• 22 Sep 2021 9:43 AM | Kathi McKeown (Administrator)

    American Premier Underwriters, Inc. v. General Electric Co.

    Docket: 20-4010 

    Opinion Date: September 21, 2021

    Judge: Nalbandian 

    Areas of Law: Environmental Law, Transportation Law

    In the 1930s and 1940s GE designed and manufactured self-propelled, electric passenger railcars that included liquid-cooled transformers. The transformers, which generated a great deal of heat, used a coolant called Pyranol that contains toxic polychlorinated biphenyls (PCBs). GE sold some railcars to government entities whose trains operated on Penn Central lines. Pyranol from the transformers escaped and contaminated four Penn Central rail yards. APU, Penn Central’s successor, had to pay for the costly environmental cleanup and sued GE under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which makes four classes of “[c]overed persons” strictly liable for environmental contamination, 42 U.S.C. 9607(a). APU argued that GE “arranged for disposal” of hazardous PCB because it designed and manufactured transformers with pressure-release valves whose “natural function” was to discharge Pyranol when conditions required, it knew that “[t]he frequency of minor spills [was] large,” it took affirmative steps to direct spills onto the roadbed; and it implemented a fail-and-fix policy for defective transformers rather than recall them. The Sixth Circuit affirmed summary judgment. GE is neither an arranger nor an operator under CERCLA. APU assigned away its contractual right to indemnification; any claims based on reassigned indemnity rights are time-barred.

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  • 19 Sep 2021 9:42 AM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member!

    Alexander William Wilcox of Ward, Hocker & Thornton PLLC, Lexington is a University of Northern Kentucky Chase College of Law graduate.  Mr. Wilcox practices in the areas of Auto, Insurance, Tort & Trucking.  He is sponsored by KDC Director, Ashley K. Brown.

  • 17 Sep 2021 2:37 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcomes its four newest members:

    Jared Michael Hudson of Ward, Hocker & Thornton PLLC, Lexington is a University of Kentucky Law School graduate.  Mr. Hudson practices in insurance defense work.  He is sponsored by KDC Director, Ashley Brown.

    Perry W. Oxley of Owsley Rich Sammons PLLC, Huntington, West Virginia is a graduate of the West Virginia University College of Law.  Mr. Oxley practices in the areas of Insurance Coverage, Medical Malpractice, Product Liability and Tort.  He is sponsored by KDC member, Samantha J. Fields.

    David E. Rich of Owsley Rich Sammons PLLC, Huntington, West Virginia is a graduate of the Chase College of Law.  Mr. Rich practices in the areas of Insurance Coverage, Medical Malpractice, Product Liability and Tort.  He is sponsored by KDC member, Samantha J. Fields.

    Lucien R. Sammons, III of Owsley Rich Sammons PLLC, Huntington, West Virginia is a graduate of The Capitol University School of Law.  Mr. Oxley practices in the areas of Auto, Contract, General Liability, Legal Ethics, Medical Malpractice and Utilities.  He is sponsored by KDC member, Samantha J. Fields.

  • 08 Sep 2021 3:34 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member:

    Matthew Gore of Rolfes Henry LPA, New Albany, IN is a graduate of the West Virginia University College of Law.  Mr. Gore practices in the areas of Auto, Bad Faith, Business Litigation, Contract, Insurance Coverage and Tort.  He is a member of DRI and sponsored by KDC member, Neil Baine.

  • 31 Aug 2021 1:08 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its two newest members:

    David N. Giesel of Philips, Parker, Orberson & Arnett, Louisville, is a Wake Forest University School of Law graduate.  Mr. Giesel practices in the areas of Employment, General Liability, Government Entity, Insurance Coverage, Medical Malpractice, Professional Liability, and Tort.  He is sponsored by KDC Publications Chair, Noelle Haegele.

    Caitlin McQueen Tubbesing of Freeman Mathis & Gary, Lexington is a University of Louisville Brandeis School of Law graduate.  Ms. Tubbesing practices in the areas of Bad Faith, Business Litigation, Education, Employment, General Liability, Insurance Coverage, Premises Liability, Tort and Trucking.  She is a member of DRI and sponsored by KDC YL Chair, Tia Combs.

  • 27 Aug 2021 2:16 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its three newest members:

    William J. Barker II of Ward, Hocker & Thornton, PLLC, Lexington is a graduate of the University of Kentucky Law School.  Mr. Barker practices in the areas of Insurance and Tort.  He is sponsored by KDC Director, Ashley Brown.

    Sarah Lawson Clark of Napier Gault Schupbach Stevens, PLC, Louisville is a graduate of the University of Kentucky Law School.  Ms. Clark practices in the areas of General Liability, Medical Malpractice, and Premises Liability.  She is sponsored by KDC Publication Committee Chair, Noelle Haegele.

    James E. "Trey" Yeager of Porter, Banks, Baldwin & Shaw, Lexington is a University of Kentucky Law School graduate.  Mr. Yeager practices in the areas of Auto, Insurance Coverage, Premises Liability and Tort.  He is sponsored by KDC Past President, Darren Banks.

  • 21 Aug 2021 2:00 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member!

    Darren Craig Lamb of Goldberg Simpson, Prospect is a University of Louisville Brandeis School of Law graduate.  Mr. Lamb practices in the areas of Business Litigation, Commercial, Construction, Contract, General Liability, Insurance Coverage,  Professional Liability and Athlete Name, Image and Likeness (NIL).  He is a member of DRI and is sponsored by KDC Social Chair, Jarad Key.

