Kentucky Court of Appeals
Immunity - Police Officer
Prater v. Catt, 443 S.W.3d 6, 2014 WL 794809 (Ky.App. February 28, 2014), motion for discretionary review denied October 15, 2014 (2014-SC-000161-D)

Officer Catt was on mounted patrol at a UK football game when her horse was spooked by the marching band and the plaintiff was injured. The plaintiff alleged that Catt had negligently agitated the horse and that her supervisor, Sgt. Sam had been negligent in directing Catt to position her mount near a crowd. In finding that Catt was entitled to immunity because the handling of the horse was a discretionary function, the Court distinguished Jones v. Lathram, 150 S.W.3d 50 (Ky. 2004), which held that the operation of a cruiser, even in an emergency, was a ministerial function. Unlike a motor vehicle, the rider of a horse does not follow well defined rules of the road and the horse's behavior is not entirely predictable.

Kentucky Supreme Court
Insurance - Reformation
Nichols v. Zurich American Insurance Company, 423 S.W.3d 698, 2014 WL 683810 (Ky. February 20, 2014)

Nichols was an employee of Miller and was operating a Miller truck when he was injured in a motor vehicle accident. Miller was insured by Zurich under a commercial fleet policy that, as issued, included an underinsured motorist coverage endorsement. The proof showed that the insured had requested that the agent procure a policy that excluded UIM coverage where possible. The agent did not have Miller execute a Kentucky rejection form at the time, and did not communicate the intent to exclude UIM to Zurich. Following the accident, Miller executed a UIM rejection form. Zurich sought to reform the policy based on mutual mistake.

The Supreme Court determined that Zurich had not shown the elements of mutual mistake. While the policy as issued did not reflect the intent of the insured the Court held that the policy had been issued exactly as intended by Zurich. The key point here is that the Court held that the knowledge of the agent was not imputed to the insurer, which implies that the agent is the agent of the insured for purposes of procuring the policy. This has been the case historically. However, this opinion does not address the 4-3 opinion in Pan-American Life Ins. Co. v. Roethke, 30 S.W.3d 128 (Ky. 2000), which incorrectly held that a general agent was the agent of the insurer in the context and went on to treat the agent as an employee for the purpose of imputation of fault. This would have been a great opportunity for the Court to overrule or limit this opinion, but it is not mentioned. However, the next time a claimant seeks coverage that an agent agreed to procure but did not, this opinion will provide the insurer with a strong counter to the Pan-American case.

Kentucky Supreme Court
Professional Liability - Medical - Necessity of Expert Proof
Love v. Walker, 423 S.W.3d 751, 2014 WL 712689 (Ky. February 20, 2014)

In this case the plaintiff sustained damage to her right vocal cord following a total thyroidectomy. The trial Court dismissed the case because the plaintiff had failed to identify an expert, and the Court of Appeals reversed positing that there was an issue as to whether an expert was necessary (prior discussion). The Supreme Court went a long way towards clarifying this aspect of malpractice cases.

First, the Court saw it as clear case requiring expert testimony. There were two potential aspects to the claim, first whether surgery was the appropriate treatment, and second whether the surgery was properly performed. As to the first, the Court held that the record contained sufficient expert evidence. Prior to the surgery, plaintiff had been treated for hypothyroidism. Dr. Love's consent form and his testimony indicated he treated a thyroid storm, and there was testimony that surgery was not an appropriate treatment for that condition. However, the Court held that the trial Court had been correct as to the second aspect, and there was no expert testimony that the surgery had been performed correctly. The Court remanded the case for a trial on whether surgery was the appropriate treatment.

Kentucky Supreme Court
Professional Liability - Hospitals - Negligent Credentialing
Trover v. Estate of Judith Burton , 423 S.W.3d 165, 2014 WL 683639 (Ky. February 20, 2014)

This is a suit against a radiologist and a clinic of which he was a part alleging a delay in diagnosis due to an alleged misreading of a CT scan. After the patient's death the claim was revived only against the clinic, alleging negligence in credentialing Dr. Trover. A jury found for the clinic, and an appeal was brought largely complaining about the exclusion of evidence concerning Dr. Trover's licensure history. The Court of Appeals held the exclusion to be error, and went on to "adopt" a cause of action for negligent credentialing, which had not been previously recognized by the Kentucky courts. While the Supreme Court said it granted review to consider the negligent credentialing issue, but ended up leaving it for another day. The Court reversed on the ground that the exclusion or admission of the licensure history was within the discretion of the trial Court.

