Épisodes

  • Kentucky's Firefighter's Rule (First Responders)

    Kentucky's Firefighter's Rule (First Responders)
    Nov 25 2024
    Episode 11: Louisville attorneys Rob Mattingly and Kevin C. Burke unpack Kentucky’s Firefighter’s Rule. A recent opinion by the Supreme Court has resulted in a flurry of comments on social media. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: Lauren comments she recently saw the Supreme Court issued a new opinion about the Firefighter’s Rule in Wooster Motor Ways, Inc. vs. Gonterman (10/24/24). It’s a hot topic on social media. She asks Rob and Kevin to provide details about this rule. Kevin submitted an amicus brief, on behalf of the Kentucky Justice Association for the Wooster case. What Is the Firefighter’s Rule? Kevin begins by explaining what the rule is. In its most basic form, it bars public employees (such as firefighters, police officers, EMTs, etc.) who are exposed to risks as part of their normal job activities, from recovering damages for injuries from the property owner or the person who may have caused the situation (e.g. the arsonist). The rule is a misnomer. This is not a rule the firefighters or other first responders actually want. Rob mentions it’s also referred to as a professional rescuer’s rule or a first responder’s rule. Rob goes on to advice attorneys to review this rule, if they are approached by an injured first responder regarding a claim for the injuries they suffered. While they may have a workers’ compensation claim, the other types of personal injury claims wouldn’t typically apply. Public Policy Rational for the Rule Rob and Kevin comment that the general public policy is that we want someone who has a fire or other emergency to call 911, rather than worrying about the potential legally liability should one or more of the first responders get injured while resolving the emergency situation. However, could this rule also discourage people from pursuing first responder jobs, if they know they can recover damages as compared to other people? Public vs. Private Employees Lauren asks about a healthcare professional, such as a nurse, who encounters a car wreck. Aren’t they compelled to render assistance? If so, does the firefighter’s rule apply to them? Kevin points out that in Kentucky, the rule only applies to public employees, so a nurse or other healthcare professional would not be limited by the Firefighter’s Rule, were they to suffer an injury. The Origin of the Firefighter’s Rule Rob and Kevin discuss the origin of the Firefighter’s Rule, from a national perspective. The origin goes back to Gibson vs. Leonard, 32 N.E. 182 (Illinois 1892). This was the first case in the country that applied the Firefighter’s Rule. A Chicago warehouse fire occurred. The warehouse stored whiskey barrels. Mr. Gibson and his fellow firefighters responded. Back in the day, they part of the Fire Insurance Patrol. This was roughly 21 years after the great Chicago fire). The Patrol was created by the insurance agencies to protect the assets of the businesses they insured, in the case of a fire. Note: The Fire Insurance Patrol and the Chicago Fire Department both responded to the warehouse fire. The Fire Insurance Patrol is tarping the area and moving the barrels in an effort to prevent them from being destroyed. Mr. Gibson and others place some of the barrels into the lift elevator to move them to a different location. The lift fails, causing an injury to Mr. Gibson. He later attempts to sue the owners of the building for his injuries. The Illinois Supreme Court said both the Chicago Fire Department and the Fire Insurance Patrol were responding to the fire and had a right to be there and their attempts to save the building and its assets were justified. The public policy was to encourage people to call the fire department in the case of an emergency. This was not only to put out the fire, but to also prevent it from spreading to adjoining properties. The Court created the rule of non-liability, acknowledging that firefighters assume the liability for potential injury as part of their job. Rob explains that on a national basis, some jurisdictions have adopted the rule, while others have rejected it. The trend tends toward more courts now rejecting the rule. Kentucky’s Adoption of the Firefighter’s Rule The first Kentucky case Rob and Kevin address is Buren vs. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964). This is the case that establishes the Firefighter’s Rule in Kentucky. In this situation, Louisville firefighters were called to a fire in a commercial building. The building included a bowling alley, restaurant and storage space. There were several factors that may have led to the rapid spread of the fire. One or more firefighters were injured while ...
