The KENTUCKY JUSTICE ASSOCIATION. March/April 2015 Volume 43, Number 2

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1 The KENTUCKY JUSTICE ASSOCIATION March/April 2015 Volume 43, Number 2

2 Horses aren t the only thing in Kentucky that move fast. Resolving a legal crisis quickly can mean the difference between winning and losing a malpractice claim. That s why more Kentucky legal professionals choose Lawyers Mutual. With 28 years of Kentucky experience, we specialize in providing smaller firms with the kind of fast personal service that prevents a bump in the road from taking you out of the race. Don t gamble on other companies. Go with a proven winner right here in Kentucky. contact Lawyers Mutual for your free quote today at or By Kentucky Lawyers. For Kentucky Lawyers. Waterfront Plaza 323 West Main Street, Suite 600 Louisville, KY LMicK.com lmick_horse_kja_7.5x9.5.indd 1 2 The Advocate 2/11/15 6:55 PM

3 Volume 43, Number 2 March/April Timberwood Circle, Suite 8 Louisville, Ky (502) Fax: (502) Publisher Kentucky Justice Association Editor-in-Chief Maya Warrier Contributing Editors Paul Kelly Jeff Adamson Managing Editor Pat Edelen The members of the Kentucky Justice Association work to ensure that any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests. KJA Staff Maresa Fawns, Executive Director Association.org Cheryl Bennett, Financial Manager Association.org Monica Daley, Information Systems Manager Association.org Pat Edelen, Publications Director Association.org Kathleen Johnson, Director of Public Affairs Association.org Amy Preher, Director of Education Association.org Heather Mitchell, Office Manager Association.org Contents Truth and Facts about the Civil Justice System... 4 By Ron Johnson Lady Lawyers Make Excellent Jugglers... 6 By Sheila Hiestand Insurance Adjuster Liability... 8 By Christopher Goode and Kenneth Human KJA 2015 CLE Seminar Schedule The So-called Independent Medical Examination in Motor Vehicle Cases Turning the Table on the Defense Examiner By Hal Friedman Settlement Releases You d Better Know What Your Client is Signing By Jay R. Vaughn News & Notes The Release Document Some Suggested Forms By Ann B. Oldfather KJA Welcomes New Members Litigating Individual Disability Insurance Claims Jurisdiction Concerns Michael D. Grabhorn, CLU, ChFC, JD What You Need To Know About ERISA Liens By J. Scott Byerley Focus Groups: A Powerful Tool for the Litigator By Patrick Bouldin, Alex Dathorne and Brian Butler Fighting Allegations of Misconduct in Unemployment Benefits Appeals by Joe Dunman League of Justice The Advocate (USPS ) is published bi-monthly by the Kentucky Justice Association, Timberwood Circle, Suite 8, Louisville, Ky The subscription rate of $125 is included in KJA membership dues. Periodical postage is paid at Louisville, KY. POSTMASTER: send address changes to The Advocate, Timberwood Circle, Suite 8, Louisville, Ky March/April

4 From the President By Ron Johnson Truth and Facts about the Civil Justice System Last month, the ever vigilant Bob Sanders drew my attention to a ludicrous editorial in the Cincinnati Enquirer penned by a pro-corporation lawyer from a large defense firm. Michael G. Adams, went to great lengths to perpetuate myths and lies about the civil justice system driving businesses out of Kentucky, yet Adams failed to back any of his allegations with a single shred of evidence. So at Bob s suggestion, I decided to give Michael a little taste of the truth and the facts. Below is the op-ed that was published. My thanks to the entire Sanders firm, Vanessa Cantley and Ray Jones, all of whom provided crucial data or sage advice on the response (and to Maresa Fawns who wisely edited out the sections where I shared some of my more personal feelings on this issue). Adams claims that the civil justice system negatively impacts job creation because litigation costs Americans about $250 billion annually. What Adams fails to acknowledge is that it isn t the litigation that costs Americans billions of dollars each year, but the negligent and fraudulent conduct that caused the litigation to occur in the first place. When BP floods the Gulf of Mexico with oil or GM conceals a defect in its ignition switch that causes fatal collisions, the costs to society are enormous. Preventable medical errors are estimated to cause at least 400,000 deaths each year in the United States according to a study published in the Journal of Patient Safety. Closing the courthouse doors, as Adams suggests, does not make those losses go away. It just makes the victims pay for the losses. Adams central point is that reform is needed because there has been an explosion of lawsuits that thwart business interests in the commonwealth, but the fact is, there are fewer lawsuits now than at any time in recent history. This is documented by the courts own data along with study after study. For example, according to the National Center for State Courts (NCSC), tort cases accounted for just 4.4 percent of all civil cases filed in 2008, and declined by 25 percent between 1999 and The Bureau of Justice Statistics (BJS) repeatedly found that the number of tort cases filed is dropping in state courts. Yet, while the number of personal injury lawsuits are falling (thanks in part to safer products as a result of lawsuits), the number of lawsuits between big corporations are growing. While personal injury lawsuits declined, the number of business contract lawsuits rose by 63 percent. If it is the litigation climate he is concerned about, maybe it is all these big corporations suing each other that is the culprit. Adams claims that businesses are fleeing Kentucky for greener pastures, but the Kentucky Economic Development Cabinet recently reported that Kentucky s efforts to create a pro-business climate have resulted in the creation of more than 14,000 jobs in 2013, and over $3.3 billion in new investment the fourth straight year for growth. Additionally, Lexington and Louisville rank #31 and #41 respectively on Forbe s list for Top 100 Best Places for Business and Careers. Adams concludes by claiming that the majority of businesses and citizens in Kentucky favor the so-called reforms of the legal system that he advocates. Yet, in states where laws were passed to block access to the courthouse and shield wealthy individuals and corporations from liability, there has been no magical solution to this non-existent problem. We have been told for years that medical negligence lawsuits are driving doctors out of Kentucky, but according to the American Medical Association, the number of physicians increased for many years across specialties. In 2009, the number of physicians rose to another record high, and continued a trend of an increase in the total number of physicians outpacing population growth in the U.S. once again. The number of physicians per 100,000 population is 4 The Advocate

