Tuesday, March 11, 2008
Circuit Judge Gibson Suspends District Judge's Policy on Objections
You might remember my earlier post titled; Judge Tells Attorneys to Zip It, where I discussed the "standing objection" rule put in place by District Judge Delahanty. Here is an article by the Courier Journal on Circuit Judge Susan Gibson's order telling Delahanty to temporarily stop enforcement of his rule. Judge Gibson wrote that Delahanty’s policy, “imposes a significant limitation” on the Jefferson County Attorney’s office. While she stopped short of declaring the rule, illegal as the County Attorney's office has requested, she did reserve the right to do just that after further review of the arguments. Click on my earlier post to see my criticisms of the rule.
Monday, March 10, 2008
Mistrial is Improper Vehicle for Correcting Jury Verdict
The Court of Appeals published Williams v. Primary Care Associates, a medical malpractice case resulting in two jury trials, the last which was declared a nullity on appeal. Williams brought the claim as the Administrator of the Estate of Leslie Dunagan, who died after the defendants nurse practitioner failed to diagnose an abdominal stress ulcer.
In the first trial the jury deliberated for over eight hours before announcing their verdict. The verdict was not unanimous but found the nurse practitioner defendant 100% at fault. The jury awarded medical and funeral expenses, but nothing for destruction of Leslie's power to earn money. The Appellees (Defendants) argued that the jury should be returned to consider the issue further, which the trial court ordered. After twenty-five minutes, the jury returned an additional $800,000 for loss of earning power. The Appellees moved for a mistrial, which was granted. The case was subsequently tried a second time. Both issues of liability and damages were retried. The verdict was in the Appellees favor. The appeal followed.
The Appellants argued that the trial court abused its discretion in granting a mistrial after the jury had returned its verdict. The court discussed the roots of the mistrial as a common law creation and its modern use. The court declared; "We believe the better position is that a mistrial contemplates some error during trial that cannot be cured which prevents a jury from returning a verdict and thus precludes the court from entering a judgment...a mistrial is equivalent to no trial thus making it inappropriate to grant a mistrial after the jury returns a verdict." The court believed that upon entry of a judgment in accordance with the verdict, the judge could enter a judgment not withstanding the verdict (JNOV) or order a new trial, neither of which was addressed since no judgment was ever entered.
The only reasons given by the trial court for granting the mistrial was a witnesses reference to "insurance companies" and the jury deliberating too little time after being sent back. The court found both of these reasons insufficient to justify a mistrial, even if one was appropriate. The court believed that granting a mistrial due to the amount of time a jury spent deliberating was an abuse of discretion on its face. In Kentucky, there is no minimum time a jury must deliberate before returning a verdict.
The court did not believe that the alleged errors rose to the level of a JNOV or a new trial, and it directed the case back to the trial court accordingly. However, if the trial court found grounds for a new trial, the new trial would be on the issue of damages only, and only the damage issue related to loss of power to earn. The trial order and Judgment of the Barren Circuit Court was set aside and the order granting the mistrial was reversed. The matter was remanded with directions to enter the judgment from the first trial.
OUCH...this opinion gives homage to the old adage; "Be careful what you wish for." Notice it wasn't the Appellants (Plaintiffs) who asked that the jury be allowed to reconsider its verdict, it was the Appellees (Defendants). By doing so, the defendants not only opened themselves up to such a result, but they waived any argument that the judge erred by sending it back. Of course, they might have felt the trial and resulting verdict was going well enough to risk a chance the jury would award an amount in line with the rest of their verdict. Sort of like Vegas, huh.
I am not a fan of ever sending the jury back to reconsider its verdict, no matter what issue is likely to remain. One must be especially careful in asking the jury to reconsider a verdict for impairment, especially in a death case, since that figure is usually the highest. Sending the verdict back after a "0" is awarded is just telling the jury, "what you did was not right so you must fix it." A jury will either do one or two things, in my opinion. They will either get upset that you are not accepting the result they reached. This usually results in the "0" being replaced by a similar number like "1" or "100". Or, they will quickly realize that the numbers they were throwing around like "800,000" were closer and gladly put one of those in the empty space after about twenty-five minutes. The question then becomes, is it worth the chance?
Interesting note about the issue of damages on a motion for new trial. A new trial does not encompass the whole trial, but only that issue, which is the subject of dispute. In this case that would have been only on the issue of loss to power to earn. However, since the issue of liability was found in the plaintiff's favor, and death resulted, loss to power to earn is almost guaranteed. So a verdict of "0" is inadequate, requiring a new trial on that issue. The choice then becomes do you want a jury that just awarded "0" to give you a number, or a jury that will not hear from the defendant at the next trial and that will only hear arguments over amount, usually large numbers, that follow after death? A calculated and strategic move definitely, and certainly not an easy choice to make. Unfortunately, a mistrial is not the appropriate way to resolve this dilemma, and frankly, once you place your bets and roll the dice, you live with the final number.
