The Legal Notepad

Attorneys Robert Mattingly, John DeCamillis and Kevin Burke are based in Louisville, Kentucky. Robert and John are highly successful litigators, while Kevin is a highly sought-after appellate attorney. The objective of The Legal Notepad Podcast is to provide valuable information about Kentucky law, Federal law and topics relevant in our community. The episodes will feature interesting interviews as well as technical discussions of the law and how to improve your trial practice. Robert and John are the founders of DeCamillis and Mattingly PLLC. Kevin is a partner in the law firm of Burke Neal PLLC. They have decades of experience practicing law throughout the state of Kentucky.

Using a Trust to Preserve Client Benefits After a Bodily Injury Settlement 09/09/2025

Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode) 06/10/2025

Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode) Episode 14: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 1 hour of ethics for Kentucky continuing legal education credit. Rob and Kevin are joined by Lauren Byrn and attorney Nina Couch. Nina teaches professional responsibility at the Brandeis School of Law. She also has a private practice. This is her first time on a podcast! Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the , click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: Lauren asks, “One of the national, legal listservs had a lot discussion about nonlawyers owning law firms. Does Kentucky have a rule on this?” Kevin comments how this is a fascinating topic and one that will be greatly discussed in the future. Rob asks Nina to provide some brief information about herself and then explain Nina was an accountant before going to law school. She’s taught professional responsibility at UofL’s Brandeis School of Law a couple of times. She was a visiting assistant professor, teaching professional responsibility and property. Now she’s there part-time in current capacity, having also taught mediation. Her private firm is , in Louisville. She focuses primarily on consumer protection and personal injury claims. Nina explains that the ABA model rule Rule 5.4 prohibits nonlawyers from sharing in attorney fees with lawyers. It also precludes nonlawyers from having any ownership interest in a law firm. Kentucky has a similar Rule 5.4, however, in very limited circumstances, such as a lawyer death and the transfer of a law firm. It could also be allowed in the purchase of a law practice, in accordance with Rule 1.17. There’s also a provision for a profit-sharing plan, as long as it’s not tied to a per-case attorney fee. The History of Rule 5.4 It’s to protect the lawyers independence and judgement. It’s also a safeguard to protect the core values of our legal profession. The ABA adopted Rule 5.4 in 1983. Nina points out that it actually goes back to 1908 when the ABA codified its first set of cannons. The law has changed over the years, most recently with the significant advances in technology including AI. There has been conversation focused on modernizing 5.4 and access to justice to underserved, potential clients. Adding nonlawyers might assist in addressing the issues. Law firm capital and innovation are also influencing the conversation. Law firms are prohibited from raising capital from venture capital firms, private equity or nonlawyers. Rob and Kevin comment on how different the practice of law has become, even since they both started practicing. Business and commerce has also changed. Hedge funds and other investors see an opportunity make money, if they were allowed to invest in law firms. The Conversation Has Started Nina notes the ABA has tended to resist changes to Rule 5.4. In 2022, it adopted , noting the inconsistency with core values, were nonlawyers to share in the legal fees or ownership/control of the practice. It cites to the core principles of the practice of law including loyalty, competence and confidentiality. The Association of Professional Responsibility Lawyers, in December of 2024, wrote a letter to the ABA. They advocated from a modernization of Rule 5.4. They view the involvement of nonlawyers as being inevitable, in legal delivery systems, while maintaining regulations protecting consumers. The conversation has definitely started. Arizona entirely eliminated its Rule 5.4. Utah has also looked at this issue. Rob comments on the adage: Those who fail to plan, plan to fail. It seems like the inevitability stated in the December letter, seems quite plausible. Kevin notes leaving the rule as is, is a decision. As technology and other key, societal factors evolve, the legal world is going to change, based only on technology. The decision to update the rule or leave it as is, is a choice that brings consequences. The Current Landscape We’re transitioning into a segment dealing with how various states are proceeding. Lauren also suggests we include a discussion on how AI comes into play. Speaking of AI, we’re joined by ChatGPT. Nina begins by noting the District of Columbia was the first to change Rule 5.4, in 1991. It was a limited change. In 2013, , Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees With Nonlawyers. It clarified that a lawyer practicing in a model rule state didn’t violate 5.4 if they shared fees with a DC lawyer. In 2020, the landscape changed regarding 5.4. Utah and Arizona both made changes to their Rule 5.4. Arizona eliminate the fee-sharing prohibition and allowed nonlawyers to own law firms, as Alternative Business Structures (ABS). Utah approved a 7-year regulatory sandbox. This will provide room for experimentation. Different business structures could involve the delivery of business services. They could be owned my nonlawyers, a mix of lawyers and nonlawyers and situations in which nonlawyers are providing legal services under strict regulation and oversight. Utah is considered a ABS Plus ULP. In Arizona, however, the legal work is still required to be done by a lawyer, even though the entire ABS could be owned by nonlawyers. A regulatory structure is involved, requiring the ABS to appoint a compliance lawyer. Washington state, in December of 2024, issued an order with a time-bound, data-driven pilot test of 5.4. It will allow companies and non-profit entities to offer legal services under carefully monitored conditions, according to the Washington State Bar Association, December 13th, 2024. Nina suggests this will be similar to Utah’s approach. The Stanford Law Review Center on the Legal Profession, published , in September, 2022. It found the legal reforms were spurring substantial innovation in 5 key ways. 1st – Traditional law firms are making changes…to expand. 2nd – Law companies practicing by providing legal services with non-lawyer ownership. 3rd – Non-Law companies expanding into law…”one-stop-shops.” 4th – Intermediary platforms create marketplaces for consumers and lawyers. 5th – Entities using nonlawyers and tech to practice law. There were several notable findings. In state courts, in 75% of the civil cases, at least one party is unrepresented (usually the defendant). These individuals are navigating the legal environment without legal counsel. The changes to 5.4 could address issues related to access to justice. Rob points out that improving access to justice is terrific. However, VCs and other investors might focus more on personal injury matters, rather than lower-margin civil cases. Nina agrees and points to an article, (Yale Law Journal Forum, Oct. 19, 2022). It stated that a profit-motivated company or corporation might have a misalignment with the core values of the legal profession. There’s risk of negative outcomes for clients. While the clients are receiving access to justice, other harms may occur. The article notes attorneys spend hours in law school in professional ethics, stressing the duties owed to clients. There are serious consequences for violating those rules. Nonlawyers do not face the same consequences. The root of this is about the public trust regarding services to clients. We want to avoid a system in which different people get different levels of representation. Maintaining Ethical Standards in a Commercial Environment Stanford urges us to keep in mind 2 questions: What types of innovation in legal services delivery model will different reform approaches generate? Who will be served by the new market entrants? Kevin observes the dark side of this innovation is how tech-savvy commercial entity could enter a jurisdiction by selling the change as good for the underserved. All the while, having the ulterior motive of competing with medium to large-sized firms. Have other states set up task forces to consider this change? If so, do they include business professionals and advisors who can advise lawyers on the business-end of this innovation and how it might affect us? Nina reports that other states have setup task forces, and some have said no. California, Florida, New York, Illinois and New Jersey have said no. In Arizona, KPMG has recently been approved to be an ABS. They are one of the Big-4 accounting firms. They have a global presence and actively practice law outside of the US. KPMG is precluded from offering legal services to any company they might audit (in Arizona). The Impact to Solo and Small Firm Practitioners Nina explains there are multiple business structures that might be interesting to the plaintiffs bar. , in Utah, is a plaintiffs firm that merged with a radio marketing company. The goal was to enhance their marketing capacity. Lawyers provide the legal services, while nonlawyer partners assist in the advertising and marketing. Nina provides an example from the UK where a private equity firm was allowed to enter smaller firms in certain jurisdictions. was established in 1982 and formed 10 offices. In 2017, they were acquired by the private equity firm, Living Bridge. As a result, they double their number of offices and gained 150 clients a month. Access to capital and economies of scale were key factors in the growth. was a traditional, plaintiffs law firm that entered the Utah sandbox. It teamed up with a venture capitalist to fund an app. The firm previously determined a large number of claimants were not getting representation. In an effort to meet the demand, they launched the app. Nina suggests we may see these types of apps, even in model rule jurisdictions. Rob observes that these well-funded companies are able to launch national apps. As a solo practitioner, it’s financially infeasible to develop and launch a national app. Kevin comments that we all used to have access to the same technology. However, the advent of these large companies entering the market have proprietary tools potentially enabling them to take over a market. Nina references the Yale article, regarding the AI issue. The article says it’s not clear how legal ethics standards will be enforced when nonlawyers provide services. With AI, we’re not dealing with a live person. This greatly complicates the issue. Utah has an ABS called . It offers services via chatbot, nonlawyer assistants and lawyer employees across a range of consumer services. The Yale Review comments that while 1Law intends to use chatbots only to answer the simplest of legal questions, 1Law cannot, 1) prevent consumers from asking complex, legal questions, 2) ensure that consumers will understand the chatbot isn’t operated by a lawyer and 3) teach a chatbot to respond to nuances embedded in a consumer’s legal question. Thus, to what extent are we going to allow AI to enter the legal service space? Those states that have decided not to amend 5.4, such as California, have cited the need for strong oversight by the Bar to implement another layer on top of regulating the practice of law. This is noted in Karen Sloan’s article “.” Florida’s Board of Governors voted 45-0 urging their Supreme Court to reject changes in regard to fee sharing with a nonlawyer. One Board member commented that it would create profound conflicts of interest between lawyers and nonlawyers who don’t have the same ethics obligations, along with the adverse impact of profit motives in other professions, such as doctors. Ultimately, is this the right change to achieve the objective of providing access to justice? Kevin notes the medical profession is seeing this play out. While the two professions are different, we can still learn from their experience. Nina asks if, as a profession, lawyers will be able to mindfully progress into the world of AI and technology in a way that preserves that attorney-client relationship where clients are detrimentally impacted? It goes to who is actually providing the legal services, controlling the legal services, and what is their ultimate motivation? Rob believes this will be lawyer-driven. How will the legal professionals continue to view that client-relationship? The app won’t have that same, human connection. Nonetheless, we are in a changing world. Consider a South Carolina Law Review article, published in 2023, “” (Field Notes from the Revolution). Kevin explains he became a lawyer to be what is considered an old-fashion lawyer. He was brought up to do things the old school way, by the firm he worked for. As a result, he resisted many of the changes he saw relative to the business of law. He admits that without the technological advances, he wouldn’t be able to do the type of law he practices. Being a good business person and being a good lawyer are not mutually exclusive. You need to be ethical in both. Will Kentucky Form a Taskforce to Evaluate a Change to Rule 5.4? Rob transitions us into the final segment. Lauren asks what type of taskforce should be created and who should participate? Nina comments we could apply this to any jurisdiction considering the changes. The taskforce should include members of the Bar, judges, lawyers, potential client consumers, people who have had legal representation, people who may not have been able to find representation, and non-profit groups. Kevin adds that representation from different sections of the legal community is important. This would include solo and small firm practitioners as well as large firm practitioners. Outside of the legal profession, it would be good to have people well-versed in the technology, including AI. Rob sees value in having nonlawyers who can explain the upcoming technology. It may also be worthwhile to have some consulting from the medical profession by those who have experienced this issue. Business professionals should also be included to discuss potential outcomes. We may not be able to anticipate every outcome, but we can anticipate the types of people who are going to be affected by what’s going to happen. Nina notes how jurisdictions, such as Kentucky, are getting the benefit of looking at this is playing out in other jurisdictions. Time will only tell how it will playout in the other states. In Closing We’d like to thank Nina Couch for her participation in this ethics CLE. We’ll submit the material and secure the activity number. Email Rob or Kevin and they’ll be happy to provide the activity number to you. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/36944315

