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Civil Litigation Blog

SCOKY Discusses Narrow Exception to Waiver of Affirmative Defense Not Pled in Answer to Original Complaint

In a recent decision, the Kentucky Supreme Court noted the general rule that failure to plead an affirmative defense in response to the original complaint precludes the assertion of that defense in response to an amended complaint, but found an exception where the ability to raise a defense not previously pled was effectively reinstated by ... Read More...
Posted in: Civil Procedure  
| May 5, 2015

Plaintiff’s Attempt to Reserve Claims against Non-settling Dram Shop Defendant Felled by Circuity of Action

In Butt v. Independence Venture Club, Ltd., 453 S.W.3d 189 (Ky.  App. 2014), the Kentucky Court of Appeals held that the plaintiff’s entry into a settlement agreement including a hold harmless provision with a drunk driver and his insurance carrier precluded maintenance of a dram shop liability claim against the owner of a bar where ... Read More...
Posted in: Civil Litigation  
| April 21, 2015

In a Capital Murder Case, SCOKY Upholds Conviction Notwithstanding JeffCo’s Noncompliant Voir Dire Process — Where Defendant Agreed to It; Also Discussed Preservation of Error for Denial of Juror Challenge

In a May 2014 post we discussed the case of Oro-Jimenez v. Com. 412 S.W.3d 174 (Ky. 2013), in which the Kentucky Supreme Court held, under a palpable error review standard, that the voir dire process used in Jefferson County, which does not follow the method prescribed by Kentucky court rules and administrative procedures, did ... Read More...
Posted in: Civil Procedure  
| April 1, 2015

COAKY Panel Holds Jury Gets General Duty Instruction for Informed Consent Claim

In a recent 2-1 decision (see it here) by Chief Judge Glenn Acree, the Kentucky Court of Appeals held in Horsley v. Smith that the jury instruction in a medical negligence claim based on an alleged lack of informed consent should be a general professional duty instruction and not a separate instruction outlining specific legal ... Read More...
Posted in: Civil Procedure  
| March 6, 2015

COAKY Holds Prejudgment Interest, Unlike Attorney’s Fees, Need Not Be Requested in a Pleading

The Kentucky Court of Appeals recently held that a party making a claim for recovery of liquidated damages that would give rise to entitlement to prejudgment interest need not plead a claim for such interest, since prejudgment interest on liquidated damages is awarded as a matter of right under Kentucky law. Hall v. Rowe, 439 ... Read More...
Posted in: Civil Procedure  
| February 16, 2015

SCOKY Holds Witness Separation Rule Should Not Be Lightly Discarded for an Expert Witness

In a recent opinion in a criminal case, Spears v. Commonwealth of KY, the Kentucky Supreme Court held that the rule on separation of witnesses, KRE 615, applies to expert witnesses, and that the party seeking an exemption from sequestration for an expert under KRE 615(3) bears the burden of making a showing that the expert’s ... Read More...
Posted in: Civil Procedure  
| February 10, 2015

SCOKY Holds Refusal to Admit a Contested Fact Later Proved by Opponent Does Not Justify Attorney Fee Award

A recent decision by the Kentucky Supreme Court clarified Kentucky law on the issue of a litigant’s entitlement to attorney’s fees when it prevails on an issue that an opponent failed to admit in an answer to a CR 36 request for admission. In Rumpel v. Rumpel, 438 S.W.3d 354 (Ky. 2014), the Court, in ... Read More...
Posted in: Civil Procedure  
| February 6, 2015

SCOKY Issues Revised Administrative Rules Governing eFiling; AOC Adds More Counties to eFiling

The Kentucky Supreme Court recently issued revised administrative rules governing electronic filing (“eFiling”), effective January 15, 2015. The updated rules, which supersede those issued in May 2014, may be accessed at this link: http://courts.ky.gov/courts/supreme/Rules_Procedures/201502.pdf Among the revisions are: new rules permitting eFiling in criminal cases; a provision that an error by an eFiler must be ... Read More...
Posted in: Civil Procedure  
| February 2, 2015

SCOKY Issues Important Guidance on Causation Instruction

In an opinion issued in December 2014 that recently became final, the Kentucky Supreme Court issued important guidance on proper jury instructions concerning causation of a plaintiff’s injury or death. In Branham v. Rock, 2012-SC-707, a decision authored by Justice Michelle Keller arising out of a medical malpractice action, the Court held that a so-called ... Read More...
Posted in: Civil Procedure  
| January 26, 2015

SCOKY Limits Trial Court’s Authority to Make Equitable Award of Attorney’s Fees or Impose Fees as Sanction

The Kentucky Supreme Court recently limited the authority of Kentucky trial courts to make awards of attorney’s fees for equitable reasons or to impose attorney’s fees as a sanction. The Court, noting that attorney’s fees are not recoverable litigation costs under CR 54.04 unless they are provided for under a contract between the parties or ... Read More...
Posted in: Civil Procedure  
| November 20, 2014

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About the Authors

David Kramer is a Partner at DBL Law and is Chair of the firm's Civil Litigation Section. He is the principal author of Thomson/West's two-volume treatise on the Kentucky Rules of Civil Procedure. The treatise, which is updated annually, is widely regarded as the leading reference on the Kentucky civil rules.

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