• 01 Jul 2021 4:12 PM | Kathi McKeown (Administrator)


    US Court of Appeals for the Sixth Circuit Opinions

    Ingram Barge Co., LLC v. Zen-Noh Grain Corp.

    Docket: 20-5514 

    Opinion Date: June 28, 2021

    Judge: Siler 

    Areas of Law: Admiralty & Maritime Law, Business Law, Commercial Law, Contracts, Transportation Law


    Zen-Noh purchased grain shipments. Sellers were required to prepay barge freight and deliver the product to Zen-Noh’s terminal but were not required to use any specific delivery company. Ingram, a carrier, issued the sellers negotiable bills of lading, defining the relationships of the consignor (company arranging shipment), the consignee (to receive delivery), and the carrier. Printed on each bill was an agreement to "Terms” and a link to the Terms on Ingram’s website. Those Terms purport to bind any entity that has an ownership interest in the goods and included a forum selection provision selecting the Middle District of Tennessee. Ingram updated its Terms and alleges that it notified Zen-Noh through an email to CGB, which it believed was “closely connected with Zen-Noh,” often acting on Zen-Noh's behalf in dealings related to grain transportation. Weeks after the email, Zen-Noh sent Ingram an email complaining about invoices for which it did not believe it was liable. Ingram replied with a link to the Terms. Zen-Noh answered that it was “not party to the barge affreightment contract as received in your previous email.” The grains had been received by Zen-Noh, which has paid Ingram penalties related to delayed loading or unloading but has declined to pay Ingram's expenses involving 'fleeting,’ 'wharfage,’ and 'shifting.’” Ingram filed suit in the Middle District of Tennessee. The Sixth Circuit affirmed the dismissal of the suit. Zen-Noh was neither a party to nor consented to Ingram’s contract and is not bound to the contract’s forum selection clause; the district court did not have jurisdiction over Zen-Noh.

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  • 01 Jul 2021 3:48 PM | Kathi McKeown (Administrator)

    If you turn to page 30 of the June 2021 issue of DRI's publication, For the Defense, you'll find Social Media, Students, and SCOTUS, an article co-authored by KDC Past President, Claire Parsons and KDC member, Olivia Amlung.  Thank you, Ashley & Olivia, for making Kentucky look good!

    Not a member of DRI?  It's a great way to connect with people around the world.  Contact Beth Lochmiller at blochmiller@clblaw.com or Ashley Brown at abrown@whtlaw.com to learn more.

  • 01 Jul 2021 12:47 PM | Kathi McKeown (Administrator)

    Change of venue 


    Effective July 1, 2021, Lawyers Mutual
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    Lawyers Mutual of Kentucky

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    502-568-6100

    502-568-6103 fax

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  • 29 Jun 2021 3:29 PM | Kathi McKeown (Administrator)

    KDC is pleased to welcome its newest member.

    Robert May of Kinkead & Stilz, Lexington, is a graduate of the University of Louisville Brandeis School of Law.  Mr. May practices in the area of Medical Malpractice.  He is sponsored by KDC member, Melanie Sublett Marrs.

  • 28 Jun 2021 10:05 AM | Kathi McKeown (Administrator)

    KDC is pleased to welcome the following new members:

    Ellen Black of Kinkead & Stilz, Lexington, is a University of Kentucky Law School graduate.  Ms. Black practices in the areas of Commercial Litigation, Civil Rights Litigation and Employment Litigation.  She is sponsored by KDC member, Melanie Sublett Marrs.

    Colton Givens of Kerrick Bachert PSC, Bowling Green, is a University of Kentucky Law School graduate.  Mr. Givens practices in the areas of Commercial, Construction, Contract, General Liability, Insurance Coverage, Premises Liability, and Property.  He is sponsored by KDC member Thomas Kerrick.

    F. Walter ("Franklin") Milam of Bell, Orr, Ayers & Moore, P.S.C., Bowling Green, is a University of Kentucky Law School graduate.  Mr. Milam practices in the areas of Agriculture, Appellate, Auto, Bad Faith, Business Litigation, Commercial, Construction, Contract, Education, Employment, General Liability, Government Entity, Insurance Coverage, Municipal, Premises and Product Liability, Property, Real Estate Transaction Liability, Tort and Trucking.  He is sponsored by KDC President Paul T. Lawless.