In the first trial the jury deliberated for over eight hours before announcing their verdict. The verdict was not unanimous but found the nurse practitioner defendant 100% at fault. The jury awarded medical and funeral expenses, but nothing for destruction of Leslie's power to earn money. The Appellees (Defendants) argued that the jury should be returned to consider the issue further, which the trial court ordered. After twenty-five minutes, the jury returned an additional $800,000 for loss of earning power. The Appellees moved for a mistrial, which was granted. The case was subsequently tried a second time. Both issues of liability and damages were retried. The verdict was in the Appellees favor. The appeal followed.
The Appellants argued that the trial court abused its discretion in granting a mistrial after the jury had returned its verdict. The court discussed the roots of the mistrial as a common law creation and its modern use. The court declared; "We believe the better position is that a mistrial contemplates some error during trial that cannot be cured which prevents a jury from returning a verdict and thus precludes the court from entering a judgment...a mistrial is equivalent to no trial thus making it inappropriate to grant a mistrial after the jury returns a verdict." The court believed that upon entry of a judgment in accordance with the verdict, the judge could enter a judgment not withstanding the verdict (JNOV) or order a new trial, neither of which was addressed since no judgment was ever entered.
The only reasons given by the trial court for granting the mistrial was a witnesses reference to "insurance companies" and the jury deliberating too little time after being sent back. The court found both of these reasons insufficient to justify a mistrial, even if one was appropriate. The court believed that granting a mistrial due to the amount of time a jury spent deliberating was an abuse of discretion on its face. In Kentucky, there is no minimum time a jury must deliberate before returning a verdict.
The court did not believe that the alleged errors rose to the level of a JNOV or a new trial, and it directed the case back to the trial court accordingly. However, if the trial court found grounds for a new trial, the new trial would be on the issue of damages only, and only the damage issue related to loss of power to earn. The trial order and Judgment of the Barren Circuit Court was set aside and the order granting the mistrial was reversed. The matter was remanded with directions to enter the judgment from the first trial.
OUCH...this opinion gives homage to the old adage; "Be careful what you wish for." Notice it wasn't the Appellants (Plaintiffs) who asked that the jury be allowed to reconsider its verdict, it was the Appellees (Defendants). By doing so, the defendants not only opened themselves up to such a result, but they waived any argument that the judge erred by sending it back. Of course, they might have felt the trial and resulting verdict was going well enough to risk a chance the jury would award an amount in line with the rest of their verdict. Sort of like Vegas, huh.
I am not a fan of ever sending the jury back to reconsider its verdict, no matter what issue is likely to remain. One must be especially careful in asking the jury to reconsider a verdict for impairment, especially in a death case, since that figure is usually the highest. Sending the verdict back after a "0" is awarded is just telling the jury, "what you did was not right so you must fix it." A jury will either do one or two things, in my opinion. They will either get upset that you are not accepting the result they reached. This usually results in the "0" being replaced by a similar number like "1" or "100". Or, they will quickly realize that the numbers they were throwing around like "800,000" were closer and gladly put one of those in the empty space after about twenty-five minutes. The question then becomes, is it worth the chance?
Interesting note about the issue of damages on a motion for new trial. A new trial does not encompass the whole trial, but only that issue, which is the subject of dispute. In this case that would have been only on the issue of loss to power to earn. However, since the issue of liability was found in the plaintiff's favor, and death resulted, loss to power to earn is almost guaranteed. So a verdict of "0" is inadequate, requiring a new trial on that issue. The choice then becomes do you want a jury that just awarded "0" to give you a number, or a jury that will not hear from the defendant at the next trial and that will only hear arguments over amount, usually large numbers, that follow after death? A calculated and strategic move definitely, and certainly not an easy choice to make. Unfortunately, a mistrial is not the appropriate way to resolve this dilemma, and frankly, once you place your bets and roll the dice, you live with the final number.
Friday, March 07, 2008
Court of Appeals Minutes for March 7th.
The Court of Appeals has published its minutes for March 7th, here. Check back for the digest of an interesting medical malpractice case, involving multiple jury trials and an issue regarding the use of mistrials in Kentucky jurisprudence.
Tuesday, March 04, 2008
Pending Bill Would Extend Statute of Limitation on Third Party Defendants
Mike Stevens of the Kentucky Law Review posted on pending House Bill 643, which will expand the ability of certain plaintiffs to sue. You will recall that a similar bill was previously pending but did not pass. Mike discusses the need for the bill and the misuse or use of the current rules by both parties.
Mike concludes; "Thus you have two choices, permit the extension of the statute of limitations following a third party apportionment claim so that the plaintiff may amend his/her complaint OR apply a theory of estoppel or waiver on the defendant for asserting an untimely claim after they have already answered."
