Elizabethtown Independent Schools celebrates nine of its distinguished alumni October 14 during the 2017 Tradition of Excellence Alumni Award Ceremony, including Attorney Michael Coyle. Michael Coyle, a 1958 graduate, was very active in school organizations, but his most coveted honor was winning the Andrew Clay Johnson Award. He attended the University of Kentucky on a football scholarship and graduated in 1962 with a degree in accounting and from UK College of Law in 1965. That same summer, he took the bar exam, the CPA exam and married his high school sweetheart, Moninda Diecks, a 1959 Elizabethtown graduate. After three years working as a CPA in Cincinnati, the Coyles returned to Elizabeth­town to practice law in 1968. Coyle is a past president of the Hardin County Bar Association and has served as master commissioner and domestic relations commissioner and was a Hardin Circuit Court judge from 1980 to 1986. He is admitted to practice in various federal courts, including the U.S. Supreme Court and the U.S. Tax Court. He also served as chairman of the EIS Board of Education. In 2014, he was inducted into the high school’s Athletic Hall of Fame.

After years and years of practice (both law and golf), Tom Kerrick finally got his first Hole In One on Friday, Sept 22, 2017.  It just happened to come during the BG Warren County Bar Association’s annual golf tournament, the Barristers Open, so there were in fact witnesses to this incredible feat!  It came on Hole 11 at BGCC and was a slam dunk from 120 yards!! There is no truth to the rumor that he will be retiring from his legal practice to go on the Seniors Tour.

Kerrick Bachert is pleased to welcome Natalie Feldman to our firm! She will provide services focusing in real estate law and estate planning, wills, and trusts.

 We are excited to welcome Matthew Cook to Kerrick Bachert! Mr. Cook primarily handles insurance defense and a variety of litigation matters.

Attorney Ena Demir will be speaking at DUC on WKU on November 9, as part of WKU’s International Year of Bosnia Program. She will be joined by two other Bosnian-American attorneys- Ira Trako, the Assistant Director of International Law at St. Louis Law school and Djenita Pasic, a partner at Pasic & Lewis Law Firm in Louisville. Several years ago, WKU started an International Year Of (IYO) Program, which is intended to provide the WKU campus and surrounding community with understanding and interconnectedness through a year-long celebration of a single country. Throughout the school year, exploration of and interaction with the country occurs through campus events, cultural exhibits, research projects, lectures, speakers, etc. with regard to that country’s history, culture, people, art, food, music, etc. This school year, WKU is celebrating Bosnia. The three Bosnian-American attorneys will be sharing their personal stories and discussing the intersection of Bosnian culture with the practice of law. The event starts at 6 PM in DSU 3020. We hope to see you there!

On December 9, 2009, a limb from a red maple tree fell during a windstorm (with winds in excess of 50 mph) in Somerset, Kentucky and killed 17-year old Kaitlyn Griffin and her unborn child.  The tree limb also injured Kaitlyn’s cousin, Joshua Thacker.  On the morning of December 9, Kaitlyn’s mother, Rhonda Griffin, was moving into an apartment owned by the Housing Authority of Somerset.  Kaitlyn was seven months pregnant at the time and had come to visit with her mother that day.

Following the incident, a lawsuit was filed by Kaitlyn’s parents as the co-administrator’s of her estate and by Joshua against the Housing Authority, asserting that it was negligent for the respective deaths of Kaitlyn and her unborn baby and for Joshua’s injuries.  The case proceeded to a jury trial in the Pulaski Circuit Court in October 2013.  The Housing Authority defended that it had no prior notice of any defect, illness, or condition exhibited by the tree that collapsed during the storm – in essence, it argued that the incident was an unforeseeable act of God.  Tree experts called by the defense testified that the tree was not diseased and that it was alive at the time of the incident.  The Plaintiffs countered with a witness who was a former employee of the Housing Authority who stated that he had advised the Housing Authority Executive Director several years prior that he had cut down dead limbs from the tree and that he believed the tree had issues that needed to be addressed.  The Housing Authority denies the conversation ever occurred and pointed out that the former employee was not a tree expert.

The jury found for the Plaintiffs and awarded nearly $4 million in damages.  The Housing Authority appealed the judgment and while the appeal was pending, the case was settled at a court-ordered mediation.  The terms of the settlement were that the Kentucky Housing Authorities Self-Insurance Fund’s insurer, Evanston Insurance Company, would pay the several Plaintiffs “policy limits” to resolve the claims.  The Plaintiffs reserved the right to and did ultimately file a declaratory judgment action to determine the amount of available policy limits.  Evanston contended that policy limits were $1 million and the Plaintiffs claimed the cap was between $2 million and $4 million.  Judge Danny Reeves of the U.S. District Court for the Eastern District of Kentucky ruled in favor of Evanston that policy limits were capped at $1 million.  See 2015 WL 8373945 (E.D. Ky. 2015).  The Plaintiffs appealed to the Sixth Circuit.

On appeal, the Plaintiffs argued for the first time that the interests of the Housing Authority and the Self-Insurance Fund (both Kentucky entities) aligned with those of Evanston Insurance (an Illinois entity) such that diversity jurisdiction was destroyed.  The Sixth Circuit remanded the case to Judge Reeves to allow him to examine the party alignment/diversity jurisdiction issue.  See 658 Fed. Appx. 799 (6^th Cir. 2016).  On remand, Judge Reeves held that he had properly aligned the parties given their respective interests in the primary dispute at the time of filing of the declaratory judgment action and he reinstated his prior judgment in favor of Evanston.  See 2016 WL 6650843 (E.D. Ky. 2016).  The Plaintiffs appealed again.

