Sean Ragland and John Phillips recently won Overstreet, et al. v. Mayberry, et al., 2019-SC-000041-TG

John Phillips and Sean Ragland recently won dismissal of Plaintiffs’ Complaint from the Supreme Court of Kentucky on behalf of their client, a former trustee of the Kentucky Retirement System (KRS). Plaintiffs, eight retired public employees and current members of the KRS’s defined-benefit retirement plan, brought suit against several former KRS trustees and officers alleging mismanagement of KRS fund investments resulting in the loss of over $100 million. Plaintiffs, however, according to the Supreme Court, failed to demonstrate a necessary element of constitutional standing under Kentucky law: an injury in fact that is concrete, particularized, and actual or imminent. The Court reasoned that because the Plaintiffs did not and could not claim that their vested or expected retirement benefits were reduced or otherwise made unavailable, they lacked standing to bring the entire action.

Daniella Blaine, Administratrix of the Estate Of Kenneth H. Cross, II, Deceased v. Louisville Metro Government; Corizon, Inc.

Daniella Blaine, Administratrix of the Estate Of Kenneth H. Cross, II, Deceased v. Louisville Metro Government; Corizon, Inc.; et al. 3:13-cv-00427-CRS, 768 Fed. Appx. 515 (6th Cir. 2019)

Sean Ragland and Jack Phillips recently defended an award of summary judgment to their clients, Corizon, Inc. and two employed nurses, in a 42 U.S.C. § 1983 “deliberate indifference” case before the United Stated Court of Appeal for the Sixth Circuit. The Plaintiff claimed that her brother suffered neglect and deliberate indifference in violation of his constitutional right to medical care when he died of a drug overdose while in custody at a Louisville Metro Department of Corrections. Corizon, a correctional facility healthcare services provider, and the nurses were found to have provided appropriate assessment, management, and monitoring of Mr. Cross by the U.S. District Court in the Western District of Kentucky and the Sixth Circuit. The case will now be remanded to Jefferson County Circuit Court for continued litigation of the Plaintiff’s state law claims of negligence, gross negligence, and wrongful death.


Merritt v. Catholic Health Initiative, Inc., et al., 2018-SC-000155-D

Bill Orberson and Jack Phillips recently drafted and filed an Amicus Curiae brief on behalf of the Kentucky Defense Counsel in an appeal to the Supreme Court of Kentucky regarding an attempt to expand third-party bad faith law in Kentucky. Arising from a medical malpractice case, the Plaintiffs/Appellants brought third-party bad faith claims under Kentucky’s Unfair Claims Settlement Practices Act (UCSPA) against the medical Defendants’ wholly-owned captive self-insurer, First Initiatives Insurance, Ltd., and First Initiatives’s parent company, Catholic Health Initiatives, Inc.

The trial court granted summary judgment to First Initiatives and Catholic Health because it found First Initiatives to be a pure captive subsidiary of Catholic Health and thus the self-insurer is exempt from bad faith liability under the UCSPA. The Court of Appeals affirmed, and the Supreme Court granted discretionary review. In a “friend of the court” brief, the KDC argued that the Court of Appeals decision should be affirmed and that captive self-insurers should not subsumed within the UCSPA. The KDC stressed the Supreme Court’s recent reluctance to expand bad faith liability, analyzed what it means to engage in the business of insurance in Kentucky, and presented practical economic and policy implications supported by academic studies.

Oral arguments will likely be held in this case, and a decision is not expected for several months.

Encompass Indemnity Company, et al. v. Richard Tryon, et al., 2014-SC-000354 & 2014 SC-000357, 502 S.W.3d 585 (Ky.2016)

Bill Orberson and Tricia Le Meur successfully pursued an appeal of a Court of Appeals decision requiring Encompass to provide coverage for injuries arising from the Plaintiff’s use of a motorcycle that he insured with a different company. The plaintiff in this case separately insured his vehicles, two cars and a motorcycle, with three different insurance companies. He was injured while riding his motorcycle and sought underinsured motorists (UIM) from all three insurers. Encompass, which insured one of the plaintiff’s cars, disputed coverage based on its clear policy provision excluding UIM coverage for the plaintiff’s use of another vehicle owned by him but not insured under the Encompass agreement (typically referred to as a “regular use exclusion”). Kentucky’s Supreme Court, reversed the Court of Appeals, holding that UIM coverage exclusions such as this are permissible under Kentucky law. Specifically with respect to Encompass, the Court held that its UIM regular use exclusion was “a clear and unambiguous statement that the policy does not pay benefits for vehicles it does not insure,” and that the plaintiff did not have any reasonable expectation of coverage for his motorcycle accident from his Encompass policy insuring only his car.