Direction of PIP Benefits for Medical Expenses 06/04/2025

Direction of PIP Benefits for Medical Expenses Episode 13: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss a recent case involving the direction of PIP benefits for medical expenses. Rob and Kevin are joined by Lauren Byrn and for the second time, attorney Adam Redden. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the , click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: Lauren asks, “What is the current state of an insured’s ability to direct no-fault benefits?” In Kentucky, many of the PIP carriers traditionally paid the invoice, as they were submitted. The option of directing specific invoices to be paid, instead of others, could be challenging. Most carriers wanted to pay on a first-in, first-paid basis. That has now changed, based on In our previous episode, we discussed the liability of an adult when their minor uses their car and causes a wreck (). PIP Direction (not the boy band) Kevin clarifies that PIP Direction is not a new boy band. This prompts the team to explore Lauren’s Justin Timberlake crush. The statue involved in Erie Insurance Exchange v. Johnson is , in the Motor Vehicle Reparations Act. It allows an insured seeking no-fault benefits to direct the payment of those benefits “among the different elements of loss.” Rob points out that the Court specifically mentions the term basic reparations benefits can be used interchangeably with PIP benefits. The case involves a motor vehicle accident. Two individuals sought various medical treatments. Generally PIP benefits cover $10,000 in medical expenses, lost wages, etc. Kevin advises non-lawyers to consult with and attorney to reserve the PIP benefits. The carrier is interest in paying the benefits as quickly as possible, but that may not be in the insured’s best interest. In the Erie case, the plaintiff’s attorney notified Erie to reserve the PIP benefits and expressed the desire that the chiropractor be paid from the benefits, rather than the hospital bill. Erie responded claiming the plaintiff could not direct the payments, beyond at the category-level. As a result, Erie filed suit. Ultimately, the circuit court agreed with the claimants (e.g. the insureds). In the court’s decision, it noted that the decision potentially affects millions of Kentuckians. Interestingly, this is a case of first impression. The court found that the claimants could direct the medical expenses. The case went to the court of appeals. The court affirmed the circuit court’s ruling. The case was accepted on discretionary review by the KY Supreme Court. When the case made it to the Kentucky Supreme Court in 2022, the Court had to throw it out, due to a lack of jurisdiction. There Was No Magic Language The circuit court’s opinion did not fully and finally resolve all issues in the case. The direction of benefits issue wasn’t resolved. Additionally, there was a claim for accrued interest and a claim for attorney fees. Thus, the Supreme Court found that the case was not appealable. It didn’t contain the magic language: “Final and appealable with no just reason for delay.” Rob and Kevin discuss how attorneys can avoid this situation. Kevin explains that if there are still unresolved claims, under , the opinion must say, “Final and appealable with no just reason for delay.” If that specific language is not included, it’s going to get kicked back down to the lower court. Kevin explains this is non-waivable, even if the issue isn’t raised by the parties. The court has a duty to raise it on its own. In this particular case, the court of appeals overlooked the defect. Once the case goes back down, a new order is entered, addressing the direction issue, interest, attorney fees and adds the magic language. It goes back to the court of appeals, which affirms the circuit court’s ruling in favor of the claimants. Once again, the KY Supreme Court takes the case for discretionary review. Eventually, it results in the 2025 opinion. Standard for Review on a Legal Issue This will be a de novo review. The court doesn’t pay deference to the court of appeal’s opinion or that of the circuit court. The Court is evaluating it, anew, based on what the statute says regarding the circumstances of the case. The issue involving the direction of benefits received a de novo review. The other issues were reviewed using a different standard, because there was an abuse of discretion. Interpreting “The Element of Loss” Language The Court has various mechanisms for interpreting language. In this case, they went through statutory interpretation. Adam notes a few things in the opinion. Page 9 – “…Carry out the intent of the Legislature.” Adam asks Kevin what the court is saying with this language. The Court is using the general assembly’s intent as its north star. Additionally, there’s language addressing any ambiguity. The Court will rely on statutory interpretation to clear up the ambiguity and resulting confusion. There’s also a statement that, “the Legislature meant exactly what said and said exactly what it meant.” Ideally, the general assembly will use plain language, however, as Kevin notes, it can’t envision every possible scenario. When applied to specific circumstances, ambiguities can arise. These are termed, “latent ambiguities.” Page 10 – “…Look to the common meaning of the particular word chosen…” This again emphasizes the objective of using plain language. Issues arise when there are multiple definitions of words. Additionally, Adam noticed “…We must not be guided by a single sentence of a statute. We must look to the provisions of the whole statute in its object and policy.” Kevin explains this emphasizes the importance of context. How the Court Used these Tools to Interpret the Elements of Loss It’s important to remember the Supreme Court is talking to multiple audiences, beyond the parties themselves. The Court wants to show its work, so to say. They noted the word “loss” is defined in the MVRA. However, there is no definition for “element of loss.” The court said element is ambiguous. It also considered other relevant statutes and how they’ve changed. To resolve the issue, the considered the intent of the MVRA. It’s to protect accident victims, as listed at the outset of the Act. This drives the analysis, regarding how “elements of loss” are defined. Therefore, the elements would include the broad categories, such as medical expenses and lost wages, but also the narrow categories, such as the EMS bill, the chiropractor bill, the hospital bill (the sub-categories). Based on the analysis, the Court found the claimants were within their rights to direct the PIP benefits paying for individual elements of loss. For instance, pay the EMS bill, but not the hospital bill. The health insurance might be used to pay the hospital bill, instead. Page 20 – “…but we are upholding [the court of appeals] for different reasons.” In this case, the Supreme Court agreed with the court of appeals, but while they arrived at the same answer, the got there via different paths. Kevin notes this isn’t all that uncommon in the appellate world. How Did the Court Decide on the Remaining Issues? There were still questions involving the interest for the delay of payments and the attorney fees. The Court did find that the claimants were due interest, based on the delayed payments. There are 2 interest rates that might apply (12% and 18%). The trial court found Erie acted without reasonable foundation, therefore the court assessed the 18% interest rate. The circuit court awarded attorney fees, as well. This was for the first opinion and for the second opinion. The court of appeals affirmed both the interest rates and the fees. The Kentucky Supreme Court said the 18% was not warranted, because the question was unsettled. Subsequently, it assessed the 12% interest rate. Because the law was unsettled, the Court denied the attorney fees. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/36848365