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    1 h et 16 min
  • KRS 411.188 - Mandatory Notice of Subrogation Rights

    KRS 411.188 - Mandatory Notice of Subrogation Rights
    May 23 2024
    Episode 10: Louisville attorneys Rob Mattingly and Kevin C. Burke recorded an episode during a CLE conference in Las Vegas, in front of their colleagues. Several of them stepped up to the microphone to as a few questions. Let’s join Rob and Kevin as they discuss KRS 411.188 – Mandatory Notice of Subrogation Rights. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: Opposing counsel claims medical expenses must be excluded because we didn’t file our KRS 411.188 notice. How should we handle that? Understanding KRS 411.188 Kevin begins by reviewing the statute. The notice provision is addressed in Sections 2 and 4: 2) At the commencement of an action seeking to recover damages, it shall be the duty of the plaintiff or his attorney to notify, by certified mail, those parties believed by him to hold subrogation rights to any award received by the plaintiff as a result of the action. The notification shall state that a failure to assert subrogation rights by intervention, pursuant to Kentucky Civil Rule 24, will result in a loss of those rights with respect to any final award received by the plaintiff as a result of the action. 4) A certified list of the parties notified pursuant to subsection (2) of this section shall also be filed with the clerk of the court at the commencement of the action. Kevin explain that the legislature passed a comprehensive set of bills related to civil actions, in 1988. The statute was part of HB551 (a tort reform bill), refer to Section 4. O’Bryan vs. Hedgespeth was discussed in Episode 7 of the podcast focusing on the Collateral Source Rule. Several sections have since been ruled unconstitutional. Rob and Kevin note that Section 2 provides that the plaintiff shall give notice to parties which are subrogation holders (i.e. health insurance companies, workers’ comp carrier, STD or LTD carrier, etc.). Section 4 requires that the plaintiff also file notice with the court that the notice was given. How to Comply with KRS 411.188 Rob explains there are basically 2 ways to do this. In his notification letter to subrogation holders, he includes the following: “I have read KRS 411.188 and that statute says I must tell you that you must intervene. If you don’t intervene, you lose your subrogation rights.” This ensures Rob has complied with the Section 2 requirement. Rob, then, files a Notice to Subrogation Holders pleading, in circuit court, with the following language: “Please be advised that as of [insert date], I have sent notice of the duty to intervene to the following subrogation holders: [insert list].” This ensures Rob has complied with the Section 4 requirement. After filing the pleading, Rob attaches a copy of the pleading to the letter he sends to the subrogation holders, via certified mail. This process takes minimal time and is worth the effort. Rob and Kevin comment on how defense attorneys are beginning to use violations of KRS 411.188 more frequently. Kevin has seen other firms comply using a slightly different process. You could include a Certificate of Compliance with KRS 411.188, within the complaint. This would include a list of the subrogation holders you are notifying. This would then be filed without the need for a separate document. Providing Notice to the Subrogation Carriers Who are you actually required to notify? Rob and Kevin discuss the PIP carriers for automobile accident cases. Kevin points out the Motor Vehicle Reparations Act (MVRA) is a comprehensive statute. PIP, or no-fault coverage, is a separate part of the MVRA and is not covered by KRS 411.188. Not notifying the no-fault carrier doesn’t mean you have failed to comply. Rob mentions Ohio Casualty Insurance Company vs. Ruschell, states the “notice provision does not apply to my PIP carrier.” Kevin explains how the MVRA abolished, with conditions, the tort liability for anything covered by PIP. Again, you do not have to send notice to the PIP carrier. When Added Reparations Benefit Coverage Has Been Purchased Kevin explains that in situations wherein added PIP coverage has been purchased, there is a State Farm case that says Added Reparations Benefits (ARBs) are considered to be the same as PIP. Do I Need to Give Notice to the Workers’ Comp Carrier? Kevin says this is the exact opposite analysis. Kentucky workers’ comp benefits are paid pursuant to KRS Chapter 342. It contains a specific subrogation section (KRS 342.700). Subsection 1 specifically says you must notify the workers’ comp carrier pursuant to KRS 411.188. Question from Attorney Mark Smith Conference attendee, attorney Mark Smith asks a question about when a case involves both workers’ comp and an auto accident (“a hybrid case”...
