W. Douglas Kemper

Douglas Kemper (Of Counsel, Louisville, KY) successfully defended Wilson Elser’s parking and transportation management company client before the Kentucky Court of Appeals, which affirmed the Jefferson County Circuit Court’s dismissal of loss of parental consortium claims arising from the death of a pedestrian who was struck by a bus during the 2024 PGA Championship at Valhalla Golf Club in Louisville, Kentucky.

The appeal centered on whether Kentucky law should recognize loss of parental consortium claims brought by the decedent's adult children. Despite plaintiffs' counsels’ efforts to expand existing Kentucky law, the appellate court adopted Wilson Elser’s primary argument, holding that any expansion of loss of consortium claims to adult children is a policy decision reserved exclusively for the Kentucky General Assembly under Section 241 of the Kentucky Constitution.

In reaching its decision, the court distinguished between the development of spousal and parental loss of consortium claims under Kentucky jurisprudence. The court noted that spousal loss of consortium claims were created under common law as separate, stand-alone causes of action, whereas parental loss of consortium claims were created by statute as a specific element of a wrongful death claim. Because the governing statute limits those claims to minor children, the court concluded that any expansion to include adult children is a matter for the legislature, not the courts. As such, the appellate court affirmed the trial court’s dismissal of the adult children’s claim for loss of their father’s consortium.

The decision affirms an important limitation on the scope of loss of consortium claims in Kentucky. It reinforces the constitutional boundaries between the judiciary's role in interpreting the law and the legislature's authority to expand statutory causes of action.

Doug Kemper (Of Counsel-Louisville, KY) succeeded in a motion to dismiss the firm’s insurer client. Plaintiff homeowners claimed the client’s Insured, a home inspection company, conducted a negligent pre-purchase inspection of the home and failed to discover and report numerous problems that if properly disclosed would have negated the purchase. Plaintiffs asserted claims of negligence, breach of contract, violation of the Kentucky Consumer Protection Act, negligence per se, and fraud, and sought punitive damages for alleged misrepresentations about the insured company’s work and certification that the inspection would be conducted by a licensed professional. Our client carrier denied coverage for the claims, which were specifically excluded in an endorsement. The plaintiffs then amended their complaint to join our carrier client in a Declaratory Judgment action obligating the carrier to provide coverage for the plaintiffs’ claim. Doug filed a Rule 12 motion to dismiss for failure to state a claim, arguing that (1) because Kentucky is a “no direct action” state, the plaintiffs could not assert a claim directly against the carrier, and (2) the plaintiffs lacked standing to bring a Declaratory Judgment action to litigate a coverage issue between an insurer and its insured. Upon review of our Motion to Dismiss, counsel conceded that the motion was well taken and offered to enter an Agreed Order to dismiss the carrier with prejudice.

Doug Kemper (Of Counsel-Louisville, KY) represented a drug rehabilitation center and its insurer in litigation involving a three-vehicle accident that resulted in catastrophic injuries to the 11 passengers in our client’s van, many of whom were ejected from the vehicle during the accident. Although it was clear that the accident was caused by one of the other drivers, all 11 plaintiffs joined liability claims against the rehab center and its driver. After settling the liability claims against the at-fault driver and the Underinsured Motorist carrier, the plaintiffs took aim at our client seeking to open the door to a $2 million liability insurance policy. The plaintiffs claimed there were not enough working seatbelts and that our driver had a duty to make sure everyone was belted before driving the van. After extensive discovery and motion practice, 9 of the 11 plaintiffs voluntarily dismissed their claims against our client and Doug prevailed on summary judgment to dismiss the claims of the 2 remaining plaintiffs, resulting in complete vindication of our client’s position.

Louisville, Kentucky, Of Counsel Doug Kemper and Associate Cyrus Dutton obtained affirmance of a case in which the plaintiff and our client were involved in a motor vehicle accident. After the accident, our client exited his vehicle and pulled the plaintiff out of his driver-side door. Upon making contact with the ground, the plaintiff broke bones in his foot and ankle. The plaintiff filed suit almost two years after the accident, claiming that the statute of limitations of the Motor Vehicle Reparations Act (MVRA) should apply. The Meade County Circuit Court dismissed the plaintiff’s Complaint on Summary Judgment. The plaintiff appealed the trial court’s order, and on appeal, the Kentucky Court of Appeals found that the appellant’s injuries did not arise out of the use of a motor vehicle, but were caused by the third-party intentional tort of assault. As such, the Court of Appeals found that the two-year statute of limitations under the MVRA did not apply; rather, the appellant’s complaint was barred by the one-year statute of limitations for personal injury claims. 

Doug Kemper (Of Counsel-Louisville, KY) and Cyrus Dutton (Associate-Louisville, KY) were granted their motion to dismiss by Jefferson Circuit Court, Jefferson County, Kentucky, with added language to make its ruling immediately final and appealable. The plaintiff, an Ohio resident, was involved in a multi-party motor vehicle accident in Kentucky with another Ohio resident insured by our client, an insurer incorporated in Ohio with its principal place of business in Ohio. Liability for the accident was disputed, and the plaintiff sued the insured and joined third-party bad faith and punitive damages claims against the insurer alleging statutory and common law bad faith claims for failing to pay the claim. Doug and Cy moved to dismiss the bad faith claims on the grounds that Ohio law applies under a Conflict of Law analysis, and that Ohio does not recognize third-party bad faith claims against insurers. The motion was granted.