In September of 2013, the Court of Appeals of Kentucky heard a case involving a car accident case where at the lower court a jury had awarded the plaintiff money pursuant to an underinsured motorists insurance policy. (See Occidental Fire and Casualty Co., 2013 WL 4779752 (Ky.App. 2013)). The Kentucky car accident occurred on December 1, 2006. Id. The driver of the other car had automobile liability insurance policy limits in the amount of $25,000. Id. The injured Kentucky plaintiff filed his lawsuit on May 8, 2009 for injuries resulting from the Kentucky car accident. On February 12, 2010, Occidental filed an intervening complaint as it had paid basic reparation benefits and was the underinsured motorist insurance company. Id. In July of 2010, the wrongful driver filed for bankruptcy. So, at this point in time, the wrongful party now was still involved in the litigation except that no judgment could be entered against her in excess of her policy limits because of the bankruptcy. Id. The Kentucky personal injury plaintiff also amended his complaint to add Occidental as a defendant in order to recover UIM benefits.
Prior to trial the Kentucky personal injury lawyer settled with the wrongful driver for $16,000. The attorney notified Occidental of this settlement and Occidental advised the plaintiff’s Kentucky personal injury lawyer that they would substitute payment of the settlement funds pursuant to KRS 304.39-320, thereby ensuring its rights to subrogation against the wrongful driver for any UIM benefits paid to the injured Kentucky plaintiff.
So, Occidental paid the Kentucky injured plaintiff the $16,000 and then filed a cross-claim against the wrongful driver for that amount. The trial court granted the motion but dismissed the wrongful driver from the case. At trial the plaintiff’s personal injury attorney filed for a partial summary judgment on the issue of liability for the accident against the wrongful driver. The court granted this motion. So, on May 1, 2012, the case proceeded to trial on the UIM claim and damages only. The trial court granted a directed verdict to the Kentucky personal injury plaintiff on his claim for past medical expenses, and the jury awarded money for future medical expenses, pain and suffer and for impairment of power to earn money.
The first issue that was appealed was the issue as to liability. The trial court granted summary judgment on this issue for the plaintiff. This court upheld it in light of the fact that the plaintiff Kentucky driver had a green light and the wrongful driver caused the accident. And at the bankruptcy hearing she testified that the accident was her fault. Also, during discovery, the wrongful party’s husband testified it was her fault. So, there was no issue of fact.
Next, the appealable issue was the dismissing of the wrongful party at trial. The defendant claimed that “.. once a UIM carrier substitutes payment of the proposed settlement between a tortfeasor and a claimant, the UIM carrier has successfully preserved its subrogation rights and the tortfeasor remains a party to the action. While this is normally true, Slone’s bankruptcy necessitate d her dismissal from the case.” Id.
Then an issue had to do with the Kentucky personal injury plaintiff introducing medical records into evidence without foundation or testimony. The court found no error with that citing to KRE 803(6) which discusses Records of regularly conducted activity. Id. In this Kentucky personal injury trial the medical records were authenticated using KRS 422.300(2) and KRS 422.305(2) which allows for the custodian of the medial records to certify that the copies provided are authentic by signing a certification and having the certification notarized. The medial records were properly admitted into evidence.” Id.
And finally, there were two smaller issues having to do with the award of future medical monies and the award of the costs that plaintiff’s Kentucky personal injury lawyer asked for. Both, based on case law were upheld.
If you have been the subject of a Kentucky Personal Injury lawyer case, please call and speak to a Kentucky Personal Injury lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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