WEB Version of Law Summary 2007 by chenmeixiu


									          S MITH , R OLFES & S KAVDAHL C OMPANY , L.P.A.
                                        ATTORNEYS AT LAW

                             CINCINNATI                             COLUMBUS
                       TELEPHONE: (513) 579-0080             TELEPHONE: (614) 469-7130
                       TELE-FAX: (513) 579-0222              TELE-FAX: (614) 469-7146

                           SRSLAW@SMITHROLFES.COM       WWW.SMITHROLFES.COM

Dear Insurance Professional:

       2007 will be a very special year for Smith, Rolfes & Skavdahl Company, L.P.A. For
seventeen of the eighteen years our firm has been in existence, our main office has been located in
the Kroger Building in downtown Cincinnati. May 2007 will mark our first move in nearly two
decades to our new office location immediately adjacent to Cincinnati’s historic Fountain Square.
We eagerly look forward to serving you, your companies and your insureds from our new and
expanded offices, and invite you to join us any time at The Centre at 600 Vine Street, Suite 2600.

        Like our law firm, our initial publication, some fifteen years ago, of our annual Law
Summary began very small with only several pages of paper stapled together, run through a
photocopier and distributed to our clients. This 2007 Edition of the Ohio, Kentucky and Indiana Tort
and Insurance Law Summary is a publication we are pleased and honored to provide to you from our
firm. We continue to receive compliments each year regarding this booklet and the information we
try to compile to be of service to each of you in the insurance industry. We hope the 2007 Edition is
no exception and you find this booklet to be a valuable asset in the handling and investigation of
insurance claims.

        In the past year we have also expanded our practice even further by handling insurance
related claims and investigations in more than ten states. Although the tri-state area continues to be
our primary focus, our firm remains committed whether locally, regionally or nationally to providing
our insurance industry clients with the highest quality of legal services. As we come very close to
approaching the end of our second decade of service, all of us at Smith, Rolfes & Skavdahl
Company, L.P.A. remain committed to being ready to be of service to you at any time and to the best
of our ability.

        If you are an existing client of our firm, we again most sincerely thank you for the ongoing
confidence you show in us in each new file assignment we receive; if we have not had the
opportunity to work with you before, we sincerely hope 2007 will be a year in which we start a new
relationship which will last for many years to come.

                                                    Sincerely yours,

                                                    SMITH, ROLFES AND SKAVDAHL
                                                    COMPANY, L.P.A.

                                                    Matthew J. Smith
                                              TABLE OF CONTENTS

        INSURERS AND INSUREDS ALIKE ....................................................................... 2
II.     KENTUCKY NO-FAULT CLAIMS – A REFRESHER .......................................... 3
III.    FREQUENTLY CITED OHIO STATUTES ............................................................. 7
              A. General Considerations in Insurance Claims Management .............................. 7
              B. Clarification of Facts and Legal Duties ............................................................ 7
              C. Uninsured Motorist Coverage ........................................................................... 8
              D. Statutory Subrogation Rights ............................................................................ 8
              E. Liability and Damages Considerations ............................................................. 9
              F. Insurance Fraud............................................................................................... 12
IV.     FREQUENTLY CITED KENTUCKY STATUTES ............................................... 15
V.      FREQUENTLY CITED INDIANA STATUTES..................................................... 17
              A. Automobile Insurance ..................................................................................... 17
              B. Negligence, Other Torts and Contribution...................................................... 17
              C. Subrogation ..................................................................................................... 19
              D. Insurance Fraud............................................................................................... 20
              E. Other ............................................................................................................... 22
VI.     OHIO STATUTE OF LIMITATIONS ..................................................................... 23
VII.    KENTUCKY STATUTE OF LIMITATIONS ......................................................... 26
VIII.   INDIANA STATUTE OF LIMITATIONS .............................................................. 29
IX.     SIGNIFICANT OHIO COURT DECISIONS ......................................................... 32
              A. Insurance Coverage Decisions ........................................................................ 32
              B. UM/UIM Decisions ........................................................................................ 37
              C. Employment Decisions ................................................................................... 39
              D. Premises Liability Decisions........................................................................... 42
              E. Miscellaneous Decisions................................................................................. 44
              A. Bad Faith ......................................................................................................... 48
              B. Employment Decisions ................................................................................... 50
              C. Misc. Decisions ............................................................................................... 52
XI.     SIGNIFICANT INDIANA COURT DECISIONS ................................................... 59
        COURT ....................................................................................................................... 64
        COURT ....................................................................................................................... 66
 On December 1, 2006, new amendments to the Federal Rules of Civil Procedure took effect for
 all pending and newly filed cases governing discovery of electronically stored information.
 These amendments can be found in Federal Rules 16, 26 and 37 of the Federal Rules of Civil
 Procedure. These amendments require retention of any potentially discoverable electronic
 information, the production of non-privileged electronically stored information, and sanctions for
 not producing electronically stored information and not advising what electronically stored
 information may be available.

 Under these new rules, any attorney representing a company that is or may become involved in
 litigation must understand a business’ computer network, the technologies and technological
 work flows that the business has deployed, as well as the sources of electronically stored
 information that could be relevant in a disputed matter. These amended rules require parties to
 impose a “litigation hold” on all potentially relevant documents once litigation is commenced or
 reasonably anticipated. This will require a review of business’ retention policy to make certain
 that potentially discoverable electronic sources of information are not destroyed.

 The new amended rules require parties to address electronic discovery issues in the “meet and
 confer” conference that is required prior to the initial Rule 26 disclosures. At the meet and
 confer conference, an attorney is required to disclose what sources there are of electronically
 stored information at a company and possibly how the information can be accessed and searched.
 One of the issues for discovery is the form in which electronically stored information will be

 The language of the amended rules would clearly include electronically stored information such
 as emails and probably voicemail. Any emails, including internal emails, that are relevant to the
 issues in litigation likely must be produced unless they come under some type of privilege and
 the rules remain the same for a party asserting a claim of privilege, that party has the burden of
 establishing that a privilege applies that would prevent production of the information.

 At the present time, these rules apply only to federal lawsuits. It is very possible, and likely, that
 the various states will adopt the same or similar rules at sometime in the future. In the interim,
 judges from state courts may look to rulings of the federal court for guidance in resolving
 electronically stored information discovery issues.

 From a claim handling standpoint, it is important that when an adjuster learns of a potential
 claim, the adjuster needs to contact the insured company and make certain a litigation hold is
 placed on electronically stored information. It is probably a good practice that this be followed
 up in writing. Usually when a claim comes in, an adjuster will contact the insured company for
 information. In the initial contact with the insured company, the importance of maintaining and
 keeping electronically stored information should be brought to the attention of the insured
 company. A practical problem may be getting the attention of a person who can put a litigation
 hold into effect. In many situations a company could accidentally destroy exculpatory
 information without a realization of how important that information could be in a lawsuit. The
 other danger is that an insured company could destroy relevant information that could result in a
 judge imposing sanctions that would limit or preclude a viable defense.


 Kentucky adopted a no-fault system for auto B.I. claims in 1974. The intent was to simplify the
 claim process for both claimants and insurers alike. As many people who handle PIP claims will
 attest, that goal has not always succeeded.

 Most Kentucky auto policies only provide $10,000.00 in PIP benefits, so typically a PIP claim on
 its own has limited value. PIP claims, however, can pose a trap for the unwary claims person if
 the governing statutes are not properly followed.

                                  When does PIP coverage apply?

 A PIP claim will potentially arise whenever there is an accident with bodily injury and either the
 injured person, or the owner of the vehicle they were occupying, maintains a Kentucky auto
 policy and has purchased the coverage. (K.R.S. 304.39-030). This will be true even if the
 accident did not happen in Kentucky. (K.R.S. 304.39-030).

  If an out-of-state motorist is involved in an accident while in Kentucky, they will still be able to
 assert a PIP claim by one of two means. If their insurer is authorized to do business in Kentucky,
 then under Kentucky law, the policy provides PIP coverage, by operation of law. (K.R.S.
 304.39-100). In other words, even though the PIP coverage was not actually purchased by the
 insured, it will nevertheless be found to exist. If the insurer does not do business in Kentucky,
 then the occupants of the vehicle may make a claim to the Assigned Claims Plan maintained by
 the Kentucky Department of Insurance. Under this plan, the Department of Insurance will
 designate a particular insurer, who already does business in Kentucky, to step in and provide the
 coverage. (K.R.S. 304.39-160).

                                   Who may make a PIP claim?

 Drivers and occupants of insured vehicles may make a PIP claim.

 PIP coverage is not limited to just the occupant of a vehicle. It also applies to people who are
 entering, exiting, repairing, and loading or unloading a motor vehicle. These types of claims will
 often revolve around very fact specific determinations. (K.R.S. 304.39-020).

 A pedestrian in Kentucky may make a PIP claim regardless of whether they are insured. A
 Kentucky resident who is injured as a pedestrian in another state may make a PIP claim under
 their own Kentucky policy.

 If an accident involves an uninsured motorist, any amount of PIP recovery cannot be used to
 reduce the amount of UM coverage available.

                   What types of damages can be recovered on a PIP claim?

K.R.S. 304.39-020 governs what types of damages can be paid on a PIP claim. Medical
expenses are the most commonly claimed item on a no-fault claim. The Kentucky courts
historically have taken a very liberal approach in determining whether treatment is reasonably
needed and/or causally related to an accident. Insurers do have the right to collect medical
records from a provider in making any determination of necessity. If an insurer believes an IME
is warranted, they have the right to petition the circuit court to order an IME, even if the claim is
not otherwise in litigation.

Lost wages are another commonly claimed item on PIP claims. This will require a statement
from the employer regarding the employee’s income and work history, along with a statement
from the treating doctor regarding the claimant’s inability to work.

Funeral and burial expenses are ordinarily only covered up to $1,000.00. Certain policies do
contain a provision expressly providing additional coverage for funeral and burial expenses.

There are other types of damages which can be claimed and recovered on a PIP claim which do
not often receive a great deal of attention. One such area is replacement services. This applies
whether the claim simply involves bodily injury preventing someone from ordinarily doing work
around the home, or if the accident causes the death of someone who ordinarily provided certain
services around the home. Examples include expenses for child care, housekeeping, and lawn
care. These types of claims are capped at $200.00 per week.

One other type of claim is for a survivor’s economic loss. This is where a decedent had
previously been financially supporting another.

                                Who controls which bills get paid?

PIP claims in Kentucky are self-directed. This means it is solely up to the insured to decide how
the coverage is to be allocated. (K.R.S. 304.39-241). For example on a claim resulting in
significant wage loss, the insured has the right to have as much of the medical expenses paid by
health insurance as they would like, and then secure as much wage loss reimbursement under the
policy as possible.

If an insured has multiple policies, each of which provide basic no-fault coverage, those policies
cannot be stacked. If, however, the insured has opted to purchase additional no-fault coverage
beyond the basic $10,000.00 level, then to the extent any additional coverage was purchased, the
amount of additional coverage can be stacked.

In instances where an out-of–state policy is involved, there could very well be a scenario
presented where there is medical payment coverage expressly provided by the policy, and no-
fault coverage also available by operation of law. When this happens, the medical payment
coverage is not eliminated, rather both coverages are available and the insured has sole discretion
to determine what they wish to claim under each coverage.

                              When must no-fault benefits be paid?

Kentucky law is strict on imposing specific time limits for paying PIP claims. Ordinarily a claim
must be paid within thirty days of it being received by the insurer. (K.R.S. 304.39-210). An
insurer may opt to accumulate bills on a claim for a thirty day period, and if they chose to do so,
then after that thirty day period, they must then pay the accumulated bills within fifteen days.
An insurer is entitled to request and receive reasonable proof that treatment was both incurred
and was in fact necessary.

If benefits are not paid in a timely manner, interest is imposed at a rate of 12%. (K.R.S. 304.39-
210). If it is determined the delay in payment was without reasonable justification, the interest
rate increases to 18%.

                                  What subrogation rights exist?

A PIP insurer has a right of subrogation against the insurer of a tortfeasor or directly against an
uninsured tortfeasor. (K.R.S. 304.39-070). The PIP insurer has no right to assert a direct
subrogation claim against an insured tortfeasor. (K.R.S. 304.39-050). The first one thousand
dollars ($1,000.00) paid on a PIP claim is exempt from subrogation.

Kentucky follows the made whole rule. (K.R.S. 304.39-140). When a plaintiff has not been
fully compensated by the tortfeasor, the PIP insurer’s subrogation lien is extinguished as a matter
of law. In other words, the insured’s claim takes priority over the insurer’s subrogation claim.
Kentucky also mandates is that if the plaintiff recovers policy limits from the tortfeasor’s insurer,
not only does that extinguish the subrogation lien, but there is also no recourse against the
insured tortfeasor. (K.R.S. 304.39-140).

If an insurer relies upon the plaintiff's attorney to recover its subrogated interest, then the
plaintiff's attorney may assert a claim for reasonable attorney’s fees to the insurer. (K.R.S.
304.39-2201). The test generally followed by the Kentucky courts is whether that attorney’s
services provided a benefit to the insurer. The extent to which this may be recovered is a fact
specific determination and is ordinarily addressed on a case by case basis.

                                How does this effect a B.I. claim?

With the adoption of no-fault law, Kentucky has imposed thresholds a plaintiff has to meet
before they can bring a B.I. suit. (K.R.S. 304.39-060). These thresholds are:

               $1,000.00 in medical expenses;
               Permanent disfigurement;
               A compound, comminuted, displaced, or compressed fracture;
               A fractured bone;
               The loss of a body member;
               A permanent injury;
               The permanent loss of a bodily function;

These thresholds have not changes since 1974. A monetary threshold of $1,000.00 was much
more meaningful over thirty years ago than it is now. Additionally, the courts have been very
liberal in addressing what is a permanent injury, and chiropractor reports on very basic soft tissue
claims involving only several weeks of treatment have been given sufficient deference to result
in a finding of permanency.

A tortfeasor is immune from a plaintiff’s first ten thousand dollars ($10,000.00) in economic
damages, regardless of whether a PIP claim is made, or if the coverage is exhausted. This set-off
is made post verdict.

 Kentucky’s no-fault statutes, and the great body of case law interpreting it, cannot easily be
condensed into one article. The purpose of this article is to provide a general survey of this often
misunderstood area of law. For more specific information, please feel free to contact our firm.


             A. General Considerations in Insurance Claims Management

  Ohio Administrative Code § 3901-1-54
  Unfair Claims Practices
  This section is not state law, but is part of the state regulations governing insurers. It governs
  unfair settlement practices in the handling of property and casualty claims. Numerous minimum
  standards of conduct for claims representatives are set forth. It was substantially modified in
  November, 2004.
  Although the code expressly provides violations of the code may result in disciplinary action
  being taken by the Department of Insurance, violations do not lead to civil liability, even on first-
  party claims.

  R.C. § 4505.11
  Salvage Titles
  If it is economically impractical to repair a vehicle and the insurer has paid the owner an agreed
  sum for the purchase of the vehicle, the insurer shall obtain the title and within 30 days obtain a
  salvage title.
  If the owner retains possession of the vehicle, the insurer cannot pay the owner to settle the claim
  until the owner first obtains a salvage title.

  R.C. § 2111.18
  Settlement of Minor’s Claims
  All settlements of personal injury claims of minors must be approved by the probate court of the
  county where the minor resides.
  If the net amount of the settlement proceeds to the minor exceed $10,000, a guardianship must be
  established until the minor turns 18 or the balance of funds no longer exceeds $10,000.