5 Board of Governors at an all-time high of 317. Moreover, the number of physicians per 100,000 population is 21 percent higher in states without medical caps on damages than in states with caps (349 vs. 288). Here in Kentucky, we have more doctors per capita than California, Indiana and Texas, all of which have had medical tort reform measures, such as medical review panels, in place for a decade or more. Contrary to the claims of Adams, there is no crisis of litigation. In Kentucky, we are fortunate to have good laws enacted by thoughtful and well-meaning legislators and adjudicated by impartial and objective judges. The laws in Kentucky are designed to treat all citizens fairly regardless of their wealth, status or social standing. The courthouse doors remain open to all who seek justice, and the good lawyers of Kentucky will continue to zealously represent their clients. I am proud to be a member of the legal profession in Kentucky. Protect the Seventh Amendment: In suits at common law, where the controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. Executive Committee President: Ronald E. Johnson, Jr., Fort Wright President Elect: Paul Casi, Louisville Vice President: Liz Shepherd, Louisville Secretary: Phil Grossman, Louisville Treasurer: Vanessa Cantley, Louisville Immediate Past President: Joe Satterley, Louisville District Vice Presidents First District: Jeffery Roberts, Murray Second District: Chris Rhoads, Owensboro Third District: Rhonda Hatfield-Jeffers, Somerset Fourth District: Kevin Burke, Louisville; Jennifer Moore, Louisville; Tad Thomas, Louisville Fifth District: Michael Eubanks, Richmond; Christopher Goode, Lexington Sixth District: Penny Hendy, Ft. Wright; Jay Vaughn, Florence Seventh District: Will Wilhoit, Grayson David Abney, Frankfort * Chuck Adams, Lexington Jeff Adamson, Louisville John Bahe, Louisville Greg Belzley, Prospect * Deedra Benthall, Danville * Richard Breen, Louisville David Bryant, Louisville Gregory Bubalo, Louisville * Andy Busald, Florence * A.V. Conway, Hartford Grover Cox, Louisville Martha Curley, Louisville Andy Downey, Louisville * Steve Downey, Bowling Green * Larry Franklin, Louisville * Bill Garmer, Lexington * J.T. Gilbert, Richmond * Michael Hance, Louisville * Richard Hay, Somerset * Sheila Hiestand, Louisville Travis Holtrey, Owensboro Stacy Ivey, Lexington Ray Jones, Pikeville * Bill Kathman, Florence Paul Kelley, Louisville Tim Lange, Louisville Ashley Larmour, Louisville Jennifer Lawrence, Covington Justin Lawrence, Florence * Richard Lawrence, Covington * Alan Leibson, Louisville Governors-at-Large AAJ Governors Vanessa Cantley, Louisville *Michael R. Hance, Louisville Will Nefzger, Louisville Tad Thomas, Louisville Tyler Thompson, Louisville Jay Vaughn, Florence AAJ Past President *Peter Perlman, Lexington AAJ Delegates Penny Hendy, Fort Wright Matt Nakajima, Covington Erwin Sherman, Louisville * Jim Lenihan, Louisville Sarah Lynch, Ft. Wright Lauren Marley, Bowling Green Rob Mattingly, Louisville Matt McGill, Bowling Green * Charlie Moore, Owensboro * Doug Morris, Louisville * Doug Myers, Hopkinsville * Gregg Neal, Shelbyville Will Nefzger, Louisville Steve O Brien, Lexington Ann Oldfather, Louisville * Peter Perlman, Lexington Hans Poppe, Louisville Jay Prather, Lexington Aaron Price, Louisville * Dick Rawdon, Georgetown Kevin Renfro, Louisville * Jerry Rhoads, Madisonville Ken Sales, Louisville * Bob Sanders, Covington Delana Sanders, Covington Justin Sanders, Covington * Gary Schaaf, Paducah Mike Schafer Louisville Jared Smith, Louisville * Ty Smith, Louisville Tyler Thmmpson, Louisville Kevin Weis, Louisville Nathan Williams, Louisville * Indicates Past President March/April

6 By Sheila Hiestand Lady Lawyers Make Excellent Jugglers With the leadership of Jennifer Moore and Vanessa Cantley, the KJA Women Lawyers Trial Caucus was born. The AAJ Women Lawyer s Caucus is tremendously successful in creating terrific bonds between attorneys nationwide and in creating new networking opportunities. Our own KJA Women Lawyers recently got together and found we all had one thing in common: we are excellent jugglers. And I don t mean the circus or side show type. I mean the win America s Got Talent type. Let me explain: As trial attorneys, members of KJA fight for the rights of their clients and do their best to be successful in litigating cases to a fruitful conclusion. This includes not only discovery, depositions, medical proof, trial preparation, trial, itself, and appellate practice, but also marketing, fielding thousands of calls, negotiating liens, keeping the lights on and general business practices. For anyone, this is more than enough. Luckily, most of us have great support systems and manage to successfully navigate the rough waters and land safely on terra firma. So how are women trial lawyers different from their male counterparts? They face the same stressors in their practice, but many have the added pressure and joy of being moms. This is not to say dads are not doing their part. It s just different. I can t tell you how many times I have screamed, I wish I had a wife!! By that, I meant, I wish someone would make dinner, do the dishes, take the girls to dance and basketball and my son to football, wash the laundry, make the beds, nurture the children. You get the picture. Perhaps it s an antiquated picture, but one that has stuck in my mind. Many of us feel a guilt like no other. When I m working, I feel guilty that I am not giving enough attention to my children. When I am at home, I worry that there is a deadline I have missed or a client I have not called. A vicious cycle of guilt that beats you physically and mentally like a jockey beats a racehorse. I have sat in self-pity, believing I was the only person that suffered this horrible malady until I stood in a living room in December with a roomful of women trial lawyers. I was not alone. In fact, I m one of the lucky ones. I m not a single parent. My children are healthy. I only have to bring home the bacon and fry it up in a pan. Some other folks then have to run to doctor s appointments or worry whether they can pay the bills. Despite all the guilt and stress, I watched in awe as each of these lady lawyers stood with grace, elegance and love of their profession and family. They were all juggling, but not like the uncoordinated kids at soccer camp: like beautiful, fluid professionals. They acknowledged the level of difficulty, yet they took it all in stride. This is not to say there are not occasional tears, or near breakdowns. It was merely a testament to the fact we are all in this together, and it will all be well. I write this not to praise women lawyers as some miraculous group of water walkers, rather as an acknowledgment to our younger female lawyers that we all sometimes feel like we are treading water, that we have been there, are currently there and will be there for a long time. Most importantly, I write this as an encouragement that we rely on each other for support. Pick up the phone and call one another when things become overwhelming. Invite a fellow attorney to lunch or even coffee and let her talk while you listen. While we all love to watch a good juggler, we need to be there for each other when one of the balls drops. Thank you to all the great trial lawyers out there, both men and women. I hope we can all take at least one step back and appreciate the many things we all do so well, and forgive ourselves for the things we do not. Good luck and Godspeed. Sheila Hiestand is a patner in McCoy and Hiestand. She is dedicated to helping women and their families through the very difficult process of personal injury claims. 6 The Advocate

