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.

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.

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.

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)