             B. Clarification of Facts and Legal Duties

  R.C. § 2317.48
  Action for Discovery
  When information and facts surrounding a case are difficult to obtain, a person may bring an
  action for discovery. A discovery action allows a party to explore the strength of a case without
  subjecting the party to the potential penalties associated with frivolous lawsuits.

  R.C. § 2721.01 et. seq.
  Declaratory Judgment Actions
  This section allows parties to file suit to have the court determine the validity of a contract and/or
  the rights of the parties under the contract. This is the most effective tool for resolving disputes
  on the availability or amount of insurance coverage available.
  Effective September 24, 1999, a plaintiff who is not an insured under a policy cannot bring a
  declaratory judgment action against a third party’s insurer to determine if coverage is available

for a claim until or unless a final judgment has been placed of record awarding the plaintiff
damages against the insured.

           C. Uninsured Motorist Coverage

R.C. § 3937.18
UM/UIM Coverage
(A) Effective October 31, 2001, an insurer no longer has a duty to offer UM/UIM coverage to
    its insured with the sale of a policy. As a result, there will no longer be any requirement that
    a rejection or reduction in coverage be in writing.
(A) UIM coverage is not excess coverage.
(G) Insurers may preclude both inter-family and intra-family stacking in their policies.
(H) On wrongful death claims, any claim for a single death is subject to the per person limit on
(H) An insured has a three year statute of limitations to assert a UM/UIM claim, assuming they
    did not destroy the insurer’s right of subrogation.
(K) A vehicle available for the regular use of the insured, a family member, or a fellow
    household member can be deemed an uninsured vehicle.
(L) These requirements only apply to policies meeting the financial responsibility requirements
    or to umbrella policies.

R.C. § 3937.44
Per Person Limits
For both liability and UM/UIM coverages, only the person limit is available for recovery for
each person suffering a bodily injury or for each decedent.

           D. Statutory Subrogation Rights

R.C. § 2744.05
Immunity of Political Subdivisions to Subrogation Claims
Political subdivisions are immune to any subrogation claim brought by an insurer.

R.C. § 3937.18 (E)
UM/UIM Claims
In the event of payment to an insured for an uninsured/underinsured motorist claim, the insurer
making such payment is entitled to the proceeds of any settlement or judgment resulting from the
exercise of the insured’s rights against a legally liable party. This right is limited by relevant
insolvency proceedings.

R.C. § 3937.21
If an insurance company pays to or on behalf of its insured any amount later determined to be
due from another insurer, it shall be subrogated to all rights of the insured against such insurer.

R.C. § 4123.93
Workers’ Compensation Subrogation Rights
This statute became effective April 9, 2003, and therefore applies only to injuries occurring on or
after that date. It restores subrogation rights of the Ohio Bureau of Workers’ Compensation and
self-insured employers. For claims where the injury occurred prior to April 9, 2003, there is no
right of subrogation.
Employees now must notify the lienholder if there is a third-party who is responsible for their
injuries so that there is a reasonable opportunity to assert their subrogation rights. Responsible
parties include UM/UIM insurers.
If an employee is not made whole, then the statute prescribes a formula for pro-rata distribution
of any recovery between the employee and lienholder.
If there is the potential for future payments by the lienholder, a portion of the recovery is to be
put in an interest bearing trust account to protect any future lien.

           E. Liability and Damages Considerations

R.C. § 2315.18
Caps on Compensatory Damages
This statute took effect in April, 2005.

There is no cap on economic damages. Non-economic damages are capped at $250,000.00 or
three times the amount of the economic damages, with an absolute maximum of $350,000.00 per
plaintiff or $500,000.00 per occurrence. Exceptions are recognized for certain types of profound
and catastrophic injuries. These caps do not pertain to claims against governmental entities,
which are governed by Chapter 27.

R.C. § 2315.19
Comparative Fault
A plaintiff’s recovery is reduced in proportion to their percentage of comparative fault. If a
plaintiff is 51% or more at fault, they are barred from recovery.
For injuries occurring prior to April 8, 2003, there is joint and several liability among joint
tortfeasors for economic damages. For non-economic damages there is only several liability
among joint tortfeasors. If the injury occurred on or after April 8, 2003, R.C. 2307.22 is
applicable instead.

R.C. § 2307.22
Allocation of Damages
This statute only applies to claims where the injury occurred on or after April 8, 2003. If there
are multiple defendants at fault, any defendant who is more than 50% at fault is subject to joint
and several liability for the plaintiff’s economic damages. All other at-fault defendants are liable
only to the proportionate extent of their liability. All at-fault defendants are only proportionally
liable for non-economic damages.
If there are multiple defendants at fault, and no one defendant is more than 50% at fault, then the
at fault defendants are liable only to the proportionate extent of their liability for both economic
and non-economic damages. The only exception exists for intentional tortfeasors, who are still
subject to joint and several liability for economic damages.

R.C. § 2307.32
Enforcement of Contribution
This statute only applies to claims where the injury occurred prior to April 8, 2003. If the injury
occurred on or after that date, R.C. § 2307.25 is applicable instead.
A party has one year from the date of judgment against it to seek contribution from joint
If the party settles a claim without a judgment, that party has one year from the date of settlement
in which to seek contribution.
A party who enters into a good faith settlement with a plaintiff or claimant for only a portion of
the plaintiff’s damages is immune to claims for contribution from other tortfeasors. The release
of claims bars any contribution claims of joint tortfeasors made either before or after the date of

R.C. § 2307.25
Right of Contribution
This statute only applies to claims where the injury occurred on or after April 8, 2003. A right of
contribution will exist only if two or more tortfeasors are subject to joint and several liability.

R.C. § 2307.28
Set-offs for Damages
This statute only applies to claims where the injury occurred on or after April 8, 2003. A non-
settling defendant is entitled to a set-off from any award of damages from what a plaintiff has
already recovered from any settling party. This right exists even if the settling party is not found
to be liable. This overrules Fidleholtz v. Peller (1998), 81 Ohio St. 3d 197, which required a
finding the settling party was liable before a set-off could be imposed.

R.C. § 2307.711
Comparative Fault in Product Liability Actions
Assumption of risk is a defense in product liability claims. Depending upon the nature of the
assumption of risk, it can be an absolute bar to a plaintiff’s recovery, without any comparative
fault analysis, or any service proportionate basis for reducing damages and liability. This statute
took effect in April, 2005.

R.C. § 2125.01 et. seq.
Wrongful Death Actions
A wrongful death action can only be brought by the executor or administrator of the decedent’s
The decedent’s surviving spouse, parents, and children are rebuttably presumed to have been
damaged by the death.
All other family members must prove their entitlement to damages.

R.C. § 2317.02
Waiver of Physician-Patient Privilege
By filing a tort action, a plaintiff waives any physician-patient privilege and the defendant is
entitled to obtain the entirety of the plaintiff’s medical records.

R.C. § 2745.11
Workplace Substantial Certainty Torts
This statute took effect April 7, 2005. It reflects the latest legislative effort to codify workplace
substantial certainty torts. An employee making such a claim must now either prove the
employer intended to injure them, or that the employer acted with the belief that injury was
substantially certain to occur. Substantial certainty is considered a deliberate intent to cause
injury, disease or death. The statute goes on to provide that the deliberate removal of a safety
guard or any misrepresentation of a toxic or hazardous substance creates a rebuttable
presumption of an intent to injure.

R.C. § 4123.741
Fellow Employee Tort Immunity
An employee may not bring suit against an employer or fellow employee for injuries sustained as
a result of the negligence of the employer or fellow employee.
The injury must have occurred within the scope and course of employment and be compensable
under Workers’ Compensation laws.
The statutory immunity does not apply to intentional torts.

R.C. § 2315.21
Punitive or Exemplary Damages
Effective April, 2005, a defendant now has an absolute right to bifurcate a trial on a punitive
damage claim.
Punitive damages are capped at one to two times the amount of any compensatory damage
award. In the case of a small employer or private individual, punitive damages are capped at two
(2) times the amount of damages or ten percent of their net worth.

R.C. § 4513.263
Seatbelt Defense
This statute became effective April, 2005. A defendant may now interject evidence the plaintiff
failed to wear a seatbelt. This evidence is not admissible for the purposes of establishing liability,
but can be utilized to establish a plaintiff’s injuries would not have occurred or not have been as
severe, had a seatbelt been worn.

           F. Insurance Fraud

R.C. § 2913.47(B) (1)
Presenting Fraudulent Claims
A person commits insurance fraud if, while acting with purpose to defraud or knowing the
person is facilitating a fraud, the person presents or causes to be presented any written or oral
statement that is part or in support of an application for insurance or a claim for a benefit under a
policy of insurance, knowing the statement, in whole or in part, is false or deceptive.

R.C. § 2913.47(B) (2)
Fraud in the Application or Claim for Insurance
It is illegal to assist, aid, abet, solicit, procure, or conspire with another to prepare or make any
written or oral statement intended to be presented to an insurer as part or in support of an
application for insurance or a claim for a benefit under a policy of insurance, knowing the
statement, in whole or in part, is false or deceptive.

R.C. § 2913.47(C)
First Degree Misdemeanor—Fraudulent claims in an amount less than $500.00.
Fifth Degree Felony—Fraudulent claims between $500.00 and $4,999.99.
Fourth Degree Felony—Fraudulent claims between $5,000.00 and $99,999.99.
Third Degree Felony—Fraudulent claims of $100,000.00 or more.

R.C. § 3904.13
Disclosure of Personal or Privileged Information by an Insurance Carrier
An insurer is prohibited from disclosing any personal or privileged information about an
individual collected or received in connection with an insurance transaction, unless the
disclosure is necessary for detecting or preventing criminal activity, fraud, material
misrepresentation, or a material non-disclosure in connection with an insurance action.
Disclosed information must be limited to that which is reasonably necessary to detect or prevent
criminal activity, fraud, material misrepresentation, or a material non-disclosure in connection
with insurance transactions.
When the above conditions are met, disclosure may be made to law enforcement or other
governmental agencies to protect the interest of the insurer in preventing and/or prosecuting
fraudulent claims, or if the insurer reasonably believes illegal activities have already been
conducted by the individual.

R.C. § 3904.01(T) and § 3904.03
Pretext Interviews
A “pretext interview,” as defined in R.C. §3904.01(T), is an interview whereby a person, in an
attempt to obtain information about a natural person, performs one or more of the following:
    (1) Pretends to be someone else;
    (2) Pretends to represent another entity;
    (3) Misrepresents the true purpose of the interview;
    (4) Refuses to identify himself/herself.
An insurer is generally prohibited from using pretext interviews to obtain information in
connection with an insurance transaction; however, a pretext interview may be undertaken to
obtain information for the purpose of investigating suspected criminal activity, fraud, material
misrepresentation, or a material non-disclosure in connection with an insurance claim.

R.C. § 3911.06
False Answer in Application for Insurance
An insurer is prohibited from denying recovery under a policy of insurance on the basis the
applicant gave false answers in his application, unless it is proved the answer was willfully false,
fraudulently made, material, and induced the company to issue the policy.
The agent or insurance company must have no prior knowledge of the application’s falsity or
fraudulent nature prior to issuing the policy of insurance.

R.C. § 3937.42 and § 3937.99
Exchange of Information with Law Enforcement and Prosecuting Agencies
An insurer has a legal obligation to notify law enforcement authorities when it has reason to
suspect its insured has submitted a fraudulent motor vehicle claim.
Failure to notify the proper authorities constitutes a fourth degree misdemeanor.

R.C. § 3999.21
Insurance Fraud Warnings
All application and claim forms issued by an insurer must contain the following warning: Any
person who, with intent to defraud or knowing he is facilitating a fraud against an insurer,
submits an application or files a claim containing a false or deceptive statement is guilty of
insurance fraud.
Failure to include the warning is not a valid defense for insurance fraud.

R.C. § 3999.41
Anti-Fraud Programs
Every insurer is now required to adopt a written anti-fraud program. This program must include
procedures for detecting insurance fraud.
Additionally, this program is to identify the person(s) responsible for the anti-fraud program.
Those not yet engaged in the business of insurance must submit a written plan within 90 days
after beginning to engage in the business of selling insurance.

R.C. § 3999.42
Notice to Department of Insurance of Suspected Fraud
Requires an insurer to notify the Department of Insurance whenever it suspects insurance fraud
(as established in the Theft Fraud Law under R.C. §3917.47) involving a claim of $1,000 or

R.C. § 3905.49(A) (13) and § 3905.491
Insurance Agents and Solicitors Must Report Felony Convictions to the Superintendent
Requires licensed insurance agents or solicitors convicted of felonies to report the convictions to
the Superintendent of Insurance within 30 days of the judgment or conviction entry date.


  K.R.S. § 304.39–045
  Excluded Operators in Insurance Policies
  An insurer and its named insured may agree to exclude certain drivers from coverage as an
  operator of the insured vehicle. The names of the excluded persons must be set forth in the policy
  or in an endorsement signed by all parties.

  K.R.S. § 304.39–050
  Duty to Provide Primary No-Fault Coverage
  The duty to provide primary no-fault coverage falls on the insurer of the vehicle occupied by the
  claimant at the time of the accident.

  K.R.S. § 304.39–110
  Minimum Automobile Liability Coverage
  Bodily injury liability limits of $25,000 per person, $50,000 per occurrence and $10,000 for
  damage or destruction of property per accident. Alternatively, a policy can provide a single limit
  liability coverage of $60,000 for all damages.

  K.R.S. § 304.39–241
  Claimant’s Right to Allocate PIP Payments
  A no-fault claimant has the right to direct how those payments are to be allocated. In other
  words, they can determine what portion of the available funds may be used to compensate them
  for lost wages as compared to medical expenses. A savvy claimant can use this provision in
  conjunction with health insurance coverage to maximize their recovery.

  K.R.S. § 304.39–270
  Independent Medical Examinations on No-Fault Claims
  An insurer has a right to request an independent medical examination of a no-fault claimant.

  K.R.S. § 304.39–280
  Claimant’s Duty to Disclose Information
  A claimant has a duty to provide the no-fault insurer with complete medical documentation of
  the claim. The claimant also has a duty to give authorization to the insurer to inspect and copy
  relevant medical records.

  K.R.S. § 411.82
  Apportionment of Fault
  In cases involving more than one wrongdoer, including third-party defendants or parties who
  have already been released from the case, the degree of fault of the remaining defendants are to
  be considered proportionally with that of the other parties.

K.R.S. § 381.232
Duty to Trespassers
The owner of real estate is not ordinarily liable to injured trespassers unless the injuries were
intentionally caused by the owner or someone acting on their behalf.

K.R.S. § 411.148
Good Samaritan Act
Any physician, nurse, or other medical professional who provides emergency medical treatment
shall not be held liable in a civil action for damages unless it can be shown they engaged in
willful and wanton misconduct.

K.R.S. § 304.47-080
Special Investigative Units
Every insurer licensed to transact business in Kentucky must have a special investigative unit to
investigate possible insurance fraud. This unit can be comprised either of employees of the
insurer or by others specifically contracted by the insurer for this purpose.

K.R.S. § 304.47-060
Informant Immunity
Absent a finding of malice, fraud, or gross negligence, a person will not be subject to civil
liability for making a report or providing information regarding a suspected claim of insurance

K.R.S. § 413.241
Liability of Servers and Sellers of Alcohol
One who serves or sells alcoholic beverages is liable to those who suffer injuries off of the
premises only if it can be shown at the time of serving or sale a reasonable person under similar
circumstances should have known the person served or sold to was intoxicated.


            A. Automobile Insurance

 I.C. § 9-25-2-3
 Financial Responsibility
 Requires insurance in the following amounts:
 (1) $25,000 per person;
 (2) $50,000 per accident; and
 (3) $10,000 property coverage per accident.