While I certainly understand the perceived injustice that some think occurs, I simply do not believe this is such an issue, requiring a drastic change to the civil rules. See my previous thoughts on the same bill pending in the Senate in 2006, here.
Mike concludes; "Thus you have two choices, permit the extension of the statute of limitations following a third party apportionment claim so that the plaintiff may amend his/her complaint OR apply a theory of estoppel or waiver on the defendant for asserting an untimely claim after they have already answered."
While I certainly understand the perceived injustice that some think occurs, I simply do not believe this is such an issue, requiring a drastic change to the civil rules. See my previous thoughts on the same bill pending in the Senate in 2006, here.
Monday, March 03, 2008
Speaking on Ethics of a Legal Blog
I am pleased to be speaking at the Kentucky Justice Association's CLE presentation of Cyber Practice, Using Technology in Today's Law Office, in Louisville, Kentucky, on March 14, 2008. My presentation with be on the Ethics of a Legal Blog, and will discuss the ethical rules, which are implicated when an an attorney publishes a legal blog or interacts through blog communications. For a complete description of the event or to register, click here.
Court of Appeals Minutes for February 29th Are Posted
The Court of Appeals posted its minutes for February 29th, here. There are no published cases dealing with tort or insurance law.
Friday, February 29, 2008
Powerful and Persuasive Article Regarding Professor Lawson Interview
The Kentucky Law Review reported on a Courier Journal interview with Professor Robert G. Lawson, initially posted on by the Elusive Justice Blog, titled an Example of Resistance to Change. You can read the KLR's post here, with links to the full article and other interesting posts.
While not germane to tort and insurance law issues, I agree with Mike Stevens that the entire interview should be read. In my opinion, attorneys, regardless of their practice area, are obligated to speak up on important legal issues such as those discussed in the interview. Regardless of your own opinion we are ethically bound to at least join in debating this issue and addressing the questions raised. You should at least be aware of the problem. Not everything is as simple as it appears.
While not germane to tort and insurance law issues, I agree with Mike Stevens that the entire interview should be read. In my opinion, attorneys, regardless of their practice area, are obligated to speak up on important legal issues such as those discussed in the interview. Regardless of your own opinion we are ethically bound to at least join in debating this issue and addressing the questions raised. You should at least be aware of the problem. Not everything is as simple as it appears.
Wednesday, February 27, 2008
Court of Appeals Vacates $174,000 Judgment in Medical Malpractice Case
The Court of Appeals recently published Ohio County Hospital Corporation v. Martin, a case resulting from alleged malpractice in the treatment of Billie Shreve. "Shreve died after being treated at the hospital following an automobile accident, and this case arose as a result of a claim of medical negligence brought by the administratrix of her estate and by her surviving husband against the hospital and her treating physician", Dr. Gregory.
The jury returned a verdict against Dr. Gregory and the hospital, determining that each was liable for 50% of the damages. The jury awarded $48,000 for destruction of Shreve's power to earn money, $50,000 for her pain and suffering, and $725 for funeral expenses, for a total of $98,725. The jury awarded Donald Shreve $250,000 for loss of consortium. A judgment of $49,362.50 was entered for the Estate and $125,000 for Donald Shreve based on the apportionment of liability.
On appeal the hospital sought to overturn the loss of consortium claim, claiming it improperly allowed damages for loss of consortium when no appreciable time passed between the injuries and Ms. Shreve death, the actual measure of such damages. The Court of Appeals noted:
The first ten pages of the opinion are dedicated to discussing the EMTALA (Emergency Medical Treatment and Active Labor Act) a federal statute enacted by Congress to prevent hospitals “from dumping patients, who lack insurance to pay for their claims, by either refusing treatment or transferring them to other hospital." The hospital also cited case law noting that this statute was not a federal malpractice statute. Despite the statute's clear language and the supporting federal authority, the Court of Appeals discussed the EMTALA at length. It found that the "medical screening" requirement requires evidence of bad faith, which was not present. The medical stabilization requirement requires no such finding, but the Court found that the hospital complied by executing the requisite forms prior to Shreve's transport. It held that a directed verdict was appropriate on this claim.
Unfortunately, because the EMTALA issue was allowed to go to the jury and the verdict did not separate common elements of damages sought under both claims the entire verdict was vacated, and the case was remanded for a new trial on the issue of the estate's medical negligence claim.
The jury returned a verdict against Dr. Gregory and the hospital, determining that each was liable for 50% of the damages. The jury awarded $48,000 for destruction of Shreve's power to earn money, $50,000 for her pain and suffering, and $725 for funeral expenses, for a total of $98,725. The jury awarded Donald Shreve $250,000 for loss of consortium. A judgment of $49,362.50 was entered for the Estate and $125,000 for Donald Shreve based on the apportionment of liability.