On August 15, 2017, the Sixth Circuit entered an opinion (designated for publication) which affirmed the ruling of the trial judge in favor of Evanston.  See — F.3d —, 2017 WL 3481865 (6^th Cir. Aug. 15, 2017).  This opinion covers several important points for future insurance coverage disputes.

First, the Court addressed the proper alignment of parties in a coverage case brought under diversity jurisdiction.  The Court held that “[p]arty alignment is not solely a function of how the parties align themselves; courts may realign the parties to reflect their actual ‘interests in the litigation.’”  Id. at *2.  Judge Sutton wrote in his opinion that “courts must group parties with similar interests on the same side of the suit and pit them against parties with competing interests.”  Id. (citing Smith v. Sperling, 354 U.S. 91, 96 (1957)).

The Sixth Circuit applied this test and concluded that Judge Reeves had properly aligned the parties and found that diversity jurisdiction existed.  It found that this case presented the normal situation in a coverage matter of “Insurer versus Insured and Injured Party.”  Id. at *2.  The rationale for this holding was that the Housing Authority and its Self-Insurance Fund had an interest in the court finding more coverage as opposed to less coverage (the position taken by Evanston, the insurer).  The key time to look at the alignment of the parties is the time the declaratory judgment action is filed.  The Sixth Circuit stated that how the interests of the parties appeared before (or even after) that time was not material to the diversity jurisdiction decision.  Id. at *4.

The Court then turned to the coverage merits.  Part A of the insurance policy at issue insured Fund members from general liability stemming from bodily injury, personal and advertising injury, or property damage caused by an occurrence that takes places in the coverage territory.  It limited coverage to $1 million for each “occurrence,” and $2 million in the aggregate.  Part B of the policy insured Fund members for wrongful acts stemming from any actual or alleged error, misstatement or misleading statement, act or omission, neglect, negligence, or breach of duty committed by the insured parties.  Like Part A, Part B covered up to $1 million per claim and $2 million in the aggregate.  Both parts limited Evanston’s liability for events that qualified as occurrences and claims.

The Plaintiffs argued that the deaths of Kaitlyn and the unborn baby and the injury to Joshua arose from multiple causes even though only one tree fell on them.  The Court found only one occurrence under Part A – “just one tree in one fall caused all of the harm.”  See 2017 WL 3481865 at *5.

The Court also rejected the Plaintiffs attempt to increase coverage under Part B.  Judge Sutton stated:  “Neither party disputes that a coverable event could constitute an occurrence and a claim.  Both parts provide for a maximum of $1 million in coverage per event.  Because the applicable limits of each coverage part are equal, the text of each says that only Part A’s limit applies.  Evanston thus does not owe anything under Part B of the contract.”  Id. at *6.  Thus, Judge Reeves’ trial judgment was completely affirmed by the appellate court.

The ruling is significant in two respects.  First, and this will help coverage counsel, it clarifies that the question of whether parties are “adverse” in determining federal diversity jurisdiction has to be decided at the time the complaint is filed, not at some later point.  The Court recognized that a party’s position in litigation is constantly morphing based on discovery, rulings, and settlements and it therefore makes sense that diversity jurisdiction be determined at the outset of the case.  Second, the Sixth Circuit recognized that Kentucky follows the “cause approach” in determining what constitutes an “occurrence” under a GL insurance policy and directs courts not to look at the number of injured parties (the “effects approach”) but rather, to whether there was one proximate uninterrupted, and continuing cause of the injuries.

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Kerrick Bachert had the honor of hosting the Bowling Green Area Chamber of Commerce’s Business After Hours event at the firm on August 29. The Business After Hours event is held monthly at various business in the Bowling Green area. Business After Hours is an open house networking opportunity for members of the community to interact in a more thorough and personal environment. Thanks to everyone who attended.

Kerrick Bachert law firm had the honor of sponsoring the CLE feature: Waiting to be Heard which included Amanda Knox and Professor Gregory Gordon at the Annual Kentucky Bar Convention in Owensboro, Kentucky on June 23rd. Amanda Knox was studying abroad in Italy when she was convicted for the murder of her roommate, Meredith Kercher. Her conviction was overturned by the Supreme Court of Italy in 2015. Since then Knox has been working to spread awareness of wrongful convictions. Professor Gregory Gordon is the Associate Dean and Director for the research program at the Chinese University of Hong Kong Facility of Law. Professor Gordon has been featured on many news shows as an expert on war crimes prosecution after his experience at the Department of Justice’s Criminal Division Office of Special Investigations- where he investigated and prosecuted Nazi war criminals and modern human rights violations. Professor Gordon discussed the difference between the judicial systems in America and Italy. It was a privilege for Kerrick Bachert to host Knox and Professor Gordon at the Annual Kentucky Bar Convention.

 Kerrick Bachert is dedicated to advancing the education of generations to come. Attorney Laura Hagan is currently serving as the Vice Chair for the Board of Western Kentucky University Research Foundation whose goal is to support the education and research missions of Western Kentucky University. Just recently, the Research Foundation board had the honor of hosting President Cabboni at their meeting. If you are interested in learning more about the applied research opportunities at Western Kentucky University, sign up for the Western Kentucky Research Foundation newsletter here.

Are you aware that your social media profile may be subject to disclosure in a lawsuit? Social media content is playing an ever increasing role in litigation and courts across the country have admitted social media as evidence in lawsuits. It is now being called the new surveillance video of this generation. If your social media profile is public, it is open to scrutiny by the opposing party in the case. However, even if your social media profile is private, it may be admitted as evidence if the Court believes the information contained in that profile is relevant and necessary to the case. Always be mindful of your audience and the content of your posts. If you have further questions regarding the use of social media evidence in legal matters, please contact us at Kerrick Bachert, PSC at 270-781-8160. We would love to help.