 I.C. § 27-7-5-2(a)
 UM/UIM Coverage
 Requires insurers to offer UM/UIM coverage with every bodily injury liability policy of
 insurance in an amount not less than $50,000 or the limit of liability insurance, whichever is
 greater and can only be rejected in writing.

 I.C. § 27-7-5-4(a)
 Uninsured Motor Vehicles
 An uninsured motor vehicle is one without liability insurance or not otherwise with the financial
 responsibility requirements of such laws of this or another state or where the insurer is unable to
 make payments to the limit of liability due to insolvency.

 I.C. § 27-7-5-4(b)
 Underinsured Motor Vehicles
 An underinsured motor vehicle is one where the limits of coverage available for payment to the
 insured under all bodily injury liability policies covering persons liable to the insured are less
 than the limits of the insured’s underinsured motorist coverage.

            B. Negligence, Other Torts and Contribution

 I.C. § 34-51-2-2
 Comparative Fault of Governmental Subdivisions
 Contributory negligence remains a complete defense to claims under the Tort Claims Act.

 I.C. § 34-51-2-5
 Comparative Fault Set-off
 Contributory fault of a claimant acts to proportionately reduce the total damages for an injury by
 the claimant’s contributory fault.

I.C. § 34-51-2-6
Contributory Negligence as Complete Defense
Contributory negligence is a complete defense if a claimant’s contributory fault is greater than
the fault of all other persons whose fault proximately contributed to the claimant’s damages.

I.C. § 34-51-2-10
Intentional Torts
A plaintiff may recover 100% of the compensatory damages in a civil action for an intentional
tort from a defendant who was convicted after a prosecution based on the same evidence.

I.C. § 34-51-2-12
Contribution and Indemnity
In an action under this chapter, there is no right of contribution among tortfeasors. The right of
indemnity is unaffected by this section.

I.C. § 34-51-2-14
Nonparty Defense
In an action based on fault, a defendant may assert that the damages of the claimant were caused
in full or in part by a nonparty.

I.C. § 34-51-2-15
Nonparty Defense
The burden of proving a nonparty defense is upon the defendant who must affirmatively plead
the defense.

I.C. § 34-51-2-16
Nonparty Defense
A nonparty defense must be pled if known. Nonparty defenses which become known must be
raised with reasonable promptness. If the summons and complaint was served more than 150
days prior to the expiration of the claimant’s statute of limitations, nonparty defenses must be
pled no later than 45 days prior to the expiration of that limitation of action; however, the trial
court may alter these time limits to allow defendants a reasonable opportunity to discover the
existence of a nonparty defense and allow the claimant a reasonable opportunity to add the
nonparty as an additional defendant prior to the expiration of the period of limitations applicable
to the claim.

I.C. § 34-20-1-1
Products Liability Actions
The article governs all actions that are brought by a user or consumer against a manufacturer or
seller for physical harm caused by a product regardless of the substantive legal theory or theories
upon which the action is brought.

I.C. § 34-20-2-1
Product Liability
Liability exists for an unreasonably dangerous or defective product if seller should reasonably
foresee the consumer or class of persons being exposed to the harm caused by the defective
condition, the seller is engaged in the business of selling the product and it reaches the user or
consumer without substantial alteration.

I.C. § 34-20-2-2
Products Liability
An action can be maintained even though reasonable care was used in the manufacture and
preparation of the product and there is no privity of contract. However, reasonable care is a
defense to design defect claims and those for failure to provide adequate warnings.

I.C. § 34-20-2-3
Strict Product Liability
An action for strict product liability for a unreasonably dangerous defective condition may only
be brought against the manufacturer.

I.C. § 34-20-2-4
Product Manufacturers
If a court cannot gain jurisdiction over a manufacturer, then the manufacturer’s principal
distributor or seller who the court can gain jurisdiction will be deemed the manufacturer of the

I.C. § 34-20-9-1
Indemnity in Product Liability Actions
A party held liable may seek indemnity from other persons whose actual fault caused the product
to be defective.

I.C. § 34-23-1-1
Wrongful Death
Requires an action in wrongful death to be maintained by the personal representative of the
decedent and to have been able to have been prosecuted by the decedent had the decedent lived.

I.C. § 34-23-1-2(d)
Limitation of Certain Wrongful Death Damages
The type of damages in subsection (c)(3)(A) (reasonable medical, hospital, funeral and burial
expenses) are limited to $300,000.

            C. Subrogation

I.C. § 34-51-2-19
Lien Reduction
Subrogation claims or other liens or claims arising out of the payment of medical expenses or
other benefits as the result of personal injuries or death shall be diminished by the claimant’s
comparative fault or the uncollectibility of the full value of the claim resulting from limited
liability insurance or any other cause in the same proportion as the claimant’s recovery is
reduced. The lien or claim shall also bear a pro rata share of the claimant’s attorney fees and
litigation expenses.

I.C. § 27-7-5-6(a)
Subrogation for UM/UIM Payments
Provides that payment of UM/UIM coverage for damages operates to subrogate the insurer to
any cause of action in tort which payee may have.

I.C. § 27-7-5-6(b)
Exception to the Right of Subrogation for UIM Payments
The insurer providing underinsured motorist coverage does not have the right of subrogation if it
is informed of a bona fide offer of settlement which includes a certification of the liability
coverage limits of the underinsured motorist and the insurer fails to advance payment in at least
the amount of the offer within 30 days.

           D. Insurance Fraud

I.C. § 27-2-3-2
Arson Reporting
When requested by an authorized agency charged with the responsibility of investigating a fire
loss, an insurer shall furnish information to the agency consisting of any and all relevant
information or evidence considered important to the authorized agency. This includes but is not
limited to any and all policy information, policy premium payment records, history of prior
claims made by the insured, any material relating to the investigation of the loss including
statements, proof of loss, or other relevant evidence.

I.C. § 27-2-13-3
Arson Reporting
When an insurer has reason to believe a fire loss in which it has an interest is caused by a means
that was not accidental, then the company shall notify an authorized agency in writing and
provide that agency with all materials developed from the insurer’s investigation of the fire loss.
The insurer shall also provide the office of the state fire marshal a copy of any information
provided under this section.

I.C. § 27-2-13-4
Arson Reporting
When an authorized agency receives information under this chapter, it may release or provide the
same information to any other authorized agency to further its investigation. In addition, an
insurer who provides information under this chapter has the reciprocal right to request and
receive relevant information from that agency. Finally, an insurer or authorized agency who
releases or provides evidence or information under this chapter is immune from any civil or
criminal liability for providing the evidence or information.

I.C. § 27-2-13-5
Arson Reporting
When an authorized agency is investigating a fire that it believes to have been caused by arson it
may, in writing, order an insurer to withhold payment of any policy proceeds on the damaged or
destroyed property for up to thirty (30) days from the date of the order. The insurer may not
make a payment during that time, except as follows:

   1.   Emergency living expenses;
   2.   Emergency action necessary to secure the premises;
   3.   To prevent further damage to the premises; or,
   4.   To a mortgagee who is not the target of the investigation of the authorized agency.

I.C. § 27-2-14-2
Vehicle Theft Reporting
If an insurer has reason to believe that a vehicle theft claim made by an insured is fraudulent, the
insurer shall notify, in writing, an authorized agency of the suspected fraudulent claim and
provide the agency with all materials developed from the insurer’s investigation.

I.C. § 27-2-14-3
Vehicle Theft Reporting
An authorized agency investigating a vehicle theft may, in writing, require an insurer
investigating the loss to release any and all relevant information or evidence considered
important to the authorized agency, including:

   1.   Pertinent policy information (including a policy application);
   2.   Policy premium payment records;
   3.   History of prior claims made by the insured;
   4.   Material relating to the investigation, including:
        A. Statements;
        B. Proofs of Loss;
        C. Other relevant evidence.

I.C. § 27-2-14-4
Vehicle Theft Reporting
An authorized agency provided with information under this chapter may release or provide the
same information to any other authorized agency to further its investigation. In addition, an
insurer who provides information under this section has the reciprocal right to request and
receive relevant information from that agency. When requested, the agency shall provide the
requested information within a reasonable time, not exceeding thirty (30) days. Finally, an
insurer or authorized agency that releases or provides evidence or other information under this
chapter is immune from civil or criminal liability for providing that information.

I.C. § 27-2-16-3
Claim Forms
All preprinted claim forms required by an insurer as a condition of payment of a claim must
contain a statement which clearly states the following: “A person who knowingly and with intent
to defraud an insurer files a statement of claim containing any false, incomplete, or misleading
information commits a felony.”

           E. Other

I.C. § 34-14-1-1
Declaratory Judgment
A court may declare rights, status and other legal relations whether or not further relief is or
could be claimed.

I.C. § 34-14-1-2
Declaratory Judgment
A person interested under a deed, will, written contract or other writings or whose rights, status,
or other legal relations are affected by a statute, municipal ordinance, contract or franchise may
have questions of construction or validity determined or obtain a declaration of rights, status or
legal relations thereunder.

I.C. § 34-50-1-4
Qualified Settlement Offer
This is essentially a codification of the Trial Rule 68 Offer of Judgment. When a qualified
settlement offer is made pursuant to this statute, and not accepted, then the party rejecting the
offer must ultimately obtain a more favorable judgment. If the rejecting party fails to obtain a
more favorable judgment the offering party is entitled to attorney’s fees, costs, and expenses in
an amount not to exceed $1,000.00. To be valid, a qualified settlement offer must:

   1. Be in writing;
   2. Be signed by the offeror or the offeror’s attorney;
   3. Be designated on its face as a “qualified settlement offer;”
   4. Be delivered to each recipient or the recipient’s attorney by:
      A.     Registered or certified mail; or
      B.     Any other method that verifies the date of receipt.
   5. Set forth the complete terms of the settlement proposal in sufficient detail to allow the
      recipient to decide whether to accept or reject it;
   6. Include the name and address of the offeror and the offeror’s attorney; and,
   7. Expressly revoke all prior qualified settlement offers made by the offeror to the recipient.


   Claim Type/Section     Statute Period
   Assault and Battery    One year from date of assault or battery. If the identity of the         O
   R.C. § 2305.11.1       person committing the assault or battery is unknown, the statute         N
                          of limitations begins on the date plaintiff either learns the identity   E
                          of the person or should have learned the identity of the person,
                          whichever comes first.                                                   Y
                          One year from the date of the malpractice incident. If the act of        R
   Medical Malpractice
   R.C. § 2305.11         medical malpractice is not discoverable within one year, the
                          plaintiff has one year from the date plaintiff knew or should have
                          known of the malpractice, not to exceed four years from the date
                          of malpractice.

   Claim Type/Section     Statute Period
   Bodily Injury Due to   Two years from date of incident.                                         T
   Negligence                                                                                      W
   R.C. § 2305.10                                                                                  O

   Wrongful Death         Two years from date of death.                                            E
   R.C. § 2125.02                                                                                  A
   Personal Property      Two years from date of incident.
   Damage Due to
   R.C. § 2305.10

   Product Liability      Two years from the date of injury.
   R.C. §2305.10

Claim Type/Section          Statute Period
UM/UIM Claims               Three years from the date of the accident. If the wrongdoer’s     T
R.C. § 3937.18              insurer becomes insolvent, then the plaintiff has one year from   H
                            the date of insolvency to make the UM/UIM claim, even if it is    R
                            more than three years after the accident.                         E


Claim Type/Section          Statute Period
Intentional Infliction of   Four years from date of incident.                                 F
Emotional Distress                                                                            O
R.C. § 2305.09                                                                                U

Damage to Real Estate       Four years after the cause.                                       Y
R.C. § 2305.09                                                                                E
Fraud                       Four years from occurrence of the alleged act of bad faith.       S
R.C. § 2305.09

Breach of Covenant to       Four years from the date inadequate insurance is discovered.
Provide Adequate
R.C. § 2305.09

Claim Type/Section       Statute Period
Appeals                  Unless otherwise provided by law, 30 days after the entry of the        O
R.C. § 2305.10           judgment or appealable order, whichever comes last. In a civil          T
                         case, 30 days after service of notice of judgment and its entry.        H
Statutorily Created      A liability created by statute, other than forfeiture or penalty,
Actions                  must be brought within six years of the date the claim arose.
R.C. § 2305.07

Breach of Contracts      Six years from the date plaintiff’s claim first arose.
Not in Writing
R.C. § 2305.07

Breach of Contracts in   Fifteen years from the date of the breach, unless there is a specific
Writing                  provision in the contract allowing for a shorter period.
R.C. § 2305.07

Minor’s Claims -         The limitation period for any minor’s claim does not begin until
Claims of Incompetent    the minor reaches age 18. If a plaintiff is incompetent when
Persons                  injured, the limitation period does not begin until plaintiff is
R.C. § 2305.16           found competent.


   Claim Type/Section      Statute Period
   Assault and Battery     One year from date of assault and battery.                         O
   K.R.S. § 413.140                                                                           N

   Bodily Injury Claims    One year from the date of injury. This statute applies to          Y
   Other than from         injuries caused by acts of negligence as well as those caused      E
   Automobile Accidents    by intentional acts. This statute does not apply to bodily         A
   K.R.S. § 413.140        injuries stemming from automobile accidents.                       R

   Loss of Consortium      One year from the date of the incident.
   K.R.S. § 413.140

   Medical Malpractice     One year from the time the injury is first discovered or in the
   K.R.S. § 413.140        exercise of reasonable care should have been discovered. Any
                           action must still be commenced within five years from the
                           date the alleged act of negligence occurred.

   Malicious Prosecution   One year from the date of the incident.
   K.R.S. § 413.140

   Libel, Defamation, or   One year from the date of the incident.
   K.R.S. § 413.140

                           If a person dies before the expiration of the applicable statute
   Wrongful Death
   K.R.S. § 413.180        of limitations the action may still be brought by their personal
                           representative so long as it is commenced within one year of
                           the appointment of the representative.

Claim Type/Section          Statute Period
Bodily Injuries from        Two years from the date of the accident or two years from the    T
Automobile Accident         date of the last no-fault payment. Survivors and beneficiaries   W
K.R.S. § 304.39–230         of a decedent have two years to make a claim for wrongful        O
Damage to Personal          Two years from the date of injury or damage.
Property                                                                                     S
K.R.S. § 413.125

Claim Type/Section          Statute Period
Breach of Contracts         Five years from the date the contract was breached.              F
Not in Writing                                                                               I
K.R.S. § 2305.10                                                                             V

Trespass on Real or         Five years from the date of injury or damage.                    Y
Personal Property                                                                            E
K.R.S. § 413.120                                                                             A
Fraud                       Five years from the date the fraud was discovered, but per
K.R.S. § 413.120            K.R.S.§413.130 no more than ten years after the date the
                            fraud was perpetuated.

Intentional Infliction of   Five years from the date of the incident.
Emotional Distress
K.R.S. § 413.120

Bodily Injury Claims        This cause of action accrues at the time of original occupancy
Against the Builder of      of the home, or occupancy after the improvements in question
a Home or a Person          were made.
Making Improvements
to a Home
K.R.S. § 413.120

                            This applies to all claims for liability based upon a statute
Statutory Claims
K.R.S. §413/120             where no statute of limitations is provided by statute.

Claim Type/Section     Statute Period
Breach of Written      Fifteen years from the date of the breach.                         O
Contracts                                                                                 T
K.R.S. § 413.090                                                                          H
                       The statute of limitations does not begin to run until the minor   E
Claims of Minors and                                                                      R
                       reaches the age of majority or the incompetent plaintiff
K.R.S. § 413.170       becomes competent.


