Court of Appeals Clarifies Law Regarding Apportionment for Third Party Defendants.

The Kentucky Court of Appeals recently published two cases dealing with apportionment involving third-party defendants that are of interest.

 

In the case of Memorial Sports Complex, LLC vs. McCormick, et al, the Court was required to determine whether the dismissal, but subsequent allowance of apportionment, of the third-party defendants was appropriate.  Memorial was sued after a minor (Mowery) suffered personal injury running into one of its fences during a baseball game.  Memorial filed a third-party complaint, seeking contribution, indemnity, and apportionment against McCormick, (Mowery’s Coach), Mowery’s father (Dale), and Geddes Fence Company (Geddes).

The trial court granted McCormick’s and Dale’s respective motions and dismissed Memorial’s third-party claims against them with prejudice in identical judgments, stating “Due to the applicability of apportionment of fault, as required in [Kentucky Revised Statutes] KRS 411.182, there is no right to contribution” and “indemnity is not appropriate as the kind of fault alleged by Plaintiff Mowery against Memorial Sports Complex, LLC is that it created and/or maintained the hazard that was the alleged cause of Mr. Mowery’s claimed injuries.”  The final judgments contained language that; “This dismissal will not prevent Third-Party Plaintiff [Memorial] from seeking an apportionment instruction relevant to the claims against it to the extent that any fault can be proved against the now
dismissed Third-Party Defendant[s][.]”  Geddes moved for summary judgment which was granted by the trial court, dismissing Memorial’s claims “with prejudice, as a matter of law, subject to apportionment in Plaintiff’s [Mowery’s] claim against Memorial.”  Memorial appealed both rulings.

Guess Who’s Back, Back Again?

I decided to come back and post some again.  I might not post every day or every week, but I have decided to post again to Kentucky Tort Journal. I realize I miss posting my opinions and analysis of important Kentucky law.  More importantly, I miss letting people know my opinions on certain cases.  So, for what it is worth, I’m going to post again.  So, keep a lookout.  You might find something interesting.

Kentucky Tort Journal Signs Off

After several years, several changes, and more than several posts it is with a heavy heart that I advise my readers that the Kentucky Tort Journal is signing off.  I will no longer be posting or updating original posts or decisions.

Kentucky Tort Journal was my first attempt at blogging.  Starting in 2004, my goal was to find a platform where I could express my thoughts about events, articles, cases and decisions that dealt with my area of practice.  I also wanted to explore the new medium and had great hopes for its use among lawyers.  Many of my contemporaries have also faded into the blogosphere, leaving behind remnants in time of their thoughts about whatever topic they chose to write.  Perhaps that is the fate of the KTJ.  It is somewhat interesting to know that while the journal is no more, my thoughts and opinions will linger like graffiti on an old wall in an old town.  Passed rarely, if ever, but there nonetheless, its true impact forever lost to its time and those who lived it, one day to be replaced by something else, something new.

While I am officially signing off, I will keep publishing the blog, at least for the time being, as a kind of archive.  There is simply too much information, too many hours, to much hard work and thought to simply turn out the lights.  Perhaps one day, but for now I’ll just leave the light on and shut the door.

I still have great hopes for blogs and the bloggers who blog them. Whle I am wrapping up this chapter, I am readily involved in opening another.  I encourage each of you to view my new blog; Kentucky Accident Information at http://kyaccidentinfo.com.  Look around and check back.  While something quite different than the KTJ, I think it’s truly the next frontier for blogs in the legal field.

I want to end by thanking each of you who supported me throughout the past four years.  I am always amazed at the number of attorneys who read my stuff and the good things they had to say.  I can’t begin to say enough about the good friends I met through this blog, so I won’t.  I’ll just say thank you to them too.

So, thank you all.  God Bless.  Good night and good luck.

Ed

KTJ Podcast Of Court of Appeals Minutes For August 29th.

Today I discuss the Court of Appeals Minutes for August 29, 2008, and the interesting case of Lee v. Shower, MD and Maysville Obstetrics, a medical negligence case, which resulted after the death of an infant from complications during delivery.

Click the play button to listen.

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Right click and select “save link as” to download to your computer or favorite MP3 player!

Lazy Days of Summer

It seems like only yesterday that I took a weeks vacation.  Of course, it wasn’t, although you would think so given my lack of postings.  Unfortunately, I am behind and summer seems to have zapped whatever motivation I have had to write about the law.  Or, maybe, I am just really, really, busy.  Running your own law practice is a heck of lot harder then being an employee of another.  I have been given, when asked; “What do you do?”, to saying; “I am a lawyer, I practice law in my free time.” This is exactly how I feel.  When I am not running my practice, I am practicing the law.  That has left my little “hobby” far down on my list of things to do.

