APPELLATE CASES BRIEFED AND ARGUED BY ARNZEN, WENTZ, MOLLOY, LABER & STORM, P.S.C. 

Margaret Hudson Bryant v. Transamerica Insurance Company., Ky. App., 572 S.W. 2d 614 (1978) 

An insurance contract is not enforceable when insured is without an insurable interest in the property at the time of loss.

 

Cloverleaf Dairy v. Lawrence Michels, et al., Ky. App., 636 S.W.2d 894 (1982) 

The Kentucky Rules of Civil Procedure do not allow more than one motion to reconsider a judgment.  Thus, the changing of a judgment on the second motion to reconsider was reversible error.

 

M.J. Daly Company v. Clark A. Varney, et al., Ky., 695 S.W.2d 400 (1985) 

Individuals who work for a temporary labor services companies are employees of those companies and not of the company to which they have been assigned.  Therefore, the Worker Compensation exclusive remedy act does not shield the company who hired the temporary labor.

 

Robin Funk, et al. v. Wagner Machinery, Inc., et al., Ky. App., 710 S.W.2d 860 (1986) 

Statute of limitations did not bar claim against a defendant that was added as a party after limitation period had passed.  The relation back doctrine allowed the defendant’s addition to relate back tot he date the complaint was first filed.

 

 

 

Robert Rogers, et al. v. Lloyd L. Redmond, et al., Ky. App., 727 S.W.2d 874 (1987) 

An invitee of a tenant has no cause of action for liability against the landlord when the tenant is in exclusive possession of the property.  The violation of a building code was inapplicable because the code covered fire hazards not slip and fall hazards.

 

William Floyd v. Carlisle Construction Company, Inc., et al., Ky. 758 S.W.2d 430 (1988) 

Defendants in tort claims are entitled to an instruction that permits the jury to apportion the plaintiff’s damage against a settling joint tortfeasor that was not named as a party defendant or a third party defendant.

 

Richard Michael Farmer, et al. v. City of Newport, et al, Ky. App., 748 S.W.2d 162 (1988) 

The Kentucky Appellate Court recognized a cause of action based on concert of action.

 

Ohio Casualty Insurance Company v. Paula L. Ruschell, Ky., 834 S.W.2d 166 (1992) 

A settlement releasing a tortfeasor does not extend to the tortfeasor’s no-fault carrier.  No-fault insurance is not collateral source payments.

 

West American Insurance Company v. Dana Dickerson, Ky., 865 S.W.2d 320 (1993) 

The term ‘alighting from’ used in insurance policies for basic reparation benefits was found to envelope the entire act of leaving an automobile until both feet are firmly planted on the ground.

 

Richard L. Ellis v. James W. Anderson, Ky. App., 901 S.W.2d 46 (1995) 

Plaintiff’s cause of action was time barred because the ‘borrowing’ statute KRS 413.320 ‘borrowed’ Ohio’s two-year statute of limitations because it was shorter.  Plaintiff’s argument that 413.320 violated the right to interstate travel was rejected.  Plaintiff’s argument that ORC 2305.15 (A) tolled the Ohio statute of limitations was rejected because ORC 2305.15 (A) was found to be an unconstitutional burden on interstate commerce when applied to out of state residents.

 

Angela Lewis, et al. v. West American Insurance Company, Ky., 927 S.W.2d 829 (1996) 

‘Family’ or ‘household exclusion’ clause that limits the insurance coverage available on the basis of the injured party’s status as a member of the policyholder’s family was found to be void and unenforceable.

 

Boone County Water and Sewer District v. Public Service Commission, et al., Ky., 949 S.W.2d 588 (1997) 

The Public Service Commission did not have to refund fees because the Public Service Commission does not have jurisdiction over the Boone County Water & Sewer District.

 

Henry Fischer Builder, Inc., et al. v. Kenneth Magee, et al., Ky. App., 957 S.W.2d 303 (1997) 

A preliminary plat does not constitute a dedication under Kentucky Revised Statutes Chapter 100.  A street must be open for five years to the public to create a common law dedication under Kentucky Revised Statutes § 82.400.

 

Brenda Meyers, et al. v. Kentucky Medical Insurance Company, Ky. App., 982 S.W.2d 203 (1997) 

Plaintiff filed a declaratory judgment action to determine the scope of coverage under a policy issued by Kentucky Medical Insurance Company.  The Court held the policy was clear and unambiguous that coverage would not be extended for a professional service corporation’s vicarious liability for the acts or omissions of a physician who was no longer employed or who was not a named insured on the date a claim was filed.

 

Kentucky Hospital Association Trust v. Chicago Insurance Company, Ky. App. 978 S.W.2d 754 (1998) 

Equitable subrogation for damages is not available to an insured when the insured is unnamed and does not participate in the previous lawsuit.

 

Linton v. Florence Medical Arts, Ky., 114 S.W.3d 811 (2003) 

The appellate court shall not substitute its judgment for that of the trial court in determining whether antagonistic interests exist for the purpose of awarding peremptory challenges in the absence of an abuse of discretion.  This decision reinstated a defense verdict for the physicians in a medical negligence case.

 

Roger Askin, et al. v. Firestone Tire & Rubber Co., 600 F. Supp. 751 (E.D. Ky. 1985) 

The court affirmed a directed verdict on a motion to vacate a judgment because plaintiffs failed to produce any evidence showing the reason they were terminated was because employer possessed a discriminatory motive based on their age.

 

Samuel A. Carlotta v. Marvin L. Warner, et al., 601 F. Supp 749 (E.D. Ky. 1985) 

If a plaintiff creates the situation that leads to their injury, a small amount of negligence on the part of a defendant does not preclude summary judgment because of the adoption of comparative fault.  Summary judgment was proper because the plaintiff’s overwhelming negligence was the sole proximate cause of the injury.

 

Roger Darrell Lockhart, et al. v. Ramon Patel, M.D., et al, 115 F.R.D. 44 (E.D. Ky. 1987) 

Sanctions were ordered against insurance company that did not send qualified representative to settlement conference.