7 March/April

8 By Christopher Goode and Kenneth Human Insurance Adjuster Liability For more than a decade now, Kentucky s Eastern and Western United States District Courts have viewed the potential tort liabilities of insurance adjusters domiciled within the state very differently. It is important for attorneys to understand these conflicting approaches, why they exist, and how they can be made to co-exist, in the event that you and/or your clients succumb to improper conduct by an insurance company. Successfully naming a resident adjuster may prevent your claims from being aired in a more defense-friendly federal forum. Recent opinions from both the Western and Eastern Districts of Kentucky provide further guidance on this evolving issue, further indicating that we may be entering a new frontier of insurance company/adjuster liability in the commonwealth. Being the master of his complaint, plaintiffs often make claims against adjusters as a corollary to their bad faith claims against insurance companies. 1 A problem arises, however, when such a claim is removed to the Western District. While the Eastern District routinely remands these cases due to the Kentucky residency of the adjuster, 2 the Western District takes a far different approach. As far as the Western District is concerned, an insurance adjuster cannot be liable for common law or statutory bad faith under Kentucky law. Therefore, the Kentucky citizenship of the adjuster will be ignored for purposes of removal under a fraudulent joinder theory. 3 The court s consistent application of this doctrine is made all the more remarkable by the fact that a litigant s motive for joining the non-diverse party is considered immaterial to the fraudulent joinder inquiry. 4 The split between the courts is due to differing interpretations of the Supreme Court of Kentucky s decision in Davidson v. Am. Freightways, Inc. 5 The question that arises out of the decision is whether insurance adjusters are persons or entities engaged in the business of insurance that are subject to claims of bad faith. 6 On one hand, dicta in Davidson noted that Kentucky s insurance statutes were not designed to regulate persons who are neither insured nor engaged in the business of entering into contracts of insurance. 7 On the other hand, Davidson also holds that the Unfair Claims Settlement Practices Act applies to only those persons or entities (and their agents) who are engaged in the business of entering into contracts of insurance. 8 Remand opinions issued by the Eastern District routinely cite this ambiguity in holding that Kentucky law remains ambiguous as to whether bad faith claims may lie against adjusters. The Western District has evidently decided that there is no ambiguity at all. 9 Until the Sixth Circuit and/or Kentucky s appellate courts provide further clarity regarding the bad faith liability of adjusters under Davidson, it appears such claims will not be allowed to proceed in the Western District. But this presupposes that bad faith is the only cause of action capable of holding insurance companies and their adjusters accountable for their improper settlement practices. Several recent opinions indicate that both the Western and Eastern District Courts may have reached a consensus as to what other claims of adjuster liability are permitted under Kentucky law. And all they needed was a bad set of facts to rally against. Enter Shelter Mutual Insurance Company. In the pending matter of Adkins v. Shelter Mutual Insurance Company, 10 discovery revealed the company s decade-long practice of settling personal injury claims of minors without court approval. 11 In exchange for a typically nominal sum, the company would require a minor s family member (usually unrepresented) to execute a document that purported to be a final and binding release. 12 Last year, Adkins was granted leave to amend her complaint to account for these newly discovered facts, contending that the handling of her claim was the result of a coordinated and fraudulent scheme meant to deprive Shelter policy holders and third party beneficiaries the full exercise of rights and benefits afforded them under the laws of the commonwealth. 13 Among her newly approved claims, in addition to bad faith, were claims of fraud in the inducement, fraud by omission and negligence/gross negligence. The Adkins court s sanctioning of negligence and fraud 8 The Advocate

9 claims against an insurance company may eventually change the way Kentucky attorneys hold foreign insurers, along with their agents, answerable to the local jurisdictions in which they sell their policies. Before Adkins, defendants cited decisions like Georgia Cas. Co. v. Mann, 14 United Servs. Auto. Ass n v. Bult, 15 Motorists Mut. Ins. Co. v. Glass, 16 and Harvin v. U. S. Fid. & Guar. Co. 17 for the proposition that the Unfair Claims Settlement Practices Act preempted all other causes of action premised upon settlement conduct. Now, Kentucky s federal courts are following the lead of Adkins and revisiting these above mentioned decisions to establish some semblance of clarity in Kentucky law regarding insurance company liability. The first post-adkins case is R.H. v. Buffin, 18 in which a bad faith claim against an insurer (Shelter) was brought in tandem with counts of negligence and fraud against a resident adjuster. Judge Thapar of the Eastern District pointed out that Mann and its progeny are limited to the context of bad faith claims and that Kentucky law does not preclude suing an adjuster and/or insurance company for other torts not tied to the bad faith standard. 19 Judge Heyburn of the Western District followed suit in Joy et al. v. King, 20 a case involving nearly identical facts and a Shelter insurance adjuster. King cited Buffin and Adkins for the proposition that Kentucky law is ambiguous as to whether a plaintiff may sue an insurance adjuster for torts other than bad faith. 21 Both Buffin and King cited the underlying rationale set forth by Adkins, that: Kentucky s standard is high Bad faith is not simply bad judgment, it is not merely negligence. These statements are all true regarding a claim of bad faith, but Shelter has cited no authority for its argument that the UCSPA, KRS , preempts all negligence claims. Unlike the UCC, the UCSPA is a single statute, rather than a comprehensive code of law. 22 As attorneys, our jobs often bog us down into the mire of bitter disputes between parties. In order to fairly and equitably resolve such disputes, our courts cannot be in the midst of a dispute themselves. In this way the please contact Cam Mears at or Adkins decision, and the bridge which has been extended between the Eastern and Western Districts, are positive developments towards establishing justice in the commonwealth. Only time will tell where else this bridge may lead. At the time of this article s submission, there are four other cases involving Shelter adjusters (in addition to Buffin and King) with pending motions to remand before Kentucky s Eastern and Western Districts. Once the dust settles, there may come a time when plaintiffs attorneys begin to regularly assert March/April