Liability for Letting a Minor Drive a Vehicle (KRS186.590) 05/26/2025

Liability for Letting a Minor Drive a Vehicle (KRS186.590) Episode 12: Louisville attorneys Rob Mattingly and Kevin C. Burke explore parental liability, now that 15 year olds are able to get a drivers license. Parents should be aware of their responsibilities related to this new issue. Rob and Kevin are joined by Lauren Byrn and for the first time, attorney Adam Redden. Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the , click the Education and Training tab and look for the podcast. TODAY’S LEGAL QUESTION: Lauren asks, “Now that Kentucky has a new law allowing 15 year olds to get their drivers licenses, what are the liability for parents?” The Statute for Parental Liability for Minors Driving an Automobile is the relevant law for this issue. This law has been in place for decades. Rob addresses non-lawyers by explaining how a parent can be held liable for a collision caused by your minor child. There are 2 broad scenarios outlined by this statute. The first scenario (Section 1) assumes you signed the application allowing the minor to get his/her license. Therefore, you are deemed responsible for anything the minor does in the car, because you signed the application. However, there is an exception. If you’ve made sure the vehicle they are driving has insurance, you are not liable. The second scenario (Section 2) is much broader. Regardless of whether you personally signed the application, and regardless of the insurance, if you own the vehicle or allow the minor to drive the vehicle, you are liable. Under Section 3, Rob notes the person who owns or furnishes the vehicle may not have been the one who signed the application for the minor to get his/her license. By the way, if you were to allow a minor who is not your child, to drive your vehicle, you are liable for what may happen. Kevin explains the two scenarios are there to ensure there is a source of recovery for someone who might be involved in a collision with a negligent, minor driver. To illustrate how all of this works, Lauren will pose a few questions and Adam will provide the answers. Example #1: Mom takes her 16 year old to get his/her licenses. She signs the application. However, she does not get insurance on the vehicle. Is she liable? Yes, under Part 1 of the statue, the mother would be liable because she signed the application. Kentucky requires vehicles to be insured. The fact that the vehicle wasn’t insured at the time of the accident isn’t the primary issue. However, she should have made sure the vehicle was insured. Insured or not, the mother would be held liable. Example #2: Mom signs the application and gets the car insured. However, dad has a different vehicle. He gives the child permission to drive his car. If the minor driver causes an accident, who is liable? Adam explains that the mother would not be held liable. Although she signed and insured the first vehicle, the statue specifically notes that if you furnish a vehicle to a minor, that person is liable. Therefore, the dad would be held liable for the minor’s negligence. In reality, assuming the car is family asset, dad would still be liable. The above example would be relevant if the parents were divorced. Example #3: An adult, who is not the parent and didn’t sign the application, agrees to let a minor borrow a car. Would the adult be held liable? In this example, according to Section 3, the adult is liable because he/she furnished the vehicle to a minor driver. The adult assumed the liability. Example #4: Mom signs the application and gets insurance on the car. Unfortunately, dad allows the policy to lapse. Who would be liable? Mom would be liable, however dad could potentially also be held liable if he had control of the vehicle and allows the minor to drive it, Section 3 would apply. Example #5: Assume adult #1 borrows a car from adult #2 (with permission). Then, adult #1 allows a minor to drive the car. The minor causes an accident. Who is liable? Kevin explains that this is a Section 3 issue. Anyone who causes or knowingly permits a minor to drive a vehicle assumes liability. It could also be said that adult #1 furnished the vehicle. Adam clarifies that adult #2 could also be liable. He/she permitted adult #1 to use the car, even though it was adult #1 who permitted the minor to drive it. Rob suggests that adult #2 should have explicitly told adult #1 that the minor was not allowed to drive the car. At the end of the day, this isn’t a situation you want to find yourself in, so be advised. Practical Pointers You Can Take to Protect Yourself If you are the parent, make sure you keep insurance on the car your minor is driving. You should also decide how much insurance you can buy. While insurance premiums are expensive, you need to consider the value of the assets you need to protect (i.e. your home, your checking and savings accounts, etc.). Are You Protected if the Car is in the Child’s Name? Kevin explains that this really depends upon the facts. Assuming the car is titled in the child’s name and there is insurance, it’s possible the parents could escape liability, but it’s not an automatic guarantee. Kevin advises parents to simply assume they will be held liable. Because Section 3 mentions anyone who gives or furnishes the vehicle to the minor, there will be questions about how the minor go the vehicle. Did the parents help? There are many considerations, so don’t assume you won’t be held liable. Applicable Case Law in Kentucky Again, we’re talking about KRS186.590. It consists of 3 sections. Section 1 states, the minor’s negligence “shall be imputed to the person who signed the application. That person shall be jointly and severally liable with the minor for any damages caused by the negligence.” Section 2 can relieve you of the liability. It refers to keeping insurance on the vehicle in an effort to remove the liability from the individual, such as the parent. Section 3 is very broad. This states that if you own the vehicle and allow or knowingly permit the minor to drive it, you’re responsible. It goes on the say “and, any person who gives or furnished a motor vehicle to a minor shall be jointly and severally liable.” Bottoms v. Smith (KY Court of Appeals, 2022) A grandfather is watching over his visiting 15 year old grandson. While the grandfather is napping, the minor (who doesn’t have a license) borrows the grandfather’s truck. The minor hits a pedestrian. The pedestrian sues the grandfather. This is a Sub-Section 3 issue. The grandfather owned the truck. The defendant motioned for summary judgement, because he was napping when the minor took the vehicle, without permission. The Nelson circuit court granted the motion, noting that permission was not given to the minor. The court of appeals affirmed the decision emphasizing the statue states “anyone who knowingly permits…” This did not apply to the situation, because the boy took the keys while the grandfather was napping. Commonwealth Fire and Insurance Company v. Manis (KY Court of Appeals, 1977) This is a permissive use case, including a dec-action. We’ll focus primarily on the permissive use issues. The plaintiff was a minor passenger. The car was driven by a 16 year old who didn’t own the car. The mother gave permission to the daughter to drive the car. The daughter gave permission to the 16 year old, who caused the accident. The jury had to decide the permissive use. They found decided yes, the mother was liable under Section 3. However, the father of the 16 year old driver had a Safeco insurance policy. The father was found not to be liable (under Section 1 or Section 3), even though he had signed the application for his son’s license. Practical Pointer: Rob recommends that parents explicitly tell their minor drivers that they are not allow to let any other minors drive the car. This may help to counter a permissive use claim. Parents can specifically revoke permission, which this action satisfies. As always, it’s very fact dependent, but worth doing. State Auto Insurance Company v. Reynolds (KY Court of Appeals, 2000) This case involves an emancipated minor. A 17 year old daughter is involved in a wreck, resulting in two fatalities (passengers in the 17 year old’s vehicle). The car was owned by his father. The minor was a co-signer on the loan and was allowed to drive the car. One of the estates for the deceased passengers had under insured motorist coverage. The insurance company paid the UIM claim and sought to recover from the father. They argued the father was liable under Section 3. The father argued he had no control over his emancipated daughter. The circuit court agreed with the father. The insurance companies appealed, using the argument the statute makes no mention of emancipation. The 17 year old is still considered a minor. The court of appeals determined the father was the owner of the vehicle and knowingly permitted the minor to drive the car. The court found the issue of emancipation wasn’t relevant. The language of the statue imposes liability on the father. Rob notes the vehicle was in the father’s name. He could have transferred the title into the name of the child. There were steps he could have taken to mitigate liability. Be sure to listen to Episode 13, which deals with statutory interpretation. Bryan v. Bear (KY Court of Appeals, 1977) This involves Section 1 and Section 3. A minor boy was working with his neighbor. The neighbor let the boy use his truck to get some shovels from the house. The boy causes a wreck. His father had signed for his driver’s license and had insurance. The plaintiffs sued the minor, the father (Section 1) and the neighbor (Section 3). The defendants motioned for summary judgement. The both had insurance, therefore the statute didn’t apply. They use Form SR21 as part of their arguments. That’s a form the insurance company files, stating the minor has insurance. The plaintiff argued the Form SR21 was filed after the collision, so it didn’t comply with the statute. Therefore both defendants were liable. The court found the statute didn’t rely on the filing of the form. It’s based on the acquisition and maintenance of a policy of insurance covering the minor at all times. Beardon v. Derry (KY Court of Appeals, 1983) This case involves divorced parents. The father signed for the minor’s license. The minor lives with the mother. The mother provides the car and has insurance on it. The minor causes a wreck. The plaintiff sues the minor, the mother and the father. The mother was liable, because she furnished the car (Section 2). Interestingly, the father was still the titled owner, even though the mother had control of the vehicle. Because the mother got the car as part of the divorce settlement, the court found the father was not liable, under Section 3. However, the father did sign for the license. Again, the mother is paying the insurance. The Form SR21 is form over substance. A policy was in place, at the time of the accident. Again, the father was found to not liable. Wolford v. Wolford (KY Supreme Court 1984) This is a strange case. Harold is the father. He owns a trailer park. He owns 5 vehicles. Initially the vehicles are under a business policy. Harold’s son is 16 years old, Charles. Harold signs for Charles’ license application. Harold notifies his insurance company, Trinity Universal, that he wants to switch one of the cars to a personal policy. He, then, makes the car available to Charles. Charles decides to leave, after a fight with Harold. He later returns to ask permission to use the vehicle. Harold denies access to the car, assuming the son is high. Charles takes the car. When Harold finds out, he gets in another car and chases his son. Harold also notifies the police. Charles rams a police officer’s cruiser. The injured police officer sues both Charles and Harold (Section 1). The plaintiff argued that Harold signed the application for Harold’s license. Also, since he didn’t give permission, there was no insurance coverage. Effectively the vehicle was uninsured. Trinity Universal agreed with the fact that Harold didn’t grant permission and won’t defend Harold. The court agrees there was no permission. However, there was a section in the policy that imposes coverage on Harold, as the owner of the vehicle. Therefore, they determined coverage exists. They agree Harold was liable under Section 1, but insurance does exist. The KY Supreme Court affirmed there was coverage. Trinity is liable for the $80,000 judgement. Additionally, because they elected not to provide Harold with a defense, Trinity is also liable for Harold’s costs, attorneys fees, etc. Speed Round for Other Relevant Cases Peters v. Frey (KY Court of Appeals, 1968) A trucking and excavating company (the employer) gave a minor a vehicle to use. The company could be held liable, but what about the supervisor who gave the minor the vehicle? The court decide the supervisor was liable under Section 3. Benton v. Parks (KY Court of Appeals, 1954) This involves a minor driving a truck owned by his brother. Minor causes a collision. Brother asserts he’s not responsible because he has insurance. Court finds Sections 1 & 2 are different from Section 3. Therefore, they impose liability on the brother who furnished the vehicle to the minor. Asher v. Russell (KY Court of Appeals, 1964) This involves a 2-vehicle collision. An adult gave a vehicle to a 17 year old, who subsequently caused a wreck. Under Section 3, the adult-friend was liable. This case also involved a directed verdict. Lawhorn v. Holloway (KY Court of Appeals, 1961) Holloway’s 17 year old daughter caused a wreck. The minor’s negligence was imputed to her father. Falender v. Hankins (KY Court of Appeals, 1944) Phoenix Garage (the employer) had a 17 year old employee replace the thermostat in a customer’s car. The boss asked the minor to deliver the car to the owner’s house. During the trip, the minor decides to go on a joy ride. He gets in a wreck. The court decided because the minor was on a joy ride, he wasn’t working. But, his boss allowed him to use the car, therefore the boss was liable under Section 3. Even though the boss didn’t own the car, he had control of it. Cook v. Hall (1948) The son took his father’s delivery truck for a joy ride. The son caused an accident. While the son had permission on previous occasions, he did not have permission to use the truck that night. There was also evidence the son took the keys without permission. The court found the father was not liable because he had not granted permission. In a more recent case, Mitchell v. Allstate, a broader definition of permission might apply. Kentucky law has developed what “has permission” means and how broadly it can apply. Under Mitchell, the court decided you most-likely had permission, unless you’re deemed to be a convert. In other words, if you stole the vehicle, you didn’t have permission. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 Until next time, go find one thing you can do to change the world! The Kentucky Bar Association Requires Us to State “This is an advertisement." /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/36717790