On appeal the hospital sought to overturn the loss of consortium claim, claiming it improperly allowed damages for loss of consortium when no appreciable time passed between the injuries and Ms. Shreve death, the actual measure of such damages. The Court of Appeals noted:
The facts here are that Shreve lived for only a short period of time between the alleged negligent act and her death. The fact that Mr. Shreve may now be in a difficult situation due to his wife's death is not relevant to the loss of consortium claim because that claim relates only to damages incurred between the negligent act and death. We conclude that no appreciable time had elapsed between the alleged negligent act and Shreve's death and that Mr. Shreve could not have suffered damages for loss of consortium during that time. Therefore, the court erred in not granting a directed verdict in favor of the hospital and dismissing the loss of consortium claim.The hospital also appealed the medical malpractice verdict, citing several procedural and evidentiary errors at trial. The Court of Appeals found any errors to be harmless and the verdict to be supported by the evidence. It affirmed the verdict for Ms. Shreve's Estate.
The first ten pages of the opinion are dedicated to discussing the EMTALA (Emergency Medical Treatment and Active Labor Act) a federal statute enacted by Congress to prevent hospitals “from dumping patients, who lack insurance to pay for their claims, by either refusing treatment or transferring them to other hospital." The hospital also cited case law noting that this statute was not a federal malpractice statute. Despite the statute's clear language and the supporting federal authority, the Court of Appeals discussed the EMTALA at length. It found that the "medical screening" requirement requires evidence of bad faith, which was not present. The medical stabilization requirement requires no such finding, but the Court found that the hospital complied by executing the requisite forms prior to Shreve's transport. It held that a directed verdict was appropriate on this claim.
Unfortunately, because the EMTALA issue was allowed to go to the jury and the verdict did not separate common elements of damages sought under both claims the entire verdict was vacated, and the case was remanded for a new trial on the issue of the estate's medical negligence claim.
Monday, February 25, 2008
Supreme Court Establishes Elements for Holding Employer Liable for Injury to Employee's Guest.
The Supreme Court published Mid-States Plastics, Inc. v. Estate of Bryant, which dealt with the vicarious liability of an employer for tortious injury by an employee to the employee's guest on a business trip. The SC identified the issue on appeal, succinctly, stating:
The trial court granted summary judgment, which was overruled by the Court of Appeals. The Court of Appeals believed that there was a factual determination remaining whether Edwards had apparent authority to invite Bryant, and whether Mid-States failed to object. (See my earlier digest of the Appeal opinion, here.) The issue for the appeals court was one of authority. The SC noted that Kentucky law required not only a showing that the employee was acting within his scope of authority in inviting the guest, BUT also that "the guest's presence must "be construed as being for the purpose of accomplishing the work of the corporation."" Because there was no doubt that Reverend Bryant's presence was not for the purpose of accomplishing the work of Mid-States, SJ was appropriate.
Justice Lambert dissented, noting that "Appellees established vicarious liability from the facts that the employee Edwards was acting within the scope of his authority and for a business purpose when the tortious act occurred. Contrary to the majority view, it was not necessary to establish that the third party, Reverend Bryant, was present for the benefit of the company." Justice Lambert believes that, because Edwards was acting in furtherance of the employer when the tortious act occurred, Mid-States is vicariously liable for his actions.
This is an interesting case that does not turn on the issue of authority, as the court of appeals noted, (as did I in my earlier post), but on the issue of "furtherance of the employer's business." Thus, whether Edwards had authority or not was not the issue, but whether the "furtherance of the employer's business" meant Edwards' furtherance or Bryant's. The majority in this 5-1 opinion, opined that Edwards' invitation, and therefore, Bryant's presence, must be in furtherance of Mid-States business, NOT Edwards' actions while committing the tort. While Edwards' actions in flying the plane for business may have furthered Mid-States purpose, his actions in inviting Bryant was purely for his pleasure, whether it was authorized or not. Bryant was, therefore, not present in furtherance of the business purpose. Therefore, no vicarious liability to Mid-States for failing to object to Edwards' invitation.
Note: This is the second opinion in as many months limiting employer's vicarious liability for tortious acts of its employees. It is also the second time Justice Lambert has been the lone dissenter.
The question in this appeal is whether an employer is liable for an employee's tortious injuries to a guest who accompanied the employee on a business trip. We opine that in order to hold the employer liable for the employee's tortious injuries to the employee's guest on a business trip, the employee must have acted within the scope of his authority in inviting the guest and for the purpose of accomplishing the work of the employer. Because the guest in this case had a strictly non-business purpose in accepting the employee's invitation, we reverse the Court of Appeals and reinstate the trial court's dismissal.The case arose out of the employee, Edwards', business trip to Indianapolis. He invited his pastor, Reverend William Clinton Bryant, along to visit the Reverend's family while Edwards worked . The trip for the Reverend was free and involved no business purpose on his part for Mid-States. Unfortunately, the plane struck a cell phone tower and crashed on the return trip, killing both Edwards and Reverend Bryant.