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    1 h
  • Recovery of Social Security Benefits in a Wrongful Death Action

    Recovery of Social Security Benefits in a Wrongful Death Action
    Feb 13 2024
    Episode 9: Louisville attorneys Rob Mattingly and Kevin C. Burke explore the issue of whether social security disability benefits, or other entitlement-type programs, can be recovered in a wrongful death claim. Lauren received this question from the listeners. Rob and Kevin will provide insights, based on Kentucky law, in today’s episode. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: Are social security benefits recoverable in a wrongful death claim? Before answering the question, context is important. Let’s establish a foundation for the discussion. Destruction of Power to Labor and Earn Kevin begins by noting that wrongful death in Kentucky isn’t just based on case law and/or statute. It’s actually provided for in Kentucky’s Constitution. Section 241, states, “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death.” As a result, we now have KRS 411.130. Included in this is the provision for punitive damages if the act was willful or involved gross negligence. Aull v. Houston This is a 2010 Kentucky court of appeals case. It involved the death of a 5-year old child. The child was born with a severely disabling disease. The child obviously had no earning capacity. The original complaint involved a medical malpractice action involving immunizations that brought about the death of the child. The child had been receiving supplemental security income (SSI) benefits. The question was whether those SSI benefits were recoverable as part of the wrongful death action. In circuit court, the parties briefed it for partial, summary judgement. The defendant filed the motion solely focusing on the child’s destruction of the child’s power to labor and earn money. The plaintiff’s estate admitted there was no way the child would earn money through labor. The court ruled social security benefits, under the facts of this case, were not recoverable in the wrongful death action. The parties asked the circuit court to certify the ruling as final and appealable with no just reason for delay, under civil rule 54.02. The court certified it. Remember, this only resolved one element of damages in the case. Kevin notes the case went to the court of appeals as a case of first impression for Kentucky courts, but not in federal district court applying Kentucky law. Lauren comments that the court cites Meinhart v. Campbell. This was a 2009 federal district court case involving a wrongful death. The deceased was receiving social security disability insurance benefits (SSDI), prior to the death. The court was dealing with a case of first impression, in this instance. The court held the SSDI benefits payments could include the disability benefits in determining the wrongful death damages. The decision was likened to other cases wherein a pension could be recovered in wrongful death action. The Kentucky appellate court in Aull v. Houston recognized that federal district court opinions have only persuasive value in Kentucky appellate cases. It viewed social security benefits are not an element of the destruction of the power to labor and earn money. Therefore, “social security benefits” can’t be added to the damages. Rob comments that Aull never distinguished between the different types of social security benefits. Savage v. Co-Part This is a 2023 Kentucky Supreme Court case. Rob notes the procedure in the case is difficult of follow, but it’s relevant for the discuss of this episode’ focus on social security benefits. It did some very important things for Kentucky families. Rob and Kevin specifically recognize the work done by the Richard Breen Law Offices, in Louisville, for the work they did on this case. They also recognize Calloway County attorney Jeff Roberts who wrote the amicus brief on this specific issue. Savage v. Co-Part is a wrongful death case involving a car wreck. Mr. Savage was receiving social security disability insurance payments (SSDI). The Kentucky court of appeals questioned Aull v. Houston. Did the opinion in that case actually extend to SSDI? The court did an analysis and essentially flagged it for the Kentucky Supreme Court. Once it was accepted for Discretionary Review, the Kentucky Justice Association urged Jeff Roberts to file an amicus brief. The Kentucky Supreme Court examined the reasoning behind the court of appeals’ decision in Aull and determines that the reasoning does not apply to social security disability benefits. The Court found that SSDI is not an entitlement program, unlike supplemental security income (SSI). In fact, the court of appeals opinion in Aull...