  • 19 Aug 2021 10:46 AM | Kathi McKeown (Administrator)

    Messer v. Commissioner of Social Security

    Dockets: 20-5552, 20-5550, 20-5551 

    Opinion Date: August 16, 2021

    Judge: Richard Allen Griffin 

    Areas of Law: Civil Procedure, Class Action

    Attorney Conn represented Plaintiffs and thousands of others in seeking disability benefits from the Social Security Administration (SSA). Conn bribed doctors to certify false applications and bribed an ALJ to approve those applications. After Conn’s scheme was uncovered, SSA identified more than 1,700 approved applications that it believed might have been the product of fraud. SSA redetermined and denied Plaintiffs’ applications, Several class actions challenged the SSA’s redetermination procedures. The Martin case was dismissed without a class having been certified because the named plaintiffs failed to exhaust their administrative remedies. The Hughes case was stayed before a class was certified. In the meantime, the Sixth Circuit held that the SSA’s redetermination procedures violated due process. Plaintiffs had 60 days to seek judicial review of the SSA’s decision, 42 U.S.C. 405(g). Each waited more than two years. As absent Hughes class members, they relied on the Supreme Court’s “American Pipe” doctrine under which filing a class action pauses the deadlines for members to file related individual actions. Once the district court remanded Hughes, plaintiffs filed their civil actions. The district courts dismissed the suits as untimely. The Sixth Circuit reversed in part. American Pipe tolling continues after a district court denies a motion for class certification solely as a matter of docket management, without deciding that certification is unwarranted. The outright dismissal of an uncertified class action ends American Pipe tolling and restarts class members’ statute-of-limitations clocks.

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    Ward v. National Patient Account Services Solutions, Inc.

    Docket: 20-5902 

    Opinion Date: August 16, 2021

    Judge: R[ansey] Guy Cole, Jr. 

    Areas of Law: Civil Procedure, Consumer Law

    Ward received twice medical treatment at Stonecrest. Stonecrest hired NPAS, Inc. to collect Ward’s outstanding balances. NPAS first sent Ward a billing statement on October 3 related to his July hospital visit. The statement provided NPAS's full name and address at the top of the first page; the reverse side explained who it was. NPAS called Ward on October 24 and left a voice message: We are calling from NPAS on behalf of Stonecrest … Please return our call. On November 17, NPAS, sent a second billing statement. On December 27, NPAS left a second, identical, voice message. NPAS then returned his account to Stonecrest. Ward’s second account regarding his October hospital visit followed a similar process. On December 28, after retaining counsel, Ward sent a cease-and-desist letter to “NPAS Solutions, LLC,” an entity unrelated to NPAS, Inc. Ward stated at his deposition that NPAS, Inc.’s voice messages caused him to become confused as to which entity had called him. Ward filed suit under the Federal Debt Collection Practices Act, 15 U.S.C. 1692e(11) alleging NPAS failed, in its voice messages, to identify itself as a debt collector and failed to identify the “true name” of its business. The Sixth Circuit held that the case should be dismissed because Ward lacks Article III standing. Ward does not automatically have standing simply because Congress authorizes a plaintiff to sue for failing to comply with the Act. The procedural injuries Ward asserts do not bear a close relationship to traditional harms.

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  • 09 Aug 2021 1:19 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its three newest members:

    Emily Lamb of Blackburn Domene & Burchett, PLLC, Louisville is a graduate of University of Louisville Brandeis School of Law.  Ms. Lamb practices in the areas of Employment, General Liability and Tort.  She is sponsored by KDC member, Jennifer Kincaid Adams.

  • 05 Aug 2021 1:05 PM | Kathi McKeown (Administrator)

    Southard v. Newcomb Oil Co., LLC

    Docket: 20-5318 

    Opinion Date: August 4, 2021

    Judge: R[ansey] Guy Cole, Jr. 

    Areas of Law: Arbitration & Mediation, Labor & Employment Law

    Southard worked for Newcomb, then filed a putative class action, alleging violations of the Fair Labor Standards Act, 29 U.S.C. 201, plus state-law claims. Newcomb removed the case to federal court. Southard amended his complaint to delete the FLSA claim. Newcomb moved to dismiss Southard’s complaint or to stay the action pending arbitration. The district court concluded that the parties did not form an agreement to arbitrate under the Federal Arbitration Act, 9 U.S.C. 3-4 and denied Newcomb’s motion, then remanded Southard’s remaining state-law claims to state court. The Sixth Circuit affirmed. To invoke FAA remedies, the parties must have entered into a “written agreement for arbitration.” Courts evaluate whether an agreement qualifies as FAA arbitration based on the common features of classic arbitration: a final, binding remedy by a third party, an independent adjudicator, substantive standards, and an opportunity for each side to present its case. Southard’s application for employment states: I accept that any complaint or conflict that cannot be resolved internally may be referred to Alternative Dispute Resolution unless prohibited by law, before any other legal action is taken. The employee handbook states the employee agrees "to Alternative Dispute Resolution a forum or means for resolving disputes, as arbitration or mediation, that exists outside the state or federal judicial system, unless prohibited by law," and If there is a conflict that cannot be resolved, "both agree that the matter will be referred to mediation.”. The parties agreed to alternative dispute resolution generally, not arbitration specifically.

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