Photographs can help establish the scene of the collision, the speed of the vehicles prior to impact, and ultimately who was at fault in causing the wreck. For

example, photographs of skid marks can establish how fast a vehicle was going and when the driver began braking. If there could be a dispute as to who had the green light in an intersection collision, video of other cars going through the intersection can establish the traffic signal patterns at that time of day. Video can show that an impaired driver is stumbling and slurring, or photographs can show a beer can in the drink holder. Photographs of bruising across someone’s shoulder, chest, and hips can prove the person was wearing her seatbelt at the time of the collision.

You may be unable to take photos and video of the scene if you are injured, or you may be afraid that this could lead to a confrontation with the other driver.

Once a police officer arrives at the scene, ask the officer to take photographs and videos to preserve evidence. Be sure that photographs of all vehicles involved in the collision are taken.

Photographs are also very important in documenting injuries. It is one thing to read in the medical records that someone suffered a cut to his face requiring 20 sutures. It is quite another to see a photograph of the wound before it was stitched up by the doctors. Photographs can also help show how long it took for an injury to heal. Do you still have bruising 2 weeks after a collision? Take pictures. Do you still have a permanent scar 6 months later?

Take pictures.

Finally, if you take photographs or videos on your smartphone after a car accident, make sure you print out hard copies or back up your data as soon as possible. Over the years, my clients have lost important evidence because their phones got wet or went on the fritz, or they bought a new phone and forgot to transfer pictures to the new one. If you hire an attorney, get those photos and videos to your attorney as soon as possible.

If you have been involved in a car wreck and have questions, please give me a call at 859-559- 9947 or send me an email at stacy@stacyivey.com. The initial consultation is free.

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Gap coverage makes up the difference between what your car is worth and what you owe on the vehicle if it is totaled in a collision.

Do you REALLY need it?

Absolutely, if you “upside down” on a vehicle. What does this mean? You are “upside-down” on a vehicle if you owe more than what your vehicle is worth. This does not just happen if you pay too much for a junker at one of those “Buy Here/Pay Here” used car lots. This can also happen if you are financing a nice vehicle with a modest down payment or if you purchase a new car.

Here is an example:

Let’s say you purchase a brand new car for $25,000 with 0% down. Your car will depreciate by as much as 10% as soon as you drive it off the lot. Everybody knows that, right? Let’s say a negligent driver t-bones you a couple of months later, totaling your car. Assuming the negligent driver had collision coverage, his insurance must pay you the fair market value of the vehicle, which let’s assume it is $22,500 (10% lower than the purchase price).

It does not matter how much you owe on the car, or even how much you paid for the car, what matters is what the vehicle is worth today. Let’s say you still owe $24,500 on your car loan, having only made a couple of payments. Who makes up the $2,000 difference between what the vehicle is worth and what you owe? If you have gap coverage, the insurance company pays.

IF YOU DO NOT HAVE GAP COVERAGE, THEN YOU STILL OWE $2,000 ON A CAR YOU CAN NO LONGER DRIVE!

How does this happen with used cars? The vast majority of car loans are amortized. What this means is at the beginning of the loan term, most of the monthly payment goes toward interest (which really stinks and ticks me off, but that is how these loans work). As more time passes, a greater portion of the payments goes toward the principal owed on the loan. So unless you make a large down payment on the vehicle, your car’s value may depreciate in value faster than the rate at which you are paying down the principal, especially early on in the financing.

I have seen too many clients over the years get into a financial mess in these situations. PROTECT YOURSELF! Don’t get caught holding the bag if you owe more than what your car is worth. Purchase gap insurance.

If you have been hurt in a collision, call 859-559-9947 or message me for a free consultation.

The post Worth It: Protect Yourself and Finances with Automobile Gap Coverage appeared first on https://www.stacyivey.com.

Dog bite victims may now get a second bite at compensation through landlords. The recent Kentucky Supreme Court decision of Benningfield v. Zinsmeister, concerning landlord liability for injuries caused by tenants’ dogs, attracted significant attention from the conventional media as well as bloggers, facebookers, and the like. The issue before the Benningfield Court was whether a landlord can be considered an “owner” of a tenant’s dog, thus strictly liable per Kentucky’s dog attack bite laws; and if so, whether liability extends to dog bites which occur away from the leased premises. The Court held a landlord can be the owner of a dog for purposes of liability, but such liability is limited to injuries caused on or immediately adjacent to the premises.