The trial court granted summary judgment, which was overruled by the Court of Appeals. The Court of Appeals believed that there was a factual determination remaining whether Edwards had apparent authority to invite Bryant, and whether Mid-States failed to object. (See my earlier digest of the Appeal opinion, here.) The issue for the appeals court was one of authority. The SC noted that Kentucky law required not only a showing that the employee was acting within his scope of authority in inviting the guest, BUT also that "the guest's presence must "be construed as being for the purpose of accomplishing the work of the corporation."" Because there was no doubt that Reverend Bryant's presence was not for the purpose of accomplishing the work of Mid-States, SJ was appropriate.
Justice Lambert dissented, noting that "Appellees established vicarious liability from the facts that the employee Edwards was acting within the scope of his authority and for a business purpose when the tortious act occurred. Contrary to the majority view, it was not necessary to establish that the third party, Reverend Bryant, was present for the benefit of the company." Justice Lambert believes that, because Edwards was acting in furtherance of the employer when the tortious act occurred, Mid-States is vicariously liable for his actions.
This is an interesting case that does not turn on the issue of authority, as the court of appeals noted, (as did I in my earlier post), but on the issue of "furtherance of the employer's business." Thus, whether Edwards had authority or not was not the issue, but whether the "furtherance of the employer's business" meant Edwards' furtherance or Bryant's. The majority in this 5-1 opinion, opined that Edwards' invitation, and therefore, Bryant's presence, must be in furtherance of Mid-States business, NOT Edwards' actions while committing the tort. While Edwards' actions in flying the plane for business may have furthered Mid-States purpose, his actions in inviting Bryant was purely for his pleasure, whether it was authorized or not. Bryant was, therefore, not present in furtherance of the business purpose. Therefore, no vicarious liability to Mid-States for failing to object to Edwards' invitation.
Note: This is the second opinion in as many months limiting employer's vicarious liability for tortious acts of its employees. It is also the second time Justice Lambert has been the lone dissenter.
Sunday, February 24, 2008
Court of Appeals Minutes for February 22nd.
The Court of Appeals has posted its minutes for February 22nd, here. Check back for my digest on an interesting published case overturning a medical malpractice verdict.
Supreme Court Minutes for February 21st.
The Supreme Court has posted its minutes for February, here. Check back for digests of important cases in the area of tort and insurance law.
Wednesday, February 20, 2008
$250,000 Settlement Reached in Wrongful Death Lawsuit
lawyersandsettlements.com reported on the recent settlement by Angela Bouggess, Michael Newby's mother, of her wrongful death lawsuit against the Louisville Metro Government. Bouggess claimed Officer McKenzie Mattingly used excessive force when he shot Newby in the back following a reported drug bust gone bad. Police Chief White fired Mattingly after an internal investigation found he did not face an immediate threat and had other options besides shooting Newby. Mattingly was acquitted by a Jefferson County jury of charges resulting from the shooting. The City was ultimately forced to rehire Mattingly and pay him back pay, although Mattingly reportedly did not return to the force.
Committee to Review Rules for Class Action and Mass Tort Cases
The Kentucky Law Review posted here on a Herald Leader story, about a Supreme Court committee looking into the rules that currently govern class action and mass tort litigation cases. According to Mike's post the Herald Leader described the purpose of the committee as follows:
Kentucky's mass tort and class-action litigation committee has been looking at an assortment of issues including better case management and strengthening ethics rules for lawyers. The cases can involve hundreds of clients and millions of dollars.
The committee, which includes lawyers and current and retired judges, will also look at whether the state should change its rules to mirror federal court rules, which are more specific and include a mechanism for moving similar lawsuits into one court or under one judge.
The selection apparently comes on the heals of criminal charges against three attorneys involved in the diet drug fen-phen settlement. The committee supposedly hopes to have some recommendations within the next 12 months.
Of course, we already have ethics rules in place to address attorney conduct. When those are broken, we have a system in place to discipline attorneys. If the charges include breaking the law, we have the criminal justice system in place to address that as well. Then there is always the civil system which can award damages resulting from someone's malfeasance or malpractice. While it is certainly admirable to hope attorneys will follow the ethics rules and the law, I don't believe any amount of laws, rules, or recommendations will actually prevent this type behavior from occurring, unfortunately.Friday, February 15, 2008
Court of Appeals Cases for February 15th.
The Court of Appeals has published its minutes for February 15th, here. There were no published cases dealing with tort and insurance law. Check back for next week's published cases from the Court of Appeals and Supreme Court.
Monday, February 11, 2008
House Bill 478 to Remove Choice of Reserving Lost Wages.
The Kentucky Law Review posted an op-ed on HB 478, which apparently removes the right of an insured to direct withholding of no fault benefits for the payment of lost wages, in cases of emergency care. It would require the no fault obligor to pay emergency services directly to the medical provider and that the benefits be considered primary to all other forms of payment. While not specifically mentioned in the op-ed, the bill also contains language establishing a means to challenge whether a medical bill or treatment is reasonable or necessary by establishing a review and appeal process, including examinations.
