Episodes

  • Kentucky Rules for Appellate Procedure Changes 4-1-26 – PART 2

    Kentucky Rules for Appellate Procedure Changes 4-1-26 – PART 2
    Mar 27 2026
    Episode 17: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 30 minutes of Kentucky continuing legal education credit. This episode of the Legal Notepad podcast is PART 2 of the discussion of amendments to the Kentucky Rules of Appellate Procedure (RAP) taking effect on April 1st, 2026. A major update to RAP 22 makes the civil appeal pre-hearing statement optional, removing a common "gotcha" that previously limited the issues a party could raise if they were omitted from the initial form. The new RAP 23 serves as a standalone rule highlighting the critical requirement to notify the Attorney General of any constitutional challenges in both the trial and appellate courts. RAP 30 provides more certainty for calendaring by clarifying that a reply brief is due 15 days after the last appellee brief is filed or due, while RAP 31 updates word limits for combined reply briefs. Further changes include RAP 32, which waives the statement of points and authorities for briefs under 1,750 words, and RAP 60, which corrects a clerical error regarding original actions. Finally, RAP 63 modifies supersedeas bond requirements by eliminating "damages for delay" and confirming that the trial court retains jurisdiction over all bond-related matters. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. Jim Ray: Welcome back to this episode of the Legal of Notepad podcast. This is actually a continuation of something we started in Episode 16. So Rob and Kevin jumped into the Kentucky Rules for Appellate Procedure, which are going through some changes. In fact, effective April 1st, 2026, there were a number of amendments that are coming into play and they started discussing several of those. So this episode 17 is actually a continuation of that topic. So with that, I'll hand it back over to Rob and let's get going. Robert Mattingly: Alright, listeners. Jim is exactly right. Episode 17 is PART 2 to Episode 16. Starting April 1st of this year, 2026, there are several new revisions to the Rules of appellate procedure. We've got Kevin Burke in the studio and he is going through all of those with us. I've got to tell you, appellate law is not something I do. I tend to find that Kevin, can I call it a snooze fest? I don't mean to make fun of what you do. Kevin Burke: I mean, I understand. I can understand and appreciate that sentiment. Robert Mattingly: I mean, sometimes I'm like, give me a good contentious deposition. Kevin Burke: There you go. Robert Mattingly: Or a rowdy witness. What do you all do up on appeal? Are you like, man, I hope they say something mean in their brief. Kevin Burke: Basically. Yeah, that's it. It's more limited than what you're doing in the trial court where stuff happens blows up on a day-to-day basis. Yeah. So it's not like that. Robert Mattingly: You and I try to have a lot of fun for those that listen to Episode 16, and please, if you haven't listened to Episode 16, you might want to stop this podcast and move over and listen to it. This is PART 2. Let me do the clerical stuff I have to do every time. This is going to be submitted to the Kentucky Bar Association for hopefully 30 minutes. That's our goal. 30 minutes of CLE. If you listen to Episode 16, that would've also been 30 minutes. So you would get a full hour on this. That should be approved through, as you all know, our CLE deadline of June 30th every year. So in this case, June 30th, 2026. And then usually what we'll do is renew them for a year. So hopefully you can get credit all the way through up to June 2027. I'll also remind us if you listen to that, number 16, we're trying to have a little fun. When you abbreviate Rules of Appellate Procedure, it is RAP. So, we have tried to work in, just to make this a little fun, various rap references, and we're trying to count them. So, if you hear them, email us and maybe we'll have a prize for whoever gets the count, right. Although I think we tend to probably give most of them away. Kevin, why don't you do this? Start by just giving us a quick review. Remember, this is going to be about 30 minutes, so give us a real quick review of what we covered in 16. Kevin Burke: Yeah, so these again are the rule changes that go into effect on April 1st, 2026. These are revisions to the complete overhaul of the rules that went into effect in 2023. So what we covered in our last episode, we covered what happens when you have multiple appellants, multiple appeals, and how those appeals can either be consolidated or heard together by, in the court of appeals, the same panel or in the Supreme Court, that they can be heard together even on the same day for oral argument purposes, that sort of thing. That was RAP 2. And then we covered some minor changes in RAPs 5 and 7 about initials, ...
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    40 mins
  • Kentucky Rules for Appellate Procedure Changes Effective 4-1 -2026 – PART 1