Kentucky's Firefighter's Rule (First Responders) 11/25/2024

Kentucky's Firefighter's Rule (First Responders) 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 , 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 , 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 ., 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 battling the blaze. They file a suit to recover damages from the owners. The Firefighter’s Rule was applied by the Court. It emphasized the assumption of risk by the licensee (e.g. the firefighters), as well as the fact that they are public employees. The Court did however recognize the improperly stored cleaning solvents could have created an unusual hazard. Kevin notes when the Court recognized the Rule, it immediately recognized an exception. Note: The elimination of the assumption of the risk was overturned later, in 1967, in . The Hawkins Case This is ., 727 S.W.2d 397 (Ky. 1986). The Supreme Court has moved away from the assumption of the risk and that other parties may have liability. Kevin also notes that comparative fault was recognized in 1984. In Hawkins, firefighters were injured at a fire at a gas station. There were numerous claims regarding liability for the injuries and deaths against the motorist who hit the gas dispenser and other parties. The Courts maintained that the firefighters could not recover from the motorist. They also could not recover damages from the owner or the operator of the station. However, the Court said a products liability claim could be pursued against the manufacturer of the gas dispenser. The plaintiffs raised a constitutional challenge based on Kentucky jural rights (Section 14). The Court considered it but said the common-law defense of the Firefighter’s Rule predated our 1891 State Constitution. No case was cited by the Court. However, Kevin and Rob point out that the Gibson opinion was in 1892. The Salle Case In ., 839 S.W.2d 277 (Ky. 1992), a paramedic working for the Lexington-Fayette Urban County Government, responded to a call to help an assault victim. The paramedic fell in a trench dug by GTE South, while he was exiting the ambulance. A suit was filed based on the hazard created by GTE’s trench. The Kentucky Supreme Court rules the paramedic to bring a claim, regardless of the Firefighter’s Rule. The Court created a 3-part test. First, the Court recognizes the policy of encouraging property owners to engage first responders when emergencies occur. Second, the public employees are at the scene to engage a public risk. Three, the policy extends ONLY to that risk. In the Salle case, it failed “prong one” because GTE was not the property owner or occupier of land. They weren’t the one who called for help. Rather, it was the assault victim. It also fails “prong three” because the injury was unrelated to the specific risk (i.e. the assault). Therefore, the Court ruled the paramedic could recover from GTE in a premises liability claim. The Norfolk Southern Railway Case In , 554 S.W.3d 315 (Ky. 2018), a police officer, employed by the Danville Police Department responded to a call involving a suspicious person, who was possibly intoxicated. Upon arrival, the suspect flees onto Norfolk Southern’s property. The office falls down an embankment while pursuing the suspect. The officer files a claim against Norfolk Southern, based on mismanagement of the embankment, which resulted in the fall and related injuries. The “risk” was the investigation of the suspect. One could argue the ensuing chase was unrelated to the mismanaged embankment. There was no connection between the suspect and the railway. The Kentucky Supreme Court applied the 3-factor test. Norfolk Southern was an owner/occupier of the defect land. The incident involved a public employee. The court ruled that the officer engaged the specific risk and the injury arose from that risk (i.e. the investigation/pursuit of the suspect). Therefore, the Firefighter’s Rule applies. Wooster Motor Ways, Inc. vs. Gonterman The (2023-SC-0062-DG) case involves a Kentucky State Trooper (Michael Gonterman), who responded to a situation on I-71. Rob comments that this opinion, issued on 10/24/24, lays out what will probably be Kentucky’s Firefighter’s Rule for many years to come. The Parties Involved John Crawford was driving a tanker truck and stopped in the emergency lane to remove 2 dogs from the interstate. He called 911 to alert them to the issue. The 911 dispatcher gets KSP Trooper Michael Gonterman to respond. He arrives at the scene and parks in the emergency lane. Crawford and Gonterman are able to remove the dogs from the interstate. Both men are walking single file back to their respective vehicles. Kim Perkinson, driving a Nissan Altima approaches the scene. James Baumhower, driving a box truck for EC Delivery is behind Ms. Perkinson. Teddy Seery is behind Baumhower driving a tractor trailer for Wooster Motor Ways. Traffic in the area is slowing down. Perkinson begins slowing down and moves to the left lane. Baumhower is unable to slow down and swerves back into the right lane to avoid colliding with Perkinson. Seery also swerves right and is unable to stop in time. Seery’s tractor trailer collides with Baumhower’s box truck. The collision flips Seery’s box truck onto its side and slides into the walking Crawford (the tanker truck driver). Crawford is pinned against the concrete barrier and later dies as a result of those injuries. Trooper Gonterman is also sustains life-altering injuries. Trooper Gonterman files a lawsuit against Seery (Wooster), Baumhower (EC Delivery), Crawford’s estate and Gonterman’s own UIM policy with Kentucky Farm Bureau. The defendants file for Summary Judgement, citing the Firefighter’s Rule. The trial court grants Summary Judgement for the defendants, including the claim against the Crawford estate. The Kentucky Court of Appeals reverses the trial court. The Plaintiffs decides not to pursue the claims against the Crawford estate. This leaves the question of what happens to the claims against Seery, Baumhower and the UIM carrier? The Supreme Court’s Opinion in Wooster As previously stated, Kevin Burke submitted an amicus brief on behalf of the Kentucky Justice Association, in this proceeding. At the outset of the opinion, the Court acknowledges the Firefighter’s Rule. But then, it points out the rule of non-liability is narrowly circumscribed, when in the public’s interest. The Court restates the 3-prong rule created in Salle. Prongs 1 and 2 are easily addressed by the facts of the case. However, referring the prong 3, Kevin explains the Court clarifies the risk denoted in the third prong does not extend to the independent and intervening negligence otherwise unrelated to the risk. The Court recognizes the trooper was injured by the independent negligence of another, while performing his duty as a public employee. Therefore, the Rule will not bar a suit against the independent, negligent party. Rob and Kevin explain that if you receive a call from an injured, first responder you’ll need to carefully review this case, the 3-prong test, determine who made the 911 call and other factors related to this narrow Firefighter’s Rule. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/34136876

