Represent Client in Breach of Insurance Contract Matter
The firm represents a national insurance company in this case. In it, the plaintiff contends the insurer has breached the insurance contract and violated the Kentucky Motor Vehicle Reparations Act (KMVRA) by seeking an examination under oath (EUO) and delaying a decision on their no-fault claim and before paying certain claims under their Personal Injury Protection coverage of their auto policy until an EUO is taken.
The plaintiff contends that even if an EUO is authorized by a court, the insurer must still pay the PIP claim within 30 days, and if they do not, then they are obligated to pay the claim as well as statutory penalties of 18 percent prejudgment interest and attorneys fees.
Represented Client Against Allegations of Mismanaged Self-Insured Funds
In order to provide reasonable cost insurance to local Kentucky school boards, the Kentucky School Board Association (KSBA) created the Kentucky School Board Insurance Trust (KSBIT) and in particular two self-insured funds – one for workers compensation and one for property and liability claims. KSBA directly managed the funds for many years, and in later years utilized an outside entity third party administrator to handle claims. Financial examinations conducted by the Kentucky Department of Insurance from 2005 forward revealed the funds were consistently in a deficit position. Despite calls from DOI examiners, DOI did not order any assessments, and KSBA did not seek any from its members. The Kentucky League of Cities assumed management responsibilities in 2010. Despite new efficiencies and cost savings, the funds continued to be in a deficit position and KLC called for an assessment of members in 2012. Ultimately, the funds went into rehabilitation in 2013, and large assessments totaling approximately $50 million were ordered by the Franklin Circuit Court. The firm represented the Kentucky League of Cities in litigation challenging its management of the two self-insured funds, and in particular the rates charged to members and its change of TPA. The claims against the Kentucky League of Cities were settled in late 2015. The rehabilitator’ claims against KSBA and the KSBIT Board remain pending.
Represent Insurance Company in Bad Faith & Breach of Contract After Personal Injury Claim
The firm represented a national insurance company against a personal injury plaintiff who pursued his own third party bad faith claim against the company as well as first party breach of contract and bad faith claims assigned to him by the insured. The case arose from a tragic car accident. A mine employee who left work allegedly fell asleep after working a double shift, crossed the center line and collided with the accident victim. The mine employee died in the accident, and the plaintiff victim suffered other catastrophic injuries allegedly rendering him unable to work again. He filed suit and subsequently added the mine that employed the tortfeasor as a defendant. He claimed his injuries arose from their negligent supervision of the tortfeasor. The insurer for the mine denied the claim and did not provide a defense, relying upon a total auto exclusion in their CGL policy. Ultimately, the insured assigned its rights against the insurer to the plaintiff and filed suit directly against the insurer. The case ended in a voluntary settlement.
Represent Client in First Party Bad Faith Claim from Auto Accident
The firm represented a national insurance company in a first party bad faith claim arising from an auto accident. In evaluating his underinsured motorist (UIM) claim, the insurer rejected a spinal outpatient surgery he had done claiming it was controversial and not recommended by the mainstream medical community. A jury ultimately entered a verdict exceeding his UIM limits. The insured claimed the insurer had acted in bad faith in its handling and evaluation of the claim, utilizing protocols intended to maximize company profits at the expense of the insureds and claimants. The claim was settled prior to trial.
Represent Insurer in Third Party Bad Faith Claim
The firm represented the insurer of a foundation repair company that was hired to repair the foundation of Plaintiffs’ home. The home was built on an Eastern Kentucky mountaintop, which had previously been the site of a surface mine. The deed to the property declined any warranty for the condition of the soils on the property. Subsidence began to cause cracking inside and outside the home. The Plaintiff ultimately sued the insured repair company and the insurer denied the claim based on the “subsidence” and “contract” exclusions in the policy. The court ultimately concluded there was coverage under the policy. Thereafter, the insurer defended the claim against the insured and that claim was subsequently settled. The plaintiffs thereafter filed a third party bad faith claim against the insurer. The insurer defended the claim on several grounds, including that the insured’s liability for causing the damage to the home was not “reasonably clear” or “beyond dispute” and as such no bad faith claim could lie against them. The case was settled prior to trial.