    Kentucky Rules for Appellate Procedure Changes Effective 4-1 -2026 – PART 1
    Mar 24 2026
    Episode 16: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 30 minutes of ethics for Kentucky continuing legal education credit. This episode of the Legal Notepad podcast features appellate attorney Kevin Burke discussing amendments to the Kentucky Rules of Appellate Procedure (RAP) that take effect April 1st, 2026. Kevin, who served on the committee that drafted these updates, explains that RAP 2 clarifies how multiple appellants are handled, advising practitioners to file separate notices of appeal to maintain individual briefing word limits. Changes to RAP 5 and 7 specify that initials should only be used for appeals from expungement orders, rather than any case involving an expungement, and clarify that a voluntary dismissal of an appeal does not automatically end a cross-appeal. A significant update to RAP 8 addresses the potential "gotcha" of party substitution after death, requiring that revival motions be filed in the appellate court if the case is fully on appeal. The rule further clarifies that if a case is split between jurisdictions, the motion to substitute must be filed in both the trial and appellate courts to ensure the action is properly maintained. These amendments provide necessary clarifications to the major 2023 rules overhaul and are intended to assist lawyers in meeting their annual CLE requirements. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Producer Jim begins with, "Hey, Kevin and Rob, we've received a number of emails from listeners who have received notice from the Kentucky Bar Association referencing the Kentucky Rules of Appellate Procedure, because there are some amendments that are going to go into effect April 1st, 2026. Can you guys talk about that?" Rob Mattingly: Yeah. Producer Jim, that is a great question and you are correct. There are a number of Kentucky Rules of Appellate procedure. Kevin, that's hard to say, isn't it? It doesn't roll off the tongue, but they do go in effect April 1st, and that is not an April Fool's joke. Is it Kevin? Kevin Burke: Not an April Fool's joke at all. They are coming at you. They're coming at you fast. Rob Mattingly: They are. So we are sitting here, we're recording this March 18th, 2026 for those listening. And these come out April 1st, so just a couple of weeks away. So, we do have, as you know, our appellate attorney, Kevin Burke, who is back with us again today, and we're very fortunate because Kevin is actually on that committee, Jim, and was involved in writing some of these rules. So we're going to go through them. Let me tell the listeners what we plan on doing today. We are going to do this update on two parts. So we are going to have podcast Episode 16, which is going to be Part 1, and we're going to go through a portion of these new updates and that should run about 30 minutes for those keeping track of their CLE credit. Then we will do podcast Episode 17, which should also be about 30 minutes, and we will release that as a separate podcast so that you can divide up listening to them because Kevin, it's hard to keep attention for a whole hour. Kevin Burke: I understand that. That makes sense to me. Rob Mattingly: So, we will definitely divide that up. Let me do the little administrative side of this for all of our listeners, you know that June 30th, every year is the year that our CLEs as lawyers are due. This podcast will be submitted to the Bar Association episodes 16 and 17 and all of our other episodes, I would expect that it would be approved for that CLE credit. Again, 30 minutes, probably for 16 and 30 minutes, probably for 17. I would also note to our listeners that a large number of our past episodes have recently been renewed with the Kentucky Bar Association. And if you go back and look on our websites, you can see and still listen to those and get more credit for this year. So that's a pretty good, pretty good Kevin. And with that, let me tell you what happened here. So, I got an email from Kevin that said a lot of new RAP out, RAP, we need to do a podcast on that. And I thought, well, this isn't really a music podcast, but what do you want to do, Kevin? Keving Burke: That's right. I want to talk about RAP. That's what I want to talk about. Rob Mattingly: So Rules of Appellate Procedure, RAP is how they are abbreviated when you're citing them. So we are going to also play a little game where people can count the number of rap references, rap music 1980s to the present, Kevin. So stay tuned and see how many you can count throughout the podcast. So with that, let's start to move on into the first section. The Process for Amending the Rules of Appellate Procedure Alright, so let's begin by Kevin, why don't you do this? Yeah, why don't you tell the ...
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    39 mins
  • Using a Trust to Preserve Client Benefits After a Bodily Injury Settlement

    Using a Trust to Preserve Client Benefits After a Bodily Injury Settlement
    Sep 9 2025

    Episode 15: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for Kentucky continuing legal education credit. Rob and Kevin are joined by Peter H. Wayne IV, General Counsel for the Forge Companies. This is a recording of a national webinar the three of them created to assist attorneys and their clients. A full video of this webinar is available on The Legal Notepad Podcast's YouTube channel.

