insured. In Coots v. Allstate Ins. Co, the Supreme Court held a UIM insurer is entitled to notice in order to preserve its subrogation rights. Without the proper notice given to KFB to protect its subrogation interests, KFB was properly granted summary judgment.
Mattingly v. Stinson, 281 S.W.3d 796 (Ky. 2009)
Identifying the UIM Carrier at Trial
The plaintiff and the defendant were involved in a motor vehicle collision. The plaintiff brought suit against the defendant as driver of the other vehicle and against Kentucky Farm Bureau (KFB) as his own UIM carrier, while the defendant counterclaimed. The claim brought by the plaintiff was settled, whereas the counterclaim proceeded to trial. The trial jury found the defendant 100% liable.
The defendant claimed the trial court erred by not identifying KFB to the jury as a party at trial, because they carried the UIM insurance for the plaintiff. The Supreme Court, however, found no error. The UIM carrier must only be named when there is a Coots v. Allstate Ins. Co. type settlement; in other words, only when the UIM carrier has a subrogation interest preserved by paying the plaintiff the amount of the tortfeasor’s policy. Here the subrogation interest was not at issue, because KFB had not entered into any settlement with the injured plaintiff.
Damages Decisions
Tennill v. Talai, 277 S.W.3d 248 (Ky. 2009)
Proof of Unliquidated Damages after Default Judgment
Plaintiff sued for personal injuries arising out of an automobile accident. Neither the defendant nor his insurance company defended, and a default judgment was entered in favor of the plaintiff.
The defendant submitted written interrogatories that were not answered by the plaintiff, but the plaintiff was fully deposed by the defendant. The defendant attempted to bar the plaintiff from claiming unliquidated damages due to the failure to respond to the interrogatories, but the Supreme Court of Kentucky found that because the plaintiff was fully deposed on the issue of damages, the failure to answer the interrogatories was harmless, and allowed the claim for unliquidated damages.
Negligence Decisions
Morgan v. Scott, 2009 WL 1438905 (Ky. 2009)
Car Dealership Test Drives and Dealership Negligence
The plaintiff test drove a car from a local dealership. The dealer went in the car with the plaintiff, but soon realized the car was running out of gas, and returned to the dealership to refuel. After refueling, the dealer asked the plaintiff to wait in the parking lot while the dealer went inside, but the plaintiff drove the car off the lot. The plaintiff testified he had permission to drive off the lot. The plaintiff then lost control of the vehicle, injuring the defendants.
At trial, the court apportioned liability equally to the plaintiff and to the dealership. The Court of Appeals reversed on behalf of the dealership, and the Supreme Court agreed. The Court states that it has long been the law in the Commonwealth that a vehicle’s owner is not liable for the injuries that the operator of the car causes. The dealership may have been liable for the accident if a dealer had been present in the vehicle when the injuries were sustained, which is not the case here. The injuries were caused by the sole actions of the plaintiff, not the dealership under ideas of vicarious liability or negligence. Therefore, the Supreme Court held the jury should not have been instructed on apportionment because plaintiff was the only party liable.
Employment Decisions
Labor Ready, Inc. v. Johnston, 2009 Ky. LEXIS 153
Liability of Temporary Labor Service and its Employee While Working for a Contractor to Contractor’s Permanent Employee
A permanent employee was injured when she was struck by an automobile driven by subcontractor’s temporary employee, who was helping move vehicles during an auction. The injured employee sued the temporary labor service and temporary employee for negligence.
The Kentucky Supreme Court held the permanent employer had no potential workers' compensation liability to the temporary employee because he was not the injured party and therefore the injured employee was not the temporary employee's co-employee. In the event a jury found that the temporary employee's negligence helped to cause the injuries, § 342.690(1) limited the permanent employer's obligation to indemnify the subcontractor to the amount of workers' compensation benefits that it paid unless the parties had contracted otherwise. Ky. Rev. Stat. Ann. § 342.690(1) clearly permitted employers to agree to share an employer's liability for damages in a manner different from that set forth in the statute, provided they do so by written contract.
Other Significant Decisions
Auto Owners Insurance Co. v. Omni Indemnity Co., 2008-SC-000606-DG (Ky. 2009)
Subrogation
The suit involved insurance carriers of drivers in an automobile accident, one of whom had a policy through the appellee, the other had an underinsured motorist policy with the appellant. A personal injury action was filed, but the tortfeasor filed bankruptcy and was dismissed from the case. This dismissal terminated the subrogation rights the appellant had against the other driver for payments made to its insured. Appellant then filed a cross claim against the other driver and the appellee seeking subrogation of the payment it made to its insured under the UIM policy.