10 common law actions against insurance companies and/or their adjusters in the absence of, or in addition to, bad faith. Given the current climate, there are seemingly no legal impediments to doing so should the appropriate set of facts arise. Christopher W. Goode is a trial attorney with Bubalo Goode Sales & Bliss PLC. While his practice is diverse, he is committed to only representing injured individuals from automobile wrecks to mass tort litigation to bad faith claims. He is a past president of the Fayette County Bar Association and is a frequent speaker on legal topics. Chris currently serves as a District Vice President for KJA. Kenneth C. Human is an associate attorney with Bubalo Goode Sales & Bliss PLC. Human came to Bubalo Goode Sales & Bliss PLC after working for an insurance defense firm in Lexington, where he concentrated on criminal defense and defending personal injury cases. Kenny regularly uses his knowledge of defense practices for the benefit of those injured clients he now represents. 1 See 14B Charles Alan Wright et al., FEDERAL PRACTICE AND PRO- CEDURE 3702, at 46 (3d ed. 1998). 2 Collins v. Montpelier US Ins. Co., 2011 U.S. Dist. LEXIS (E.D. Ky. 2011); Gibson v. Am. Mining Ins. Co., 2008 U.S. Dist. LEXIS (E.D. Ky. 2008) Mattingly v. Chartis Claims, Inc., 2011 U.S. Dist. LEXIS (E.D. Ky. 2011); Montgomery v. L&M Trucking & Equip. Co., 2010 U.S. Dist. LEXIS (E.D. Ky. 2010); N. Am. Specialty Ins. Co. v. Pucek, 2009 U.S. Dist. LEXIS (E.D. Ky. 2009). 3 Brown v. A.I.N., Inc., 2008 U.S. Dist. LEXIS (W.D. Ky. 2008); Fulkerson v. State Farm Mut. Auto. Ins. Co., 2010 U.S. Dist. LEXIS (W.D. Ky. 2010); Malone v. Cook, 2005 U.S. Dist. LEXIS (W.D. Ky. 2005); Wolfe v. State Farm Fire & Cas. Co., 2010 U.S. Dist. LEXIS , *5 (W.D. Ky. 2010); Lisk v. Larocque, 2008 U.S. Dist. LEXIS 40303, *4 (W.D. Ky. 2008). 4 Roof v. Bel Brands USA, Inc., 2014 U.S. Dist. LEXIS (W.D. Ky. 2014) (quoting Jerome-Duncan, Inc. v. Auto-By- Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999) S.W.3d 94 (Ky. 2000). 6 Id. at Id. at Id. at Delamar v. Mogan, 966 F. Supp. 2d 755, (W.D. Ky. 2013). 10 CIVIL ACTION NO. 5: KKC. 11 Adkins v. Shelter Mut. Ins. Co., 2013 U.S. Dist. LEXIS 50207, 4-5 (E.D. Ky. 2013). 12 Adkins v. Shelter Mut. Ins. Co., 2014 U.S. Dist. LEXIS , 2-3 (E.D. Ky. 2014). 13 Id. at S.W.2d 777, 780 (1932) S.W.3d 181, 186 (Ky. Ct. App. 2003) S.W.2d 437, 451 (Ky. 1997) S.W.2d 213, 215 (Ky. 1968) U.S. Dist. LEXIS (E.D. Ky. 2014). 19 R.H. v. Buffin, 2014 U.S. Dist. LEXIS , 12 (E.D. Ky. 2014). 20 CIVIL ACTION NO. 3:14-cv JGH. 21 Id. ( This Court agrees that, construing any ambiguities in Kentucky law in favor of remand, Plaintiffs have at least a colorable claim that both King and Shelter defrauded them by settling the claims without court approval. At best, Kentucky law is ambiguous as to whether a plaintiff may sue an insurance company and its adjustor for torts other than bad faith. And Plaintiffs have a colorable fraud claim that King settled the disputes with Plaintiffs without court approval, possibly in violation of KRS ) 22 Adkins v. Shelter Mut. Ins. Co., 2014 U.S. Dist. LEXIS , 17 (E.D. Ky. 2014). 10 The Advocate

11 Keys to Building a Successful Nursing Home Case April 2 Lexington Downtown Hilton Hotel Chair: Tad Thomas David Beats Goliath, Harnessing the Power of 30(b)(6) Depositions May 29 & 30 Louisville Marriott Downtown Chair: Tad Thomas Lawyer Boot Camp April 17 Louisville Brown Hotel Chairs: Grover Cox/Jared Smith Ethics at Keeneland April 23 Lexington Keeneland Race Track Chair: Todd Myers How to Deal with Complications in a Personal Injury Case April 24 Louisville Brown Hotel Chair: Delana Sanders Settlement, Negotiations and Bad Faith May 8 Louisville Brown Hotel Chair: Mike Schafer The ipad in Law Practice May 12 Louisville KJA Office Chairs: Brian Cook/Sarah Lynch How to Develop and Win an Auto Case May 15 Louisville Brown Hotel Chairs: Randy Jewell/Nathan Williams Employment Law (1/2 Day) May 27 Louisville KJA Office Chair: Garry Adams Big Truck Cases Learn from the Truck Stars June 5 Louisville Brown Hotel Chair: Tim Lange Top Ten Things You Need to Know to Practice an Auto Case June 9 Corbin Cumberland Falls State Park Chair: Matt McGill How to Develop and Win an Auto Case June 12 Covington Marriott RiverCenter Hotel Chairs: Randy Jewell/Nathan Williams Top Ten Things You Need to Know to Practice an Auto Case June 16 Paducah Courtyard Paducah West Chair: Matt McGill Top Ten Things You Need to Know to Practice an Auto Case June 23 Bowling Green Holiday Inn Chair: Matt McGIll Understanding Your Case and Your Jury June 26 Lexington Downtown Hilton Hotel Chair: Jay Vaughn Annual Convention September 9-11 French Lick, Ind. French Lick Resort Chair: Ron Johnson To register To register for any for any seminar, go go to and Click and on Upcoming click on Upcoming CLE CLE March/April

12 By Hal Friedman The So-called Independent Medical Examination in Motor Vehicle Cases Turning the Table on the Defense Examiner Your client comes to you after a car accident. He or she is off work, has no money (other than no-fault) to pay medical bills or lost wages, and the insurance adjustor and you don t see eye to eye. You file suit. Now comes the request for the so-called independent medical examination (IME) 1 of your client from defense counsel. Under CR 35 of the Kentucky Rules of Civil Procedure: When the mental or physical condition (including the blood group) of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician, dentist or appropriate health care expert, or to produce for examination the person in his custody or control. A court order is technically required for a Rule 35 examination. However in practice, a judge will not likely deny a request by counsel to allow its selected doctor examine your client in a motor vehicle case. 2 Therefore, most CR 35 examinations are agreed upon. Many plaintiffs lawyers fear the DME of their clients. Some even object to the unilateral selection by defense counsel of a CR 35 doctor or examiner. Don t. Chances are you won t succeed in the objection. 3 Instead, use the DME as an opportunity for you to expose unfair and biased defense tactics for the jury at trial. By thinking outside the box, you may find that the selection of the DME doctor by defense counsel actually helps your case at trial. Under Kentucky law, you are entitled to all information that may be relevant to the DME physician s bias. That includes, for example: The number of DMEs the physician conducts (in a day, week or month); The percentage of work he or she does for defense as opposed to plaintiffs lawyers; How many times the DME has worked for the defense lawyer or his or her firm; The amount he or she charged for the examination and related work, among other similar (including preparation of reports and deposition time); and, The total amount of the DME s income from conducting such examinations and testifying. Primm v. Isaac, 127 S.W.3d 630 (Ky. 2004). This list is not exhaustive. For example, you should seek to obtain prior reports prepared by the DME or depositions in which he/she has testified differently in other cases with facts similar to yours. Further, a DME doctor is to be treated as a paid defense expert witness for all purposes. All of his/her opinions must be disclosed to plaintiff s counsel before trial. CR And, of course, the DME is not a treating physician. As such, as a matter of law they cannot diagnose any medical condition, prescribe medication, or treat your client. This admission is usually prominently disclosed on the first page of the DME s report. Some defense attorneys reflexively (perhaps due to habit or because they may actually be seeking a biased examination) cycle through the same list of doctors or other medical experts when scheduling DMEs. Therefore, in many instances you will find that the doctor selected by the defense works with the same defense counsel on a routine basis; or that the doctor s practice consists entirely of handling DMEs and he/ she rarely treats patients; and/or that the doctor focuses his practice on defense examinations and rarely provides reports or testimony for plaintiff s lawyers. Jurors are smart. It is the author s experience from polling jurors and from consulting with other plaintiff s counsel that during deliberations, a jury will invariably focus on the fact that the DME is not a treating physician, and that the defense retained the DME. Typically, the amount of time the DME spent with the plaintiff (usually an hour or less) is something on which the jury will focus. Finally, jurors invariably want to know if the DME contacted or consulted with the plaintiff s treating doctors. The idea here is that any doctor who genuinely wants to provide an unbiased opinion would contact the treating physician and discuss the patient s 12 The Advocate