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    48 min
  • Admissibility of Police Reports and Their Content

    Admissibility of Police Reports and Their Content
    Jan 31 2024
    Episode 8: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss whether police reports are admissible. It’s a concern client often bring up during initial conversations with their attorneys. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. Lauren begins by commenting on the number of responses to the recent poll asking about topics and other subject matter the audience would like to Rob and Kevin to address in upcoming episodes. The feedback was terrific. As we dive into the topic, Kevin brings up a favorite answer given by many attorneys, “Well, it depends.” The general rule is that, in Kentucky courts, police reports are inadmissible as hearsay. Kentucky Rule of Evidence 803 contains the basis for what is not excluded by the hearsay rule. In sub-section 6 it lists records of regularly conducted activity (e.g. the business records exception). Sub-section 8 deals with public records and reports (e.g. the public records exception). Specifically, 8(A) focuses on investigative reports by police and other law enforcement personnel. This establishes police reports are not an exception to the hearsay rule. Manning v. Commonwealth Kevin summaries this Kentucky Supreme Court case, from the year 2000, which directly cites to KRE 803(6). In Manning vs. Commonwealth, the defendant in the murder case wanted to introduce the police report. The report identified someone other than the defendant as the possible perpetrator, based on the statements of an unidentified witness. The trial court ruled the police report was inadmissible as hearsay. The Supreme Court affirmed the decision. It was properly excluded under KRE 803(6). The Court also cites the Kentucky Evidence Law Handbook. Rob comments about the double hearsay issue because the report itself is hearsay, about someone else who’s making hearsay comments. The Supreme Court also cited Prater vs. Cabinet for Human Resources, dealing also with KRE 803(6). The opinion did note that the defense was able to ask the officer about the conversation with the unidentified witness, during cross-examination. That testimony was admissible, even though the actual police report was not. Rob notes that they didn’t have to consider the admissibility under KRE 803(8)(A), because it was obvious. However, the question was whether KRE 803(6) applied. Gorman v. Hunt This is a civil case. Gorman v. Hunt is another Kentucky Supreme Court decision from 2000. It’s often referred to as the “posed photograph case.” This was an automobile verses pedestrian case. The issue was whether posed photographs could be admitted and shown to the jury. Rob clarifies the case serves as an example of whether someone can recreate the area and taking photographs of the area. They’ve posed the scene. This case refers to an Advanced Life Support (ALS) Report, which would have been prepared by EMS personnel. In the opinion, it’s not referred to as a police report, but it’s functionally the same thing. The plaintiff wanted to use the ALS run report to show the defendant driver was exceeding 50 mph, at the time of the collision. The speed was based on testimony from unidentified bystanders. At trial, the court ruled the ALS run report was inadmissible. The court of appeals affirmed the verdict. The Supreme Court took it up on discretionary review. The Court ruled that the trial court had ruled properly with regard to the ALS run report. Campbell v. Marcum This 1968 automobile accident case addressed the admissibility of police reports and the information contained therein. This collision involved two vehicles. A Kentucky State Trooper completed the police report. The question was whether the trooper could read from his report, while on the stand. The defendant wanted this testimony from the trooper. However, the trial court refused to allow a reading from the police report. This issue was appealed. The appeals court affirmed the trial court’s ruling that prohibited the trooper from reading the report aloud. Kevin comments that no authority was cited regarding the admissibility of the report. Instead, a general treatise (not a Kentucky treatise) was used. It did not directly address hearsay. Admissions by Parties and Prior Inconsistent Statements Rob and Kevin will discuss two cases dealing with this topic. Again, clients often have questions about police reports, how they are going to be used and how to get statements either clarified or corrected. Day v. Commonwealth (2007) This is a criminal case involving a DUI conviction. Tammy Day was given a 7-day sentence with work release. During this time, her daughter was in a car wreck. Tammy petitioned for time to tend to her daughter. The ...