    Claim Type/Section    Statute Period
    Employment            Except those based upon a written contract, within two years of        T
    I.C. § 34-11-2-1      the date of the act or omission complained of.                         W

    Medical Malpractice   Within two years from the date of the act, omission or neglect         Y
    I.C. § 34-11-2-3      complained of.
    Personal Injury and   Within two years after the cause of action arises.
    Injury to Character
    I.C. § 34-11-2-4(2)

    Products Liability    Within two years after the cause of action accrues; or not more
    I.C. § 34-20-3-1(b)   than ten years after the delivery of the product to the initial user
                          or consumer. However, if the cause of action accrues at least
                          eight years but less than ten years after that initial delivery, the
                          action may be commenced at any time two years after the
                          cause of action accrues.

    Wrongful Death        Within two years after death of the decedent.
    I.C. § 34-23-1-1

Claim Type/Section        Statute Period
Accounts and              Within six years after the cause of action accrues.   S
Contracts Not in                                                                I
Writing                                                                         X
I.C. § 34-11-2-7(1)
Other Property            Within six years after the cause of action accrues.   A
Damage                                                                          R
I.C. § 34-11-2-7(3)                                                             S

Fraud                     Within six years after the cause of action accrues.
I.C. § 34-11-2-7(4)

Claim Type/Section        Statute Period
Written Contracts for     Within ten years after the cause of action accrues.   T
the Payment of Money                                                            E
I.C. § 34-11-2-9                                                                N

Written Contracts with    Within ten years after the cause of action accrues.   E
an Interest in Land                                                             A
I.C. § 34-11-2-11                                                               R

Written Contracts other   Within ten years after the cause of action accrues.
Than for the Payment
of Money
I.C. § 34-11-2-11

Any Other Cause of        Ten years from when the cause of action arises.
Action Not Limited by
Another Statute
I.C. § 34-11-1-2

Claim Type/Section   Statute Period
Judgments            All judgments and decrees of any court shall be considered   T
I.C. § 34-11-2-12    satisfied after the expiration of twenty years.              W


Claim Type/Section   Statute Period
Answers Trial Rule   Twenty days after service of the pleading.                   O
6(C)                                                                              T
Appeals App. Rule    Within thirty days after entry of judgment.                  E
9A.(1)                                                                            R

             A.     Insurance Coverage Decisions

  Pilkington N. Am., Inc. v. Travelers Casualty and Surety Co., 112 Ohio St. 3d 482, 1 2006-Ohio-
  CGL Insurance and Assigned Rights
  In 1986 Pilkington acquired both the assets and liabilities of LOF Glass. Subsequently
  environmental claims were asserted against LOF Glass, and Pilkington sought coverage under
  the prior CGL policy’s issued to LOF Glass. The United States District Court for the Northern
  District of Ohio certified three questions for the Ohio Supreme Court to consider and answer.

  The first question was whether Pilkington’s claims, for the purposes of coverage, arose at the
  time of the alleged pollution occurrence, or at the time of the 1986 transaction, or only after the
  amount of their claim for defense and indemnification had been reduced to a sum certain. The
  Supreme Court held that the policies in question were occurrence policies, and that accordingly
  Pilkington’s rights under the policies arose at the time of the covered loss.

  The second issue was whether the language in each of the policies prohibiting assignment of any
  interest under the policy without the insurers’ consent applied. The Supreme Court declined to
  address this issue directly, but seems to indicate where the covered loss had already occurred
  prior to the attempt to transfer, they would likely permit such a transfer of rights.

  The third and final question was whether when a loss occurs before liability is transferred to a
  successor corporation, whether coverage arises by operation of law as a result. The Supreme
  Court concluded coverage would not arise by operation of law when the liability was assumed by

  Glidden Co. v. Lumbermans Mutual Casualty Co., 112 Ohio St. 3d 470, 2 2006-Ohio-6553
  Insurance Coverage – Conflict of Law
  This suit involved a declaratory judgment action pertaining to coverage for paint manufacturers
  on lead claims. An issue arose as to whether Ohio law or New York law should be applied.
  Legitimate arguments could be made for the application of either state’s law. The Supreme
  Court held it was not error for the lower court to apply Ohio law, as legal authority in Ohio
  addressing the specific coverage issues presented, whereas there was no law in New York
  addressing those issues. The Supreme Court determined it was unnecessary to go through any
  choice of law analysis as there was no conflict between Ohio law and New York law, as Ohio
  law expressly addressed the issue, and New York law did not.

  Sharonville v. American Employers Ins. Co., 109 Ohio St. 3d 186, 2006-Ohio-2180
  Duty to Defend
  This suit alleged police personnel were involved in a conspiracy to cover up evidence from
  twenty year old homicide cases. The City of Sharonville brought a declaratory judgment action

      As of the date of printing, a final case citation has not been issued by the Supreme Court.
      As of the date of printing, a final case citation has not been issued by the Supreme Court.

against all its insurers for a twenty-three year period. There were two types of insurance
involved-general liability insurance and law enforcement liability insurance. The Supreme Court
held the general liability insurers had no duty to defend either the municipality or the officers for
alleged misconduct. The Supreme Court also held the law enforcement liability insurers did owe
coverage for several reasons. First, the civil rights violations alleged met the policy’s definition
of “personal injury.” Second, the Supreme Court rejected an argument that the alleged
misconduct constituted “a willful violation of a penal statute or ordinance.” Finally, the Supreme
Court determined the claims were potentially an outgrowth of the officers’ duties.

Due to the passage of time, one of the insurers was unable to produce a copy of their policy
which was in effect for a particular year. The Supreme Court ruled where a policy has been lost
or destroyed, and no one acted in bad faith doing so, the terms and the conditions of the policy
can be established by a secondary evidence.

Westfield Ins. Co. v. Factfinder Marketing Research, Inc., 2006-Ohio-4380
Advertising Injury
This suit involved claims of trademark and trade dress infringement, along with the
misappropriation of trade secrets. The appellate court held the misappropriation of advertising
ideas or the style of doing business was covered under the advertising injury provisions of a CGL

Ash v. Grange Mutual Casualty Co., 2006-Ohio-5221
Innocent Spouse Rule
An insured dwelling was destroyed by a fire intentionally set by the insured husband. The
evidence was such that the wife was not involved in the arson. The appellate court held the
innocent spouse rule did not make coverage available to the wife, as the policy language was
specific in excluding coverage for the intentional act of any insured. Thus, the husband’s
intentional act was sufficient to preclude coverage for his wife.

Shrolucke v. Auglaize Farmers Co-Op, Inc., 2006-Ohio-604
Production of Claim File
Following an industrial accident a plaintiff’s attorney sought production of an insurer’s claim file
in order to obtain witness statements. The appellate court held the claim file was not
discoverable on a third-party claim, as the witness statements were protected as work doctrine
and/or prepared in anticipation of litigation. The court further noted the witnesses whose
statements were taken, were also available to be deposed in the civil action.

Unklesbay v. Fenwick, 2006-Ohio-2630
Production of Claim File
Plaintiff’s claims for bad faith were initially bifurcated from the underlying claims.
Subsequently the underlying claims settled, preserving the right to pursue the bad faith claim.
Plaintiff then sought production of the insurer’s claim file. The appellate court held even though
the underlying claims had been resolved, the trial court was still required to review the entirety
of the claim file in camera before any portion of it could be produced to plaintiff’s counsel.

Mundy v. Roy, 2006-Ohio-993
Bad Faith
This suit involved a claim where coverage was not disputed, and the only dispute was the value
of the claim for non-economic damages. Nevertheless, the appellate court held a bad faith claim
can still lie where the only dispute is simply as to a claim’s value, but only if there is no
reasonable basis for the insurer’s position.

State v. Shelton, 2006-Ohio-182
Bad Faith
The appellate court ruled a jury verdict in favor of an insurer on a bad faith claim was not against
the manifest weight of the evidence. The evidence at trial established the insured made material
misrepresentations to the insurer regarding the occupancy of the residence, as well as the extent
and value of the contents. The fact the insurer cancelled the policy shortly after the loss was
deemed inadmissible.

Personal Ins. Co. v. Lester, 2006-Ohio-5199
An insured failed to disclose a criminal conviction in the application for insurance. The
appellate court determined that this misrepresentation was material. The court further held the
representations in the application were incorporated into the policy. The policy also expressly
warned the insured misrepresentations could lead to the policy being voided. Based upon these
factors, the appellate court upheld the insurer’s voiding of the policy.

Appointe v. Seecharah, 2006-Ohio-938
Insured’s Duty to Cooperate
A landlord was sued for negligence by a tenant. During the pendency of the lawsuit the landlord
failed to appear for a deposition, attend trial, or respond to any communications from the insurer
or their retained defense counsel. The appellate court held this prejudice was sufficient to breach
the policy and preclude coverage for the landlord.

Carter v. General Casualty Co. of Wisconsin, 2006-Ohio-822
Priority of Coverage
A customer rented a vehicle from a car dealer while their vehicle was being repaired. During the
rental period they had an accident with the dealer’s vehicle. The rental agreement provided the
driver’s personal coverage was primary, and that the dealer’s coverage would not apply. The
appellate court refused to enforce those provisions from the rental agreement, and held coverage
was available under the dealer’s policy. The court noted the rental agreement is not incorporated
into either policy of insurance, and that the existence of coverage was to be determined by the
insurance policy and not the rental contract. The court also noted no insurer was a party to the
rental contract.

Gigetakis v. Owners Ins. Co., 2006-Ohio-918
Statute of Limitations
This suit involved a first-party property claim. The policy had a one year statute of limitations.
In enforcing the limitations period, the court held the triggering date was the loss date, and not
the date of denial. This decision focused only on the triggering date relative to a contractual

Nationwide Mutual Ins. Co. v. Irish, 2006-Ohio-3227
Intentional Act Exclusions
Following a collision, Nationwide’s insured plead guilty to aggravated vehicular assault. In a
declaratory judgment action, the insurer argued the assault conviction barred coverage as a
matter of law under the policy’s intentional act exclusion. In a decision which is a minority view
in Ohio, the appellate court determined whether the assault conviction was sufficient to trigger
the exclusion was an issue for the jury to determine.

Allstate Ins. Co. v. Dolman, 2006-Ohio-4134
Sexual Abuse Claims
A woman was sued for negligence by a third-party, based upon her husband’s sexual abuse of
the third-party’s child. The suit alleged the wife was negligent for allowing the abuse to go on.
Allstate, the wife’s homeowner’s insurer, brought a declaratory judgment action. The appellate
court held even though the suit alleged negligence, there was still no coverage under the
homeowner’s policy based upon the exclusions for intentional acts and criminal acts. Any
negligence on the part of the wife stemmed from her husband’s intentional and criminal activity.

Essex Ins. Co. v. Mirage on the Water, Inc., 2006-Ohio-5023
Assault and Battery Exclusion
Plaintiff sued a bar, claiming she was injured by one of its bouncers. The insurer in turn brought
a declaratory judgment action, contending their policy’s assault and battery exclusion applied not
only to assaults and batteries committed by patrons, but also any assaults or batteries purportedly
committed by its insured’s employees. The appellate court upheld this exclusion and further
ruled it was not against public policy.

McGuffin v. Zaremba Contracting, 2006-Ohio-1734
Substantial Certainty Claims
An employer was sued by an employee’s estate following the collapse of a trench. In
considering a CGL policy, the appellate court ruled there was no coverage for the employer as
the intentional act exclusion was triggered. It was held the employer’s intent was inferred as a
matter of law on such a claim.

American National Property & Casualty Co. v. Morgenstern
Business Activities
This case involved a commercial auto policy in an accident where the insured was driving from
his home to his office, when he was involved in an accident. The appellate court determined the
commercial policy did not provide coverage as the insured was not in the course of his business
at the time of the accident as he was driving from home to his fixed places of employment.

Buyers v. Motorists Ins. Co., 2006-Ohio-5983
Business Activities
This suit stemmed from a first-party fire claim on a residential garage. The insured made a claim
under his homeowner’s policy. The insurer contended the homeowner’s policy’s exclusion for
business use precluded coverage. The appellate court disagreed as the evidence was the insured
only used the property occasionally to assemble or store satellite dish units for his installation
business. The analogy the court made was of someone engaged in another trade having parked
their vehicle in their garage overnight.

Auto-Owner’s Ins. Co. v. Bruce, 2006-Ohio-119
Business Exclusions
Auto-Owner’s issued a business auto policy. There was an accident involving an insured vehicle
while it was not being driven in connection with the insured’s business. The policy specifically
excluded coverage in such a scenario and the exclusion was enforced on appeal.

Progressive Preferred Ins. Co. v. Certain Underwriters at Lloyd’s of London, 2006-Ohio-1442
Automobile Exclusions
A resident of a nursing home fell out of a wheelchair while in a van owned by the nursing home,
and died as a result of their injuries. The van had been parked for approximately one hour when
the incident occurred. Progressive, the home’s auto insurer, brought a contribution action against
the nursing home’s general liability insurer. The home’s GL insurer argued their policy
excluded coverage for any claims stemming from the use of automobiles. The appellate court
held it was an issue of fact for a jury to consider as to whether such an exclusion applied.

Plum v. West American Ins. Co., 2006-Ohio-452
Trigger of Coverage
This suit involved allegations of a construction defect. The appellate court ruled that in
determining coverage, a continuous trigger was to be applied as the structure suffered ongoing
damage. The court specifically declined to apply a manifestation trigger.

Nationwide Mutual Ins. Co. v. Godwin, 2006-Ohio-4167
Nationwide’s insured struck multiple motorcyclists while driving. The issue presented on appeal
was whether this event constituted more than one occurrence. The appellate court found the
policy was ambiguous as to how it defined occurrence and therefore the collision with each
motorcycle was considered a separate occurrence.

Westfield Ins. Co. v. Coastal Group, Inc., 2006-Ohio-153
Construction Damages
A contractor was sued for defective workmanship and damages caused by their delay. The
appellate court held economic loss for the insured’s delay was not covered under the policy, as it
was a risk inherent in any construction contract. They went on to note it did not involve an
accident or any sort of physical damage.

Journeyman Professionals, Inc. v. American Family Ins. Co., 2006-Ohio-5624
Construction Damages
This declaratory judgment action stemmed from the collapse of a roof support constructed by the
insured, and which resulted in damage to a wall. The appellate court upheld summary judgment
for the insurer based upon an exclusion in the policy for damage to property arising from the
operations of the insured.

Harbor N., Inc. v. Great American Ins. Co., 2006-Ohio-5623
Finished Product Coverage
A boat maker brought a declaratory judgment action against its insurer, under its CGL policy on
the claim which arose when the mast of one of its boats collapsed while being sailed. The
appellate court upheld a ruling for the insurer, as the policy excluded coverage for losses
involving a completed product no longer on the insured’s premises, and which the insured had
completed its work on.

         B. UM/UIM Decisions

Hedges v. Nationwide Mutual Ins. Co., 109 Ohio St. 3d 70, 2006 Ohio 1926
Sexton/Moore Claims
The Supreme Court limited a claimant’s ability to bring a Sexton/Moore claim to only those
claims which arose prior to the enactment of House Bill 261 in 1997, which amended R.C.
3937.18. These types of claims are only available under the earlier versions of the statute.