  • 28 Jun 2021 9:54 AM | Kathi McKeown (Administrator)

    Ciccio v. SmileDirectClub, LLC

    Docket: 20-5833 

    Opinion Date: June 25, 2021

    Judge: McKEAGUE 

    Areas of Law: Arbitration & Mediation

    SmileDirect sells orthodontic implements online as an alternative to traditional orthodontists. Plaintiffs sued SmileDirect, alleging false advertising. SmileDirect and its customers had an arbitration agreement that excepted claims within the jurisdiction of Small Claims Court. The district court concluded that whether the claims fell within that exception was a gateway question of arbitrability and that the parties agreed to arbitrate such gateway questions. The consumer plaintiffs voluntarily dismissed their claims. One consumer plaintiff, Johnson filed a demand for class-wide arbitration with the American Arbitration Association (AAA). An AAA administrator stated that AAA’s Healthcare Due Process Protocol and Healthcare Policy Statement applied, which require healthcare providers and their patients to sign an arbitration agreement after a dispute arises in certain cases unless a court order has compelled arbitration. Johnson declined to sign the post-dispute agreement and moved to rejoin this case. The district court held that Johnson satisfied his obligations under the arbitration agreement, concluding that the arbitration agreement did not cover the dispute. The Sixth Circuit reversed. Whether an arbitration agreement covers a dispute is a gateway question of arbitrability, and here the parties delegated such questions to an arbitrator. Under the agreement and the incorporated AAA rules, it was improper for an administrator to effectively answer that gateway question or to overlook it altogether by binding the parties to AAA’s views of sound policy.

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    Perez v. Sturgis Public Schools

    Docket: 20-1076 

    Opinion Date: June 25, 2021

    Judge: Thapar 

    Areas of Law: Civil Procedure, Education Law

    When Perez (now 23) was nine, he emigrated from Mexico and started school in the Sturgis. Perez is deaf; the school assigned him a classroom aide who was not trained to work with deaf students and did not know sign language. Perez nonetheless appeared to progress academically. He was on the Honor Roll every semester. Months before graduation, the school informed the family that Perez did not qualify for a diploma—he was eligible for only a “certificate of completion.” Perez filed a complaint with the Michigan Department of Education, citing the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1412, the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Michigan disabilities laws. The ALJ dismissed the ADA and Rehabilitation Act claims for lack of jurisdiction. Before a hearing on the IDEA claim, the parties settled. The school agreed to pay for Perez to attend the Michigan School for the Deaf, for any “post-secondary compensatory education,” for sign language instruction, and for the family’s attorney’s fees. Months later, Perez sued Sturgis Public Schools, with one ADA claim and one claim under Michigan law, alleging that the school discriminated against him by not providing the resources necessary for him to fully participate in class. The Sixth Circuit affirmed the dismissal of the claims. Under the IDEA, the decision to settle means that Perez is barred from bringing a similar case against the school in court—even under a different federal law.

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    Barger v. United Brotherhood of Carpenters & Joiners of America

    Docket: 19-3852 

    Opinion Date: June 25, 2021

    Judge: Batchelder 

    Areas of Law: Labor & Employment Law

    Local 2, representing carpenters and workers in related industries, is a local affiliate of IKORCC, which is an affiliated regional union of UBC. Barger has been a Local 2 member of Local 2. In 2007-2015, he worked intermittently as a carpenter for SPI, whose client owned and operated the Zimmer Power Station. Barger worked at Zimmer in 2014-2015. After being laid off, Barger called Zimmer’s Maintenance Manager, Lind, asking for a job. When Lind rejected Barger’s request, Barger responded that “[SPI is] stealing money from you” by falsifying hours. Barger told Meier, an IKORCC business agent, that he had told Lind about SPI’s overbilling. Barger said that it was worth the harm to other union members “to get even with” SPI. Meier filed a charge with IKORCC against Barger for violating the UBC Constitution by “Causing Dissension,” and failing to use “every honorable means to procure employment for Brother and Sister Members.” IKORCC fined Barger $5,000; UBC vacated the fine. Meanwhile, ESS hired Barger as an independent contractor. ESS assigned Barger to work at Zimmer. When he arrived, he was denied entry. ESS subsequently stopped offering him assignments. Barger sued, alleging violations of his free speech rights under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 411(a)(2). The district court granted the defendants summary judgment. The Sixth Circuit reversed in part. Barger’s speech is protected by LMRDA section 101(a)(2) under the form-content-context test; the content of Barger’s speech was of union concern. The defendants had not raised the right of a union to adapt and enforce reasonable rules.

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  • 21 Jun 2021 3:27 PM | Kathi McKeown (Administrator)

    Kentucky Supreme Court Opinions

    Kentucky Retirement Systems v. Jefferson County Sheriff's Office

    Docket: 2019-SC-0476-TG 

    Opinion Date: June 17, 2021

    Judge: John D. Minton, Jr. 