Factual and Procedural Background

The Zinsmeisters owned rental property next door to their home which they leased to the Harrisons, who kept several Rottweiler dogs in the fenced-in backyard of the rental property. The Harrisons also kept an unaltered male Rottweiler owned by their son. On July 3, 2005, this male dog escaped from the backyard of the rental property, ran across the street, and attacked Brandon Benningfield, an eight-year-old boy standing on the sidewalk. While the Zinsmeisters knew of the dog’s presence on their rental property, there was some dispute as to whether they had revoked permission for the tenants to keep it.

Benningfield, through his mother and next friend, filed suit against the Zinsmeisters and the Harrison’s son. Benningfield obtained a default judgment against Harrison. Following discovery, the trial court granted summary judgment in favor of the Zinsmeisters on the issue of whether they were liable for the attack by their tenants’ dog. The Court of Appeals affirmed, and the Supreme Court granted discretionary review.

The Court’s Analysis

Two statutes proved critical in the Court’s analysis of Kentucky dog attack bite law. The liability statute at KRS 258.235(4), which imposes strict liability, provides “Any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” The ownership statute at KRS 258.095(5) defines the owner of a dog for purposes of strict liability to include “every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned or occupied by him.” Both statutes are reenacted versions of older laws: KRS 258.095(5) (identical to the current owner definition statute) and KRS 258.275 (substantially similar to the present liability statute).

Benningfield argued the plain language of the owner definition statute made landlords like the Zinmeisters statutory dog owners. Posing a problem for Benningfield was McDonald v. Talbot, a prior decision by Kentucky’s highest court which held landlords are not strictly liable under the dog bite liability statute. McDonald was decided under the original liability statute and did not analyze whether landlords are owners under the statutory definition of owner.

The McDonald Court did not completely blanket landlords with immunity but left the door open for landlord liability to be analyzed under common law negligence principles. The McDonald court implied a landlord might be held liable if three requirements were met:

1. The third person must be lawfully on the property;
2. The attack must occur in a publicly open portion of the property; and
3. The landlord must have known the animal was dangerous.

This was in effect the common law “One Bite Rule.” In other words, landlords get one free bite before being held liable.

Writing the plurality decision for the Benningfield Court, Justice Noble concluded that in turning to the common law, the McDonald Court relied only on the language of the liability statute and overlooked the owner-definition statute entirely; thus, the decision carries little or no precedential weight. Noble reached this conclusion with the creative application of the rules of statutory interpretation. The Benningfield decision relies on the plain language of the owner-definition statute and held a landlord can be an owner for purposes of strict liability if:

1. The landlord permits the dog to be on the premises; and
2. The attack occurs on or about the premises.

While the Benningfield Court adopted a liberal view of landlord ownership, its views on spatial boundaries were much more restrictive. The Court declined to extend liability to injuries occurring off the leased premises. Instead, the Court found that “on or about” means property “within immediate physical reach.” This may include the sidewalk adjacent to the property or space close to the curb.

In applying its interpretation of the law to the facts, the Court found that even if the Zinsmeisters were statutory owners of the dog that attacked Brandon Benningfield, the attack occurred on the sidewalk across the street from the rental property. Thus, the Zinsmeisters were not liable as the attack occurred too far away from the leased property.

The Court placed additional limitations on dog ownership. There must be an element of tenancy to the dog’s presence. For example, a temporary excursion onto the property of another will not give rise to legal accountability. In situations of a temporary nature, the tenancy must be related to the care or habitation of the dog to trigger liability. The example given is that a dog groomer could be an owner as the groomer’s control of the dog relates to the care of the animal. In addition, the Court specifically declined to extend liability to the owners of dog parks.

Justice Noble is not afraid to veer from precedent or at least put a new spin on it. Noble also wrote the opinion in Kentucky River Medical Center v. McIntosh, a case that modernized Kentucky legal standards in the area of premises liability by making it more difficult for cases to be dismissed via the open and obvious defense. In Benningfield, Noble wrote for a plurality of the Court, so in the future, some may argue that the opinion is of limited precedential value. However, the splits indicate there were members of the Court who wanted to take liability one step further.