    Click here to view this webinar on YouTube: [insert link]

    Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.

    In Closing

    We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues.

    You can follow our podcast on a variety of platforms including, Spotify, iHeartRadio, Amazon Music, Audible, Apple Podcasts and many more. Thanks for taking the time to listen.

    For more information about the Law Offices of DeCamillis and Mattingly, PLLC

    Address: 138 S. Third Street, Louisville, KY 40202 (across from The Old Spaghetti Factory)

    Phone: (502) 589-2822

    Website: DeCamillisMattingly.com

    To Contact Kevin Burke:

    Website: BurkeNeal.com

    Phone: (502) 709-9975

    To Contact Peter Wayne:

    Website: AdvocacyTrust.com

    Phone: (855) 879-3436

    Until next time, go find one thing you can do to change the world!

    The Kentucky Bar Association Requires Us to State "This is an advertisement."
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    1 hr and 21 mins
  • Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode)

    Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode)
    Jun 10 2025
    Episode 14: Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 1 hour of ethics for Kentucky continuing legal education credit. Rob and Kevin are joined by Lauren Byrn and attorney Nina Couch. Nina teaches professional responsibility at the Brandeis School of Law. She also has a private practice. This is her first time on a podcast! Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Lauren asks, "One of the national, legal listservs had a lot discussion about nonlawyers owning law firms. Does Kentucky have a rule on this?" Kevin comments how this is a fascinating topic and one that will be greatly discussed in the future. Rob asks Nina to provide some brief information about herself and then explain Kentucky's Rule 5.4. Nina was an accountant before going to law school. She's taught professional responsibility at UofL's Brandeis School of Law a couple of times. She was a visiting assistant professor, teaching professional responsibility and property. Now she's there part-time in current capacity, having also taught mediation. Her private firm is Couch Law Office, PLLC, in Louisville. She focuses primarily on consumer protection and personal injury claims. Nina explains that the ABA model rule Rule 5.4 prohibits nonlawyers from sharing in attorney fees with lawyers. It also precludes nonlawyers from having any ownership interest in a law firm. Kentucky has a similar Rule 5.4, however, in very limited circumstances, such as a lawyer death and the transfer of a law firm. It could also be allowed in the purchase of a law practice, in accordance with Rule 1.17. There's also a provision for a profit-sharing plan, as long as it's not tied to a per-case attorney fee. The History of Rule 5.4 It's to protect the lawyers independence and judgement. It's also a safeguard to protect the core values of our legal profession. The ABA adopted Rule 5.4 in 1983. Nina points out that it actually goes back to 1908 when the ABA codified its first set of cannons. The law has changed over the years, most recently with the significant advances in technology including AI. There has been conversation focused on modernizing 5.4 and access to justice to underserved, potential clients. Adding nonlawyers might assist in addressing the issues. Law firm capital and innovation are also influencing the conversation. Law firms are prohibited from raising capital from venture capital firms, private equity or nonlawyers. Rob and Kevin comment on how different the practice of law has become, even since they both started practicing. Business and commerce has also changed. Hedge funds and other investors see an opportunity make money, if they were allowed to invest in law firms. The Conversation Has Started Nina notes the ABA has tended to resist changes to Rule 5.4. In 2022, it adopted Resolution 402, noting the inconsistency with core values, were nonlawyers to share in the legal fees or ownership/control of the practice. It cites to the core principles of the practice of law including loyalty, competence and confidentiality. The Association of Professional Responsibility Lawyers, in December of 2024, wrote a letter to the ABA. They advocated from a modernization of Rule 5.4. They view the involvement of nonlawyers as being inevitable, in legal delivery systems, while maintaining regulations protecting consumers. The conversation has definitely started. Arizona entirely eliminated its Rule 5.4. Utah has also looked at this issue. Rob comments on the adage: Those who fail to plan, plan to fail. It seems like the inevitability stated in the December letter, seems quite plausible. Kevin notes leaving the rule as is, is a decision. As technology and other key, societal factors evolve, the legal world is going to change, based only on technology. The decision to update the rule or leave it as is, is a choice that brings consequences. The Current Landscape We're transitioning into a segment dealing with how various states are proceeding. Lauren also suggests we include a discussion on how AI comes into play. Speaking of AI, we're joined by ChatGPT. Nina begins by noting the District of Columbia was the first to change Rule 5.4, in 1991. It was a limited change. In 2013, the ABA issued formal opinion 464, Division of Legal Fees With Other Lawyers Who May Lawfully Share Fees With Nonlawyers. It clarified that a lawyer practicing in a model rule state didn't violate 5.4 if they shared fees with a DC lawyer. In 2020, the landscape changed regarding 5.4. Utah and Arizona both made changes to their Rule 5.4. Arizona eliminate the fee-sharing prohibition and allowed nonlawyers to own law firms, as Alternative Business ...
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    1 hr and 9 mins
  • Direction of PIP Benefits for Medical Expenses