13 care with him or her. As you probably know, this almost never happens. Many plaintiff s lawyers obsess or focus so much on the DME and the conclusions reached by the paid-forhire doctor that they can go overboard in cross examination. The worst thing you can do is get hyper-technical and bore the jury with a lot of medical terminology that, frankly, holds no interest for them and which might distract them from the DME s bias. Further, the more time you spend questioning the DME, the more weight or credibility you may give the examiner, at least in the jury s mind. If you can help yourself, try a different approach... short and to the point. In the typical motor vehicle case or premises case, you might limit yourself to a few very direct questions that make your point and demonstrate the bias and untrustworthiness of the defense. For example, you might stand up and start by asking the doctor how many times he saw your client? The answer is invariably one. Then, confirm that the doctor only saw your client for a few moments or less than an hour (the standard in most cases). Have the doctor confirm the amount he or she is being paid for his/her report and his/ her testimony. Confirm the percentage of his or her practice devoted to DMEs and how much of the doctor s work comes from defense lawyers. (It is not uncommon to find certain doctors do virtually no work for plaintiff s lawyers.) Then, confirm that the DME did not prescribe any treatment for your client because the client was never a patient. Finally, confirm that although the DME disagrees with the client s physicians, the DME never contacted those treating doctors to discuss your client s condition or their concerns or diagnosis. If you use this process, it establishes quickly in the juror s mind that the doctor is biased and cannot be taken seriously. Certainly, any doctor who wants to be thorough and fair would, at a minimum, contact the client s treating physicians to discuss the patient s condition. In addition, sometimes the DME states that your client has demonstrated Waddell s signs 4 or did not give sufficient effort during the examination. On the other hand, the DME might say that your client is experiencing some pain, but not as much as your client says. Don t let the doctor get away with this kind of innuendo. In such a case, you might ask something like this: Q: So, doctor, are you saying my client is exaggerating his/her pain or condition for financial gain? Q: Doctor, what you are saying is that my client is a liar, right? Most doctors are loath to call your client a liar out of concern they will alienate the jury. If, as is typical, the doctor states something like I don t know if he is lying. All I know is what my tests and exam showed. You scored points and demonstrated that even the doctor can t state with any degree of authority that your client is being untruthful. The jury is, therefore, entitled to believe your client. The above discussion is, by necessity, intended only to be a short outline of the types of questions you want to work into the cross of the DME. There may be more you want to add depending on what discovery discloses about the doctor s practice, financial incentives and bias. But, you get the point. If you have done your discovery, and then conduct a short, succinct and effective cross, by the time you sit down, the jury should be convinced of two things: (1) the examiner cannot possibly be independent, but rather is biased in favor of the defense; and, (2) the examiner reached his or her opinions based on one short visit with your client and without so much as the courtesy of contacting your client s actual treating doctors. On that basis and that basis alone, the defense is calling your client a liar. Naturally, the suggestions contained in this article are generalized. There may be cases where a full-blown attack on the doctor s background, credentials and the merits of his/her opinions is warranted by the discovery. In complex litigation involving difficult medicine or catastrophic injury, this type of examination may not be sufficient. However, for most soft tissue motor vehicle cases, or those involving lesser injuries, often less is more and I encourage you to consider the suggestions set forth above when preparing your cross examination of the defense DME. In the end, just remember that no DME is going to admit that he or she got it wrong. No matter how fancy your cross and no matter how much detail about the medicine you get into with the defense expert, you are likely not going to get that Perry Mason moment with the doctor breaking down on the stand. Rather, the paid expert will stick to his or her opinion. So, why try to obtain that? Your job is to demonstrate the bias of the DME and show the jury that he or she is little more than a gun for hire. The jury should do the rest and connect the dots for you. Hal Friedman is a partner of the law firm Cooper & Friedman, PLLC where he handles all forms of personal injury claims, from minor soft tissue injury cases, to catastrophic injury claims, workers compensation and civil rights cases. See IME Footnotes on page 21 March/April

14 By Jay R. Vaughn Settlement Releases You d Better Know What Your Client is Signing As personal injury attorneys, we must stay on top of a variety of issues such as fee agreements, client communication, documenting damages, providing updates to insurance adjusters, dealing with lienholders, negotiating the case, etc. Once the case is settled, it s easy to fall asleep at the wheel and coast into the closing statement and disbursement of funds. However, this is no time to go into autopilot mode. This can be one of the most crucial stages of the client s case. Long gone are the days where a settlement release was a few short paragraphs where your client agreed to release the person who caused the wreck in exchange for a sum of money. In today s settlement world, releases seem to be as lengthy and complex as corporate merger documents. How many times have you settled a case, but then received the release that contains terms to which you never agreed nor would you have ever have agreed? How many times have you settled a case and received the release but not the draft and then spent the next several days, weeks or even months arguing over terms in the release? What about situations where the adjuster won t accept your changes to the release despite the law supporting those changes? Have you ever settled a case at mediation and then had the defense attorney insist on new terms never mentioned during mediation? What can you do when these scenarios occur? What should you do? What is best for your client? While there is not one answer to solve all of these scenarios, I will provide some law and ethics opinions to help be your guide. Old Standard The General Release Most releases used to be general releases where Party A agreed to release Party B and no one else unless the release language states that other parties are released. This is consistent with KRS (4), which states: A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable, shall discharge that person from all liability for contribution, but it shall not be considered to discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons shall be reduced by the amount of the released persons equitable share of the obligation, determined in accordance with the provisions of this section. In Richardson v. Eastland, Inc., 660 S.W.2d 7 (Ky. 1983), the plaintiff sued Eastland (owner of shopping center) for injuries received in an automobile collision occurring on its premises while she was a passenger in her daughter s car. Plaintiff settled with her daughter before filing suit and executed a release discharging her daughter from all claims. The release did not specify that plaintiff had been fully compensated nor did it mention other unnamed parties. In addition, it did not expressly reserve the right to make further claims against other unnamed parties. Eastland filed a third party claim against the daughter for indemnity. The court held that unless a release states on its face that other parties (not mentioned in the release) are also released or that the claimant has been fully compensated (i.e., the release constitutes payment in satisfaction of all claims), then a release shall not provide a defense to a third party not expressly covered. Game Changer The Indemnifying Release Everything was fine. Cases were settling. Standard form releases were being signed. Then out of nowhere entered the indemnifying release, i.e., the game changer. It all started with Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987). In that case, plaintiff Hiles was a customer in White Castle when he was assaulted by the defendant Cook. Hiles settled with Cook and entered into a release indemnifying Cook against any future claims. Hiles then sued White Castle for inadequate security and White Castle filed a third party claim against Crime Fighters (a security firm hired to provide security guards at the restaurant) and against Cook 14 The Advocate