Wayne Mutual Ins. Co. v. Bradley, 2006-Ohio-1517
Amount of Set-Off
The appellate court held a UM insurer could not reduce the amount of UM coverage available by
the amount it previously paid its insured on a medical payment claim. The rationale for this is
two different types of coverages were involved, involving the payment of separate premiums,
and therefore one coverage under the policy could not be used to limit or restrict another

Arn v. USAA, 2006-Ohio-3892
Rejection of Coverage
Prior to the Linko decision, plaintiff rejected coverage under their USAA policy. Subsequent to
Linko, R.C. 3937.18 was amended and abrogated Linko. Subsequent to those amendments, the
policy was renewed. The insured argued the rejection form they signed did not comply with the
Linko requirements, and therefore coverage was available by operation of law. The appellate
court rejected this contention, noting that by the time the policy was renewed, the Linko
requirements were no longer in existence.

Marron v. USAA, 2006-Ohio-2247
Rejection of Coverage
The appellate court held once a proper rejection of UM coverage was secured from an insured on
an umbrella policy, there was no duty to re-offer the coverage on subsequent renewals of the
policy where the policy stayed in effect and was not changed.

Davis v. Nationwide Mutual Fire Ins. Co., 2006-Ohio-306
Course and Scope of Employment
A school secretary was injured in an accident while driving home from an off-site evening
school event. This is an event she volunteered at and was not part of her job requirements. The
appellate court determined she was not within the course and scope of her employment, and
therefore was not entitled to coverage under her employer’s policy.

Wilson v. Maple, 2006-Ohio-3536
Course and Scope of Employment
A business’ employee was struck by a vehicle while directing traffic to help vehicles leave the
premises. The appellate court upheld the provision in the policy which excluded UM coverage
for bodily injuries to employees sustained during the course of their employment.

Kelly v. Auto-Owner’s Ins. Co., 2006-Ohio-3599
Intrafamily Claim
A husband was injured in an automobile accident as a result of his wife’s negligence. Their auto
policy’s liability coverage excluded claims brought by one family member against another. The
husband then tried to assert a UM claim under the policy. The appellate court held there was no
coverage under the policy as the UM coverage specifically provided there would be no coverage
for bodily injury caused by a person excluded from liability coverage under the policy.

Massari v. Motorists Mutual Ins. Co. 2006-Ohio-297
Other Owned Vehicles Exclusion
Motorists’ insured was injured while riding a motorcycle not listed on his business policy. The
appellate court upheld the policy’s other owned vehicles exclusion applied, and there was no UM
coverage for his claim.

         C. Employment Decisions

Groob v. Key Bank, 108 Ohio St.3d 346, 2006-Ohio-1189
Vicarious Liability

A bank was sued after a loan officer misappropriated information given to her by a customer, for
her personal financial gain. The customer had initially sought a business loan from the loan
officer. The loan officer denied the customer’s loan, and then pursued the business opportunity
she had learned of through the customer’s consultation. The Supreme Court held the bank was
not vicariously liable for the loan officer’s misconduct.

Ruggiero v. Nationwide Insurance Co., 2006-Ohio-808
Vicarious Liability of an Insurance Agent

Plaintiff sued Nationwide for the alleged negligence of their insurance agent. Nationwide
contended the agent was an independent contractor and therefore vicarious liability did not
apply. The appellate court rejected this argument, noting the agent was a captive agent, acting
solely on behalf of Nationwide. Accordingly Nationwide was vicariously liable for the acts and
omissions of the agent committed within the scope of their authority.

State Farm Mutual Auto Insurance Co. v. King, 2006-Ohio-336
Social Host Liability
An employer hosted an after work golf outing for its employees. Attendance at the event was
voluntary, and the event was limited to employees, and did not include customers or family
members. The employer paid for the food and a limited number of beers per employee. An
employee became intoxicated during the course of the evening and left the event with the
employer’s knowledge. The employee was involved in a serious motor vehicle accident. Suits
were brought against both the employer and the liquor permit holder at the golf course. The
appellate court held the employer was a social host, and therefore could not be held liable for
their employee’s intoxication. Also, the employee was not acting within in the course and scope
of his employment, as his attendance at the event was strictly voluntary, and he was not paid for
his time at the event. The appellate court also ruled in favor of the permit holder, noting the
permit holder simply provided the beer to the employer and did not serve it to the employees,
and therefore had no way of knowing if any of the employee were in fact intoxicated.

Bookwalter v. Prescott, 2006-Ohio-585
Vicarious Liability

An estate brought a wrongful death suit against a manufacturer and its customer for vicarious
liability for the negligence of the truck driver in delivering the manufacturer’s product to the
customer. The appellate court held no liability applied, as the truck driver was not the employee
or agent of either the manufacturer or customer. Moreover, there was no lease agreement
between the truck driver and neither the manufacturer nor the customer. Finally, neither the
manufacturer nor the customer retained any right to direct or control the truck driver’s actions.

Simpson v. Kuchipudi, 2006-Ohio-5163
Vicarious Liability

An employer was sued after their employee intentionally put cleaning liquid in a glass of
drinking water. The appellate court held the employer was not vicariously liable, as the
employee’s conduct was not foreseeable and was outside the course and scope of their

Siegenthaler v. Johnson Weld Products, Inc., 2006-Ohio-5588
Scope of Employment/Lunch Breaks

An employer was sued after one of their employees was involved in an accident, while on a
lunch break, resulting in the injury to a third party. The court held the employer was not liable as
the employee was on his way to a friend’s house for lunch, and was therefore not in the course
and scope of his employment. Plaintiff argued the fact the employee only had a thirty-five
minute lunch break should make a difference in this determination, but the appellate court

Silver v. Statz, 2006-Ohio-1727
Vicarious Liablity

A newspaper deliverer was sued after being involved in an automobile accident. In addition, the
newspaper was sued, alleging vicarious liability. The appellate court determined even though
the contract between the deliverer and the newspaper stated the relationship was that of an
independent contractor, since the newspaper determined the time, area, and method of delivery;
barred customer contact; and gave the newspaper the right to discipline the employer, vicarious
liability could apply. The actual terms of the of the relationship superseded its label.

Sellers v. Liebert Corporation, 2006-Ohio-4111
Employment Status

A manufacturer was provided an employee by a labor agency. The employee was injured on the
job site by a fallen bar and sued the manufacturer. The manufacturer argued it was immune from
liability for negligence under the immunity provisions of R.C. 4123.741. The appellate court
rejected this argument and held the employer could be sued for negligence. They noted per the
contract with the labor agency, the agency retained supervision and control over the employee,
and therefore the employee was an employee of the labor agency and not the manufacturer.

Maynard v. HAM Landscaping, Inc., 2006-Ohio-1724
Employment Status

Plaintiff fell and was injured during a lunch break as a result of going into a diabetic coma. The
employer contested the worker’s compensation claim, contending the incident occurred outside
the course of employment. There was a contemporaneous negligence suit brought by the
Plaintiff against the employer. The employer argued it was immune from negligence liability
under R.C. 4123.741, which ordinarily provides worker’s compensation is the employee’s sole
and exclusive remedy. The appellate court held the employer could contest the worker’s
compensation claim, as well as argue immunity contemporaneously.

Callaway v. Nu-Cor Automotive Corporation, 2006-Ohio-1343
Statute of Limitations for Substantial Certainty Claims

The appellate court held the statute of limitations for substantial certainty towards against
employers was two years from the date of injury.

Drazetic v. Coe Manufacturing Co., 2006-Ohio-1688
Substantial Certainty Claims
Plaintiff was injured while using a lathe. The evidence established plaintiff told his employer he
was nervous about using the lathe. The employer had concerns about his ability to operate the
lathe. The appellate court determined these factors created a factual issue on whether the
employee’s use of the lathe constituted a dangerous condition, and therefore summary judgment
in favor of the employer was not appropriate.

Rinebold v. J.P. Enterprises, 2006-Ohio-5119
Substantial Certainty Claims

The appellate court determined summary judgment in favor of an employer was appropriate
where the employer had no actual knowledge of the alleged dangerous condition. Furthermore,
safety equipment was available to the employee, and the employee chose not to use it. The
employer did nothing to discourage employees from using safety equipment.

Peirce v. J.C. Meyer Company, Inc., 2006-Ohio-4237
Employee Handbook

A fired employee sued the employer for breach of contract, claiming they were not given all the
rights of discipline provided for in the employee handbook. The appellate court rejected this
argument finding that the employee handbook did not create a contract. Further, they noted
employment was at-will and discipline was at the discretion of the employer.

         D. Premises Liability Decisions

Kaeppner v. Leading Management, Inc., 2006-Ohio-3588
Dripping Ice

A hotel was sued by a guest who slipped on ice. The ice formed as a result of water which
dripped from the roof. The appellate court upheld summary judgment in favor of the hotel,
initially noting the ice was an open and obvious condition. Furthermore, they held the plaintiff
must produce evidence showing the drip resulted from a known defect on the premises.

Plock v. BP Products N.A., Inc., 2006-Ohio-5472
Open and Obvious

Plaintiff slipped and fell on 2 foot by 3 foot oil spill at a gas station. Plaintiff slipped while
stepping out of her vehicle. The appellate court held the condition was open and obvious as it
would have been visible to plaintiff had she looked at the ground upon exiting the vehicle.

Markiewicz v. Priority Dispatch Co., 2006-Ohio-539
Open and Obvious

Plaintiff was injured in a fall from a four feet drop at a loading dock. The appellate court held
whether the drop was open and obvious was a jury issue and not appropriate for decision on
summary judgment. They noted there were identical doors at the facility leading to both ramped
and unramped docks. The Court also noted the sun was blinding that day, thereby making it
more difficult for plaintiff to notice any drop.

Chaparro-Delvalle v. TSH Real Estate Investment Co., 2006-Ohio-925
Open and Obvious

Plaintiff sued a property owner after falling in a pothole. The appellate court upheld summary
judgment in favor of the property owner, noting plaintiff had shopped at that shopping center
before, was already aware of the condition of the parking lot, testified as to prior “near misses”
in the parking lot, left her cane in her car, and walked through the parking lot in the dark. These
factors in combination, made the condition open and obvious.

DeVault v. St. Charles Mercy Hospital, 2006-Ohio-1626

Plaintiff sued a hospital after falling on a gooey substance on a hallway floor. In upholding
summary judgment for the hospital, the appellate court noted there was evidence less than an
hour before the fall the hospital had conducted a safety check of the area and there was no
indication of any substance on the floor at that time.

Yonut v. Salemi, 2006-Ohio-2744
Violation of an Ordinance

Plaintiff sued a homeowner after falling on an uneven sidewalk in front of a home. The appellate
court upheld summary judgment in favor of the homeowner. They noted plaintiff was a licensee
and not a public invitee. They further noted that even though there was a city ordinance
requiring sidewalks to be level, a violation of that ordinance did not lead to civil liability.

Morner v. Giuliano, 2006-Ohio-2943
Superceding cause

A guest at a party was injured when shot by another guest with a BB gun. The gun was owned
by the homeowner’s son. The guest sued the homeowners for negligence. The appellate court
rejected the claim, noting the son hid the gun from guests before the party, and the guest’s
conduct in finding the gun and then deciding to shoot it at the party was a superceding cause.

Hairston v. Gary K. Corp., 2006-Ohio-5566
Defective Furniture

A summary judgment ruling in favor of a restaurant was reversed on appeal. Plaintiff claimed to
have been injured as a result of a defective chair. The evidence showed the chair was missing a
front rung, and the court held it was a factual issue as to whether the missing rung would have
been discovered during a nightly inspection.

         E. Miscellaneous Decisions

Robinson v. Bates, 112 Ohio St.3d 117, 2006-Ohio-6362
Evidence of Collateral Source Payments

The issue presented by this appeal was whether a plaintiff can claim as damages at trial the total
amount billed by a medical provider, or only that amount the medical provider accepted as
payment in full. In an awkward, and no doubt compromise decision, the Supreme Court held
both the original amount billed and the amount accepted as payment in full were admissible as
evidence at trial, and it would be up to the jury to then decide the reasonable value of the medical
care received. The Supreme Court recognized this could well result in a jury choosing either the
amount originally billed, the amount accepted as payment, or some figure in between. The
Supreme Court chose to make this determination on a case by case basis. There is some question
as to how long this decision will truly be in effect, based upon R.C. 2315.20, which went into
effect April 7, 2005. That statute was acknowledged by the Supreme Court in this decision as
being applicable only to claims where the injury occurred on or after April 7, 2005. Under that
statute, so long as certain criteria are met, a defendant may introduce evidence of collateral
source payments to a plaintiff.

Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52, 2006-Ohio-6498
Governmental Immunity

A Preble County municipality burned trees and other debris on their own property, allegedly
causing heavy smoke, leading to a chain reaction auto accident over the county line in
Montgomery County. The sole issue in this appeal was whether the municipality was immune
under a prior version of R.C. 2744.02 for its conduct within its boundaries, which resulted in
damage outside of its boundaries. The Supreme Court held that immunity did not apply under
any exception of R.C. 2744.02, as those exceptions applied only where the injury or damage
occurred on the municipality's premises.

Whitaker v. N.T. Automotive, Inc., 111 Ohio St.3d 177, 2006-Ohio-5481
Consumer Sales Practices Act Damages

This decision greatly expanded the types of damages a plaintiff can recover on a Consumer Sales
Practices Act claim. A plaintiff is no longer limited to recovering their actual damages and
attorney’s fees. Plaintiffs are now allowed to pursue non-economic damages for such things as
inconvenience, aggravation, frustration, and humiliation.

Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-5625
Statute of Limitations

The Ohio Supreme Court was presented with a number of consolidated appeals involving suits
brought against various Catholic organizations and institutions by persons who alleged they were
sexually abused as youths. The plaintiffs claimed the two year statute of limitations to assert
their claims should not begin to run until such time they were aware the organizations knew of
the abusers’ propensities. The Supreme Court disagreed and held the plaintiffs had two years to
file suit from either the date of the abuse or their eighteenth birthday (whichever came later), so
long as the plaintiff was aware of the identity of their abuser, knew of the abuser’s employer, and
was aware of the time that abuse had in fact occurred.

Laipply v. Bates, 2006-Ohio-1766
Statute of Limitations and Discovery Rule

Plaintiff’s gas line was damaged as a result of the work of a contractor. They were not
immediately aware of the damage. The plaintiffs were not first aware of the damage until after
the statute of limitations had run. Their first notice was when there was a drastic increase in their
gas bill. The appellate court held under those circumstances the discovery rule applied.

Kirchner v. Shooters on the Water, Inc., 2006-Ohio-3583
Alcohol Liability

A bar was sued after an underage adult drinker became intoxicated, fell into a river, and
drowned. The appellate court ruled in favor of the bar, noting that the liability provisions of R.C.
§ 4301.22 and 4399.18 do not apply were the injured person is a voluntarily intoxicated adult,
even if they are not of legal drinking age. The court also held the decedent’s intoxication did not
elevate the standard of care owed to them by the bar. Finally, the appellate court held the drop-
off at the edge of the premises to the river was an open and obvious condition, and this factor
was not affected by the intoxication.

Campbell v. Chris’s Café, Inc., 2006-Ohio-4063
Dram Shop Liability

Plaintiff sued a bar after being assaulted in a parking lot by underage drinkers. The appellate
court ruled in favor of the bar, noting plaintiff failed to present any evidence showing any sort of
causal connection between the attackers alcohol consumption and the assault.

Ashford v. Betleyon, 2006-Ohio-2554

Plaintiff’s decedent was shot and killed while trying to commit an armed robbery. The decedent
brandished what later turned out to be a fake gun. The armed guard was properly licensed and
trained. The decedent’s estate sued both the guard and his employer claiming the guard’s use of
force was excessive. The appellate court rejected this argument, noting the guard followed
established policies and procedures and had a reasonable fear of death or serious bodily harm as
at first glance the fake gun appeared to be real.