Louisville/Jefferson County Metro Government v. Betty Braden, Individually and as Administratrix of the Estate of Don W. Braden, et al. , 2015-CA-001238, 519 S.W.3d 386 (Ky.App.2017)

The Court of Appeals in this case determined that the Claims Against Local Governments Act (CALGA) does not obligate local governments to defend or indemnify employees for actions outside the scope of their employment. Bill Orberson and Tricia Le Meur represented Louisville Metro in this matter stemming from a motor vehicle accident in which an off-duty police officer was operating a police take-home vehicle. Pursuant to the agreement governing use of the take-home vehicle, the City provided $100,000 in liability coverage for the officers’ off-duty vehicle use. The Circuit Court granted summary judgment in favor of the plaintiffs, holding that the officer’s off-duty compliance with standard operating procedures (SOPs) brought him within the scope of employment and triggered the City’s duty to provide unlimited indemnification pursuant to CALGA. The Court of Appeals reversed, holding that this was an untenable expansion of Louisville Metro’s duties, in contravention of clear statutory language. It specifically rejected the contentions that officers participating in a take-home vehicle program always act within the scope of their employment, no matter how personal their off-duty actions or how miniscule the benefit to their employer. The Court of Appeals remanded the case with instructions to enter judgment in favor of Louisville Metro.

Other Appellate Cases

Louisville Peterbilt, Inc. v. Cox
132 S.W.3d 850 (Ky. 2004)

Bank One, Kentucky, N.A. v. Murphy
52 S.W.3d 540 (Ky. 2001)

Brierly v. Alusuisse Flexible Packaging, Inc.
184 F.3d 527 (6th Cir. 1999)

Mackey v. Greenwood Hospital, Inc.
587 S.W.2d 249 (Ky. App. 1979)

Degener v. Hall Contracting Corporation
27 S.W.3d 775 (Ky. 2000)

Jacob Gingerich et al. v. Commonwealth of Kentucky

Court Opinion

The series of appeals clarified the standard of review to be applied to religious freedom claims made under Kentucky’s Constitution. (This opinion has since been nullified by passage of HB 279 in March 2013.) Most religious freedom claims brought under the United States Constitution are subject to rational basis scrutiny. However, Kentucky case law was unclear as to which level of scrutiny – i.e., rational basis or strict scrutiny – should apply to state law religious freedom claims. The appellants in these cases are members of the Schwartzentruber Amish community in northern Kentucky. Based on their religious beliefs regarding use of colors and man-made symbols, they refused to affix a slow-moving vehicle emblem (orange and red triangle) on their buggies. Instead, they placed grey reflective tape around the entire perimeter of the backs of their buggies and used lanterns. They appealed their criminal convictions, claiming that use of the slow moving vehicle emblem significantly burdened their sincerely held religious beliefs and that use of the reflective tape and lanterns satisfied the state’s safety concerns without imposing a burden on their religious freedom. Kentucky’s Supreme Court held that the freedom of religion clause in the Kentucky Constitution should be construed consistently with that contained in the U.S. Constitution and that laws of general applicability which infringe upon religious freedom are subject to rational basis scrutiny. Under this ruling, Amish buggy drivers must utilize the slow moving vehicle emblem.

Norton Hospitals, Inc. et al. v. Peyton

Court Opinion

Joseph Effinger and Patricia Le Meur successfully defended summary judgment granted to their client, Norton Hospitals, Inc. This medical negligence case involved the removal of a newborn from its mother while they were both in the hospital based on a good faith, but erroneous, reading of a maternal blood alcohol test requested by protective services. Kentucky requires that known or suspected cases of child abuse be reported. To encourage reporting and to eliminate fears of potential lawsuits, Kentucky also provides immunity from criminal and civil prosecution where the person who reports suspected child abuse acts upon reasonable cause or in good faith. Kentucky’s Supreme Court held that the trial court had correctly applied the immunity statute in this case and reinstated the trial court’s grant of summary judgment to the hospital and treating physician.