    Areas of Law: Government & Administrative Law, Labor & Employment Law

    In this administrative appeal brought by the Kentucky Retirement Systems from the decision of the circuit court in two consolidated cases concerning application of Ky. Rev. Stat. 61.598 the Supreme Court held that the Retirement Systems improperly applied the statute to pay spikes to a certain extent. Section 61-598, commonly known as the pension spiking statute, identifies artificial increases in creditable compensation to public pension-member employees occurring in the last five years preceding retirement, effectively increasing the employee's retirement benefits. In both cases, the alleged spikes were partly due to a change in the Jefferson County Sheriff's office (JCSO) accounting method and partly due to the employees' accrual of overtime hours. The Retirement Systems assessed JCSO for payment increased actuarial costs attributable to the alleged pension spikes. The circuit court reversed. The Supreme Court affirmed in part and reversed in part, holding (1) an isolated transition in JCSO's new accounting method did not amount to an increase in compensation; (2) the Retirement Systems properly assessed the increased actuarial costs to the extent it was caused by regular overtime work and was not the result of a bona fide promotion or career advancement; and (3) the circuit court erred in reversing the Retirement System's original assignment of the burden of proving a bona fide promotion.

    Read Opinion


  • 21 Jun 2021 3:16 PM | Kathi McKeown (Administrator)

    Mosley v. Arch Specialty Insurance Co.

    Docket: 2018-SC-0586-DG 

    Opinion Date: June 17, 2021

    Judge: John D. Minton, Jr. 

    Areas of Law: Insurance Law, Personal Injury

    The Supreme Court affirmed the judgment of the court of appeals affirming the trial court's dismissal of this third-party bad-faith case against Arch Specialty Insurance Company and National Union Fire Insurance Company, holding that there was no error. At issue was whether the two insurance companies acted in bad faith while mediating negligence and wrongful death claims asserted by Plaintiff against the insureds of Arch and National Union after her husband died in a coal mining accident. The Supreme Court affirmed, holding that the trial court did not err in dismissing the third-party bad-faith claims and that there was no other error in the proceedings below.


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    United States Liability Insurance Co. v. Watson

    Docket: 2019-SC-0475-DG 

    Opinion Date: June 17, 2021

    Judge: Hughes 

    Areas of Law: Insurance Law, Personal Injury

    The Supreme Court reversed the opinion of the court of appeals reversing the decision of the circuit court granting summary judgment in favor of Defendant pursuant to Kentucky's Unfair Claims Settlement Practices Act (UCSPA) and dismissing Plaintiff's bad faith claim as barred by the statute of limitations, holding that the complaint was untimely. Plaintiff was injured in a motor vehicle accident and settled his dram shop liability claim against Pure Country, LLC, an establishment insured by United States Liability Insurance Company (USLI). Several years after settling, Plaintiff brought a bad faith claim against USLI under the UCSPA. The circuit court concluded that the action was untimely and granted summary judgment for Defendant. The court of appeals reversed. The Supreme Court reversed, holding (1) the trial court correctly determined that the bad faith claim against USLI was barred by the statute of limitations; and (2) the USCPA claim was not saved by relation back to an earlier filed or proposed pleading.


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    Johnson v. Honorable Stockton Wood

    Docket: 2020-SC-0588-MR 

    Opinion Date: June 17, 2021

    Judge: Michelle M. Keller 

    Areas of Law: Medical Malpractice, Personal Injury

    The Supreme Court affirmed the judgment of the court of appeals denying Plaintiff's petition for a writ of mandamus to direct Judge Stockton Wood of the Fleming Circuit Court to issue various orders in her favor, holding that a writ of mandamus was inappropriate. Plaintiff filed a third amended complaint against radiologists and health care providers alleging medical negligence, spoliation, abuse of process, obstruction of justice, and other claims. During a two-month period the trial court entered fourteen separate orders. Plaintiff sought a writ of mandamus directing the court to issue orders in her favor. The court of appeals denied the petition for a writ of mandamus. The Supreme Court affirmed, holding that an adequate remedy by appeal existed for each of the errors Plaintiff alleged.