Kentucky Court of Appeals - Unpublished
Battery - Self Defense
Carpenter v. Riester, 2014 WL 631633 (Ky.App. February 14, 2014)

The plaintiff, while extremely intoxicated, drove his vehicle through the closed gate to defendant's farm. The defendant got in his truck to see what was occurring, and upon seeing the plaintiff driving towards him he stopped his truck on the roadway. The plaintiff ran his truck into the defendant's truck. Defendant went to see if plaintiff was alright, and it was then that he knew plaintiff was intoxicated. Defendant escorted plaintiff to his truck and drove to his home. He removed his weapon from the truck, and went inside to call 911. He came back out to wait for the sheriff, and when plaintiff tried to get out of the truck he ordered him back in. As he approached plaintiff, the plaintiff stabbed him. Defendant struck plaintiff on the head with his weapon.

While the battery was undisputed, defendant claimed that he struck plaintiff on the head in self defense, which in criminal cases is defined by KRS 503.050. The Court first observed that self-defense is the same under criminal and civil law. The defendant offered an affidavit that affied as to defendant's fear that he was in imminent danger of attack and felt the use of the gun necessary to prevent further attack. The affidavit was not met with any contradictory evidence. The Court found that summary judgment was appropriately granted.

Kentucky Court of Appeals - Unpublished
False Imprisonment - Unlawful Detention
Carpenter v. Riester, 2014 WL 631633 (Ky.App. February 14, 2014)

The plaintiff came onto defendant's property in a highly intoxicated state, and defendant detained him while the Sheriff arrived. The proof was uncontroverted that plaintiff had crashed through his gate, intentionally crashed his truck into defendants, and that plaintiff was so intoxicated that he could barely stand. The Court held that as a matter of law defendant was justified in preventing plaintiff from getting back into his vehicle and driving, citing KRS 503.100(1). This case could have implications for those that serve alcohol in dealing with intoxicated patrons as well.

Kentucky Court of Appeals - Unpublished
Immunity - Schools - Slip and Fall on Natural Accumulations
Rasche v. Berman, 2014 WL 631649 (Ky.App. February 14, 2014), motion for discretionary review granted December 10, 2014 (2014-SC-000132-D), remanded

Plaintiff slipped and fell on snow and ice in the parking lot on school property. Suit was brought against those responsible for supervising snow and ice removal operations the prior day and night, and not the individuals who plowed and salted the lots. The plaintiff argued that the decision of whether and how to clear the lots of the schools was ministerial, but the Court rejected this argument. The Court found that the supervision required discretion in determining how to allocate resources and that every snow or ice storm was different.

The plaintiff also argued that the school was negligent in determining to hold school with a two hour delay, rather than to cancel school altogether. The Court found that the decision about whether to hold school was the epitome of a discretionary decision.

Kentucky Court of Appeals - Unpublished
Exclusive Remedy - Delay in Medical Attention
Holt v. Dana Light Axle Manufacturing, LLC, 2014 WL 631867 (Ky.App. February 14, 2014)

The plaintiff sustained a heart attack at work and claimed that the damage to his heart was increased through a delay in obtaining medical treatment. The trial Court dismissed the case on the ground there an employer has no duty to provide medical treatment. The Court of Appeals affirmed on the alternate ground that the claim was barred by the exclusive remedy. While the hear attack itself may have not arisen for his employment, the panel found that any increased damage from delay was. The Court reasoned that had he not been at work, he may have obtained more prompt treatment.