In his dissent, Venters agreed with Noble’s analysis concerning ownership but would adopt a broader view of “on or about” the leased property. Venters disagreed with the result in the case and would have remanded it back to the trial court for the jury to determine whether the attack occurred “about” the premises by applying its own common sense to the circumstances. Minton concurred with Venters but would hold in addition that a landlord can be liable to third parties injured off the leased property by a tenant’s dog under general principles of negligence. Schroder and Scott are the only true dissenters who would follow the McDonald line of cases which hold a landlord can never be considered the owner.

Future ramifications

It is important to keep in mind that Benningfield does not change common law negligence principles. Rather, in certain situations, it applies strict liability to landlords who are in the best position to control what happens concerning the presence of tenants’ dogs on the rental property. Justice Noble observed the legislative goals of the dog bite statutes are two-fold: To decrease the likelihood of dog attacks and to increase the likelihood innocent victims will be made whole.

Benningfield also does not turn all dog bite cases into slam dunks. For example, to be liable the landlord must have “permitted” the dog to be on the property. If a tenant has a dog despite a “no dogs” clause in the lease, is the landlord liable? Does permission require actual permission from the landlord? Or can permission be implied if a landlord should have known but turned a blind eye to indications that dogs are on the premises?

As could be predicted, the decision has its critics, including landlord associations who claim the sky is falling. Vanessa Cantley, KJA Board of Governors member who represented the Benningfield family, eloquently responded to such concerns:

Landlords do not have to stop renting to pet owners, and they will not. Parents are held liable when their teenagers get behind the wheel and injure someone. They do not stop letting their teenagers drive. Owners of bars can be liable if they over-serve, then someone gets behind the wheel drunk and injures another person. Bars don’t stop serving alcohol. In both situations, they purchase insurance to cover damages to any innocent victim. What landlords will do now is purchase insurance to cover tenants’ dogs–in fact, most have this coverage already–or require the tenants to purchase renter’s insurance to cover their dogs and provide the landlord proof of coverage. Dog owners should do this anyway as part of responsible pet ownership. It is sound public policy to place responsibility for injuries on those best in a position to prevent the injuries from occurring in the first place. Tenants, of course. But also landlords who permit dogs on the property and benefit financially from the rent payments.

I doubt Justice Noble could have said it better herself.

If you have been hurt by a dog attack bite and need help, call 859-559-9947 or message me for a free consultation.

Benningfield v. Zinsmeister subsequently overturned via amendments to KRS 258.095(5).

1.  2011-2012 APPA National Pet Owners Survey.
2.  The estimated population of England and Wales is 56,075,900 per the “2011 Census – Population and Household Estimates for England and Wales, March 2011”, The Office for National Statistics, executive office of the UK Statistics Authority.
3.  Sacks JJ, Kresnow M, Houston B. Dog bites: how big a problem? Injury Prev 1996;2:52-4.
4.  See NMHC tabulations of 2011 Current Population Survey, Annual Social and Economic Supplement, US Census Bureau (http://www.census.gov/cps). Updated September 2011.
5.  Jay Romano, Why Renters Need Insurance, N.Y. Times, October 7, 2007, http://www.nytimes.com/2007/10/07/realestate/07home.html.
6.  367 S.W.3d 561 (Ky. 2012).
7.  Harrison is most likely judgment proof.
8.  Emphasis added.
9.  The newer versions became law in 2004, while McDonald was decided in 1969.
10.  447 S.W.2d 84 (Ky. 1969), decided by the Court of Appeals, Kentucky’s highest court at the time.
11.  Id. at 85.
12.  Justices Schroder and Scott called “shenanigans” on Noble’s application of the Hughes doctrine.
13.  319 S.W.3d 385 (Ky. 2010).
14.  See http://nky.cincinnati.com/article/AB/20120716/NEWS/307160122.

The post A Second Bite: Landlords may also be Responsible for a Renter’s Dog Attack appeared first on https://www.stacyivey.com.

The Basics

Workers’ compensation benefits are limited to income and medical benefits. Other types of special damages, such as loss of consortium or pain and suffering, are not compensable under workers’ compensation.