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    1 h et 1 min
  • The Collateral Source Rule

    The Collateral Source Rule
    Jan 11 2024
    Episode 7: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss the history of the Collateral Source Rule and the Kentucky Supreme Court decided to Kentucky will follow this particular rule. They’re joined by Rob’s paralegal, Lauren Hincks, who helped research some of the information for today’s topic. The discussion references the following case: O’Bryan vs. Hedgespeth (https://case-law.vlex.com/vid/bryan-v-hedgespeth-no-895448427) Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. Kevin begins the discussion by stating this is one of the seminal cases for plaintiff’s attorneys, whenever medical expenses are at issue. It’s a 1995 Kentucky Supreme Court opinion. However, attention should be given to where it started in 1988, with Kentucky House Bill 551. The resulting statute is KRS 411.188 requiring admission at trial of collateral sources. What Are Examples of Collateral Sources? Rob mentions a very common one is the mentioning, at trial, of health insurance that might have paid some of the medical expenses. Another example could involve short-term or long-term disability benefits that were received. Collateral sources are typically benefits the plaintiff paid for or earned, so the question is should this evidence be admissible at trial? Historically, Kentucky law did not consider this type of evidence admissible. The legislature attempted to change that in 1988. As a result, a judge has no discretion and they jury must hear about the collateral sources (regardless of the relevancy). Edwards vs. Land actually went up before the O’Bryan case and is referenced in the O’Bryan opinion. It was heard before the Kentucky Court of Appeals. The opinion validated the actions of the Kentucky Legislature. A Common Misconception Regarding Discretionary Review Rob points out that the Kentucky Supreme Court did not review Edwards. Kevin clarifies a misunderstanding in appellate practice regarding the Court’s denial of discretionary review. Just because the Court chooses not to review Court of Appeals opinion, does not necessarily mean that the Supreme Court agrees with the Court of Appeals. This particular issue is included in O’Bryan. O’Bryan vs. Hedgespeth and the Motion in Limine Rule The plaintiff in the case filed a motion in limine to exclude collateral sources. The defendant argues the statue should be followed. The court agreed with the defendant. The plaintiff now must decide whether to bring up in voir dire or to wait to let defense bring it up. If the plaintiff brings it up, have they waived the remedy on appeal? In O’Bryan, the Supreme Court said the plaintiff didn’t waive the remedy. The plaintiff is not required to wait. Rob view this through the lens of fairness. If you filed a motion in limine and the court denied it, then it should be fair that you have the opportunity to bring it up, first, without having to wait. Kevin agrees. However, he advises attorneys to make sure they have a ruling on the record. The Constitutional Phase The plaintiff made several arguments as to why 411.188 was unconstitutional. The first argument involved Section 51, the Subject Title Clause. In essence, if you have a title for a Bill and the subject doesn’t relate to the title, it’s a problem. Kevin explains how Kentucky’s Constitution was designed to limit the General Assembly’s power to engage in shenanigans. The Court found that there was not a violation of Section 51. However, it left the door open as to whether other topics not related to collateral sources, would satisfy Section 51. The next issue dealt with separation of powers. Kevin remarks how Kentucky’s approach to this issue created some of the strongest provisions of any state constitutions. Sections 27, 28 and 116 focus on the separation of powers. The Court reviewed whether the Kentucky Legislature telling the courts they needed to allow collateral sources actually violated the separation of powers. Section 116 was of particular interest, because it grants exclusive authority to the courts, including the Kentucky rules of evidence. Rob comments about the historical issue regarding the understanding of where one branch’s power ends and the others begin. The Court found that 411.188 Subsection 3 actually does violate the separation of powers. The Court also addressed the doctrine of comity. This doctrine says the Kentucky Supreme Court can, under certain circumstances, give deference to the Legislature, even though it might violate the separation of powers (in this instance). The Court found that the information was irrelevant. It doesn’t address harm, fault or damages. Thus, it decided not to give comity to the Legislature. Next, the Court ...