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    Jewish Hospital v. Honorable Mitch Perry

    Docket: 2020-SC-0011-MR 

    Opinion Date: June 17, 2021

    Judge: Lambert 

    Areas of Law: Medical Malpractice

    The Supreme Court vacated the order of the circuit court denying Appellant's petition for a writ prohibiting the Jefferson Circuit Court from enforcing its order allowing the use of a root-cause analysis report (RCA) at trial for impeachment purposes, holding that the RCA was privileged. At issue on appeal was whether Ky. Rev. Stat. 311.377, as amended, protected the RCA from being admitted at trial. The trial court concluded that the RCA could be used at trial for the purpose of impeachment. Appellant sought a writ of prohibition, but the court of appeals denied the petition. The Supreme Court reversed and granted a writ prohibiting the circuit court from enforcing its order permitting the admission of the privileged material for impeachment purposes, holding that where this case concerned the potential violation of an applicable privilege, the certain special cases exception was met.

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    Thomas v. State Farm Fire & Casualty Co.

    Docket: 2020-SC-0061-DG 

    Opinion Date: June 17, 2021

    Judge: Vanmeter 

    Areas of Law: Personal Injury

    The Supreme Court affirmed the decision of the court of appeals affirming the order of the circuit court granting summary judgment in favor of State Farm Fire and Casualty Insurance Company in the underlying personal injury case, holding that there was no error. Bessie Perkins began caring for the children of Donald and Julie Thomas and Jeffrey and Elizabeth Renner in the summer of 2015. That fall, the Renner child was diagnosed with shaken baby syndrome. Thereafter, the Thomas child was diagnosed with two leg fractures. The parents brought a negligence action against Bessie and Jerry Perkins. State Farm, as the Perkinses' insurer, filed an intervening complaint arguing that the Perkinses' behavior implicated the "child care services exclusion," relieving State Farm of liability. The circuit court entered a declaratory judgment in favor of State Farm as to both sets of plaintiffs, finding that the child care services exclusion applied. The Supreme Court affirmed, holding that the policy was unambiguous and reasonable.

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    Phillips v. Rosquist

    Docket: 2018-SC-0671-DG 

    Opinion Date: June 17, 2021

    Judge: John D. Minton, Jr. 

    Areas of Law: Real Estate & Property Law

    The Supreme Court affirmed the decision of the court of appeals reversing the trial court's mandatory injunction in this property dispute, holding equitable relief was not available under the circumstances of this case. Plaintiffs, the owners of a residential subdivision lot - Lot 89 - sued Defendants, the owners of an adjoining subdivision lot, claiming trespass and recovery of land adversely held. Years before Plaintiffs owned Lot 89, Defendant excavated a portion of his lot and Lot 89 to allow water from a lake abutting both properties to cover a portion of both lots. Plaintiffs claimed that the action constituted a trespassory occupation of Lot 89. The trial court granted Plaintiffs a mandatory injunction and directed Defendants to backfill Lot 89. The court of appeals vacated the judgment, finding that this action was barred by the relevant statute of limitations. The Supreme Court affirmed on different grounds, holding (1) Plaintiffs never received title to the submerged portion of Lot 89, and therefore could not maintain a claim for trespass, for removal from land or recovery of land adversely held, or to quiet title; and (2) equitable relief was unavailable under the circumstances.


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  • 21 Jun 2021 3:05 PM | Kathi McKeown (Administrator)

    Commonwealth v. Hess

    Dockets: 2019-SC-0130-DG, 2019-SC-0208-DG 

    Opinion Date: June 17, 2021

    Judge: Michelle M. Keller 

    Areas of Law: Civil Procedure, Personal Injury

    The Supreme Court vacated the judgment of the court of appeals vacating the order of the trial court denying Ford Motor Company's motion for summary judgment, holding that neither the court of appeals nor this Court had appellate jurisdiction of this unauthorized interlocutory appeal. Plaintiff sued Ford and multiple other defendants, alleging that Ford was one of the parties responsible for causing his malignant mesothelioma. Just over two years after the suit was filed, Ford moved for summary judgment. The trial court denied the motion in a one-sentence handwritten order that contained no analysis or reasoning. The merits panel of the court of appeals vacated the trial court's order and remanded for the trial court to enter another order with a basis for its determination. The Supreme Court vacated the judgment below and remanded to the trial court for further proceedings, holding that the interlocutory order in this case did not meet the requirements of the collateral order doctrine, and therefore, the court of appeals and this Court lacked jurisdiction to hear the appeal.


    Read Opinion


    .

