The Legal Notepad

By: Attorneys Rob Mattingly Kevin Burke and John DeCamillis
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  • Summary

  • Attorneys Robert Mattingly, John DeCamillis and Kevin Burke are based in Louisville, Kentucky. Robert and John are highly successful litigators, while Kevin is a highly sought-after appellate attorney. The objective of The Legal Notepad Podcast is to provide valuable information about Kentucky law, Federal law and topics relevant in our community. The episodes will feature interesting interviews as well as technical discussions of the law and how to improve your trial practice. Robert and John are the founders of DeCamillis and Mattingly PLLC. Kevin is a partner in the law firm of Burke Neal PLLC. They have decades of experience practicing law throughout the state of Kentucky.
    2023
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Social Sciences
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Episodes
  • 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 ...
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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”...
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    1 hr
  • 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...
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    48 mins

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