    Direction of PIP Benefits for Medical Expenses
    Jun 4 2025
    Episode 13: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss a recent case involving the direction of PIP benefits for medical expenses. Rob and Kevin are joined by Lauren Byrn and for the second time, attorney Adam Redden. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Lauren asks, "What is the current state of an insured's ability to direct no-fault benefits?" In Kentucky, many of the PIP carriers traditionally paid the invoice, as they were submitted. The option of directing specific invoices to be paid, instead of others, could be challenging. Most carriers wanted to pay on a first-in, first-paid basis. That has now changed, based on Erie Insurance Exchange v. Johnson (Kentucky Supreme Court, 2024-SC-0018). In our previous episode, we discussed the liability of an adult when their minor uses their car and causes a wreck (Episode 12). PIP Direction (not the boy band) Kevin clarifies that PIP Direction is not a new boy band. This prompts the team to explore Lauren's Justin Timberlake crush. The statue involved in Erie Insurance Exchange v. Johnson is KRS 304.39-241, in the Motor Vehicle Reparations Act. It allows an insured seeking no-fault benefits to direct the payment of those benefits "among the different elements of loss." Rob points out that the Court specifically mentions the term basic reparations benefits can be used interchangeably with PIP benefits. The case involves a motor vehicle accident. Two individuals sought various medical treatments. Generally PIP benefits cover $10,000 in medical expenses, lost wages, etc. Kevin advises non-lawyers to consult with and attorney to reserve the PIP benefits. The carrier is interest in paying the benefits as quickly as possible, but that may not be in the insured's best interest. In the Erie case, the plaintiff's attorney notified Erie to reserve the PIP benefits and expressed the desire that the chiropractor be paid from the benefits, rather than the hospital bill. Erie responded claiming the plaintiff could not direct the payments, beyond at the category-level. As a result, Erie filed suit. Ultimately, the circuit court agreed with the claimants (e.g. the insureds). In the court's decision, it noted that the decision potentially affects millions of Kentuckians. Interestingly, this is a case of first impression. The court found that the claimants could direct the medical expenses. The case went to the court of appeals. The court affirmed the circuit court's ruling. The case was accepted on discretionary review by the KY Supreme Court. When the case made it to the Kentucky Supreme Court in 2022, the Court had to throw it out, due to a lack of jurisdiction. There Was No Magic Language The circuit court's opinion did not fully and finally resolve all issues in the case. The direction of benefits issue wasn't resolved. Additionally, there was a claim for accrued interest and a claim for attorney fees. Thus, the Supreme Court found that the case was not appealable. It didn't contain the magic language: "Final and appealable with no just reason for delay." Rob and Kevin discuss how attorneys can avoid this situation. Kevin explains that if there are still unresolved claims, under CR5402, the opinion must say, "Final and appealable with no just reason for delay." If that specific language is not included, it's going to get kicked back down to the lower court. Kevin explains this is non-waivable, even if the issue isn't raised by the parties. The court has a duty to raise it on its own. In this particular case, the court of appeals overlooked the defect. Once the case goes back down, a new order is entered, addressing the direction issue, interest, attorney fees and adds the magic language. It goes back to the court of appeals, which affirms the circuit court's ruling in favor of the claimants. Once again, the KY Supreme Court takes the case for discretionary review. Eventually, it results in the 2025 opinion. Standard for Review on a Legal Issue This will be a de novo review. The court doesn't pay deference to the court of appeal's opinion or that of the circuit court. The Court is evaluating it, anew, based on what the statute says regarding the circumstances of the case. The issue involving the direction of benefits received a de novo review. The other issues were reviewed using a different standard, because there was an abuse of discretion. Interpreting "The Element of Loss" Language The Court has various mechanisms for interpreting language. In this case, they went through statutory interpretation. Adam notes a few things in the opinion. Page 9 – "…Carry out the intent of the Legislature." Adam asks Kevin what the court is saying with this language...
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    49 mins
  • Liability for Letting a Minor Drive a Vehicle (KRS186.590)