    Louisville/Jefferson County Metro Government v. Honorable Olu A. Stevens

    Docket: 2020-SC-0091-MR 

    Opinion Date: June 17, 2021

    Judge: Per Curiam 

    Areas of Law: Civil Procedure

    The Supreme Court granted motions to dismiss this appeal from the court of appeals' denial of a petition for a writ of mandamus directing Jefferson Circuit Court Judge Olu A. Stevens to rule on a summary judgment motion, holding that the appeal must be dismissed as moot. During the pendency of this appeal, Judge Stevens issued an order granting summary judgment to Louisville Metro Government (LMG) and dismissing with prejudice all claims against it on the grounds of sovereign immunity. The judge rejected the claim of governmental immunity asserted by the other defendant, Parking Authority of River City, Inc. (PARC), based on multiple issues of material fact leading to the denial of its request for summary judgment. PARC, however, was cleared to seek an immediate interlocutory appeal. The Supreme Court dismissed the appeal at hand, holding that because the request for a ruling on the summary judgment motion was issued, the need for a writ of mandamus no longer existed.


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    Jefferson County Sheriff's Office v. Kentucky Retirement Systems

    Docket: 2019-SC-0315-DG 

    Opinion Date: June 17, 2021

    Judge: John D. Minton, Jr. 

    Areas of Law: Government & Administrative Law, Labor & Employment Law

    The Supreme Court reversed the judgment of the trial court upholding that decision of the Retirement Systems's Administrative Review Board affirming the decision of the Kentucky Retirement Systems applying the Ky. Rev. Stat. 61.598, the pension-spiking statute, to assess actuarial costs to the Jefferson County Sheriff's Office (JCSO), holding that the Retirement Systems did not properly apply the spiking statute in this case. The Kentucky Retirement Systems assessed the costs because it found a JCSO employee took unpaid leave for two months, causing a temporary decrease in gross compensation in that year, but then returned to his earlier pay. The circuit court agreement with the Retirement Systems, finding that section 61.598 as applied was not arbitrary, and therefore, the circuit court was bound by the Board's decision. The Supreme Court reversed, holding (1) the plain language of section 61.598 does not direct the retirement System to determine changes in compensation over a five-year period; and (2) the burden of proving a bona fide promotion was properly placed on the employer.

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    Davis v. Blendex Co.

    Docket: 2020-SC-0171-WC 

    Opinion Date: June 17, 2021

    Judge: Lambert 

    Areas of Law: Insurance Law, Labor & Employment Law, Personal Injury

    The Supreme Court affirmed the decision of the court of appeals affirming the holding of the Workers' Compensation Board that the Administrative Law Judge properly found that Plaintiff's claim for workers' compensation benefits was barred by the applicable statute of limitations, holding that there was no error. Plaintiff received a workplace injury and filed a claim for benefits. Plaintiff never sought or received any temporary total disability benefits prior to the applicable statute of limitations expiring. The insurance adjuster for the employer's workers' compensation insurance carrier offered to settle Plaintiff's claim, but the parties never reached a settlement agreement. Plaintiff later filed an application for resolution of his claim, but the employer denied the claim on the grounds that it was time barred. The ALJ found that the claim was not timely under Ky. Rev. Stat. 342.185. The Board affirmed. The Supreme Court affirmed, holding that the ALJ properly determined that equitable principles did not warrant the tolling of the statute of limitations.


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    Davis v. Progressive Direct Insurance Co.

    Docket: 2020-SC-0168-DG 

    Opinion Date: June 17, 2021

    Judge: Vanmeter 

    Areas of Law: Insurance Law, Personal Injury

    The Supreme Court affirmed the ruling of the court of appeals excluding from the definition of a "motor vehicle" or "trailer" a horse-drawn wagon for insurance coverage purposes, holding that the insurance policy was unambiguous and did not violate Plaintiff's reasonable expectations when she purchased her motorcycle coverage. While driving her motorcycle, Plaintiff encountered a horse-drawn buggy. The horse became spooked and jumped into oncoming traffic, gravely injuring Plaintiff when she collided with the horse. Plaintiff's motorcycle was insured by Progressive, and neither the driver of the buggy nor his father carried any form of insurance. Progressive denied Plaintiff's claim under the uninsured motorist provision of her motorcycle coverage on the grounds that a horse-drawn wagon was not covered under the policy. The circuit court granted Progressive's motion for summary judgment. The court of appeals affirmed, concluding that the horse-drawn wagon did not qualify as a "motor vehicle" or "trailer of any type" under the policy terms. The Supreme Court affirmed, holding that Plaintiff's assertions on appeal were unsupported.

    Read Opinion



  • 17 Jun 2021 5:20 PM | Kathi McKeown (Administrator)

    Today, the Kentucky Supreme Court held a hospital’s root-cause analysis was privileged under KRS 311.377(2). This is the first opinion outlining the scope of KRS 311.377.

    2020-SC-0011-mr.pdf


 
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