Épisodes

  • 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 h et 21 min
  • 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 h et 9 min
  • 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 min
  • 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 h et 13 min
  • 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 h et 16 min
  • 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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    1 h
  • Recovery of Social Security Benefits in a Wrongful Death Action

    Recovery of Social Security Benefits in a Wrongful Death Action
    Feb 13 2024
    Episode 9: Louisville attorneys Rob Mattingly and Kevin C. Burke explore the issue of whether social security disability benefits, or other entitlement-type programs, can be recovered in a wrongful death claim. Lauren received this question from the listeners. Rob and Kevin will provide insights, based on Kentucky law, in today's episode. 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: Are social security benefits recoverable in a wrongful death claim? Before answering the question, context is important. Let's establish a foundation for the discussion. Destruction of Power to Labor and Earn Kevin begins by noting that wrongful death in Kentucky isn't just based on case law and/or statute. It's actually provided for in Kentucky's Constitution. Section 241, states, "Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death." As a result, we now have KRS 411.130. Included in this is the provision for punitive damages if the act was willful or involved gross negligence. Aull v. Houston This is a 2010 Kentucky court of appeals case. It involved the death of a 5-year old child. The child was born with a severely disabling disease. The child obviously had no earning capacity. The original complaint involved a medical malpractice action involving immunizations that brought about the death of the child. The child had been receiving supplemental security income (SSI) benefits. The question was whether those SSI benefits were recoverable as part of the wrongful death action. In circuit court, the parties briefed it for partial, summary judgement. The defendant filed the motion solely focusing on the child's destruction of the child's power to labor and earn money. The plaintiff's estate admitted there was no way the child would earn money through labor. The court ruled social security benefits, under the facts of this case, were not recoverable in the wrongful death action. The parties asked the circuit court to certify the ruling as final and appealable with no just reason for delay, under civil rule 54.02. The court certified it. Remember, this only resolved one element of damages in the case. Kevin notes the case went to the court of appeals as a case of first impression for Kentucky courts, but not in federal district court applying Kentucky law. Lauren comments that the court cites Meinhart v. Campbell. This was a 2009 federal district court case involving a wrongful death. The deceased was receiving social security disability insurance benefits (SSDI), prior to the death. The court was dealing with a case of first impression, in this instance. The court held the SSDI benefits payments could include the disability benefits in determining the wrongful death damages. The decision was likened to other cases wherein a pension could be recovered in wrongful death action. The Kentucky appellate court in Aull v. Houston recognized that federal district court opinions have only persuasive value in Kentucky appellate cases. It viewed social security benefits are not an element of the destruction of the power to labor and earn money. Therefore, "social security benefits" can't be added to the damages. Rob comments that Aull never distinguished between the different types of social security benefits. Savage v. Co-Part This is a 2023 Kentucky Supreme Court case. Rob notes the procedure in the case is difficult of follow, but it's relevant for the discuss of this episode' focus on social security benefits. It did some very important things for Kentucky families. Rob and Kevin specifically recognize the work done by the Richard Breen Law Offices, in Louisville, for the work they did on this case. They also recognize Calloway County attorney Jeff Roberts who wrote the amicus brief on this specific issue. Savage v. Co-Part is a wrongful death case involving a car wreck. Mr. Savage was receiving social security disability insurance payments (SSDI). The Kentucky court of appeals questioned Aull v. Houston. Did the opinion in that case actually extend to SSDI? The court did an analysis and essentially flagged it for the Kentucky Supreme Court. Once it was accepted for Discretionary Review, the Kentucky Justice Association urged Jeff Roberts to file an amicus brief. The Kentucky Supreme Court examined the reasoning behind the court of appeals' decision in Aull and determines that the reasoning does not apply to social security disability benefits. The Court found that SSDI is not an entitlement program, unlike supplemental security income (SSI). In fact, the court of appeals opinion in Aull cited 2 cases, which were actually ...
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    48 min
  • Admissibility of Police Reports and Their Content