An injured employee may recover from both the employer and the tortfeasor, but he cannot collect from both.1 If a civil action is filed against the tortfeasor, notice consistent with the requirements of KRS 411.188(2) must be given to the employer so that it can exercise its statutory right to intervene in the third-party claim to recoup income and medical benefits paid.2

Fortunately for the injured employee, the employer’s subrogation right applies only to the award, minus the employee’s attorney fees and expenses. The offset is on a dollar for dollar basis, not pro-rata, even if the majority of the attorney fees were expended for damages not covered by workers’ compensation.3 For example, if the employer pays $10,000 for income and medical benefits, but the injured employee paid $15,000 in legal fees and expenses to recover pain and suffering from the third party, the employer’s subrogation right is extinguished. Otherwise, the employer/insurer would benefit from the injured
employee’s endeavor without sharing in its costs.4

The injured worker is entitled to have an independent and impartial trier of fact allocate the elements of damages.5 Moreover, the employer is not bound by the allocation of damages by the injured worker and the tortfeasor if a settlement agreement is reached.6 If a civil action is filed against the tortfeasor, then the jury (or judge in the case of a bench trial) allocates the elements of damages. If the third party claim is settled prior to the workers’ compensation claim but does not provide allocation, the administrative law judge in the workers’ compensation claim has jurisdiction to allocate damages and resolve subrogation issues.7 Finally, if the employer provides prima facie evidence of a subrogation credit, the burden shifts to the employee to prove that a portion of the recovery is not available for subrogation credit.8

Methods Used to Apportion Awards and Settlements Absent Specific Allocation

Many of us became lawyers because we hate math. I recall that during law school, you could palpably feel the anxiety level rise in the room each time our tax professor wrote numbers on the board, even if the figures involved were simple. Although the professor often assured us it was third-grade math, the mere thought of adding and subtracting sent many students into a dither. Even if you are mathematically inclined, trying to make heads or tails of workers’ compensation subrogation law can make you reach for antacid tablets and aspirin. For instance, pursuant to Hillman v. American Mutual Liability Ins. Co., 631 S.W.2d 848 (Ky. 1982), if a judgment cannot be satisfied out of the insurance funds, you may be forced to use a formula whereby the injured worker and the workers’ compensation carrier each recover a pro-rata share of the available funds in an amount directly proportionate to the relationship between the portion of the judgment subject to subrogation and the portion that is not. This situation is more easily understood by hypothetical.

Let’s say an injured worker files a third-party complaint against a negligent tortfeasor. The workers’ compensation carrier intervenes to protect its subrogation interest for $75,000 paid in medical expenses and income benefits. The jury awards $75,000 for lost wages and medical benefits and $25,000 for pain and suffering. For now, ignore whatever offset might exist for attorney fees and expenses. Thus, the damages total $100,000, and the employer is entitled to recoup $75,000, or 75 percent of the total damages. What if the tortfeasor’s only asset is a $25,000 insurance policy? Shouldn’t the injured employee be
made whole and take the entire policy to compensate him for his pain and suffering?

Unfortunately, Kentucky courts have said no. Per Hillman, the injured employee gets 25 percent of the $25,000, and the employer gets the remaining 75 percent. While at one time efforts were made to reconcile the made whole doctrine with statutory subrogation,9 in AIK Selective Insurance Fund v. Bush,10 the Supreme Court explicitly refused to apply the made whole rule. Further muddying the waters, the subsequent decision of AIK Selective Self-Insurance Fund v. Minton11 used the made whole doctrine to “explicate” the primary functions of statutory subrogation. As the concurring opinion pointed out in
Minton, the discussion of made whole in the opinion is more or less dicta. While the Minton court did not go so far as to overturn the Bush decision, its reasoning should be used in highly disputed subrogation issues or to effectuate change in the law.

Apportionment becomes especially complex if the tortfeasor files a third-party complaint against the employer for contribution. For instance, an injured worker files a product liability suit against the maker of a press that caused his injury. The employer intervenes for subrogation against what it paid out in workers’ compensation benefits. The maker of the press then files a third-party complaint again the employer, alleging fault on the part of the employer for failure to install guards on the machine.

Using the numbers from the previous hypothetical, the jury awards $100,000 in damages to the injured worker, with $25,000 allocated for pain and suffering, and $75,000 for medicals and lost income. The jury further finds the maker of the press 75 percent at fault and the employer 25 percent at fault. The employer is allowed to recoup the percentage of benefits it paid under workers’ compensation that was caused by the negligent third party’s fault. Thus, if the employer paid $75,000 medical and income benefits, the employer can recoup 75 percent of that amount, or $56,250.