15 seeking indemnity. Crime Fighters filed a cross-claim against Cook for indemnity. The parties then learned of the settlement release with indemnity as between plaintiff Hiles and third party defendant, Cook, which had been entered before the lawsuit was filed. The court held that White Castle and Crime Fighters were entitled to complete indemnity from Cook because the parties were not in pari delicto (i.e., they were secondarily liable). Therefore, plaintiff who had signed agreement indemnifying Cook from any liability arising from the assault could not recover from White Castle or Crime Fighters for injuries sustained in the assault. In understanding the implications of an indemnifying release, the Kentucky Supreme Court provided guidance in Frear v. P.T.A. Industries, 103 S.W.3d 99 (Ky. 2003), holding that unless the signing of an indemnifying release was negotiated as part of settlement, then a party cannot be forced to sign a release with indemnity. Plaintiffs sued P.T.A. Industries claiming injury from exposure to pesticide used at their home. The parties orally agreed to a settlement and within a few days, the agreement was memorialized in writing by a letter from plaintiffs counsel. P.T.A. Industries later submitted a settlement release titled, Release and Indemnity Agreement. Plaintiffs refused to sign the release because of the indemnification provision contained therein. The court stated that release and indemnity are related, but, nevertheless distinct, legal concepts. A release is a private agreement amongst parties that gives up or abandons a claim or right to the person against whom the claim exists or the right is to be enforced or exercised. Indemnity is a duty to make good any loss, damage or liability incurred by another. The court advised that an agreement to sign a release contemplates only a release from liability and not indemnification from third party claims. Does an indemnifying release really matter? How can it come back to hurt your clients? In Abney v. Nationwide, 215 S.W.3d 699 (Ky. 2006), the plaintiffs saw first-hand how an indemnifying release they signed prevented them from pursuing further claims, despite not understanding the implications of indemnity. Abney was a passenger in a pickup truck owned by Brake and driven by his son, when the Brake vehicle rear-ended a vehicle driven by Wright. Just before the accident, Wright either slowed down or stopped her vehicle abruptly to retrieve her purse, which March/April

16 her husband had thrown out of the car. KFB insured Wright and Nationwide insured the Brake. Abney settled with KFB/Wright and executed a release. They did not have legal counsel present. Abney then filed suit against the Brakes, who defended on the basis that any potential claims against them had already been released. Since plaintiff signed a release containing language releasing all other persons, firms or corporations liable, or who might be claimed to be liable the plaintiff released all potential tortfeasors, whether part of the settlement or not. On December 19, 2014, the Court of Appeals issued its opinion in Estate of Butt v. Independence Club Venture, Ltd. d/b/a The Electric Cowboy, 2013-CA (to be published), which sent shockwaves through the KJA listserver. However, upon reading the opinion, it became clear that this holding was just reinforcement of Crime Fighters and Abney. In Estate of Butt, there was a tragic collision where three individuals were killed and another injured due to the negligence of their host driver, who was intoxicated. All of the occupants of the vehicle had been at The Electric Cowboy. The plaintiffs settled with their host driver s liability carrier and signed a release which contained specific language stating that: It is not the intent of this Release to preclude a cause of action by [Appellant] against other potentially responsible parties, such as liquor stores, restaurants, bars, and the like which [Appellant] may have visited on the evening in question. However, the release went on to state: Therefore, I hereby covenant and agree to defend, hold harmless, and to indemnify Once the case is settled, it s easy to fall asleep at the wheel and coast into the closing statement and disbursement of funds. However, this is no time to go into autopilot mode. This can be one of the most crucial stages of the client s case. the parties released herein and their representatives from any and all claims, liens, causes of action, demands or suits of any kind which may have been brought because of the accident referred to herein or for any amount that they or their representatives may be hereafter compelled to pay on account of any claims arising out of the accident referred to herein. Although one paragraph specifically excluded a potential dram shop claim from being released, another paragraph included hold harmless and indemnity language, which had the same effect as it did in Crime Fighters. The court spent much of its opinion discussing another dram shop case, DeStock #14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky. 1999), where it was held that the release of the drunk driver did not effect a release of the establishment as its liability was premised not only on the drunk driver s negligence, but also on its own alleged independent act (i.e., dram shop action for independent negligence of its employees). However, the court stated, Except for the amounts paid, the terms of the settlements are not found in this record, so it is unknown whether the settlement documents include the standard hold harmless clause contained in the agreement considered in Crime Fighters Patrol v. Hiles The court went on to state that, upon remand, if the settlement release signed by the plaintiff in favor of Logsdon contained a hold harmless clause similar to that in Crime Fighters, then the establishment was entitled to indemnity. This is exactly what happened in Estate of Butt. The Exception PIP Not Affected by Indemnity When Not Specifically Designated Attorneys have always taken the position that automobile settlements in Kentucky are exclusive of PIP. However, many times this is not stated during negotiations or set forth in the settlement release. For a few decades we ve had two cases explaining the effect of a tort release on PIP Ohio Casualty v. Ruschell, 834 S.W.2d 166 (Ky. 1992) and Holzhauser v. West American, 772 S.W.2d 650 (Ky. App. 1989). In Ruschell, the court held that an injured party s release to the tortfeasor does not affect the right to further PIP benefits and that future PIP benefits are only released if there is specific language contained within the release. In Holzhauser, the court held that the PIP carrier is the real party in interest and is the only party who could give the liability carrier a release for the elements of damages covered by PIP under the Kentucky Motor Vehicle Reparations Act (KMVRA). Basically, the release of the tortfeasor by the plaintiff has no effect on a PIP carrier s right of subrogation against the liability carrier for payments made on behalf of the plaintiff. These cases were decided before the game changer, before indemnifying releases became the new standard. So along comes Coleman v. Bee Line 16 The Advocate