In either event, I hope to get back on track.  Look for postings on the Court of Appeals Minutes and interesting tort and insurance cases.  I’ll start with this weeks minutes and work my way backwards.  While some would argue that doesn’t make sense, I found it’s easier to get a grasp on what’s happening and then when I have time, blog about what has happened.  Besides, if my readers are anything like me, I imagine the lazy days of summer have an equally firm grasp on them too and reading my blog isn’t necessarily on the top of their lists, either.

Mass Tort Litigation Blog Reports On The Exxon Case

The Mass Tort Litigation Blog has been reporting on the United States Supreme Court’s decision in Exxon v. Baker, the decision which reconsidered the punitive damages in the case arising out of the Exxon Valdez disaster. I’d recommend you read Professor Lahav’s wonderful musings in What’s So Weird About the Exxon Decision and Professor Stier’s background article SCOTUS Reduces Exxon Oil Spill Punitive Damages to Match Compensatory Damages for the ruling and its implication for future punitive damages recovery.

Your 5 Minute Guide to Car Insurance

MSN Money has a very interesting and informative article styled “basic advice, plus 22 tips to help you protect yourself and get the best value for the money you spend on automobile coverage.” Here’s an excerpt:

Your car insurance rates are based on a few factors you can’t readily change — your sex, age, marital status and where you live — and many that you can — your credit scores, what you drive, how well you drive and how much coverage you buy. Here’s how to get the best deal.

Click here, to read the entire article.

Supreme Court Holds Sheriff’s Office Not Entitled To Immunity

The Supreme Court published Jones v. Cross, which dealt with whether or not the Sheriff’s Office was entitled to official immunity for the acts of its deputies, and if so, whether KRS 70.040 waives it.  Sheriff’s deputy injured two state troopers while attempting to catch an evading suspect.  The liability of the deputy was not an issue.  The liability of the Sheriff’s Office for the actions of his deputies was.

After reviewing the common law the Court declared the Sheriff’s Office immune from suit under the doctrine of absolute official immunity.  The true question was whether KRS 70.040 wiaved this immunity.  The Court found it had.  It noted:

A literal or plain reading of the statute clearly imposes liability on the sheriff in his official capacity for acts committed by his deputies . In construing a statute, words must be given their literal, usual, and ordinary meaning unless they have acquired a technical meaning .

The Supreme Court affirmed the appellate court’s opinion, overruling the trial court, which had found KRS 70.040 did not waive immunity.

Court of Appeals Minutes for April 25th

The Court of Appeals has posted its minutes for April 25th, here.  There was only one published decision dealing with torts and insurance law.  The Court rendered an opinion in the case of Graham v. Rogers, which involved the question of when a vehicle transfers between individual buyers and sellers for purposes of ownership and, therefore, responsibility for insurance coverage.

Louden sold a vehicle to Angel Rogers and delivered the title.  Rogers did not file the documents with the Clerk’s office and was later involved in an accident with Graham.  Graham argued Louden was the owner, for among other things, failing to  notify the clerk pursuant to KRS 186A.215(4) that the vehicle had not been registered within 15 days.

The Court noted the section states; “If it comes to the attention”, of the transferor. The Court noted that the legislature did not say it was incumbent upon the seller to verify that the buyer had submitted the necessary documents within fifteen days of the sale.  The legislature has not chosen to “establish an affirmative duty on the seller to insure the buyer compliance with KRS 186A.215(3) (sic).” The Court believed it was Rogers responsibility to transfer the title and not Louden’s to insure she had done so.

Editor’s Note:  Good case that finally clears up some confusion over the duties on the part of individual sellers and buyers in the titling of motor vehicles.  Now if the legislature can get it down to ONE step necessary to transfer ownership, we have it made.

Chief Justice Lambert to Retire

Chief Justice Lambert announced his retirement this morning. He will continue to serve through the Senior Judge’s Program. For his own words on his retirement, go to the Kentucky Court of Justice. The Courier Journal also reported on his retirement, here. While there was very little on which Justice Lambert and I agreed, I do agree with his philosophy when it comes to serving in positions of government. His own words on being a Supreme Court Judge; “I believe it’s a mistake to remain for too long in a high-level position in government”.

I certainly agree with the Chief Justice on that philosophy.