The Supreme Court reversed the ruling and found the appellant is entitled to seek subrogation from the appellee in the amount paid to its policy holder. The Court found the appellant’s inability to seek subrogation from the tortfeasor has no bearing on its statutory right to seek subrogation from the appellee under § 304.39-3204(4). The appellant can stand in the shoes of the insured to seek a determination of liability and damages and ultimately collect a judgment against the tortfeasor’s carrier.
Chappell v. Kuhlman Electric Corporation, 2006-SC-000144-DG (Ky. 2009)
Damages
The plaintiff filed a suit against a law firm and the insurance company hired by the plaintiff to cover Workers’ Compensation claims and appoint legal representation for them in these disputes. The plaintiff alleged the insurance company breached the contract, fiduciary duties and aided and abetted the law firm in its breach of fiduciary duties and bad faith.
The Supreme Court decided the ruling of summary judgment in favor of the defendants on the issue of the duty of care owed to Kuhlman Electric was inappropriate because they could not decide this as a matter of law. However, the Court upheld the judgment of the trial court because Kuhlman Electric could not show damages in connection with the violation of any duties owed to it by the insurance company. The Court rejected the plaintiff’s argument the insurance company’s negligence impaired the plaintiff’s ability to defend its case because the company was ultimately found liable because of the medical evidence and not because of any procedural difficulties.
Denton v. City of Florence, 2008-SC-000324-DG (Ky. 2009)
Procedure
Plaintiff was injured from a slip and fall on the sidewalk in front of a City building. In the plaintiff’s notice to the defendant, she misstated the date of the accident by stating the accident occurred on or about two days before the accident actually happened.
The Supreme Court disagreed with the lower court’s holding that the plaintiff’s notice to the defendant did not comply with § 411.110, and thus her claim was not barred. The Court reasoned that the plaintiff’s language “on or about” was stated only with approximate accuracy and the facts in this case did not show the plaintiff was outside the window of accuracy. The Court recognized the language of “on or about” could refer to a span of several days but not longer than a period of 3 to 4 months, and thus plaintiff’s misstatement of two days was clearly within this window.
Saleba v. Schrand, 2009-SC-000096-MR (Ky. 2009)
Evidence
The executor of an estate filed a wrongful death action on behalf of a woman who was allegedly misdiagnosed and improperly treated for cervical cancer. One of the defendant doctors filed a writ to prohibit the trial judge from requiring them to disclose various peer view documents relating to the defendant’s interpretation of certain tests and the defendant’s proficiency as a cytotechnologist.
The Supreme Court affirmed the lower court’s ruling that the Kentucky statute allowing for production of peer review documents applied, instead of the Ohio statute that would have prohibited this production. The Court applied the Kentucky law because documents that are privileged under the local law of the State, which has the most significant relationship with the communication but which is not privileged under the local law of the forum, will be admitted, unless there is some special reason why the forum policy favoring admission should not be followed. The Court found no policy reason existed and Kentucky has an abundance of case law allowing admission of medical malpractice documents.
Wilkins v. Kentucky Retirement Systems Bd. of Trustees, 276 S.W.3d 812 (Ky. 2009)
Procedure
The deadline for the petitioner’s appeal fell on a Sunday and the Monday after was a legal holiday (Columbus Day); however, the courthouse was open on that holiday. The petitioner filed on Tuesday. The court concluded that under KRS 446.030 since the Monday was a legal holiday the plaintiff was granted an additional day to file and therefore the petitioner had until Tuesday to file the appeal, even though the courthouse chose to remain open on Columbus Day.
Beard v. U.S., 2009 WL 305893 (EDKY 2009)
Negligence Standard of Care
An inmate brought suit under the Federal Tort Claims Act against prison doctors, alleging negligence in the treatment of certain conditions and injuries that the inmate suffered. The plaintiff did not produce any expert testimony as to the proper standard of care for the injuries he claimed.
The court found that the plaintiff did not meet the standard of proving a duty of care in a negligence action. Because this claim allegedly arose out of the negligent conduct of prison doctors, and the injuries suffered by the plaintiff were outside of the “general knowledge” of a jury, then the plaintiff was required to produce expert testimony. Further, the defense submitted extensive medical records and doctors’ affidavits showing that some form of care was provided. The plaintiff’s claim did not survive summary judgment due to his lack of production of expert testimony.
Insurance Coverage Decisions
Auto-Owners Ins. Co. v. Goode, 2009 WL 367216 (Ky. App.)