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    36 min
  • Admitting Summaries of Information at Trial

    Admitting Summaries of Information at Trial
    Jan 11 2024
    Episode 6: Louisville attorneys Rob Mattingly and Kevin C. Burke explain the rules regarding the process for using summaries at trial, in Kentucky. These can be extremely useful, but you have to follow the process to get them admitted. They’re joined by Rob’s paralegal, Lauren Hincks. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: What is the proper process for admitting some of my summaries, while excluding some of the defense’s summaries? Rob begins by reading KRE 1006, which specifically dealing with summaries. Kevin likes how well the rule lays out the process. It’s a useful tool for trial. He points out the verbiage, “…the contents of voluminous writings, recordings or photographs…” So, there has to be a lot of them that can’t conveniently be presented in court. The rule goes on to state, “[They] may be presented in the form of a chart, summary or calculation.” This gives the attorney some latitude. The rule requires timely notice be filed with the court regarding the intention to use a summary. The originals or duplicates will also need to be made available for examination and/or copying. At the time of this recording, there are 11 cases citing the rule (6 civil, 4 criminal and 1 family law). Using Summaries for Medical Bills The 2007 case Walls vs. Robinson is an unpublished opinion from the KY Court of Appeals, involving a motor vehicle accident. The plaintiff read a summary of the medical expenses, and summary was admitted as an exhibit. The defendant objected. It was one of the issues that was appealed. The court decided it was proper for the plaintiff to have both read and admitted the summary into evidence. Medical bills are an exception to the hearsay rule (KRE 803(6)). The underlying information was not hearsay. You can’t convert inadmissible information into admissible information by using a summary. The case was reversed, but on a different point. The plaintiff indirectly referenced insurance in the closing argument. Defense objected to a “pot of money” statement. However, the court spoke directly to the issue involving the summary. Rob comments that another unpublished case, Almon vs. Mary Bullock and Safeco Insurance Company, is useful if you need to argue summaries of medical expenses can be entered. This was another motor vehicle accident case. Bothe of the above cases are unpublished. For more information on the proper way to cite unpublished opinions, listen to Episode 5 of the Legal Notepad Podcast. What if Opposing Counsel Is Attempting to Keep Your Summary Out? It might be argued that the information is in fact not consider voluminous, therefore the summary doesn’t need to be admitted. Remember, if it’s admitted into evidence, it goes back to the jury room. Kevin discusses Haeberle vs. McCall (2007), another unpublished opinion from the KY Court of Appeals. This was an employment contract dispute involving a dentist and his employer. The dispute involved a lot of laboratory bills, spanning a 4-year period. It directly impacted Dr. Haeberle’s compensation. On appeal, the plaintiff (Haeberle) argued the summary should not have been admitted. They argued the amount of bills were not voluminous. Haeberle also argued the best evidence rule. The court dismissed these particular arguments. The defendant met the requirements of the rules. The court rejected the plaintiff’s argument that the records weren’t voluminous, based on Rule 1006. “Too burdensome to produce” was a made-up standard. The rule states that the information couldn’t conveniently be examined by the court. There were at least 4 years of bills. The summary was allowed. Rob emphasizes the nature of the word “convenient,” even though the information may not actually be voluminous. What If You or Opposing Counsel Failed to Give Notice? There are many reasons an attorney may not want to give notice of a summary (i.e. strategic reasons). However, the rule specifically requires notice to be given. However, what happens if you forgot or didn’t know 1006 exists? Can you still get the information in? Kevin refers two cases dealing with this issue. The first is Robinson vs. University of Kentucky Medical Center (2003 unpublished opinion). The second is Whitlow Construction and Development vs. Kentucky Bank. Both opinions said the summaries could not be used, because the attorney did not comply with Rule 1006. The evidence (i.e. the summaries) must be filed in a timely manner. Nonetheless, while the summaries are out, you can still get the evidence in through testimony of a witness. So, What Is Meant by Timely Filing? Rob often reviews trial orders. There is something ...