KRS 411.188 - Mandatory Notice of Subrogation Rights 05/23/2024

KRS 411.188 - Mandatory Notice of Subrogation Rights 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 , 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 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 . 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 , 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 . It contains a specific subrogation section (). 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”). In Kentucky, workers’ comp takes priority over PIP. In a hybrid situation, do we still have to give notice to the comp carrier? Rob confirms that yes, notice is still required to be given to the workers’ comp carrier. Kevin reminds us that there’s no penalty for over-compliance. You could even include the no-fault carrier, if you decided to do so. Mark Smith has been practicing for 33 years from Louisville office. He mainly handles personal injury cases. Mark enjoys handling automobile accident cases. He’s presented at this annual CLE conference on numerous occasions. This year’s presentation involved using the Kentucky bad faith statute to maximize the recovery for his clients. Mark’s phone number is (502) 641-9848. Notifying Health Insurance Companies and Federal ERISA Plans This is the most common situation. Rob sends notice to the health insurance companies every time, regardless of whether a PIP carrier was involved. However, the case law has evolved. If the carrier decides not to intervene, they lose their subrogation rights, according to the statute. The question is how can Kentucky law preempt a federal ERISA statute? Kevin and Rob use a couple of cases to explain the situation. In Humana , the 411.188 doesn’t apply to ERISA plans, because it was part of a statutory tort reform plan. The Kentucky state law doesn’t preempt federal ERISA law. Therefore, Rob and Kevin recommend sending notice to every health insurance plan. What’s the downside? Why lose sleep over it? Send the notice and know that you’ve complied. KRS 411.188 can’t be used as a sword against an ERISA plan. However, it can be used as a shield protecting you against an insurance company making the claim that you violated the statute. Question from Attorney Andrew Mize Conference attendee, attorney Andrew Mize poses a question. Assume you’ve given notice, proceed through the litigation, but still receive no response from the subrogation holder. How long does that party have to come after you, especially in federal court under ERISA? Rob responds there are generally 2 types of health insurance plans, ERISA plans and non-ERISA plans. He goes back to the Humana v. Powell case wherein 411.188 cannot preempt an ERISA plan. Therefore, the subrogation rights would be based on the underlying contract of the policy. The ERISA plans have a right to recover from the funds you receive as part of a settlement/verdict. Assuming the contract doesn’t have a statute of limitation, it would default to Kentucky contract claim, which is now 10, although Kevin points out it could be 15 (depending upon when the contract was entered). If a non-ERISA plan is involved, KRS 411.188 applies and notice must be given to the health insurance carriers. Rob would file a motion, in circuit court, to extinguish the carrier’s lien. He would then send a copy to the carrier. Non-ERISA healthcare plans are bound by the statute. If they don’t intervene, a judge may decide to strike them. Andrew Mize is an attorney with in Nashville. He handles complex personal injury cases, especially those involving minors. He also focuses on plaintiff-side class actions and consumer rights litigation. The firm handles claim on a nationwide basis. He has built a niche in cyber-security and data breach actions. His office phone number is (615) 254-8801. Question from Attorney Mark Smith Mark asks a second question. When a client visits a doctor’s office and signs a lien contract, does this create a subrogation claim that would require attorneys to provide notice under KRS 411.188? Rob and Kevin admit they haven’t actually thought about this issue. This raises the question of whether the provide has to intervene or whether you would even want them to intervene? Could you take their deposition for free? There’s actually a lot to this. Mark comments that this can become an issue when the client doesn’t have PIP coverage. The doctor wouldn’t get paid until the bodily injury claim gets paid by the tortfeasor. The doctor would definitely have a lien on the settlement/verdict. Rob, thinking out loud, assumes the doctor hasn’t paid out anything, so it wouldn’t necessarily be a subrogation claim; it’s a lien. Therefore, KRS 411.188 probably does not apply. Kevin comments that you could include them in the notice list. If the lien contract has subrogation language, it might match up with KRS 411.188. If they don’t intervene, you may be able to strike them. How Do Plaintiffs Use It and How Does the Defense Use It if You Don’t Comply? As already touch on previously, if you comply and the entity decides not to intervene, you would file a motion to strike their subrogation interest. However, this statute can also be used against you. If you fail to provide notice, you are barred from using your medical bills. Is this really why the statute was written? Kevin admits Sections 2 and 4 protect the interest of the subrogation holders. It’s not specifically geared toward the tort defendant. At the time this statute was written, Subsection 3 (O’Bryan) had not be ruled unconstitutional. Now, if the defense is using 2 and/or 4 to eliminate the medical bills, doesn’t really follow what the statute was originally intended to do. Question from Attorney Peter Jannace Conference attendee Peter Jannace asks a question of Rob and Kevin. Given that some sections were ruled unconstitutional (namely Section 3), have the pertinent, remaining sections been evaluated by a court as to their constitutionality? Kevin explains there is no appellate opinion based on a challenge to Sections 2 and 4. However, as a practical matter, why wouldn’t the arguments made in O’Bryan vs. Hedgespeth apply to Sections 2 and 4? If you find yourself in a bind, you should consider including a challenge to the constitutionality. Be sure to properly preserve it for appeal. There’s no reason not to do it. Peter Jannace is an attorney with . Peter practices out of the Louisville office. He focuses on employment law and labor law. He also has experience with complex and class action litigation. His office phone number is (502) 636-4333. If You’ve Received Notice Kevin lays out a process. First, identify whether you were required to give notice. Make the arguments included in O’Bryan vs. Hedgespeth and notify the state attorney general. You need to contact the attorney general because your argument is going to include a question of the unconstitutionality of the statute. If you fail to do so, the court of appeals will consider it an unpreserved issue. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/31437722

Recovery of Social Security Benefits in a Wrongful Death Action 02/13/2024

Recovery of Social Security Benefits in a Wrongful Death Action 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 , 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. , 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 . Included in this is the provision for punitive damages if the act was willful or involved gross negligence. Aull v. Houston This is a . 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 . 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 . 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. 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 cited 2 cases, which were actually workers’ compensation cases. According to the court these cases supported the court’s decision as to why social security benefits were not available to be included in the damages. The Kentucky Supreme Court, in Savage, finds those 2 cases are distinguishable. The availability of the benefits are different. Kentucky workers’ comp benefits are completely different from a wrongful death claim under . In essence, the Court deconstructed the foundation in Aull. The Court held that social security disability insurance benefits (SSDI) can be used in calculating damages. However, supplemental security income cannot be used. SSDI is an earned income, thus it’s related to the destruction of the power to labor and earn; SSI is not. Rob and Kevin note that Savage doesn’t actually overturn Aull. Instead, the Court abrogates Aull, regarding SSDI benefits serving as a substitute for earned income in the case of retirement or in disability. It goes onto agree that SSI benefits are not to be included in damages calculations. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29932953

Admissibility of Police Reports and Their Content 01/31/2024

Admissibility of Police Reports and Their Content 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 , 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. 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 , 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 . 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 , 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. 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 district court allowed it. She returns to serve the remainder of her sentence. During this period, she leaves for work and then returns to jail for the night. She showed up with a bag of personal items. Upon inspection, the sheriffs find drugs hidden in a bra, inside the bag. Tammy denies knowledge of the drugs. During this time, an officer is taking notes. During the investigation, the officer records that Tammy claims to have purchased the bra at the Salvation Army. The handwritten notes by the officer were placed in the file, although they were not part of an official police report. At trial, Tammy denies ownership of the bra. This is different from her original statement that she had purchased the item at the Salvation Army. The officer’s contemporary note was brought in at trial. While it wasn’t an actual police report, it was similar to one. This issue is should that note have been admissible? Tammy Day is convicted and sentence to approximately 4 years, even though her original DUI conviction only resulted in 7 days. The case is appealed based on the question of whether the note should have been admitted into evidence. This court of appeals held that under Manning v. Commonwealth it’s distinguishable. In Manning, there was a statement from an unidentified witness. However, in this case, the statement about the bra was directly attributable to Tammy Day. The statement was considered to be an admission by a party under . Therefore, it was appropriate that the jury hear the information. Rob notes that if there’s a statement that can be considered an admission by a party, and it’s relevant to the elements of the case, it might come in as evidence. T.L v. T.M. Rob and Kevin will use this 2008 child custody case to illustrate how an inconsistent statement on a police report could impact admissibility. The biological father petitioned for custody away from the biological mother (who was living with her boyfriend). The father alleged domestic violence was occurring in their household. At trial, the mother denied she was being or had been abused by the boyfriend. However, the father wanted a police report (from several years prior) to be admitted, because it stemmed from a call the mother made to the police alleging the boyfriend had attacked her. This refuted the mother’s claim that no abuse had ever happened. This calls into question whether the police report is admissible. The father’s attorney argued the police report highlights a prior inconsistent statement, under KRE 801(A)(a)(1). Kevin notes that this was bench trial, not a jury trial, but the rules of evidence still apply. The court ruled in favor of the father because the statement was inconsistent at trial. Thus, the police report was admitted. Interestingly, Kevin points out that the police report occurred in New Jersey, and was not actually a part of the case before the court. Nonetheless, the prior inconsistent statement is in control. Rob comments that had the mother admitted, at trial, there had been an issue of domestic violence while they were in New Jersey, the police report would not have been admitted. Diagrams Lauren introduces this segment with a question of whether a police diagram can be admitted. Rob recognizes this happens fairly often at trial. The police have the capability of generating a CAD diagram and attaching it to the police report. In this particular discussion, Rob and Kevin focus on the admissibility of the diagram, rather than that entire police report. Davis’ Adm’x v. Gordon This was a . This was a car verses pedestrian case, in which the child pedestrian died. A wrongful death claim was filed. The defendant claimed the child ran out from between parked cars along the side of the road. There was nothing he could do to avoid the impact. The plaintiff claimed there were no cars parked along the side of the road where the child was struck. Therefore, the defendant should have had a clear line of sight. The police at the investigation drew a diagram showing 3 cars parked along the road. The marked where the child ran out, into the road, from between 2 of the cars. The diagram was admitted at trial. The court ruled in favor of the defendant. The plaintiff appealed. Kevin notes the diagram was based both on what the officers observed when they arrived on scene and by information provided from bystanders. These are hearsay statements. The court of appeals ruled that because the diagram was tainted by the hearsay information, it should not have been admitted. As a result, the case was reversed. Kevin refers back to the 2000 case of Gorman v. Hunt, mentioned earlier in this episode, which involved posed photographs. In this case, the court ruled the posed photographs were admissible. Kevin advises that even though a visual may be inadmissible, if you can find another way, you still might be able to get it admitted. Additional Helpful Cases Dealing with Police Reports Rob begins with (954 S.W.2d 954). This is a 1997 Kentucky Supreme Court case. The Cabinet had a case report in a parental termination case. The case report was not admissible because it contained statement by different witnesses. One party argued it should be admitted as a business record. However, the court held it was inadmissible because it contained the statement from witnesses, which is hearsay. Hacker v. Commonwealth This is a . It was a criminal case. There was a police report from a prior conviction. The prosecution used the police report to attack the defendant’s credibility. The Court ruled the report was inadmissible because it contained victim’s statements. While it appears to be a business record, the statements are hearsay. HBR Madisonville v. Attebury This is a . There was an internal investigation resulting in a wrongful termination at a nursing home. The terminated employee wanted the report from the investigation to be kept out. The employer wanted to admit the report. The court ruled the report was not admissible because it contained statements from other employees. It’s a business record, but it contained statements be people, even though they can be identified. Allen v. Gueltzow This is a . Even in a DVO hearing, police reports are not admissible. JDY v. BHD This is a 2008 court of appeals case involving a DVO. In this case, they wanted to admit the actual petition from the plaintiff, not the police report. The petition was ruled inadmissible, just like a police report. Bradley v. Commonwealth Rob notes that sometimes the rules of evidence, themselves, don’t apply. Bradley v. Commonwealth is a 2021 court of appeals case. In a restitution hearing, the court ruled a police report was admissible. Under the court said the rules of evidence do not apply to restitution hearings. Kevin adds that in sentencing, probation revocation, grand jury proceedings, preliminary hearings and others, the rules of evidence don’t apply, except for privileges. Again, refer to That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29736983