17 r ad H Courier Service, Inc., 284 S.W.3d 123 (Ky. 2009), where the plaintiff signed a release with indemnity and where the release did not mention the settlement was exclusive of PIP. Citing the indemnity provision of the release, the liability carrier demanded that plaintiff defend it in the arbitration proceeding with the PIP carrier and make payment, but plaintiff refused. Through arbitration, the liability carrier settled and paid the PIP lien but then sought indemnity from plaintiff who again refused to pay, so suit was filed. In relying upon Ruschell and Holzhauser, among some other cases, the Supreme Court held that since there was not a specific designation in the release that the PIP claim was being released and indemnified, then the plaintiff was not contractually obligated to indemnify the liability carrier. The issue in Coleman could have been avoided if exclusive of PIP was a term of negotiations and specifically included in the release. Jay Vaughn is the managing partner of Morgan & Morgan, Louisville office. He focuses his practice on personal injury, automobile and large truck collisions, wrongful death and nursing home neglect cases. He is a Board of Governors member of KJA. He may be reached at (859) or News & Notes Dolt, Thompson, Shepherd & Kinney PSC announces the addition of ANTHONY P. ELLIS to the firm. Anthony brings a wide range of knowledge and experience litigating complex civil litigation, including pharmaceutical product liability, complex commercial and contract disputes, qui tam and government fraud claims, medical negligence disputes and lender liability claims. His practice at the firm predominately focuses on medical negligence, personal injury, product liability, class actions, qui tam and fraud claims and complex commercial disputes. JAMES C. HALL, formerly of Gary C. Johnson, PSC, announces the opening of James Clayton Hall, PLC. Hall is a 2010 graduate of Thomas M. Cooley Law School and has practiced exclusively in the area of personal injury law since that time. With the formation of James Clayton Hall, PLC, he continues to focus on personal injury litigation, including auto collisions, medical negligence, dog bites, premises liability, and any other injury to individuals by no fault of their own. He also handles divorce, custody and adoption cases. The office is located at 153 Patchen Drive, Suite 67, Lexington, Kentucky (606) ; fax (859) ; com; SARA J. MARTIN joined the Owensboro office of Rhoads and Rhoads. A native of Dawson Springs, Ky., Sara graduated with cum laude honors, from Northern Kentucky University s Salmon P. Chase College of Law in May While at Chase College of Law, Sara was awarded the 2013 Dunn- Gilday Outstanding Advocate Award and the 2014 Frank Allen Fletcher Outstanding Advocate Award, and also worked for the Department of Public Advocacy in Northern Kentucky. She is a member of the Kentucky Bar Association, Kentucky Justice Association and focuses her practice in the areas of trial practice, personal injury litigation, and social security disability law. Leading Technologies, LLC Over 200 Qualified Local Experts in more than 100 Disciplines Accounting & Economics Architecture & Construction Computers & Documents Fires & Explosions Human Factors & Warnings Industrial & Manufacturing Medical, Dental & Nursing Premises & Product Liability Securities & Brokerage Sports & Recreation Vehicles & Crash Reconstruction Vocational & Life Care Planning CONSULTANTS & FORENSIC EXPERTS Robert A. Yano, PE March/April

18 By Ann B. Oldfather The Release Document Some Suggested Forms My first guiding principle for any release is that it should NOT contain the word indemnity. I have a second guiding principle it SHOULD contain the word mutual. After that, the drafting of the rest of the terms of a release is all relatively straight-forward, but it is amazing how something that should be so straight-forward can be the source of so many heated debates between counsel. Given the frayed nerves and bruised egos leftover from settlement discussions, we would all be best advised to negotiate the release before we agree on a settlement amount. Hmmm maybe that should become my new third guiding principle. This article gives you some sample paragraphs to consider/use/dissect/improve. 1 I encourage you to send a proposed release to the defense as soon as settlement negotiations begin, and then stick to your guns. Every defense attorney I know will try to get as much bang for his settlement buck as humanly possible, resulting in what I call settlement creep, as the same settlement sum covers more and more concessions from your client. The Parties The first step is to define the parties. That may not seem like much, but it is key. You define who is being released and/or who is doing the releasing. Consider the following standard format not that I really think it is standard but defense attorneys will tell you it is: 1. In consideration for the payment of [INSERT] DOL- LARS ([repeat amount numeric]), the receipt of which is hereby acknowledged 2, [insertplaintiffs names], (sometimes collectively referred to as XX 3 ), do hereby fully and forever discharge and release [insert defendants names], (sometimes collectively referred to as YY 4 ) its insurers, its past and present agents and employees, affiliated corporations and successors in interest from The two highlighted groups (insurers and affiliated corporations) are not parties nor are they in the vertical line of any of the defendant entities. It is not written anywhere that they get a release, and as a matter of fact the same insurer could insure another non-released defendant, just as an affiliated corporation may be a separate defendant. So, watch that string of nouns the defense tries to include within the defined term of defendants released. What is Released The defined terms of the releasing and released parties are followed by the actual releasing language. There is no reason to hold-back; it is indeed your intent to release every claim your client has against the settling defendant. So define it fully, but fairly. from any and all claims, demands, and causes of action XX may have as a result of any injuries sustained by XX [or insert name of child, or deceased ( ZZ )] arising out of the medical services provided or alleged not to have been provided to XX or ZZ by YY prior to the date of this Release. This Release includes, but is not necessarily limited to, all physical injuries and damages, including the claim of wrongful death, alleged or which could have been alleged in the lawsuit styled [INSERT NAME OF ACTION], pending in the Jefferson Circuit Court, Division [INSERT], Civil Action No.[INSERT] (hereinafter Action ), and encompasses all types of injuries, whether mental or physical, direct or indirect, tangible or intangible, known or unknown, developed or undeveloped, past, present or future, including attorneys fees and costs recoverable under statute or rule and all other damages of any sort. The material highlighted in red is the operative language of the claim released, and the remaining verbiage defines the injuries and damages flowing from that claim as are within the scope of that release. 18 The Advocate