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    38 min
  • Unpublished Opinions and Supplemental Authority

    Unpublished Opinions and Supplemental Authority
    Jan 3 2024
    Episode 5: Louisville attorneys Rob Mattingly and Kevin C. Burke focus today’s discussion on the change to unpublished opinions. They’ll explain when you can cite them and the proper way to cite them. Kevin recently presented on this topic at a Kentucky Justice Association event. They’re joined by Rob’s paralegal, Lauren Hincks. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: What is the New Rule on Unpublished Opinions Relative to Kentucky Proceedings? Citation to unpublished opinions comes up fairly often for Kentucky attorneys. The Kentucky Court of Appeals publishes a list of new opinions on Fridays. Kevin notes that most of these are listed as, “Not to be published.” On 1/01/2023 a new set up appellate rules came out. These are referred to as the Rules of Appellate Procedure. Rule 41 (“Citation to Unpublished Opinions”) is the new, more specific rule on unpublished opinions. This replaces rule CR76284(C). Kevin notes Rule 41a specifically addresses unpublished, Kentucky opinions. Rule 41(A) According to the new rule, unpublished Kentucky opinions are not binding precedent and citations of these opinions is disfavored. However, as stated in the section, a party may cite to and rely on a not-to-be-published for consideration if there are certain conditions met. Condition 1: The unpublished opinion from the Kentucky Supreme Court or Court of Appeals was rendered after 01/01/2003. Unpublished opinion issued prior to this date cannot be cited. Condition 2: The unpublished opinion is final under Rule 40(G). Condition 3: There is no published opinion by the Kentucky Supreme Court or the Court of Appeals that would adequately address the point of law argued by the party. In other words, you have to rely on the binding precedent. Condition 4: If you’ve met the above 3 conditions, you still need to tell the Court, “This opinion is not binding authority.” Rule 41(B) This deals with unpublished opinions that are not from Kentucky. Unpublished opinions from other jurisdictions are not binding precedents. Citations of these unpublished opinions are disfavored. While the previously mentioned statement in Condition 4 (above) is not specifically mentioned, both Rob and Kevin agree it would be prudent to include, “This opinion is not binding authority.” Rule 41(C) This section deals with citations and copies. Under the new 2023 law, you are no longer required to attach the unpublished opinion to your brief, assuming you cite to the them the proper way. Rule 41(C)(1) when citing a not-to-be-published opinion of the Kentucky Appellate Courts, the party must provide the style, date and case number of the opinion. Kevin notes the rule provides a specific example of how to do this, properly. Section C notwithstanding, Kevin suggests you should attach the opinion, especially if it’s particularly favorable. Rob concurs with the inclusion of the unpublished opinion. The Rules of Appellate Procedure are meant to apply to all appeals. Kevin clarifies this would include the Court of Appeals, the Kentucky Supreme Court and Circuit Court (assuming you’re appealing a decision from a District Court). Kevin advises that when citing an unpublished, non-Kentucky opinion, you are not required to attach these opinions to your brief. However, you are required to provide a URL or other identifier permitting easy access to the opinion on a publicly-available electronic database. The other option is to simply include a copy of the opinion(s). Requirements in Non-Appellate Situations Rob set up the example of briefs being written in Circuit Court, thus not necessarily as part of an appeal (i.e. Motion for Summary Judgement, Motion to Dismiss, etc.). Do the new rules apply in these situations? Kevin recommends the 2023 rule be followed, even though it’s not required, in these situations. The caveat might be if you know something specific from your trial court judge. He/she may have a stated preference regarding citations, so use your best judgement. Again, Kevin stresses following the rule and informing the judge the citation is not binding and/or not final, if that’s the situation. How to Use a Decision Providing an Advantage Your Case? Lauren provides an example of a scenario in which the briefs have already been filed. Recently, however, a new case came down that would be advantageous to the case. How should they use this new decision? Kevin recommends that assuming the new decision complies with the rules, you may be able to rely on Rule 35. Rule 35(A) This rule deals with Recent Supplemental Authority. Even though you’ve already filed your brief, Rule 35(A) would allow you to cite the new opinion. It ...
