Kentucky Court Report - SCOKY & COAKY

TORTS (wrongful termination): Brett v. Media General Operations, Inc. (COA 1/29/2010)

Brett v. Media General Operations, Inc.
2008-CA-000620 01/29/2010 2010 WL 323136

Opinion by Senior Judge Harris; Judges Lambert and VanMeter concurred. The court affirmed a summary judgment entered by the circuit court in favor of appellant’s former employer, a television station, and its general manager and an order awarding costs to the employer. The Court first held that summary judgment was not based upon improper evidence when the majority of the proof consisted of witness depositions that were properly certified and notarized. Further, appellant’s deposition was complete, as he did not request a re-direct examination, nor did he file an affidavit to explain, correct, or contradict the testimony he gave under examination by opposing counsel, which was authorized by CR 56.03. The Court also held that although the employer and general manager may have violated office policies by destroying documents, appellant failed to demonstrate that any law or court orders were violated or that they were lost or destroyed in anticipation of litigation. The Court next held that appellant failed to present evidence demonstrating any genuine issue of material fact on his breach of contract claim. His contract contained a morals clause and his termination letter made it clear that he was terminated for cause after four women complained that he had sexually harassed them on numerous occasions. Absent a specific contractual provision, the employer was under no obligation to provide additional investigative measures or an opportunity to be heard. The Court next held that appellant failed to demonstrate the existence of any genuine issue of material fact on the basic element of material misrepresentation to support his claim that he was fraudulently induced into entering the employment contract. The Court next held that appellant failed to show how his allegations of misrepresentations and improper termination constituted contractual interference. The Court next held that appellant failed to specifically describe any alleged defamatory statements or state where they were published to show how the employer was responsible for dissemination of information to support a claim for defamation. The Court next held that appellant failed to produce evidence to show that his termination was outrageous or intolerable in the manner required under Kentucky law to support his claim for intentional infliction of emotional distress. The Court finally held that the ruling by the Kentucky Supreme Court in the employer’s favor, in an original action wherein appellant argued that the trial court lost jurisdiction under CR 52.02 to award costs after appellant filed his Notice of Appeal, was dispositive of the appeal from the order awarding costs.

INSURANCE - UIM, "Coots" Notice of Tender requirements per KRS 304.39-320: James Malone v. Kentucky Farm Bureau Mutual Insurance Company (SC 6/25/2009)

James Malone v. Kentucky Farm Bureau Mutual Insurance Company
2007-SC-000468-DG June 25, 2009
Opinion by Justice Abramson; all sitting.

After sustaining injuries in a car accident, Malone sued the other driver and Malone’s underinsured motorist carrier (KFB). The tortfeasor’s insurer offered to settle for the policy limits and Malone’s counsel sent a certified letter to KFB indicating Malone was “considering whether to accept” the offer and demanding that, consistent with KRS 304.39-320 and Coots, that KFB either consent to the settlement or preserve its subrogation rights by advancing a check for the amount equivalent to the tortfeasor’s policy limits. KFB responded to the letter, advising Malone’s counsel to notify KFB when his client had made a final decision on the settlement offer from the tortfeasor’s insurer. Malone subsequently accepted the settlement offer and executed a release. KFB then filed a motion for summary judgment which the trial court granted on the grounds that Malone’s UIM claim was extinguished for lack of proper notice to KFB of the settlement. The Court of Appeals affirmed.

The Supreme Court affirmed, holding that KRS 304.39-320 requires notice to the UIM carrier when the injured party “agrees to settle.” Since Malone’s letter merely stated the offer was being considered, there was no agreement in place and notice to KFB was insufficient. The Court rejected Malone’s argument that he had substantially complied with the intent of the statute, noting that the central underpinning of the statute was the existence of a binding agreement to settle between the injured party, the under-insured motorist and the under-insured motorist’s liability carrier. Justice Cunningham (joined by Justice Schroder and Justice Scott) dissented, asserting that the letter satisfied the notice requirements and that the majority was, in effect, adopting a “magic phrase” component. The dissent contended that the majority was focusing solely on the “considering whether to accept” phrase while ignoring the plain meaning of the overall letter. The minority discounted KFB’s response to Malone’s letter saying objective analysis trumped KFB’s subjective interpretation.

SETTLEMENTS & RELEASES - Hold harmless, indemnity, and applicability to PIP claims: Myanh Coleman v. Bee Line Courier Service, Inc. (SC 5/21/2009)

Myanh Coleman v. Bee Line Courier Service, Inc.
2007-SC-000628-DG May 21, 2009

Opinion of the Court. Justice Abramson not sitting.

Coleman suffered injuries in an accident involving a vehicle owned by Bee Line. She received $5,737 in basic reparation benefits (BRB) from her insurer, Nationwide, before settling with Bee Line for $6,500. As part of the settlement with Bee Line, Coleman signed a release in which he agreed to indemnify Bee Line for all claims “against the proceeds of the settlement.” Nationwide then sought reimbursement of its BRB payment from Bee Line in arbitration proceedings. After agreeing to pay Nationwide $4,737, Bee Line demanded indemnity from Coleman. When she refused, Bee Line filed suit. The trial court awarded summary judgment to Bee Line, holding she was contractually obligated to reimburse Bee Line for the payment. The Court of Appeals affirmed.

The Supreme Court reversed, holding that the language of the agreement limited indemnity to “claims against the proceeds of the settlement” of personal injury tort claims and did not include BRB benefits. The Court declined to address the issue of whether a sufficiently specific agreement to indemnify the tortfeasor for BRB recoupment claims would contravene the purposes of Kentucky’s Motor Vehicle Reparations Act.

Justice Noble (joined by Justice Venters) concurred in result only, contending that the Court should have addressed the “next question” regarding the propriety of tortfeasors extracting BRB recoupment agreements when settling claims. The minority asserted that the legislative intent and public policy behind the MVRA prohibit such agreements.

SETTLEMENTS: Mediation agreement terms enforced: Spot-A-Pot, Inc. v. State Resources Corporation (COA 2/13/2009)

Spot-A-Pot, Inc. v. State Resources Corporation
2007-CA-002018
02/13/2009
2009 WL 350646
Opinion by Judge Thompson; Judges Lambert and Stumbo concurred.

The Court affirmed an order of the circuit court enforcing a settlement agreement resulting from a mediation related to financing for appellants’ business operations.

The Court held that the trial court did not err in granting appellee’s motion to enforce a settlement agreement that appellee proposed. The bullet-point document generated at a mediation conference did not encompass the entire agreement of the parties and therefore, the trial court properly considered extrinsic evidence to discern the intent of the parties. The Court declined to address appellants’ argument that the trial court failed to render sufficient findings of fact to support its order and judgment, as appellants failed to request specific findings pursuant to CR 52.04.