“Automobile” Defined for UIM Coverage
A passenger in a one vehicle automobile accident sought underinsured motorist benefits under her mother’s automobile insurance policy. The coverage extended to “a relative who does not own an automobile” and defined “automobile” as a four-wheel “private passenger or station wagon type automobile” not used in the business of carrying passengers for hire. The passenger owned a vehicle at the time of the accident, but the vehicle was inoperable as it was in need of a new steering column.
The court found the definition of “automobile” under the policy to be ambiguous because the definition was circular, and a reasonable person could interpret the definition as encompassing only four-wheeled vehicles that are operable. The court agreed with the Supreme Court of Kentucky’s determination that “a car that has been retired from service for an indefinite time into the future should not be considered a passenger vehicle.”
State Farm Mutual Automobile Ins. Co. v. Slusher, 2009 WL 485027 (Ky. App.)
Recovery of Workers Compensation Benefits Does Not Bar UIM Claim
The decedent was struck by an automobile at his place of employment when a co-worker negligently failed to activate the parking brake. The decedent’s estate collected under the Workers’ Compensation Statutes, but also sought damages from the decedent’s underinsured automobile policy with State Farm (UIM).
The court found that the clear intent of the Kentucky UIM statute is to allow additional coverage so as to be fully compensated from the fault of another individual. Therefore, although fault was attributed to the negligence of another co-worker/employee of plaintiff (who was therefore immune from liability), and the decedent’s damages exceeded the workers’ compensation limits, the estate was still allowed to recover from the decedent’s UIM policy.
Damages Decisions
Jackson v. Beattyville Water Dep’t, 279 S.W.3d 633 (Ky. App. 2009)
Alleging Damages to Establish Jurisdiction
A cemetery owner filed a complaint against a water department, alleging negligent repair of water lines adjacent to the cemetery, causing damages. The original complaint alleged $7,500.00 in damages, but the water company alleged that the damages were below the $4,000.00 amount in controversy required for Circuit Court jurisdiction. The trial court transferred the action to District Court.
The court of appeals reversed, stating that the circuit court has original jurisdiction in a civil action where the amount in controversy exceeds $4,000.00, pursuant to KRS 23 § A.010(1), 24A.120. Proof of damages in excess of $4,000.00 is not required for circuit court jurisdiction, they need only to be reasonably alleged, which the cemetery owner did in her supplemental answers to interrogatories.
Negligence Decisions
Carroll v. Wright, 2009 WL 414064 (Ky. App.)
Sudden Emergency Qualification in Jury Instructions
The plaintiff was struck by a tractor trailer that was driven by the defendant. The defendant was driving on a highway and approached a blind curve, where two vehicles were stopped at a stop sign. The defendant attempted to stop, his brakes locking out and leaving skid marks for 100 feet. The jury was instructed on the “sudden emergency” qualification, stating that if the stopped vehicles were a sudden emergency the defendant was confronted with and acted in a reasonable and prudent manner in light of that emergency, then the defendant is not held liable.
The Court of Appeals reversed, stating that the scenario of stopped vehicles around a blind curve does not qualify as a “sudden emergency.” The defendant was familiar with the roadway, and knew of the blind curve. There were also adequate warning signs of the blind curve on the roadway, making the stopped vehicles not a true “sudden emergency.”
Employment Decisions
St. Matthews Fire Protection District v. Aubrey, et al., 2009 Ky. App. LEXIS 47
Sovereign Immunity for County Officials
The plaintiff filed a declaratory judgment action against the defendants, who included county sheriffs and county clerks, for erroneous tax collecting procedures. The defendants were granted summary judgment on their behalf due to sovereign immunity of the officials.
The court of appeals upheld summary judgment. Kentucky counties are awarded governmental immunity. This extends to county officials when they are being sued in their official capacities, as long as they were working within the scope of their employment. Here, the sheriffs and clerks were within their official capacities as county tax collectors, and summary judgment based on immunity was appropriate.
Cincinnati Ins. Co. v. Motorists Mutual Ins. Co., 2008-SC-293-DG, appealed from 2008 Ky. App. Unpub. LEXIS 28
Insurance Policy Coverage due to Substandard Work Performance of Subcontractor
A home builder held a commercial insurance policy with Cincinnati Insurance and a general liability policy with Motorists Mutual. The home builder was sued for serious latent structural defects on a home due to the negligence of subcontractors who performed the framing and foundation work. Cincinnati Insurance denied the claim and refused to defend the home builder because the negligent work performance was not an “occurrence” of “property damage” under its policy. Motorists Mutual defended and sought to recover the cost of the settlement from Cincinnati Insurance.