The Collateral Source Rule 01/11/2024

The Collateral Source Rule 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 ( Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the , 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 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). 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 also analyzed the issue of jural rights granted to our citizens (predating our state Constitution). It found that there would be a substantive limiting the rights of an injured person to fully recover. This, in and of itself, would violate the Kentucky Constitution. Jural rights are address in Sections 14, 54 and 241. The Concept of Personal Responsibility Rob discusses personal responsibility as it relates to the Collateral Source Rule. If an individual takes steps to purchase or earn certain benefits, should he/she have a penalty for having purchased or earned them, when compared to some who didn’t take steps and yet avoids the penalty? The Court agreed with this position. Kevin juxtaposes this position by explaining that the wrongdoer shouldn’t receive a benefit because the injured party had the foresight to obtain insurance. Rob goes back to O’Bryan in which the term “windfall” was used by the Court as it described a lack of accountability that the person responsible for the harm caused would receive. This binds the issues of personal responsibility and accountability together. Kevin explains how Justice Leibson addressed the reason the Rule doesn’t work in practice. The section on comity mentions that the Court shouldn’t give comity to the Legislature because of the complexity it would introduce into the issue of insurance, notwithstanding the issues of impracticability and relevancy. Justice Leibson also commented on how evidence given to the jury could potentially result in a reduction of the amount of the award. Kevin and Rob use and example wherein if the jury were to only award the out of pocket expenses, the health insurance carrier could then use subrogation to exert rights to the amount of the reduced award; leaving the plaintiff with nothing. Rob brings up the point that if you were able to tell the jury about the health insurance, short-term or long-term insurance, you would still be precluded from mentioning auto insurance, because of other rules of evidence. This creates a question of balance regarding insurance as a whole. Again, it would be impracticable. Kevin notes how Justice Leibson also addressed the above by noting the jury would only receive a limited and skewed view into what’s actually going on. Baptist Healthcare vs. Miller 177 S.W.3d 676 This is a 2005 Kentucky Supreme Court Opinion. Kevin and Rob explain how the Court reaffirmed the Collateral Source Rule from O’Bryan in this opinion. Baptist involved an issue related to Medicare. In closing, Rob comments on how the Kentucky Constitution protects against a violation of the Collateral Source Rule. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29448318

Admitting Summaries of Information at Trial 01/11/2024

Admitting Summaries of Information at Trial 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 , 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, 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 related to filing exhibits. Look for the closest thing that might apply. Comply with that deadline. Rob often includes summaries in his answers to interrogatories. It’s a way to make sure everyone is on notice that the summary is going to be used. What Is a Summary and What if a Business Record Contains a Summary? Kevin cites Sparks vs. Commonwealth. It’s a 2003 unpublished opinion from the Kentucky Court of Appeals. This one happens to be a criminal case. The issue involved bank statements, which are typical examples of a summary within a business record. An attorney argued the statements showed individual deposits and therefore opposing counsel was required to comply with Rule 1006 by providing it as a summary. Therefore, the bank entries should have been excluded. The defendant was convicted and appealed. The court ruled bank statements are business records. Rule 1006 doesn’t apply. The rule applies to summaries that are created for trial. Are there other Examples When Information might be a Summary? Kevin explains that the rule specifically mentions writings, recordings or photographs. It’s pretty broad. For instance, a summary of blood pressure readings would need to comply, such as in the case Dye vs. Western Kentucky University. Summaries of texts, voicemails and/or emails can be summarized and therefore the rule would apply. Kevin cites Dusing vs. Bakker (2023 KY Court of Appeals unpublished opinion). While these records were deemed to be admissible under Rule 801(A)(b), they qualified as summaries per KRE 1006. Kevin references Davenport vs. Ephraim McDowell Memorial Hospital (769 S.W.2d 56), a Kentucky Court of Appeals opinion from 1988. This case also addresses summaries. The case involved a summary of a nurse’s testimony during her deposition. The court held the information qualified as a summary and therefore fell under KRE 1006. Remember, the Rule doesn’t just apply to medical bills. There are many other types of information that can be made into summaries and therefore required to comply with the rule. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For more information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29447318

Unpublished Opinions and Supplemental Authority 01/03/2024

Unpublished Opinions and Supplemental Authority 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 , 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 . 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 provides that a party may file a motion for leave to cite recent supplemental authority, if such authority was decided after that party’s final brief was filed. Such a motion shall attach the supplemental authority and in 250 words, or less (excluding captions, signature block and certificate of service), describe how the supplemental authority pertains to the appeal at hand. Other parties to the appeal may file a response with the same word limit. Rule 35(B) This focuses on a situation in which you simply missed an unpublished decision, while you were briefing. Importantly, this is a different standard than 35(A). It states, a party may file a motion for leave to cite supplemental authority decided before its final brief was filed, only for good caution. Such a motion shall attach the supplemental authority in 400 words or less. Describe how the supplemental authority pertains to the appeal at hand and why it was not cited in the party’s brief. Other parties to the appeal may file a response with the same word limit. Rule 38(E) Let’s transition to oral arguments and opinions. This rule applies to supplemental authority, when you have oral arguments scheduled in your appeal. Kevin estimates that 10-15% of the appeals are slated for oral arguments. Rule 38 specifically addresses a deadline associated with filing supplemental authority for the panel that’s hearing the oral arguments. This is covered by Rule 38(E). The rule states, in cases set for oral arguments, a party shall file any motion under Rule 35 on supplemental authority for leave to file supplemental authority on oral argument not later than 10 days before oral arguments, unless good cause is shown for a later filing. That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues. If you’d like the case notes, please sent us an email request and we’ll be happy to email you the file including the cases, rules, etc. You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen. For More Information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29323938

Unpacking the Fratzke Opinion 01/03/2024

Unpacking the Fratzke Opinion 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 , 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, asking to extend the trial order date. The judge has discretion, but you need to make the motion. Lauren asks, “What should an attorney do if the request for itemization isn’t included in the interrogatories?” Kevin recommends you always file an itemization of damages. It may not be included in the interrogatories. There will usually be a trial court order, anyway. Even if there’s not a court order, file the itemizations anyway. There’s a change you may encounter a local rule that requires the itemization of damages. If you don’t do it because it wasn’t in the interrogatories and the judge didn’t issue an order, you still may run into problems because you didn’t comply with local rules. Again, it’s best to just file the itemizations. Prater v. Castle Kevin explains the difference is as follows. The case gets to trial. The plaintiff didn’t provide the itemization. Defense argues a Fratzke violation has occurred, citing LaFleur. The plaintiff then files a motion for leave. The trial court interprets Fratzke and LaFleur to require the plaintiff to have to move for leave before the defendant objects. The Court of Appeals rules the trial court had the discretion to consider/grant the motion for leave. They remand it back to have the trial judge rule on the merits of the original motion. Kevin points out that this was another move to deal with the harshness of the Fratzke opinion. Tennill v. Talai Kevin observes that Prater happened in 2003 and Tennill occurred in 2009. However, in between these 2 cases, CR801 was amended to include, “…provided however that the trial court has discretion to allow a supplement to the answers to the interrogatories, at any time, where there has been no prejudice to the defendant.” The amendment puts authorizes the trial court to allow the amendment and gives a standard for it. Kevin explains the basics of the Tennill case. It was a default judgement case. Liability was conceded. The defendant is entitled to a hearing on damages. The defendant sent a request for itemized damages to the plaintiff, prior to the hearing. The plaintiff does not file an answer to the interrogatory. The defense deposes the plaintiff, prior to the damages hearing. During the deposition, the plaintiff isn’t asked about damages or the itemization thereof. Eventually, the case gets to the KY Supreme Court. The Court focused on whether a Fratzke violation occurred related to the damages. The Court understood the defense didn’t ask about the damages during the deposition. Therefore, by neglecting to ask, the defense waived Fratzke. Kevin comments, again, this is another attempt by the Supreme Court to mitigate the harshness of the Fratzke rule. Both Rob and Kevin remind you that you never want to have to rely on Tennill. Attorneys should always file the itemizations. Lauren asks about cases in which there are claims for punitive damages. This brings us to our last case. Chesapeake Appalachia, LLC v. Collins While this case is unpublished, it addresses the issue of punitive damages and Fratzke. The question is whether punitive damages must also be itemized, in addition to compensatory damages? Kevin clarifies that you still need to itemize your punitive damages. Fratzke focuses on unliquidated damages. The Court said, in Collins, a specific dollar amount is required in the itemizations to comply with Fratzke. In conclusion, Rob also reminds attorneys there’s a rule regarding the itemization of medical expenses. You need to do more than just the summaries you intend to use at trial. As with other topic, this issue will eventually be covered in a future episode. Please help us to grow The Legal Notepad Podcast by sharing this episode on your social media and sending a link to your friends and colleagues. Rob challenges each of you to go out and find one thing, today, you can do to help change the world. Thanks for listening! More information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29323773