This bill appears to be an attempt to address some of my earlier concerns in my post titled Chiropractor on Trial, PIP Abuse, and Other Thoughts. I question why hospitals and emergency services should receive priority over other medical services or wage loss claims. Especially, in light of my earlier questions regarding extensive workups for relatively minor injuries. I am unsure what costs in healthcare have risen the most recently but I would imagine emergency services are right up there. I don't see how this would maximize the use of no fault benefits to the injured party's benefit. I disagree with Mike's comments that the "PIP insurer wins", because I don't think it matters to the PIP carrier whom it pays, the hospital or the insured.
The procedure suggested certainly appears to address the issue of what treatment is reasonable or necessary, but as I mentioned in my earlier posts addressing reasonable and necessary treatment does not make the charges reasonable or necessary or maximize the PIP coverage. It also seems to pit the PIP carrier against the insured in that determination by requiring examinations, reviews, and appeals of requested treatment. Most of these options are already in place but simply are not effective. I am concerned this language will lead only to increased costs and litigation, without accomplishing any real change in the means in which unreasonable and unnecessary charges are dealt with.
What Kentucky needs is for someone to address the disparity in no fault benefits as payment for medical expenses compared to other forms of compensation for these expenses. What Kentucky needs is for someone to address the ridiculous gold mine that is no fault and its propensity to encourage unreasonable and unnecessary treatment, leading to a reduction in the value of no fault insurance coverage over time. It's the manner in which the coverage is administered that is the problem not in the means in which it is accomplished.
All of which brings me to something I have been thinking about. Should Kentucky simply do away with its no fault law?
This bill appears to be an attempt to address some of my earlier concerns in my post titled Chiropractor on Trial, PIP Abuse, and Other Thoughts. I question why hospitals and emergency services should receive priority over other medical services or wage loss claims. Especially, in light of my earlier questions regarding extensive workups for relatively minor injuries. I am unsure what costs in healthcare have risen the most recently but I would imagine emergency services are right up there. I don't see how this would maximize the use of no fault benefits to the injured party's benefit. I disagree with Mike's comments that the "PIP insurer wins", because I don't think it matters to the PIP carrier whom it pays, the hospital or the insured.
The procedure suggested certainly appears to address the issue of what treatment is reasonable or necessary, but as I mentioned in my earlier posts addressing reasonable and necessary treatment does not make the charges reasonable or necessary or maximize the PIP coverage. It also seems to pit the PIP carrier against the insured in that determination by requiring examinations, reviews, and appeals of requested treatment. Most of these options are already in place but simply are not effective. I am concerned this language will lead only to increased costs and litigation, without accomplishing any real change in the means in which unreasonable and unnecessary charges are dealt with.
What Kentucky needs is for someone to address the disparity in no fault benefits as payment for medical expenses compared to other forms of compensation for these expenses. What Kentucky needs is for someone to address the ridiculous gold mine that is no fault and its propensity to encourage unreasonable and unnecessary treatment, leading to a reduction in the value of no fault insurance coverage over time. It's the manner in which the coverage is administered that is the problem not in the means in which it is accomplished.
All of which brings me to something I have been thinking about. Should Kentucky simply do away with its no fault law?
Court of Appeals Cases for February 8th.
The Court of Appeals has published its minutes for February 8th, here. There are no published opinions dealing with tort and insurance law.
Wednesday, February 06, 2008
Judge Tells Attorneys to Zip It.
Interesting article in the Courier Journal today, titled Judge tells attorneys to zip it. The Courier reports statements attributed to Judge Sean R. Delantey, saying "that certain prosecutors were wasting court time by making "obnoxious, ridiculous, abundant and useless objections" during probable-cause hearings." Apparently Judge Delantey has a written policy that prosecutors have a "standing objection to each and every question" that defense attorneys ask of witnesses during probable-cause hearings. Judge Delantey was quoted; "I believe I have the discretion to do this."
County Attorney Irv Maze was quoted as saying; "I'm just shocked." "I don't know what's going on in his mind. We all go by the same rules." The County Attorney has requested his prosecutors abide by the Judge's request until the issue can be decided by appeal.
Of course the problem with the Judge's rule regarding standing objections, is that the objection must be made in the first place. Only if it is overruled and the objectionable questioning continues does a standing objection need to be placed. The way it appears in the article is Judge Delantey simply notes an objection by the prosecutors to "every" question asked, allowing them to argue later the evidence should not have been admitted.
The issue is obvious, who knows if the County Attorney's office would have objected if they never voiced an objection in the first place. An unvoiced objection is considered waived. This creates a problem. The County Attorney's office may later be considered to have waived any objection not specifically made at the time the question was posed, OR it essentially allows them to make objections to specific questions after the hearing.