    Admissibility of Police Reports and Their Content
    Jan 31 2024
    Episode 8: Louisville attorneys Rob Mattingly and Kevin C. Burke discuss whether police reports are admissible. It's a concern client often bring up during initial conversations with their attorneys. 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. Lauren begins by commenting on the number of responses to the recent poll asking about topics and other subject matter the audience would like to Rob and Kevin to address in upcoming episodes. The feedback was terrific. As we dive into the topic, Kevin brings up a favorite answer given by many attorneys, "Well, it depends." The general rule is that, in Kentucky courts, police reports are inadmissible as hearsay. Kentucky Rule of Evidence 803 contains the basis for what is not excluded by the hearsay rule. In sub-section 6 it lists records of regularly conducted activity (e.g. the business records exception). Sub-section 8 deals with public records and reports (e.g. the public records exception). Specifically, 8(A) focuses on investigative reports by police and other law enforcement personnel. This establishes police reports are not an exception to the hearsay rule. Manning v. Commonwealth Kevin summaries this Kentucky Supreme Court case, from the year 2000, which directly cites to KRE 803(6). In Manning vs. Commonwealth, the defendant in the murder case wanted to introduce the police report. The report identified someone other than the defendant as the possible perpetrator, based on the statements of an unidentified witness. The trial court ruled the police report was inadmissible as hearsay. The Supreme Court affirmed the decision. It was properly excluded under KRE 803(6). The Court also cites the Kentucky Evidence Law Handbook. Rob comments about the double hearsay issue because the report itself is hearsay, about someone else who's making hearsay comments. The Supreme Court also cited Prater vs. Cabinet for Human Resources, dealing also with KRE 803(6). The opinion did note that the defense was able to ask the officer about the conversation with the unidentified witness, during cross-examination. That testimony was admissible, even though the actual police report was not. Rob notes that they didn't have to consider the admissibility under KRE 803(8)(A), because it was obvious. However, the question was whether KRE 803(6) applied. Gorman v. Hunt This is a civil case. Gorman v. Hunt is another Kentucky Supreme Court decision from 2000. It's often referred to as the "posed photograph case." This was an automobile verses pedestrian case. The issue was whether posed photographs could be admitted and shown to the jury. Rob clarifies the case serves as an example of whether someone can recreate the area and taking photographs of the area. They've posed the scene. This case refers to an Advanced Life Support (ALS) Report, which would have been prepared by EMS personnel. In the opinion, it's not referred to as a police report, but it's functionally the same thing. The plaintiff wanted to use the ALS run report to show the defendant driver was exceeding 50 mph, at the time of the collision. The speed was based on testimony from unidentified bystanders. At trial, the court ruled the ALS run report was inadmissible. The court of appeals affirmed the verdict. The Supreme Court took it up on discretionary review. The Court ruled that the trial court had ruled properly with regard to the ALS run report. Campbell v. Marcum This 1968 automobile accident case addressed the admissibility of police reports and the information contained therein. This collision involved two vehicles. A Kentucky State Trooper completed the police report. The question was whether the trooper could read from his report, while on the stand. The defendant wanted this testimony from the trooper. However, the trial court refused to allow a reading from the police report. This issue was appealed. The appeals court affirmed the trial court's ruling that prohibited the trooper from reading the report aloud. Kevin comments that no authority was cited regarding the admissibility of the report. Instead, a general treatise (not a Kentucky treatise) was used. It did not directly address hearsay. Admissions by Parties and Prior Inconsistent Statements Rob and Kevin will discuss two cases dealing with this topic. Again, clients often have questions about police reports, how they are going to be used and how to get statements either clarified or corrected. Day v. Commonwealth (2007) This is a criminal case involving a DUI conviction. Tammy Day was given a 7-day sentence with work release. During this time, her daughter was in a car wreck. Tammy petitioned for time to tend to her daughter. The district court allowed it....
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    1 h et 1 min