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    32 min
  • Unpacking the Fratzke Opinion

    Unpacking the Fratzke Opinion
    Jan 3 2024
    Episode 4: Louisville attorneys Rob Mattingly and Kevin C. Burke continue their discussion of Kentucky law. They’re joined by Rob’s paralegal, Lauren Hincks. They’ll focus specifically on Fratzke. It’s an issue many attorneys get wrong. This episode continues a series of legally-focused episodes geared toward helping Kentucky attorneys. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: What is Fratzke and How Can Lawyers Avoid Making a Fratzke Mistake? Kevin starts off by citing the KY Supreme Court case of Fratzke v. Murphy, 12 S.W.3d 269. Rob summarizes the facts of the case as follows. It involved a pedestrian walking a picket line and was struck by a vehicle. The case proceeded to trial. The plaintiff attorney included details regarding the damages being sought. Defense objected because the damages had not been itemized in pre-trial. Defense argued because damages hadn’t been specified, they couldn’t be discussed during trial or asked for at the end of the trial. Rob states this issue began an entire body of law in the Commonwealth. Kevin comments that the case took place in 1995 and what we know today wasn’t part of the law, at the time. In real time, the issue wasn’t clearly defined. Now that we have an opinion and the benefit of hindsight, it’s easier to understand. Defense made an argument based on paragraph 2 of Civil Rule 8.01. They’d sent an interrogator to plaintiff’s counsel. It wasn’t answered; therefore, the plaintiff isn’t entitled to an award. The trial judge disagreed. The case went to trail and a plaintiff’s verdict for compensatory damages was award. Defense appealed. The KY Court of Appeals initially affirms the trial court’s decision. However, on reconsideration, based on recently decided Burns v. Level (957 S.W.2d 218), they sided with the defendant. The KY Supreme Court takes the case. It agrees that Burns applies. The Court recognizes that the trial court had discretion to grant a directed verdict based on CR 801. Both sides are using Burns. The Supreme Court ultimately created a harsh rule that if counsel doesn’t itemize damages, it will be bound by the last number indicated in answers to the interrogatories. Rob points out the plaintiff’s counsel didn’t specify damages until much later in the trial, not during pre-trial. The Supreme Court noted that plaintiff’s counsel was required to file a motion for leave to supplement the interrogatory answers. Kevin points out how the Supreme Court’s opinion claimed it was not including a landmine in civil litigation. There were 2 dissents. He tends to disagree with that view, given the reality of the rule. Lauren observes that Rob and Kevin discuss the issue “gotchas” fairly often, including at the past year’s Kentucky Justice Association’s annual convention. Kevin comments that the various courts have tried to mitigate the harshness of the rule. Rob and Kevin advise attorneys to go ahead and itemize the damages. Don’t wait. The rule is too harsh for you to gamble on it. Update your interrogatory answers, as needed. Kevin says you should never have to ask yourself whether you’ve done enough. Instead, assure yourself you have by being vigilant. Discussion of 4 Cases Related to Fratzke Now, Rob and Kevin will highlight 4 important cases. · - LaFleur v. Shoney’s Inc., 83 S.W.3d 474 · - Prater v. Castle, 139 S.W.3d 921 · - Tennill v. Talai, 277 S.W.3d 248 · - Chesapeake Appalachia, LLC v. Collins 213 WL 645913 (WestLaw) LaFleur v. Shoney’s Inc. This is a slip and fall case at a restaurant. The trial court ordered the plaintiff to itemize damages within 10 days of trial, independent of the defense counsel’s interrogatories. Plaintiff’s counsel filed the itemization within 5 days of trial, which was significantly larger than listed in the answers to the interrogatories. Defense argued the plaintiff made a Fratzke violation (being 5 days late or beyond the window stipulated in the Order), and thus should be limited to the initial amounts listed in their answers. The trial judge decided to let it proceed to trial and full damages were on the table. The jury returned a plaintiff’s verdict. The case is eventually heard by the KY Supreme Court. The Court applies Fratzke. The plaintiff should have moved for leave, which they didn’t, even though they did amend the answers to the interrogatories. Rob notes this sounds like a technicality, but you really need to have that Order involving the court’s use of discretion. Rob recommends you always answer the damage interrogatories as soon as possible. If you don’t do that, always file the motion to amend the interrogatories...
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    46 min