Represent Client in First Party Bad Faith Claim from Auto Accident Involving Mine Worker
The firm represented a national insurance company in a first party bad faith claim by its insured. The case arose from a car accident. A mine employee, who left work, allegedly fell asleep and collided with another vehicle. The occupants of the second vehicle claimed significant injuries. These accident victims filed suit and subsequently added the mine that employed the tortfeasor as a defendant. They claimed their injuries arose from the mine’s negligent supervision of the tortfeasor. The insurer for the mine initially defended the claim but later denied the claim and withdrew a defense, relying upon a total auto exclusion in their CGL policy. After the defense was withdrawn, the mining company failed to assume their own defense and, after failing to answer requests for admission, a judgment totaling $40 million was ultimately entered against it. The insured sued the insurer, claiming there was coverage under the policy, and/or that it waived its right to deny coverage by initially defending without a written reservation of rights. It also claimed the denial was in bad faith. The state trial court ultimately ruled there was coverage under the policy, and thus the insurer was responsible to pay the $40 million judgment entered against the insured. The trial of the bad faith claim was scheduled for a later date. The court’s coverage decision was appealed, and during the appeal a global settlement was reached on all claims.
Represent Medical Malpractice Insurer in Mass Tort Matter
The firm represented a medical malpractice insurer in seeking a declaratory judgment that the relevant policies covering certain individual cardiac physicians did not cover intentional acts and that any verdict amount assigned to any of the intentional torts alleged in the complaint were outside the coverage of the policy.
Represent Medical Malpractice Insurer in Bad Faith Claim
In this case, the plaintiff’s estate claimed the medical malpractice carrier had acted in bad faith in handling and settling an underlying malpractice claim against the insured doctor. The plaintiff claimed that doctor ran a “pill mill” and improperly prescribed several narcotic medicines to the decedent who eventually overdosed. During this same time period the defendant doctor was cited by the state medical licensing board and thereafter restricted from prescribing medicines. The defendant doctor defended by claiming that he provided the decedent proper warning and that if taken as prescribed no overdose would have occurred. He retained two experts who were prepared to testify that the doctor complied with the standard of care and/or that his conduct did not cause the overdose. The case ultimately settled for less than the policy limits a little more than a year after it was commenced. The bad faith case followed, with the decedent’s estate claiming that the insurer had acted in bad faith by unduly delaying a claim where liability was reasonably clear and making offers less that the true claim value. After initial written discovery was exchanged, the insurer moved for summary judgment on the bad faith claim on several grounds, including that the doctor had not consented to settlement until the day of settlement and because the doctor’s liability for causing the overdose was not beyond dispute and absent such clear liability, an insurer was entitled to make no offer and proceed to trial without exposing itself to bad faith liability. The court ultimately concluded no additional discovery was needed to address these issues and entered summary judgment. The plaintiff filed a motion to vacate the order under Rule 59 and this, too, was denied. The case is currently pending before the Kentucky Court of Appeals.
Anonymous Plaintiffs v. Large National Coal Company
Big Sandy Company, L.P. v. Sidney Coal Company and Cliffs Mining
Christine Skidmore v. Affordable Denture Laboratories
Cook Pallet, Inc. v. Meritor Heavy Vehicle Systems, LLC
Defended Jewish Hospital against allegations of wrongful discharge
Defining the EPA’s Water Quality Standards and Permitting Authority
We represented the Kentucky Coal Association (KCA) when the Environmental Protection Agency attempted to implement a final guidance that enabled blockage of Clean Water Act permits for coal mining operations.
The EPA issued final guidance in July 2011 which directed its field offices to object to state-issued permits in certain ecoregions in Appalachia (particularly Eastern Kentucky and West Virginia) unless they contained a “reasonable potential analysis” prior to permit issuance (even if the mine was new and therefore no site-specific data upon which to base an RPA was available) and/or numerical conductivity limits, which allowed EPA to block permits for virtually all new or expanded surface coal mines in Eastern Kentucky or West Virginia. We represented the KCA in arguing that the EPA had exceeded its authority in issuing the final guidance because it went beyond their oversight as outlined in the Clean Water Act and the Surface Mining Control and Reclamation Act. We also alleged that the EPA’s final guidance infringed upon the states’ authority to enact and monitor their own water quality standards.
Our case was transferred to the U.S. District Court in Washington, D.C., where the KCA became a co-plaintiff along with the National Mining Association, the Commonwealth of Kentucky, the state of West Virginia, and the city of Pikeville (Ky.). Working in coordination with other plaintiff counsel, we prepared extensive briefs, including researching and addressing Kentucky-specific requirements related to water conductivity standards. We also participated in oral arguments during a hearing, demonstrating that the power to set water quality standards is delegated to the states and that the EPA did not follow the formal rulemaking process to attempt to implement a federal standard.
After hearing oral arguments, the judge ruled that EPA’s reliance upon the final guidance to object to and thereby block the issuance of individual Clean Water Act permits for new or expanded surface coal mines in Eastern Kentucky and West Virginia was unjustified and unlawful. Unfortunately, EPA continues to refuse to issue the permits at issue in direct contravention of the court’s order. The case is now on appeal before the U.S. Circuit Court of the District of Columbia.
Learn more about this case in the article: Judge Sides With Coal Industry Against EPA
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