Louisville, KY

The Statement of Interest filed by the U.S. government in a Tennessee nursing home case analyzes federal jurisdiction in arguing immunity under the PREP Act for tort claims arising from the administration of public health countermeasures related to COVID-19. This Statement provides a strong legal foundation for filing removals in existing actions to federal court from state court to determine immunity under the Act.

An invaluable resource regarding so-called “apology laws,” the 2019 Medical Provider Expressions of Sympathy Comparative Law Review presents an overview of statutes addressing the admissibility of medical providers’ statements or expressions of sympathy, as well as supplemental information for consideration in states and territories without laws or statutes regarding such expressions.

The Kentucky Supreme Court has held that an arbitration provision was unenforceable because the agreement in which it was contained did not properly incorporate the provision. The case in question reinforces the importance of giving alternative dispute resolution provisions the attention they deserve by drafting them clearly and conspicuously.

A recent decision by the U.S. District Court, Eastern District of Kentucky cautions excess insurers desiring to “follow” a primary policy would be well-advised to use language that ensures neither policy conflicts. In addition, claims-made and reporting requirements in directors and officers or professional liability policies are conditions precedent to coverage that cannot be trumped by the notice-prejudice rule applicable to occurrence-based policies.

The Kentucky Court of Appeals has held that the statute of limitations on underinsured motorist claims begins to run upon denial of a claim by the UIM carrier and communication of that denial to the insured. The UIM insurer has until mid-September to petition the Supreme Court of Kentucky for discretionary review, and given that the panel was divided, such a petition is likely.

Two seminal opinions by the Kentucky Supreme Court mean far more premises liability claims previously barred under the open-and-obvious-danger doctrine will survive summary judgment motions and reach a jury. 

Kentucky’s high court has found that a clause barring policy assignment absent insurer’s prior written consent inapplicable where the relevant loss occurs before any transfer of policy rights.