The analysis is not over, however. The injured employee can only collect 75 percent of his damages because the exclusive remedy provision bars direct recovery from the employer, even though the employer was found to be at fault.12 Now, the total judgment recoverable by the injured employee is $75,000.

What if the tortfeasor only has $25,000 in assets to cover the judgment? The answer seems to require the reconciliation of Hillman and Bush—not a simple task. Hillman requires us to distribute the judgment pro-rata, so we must compare the portion of the judgment subject to subrogation, and the portion that is not.
The jury awarded $25,000 for pain and suffering, not subject to subrogation. Must we discount the pain and suffering by 25 percent, the portion of pain and
suffering caused by the employer? While the Bush decision rejected the “made whole” doctrine, it did not provide instruction on how to reconcile its reasoning with Hillman. Toss Minton into the equation and the subrogation issues become even more complex.

Keep in mind that UM and UIM coverage can throw another interesting kink into the process. An injured worker cannot recover UIM benefits duplicating workers’ compensation since he could not recover those same damages from the tortfeasor. 13 This is the case even if the workers’ compensation carrier is not a party to the action. Even though the UIM carrier may be entitled to an offset, the workers’ compensation carrier has no subrogation claim against the UIM benefits since payment of UIM benefits is the performance of a contractual obligation, not the payment of damages.14

An Ounce of Prevention is Worth a Pound of Cure

Placing allocation and offsets exclusively into a judge’s hands is a dangerous endeavor in light of the complexities of subrogation law. Being proactive is a better strategy. If you include both the tortfeasor and employer in settlement negotiations, it is possible to engineer a “global settlement” which removes the risk of the trial judge getting it wrong.

If global settlement cannot be reached, try to obtain an assignment of the workers’ compensation carrier’s subrogation rights. Keep in mind, the comp carrier’s waiver of subrogation is not enough. 15 Otherwise, the negligent defendant will still receive an offset for benefits paid by the employer. If the third-party claim settles prior to the workers’ compensation claim, carefully structure the third party settlement language to allocate as much of the award as is realistically possible to pain and suffering. It may not be prudent to allocate the entire third-party settlement to pain and suffering since the ALJ is not bound
by the terms of the agreement.16 Depending on the circumstances, a wiser choice might be to structure the terms of the settlement to include some compensation for lost wages but not impairment of the ability to earn income into the future. While the workers’ compensation carrier would still be entitled to subrogation as to lost wages, the carrier may lose the right to recoup future income benefits paid.

Finally, it is possible to settle the injured worker’s claim against the tortfeasor and include terms in the settlement agreement that specifically exclude the subrogation claim of the workers’ comp carrier.17 As a practical matter, it may be difficult to get the tortfeasor to agree to such an arrangement since the workers’ comp carrier can pursue the claim against the tortfeasor on its own if it so desires.

If you are dealing with workers’ compensation and need help, call 859-559-9947 or message me for a free consultation.

_______________
1 KRS 342.700(1).
2 Id.
3 AIK Selective Self-Insurance Fund v.
Bush, 74 S.W.3d 251, 257 (Ky. 2002).
4 See AIK Selective Self-Insurance Fund
v. Minton, 192 S.W.3d 415 (Ky.2006)
5 Mastin v. Liberal Markets, 674 S.W.2d
7 (Ky. 1984).
6 Id.
7 Whittaker v. Hardin, 32 S.W.3d 497 (Ky. 2000).
8 Id. at 499.
9 See Great American Insurance Companies v. Whitt, 964 S.W.2d 428 and Whittaker v. Hardin, 32 S.W.3d 497
(Ky. 2000).
10 74 S.W.3d 251 (Ky. 2002)
11 192 S.W.3d 415 (Ky.2006)
12 KRS 342.690(1).
13 Cincinnati Ins. Co. v. Samples, 192
S.W.3d 311 (Ky. 2006).
14 G&J Pepsi-Cola Bottlers, Inc. v. Fletcher, 229 S.W.3d 915 (Ky. App. 2007).
15 Krahwinkle v. Commonwealth
Aluminum Corp., 183 S.W.3d 154 (Ky. 2005).
16 See Whittaker v. Hardin, 32 S.W.3d 497 (Ky. 2000).
17 See AIK v. May, 957 S.W.2d 257 (Ky. App. 1997).

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