Santho v. Boy Scouts of America, 2006-Ohio-3656
Assumption of Risk

Plaintiff sued a boy scout troop after being injured at a skating party. The appellate court held
the plaintiff’s claims were barred by assumption of risk, as risk of injury was inherent in injuries
in activities such as skating, and unless there was evidence of recklessness, assumption of risk
was sufficient to bar the claim.

Barakat v. Pordash, 2006-Ohio-6095
Assumption of Risk

Plaintiff sued a martial arts instructor after being injured in a class. The appellate court held the
claim was barred by assumption of risk and there would be no recovery unless there was
evidence of recklessness.

George v. Whitmer, 2006-Ohio-436
Disclaimer of Liability

A garage renter sued his landlord after tools were stolen from the rental premises. The landlord
had previously posted a sign disclaiming liability in the event of any thefts. The sign was
conspicuous and the plaintiff was aware of it before his rental began. The appellate court held
this disclaimer was sufficient to preclude any liability against the landlord.

Foremost Insurance Co. v. Motorists Mutual Insurance Co., 2006-Ohio-3022
Contribution Among Insurers

Foremost settled a UM claim with its insured, and then brought a contribution against Motorists,
seeking to recoup what they felt was Motorists fair share of the settlement. Motorists argued
Foremost acted as a volunteer in settling the UM claim. The appellate court rejected this
argument, noting Motorists had previously denied coverage on the claim, and therefore Foremost
was free to settle their claim and then settle their claim and then pursue the contribution action.

Motorists Mutual Insurance Co. v. Columbus Financial, Inc., 2006-Ohio-5090
Mutual Mistake

An insurer mistakenly made a payment to a lienholder following an auto accident. The insurer
had confused two different claims involving two different accidents. The lienholder in turn
canceled its lien on the title and surrendered the title to the insurer. The lienholder was unaware
of any mistake during this process. When the insurer learned of its mistake it sued the lienholder
to recoup what it had previously paid. The appellate court rejected the insurer’s claim as it was
the insurer who made the initial mistake and the lienholder was innocent of any wrong doing.
The court felt the insurer was the appropriate person to bear the burden of its mistake.

Engwert-Loyd v. Ramirez, 2006-Ohio-5468
Dog Bite

Plaintiff sued a landlord after being bitten by a dog which was being kept on rental property.
Plaintiff claimed the landlord was a harborer of the dog per R.C. 955.28. The appellate court
disagreed, upholding summary judgment in favor of the landlord. In particular, the appellate
court noted the lease gave the landlord no control over the backyard, and therefore the landlord
was out of possession and control of the property and was not considered a harborer.


            A. Bad Faith

 Knotts v. Zurich Insurance Company, Ky., 179 S.W.3d 512 (2006) –
 Bad Faith/Unfair Claims Settlement Practices Act

 Knotts was seriously injured in an accident while performing construction work. He filed an
 injury claim with Zurich Insurance Company and filed a personal injury lawsuit against his
 employer. Zurich, advised it would not immediately settle the medical expense portion of the
 claim, but rather was commencing an investigation. At trial, the jury rendered a verdict in favor
 of Knotts in excess of $1.2 Million, reduced by 20% after an apportionment of fault for Knotts’
 own negligence. Knotts then filed a bad faith lawsuit against Zurich alleging Zurich violated
 Kentucky’s Unfair Claims Settlement Practices Act (KUCSPA), Kentucky Revised Statute
 §304.12-230. The trial court and Court of Appeals held there was no violation of the statute
 because the word “claim” in the statute refers only to pre-litigation claims and is no longer
 applicable once litigation commences. The Kentucky Supreme Court reversed and held the
 commencement of litigation by filing a complaint does not change the fundamental nature of
 what the claimant seeks and the KUCSPA is not limited to pre-litigation conduct. The Supreme
 Court held there is a continuing duty of good faith. The Court also examined what alleged
 “litigation conduct” should be admissible in a bad faith action. The Court held public policy
 favors the exclusion of an insurer’s post-lawsuit litigation strategy because the introduction of
 such evidence would hinder the right to defend and impair access to the courts and the Rules of
 Civil Procedure provide a remedy. Evidence of post-litigation settlement behavior of an insurer
 or its representatives might be admissible. However, the court must first weigh the probative
 value of such evidence against the possibility of unfair prejudice.

 American Physicians Assurance Corporation v. Steven Schmidt, 187 S.W. 3d 313 (2006)
 Bad Faith

 Tabler, a psychiatrist, prescribed two psychotropic medications for Schmidt’s wife, who
 developed aplastic anemia and died. Tabler’s insurance policy with Kentucky Medical Insurance
 Corporation (KMIC) contained a “consent to settle” clause providing the company would not
 settle a claim without the consent of Tabler. After a ruling in favor of Schmidt’s estate, KMIC
 paid its policy limits of $1 million towards a $1,200,000 negotiated settlement between Tabler’s
 personal counsel and the defendant. In addition to the settlement, Tabler assigned Schmidt any
 “bad faith” claim against KMIC in exchange for release of liability and release of excess
 judgment. Schmidt then filed a bad faith claim against KMIC. KMIC argued Tabler did not
 give consent to a settlement after he was made aware of KMIC’s investigation results as well as
 the risks of not settling. The jury found for KMIC and the Court of Appeals reversed taking into
 account Tabler’s testimony in which he denied withholding consent to Schmidt’s settlement.
 The Supreme Court held an insurer acts in bad faith with respect to potential excess judgment
 against its insured only if it is afforded the opportunity to settle within the policy limits. The
 Supreme Court ruled the excess judgment against Tabler was not the result of “bad faith,” and
 KMIC was not required to pay any portion of the judgment that exceeded liability limits of the
 policy. Therefore KMIC’s refusal to pay in excess of the policy limits was not a basis for a bad
 faith action.

Kentucky Farm Bureau Mutual Insurance Company v. Tina Rodgers, Ky., 179 S.W.3d 815
Admissible Testimony/ Bad Faith

Rodgers brought this action against Kentucky Farm Bureau alleging bad faith under the
KUCSPA in negotiating her claim for underinsured motorist coverage (UIM). Rodgers suffered
injuries to her neck, left shoulder and left thumb in a car accident. Rodgers demanded payment
of the UIM coverage limits of $100,000 and Kentucky Farm Bureau offered her only a portion of
that limit, deducting the sum of money it had already paid to Rodgers’ medical providers and
amount received from the party’s at fault insurance company. At trial, Rodgers tried to introduce
testimony from a former plaintiff in the “Mabel Raines” case. Raines would testify she was
injured in an automobile accident prior to Rodger’s accident and Kentucky Farm Bureau only
paid her the $100,000 policy limit at trial. The motion to exclude the testimony was overruled
by the trial judge and the decision was affirmed by the Court of Appeals. The Supreme Court
held the alleged conduct in the current case must more closely replicate the alleged
transgressions in the prior case for this “bad acts” evidence to be admissible. Raines’ claim
against Kentucky Farm Bureau was not sufficiently probative to show Farm Bureau acted in bad
faith. The Supreme Court therefore held the testimony was not admissible.

Coomer v. Phelps & Progressive Northwestern Insurance Company, Ky., 172 S.W. 3d 389
Bad Faith/ Release of Claims

Coomer was injured when her left knee was struck by Phelps’ car. Coomer was treated at an
Emergency Room and diagnosed with a bruised knee. Coomer reached a settlement with Phelps’
insurer accepting $500.00 in exchange for release of all her claims. She later found out she was
misdiagnosed and had fractured her knee. She sued Phelps for injuries sustained in the car
accident and Progressive Northern Insurance Company alleging bad faith and mutual mistake
during the settlement invalidated her release. The Circuit Court granted summary judgment in
favor of both defendants, and the Court of Appeals affirmed. The Kentucky Supreme Court
decided whether the release was made invalid by mutual mistake, constructive fraud, alleged
incapacity, and whether there is an action for bad faith. The Supreme Court held a mutual
mistake between parties to a release as to the “nature and extent of the plaintiffs injuries” was not
grounds to invalidate a general release. The Supreme Court held there was no constructive fraud
since there was no violation of any legal duty owed by the insurer. The Supreme Court held
there was no incapacity since the plaintiff could remember calling the adjuster’s associate
offering to settle her claim for $500.00 and acknowledged her signature on the release. Coomer
failed to establish a genuine issue of material fact as to her competence to execute the release.
The Supreme Court also held the insurer promptly agreed to a reasonable offer of settlement and
there was no bad faith.

Foster v. Kentucky Farm Bureau Mutual Insurance Company, Ky., 189 S.W. 3d 553 (2006)
Unfair Claims Settlement Practices Act/Work Loss Benefits

Foster was offered a job after being involved in an automobile accident, but declined the position
because her physician advised her she could not take the job due to accident related injuries.
Foster then applied for work loss benefits. After her claim was denied, she filed suit. The jury
returned a verdict in favor of Foster. The Court of Appeals reversed holding Kentucky Farm
Bureau had a reasonable basis for denying payment and the Court should have decided the issue
instead of a jury. The Supreme Court held the credibility and evaluation of evidence regarding
Foster’s knowledge of her physical condition not allowing her to perform the new job was proper
for a jury to decide. The court held the Circuit Court was correct when it denied the claim
seeking punitive damages under the KUCSPA, but allowed the lawsuit to continue regarding the
Work Loss benefits claim. The Supreme Court held an individual who is unemployed at the time
of an auto accident may seek work loss benefits for a job she is later offered but cannot fulfill
under the MVRA.

           B. Employment Decisions

Brown v. Indiana Insurance Company, Ky., 184 S.W. 3d 528 (2006)
Workers Compensation

The estates of two deceased employees brought a wrongful death action against their employer,
another employee and a railroad company. The employees were killed when a pickup truck
collided with a CSX railroad train in the course of their employment. The employer did not
acquire a policy of workers compensation insurance as required by Kentucky Revised Statute
342.340 (1) but was insured by a CGL insurance policy covered by Indiana Insurance Company.
The Indiana policy excluded injuries that fell within the Worker’s Compensation Act. The
employer argued Indiana Insurance should defend them against the tort action brought by the
estates. The Kentucky Supreme Court held the Indiana Insurance Company’s commercial
automobile liability insurance policy did not afford coverage. The exclusion applies to any
worker’s compensation claim for which the insured may be held liable. The Court held the
employer will be ultimately responsible for the workers compensation claims. The court noted
the employer may not have been liable for the tort damages by his employees under Kentucky
Revised Statute 342.690 (2), but since the employer did not obtain worker’s compensation
insurance, this defense was unavailable.

The Cincinnati Insurance Company v. Samples, Ky., 192 S.W. 3d 311 (2006)
Workers Compensation/Under-Insured Motorist Coverage

Samples sued The Cincinnati Insurance Company seeking UIM benefits arising from a traffic
accident. Samples was injured driving a vehicle owned by his employer, BGM Equipment Co.,
Inc., insured by Cincinnati Insurance. Samples’ vehicle was struck by Howton, who was insured
by Direct General Agency, Inc. Cincinnati Insurance paid Samples $10,000.00 in basic
reparation benefits (BRB) and Direct General settled with Samples its policy limits in the amount
of $25,000.00. Samples filed an action against Cincinnati Insurance for recovery of UIM
coverage in excess of $35,000.00. In addition, Samples filed a workers compensation claim for
his injuries. The trial court deducted from the verdict the workers compensation benefits, the

BRB payments, the settlement paid by Direct General, and future medical expenses. Samples
contested the deductions representing workers compensation benefits. The Court of Appeals
reversed and held K.R.S. 342.700(1) was a limitation on the rights of a worker to collect workers
compensation benefits. The Kentucky Supreme Court considered whether KRS 342.700(1)
prevented Samples from double recovery of workers compensation benefits and UIM benefits for
identical categories of loss. The Kentucky Supreme Court held KRS 342.700(1) expresses a clear
legislative intent that an injured employee should not be allowed double recovery. The Supreme
Court held since the purpose of UIM coverage is to place Samples in the same position he would
have been in had Howton been fully insured, not in a better position, Samples could not recover
UIM damages that duplicated his workers compensation benefits.

Kubajak v. Lexington-Fayette Urban Country Government, Ky., 180 S.W. 3d 454(2006)
Worker’s Compensation

Kubajak brought a worker’s compensation claim against Lexington Fayette Urban County
Government for post-traumatic stress disorder which allegedly resulted from his job at Crime
Scene Investigation Unit in which he photographed crime scenes and collected evidence. After
reported severe nightmares, hauntings, and psychological symptoms he was diagnosed with post-
traumatic stress disorder and major depressive disorder and was placed on medical leave.
Kubajak brought a workers compensation claim and the Administrative Law Judge determined
the post-traumatic stress disorder was due to observing gruesome crime scenes. The ALJ ruled
Kubajak’s claim was not compensable since Kubajak was not “injured” as defined by Kentucky
Revised Statute 342.0011(1) which states an “injury” is a traumatic event or series of events
rather than as being a harmful change. The Court of Appeals affirmed. The Kentucky Supreme
Court considered whether physical trauma to another constitutes a physically traumatic event for
the purposes of 342.0011(1). The court held nothing in 342.0011(1) implies a legislative intent
that the physical trauma causing a harmful change be to someone other than the claimant. The
Supreme Court held since there was no evidence Kubajak’s psychiatric condition was a direct
result of a physically traumatic event, Kubajak’s claim was not compensable.

AIK Selective Self Insurance Fund v. Minton, Ky., 192 S.W. 3d 415 (2006)
Subrogation Claim

 Minton collected workers compensation benefits from AIK due to an injury he received during
the course and scope of his employment. When Minton filed a tort action against a third party,
AIK filed a subrogation claim. Minton’s tort claim settled for $150,000. The trial court held
since Minton’s legal fees in pursuing his third party tort claim exceeded the total amount of
benefits paid by AIK, there should be no subrogation recovery pursuant to K.R.S. 342.700(1).
The statute requires an employee’s entire legal expense be deducted from the employer’s or
insurer’s portion of any recovery. The Court of Appeals affirmed. The Kentucky Supreme
Court decided whether this statute violates the Due Process clause of the United States
Constitution and Section 2 of the Kentucky Constitution. The court recognized the “made
whole” doctrine, in which an injured party must be fully compensated for all of his or her injuries
before the subrogee is entitled to reimbursement. However, the Supreme Court held the statute
did not violate Due Process or the Kentucky Constitution. The Court also held it was
unreasonable to presume certain portions of the tort settlement were specifically meant for legal
fees and Minton was therefore receiving double recovery since the settlement was strictly
between Minton and the tortfeasor.

           C. Misc. Decisions

City of Louisville v. State Farm Mutual Automobile Insurance Co., Ky., 194 S.W. 3d 304 (2006)
Basic Reparation Benefits/Subrogation Claim

Owen sustained injuries when he was involved in an automobile collision with an unmarked
police vehicle owned by the City of Louisville. Owen filed a personal injury action against the
City of Louisville and State Farm intervened with a subrogation claim for basic reparation
benefits (BRB) paid to Mr. Owen under the Motor Vehicle Reparations Act (MVRA) and its
vehicle policy. The city did not have a standard insurance policy on its vehicles opting to
appropriate funds annually for tort liabilities. The city argued because it opted not to provide
BRB coverage, it was not a reparation obligor and the BRB provisions of the MVRA could not
be applied to it. The Jefferson Circuit Court entered summary judgment for the city dismissing
State Farm’s subrogation claim and the Court of Appeals reversed. The Kentucky Supreme
Court considered whether the city and its employee were a “reparations obligor” and were
“secured” as defined in the MVRA. The Court held that since the city did not pay BRB coverage
for its vehicles, it could not be a reparations obligor, nor could the city claim to be a secured
person prevented from subrogation. Relying on a provision of the MVRA, the Court found
where there is no insurance or other security on a vehicle, the vehicle is not secured and the
operator is not a secured person. The court rejected the city’s argument that opting out of BRB
coverage invalidated the other provisions of the MVRA. The city and its employee, as unsecured
persons, were subject to being sued by State Farm directly. The decision of the Court of Appeals
was affirmed.