Understanding Kentucky’s Stipulation of Liability 01/03/2024

Understanding Kentucky’s Stipulation of Liability Episode 3: Louisville attorneys Rob Mattingly and Kevin C. Burke are joined by Rob’s paralegal, Lauren Hincks, for a detailed discussion of the topic of Stipulation of Liability. The Legal Notepad Podcast covers a variety of topics. This episode begins 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 , click the Education and Training tab and look for the podcast. Meet Kevin C. Burke Kevin is a partner in the firm, Burke Neal, PLLC. His practice primarily focuses on appellate work at the Kentucky Court of Appeals and the Kentucky Supreme Court levels. He also assists trial attorneys with briefing and strategic issues at trial. Kevin began as a solo practitioner about 25 years ago. Over time, his practice involved working on a significant number of appeals. This eventually lead to the founding of Burke Neal, PLLC with his partner, Jamie Neal. Rob and Kevin will have a case file available, free of charge, for any attorney who contacts them with a request for information. TODAY’S LEGAL QUESTION: Can a Defendant Make a Plaintiff Stipulate Away Part of Their Case? Kevin begins by stating the answer is generally no. He’ll refer to two main cases during this discussion: · - Davis v. City of Winchester, 206 S.W.3d 917 (Ky. 2006) · - MV Transportation, Inc. v. Allgeier, 433 S.W.3d 324 (Ky. 2014) Davis v. City of Winchester Rob explains the plaintiff had a disputed altercation with police. The plaintiff was injured during the arrest, resulting in a civil claim. As the claim proceeded, defense in the civil trial wanted to stipulate away part of the claim, thus keeping out certain evidence impacting the plaintiff’s claim of malicious prosecution. Kevin comments on the malicious prosecution element. The City didn’t want the jury to know the underlying criminal charges were dismissed. They filed a motion in limine. The plaintiff disagreed, but the trial judge granted the motion. It went up on appeal and eventually made came before the KY Supreme Court. In reaching its decision, the Supreme Court borrowed from criminal law and applied it to this civil action. They reasoned, if you can’t do this in a criminal case, why should you be able to do it in a civil case? Accordingly, you shouldn’t be able to stipulate away part of the case. The Court cited: · - Barnett v. Comm, 979 S.W.2nd 98 · - Johnson v. Comm, 105 S.W.3d 430 (2003) · - Harris v. Comm, 134 S.W.3d (Ky 1998) Kevin notes that the KY Supreme Court found the trial court’s allowing of the stipulating away of a key element is reversible error. Litigants have a substantial right to prove every element of the claim. Both Rob and Kevin comment on the points raised in the decent. Rob adds there will also be a subsequent episode on the need to properly preserve objections. Many attorneys, unfortunately, aren’t doing this correctly. Lauren raises a question involving the fact that the Court stated “a stipulation of fact wasn’t filed or submitted to the jury.” What does this mean? Kevin clarifies the issue. Black’s Law lists a stipulation as “a voluntary agreement…” He comments the Court was considering the dictionary definition of the term. In this circumstance, the stipulation could be viewed as decision that was made unilaterally, rather than by agreement of the two parties. MV Transportation, Inc. v. Allgeier Rob explains the basic facts of the case. A pedestrian, in a wheelchair, was exiting a TARC transport bus and sustained a serious injury. There were multiple claims. The defense wanted to stipulate away a lot of evidence by admitting the bus driver was actually a TARC employee. However, that would have eliminated evidence related to other elements of the multiple claims. Kevin points out the difference in MV Transportation is that the defense was attempting to stipulate away multiple claims by admitting the employment status of the bus driver. This is different from Davis in which only 1 claim was being stipulated away. The defense, in MV Transportation, wanted to eliminate the direct negligence claims. This would have included a punitive damage claim. The trial court dismissed the punitive damage claim, but decided to allow the evidence of all of the remaining claims to go to the jury. The jury found in favor of the plaintiff. The Court of Appeals agreed with the trial court’s ruling. The KY Supreme Court also upheld the ruling. Kevin point out it’s important to note that this case involved an issue of first impression in Kentucky. Kevin wrote the amicus brief in this case. It made it to the Supreme Court on discretionary review. In his brief, Kevin cited Davis v. City of Winchester. He reasoned if you can’t stipulate an element of a claim, you can’t stipulate a whole claim. In the analysis, the “majority rule” of the other states, which have already dealt with similar cases, wasn’t part of the decision. The Court looked deeper into the purpose of the rulings. Rob and Kevin discuss the issue of punitive damages and how they related to this type of situation. Interestingly, the Supreme Court, in MV Transportation, remanded it back for a limited retrial on the punitive damage claim. Lauren notes specific language in the Supreme Court’s decision: “a finding of gross negligence and an award of punitive damages may be based, at least in part, upon evidence regarding the policies and procedures of the company.” Why does this come up so often? Kevin explains the MV Transportation clarifies the question of whether policies and procedures can be introduced as evidence to support a claim of punitive damage. Rob remarks a future episode will focus on the admissibility of policies and procedures and violations of those policies and procedures. As Lauren noted, it is beginning to come up with increasing frequency. In conclusion, the discussion answers the original question. No, you can’t be forced to stipulate away your claim. This includes either an element (Davis) or an entire cause of action (MV Transportation). As we continue the podcast episodes, Episode 4 will focus on the Fratzke opinion and its progeny. Please help us to grow The Legal Notepad Podcast by sharing this episode on your social media and sending a link to your friends and colleagues. Rob challenges each of you to go out and find one thing, today, you can do to help change the world. Thanks for listening! More information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: To Contact Kevin Burke: Website: Phone: (502) 709-9975 The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/29323398