    Liability for Letting a Minor Drive a Vehicle (KRS186.590)
    May 26 2025
    Episode 12: Louisville attorneys Rob Mattingly and Kevin C. Burke explore parental liability, now that 15 year olds are able to get a drivers license. Parents should be aware of their responsibilities related to this new issue. Rob and Kevin are joined by Lauren Byrn and for the first time, attorney Adam Redden. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Lauren asks, "Now that Kentucky has a new law allowing 15 year olds to get their drivers licenses, what are the liability for parents?" The Statute for Parental Liability for Minors Driving an Automobile KRS186.590 is the relevant law for this issue. This law has been in place for decades. Rob addresses non-lawyers by explaining how a parent can be held liable for a collision caused by your minor child. There are 2 broad scenarios outlined by this statute. The first scenario (Section 1) assumes you signed the application allowing the minor to get his/her license. Therefore, you are deemed responsible for anything the minor does in the car, because you signed the application. However, there is an exception. If you've made sure the vehicle they are driving has insurance, you are not liable. The second scenario (Section 2) is much broader. Regardless of whether you personally signed the application, and regardless of the insurance, if you own the vehicle or allow the minor to drive the vehicle, you are liable. Under Section 3, Rob notes the person who owns or furnishes the vehicle may not have been the one who signed the application for the minor to get his/her license. By the way, if you were to allow a minor who is not your child, to drive your vehicle, you are liable for what may happen. Kevin explains the two scenarios are there to ensure there is a source of recovery for someone who might be involved in a collision with a negligent, minor driver. To illustrate how all of this works, Lauren will pose a few questions and Adam will provide the answers. Example #1: Mom takes her 16 year old to get his/her licenses. She signs the application. However, she does not get insurance on the vehicle. Is she liable? Yes, under Part 1 of the statue, the mother would be liable because she signed the application. Kentucky requires vehicles to be insured. The fact that the vehicle wasn't insured at the time of the accident isn't the primary issue. However, she should have made sure the vehicle was insured. Insured or not, the mother would be held liable. Example #2: Mom signs the application and gets the car insured. However, dad has a different vehicle. He gives the child permission to drive his car. If the minor driver causes an accident, who is liable? Adam explains that the mother would not be held liable. Although she signed and insured the first vehicle, the statue specifically notes that if you furnish a vehicle to a minor, that person is liable. Therefore, the dad would be held liable for the minor's negligence. In reality, assuming the car is family asset, dad would still be liable. The above example would be relevant if the parents were divorced. Example #3: An adult, who is not the parent and didn't sign the application, agrees to let a minor borrow a car. Would the adult be held liable? In this example, according to Section 3, the adult is liable because he/she furnished the vehicle to a minor driver. The adult assumed the liability. Example #4: Mom signs the application and gets insurance on the car. Unfortunately, dad allows the policy to lapse. Who would be liable? Mom would be liable, however dad could potentially also be held liable if he had control of the vehicle and allows the minor to drive it, Section 3 would apply. Example #5: Assume adult #1 borrows a car from adult #2 (with permission). Then, adult #1 allows a minor to drive the car. The minor causes an accident. Who is liable? Kevin explains that this is a Section 3 issue. Anyone who causes or knowingly permits a minor to drive a vehicle assumes liability. It could also be said that adult #1 furnished the vehicle. Adam clarifies that adult #2 could also be liable. He/she permitted adult #1 to use the car, even though it was adult #1 who permitted the minor to drive it. Rob suggests that adult #2 should have explicitly told adult #1 that the minor was not allowed to drive the car. At the end of the day, this isn't a situation you want to find yourself in, so be advised. Practical Pointers You Can Take to Protect Yourself If you are the parent, make sure you keep insurance on the car your minor is driving. You should also decide how much insurance you can buy. While insurance premiums are expensive, you need to consider the value of the assets you need to protect (i.e. your home, your ...
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    1 hr and 13 mins
  • Kentucky's Firefighter's Rule (First Responders)

