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.

Porter v. Allen

Case Summary

Bill Orberson and David Giesel successfully defended a personal injury action brought against their client in Jefferson Circuit Court. Plaintiff claimed significant damages as a result of a three-car motor vehicle accident which took place on 11/06/14. The initial impact between the defendant’s vehicle and the center car was significant and caused the center vehicle to rear end the plaintiff’s car. The severity of the impact between the center car and the plaintiff’s vehicle was contested. The defendant conceded fault and the case was tried solely on the issue of damages. Plaintiff claimed cervical disc bulges/protrusions and a shoulder injury. She sought medical expenses in the amount of $16,500, lost income in the amount of $3,600, and pain and suffering in the amount of $300,000. The case was tried over three days and the jury awarded $3,249.25 for medical expenses and nothing for lost wages or for pain and suffering. Because of the “set off” provided in the Kentucky Motor Vehicle Reparations Act, judgment in the defendant’s favor was granted.

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.

PPOA Attorneys Selected as SuperLawyers

William Orberson and Joseph M. Effinger were selected as SuperLawyer® in Civil Litigation Defense; John W. Phillips, Susan D. Phillips, and John F. Parker were selected in Medical Malpractice Defense; and Patricia Le Meur, M. David Thompson and Nicholas R. Hart were chosen as Rising Stars for 2015.

Trucking Liability Case

Bill Orberson, of the Louisville office, and Jane Higgins, of the Lexington office, successfully defended a trucking liability case before the Hardin County Circuit Court.

The subject accident occurred on I-65, after the co-defendant swerved into our client’s lane and was struck in the rear by our client’s truck. The co-defendant then struck the Plaintiff, a commercial truck-driver, who was changing a tire on the shoulder. The Plaintiff claimed damages in excess of $1,000,000 for mild traumatic brain injury, PTSD, and herniated discs in his lower-back. On the second day of trial, but before the Plaintiff closed his case, Bill and Jane successfully moved for a directed verdict, arguing that the Plaintiff had failed to prove, and could not prove, any breach of duty against our client.

This was Bill’s 4th career directed verdict.