The Supreme Court will review whether the substandard work performed by a subcontractor falls within the Cincinnati Insurance policy limitations.
Davis et al. v. Scott, 2009-SC-159-DG, appealed from 2009 Ky. App. LEXIS 26
Assignment of Proceeds from a Malpractice Claim
An attorney allegedly failed to inform a business owner he could not solicit the customers from a third party’s business following a failed purchase of the third party. After suit in federal court by the third party against the business owner, the case settled, with the settlement allocating eighty percent of the proceeds from the business owner’s legal malpractice suit against his attorney.
The Supreme Court will review whether, as a matter of public policy, assignments of legal malpractice claims will be permitted. Further, the Court will review whether, if the proceeds cannot be assigned, if the party can still proceed with the malpractice suit.
Haj-Hamed v. OHIC Ins. Co., 2008-SC-127-DG, appealed from 2007 Ky. App. LEXIS 455
Notice of Cancellation of Malpractice Insurance
An insurance company cancelled a medical malpractice policy issued for a doctor’s practices located in both Ohio and Northern Kentucky. The policy included Kentucky endorsements, including a requirement that cancellation required written notice and specified the required time limit for cancelling the policy.
Disputes occurred between the insurance company and the insured, with allegations of non-payment and discovery of willful or reckless actions by the insured, and the policy was cancelled. The insurance company sent the insured notice of the various reasons the insurance company terminated the policy. The reasons of non-payment and discovery of willful or reckless actions, however, have different statutory time requirements.
The Supreme Court will review whether the insurance company provided proper notice for the cancellation of the policy in accordance with KRS § 304.20-320(2)(b), and if the damages awarded to the insured were appropriate.
Henson et al. v. Klein, 2007-SC-795-DG, appealed from 2007 Ky. App. LEXIS 376
Sudden Emergency Doctrine
The defendant followed the plaintiff on a personal watercraft on Lake Cumberland when the plaintiff abruptly turned left, cutting across the defendant’s path, and stopped. The defendant, who testified he followed at a safe distance, struck the plaintiff’s watercraft after attempting to avoid the collision. At trial, the court instructed the jury on the sudden emergency doctrine, and the jury found in favor of the defendant.
The plaintiff argues that the sudden emergency doctrine is only available to defendants who are exercising reasonable care when an unexpected emergency arises. The plaintiff argues the defendant followed her personal watercraft at an unsafe distance, making the defendant negligent and the jury’s instruction on the sudden emergency doctrine an error.
The Supreme Court will review the jury’s instruction on the sudden emergency doctrine, and if the instruction should have been available to the defendant.
Kentucky Farm Bureau v. Shelter Mutual Ins. Co., 2008-SC-781-DG, appealed from 971 S.W.2d 807
Insurance Coverage of Two Competing Policies
One insurance company issued a policy to the owner of a vehicle, while the other insurance company issued a policy to the guest driver of the owner’s vehicle. The guest driver was negligent in causing a collision. Both the owner’s and the guest driver’s policies provide coverage for the damages incurred and also contain “excess insurance” clauses.
The Supreme Court will review which policy should provide coverage for the accident, or the proper apportionment of damages between the two policies.
Kentucky River Medical Center v. McIntosh, 2008-SC-464-DG, appealed from 2007-CA-001310-MR
Open and Obvious Doctrine
A paramedic transported a patient by ambulance to a hospital. While transferring the patient from the ambulance to a hospital, the paramedic tripped over an unpainted and unmarked curb.
The Supreme Court will review whether the hospital is liable to the paramedic for the injuries sustained, or if the open and obvious doctrine applies, relieving the hospital of liability because the unmarked curb should have been noticed by the paramedic.
Kentucky Farm Bureau v. Young, 2008-SC-333-DG, appealed from 2008 Ky. App. LEXIS 105
Sufficiency of “Coots Notice” to Preserve Subrogation Rights
The UIM insurance carrier sent a “Coots Notice” pursuant to KRS § 304.39-320 to secure subrogation rights. The UIM insurance carrier’s notice, however, overstated the amount plaintiff was to receive from tortfeasor's liability insurer and was not sent by registered or certified mail. The UIM insurance carrier also did not substitute payment of the settlement amount within thirty days after notice, and the plaintiff proceeded with settlement.
The Supreme Court will review whether the notice provided by the UIM insurance carrier is sufficient to preserve the carrier’s subrogation rights.