The rule is procedurally improper and actually detrimental to defense attorneys and prosecutors who both may be bitten by it on appeal. The fact the Judge believes he has the discretion to set aside the rules of evidence and create his own exception is concerning. The threats of holding attorneys in contempt for violating the self imposed "policy" is simply wrong.
County Attorney Irv Maze was quoted as saying; "I'm just shocked." "I don't know what's going on in his mind. We all go by the same rules." The County Attorney has requested his prosecutors abide by the Judge's request until the issue can be decided by appeal.
Of course the problem with the Judge's rule regarding standing objections, is that the objection must be made in the first place. Only if it is overruled and the objectionable questioning continues does a standing objection need to be placed. The way it appears in the article is Judge Delantey simply notes an objection by the prosecutors to "every" question asked, allowing them to argue later the evidence should not have been admitted.
The issue is obvious, who knows if the County Attorney's office would have objected if they never voiced an objection in the first place. An unvoiced objection is considered waived. This creates a problem. The County Attorney's office may later be considered to have waived any objection not specifically made at the time the question was posed, OR it essentially allows them to make objections to specific questions after the hearing.
The rule is procedurally improper and actually detrimental to defense attorneys and prosecutors who both may be bitten by it on appeal. The fact the Judge believes he has the discretion to set aside the rules of evidence and create his own exception is concerning. The threats of holding attorneys in contempt for violating the self imposed "policy" is simply wrong.
Monday, February 04, 2008
Department of Highways Owes Duty to One Traveling Portion of the Public Highway on ATV.
The Supreme Court recently published Commonwealth of Kentucky v. Guffey, a case resulting from the death of Jeremiah Guffey, who was killed when his ATV struck a cable stretched across an old abandoned section of Hwy. 167 in Wayne Co. The issue before the Court was whether the Department of Highways owed a duty to the operator of an all-terrain vehicle (ATV) who is riding his ATV upon a public highway, even though persons are prohibited by statute from operating ATV's upon public roadways.
The Court agreed "that Jeremiah was a member of the traveling public, even though he was in violation of KRS 189 .515(1). Furthermore, the damages resulting from Jeremiah riding his ATV upon that portion of a public roadway which had been obstructed by a cable stretched across it were certainly foreseeable. And, under the doctrine of comparative negligence, while Jeremiah's damages may be limited by his actions, his violation of the law does not bar recovery."
Interesting note regarding the disputed issue over whether the road was a "public highway". The Court noted that one cannot be in violation of a statute making it an offense to ride an ATV on a public highway, without the road being a public highway in the first place. Also, a person is still a member of the "traveling public" entitled to protection despite minor violations of the law. While comparative fault may apply to Jeremiah's actions, it does not bar his claim totally.
The Court agreed "that Jeremiah was a member of the traveling public, even though he was in violation of KRS 189 .515(1). Furthermore, the damages resulting from Jeremiah riding his ATV upon that portion of a public roadway which had been obstructed by a cable stretched across it were certainly foreseeable. And, under the doctrine of comparative negligence, while Jeremiah's damages may be limited by his actions, his violation of the law does not bar recovery."
Interesting note regarding the disputed issue over whether the road was a "public highway". The Court noted that one cannot be in violation of a statute making it an offense to ride an ATV on a public highway, without the road being a public highway in the first place. Also, a person is still a member of the "traveling public" entitled to protection despite minor violations of the law. While comparative fault may apply to Jeremiah's actions, it does not bar his claim totally.
In Matter of First Impression Supreme Court Sets Forth Rule for Franchisor Vicarious Liability.
In Papa John's International, Inc. v. Mccoy, the Supreme Court decided the issue of franchisor vicarious liability, an issue of first impression in Kentucky, arising in the context of a malicious prosecution and defamation lawsuit filed by a customer as a result of a Papa John's pizza delivery gone wrong.
The customer originally sued the delivery driver and Papa John's International, Inc., alleging that Papa John's was vicariously liable as the driver's employer. The driver's employer, however, was RWT, Inc ., a Papa John's franchisee. The customer filed another lawsuit against RWT. The circuit court granted summary judgment in favor of RWT and Papa John's for various reasons. The Court of Appeals affirmed in part and reversed in part as to both. The Supreme Court noted;
As to Papa John's the Court noted initially, that "taking the unique franchise arrangement into consideration, there is an emerging judicial consensus to apply a franchisor vicarious liability test that considers the franchisor's control or right of control over the instrumentality that is alleged to have caused the harm." The Court adopted this rule. While a franchisor may adopt or impose quality and operational controls over a franchisee, the franchisor does not typically have control over a franchisee's employees. Because the Court found the employees statements to be an independent course of conduct that could not have been intended to serve any purpose of the employer, Papa John's could not have been found to be vicariously liable.