Kentucky Court of Appeals
Exclusive Remedy Defense
McGuire v. Lorillard Tobacco Company, ___ S.W.3d ___, 2014 WL 585626 (Ky.App. February 14, 2014), motion for discretionary review filed May 2, 2014 (2014-SC-000237-D)

The plaintiff was employed by Lorillard when he alleged he was exposed to asbestos in two distinct ways. First, he alleged that asbestos was in the air in the plant where he worked for a year in the 1950s, and second, he alleged he was exposed through cigarette filters manufactured by his employer. He argued that his plant exposure was outside the exclusive remedy because he never had an opportunity to bring a workers' compensation claim. The Court held that the defense was not contingent on a claim being available. As to the cigarette claim, the Court held the exclusive remedy defense did not apply to smoking while an employee. The Court distinguished the dual capacity doctrine, which was rejected in Borman v. Interlake, Inc., 623 S.W.2d 912 (Ky.App. 1981). In Borman, the employee was injured by a product that had been manufactured by the employer, but the injury occurred in the scope and course of his employment. In this case, the exposure would have been while an employee but not arising out of the employment, so the exclusive remedy defense was not a bar to a product claim in this situation.

Kentucky Court of Appeals - Unpublished
Limitations - Professional Services - Architects and Engineers
Lore, LLC v. Moonbow Investments, LLC, 2014 WL 507382 (Ky.App. February 7, 2014)

The plaintiffs purchased real property from Moonbow for the purpose of constructing an oncology center. Moonbow had represented that the lots were suitable for such construction. Prior to purchasing the lot, plaintiffs retained geotechnical engineering firm QORE to perform testing and it reports several concerns, including the risk of soil settlement, but that the lot would be suitable for the project if certain stabilization measures were taken. Plaintiffs then hired S&ME, who found that the slope was placed over organic materials and recommended they be removed and replaced with engineered fill. Plaintiffs hired a general contractor, Branscum, who brought in architect Sims. Sims then hired Advantage to perform structural engineering services. Based on the QORE and Sims reports, they revised the site plan. The plaintiffs were told to expect some cracking and the parties agreed to a settlement range of ¼ to ½ inch. It was then that the purchase went forward. The Plaintiffs occupied the structure in later summer 2007, and in June of 2008, cracking in the rear walls was observed.

Advantage was asked to do an assessment, and on September 4, 2008 rendered a report which indicated both horizontal and vertical settlement and that the foundation may have been built on some of the questionable fill, and that it may be necessary to install a foundation stabilization system. Advantage recommended that the situation be monitored for six to nine months. On December 20, 2008, Sims sent an email which reported its view that the problems were caused by a deep layer of poor quality fill below the foundation. A meeting occurred in February of 2009, at which time QORE was asked to assess the building's distress. In a report dated March 3, 2009, QORE reported that while the distress currently appeared cosmetic, the footing was rotated and an engineering firm should be retained to evaluate and develop remedial measures. Plaintiffs, in response, hired AGE to monitor the structure. On May 12, 2009, AGE advised the plaintiffs that the building was still moving. Plaintiffs then installed a helical pier foundation, which, along with other remedial measures, cost $188,363.02.

Plaintiffs filed suit on January 11, 2010. They claimed breach of contract on the part of Branscom, negligence on the part of QORE, Sims and Advantage, and fraud on the part of Moonbow. QORE, Sims and Advantage sought dismissal on the grounds that the suit was filed after the applicable limitations, KRS 413.245, governing actions for professional services. The occurrence of damages clearly occurred more than a year before the filing, so the focus was on the application of the discovery rule. The plaintiffs argued that discovery occurred in May of 2009 when AGE advised them the building was still moving. While the plaintiffs dismissed prior knowledge as mere cracking, the Court emphasized that much more than that was known in 2008. The mere fact that in May of 2008 plaintiff was sufficiently concerned to call in Advantage to investigate reveals that more than cosmetic damage was noted, and the subsequent report advised plaintiffs that the foundation was moving both vertically and horizontally, because the foundation may have been placed on questionable fill. Qualifying words such as "may" does no diminish the report's impact on the discovery issue. This, the Court held was sufficient to put the plaintiffs on inquiry notice and begin the limitations period running.

Kentucky Court of Appeals - Unpublished
Fraud - Reliance
Lore, LLC v. Moonbow Investments, LLC, 2014 WL 507382 (Ky.App. February 7, 2014)