    Kentucky's Firefighter's Rule (First Responders)
    Nov 25 2024
    Episode 11: Louisville attorneys Rob Mattingly and Kevin C. Burke unpack Kentucky's Firefighter's Rule. A recent opinion by the Supreme Court has resulted in a flurry of comments on social media. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Lauren comments she recently saw the Supreme Court issued a new opinion about the Firefighter's Rule in Wooster Motor Ways, Inc. vs. Gonterman (10/24/24). It's a hot topic on social media. She asks Rob and Kevin to provide details about this rule. Kevin submitted an amicus brief, on behalf of the Kentucky Justice Association for the Wooster case. What Is the Firefighter's Rule? Kevin begins by explaining what the rule is. In its most basic form, it bars public employees (such as firefighters, police officers, EMTs, etc.) who are exposed to risks as part of their normal job activities, from recovering damages for injuries from the property owner or the person who may have caused the situation (e.g. the arsonist). The rule is a misnomer. This is not a rule the firefighters or other first responders actually want. Rob mentions it's also referred to as a professional rescuer's rule or a first responder's rule. Rob goes on to advice attorneys to review this rule, if they are approached by an injured first responder regarding a claim for the injuries they suffered. While they may have a workers' compensation claim, the other types of personal injury claims wouldn't typically apply. Public Policy Rational for the Rule Rob and Kevin comment that the general public policy is that we want someone who has a fire or other emergency to call 911, rather than worrying about the potential legally liability should one or more of the first responders get injured while resolving the emergency situation. However, could this rule also discourage people from pursuing first responder jobs, if they know they can recover damages as compared to other people? Public vs. Private Employees Lauren asks about a healthcare professional, such as a nurse, who encounters a car wreck. Aren't they compelled to render assistance? If so, does the firefighter's rule apply to them? Kevin points out that in Kentucky, the rule only applies to public employees, so a nurse or other healthcare professional would not be limited by the Firefighter's Rule, were they to suffer an injury. The Origin of the Firefighter's Rule Rob and Kevin discuss the origin of the Firefighter's Rule, from a national perspective. The origin goes back to Gibson vs. Leonard, 32 N.E. 182 (Illinois 1892). This was the first case in the country that applied the Firefighter's Rule. A Chicago warehouse fire occurred. The warehouse stored whiskey barrels. Mr. Gibson and his fellow firefighters responded. Back in the day, they part of the Fire Insurance Patrol. This was roughly 21 years after the great Chicago fire). The Patrol was created by the insurance agencies to protect the assets of the businesses they insured, in the case of a fire. Note: The Fire Insurance Patrol and the Chicago Fire Department both responded to the warehouse fire. The Fire Insurance Patrol is tarping the area and moving the barrels in an effort to prevent them from being destroyed. Mr. Gibson and others place some of the barrels into the lift elevator to move them to a different location. The lift fails, causing an injury to Mr. Gibson. He later attempts to sue the owners of the building for his injuries. The Illinois Supreme Court said both the Chicago Fire Department and the Fire Insurance Patrol were responding to the fire and had a right to be there and their attempts to save the building and its assets were justified. The public policy was to encourage people to call the fire department in the case of an emergency. This was not only to put out the fire, but to also prevent it from spreading to adjoining properties. The Court created the rule of non-liability, acknowledging that firefighters assume the liability for potential injury as part of their job. Rob explains that on a national basis, some jurisdictions have adopted the rule, while others have rejected it. The trend tends toward more courts now rejecting the rule. Kentucky's Adoption of the Firefighter's Rule The first Kentucky case Rob and Kevin address is Buren vs. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964). This is the case that establishes the Firefighter's Rule in Kentucky. In this situation, Louisville firefighters were called to a fire in a commercial building. The building included a bowling alley, restaurant and storage space. There were several factors that may have led to the rapid spread of the fire. One or more firefighters were injured while battling the blaze. They file a suit to ...
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    1 hr and 16 mins
  • KRS 411.188 - Mandatory Notice of Subrogation Rights