Stratton v. Commonwealth of Kentucky, Cabinet for Families and Children, Ky., 182 S.W. 3d
516 (2006)
Sovereign Immunity/Negligence Claim

The father of a deceased child brought a negligence action against the Cabinet for Families and
Children. The Cabinet for Families and Children was notified of possible physical abuse of the
child. Caseworkers for Child Protective Services (CPS) investigated the allegations. During the
investigation, the child died from injuries later proven to have been inflicted by her mother’s
live-in boyfriend. The father filed an action against the Cabinet alleging their negligence
contributed to the child’s death. The Cabinet’s motion to dismiss was granted by the Board of
Claims holding acts conducted by the caseworkers, specifically the interviews, were
discretionary and fell within the categories of Kentucky Revised Statute 44.073 (13) which gave
the cabinet immunity. On appeal, the Circuit Court rejected the Board’s interpretation of 44. 073
(13) holding the government’s acts were ministerial, and therefore the governmental immunity
did not apply. The Court of Appeals reversed. The Supreme Court considered whether the acts
by the case workers of the CPS were ministerial or discretionary, which depended upon whether
the acts involved policy-making decisions or simple routine duties. The Supreme Court held
investigating abuse has certain statutory regulations that must be followed, but such
investigations also involve discretionary decisions and thus, the Cabinet’s actions were protected
by governmental immunity.

T & M Jewelry, Inc. v. Hicks, Ky., 189 S.W. 3d 526 (2006)
Negligence Per Se/Common Law Negligence

Hicks brought an action against T & M Jewelry, Inc. alleging both common law negligence and
negligence per se. Greer shot his girlfriend, Hicks, in the face with a gun he purchased from T &
M Jewelry, Inc., owned by “The Castle,” when he was 18 years old. The trial court entered
summary judgment in favor of The Castle on both the negligence per se and common law
negligence claims holding The Castle did not violate Kentucky law by selling Greer the handgun
and Greer’s severe behavior would absolve The Castle of liability. The Court of Appeals
reversed as to the common law negligence claim. The Kentucky Supreme Court considered
whether the summary judgment rulings were proper. The Supreme Court acknowledged
provisions of the Federal Gun Control Act of 1968 only impose criminal penalties, and do not
explicitly provide civil remedies. The Kentucky Supreme Court ruled K.R.S. 446, which states a
person injured by any violation of a statute may recover damages he sustained by violation of the
statute, is limited to violations of state statutes and does not apply to federal statutes and upheld
summary judgment of the negligence per se. The Supreme Court next held to recover in a
common law negligence claim the defendant must breach a specific duty with a consequent
injury. The Gun Control Act of 1968 made it illegal for The Castle to sell a handgun to a person
under the age of 21 and the act represents a duty of care imposed upon licensed gun dealers. The
Supreme Court held whether The Castle breached that duty of care is for a jury to decide and
remanded the case for trial.

Bayless v. Boyer, Ky., 180 S.W. 3d 439 (2006)
Commonality of Witnesses

Mr. Bayless sued two doctors alleging medical malpractice for alleged failure to diagnose a wrist
fracture. The jury found the radiologist and Bayless equally liable for not exercising ordinary
care for safety and health. The Kentucky Supreme Court considered whether evidence that
would show a commonality between the insurers of the defense witnesses and the defendants
should have been admissible at the trial. The Supreme Court cited Wallace v. Leedhanachoke,
949 S.W. 2d 624, (KY. App. 1996), which held there must be a balance of probative value of
evidence of commonality between insurance carriers against the prejudicial effect it may
produce. The Supreme Court held since there was no evidence of commonality, improper
motive or bias on behalf of those testifying, they cannot find prejudice. The Supreme Court also
held a “zero” verdict for pain and suffering was adequate and a jury instruction on comparative
negligence was necessary since evidence indicated Michael did not exercise ordinary care for his
health and safety.

Harrison v. Valentini, Ky., 184 S.W. 3d 521 (2006)
Statute of Limitations/Continuous Course of Treatment Doctrine/Negligence Claim

The plaintiff brought a medical negligence claim against her doctor for complications arising
from cosmetic surgery. The plaintiff filed suit three years after surgery, but within one year of
her last appointment with the defendant. The trial court dismissed the action holding the
plaintiff’s cause of action was barred by the statute of limitations and court of appeals affirmed.
The Kentucky Supreme Court considered whether continuing treatment the plaintiff received
post-surgery tolled the statute of limitations. The plaintiff argued the ‘continuous course of
treatment doctrine’ tolls the statute of limitations as long as the patient is under the continuing
care of the physician for the injury caused by the negligent act or omission. The Supreme Court
noted injuries in a medical malpractice context refer to the actual wrongdoing or the malpractice
itself and therefore actual knowledge of the medical negligence triggers the commencement of
the statute of limitations. Since the plaintiff did not discover the negligent act while the
treatment with the defendant continued, the doctrine was applicable with a requirement of good
faith. The ‘doctrine of good faith’ gives an expectation the patient and physician have a genuine
desire to improve the patient’s condition. The Kentucky Supreme Court held the plaintiff’s
lawsuit was timely filed since she filed suit well within one year of her discontinued treatment
with the defendant.

CSX Transportation, Inc. v. Ryan, Ky., 192 S.W. 3d 345 (2006)
Discovery from a Medical Expert

Ryan, a former employee of CSX Transportation, sued CSX under the Federal Employers’
Liability Act. Ryan alleged he sustained permanent, irreversible brain damage causing cognitive
impairment and mood disorder as a result of exposure to cleaning solvents while employed at
CSX. Ryan’s physician, Dr. Morrow, administered neuropsychological tests. Ryan filed a
motion to compel Dr. Gordon, the expert retained by CSX, to produce his report and all
documents created during his examination. When the trial court ordered the production of Dr.
Morrow’s test results and report Ryan refused to comply. The Court of Appeals concluded the
language of CR 35.02(1) requires only written reports to be exchanged by the litigants, and did
not include test results or other separate data prepared by the physician. The Supreme Court
considered whether C.R. 35.02(1) required only written reports to be exchanged by litigants.
The Supreme Court held that Rule 35.02(1) was triggered by the examined party’s request for
production of the independent medical examiner’s report, and each party has a reciprocal
obligation to produce a similar report of all comparable examinations.

Amanda Baker v. Theresa Kammerer, Ky., 187 S.W. 3d 292 (2006)
Admissible Testimony

Baker sustained injuries when hit by a car driven by Kammerer and brought this action in
negligence. The trial court ruled Kammerer’s witness, Frost, an investigator for her insurer,
would be allowed to testify and advised counsel for both sides no mention was to be made of
Frost’s employment. Plaintiff objected alleging Frost was biased due to her employment. The
circuit court ruled Frost’s testimony formed a sufficient basis for the record and the witness
“does not belong to anybody.” The Kentucky Supreme Court considered whether the trial court
properly restricted plaintiffs cross examination of Frost regarding her employment under K.R.E.
411. The Supreme Court ruled K.R.E. 403 requires a balancing of the probative value of the
witnesses’ testimony against any undue prejudice when determining whether to admit evidence
related to liability insurance under the Kentucky Rules of Evidence. The Kentucky Supreme
Court held the trial court abused its discretion because there was no rule 403 analysis done. The
case was reversed and remanded to the Circuit Court.

Gainsco Companies v. Gentry, Ky., 191 S.W. 3d 633 (2006)
Vehicle Ownership

Gentry filed a personal injury action on behalf of his injured son against a pickup truck buyer,
the buyer’s insurer, the dealer, and dealer’s insurer. H & H Auto and Trailer Sales (H&H)
purchased a 1996 Dodge pick up truck from Philip Duke Motors and Booth then purchased the
truck from H&H. The president of H&H was unable to transfer certificate of title since H&H
had not yet received transfer of title from Philip Duke Motors. Insurance coverage was verified
over the telephone two days after Booth drove the car off the lot. Booth’s son later got in an
accident and the passenger of the pick-up, Gentry, sustained permanent injuries. The trial court
granted Gentry’s motion for summary judgment holding H&H held title to the car at the time of
the accident, making Gainsco Companies (H&H’s insurer) responsible for primary coverage.
The Court of Appeals affirmed. The Supreme Court considered whether H & H was the owner
of the truck at the time of the accident for insurance purposes. The court acknowledged under
Kentucky Revised Statute 186A.220 (5), if a dealer wants to transfer ownership of a vehicle
without transferring possession of certificate of title, he must obtain the purchaser’s consent to
file the title on behalf of the purchaser and he must verify the purchaser has obtained insurance
on the vehicle before relinquishing possession. There was no evidence Booth provided proof of
insurance for the pickup. Even with possible knowledge of Booth’s insurance coverage due to
prior dealings, the Court held the statute requires proof of insurance, not just mere knowledge.
The “assumption of insurance” was not sufficient to meet the requirement of 186.220(5). The
Supreme Court held since H&H failed to comply with 186A.220(5), it failed to transfer
ownership, and summary judgment for Gentry was upheld.

Harris v. Jackson, Ky., 192 S.W. 3d 297 (2006)
Disclosure of client’s death

Jackson filed a personal injury lawsuit against Harris after an automobile accident wherein
Harris’ vehicle rear-ended Jackson’s vehicle. Jackson was pregnant at the time of the accident,
and claimed her child suffered serious and permanent injuries as a result of the collision. Harris
died during litigation and at no time after his death was Jackson, or her counsel, notified of
Harris’ death. No notice was given at the pretrial conference, and Harris’ counsel was advised
by the Kentucky Ethics hotline that he did not have to take affirmative action to reveal his
client’s death if it is adverse to his client as long as his conduct did not amount to a fraud upon
the court. Harris filed a Motion to Dismiss seeking dismissal based on the fact that Harris had
died and no efforts to revive the claim had been made. The trial court dismissed the claims for
failure to revive pursuant to Kentucky Revised Statute 395.278, which states an application to
revive an action in the name of the representative of a defendant shall be made within one year
after the death of a deceased party. The Court of Appeals reversed the dismissal. The issue
before the Kentucky Supreme Court was whether the attorney for a deceased client had a duty to
disclose the death of his client to opposing counsel. The Supreme Court held when a lawyer’s
client dies in the midst of the settlement negotiations of a pending lawsuit the lawyer has a duty
to inform opposing counsel and the Court of the death. The attorney’s failure to notify opposing
counsel and the court of his client’s death misled the defendant and estopped Harris’ estate from
asserting the statute of limitations as a defense.

Hoofnel v. Segal, Ky., 199 S.W. 3d 147 (2006)
Medical Battery/Consent Forms

Hoofnel filed a medical battery claim against Segal arising from surgery to treat cancer. Hoofnel
signed a “Consent to Operate” form before surgery containing a paragraph authorizing medical
procedures that may be medically necessary. During surgery, Hoofnel’s physician consulted
with Dr. Segal since there was belief additional cancer was present. Dr. Segal performed an
additional surgery. The Circuit Court held the consent form was proof Hoofnel gave consent to
the physicians to perform additional procedures and entered summary judgment against her. The
Court of Appeals affirmed. The Supreme Court acknowledged medical battery was considered
an intentional tort, and lack of consent was a required element. The Supreme Court considered
whether the consent form Hoofnel signed prior to her surgery created a valid consent for the new
procedure. The court cited Kovac v. Freeman, 957 S.W. 2d 251, (Ky. 1997) in which the court
held valid consent is to be gathered from evidence of the circumstances and discussions
surrounding the consent process. Since the consent form in the present case specifically
mentioned the additional surgery was a possiblity and authorized procedures the physicians
deemed medically necessary, the Supreme Court held the consent form was clear evidence of
consent and summary judgment was proper. The Supreme Court also held a properly executed
consent form gives rise to a presumption a patient will read the form, and make sure they
understand the terms of the agreement.

Abney v. Nationwide Mutual Insurance Company, et al., Ky. 3

Abney was a passenger in a pickup truck owned by Grady Brake and was driven by his son,
Arthur Brake, when Arthur rear-ended another vehicle driven by Tonya Wright. Just before the
accident, Tonya either slowed down or stopped her vehicle abruptly to find her purse, which her
husband had thrown out the window. As a result of the accident Abney sustained significant
injuries. Kentucky Farm Bureau (KFB) insured Tonya Wright and the Brakes were insured by
Nationwide. The issue arises from a release form signed by Abney with KFB releasing “both
Tonya Wright…KFB… and all other persons, firms or corporations liable, or who might be
claimed to be liable”…as a result of the accident. The question the Supreme Court reviewed has
since the enactment of KRS 411.182, does a release negotiated with one joint tortfeasor
discharge all other persons who might be claimed to be liable even if they have not paid any
consideration for the release. Abney claimed that the tortfeasor must be specifically named and
identified in order for them to be released. However, the court looked at the legislative intent of
the statute and determined that if they had intended to impose a specific identity requirement
then they would have so provided. The statute was enacted to provide for a release of liability
for the person signing and not to discharge any other persons unless it so provided. The release
in question was clear and unambiguous and plainly discharged all other persons involved in the
accident. Therefore, the court held that it was its duty to enforce the contract as written and
affirmed the lower courts opinion.

    As of the date of printing, a final case citation has not been issued by the Supreme Court.

Harralson v. Monger 4
Statute of Limitations

The parties were involved in a six-vehicle collision in which the vehicle driven by Monger first
collided with the automobile of Jacobs. Monger’s vehicle then struck two others, including
Harralson, which resulted in a chain reaction involving two other vehicles. Based on initial
interviews with Jacobs and other witnesses at the scene, a police report indicated that Monger
was at fault. Harralson filed a timely negligence claim against Monger. Monger, in turn, filed a
third-party complaint against Jacobs, after Jacob’s deposition in which he stated that the accident
occurred when Jacobs pulled into the right lane occupied by Monger. Harralson was then
granted leave to amend his complaint to assert a claim against Jacobs. The question presented
was whether the two-year statute of limitations is tolled because of alleged misrepresentations
made by Jacobs to police immediately following the collision. The trial court dismissed
amended complaint as untimely and the Court of Appeals affirmed. The Supreme Court
accepted discretionary review and began by looking at whether the amended complaint related
back to the original pleading. It relates back if two elements are satisfied: 1) The amendment
arose out of the conduct or transaction set forth in the original pleading, and 2) the amendment
will not prejudice the defense and the defendant should have known that but for a mistake the
action would have been brought against him. The court ruled that there was no question as to the
amendment relating to the original collision. The only question was whether Jacobs knew or
should have known that an action could have been brought against him. According to the
officer, Jacobs was unequivocal in his explanation that Monger caused the accident. However,
in his deposition he changed his story. Without the misrepresentation, Jacobs would
undoubtedly been named as a defendant within the time limit. The Supreme Court held that it is
not good public policy to allow a person who presents inaccurate information to benefit from the
misrepresentation. When the benefits of strict enforcement of the statute of limitations are
weighed against the problems created by misrepresentation, the scale clearly favors the tolling of
the two-year limitations.