Scott dissented as to RTW, but concurred as to Papa John's. Scott concluded that there was sufficient evidence that the employee WAS acting in the course and scope of his employment at the time of the unlawful prisonment charge was made, which was based on events that allegedly occurred on the job. In fact, the managers of RTW encouraged the employee to press charges, although he initially did not want to. Justice Scott believed this was sufficient to make the issue a jury question.
Lambert dissented and believed that the Appellant had stated a claim against Papa John's under the theory of ostensible agency. The basis for the apparent agency arises from the reliance of the party dealing with the ostensible agent. In this case, the Appellant ordered a Papa John's pizza and not an RTW pizza. Lambert stated his belief that the theory of ostensible agency was now in "grave doubt."
The Majority could have adopted Justice Scott's notion that the employee was acting within the course and scope of his employment, since the act of making the allegedly false statements resulted out of his work. However, the intentional torts at issue, malicious prosecution and defamation, do not fit easily into the course and scope of a pizza delivery franchisee (as opposed to say a newspaper publisher). Here the appellant does not just have to prove that the employee made false statements, but that he did so intentionally. While Justice Scott is correct that employers can be held vicariously liable for intentional acts, the nexus between making "intentionally false" accusations and delivering pizzas is distinct from those intentional cases mentioned.
The customer originally sued the delivery driver and Papa John's International, Inc., alleging that Papa John's was vicariously liable as the driver's employer. The driver's employer, however, was RWT, Inc ., a Papa John's franchisee. The customer filed another lawsuit against RWT. The circuit court granted summary judgment in favor of RWT and Papa John's for various reasons. The Court of Appeals affirmed in part and reversed in part as to both. The Supreme Court noted;
As is well-settled in our case law, the driver's employer, RWT, is subject to vicarious liability for a tort committed by its employee acting within the scope of employment. We conclude that the acts complained of here occurred within an independent course of conduct that could not have been intended by the driver to serve any purpose of the employer. So, although for different reasons that we will discuss below, we conclude that the circuit court properly granted summary judgment dismissing the malicious prosecution claim against RWT. Accordingly, we reverse the Court of Appeals as to RWT.As to the claims involving Papa John's, the Court concluded:
[W]e must take a more precise approach given the ubiquity of the franchise method of doing business in Kentucky. To that end, we adopt a rule in which the franchisor is vicariously liable for the tortious conduct of the franchisee when it, in fact, has control or right of control over the daily operation of the specific aspect of the franchisee's business that is alleged to have caused the harm . Papa John's had no control over the pizza delivery driver's intentional, tortious conduct in this case. So Papa John's cannot be held vicariously liable... Accordingly, we reverse the Court of Appeals as to Papa John's.As to RTW, the Court noted that, "if the servant "acts from purely personal motives...which [are] in no way connected with the employer's interests, he is considered in the ordinary case to have departed from his employment, and the master is not liable."" The Court found that allegedly making false statements to police is not connected to RTW's business of pizza and pizza delivery.
As to Papa John's the Court noted initially, that "taking the unique franchise arrangement into consideration, there is an emerging judicial consensus to apply a franchisor vicarious liability test that considers the franchisor's control or right of control over the instrumentality that is alleged to have caused the harm." The Court adopted this rule. While a franchisor may adopt or impose quality and operational controls over a franchisee, the franchisor does not typically have control over a franchisee's employees. Because the Court found the employees statements to be an independent course of conduct that could not have been intended to serve any purpose of the employer, Papa John's could not have been found to be vicariously liable.
Scott dissented as to RTW, but concurred as to Papa John's. Scott concluded that there was sufficient evidence that the employee WAS acting in the course and scope of his employment at the time of the unlawful prisonment charge was made, which was based on events that allegedly occurred on the job. In fact, the managers of RTW encouraged the employee to press charges, although he initially did not want to. Justice Scott believed this was sufficient to make the issue a jury question.
Lambert dissented and believed that the Appellant had stated a claim against Papa John's under the theory of ostensible agency. The basis for the apparent agency arises from the reliance of the party dealing with the ostensible agent. In this case, the Appellant ordered a Papa John's pizza and not an RTW pizza. Lambert stated his belief that the theory of ostensible agency was now in "grave doubt."
The Majority could have adopted Justice Scott's notion that the employee was acting within the course and scope of his employment, since the act of making the allegedly false statements resulted out of his work. However, the intentional torts at issue, malicious prosecution and defamation, do not fit easily into the course and scope of a pizza delivery franchisee (as opposed to say a newspaper publisher). Here the appellant does not just have to prove that the employee made false statements, but that he did so intentionally. While Justice Scott is correct that employers can be held vicariously liable for intentional acts, the nexus between making "intentionally false" accusations and delivering pizzas is distinct from those intentional cases mentioned.
Court of Appeals Cases for February 1st.
Click here for the minutes to the Court of Appeals cases for February 1st. There were no published cases involving tort and insurance law.
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