Judge Burke - Hope for Addiction and Mental Illness! 11/17/2023

Judge Burke - Hope for Addiction and Mental Illness! Episode 2: Louisville attorneys Rob Mattingly and John DeCamillis interview Jefferson County Judge Stephanie Burke about the Drug Court. This episode deals with both mental illness and addiction. They discuss her passion for helping people to recover, how Drug Court works and why it’s so valuable to our community. Editors Note: If you are an attorney and would like to receive CLE credit for this episode, visit the , click the Education & Training tab and look for the podcast. The Honorable Stephanie Burke is a Jefferson County District Court Judge. Elected in 2010, she’s served for the past 10 years. She’s a mental health and criminal court judge. She’s served in the Jefferson County Drug Court since 2012. She also became the mental health judge in District Court in 2017. Rob and John often receive calls from people who have family members suffering from mental health problems and/or drug addiction. They simply need direction and advice as to how to help their family member. Addiction Topic 1: If someone has an alcohol or drug issue, but hasn’t be charged with a crime. Topic 2: If someone’s been charged with a drug or alcohol crime. Mental Illness Topic 3: What do you do if someone suffering from mental health issues is in immediate danger? Topic 4: What resources are available if your family member is having on-going struggles with mental health? John begins by commenting that Judge Burke has become the local expert in regard to how the court system can get involved on a personal level and save lives. Judge Burke credits her early experience working with Judge Henry Weber, who was a Drug Court judge. She was also a guardian ad litem working with people living in poverty. Both experiences were formative in her desire get on the bench to help those people in need by getting them out of the system and to have better outcomes. During her time on the bench, she was active in getting Tim’s Law passed. This deals with court ordered assisted outpatient statue. Judge Burke was instrumental in Kentucky recently receiving a $4,000,000 grant to help Jefferson County deal with people who are frequently hospitalized and incarcerated due to challenges in coping with their mental health situations outside of a formal setting. Topic 1 When John receives a call about someone struggling with and issue, he tries to determine if it’s due to addiction, substance abuse, mental addiction or a combination of factors. If it’s substance abuse the person’s age and insurance are important. Casey’s Law becomes important when there’s no criminal action, but the parent wants to seek help for their loved one, through the court system. What Is Casey’s Law? Casey’s Law enables a family member or loved one to take court action to obtain a court order to force someone into substance abuse treatment. This would be an involuntary situation. While this involves fees and other expensed, there are community resources available to help. To find out how to obtain a Casey’s Law order, visit and search for Jefferson County. The process is explained and the steps are laid out to help you. Judge Burke suggests , as a resource, before pursuing a Casey’s Law order. A questionnaire on the site will provide a list of potential treatment options, based on the specific circumstances. In 2020, Jefferson County had 600 overdose deaths. There were only 218 in 2015. The opioid epidemic combined with COVID pandemic have led to disastrous results in Jefferson County. The isolation has exacerbated the challenges for those in recovery or those trying to gain sobriety. Overdose deaths in Jefferson County increased by 60%, compared to last year. As a family member of someone struggling with addiction, a court ordered intervention can be that step that helps to turn his/her life around. Addiction treatment has enabled many people to begin and stick with recovery. They can go on to have successful lives, save marriages and enable them to be the parents they really want to be, because the drugs are no longer controlling their lives. Here’s an overview of the PART 1 process, when no criminal charges are pending: The parent contacts John DeCamillis The parent or family member should look at the Jefferson County Attorney’s website for Casey’s Law at . Contact the advocate in the county attorney’s office by calling (502) 574-6188. The Office of the Circuit Court Clerk’s Mental Health Division is another option at (502) 595-4053. They will walk you through and provide assistance. The prosecutor’s office will assist in preparing the petition. After the mandatory evaluation is completed, a court hearing is set. The petitioner would testify as to why they feel their loved one should be placed into this program. The court would then make a decision regarding whether the person should be ordered to treatment. The only upfront cost goes to pay the medical professionals for the evaluation. The advocate can help the family member to find affordable treatment. If the family doesn’t have money for the treatment, may be a no-cost option. What if my loved one relapses? Unfortunately, relapse is common occurrence. The law does not limit how many times you can file a Casey’s Law petition. Topic 2 A family member contacts John DeCamillis about a family member, but there is an actual criminal charge(s) involved. This could be a drug- or alcohol-related charge such as DUI, possession, etc. In this case, the individual may already have a court date set. This also assumes there’s an addiction component involved. Drug Court may be an important option. Jefferson County Drug Court This is for drug addiction as well as alcohol addiction. If a Class A misdemeanor or felony charge is pending, or the individual is on probation for a Class A misdemeanor of felony, he/she may be eligible to participate in Drug Court. An assessment would be required. If the person is found to be “high risk/high need,” the greater the possibility that he/she would benefit from and be successful from the Drug Court program. Resources, case management support and clinical services that someone in this high risk/high need situation may not be able to get on their own. This is an alternative to going to jail. What’s the Benefit of Drug Court? Depending upon the plea agreement, your plea may be set aside and your case dismissed once the individual successfully completes the program. This could apply to misdemeanor and felony charges. Not only would he/she avoid a jail sentence, more importantly they will be living soberly and on the way to a full recovery from the addiction. For some, Drug Court can literally be a life-saving option. Each person receives an individual treatment plan, which often includes housing as a critical first step. A clinical advisor is assigned. A recovery coordinator (therapist) is involved. A case manager is assigned to manage all of the appointments and direct communication with the individual. Judge Burke’s Approach to Drug Court May Surprise People It’s not what many expect. When Judge Burke conducts Drug Court, she purposely sits across the table from the individual and doesn’t wear her judge’s robe. She wants to connect with the individual on a personal level. Outside of the courtroom, she will visit with participants at their place of employment, or even at the person’s home to show active support. She attends celebrations and milestone meetings with the individual. The graduation is a significant event for both the individual, Judge Burke and the team supporting that individual’s recovery. Topic 3 Now let’s transition to mental health issues. If your loved one is suffering from a mental illness and is in immediate danger, there are options available to help. John can help determine if this is a mental inquest situation or something that can be addressed via Tim’s Law (assisted outpatient treatment). If someone is a danger to himself/herself or others and has been diagnosed with a mental illness, and you believe he/she is in imminent danger, you can seek an involuntary commitment for an involuntary hospitalization. In Jefferson County, this is done at the Hall of Justice, room 3177. The address is 600 W Jefferson St, Louisville, KY 40202. You must go in person, with an ID. It’s open 24-hours a day. Once the petition is submitted, a judge will review it to determine if the person needs to be picked up for evaluation. If so, a doctor will determine if the person should be kept for a period of time to be seen for a hearing. If the judge then determines a longer hospitalization is required, the process ensues. The person can be kept typically up to 60 days to help the person return to a stable condition. Topic 4 If your loved one has had repetitive hospitalizations or incarcerations due to mental illness there’s an additional option. Tim’s Law This is Kentucky’s law for court ordered, assisted outpatient treatment (AOT). This went into effect in 2017, but in 2019 the statute was expanded to include a wider range of eligibility. Kentucky received a $4,000,000 federal grant from the federal agency providing services for mental health treatment, the Substance Abuse and Mental Health Services Administration (SAMHSA). If you have a loved one who has been committed under a mental inquest warrant, twice in 12 months and has been hospitalized twice in 12 months under a court order, you can seek an order for the individual to comply with outpatient treatment. This is meant to stop the revolving door for someone who gets treatment, feels good so he/she decides to go off of their medications and is once again in a crisis situation. The petition is usually handled by a doctor or someone involved in the person’s treatment, typically while that person is still hospitalized. The loved one can also file this petition. If assisted outpatient treatment (AOT) is elected, it can go into effect for 356 days. There is no cost involved for the family. If insurance is available that can be used, but the grant is there to provide funding. Judge Burke has been very involved in getting this program off the ground. She’s worked extensively within the local court system. She’s lobbied in Frankfort to educate legislators. She’s actively making a difference for our community and the state at large. Between 2017 and 2019, there was only 1 AOT petition taken. Judge Burke comments that her calculations indicate the program saved approximately $500,000 in costs to the community for hospitalizations and incarcerations of that individual. The new federal grant is aimed at serving 192 people over four years. This is a huge advantage when the local and state governments are experiencing budget pressures. In closing, we’re confident you’ve now learned that there are places and programs to turn to when you need help or treatment for your loved one. Please don’t give up hope. More information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/28694138

Attorneys Helping FOCUS to Positively Impact Louisville Kids 11/09/2023

Attorneys Helping FOCUS to Positively Impact Louisville Kids Episode 1 Focus for the Future: Rob Mattingly and John DeCamillis launch their new podcast with an interview. They speak with Tim Barnett, Founder of in Louisville. FOCUS (an acronym for Focus On Character Equals Ultimate Success) works with youth to provide direction, motivation, purpose and a sense of personal responsibility. Let’s join Rob and John for this insightful episode. Tim explains that a core part of the FOCUS experience is based on developing people skills. Young people are taught and then expected to greet adults and others. It instills a sense of self-confidence and pride, which is constantly reinforced. The environment also provides examples of leaders and the value of getting to know people who may be able to help them in the future. It fosters a sense of community and belonging for all involved. This is about more than basketball; it’s about life. Tim discusses “The Story of 5” as an example of how lives can be changed and enriched. He brought together 5 young girls from different socio-economic backgrounds. They bonded as their team and friendships began to take form. Several of the girls ended up going to high school together. But the “winning” didn’t stop there. How Does FOCUS Training Academy Achieve Its Objectives? Tim and his team push people outside of their normal comfort zones. Activities often include community outreach and service projects. Academic performance and proper nutrition are also important parts of the program. It’s about building the person holistically. The positive habits are expected and reinforced. Accountability is an important life-skill. What if I Can’t Afford to Attend FOCUS Training Academy? There are scholarships available, based on a work-study style arrangement. Roughly 60% of the kids involved are on scholarship. Funding from the community is key to being able to continue this valuable program. How Does FOCUS Training Academy Help with Academics? The Academy has partnered with JCPS. Certified teachers come to the facility to help with tutoring after hours. The focus on academics goes further than tutoring. Coping with the other Outbreak John shares some comments about Louisville’s challenge with juvenile crime and violence. Many kids don’t have the opportunity to escape dangerous environments. FOCUS Training Academy is helping to address the situation. Louisville’s West End can be a challenging environment. The COVID pandemic has amplified that challenge because the schools have been closed down. Many parents are working outside of the home and the children are sometimes left with little or no supervision. It’s a recipe for problems. FOCUS Training Academy opened the in 2019. It’s been offering NTI (non-traditional instruction) in conjunction with JCPS. Classes are held from 8:30 to 2:00. JCPS is also providing breakfast and lunch at the Center. Many of the kids are able to participate in sports from 2:00 to 3:30. They take care of business and then get to have fun. It provides a sense of belonging and safety. Tim comments that its very similar to the Boys & Girls Club he attended when he was young. A History of Providing a Positive Environment Tim describes how the idea and the foundation for FOCUS Training Academy began to take shape in 2005. Tim has a calling to work with young people. Initially he got engaged with Ballard and Waggener High Schools. That was his launching pad for what the program has evolved into over the years. Rob and Tim Discuss Walking the Walk The creation of the Enrichment Center was critically important to show the kids it’s about much more than basketball. Later, Lakers basketball player Rajon Rondo (a friend of Tim’s) partnered, through his foundation, to fund the Rajon Rondo Learning Center for Teens. There are ACT prep and financial literacy classes available. Tim also proposes a class to introduce kids to a potential career in the law. The off-the-court activities are done through the Enrichment Center. John and Tim discuss sustainability. Tim works the program every day. However, it takes the support of others to keep it going. They are battling some startling statistics related to gun violence in Jefferson County. How Can You Get Involved? DeCamilis & Mattingly has made a significant financial commitment to the Focus Training Academy. Tim’s main strength is teaching kids about basketball and life. You can help by making a contribution to Focus Training Academy. Tim’s made a ripple in our community. Your help can make a wave. Thanks for listening! More information about the Law Offices of DeCamillis and Mattingly, PLLC Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory) Phone: (502) 589-2822 Website: The Kentucky Bar Association Requires Us to State “This is an advertisement.” /episode/index/show/99669608-cac2-40e7-98b5-8cc2de99860b/id/28569803

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