Louisville Gas and Electric Company v. Jonathon Mark Roberson 5
Tort/Undertaker’s Doctrine

The defendant brought this wrongful death action against Louisville Gas and Electric Company
(LG&E), claiming they negligently failed to maintain a street lamp. The plaintiff acknowledged
they were responsible for maintaining the street lamps under its contract with Jefferson County.
On February 23, 2001, Shytone Roberson was struck and killed by a vehicle while attempting to
cross Preston Highway. His estate brought this action claiming negligence in maintaining the
street lamps in a working condition and that such negligence caused the death of Shytone
Roberson. The trial court granted summary judgment to the LG&E holding there was no duty
under common law for maintenance of the non-dangerous instrumentality of a street lamp. The
Court of Appeals reversed. The Kentucky Supreme Court considered whether LG&E owed a
duty with respect to the maintenance of street lamps. The Supreme Court decided LG&E had
liability by virtue of its contract with Jefferson County and cited the Undertaker’s Doctrine. The
Undertaker’s Doctrine is found in the Restatement (Second) of Torts, §324A (b) and provides
that one who undertakes to render services to another which he should recognize as necessary for
protection of a third person, is subject to liability to the third person for physical harm resulting

    As of the date of printing, a final case citation has not been issued by the Supreme Court.
    As of the date of printing, a final case citation has not been issued by the Supreme Court.

from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to
perform a duty owed by the other to the third person. Therefore, LG&E is subject to liability if
he assumes a duty by making a safety promise, and then negligently performs it, causing injury.
The Supreme Court held since public safety was a primary purpose of the street lamp, a duty of
LG&E was established.

Realty Improvement Co. v. Raley, et al., Ky., 194 S.W. 3d 818 (2006)
Worker’s Compensation

On October 22, 2002, Ricky Raley sustained a head injury and later died after falling 30-feet
from the roof of a structure on which he was working. The administrator of the estate filed a
Form 101 for worker’s compensation benefits. The administrator sought death benefits under the
KRS 342.750 and asserted that the estate was entitled to a 30% increase in benefits under KRS
342.165(1) on the notion that Raley’s death resulted from the employer’s safety violations. The
Court of Appeals affirmed a ruling by the Worker’s Compensation Board which determined that
the administrator of the deceased employee’s estate had a right to recover additional 30% in
compensation because their death resulted from the employer’s intentional safety violation. The
Employer appealed to the Supreme Court and they affirmed the decision of the Court of Appeals.
The Supreme Court relied on citations issued to the employer by the Kentucky Labor Cabinet
based on inspections from Oct. 22, 2002 to Nov. 6th, 2002 where the employer violated 29 CFR
1926.501(b)(11) (employees did not wear fall protection) and 29 CFR 1926.503(a) (employees
were not provided fall protection training). They stated that if an accident is caused in any
degree by the intentional failure of the employer to comply with any specific statue that the
employer would be liable for an additional 30% of the compensation. Supreme Court concluded
that KRS 342.165(1) promoted workplace safety by encouraging workers and employers to
follow safety rules and regulations.


  Crabtree v. Estate of Crabtree, 837 N.E.2d 135 (Ind. 2005)
  Plaintiffs were injured in an automobile accident while in the car with their father who was
  intoxicated. By the time suit was filed, plaintiffs’ father was deceased so the action was filed
  against his estate under the survival statute, (IC § 34-9-3-1). The plaintiffs requested punitive
  damages against their father’s estate.

  Because the survival statute did not mention punitive damages, the Supreme Court held a claim
  for punitive damages could not be maintained against a decedent’s estate. The Court held
  punitive damages are intended to punish the wrongdoer, but the death of the wrongdoer
  eliminates the court’s ability to accomplish that goal.

  Depuy, Inc. v. Farmer, 847 N.E.2d 160 (Ind. 2006)
  This case arose in the context of a worker’s compensation claim. An employee was injured in
  the workplace in an unprovoked attack by a co-worker. Prior to bring the worker’s
  compensation claim the wrongdoer paid the employee a sum to settle the battery suit, and when
  the worker’s compensation claim was filed the employer moved to dismiss the claim on the basis
  the injuries were not incurred during the course of employment. The Worker’s Compensation
  Board ordered the employee to remit the settlement to the employer as a condition of
  maintaining the worker’s compensation claim. The employer appealed this decision.

  The Supreme Court held because the attack was unprovoked, the employee’s injuries were
  incurred during the course of his employment, allowing him to bring a worker’s compensation
  claim. Furthermore, the Court found settlements reached before a worker’s compensation claim
  is resolved to not bar the employee from pursuing that claim. However, if worker’s
  compensation benefits are awarded to the employee, the employer is entitled to subrogate against
  the wrongdoer.

  Ellenwine v. Fairly, 846 N.E.2d 657 (Ind. 2006)
  This case arose from a claim filed under the Child Wrongful Death Act (CWDA) against a
  doctor by the parents of a deceased child. During the delivery of the child complications arose
  causing brain damage to the child. The child died two years and forty-five days later. The
  parents then filed a medical malpractice claim against the doctor. The doctor argued because the
  death was caused by medical malpractice, the parents’ claim was time barred under the Medical
  Malpractice ACT (MMA), which generally requires such actions be brought within two years of
  the alleged negligent act.

  The Supreme Court determined the date of the alleged malpractice is the triggering event in the
  case of a child patient who is the victim of medical negligence prior to the child’s sixth birthday
  who dies prior to the child’s eighth birthday. The Court held because the child was the victim of
  medical negligence prior to his sixth birthday and died prior to his eighth birthday, the MMA and
  the CWDA worked together to allow the parents to file a claim with the first to expire, either the
  MMA limitations period, the child’s eighth birthday, or the CWDA limitations period, two years
  from the date of the child’s death. Because the parents filed the claim ten months after the
  child’s death, the Court found that their CWDA claim could proceed.
Midtown Chiropractic v. Ill. Farmers Ins. Co., 847 N.E.2d 942 (Ind. 2006)
This case involves an increasingly common tactic employed by chiropractors across the county
to step into the shoes of a third-party claimant and collect directly from the wrongdoer’s
insurance carrier. Here, a chiropractic clinic sought to collect directly from the insurer charges
billed for a patient injured in an automobile accident with the insurer’s driver. The clinic had
obtained a purported “Assignment” of right to receive benefits of any settlement paid to the
patient. After the insurer paid settlement directly to the patient, the clinic filed this action to

The Supreme Court refused to allow this type of practice in Indiana, noting Indiana law prohibits
the assignment of personal injury actions. The Court rejected the clinic’s argument the
assignment of proceeds from a personal injury claim is distinguishable from the prohibited
assignment of the injury claim itself.

Morris v. Economy Fire and Casualty Company, 848 N.E.2d 663 (Ind. 2006)
This case arose out of a dispute between an insured and the insurer regarding a property loss.
When the insurer demanded compliance with policy provisions requiring its insured to produce
records and documents and submit to an examination under oath, the insureds demanded their
attorney first be provided with transcripts of their prior recorded statements obtained by the
claim handler. When the insurer refused, the insureds brought an action claiming that the
company failed to deal in good faith.

The Supreme Court recognized the policy contained an express condition requiring the insured to
submit to an examination under oath before any legal action could be brought. Because the
contract clearly and unambiguously required the insured to comply with the policy’s terms and
conditions, the Court ruled the insureds breached the contract. This case very strongly reinforces
an insurer’s right to require strict compliance with the clear and unambiguous provisions of an
insurance policy.

Northern Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175 (Ind. 2006)
This case arose after an employee died in an automobile accident while driving a truck that was
self-insured by his employer. The occupants of the other car sued the employer and the estate of
the deceased employee, and the trial court ordered the employer to pay for the defense costs
incurred by the employee’s estate.

The Supreme Court held self-insurers are liable to pay damages caused by the negligence of
permissive users of their vehicles up to the minimum amounts required by Indiana’s Financial
Responsibility Act. However, the employer has a duty to inform its employee of its statutory
limits to third parties. The Court found that because the employer failed in its duty to inform the
employee, it was obliged to defend the employee’s estate against liability arising out of the
permissive use of the vehicle.

Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006)
This case arose from an automobile accident when the injuries parties sued the driver to recover
damages for injuries suffered. On appeal, the injured parties argued that the trial court erred in
instructing the jury on the sudden emergency doctrine because the driver did not raise it in his
pleadings. The Supreme Court held that under Indiana Trial Rule 8(C), the sudden emergency
doctrine was not an affirmative defense the driver was required to specifically plead. This case
is significant in that the Court recognized not all affirmative defenses are subject to waiver.


  Young v. Cincinnati Insurance Company
  Changes to Policy
  This appeal asks the Supreme Court to consider whether an insurer has the right to change
  provisions within an insurance policy during the policy’s two year guaranteed renewal period.

  Lorince v. Universal Underwriters
  Coverage for Loaner Cars
  This appeal asks the Supreme Court to consider whether a customer driving a car dealer’s loaner
  vehicle is insured under the dealer’s liability coverage.

  Garcia v. O’Rourke
  Loss of Consortium
  The plaintiffs filed a medical malpractice suit and ultimately settled their claims against the
  doctor. The plaintiffs’ children were not named as parties in the malpractice claim, for the
  purposes of asserting a loss of consortium claim. Subsequently a second suit was filed on behalf
  of the children asserting a claim for loss of their parents’ services and the defendants sought the
  dismissal of the case. The Supreme Court is asked to consider the failure of the plaintiffs to
  assert the children’s claims in the original action and whether their failure to include these
  derivative claims in the first suit bars them from being later asserted.

  Anderson v. Nationwide Mutual Fire Ins. Co.
  Rejection of UM/UIM Coverage
  The issue presented by this appeal is whether extrinsic evidence is admissible to prove a proper
  offer and informed rejection of UM/UIM coverage for policies written prior to the effect of
  House Bill 261 in 1997.

  Ohio Government Risk Mgmt. Plan v. Harrison
  Duty to Defend/Scope of Employment
  This appeal stems from a suit brought against a former police chief and the city he worked for,
  alleging sexual harassment and intentional invasion of privacy. This appeal considers whether
  the employer’s insurer owes a duty to defend either the former chief or the city on those claims,
  and whether there is vicarious liability to the City for the former chief’s alleged conduct.

State Automobile Ins. Co. v. Pasquale
UM Coverage For Off-Road Vehicles
This appeal involves a policy whose UM coverage excluded “vehicles designated or used mainly
off public roads while not on public roads.” The decedent was killed when a off-road
motorcycle struck him, while on private property. This appeal seeks a determination of whether
this exclusion is valid and enforceable.

Bellman v. American International Group
Pose Settlement Interest
This appeal seeks clarification of Hartman v. Duffey, 95 Ohio St. 3d 456, 2002-Ohio-2486, in
determining when third party claimants may pursue claims for post-settlement interest against

Fehrenbach v. O’Malley
Statute of Limitations for Parents Derivative Claims
This appeal stems from a medical malpractice claim involving bodily injury to a child. Although
the statute of limitations for the child’s claim was clearly tolled due to her minority, the question
presented by this appeal is whether the parents’ derivative claims for loss of consortium were
tolled as well.

Baughman v. State Farm Mutual Automobile Ins. Co.
Insurer’s duty to Notify Insured’s of Changes in the Law
This appeal seeks a determination of to what extent, if any, an insurer owes its insureds a duty to
notify it of changes in the law which would effect its rights to coverage under the policy.

Snyder v. American Family Ins. Co.
Effect of Immunity of UM Claims
This appeal seeks a determination as to whether a provision in a policy’s UM coverage, requiring
that a plaintiff be legally entitled to recover against a tortfeasor, is valid.

Webb v. McCarty
UIM Coverage
This appeal seeks clarification of what standard to apply in determining whether a tortfeasor is

Terry v. Ottawa Co. Board of Mental Retardation and Developmental Delay
Mold Claims
This appeal seeks clarification as to what standard will be imposed for admissibility of expert
testimony on mold claims.


   Cumberland Valley Contractors Inc. v. Bell Co. Coal Corp.
   Loss Profits

   This appeal asks the Supreme Court to consider whether a plaintiff is entitled to punitive damage
   jury instructions when making allegations a defendant violated mandatory safety statutes and the
   sufficiency of proof of lost profits.

   General Electric Co. v. Cain
   Rehm v. Navistar International Corp.
   Worker’s Compensation

   This appeal ask the Supreme Court to decide the proof required to show workers’ compensation
   insurance was obtained to cover employees of a contractor; whether the work performed by the
   contractor was a “regular or recurrent” part of the employer’s business.

   Pile v. City of Brandenburg
   This appeal asks the Supreme Court to decide the liability of municipal and/or police officer for a
   fatal collision involving a city police cruiser that was stolen and driven by a handcuffed arrestee.

   Bituminous Casualty Corp. v. Kenway Contracting, Inc.
   Construction Liability

   This appeal asks the Supreme Court whether a construction company’s commercial general
   liability insurance policy provides coverage for a mistaken demolition of a house when the
   construction company had been hired to demolish only the carport.

   Dowell v. Safe Auto Insurance Company
   Uninsured Motor Vehicle

   This appeal asks the Supreme Court whether coverage is afforded for hit-and-run accidents under
   insurance policy language defining an “uninsured motor vehicle” as one “to which no bodily
   injury liability bond or policy applied at the time of the accident.”

   Reece v. Nationwide Mutual Ins. Co.
   UIM Coverage

   This appeal asks whether plaintiff seeking recovery on under-insured motorist policy was
   entitled to jury instruction on damages for permanent injury or permanent impairment of ability
   to labor and earn money.

Moore v. Globe American Casualty Co.
Insurance Misrepresentation

This appeal asks whether an application for insurance was misleading and therefore in violation
of public policy, by possibly creating an improper impression that uninsured coverage was not
part of basic coverage which could be rejected, but was instead optional additional coverage
which could be refused.

Schmidt v. Leppert
Motor Vehicle Reparations Act (MVRA)

This appeal asks the Supreme Court for the proper interpretation of various statutory provisions
of the insurance code relating to subrogation claims for payment of basic reparation benefits
(BRB) asserted against out-of-state tortfeasors with no BRB coverage.

Mitchell v. Allstate Insurance Co.
Extent of Insurance Coverage

This appeal asks the Supreme Court to decide the extent of coverage to be given to a permissive
user of an automobile when the use exceeds or varies from the permission given.

Witten v. Pack
Medical Malpractice

This appeal asks whether a physician who slipped and grabbed onto a patient following surgery
is negligent as a matter of law.

Kemper v. Gordon
Medical Malpractice

This appeals stems from an action alleging negligence in physician’s failure to diagnose cancer
timely (Loss-of-Chance). Issue relates to Appellate court recognizing the cause of action for lost
chance of survival in instances where chance of survival or recovery is 50% or less at time of
alleged act.


    State Farm Mut. Auto Ins. Co. v. Gutierrez
    The Supreme Court is reviewing the issue of whether bad faith claims should generally be
    bifurcated from the underlying claim.

    Indiana Ins. Guaranty v. Bedford Reg. Medical
    The Supreme Court is reviewing the issue of whether the Indiana Guaranty is required to pay the
    lost wages claim of a deceased patient in a medical malpractice action.

    Meyers v. Meyers
    The Supreme Court is reviewing whether an employee’s retaliatory discharge claim after
    exercising his statutory right to overtime pay falls within the public policy exception to the
    employment at will doctrine.

    Ford Motor Co. v. Rushford
    The Supreme Court is reviewing the denial of Ford’s motion for summary judgment on the issue
    of whether Ford provided adequate warnings regarding the danger posed by an automobile

    Row v. Holt
    The Supreme Court is reviewing a reversal of summary judgment on the issue of whether local
    law enforcement officials are entitled to qualified immunity on false arrest or false imprisonment


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