19 Steps Before Case Dismissed It is our practice to dismiss any punitive claim as soon as there is a firm verbal agreement. We provide in the release that none of the settlement sum is for the punitive claim, since we want to distance the settlement monies from that claim as much as possible. So, the first paragraph of our typical Mutual Release ends with this sentence: Plaintiffs shall dismiss the claim for punitive damages before payment of any settlement sum. The Reservation The next paragraph should expressly reserve all other claims. Some would say that this is surplusage, but Jay Vaughn s excellent article clearly illustrates why they are wrong. Here is a typical second paragraph of a Mutual Release: 2. XX expressly reserve and do not release any and all other claims, demands, obligations and causes of action, against any person or entity not identified as YY, and this reservation includes but is not limited to those claims which could be made by XX but have not yet been asserted and those claims asserted by XX against [INSERT], defendants in the aforesaid Action. The release herein does not in any way operate in the favor of the afore-named, nor does it in any way operate in favor of any party other than YY. The Other Release How often do we hear from the defense that we have bought our peace? Well, they have, and it is equally true that the plaintiffs have bought their peace. Why should plaintiffs carry the exposure to a counter-suit for a year, and why should we as the plaintiffs counsel? Haven t we bought our peace, too? And why should the risk of further litigation fall on us and our clients just because we had to file suit to enforce responsibility? Paragraph No. 3 should be a release provided by the defendants 5, as follows: 3. In consideration of this Mutual Release, YY does hereby release and forever discharge XX, their heirs, successors and assigns, and their attorneys, from any and all claims and demands of any nature whatsoever related to the filing or prosecution of the Action, and does further release and forever discharge any and all claims, demands and causes of action of all sorts, whether accrued or un-accrued, known or unknown, developed or undeveloped, past, present or future, including attorneys fees and costs recoverable under statute or rule and all other damages of any sort, past, present or future. The No Liability/No Excuses Cause Similarly, it s my view that the no admission of liability clause should cut both ways. So for those 99 percent of defense counsel who want this clause, here is what we end up using: 4. It is mutually understood and agreed that this settlement is the compromise of a disputed claim. YY s agreement to the terms hereof shall not be considered an admission by it of any fault on its part, and XX s agreement to the terms hereof shall not be considered an admission by them that YY is free from fault. The Payment 6 Be clear about the amount, and the date that it is due. I kick myself every single time I settle a case without an express commitment of the date by which the monies will be paid. Anyone who has ever done the same knows the reason for the kicking. 5. YY shall deliver the settlement sums to Plaintiffs counsel by a cashier s check, wire funds transfer or otherwise immediately available funds payable to [insert payee(s)] on or before noon on [date]. The settlement sums are in consideration of the physical injuries and wrongful death as alleged by XX. 7 None of the settlement sum is paid for punitive damages. 8 None of the settlement sum is in consideration of the confidentiality provisions incorporated at Paragraph 7, below, the consideration for which are the reciprocal promises contained therein. Upon delivery of the settlement sums, XX shall execute an Agreed Order Dismissing Settled, all parties to pay their own costs. Liens, Governmental and Otherwise 9 Liens are, hands down, the hardest part of any settlement. Let s be clear about why a defendant cares. For Medicare liens, the defense is legitimately entitled to a commitment that the Medicare lien will be paid. But that is it, at least as of today. 10 A plaintiff may have contractual or statutory obligations to Medicaid or non-governmental providers, but that is not a defendant s problem. Of course, providing that monies will be escrowed, and that proof of satisfaction of a governmental lien shall be provided is a far cry from an indemnification. It is and should be enough March/April

20 that a defendant has been fully released by the plaintiff for any liability due to these expenses (as is the case, see release terms above); when a defendant asks for anything else (with the potential exception of Medicare liens), it is overkill. Consider that an insurance contract is an indemnity contract. Premiums are paid, and risks are assumed by insurance companies after careful underwriting considerations. The indemnity could reasonably be assumed to include costs of defense. Do you really want your lay-person plaintiff becoming the equivalent of an insurance company and take on these responsibilities? Of course you don t. However, sometimes the practicalities of the deal require that you do so, and when the extent and limitation of the liability to the defendant is within your client s control, it is not the worst thing in the world. This sample clause limits any indemnity to health care liens, and health care liens only: 6. Plaintiffs shall indemnify and hold harmless YY and YY s insurer from any and all claims, suits, thirdparty claims, cross-claims, liens or any other actions or causes of action, known or unknown, presently or at any future time, made by any person, entity or governmental agency arising out of, or attributable to XX s medical or related expenses incurred as a result of the acts or omissions of YY. Keeping Secrets Rarely is there a legitimate reason for the overlyrestrictive confidentiality clause favored by most insurance companies. We only agree to confidentiality when it is in our client s interest or when the client truly insists on the settlement and it can t be accomplished any other way. More often than you might think, defendants are willing to forego a confidentiality clause. If you are going to have one, consider that lay people often need to discuss settlement terms with loved ones. Here is a sample clause: 7. The amount of this settlement sum shall remain confidential among the parties and their attorneys, except as to tax advisors, financial planners and advisors, structured settlement brokers, special needs trust advisors and trustees, immediate family members, as required by law, as required by court order or subpoena, or as necessary in dealing with subrogors or actual or claimed lien holders and their contractors, including Medicare and Medicaid. The parties acknowledge that any court filings or other dissemination of the terms of this Mutual Release as are required by law or as are excepted by the foregoing provisions shall not constitute a violation of this confidentiality agreement. Boilerplate Here is some sample concluding language: 8. All agreements and understandings between the parties are embodied and expressed herein and the terms of this Release are contractual and not a mere recital. XX and YY acknowledge that in entering into this agreement, no representations, promises, or advice have been given to them by counsel for the other. This Agreement has been, and shall for all purposes be deemed to have been, negotiated, executed, and delivered within the Commonwealth of Kentucky, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by the laws of the Commonwealth of Kentucky. This Agreement is binding upon, and shall inure to the benefit of, the parties hereto and their respective agents, employees, representatives, officers, directors, subsidiaries, assigns, heirs, and successors in interest. Signatures For some reason, it makes defendants happy to see this in all caps at the end of the Mutual release, preceding the signatures: WE UNDERSTAND THAT THIS IS A FULL AND FINAL RELEASE OF ALL CLAIMS THAT WE MIGHT HAVE AGAINST EACH OTHER, OUR AGENTS OR EMPLOYEES. WE HAVE CONSULTED OUR ATTORNEYS AND SIGN THIS ON ADVICE OF COUNSEL. WITNESS the signatures of the parties hereto on the date indicated. There is no need for counsel to sign, unless you just want to, but otherwise there should be a signature line and date for each party individual, or entity. Ann Oldfather concentrates in plaintiffs personal injury, product liability, medical negligence, legal malpractice, appellate matters, commercial litigation and complex family law. Ann served as a Special Justice on the Kentucky Supreme Court, authoring both majority and dissenting opinions. 1 An electronic set of the sample provisions is available at https:// (log in to view the document.) 2 No releases until money in hand. Period. Otherwise, the docu- 20 The Advocate

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