    KRS 411.188 - Mandatory Notice of Subrogation Rights
    May 23 2024
    Episode 10: Louisville attorneys Rob Mattingly and Kevin C. Burke recorded an episode during a CLE conference in Las Vegas, in front of their colleagues. Several of them stepped up to the microphone to as a few questions. Let's join Rob and Kevin as they discuss KRS 411.188 – Mandatory Notice of Subrogation Rights. Editor's Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast. TODAY'S LEGAL QUESTION: Opposing counsel claims medical expenses must be excluded because we didn't file our KRS 411.188 notice. How should we handle that? Understanding KRS 411.188 Kevin begins by reviewing the statute. The notice provision is addressed in Sections 2 and 4: 2) At the commencement of an action seeking to recover damages, it shall be the duty of the plaintiff or his attorney to notify, by certified mail, those parties believed by him to hold subrogation rights to any award received by the plaintiff as a result of the action. The notification shall state that a failure to assert subrogation rights by intervention, pursuant to Kentucky Civil Rule 24, will result in a loss of those rights with respect to any final award received by the plaintiff as a result of the action. 4) A certified list of the parties notified pursuant to subsection (2) of this section shall also be filed with the clerk of the court at the commencement of the action. Kevin explain that the legislature passed a comprehensive set of bills related to civil actions, in 1988. The statute was part of HB551 (a tort reform bill), refer to Section 4. O'Bryan vs. Hedgespeth was discussed in Episode 7 of the podcast focusing on the Collateral Source Rule. Several sections have since been ruled unconstitutional. Rob and Kevin note that Section 2 provides that the plaintiff shall give notice to parties which are subrogation holders (i.e. health insurance companies, workers' comp carrier, STD or LTD carrier, etc.). Section 4 requires that the plaintiff also file notice with the court that the notice was given. How to Comply with KRS 411.188 Rob explains there are basically 2 ways to do this. In his notification letter to subrogation holders, he includes the following: "I have read KRS 411.188 and that statute says I must tell you that you must intervene. If you don't intervene, you lose your subrogation rights." This ensures Rob has complied with the Section 2 requirement. Rob, then, files a Notice to Subrogation Holders pleading, in circuit court, with the following language: "Please be advised that as of [insert date], I have sent notice of the duty to intervene to the following subrogation holders: [insert list]." This ensures Rob has complied with the Section 4 requirement. After filing the pleading, Rob attaches a copy of the pleading to the letter he sends to the subrogation holders, via certified mail. This process takes minimal time and is worth the effort. Rob and Kevin comment on how defense attorneys are beginning to use violations of KRS 411.188 more frequently. Kevin has seen other firms comply using a slightly different process. You could include a Certificate of Compliance with KRS 411.188, within the complaint. This would include a list of the subrogation holders you are notifying. This would then be filed without the need for a separate document. Providing Notice to the Subrogation Carriers Who are you actually required to notify? Rob and Kevin discuss the PIP carriers for automobile accident cases. Kevin points out the Motor Vehicle Reparations Act (MVRA) is a comprehensive statute. PIP, or no-fault coverage, is a separate part of the MVRA and is not covered by KRS 411.188. Not notifying the no-fault carrier doesn't mean you have failed to comply. Rob mentions Ohio Casualty Insurance Company vs. Ruschell, states the "notice provision does not apply to my PIP carrier." Kevin explains how the MVRA abolished, with conditions, the tort liability for anything covered by PIP. Again, you do not have to send notice to the PIP carrier. When Added Reparations Benefit Coverage Has Been Purchased Kevin explains that in situations wherein added PIP coverage has been purchased, there is a State Farm case that says Added Reparations Benefits (ARBs) are considered to be the same as PIP. Do I Need to Give Notice to the Workers' Comp Carrier? Kevin says this is the exact opposite analysis. Kentucky workers' comp benefits are paid pursuant to KRS Chapter 342. It contains a specific subrogation section (KRS 342.700). Subsection 1 specifically says you must notify the workers' comp carrier pursuant to KRS 411.188. Question from Attorney Mark Smith Conference attendee, attorney Mark Smith asks a question about when a case involves both workers' comp and an auto accident ("a hybrid case"). In Kentucky, workers' comp takes ...
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