The Legal Notepad

Attorneys Rob Mattingly, Kevin Burke and John DeCamillis
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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.

  1. Sep 16

    Is Not Possessing a Valid Driver's License Admissible in an Auto Case?

    Episode 18:  Attorneys Robert Mattingly and Kevin Burke examine whether the absence of a valid driver's license is admissible evidence in standard Kentucky auto accident trials. While KRS 186.640 implies that unlicensed drivers are prima facie negligent, Rob and Kevin explain that Kentucky courts have long rejected this "cruel and almost savage" doctrine. Major cases such as Rentschler v. Lewis and Pierson v. Hartline affirm that a driver's license status is generally irrelevant to determining the specific cause of a collision. The discussion clarifies that these rules apply specifically to standard passenger vehicle accidents rather than commercial trucking or negligent hiring cases. Even if a statutory presumption of negligence exists, it is considered a legal matter for the judge and should not be presented to the jury. Finally, the episode notes that the judiciary's control over evidentiary rules suggests that legislative attempts to mandate the admission of such evidence may violate the separation of powers.  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 That's a wrap on today's discussion.  We hope you found the discussion insightful.  As always, we encourage you to share this episode with your colleagues.  If you'd like the case notes, please sent us an email request and we'll be happy to email you the file including the cases, rules, etc. 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    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."

  2. Mar 27

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

    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, redactions, that sort of thing. Also, dismissals of appeals and what happens under certain circumstances. We also covered RAP 8, which is death substitution and amendment of parties, and what happens if your client dies or a party to the appeal happens to pass and what you need to do, what actions you need to take when that happens. And you do have some pretty significant obligations when that happens. You can't just say, oh, let's just let it ride. Robert Mattingly: Well, as we talked about in 16, that revival and substitution is pretty tricky. So make sure you go back and listen to that. But no, Kevin, that's a great review. Go back and listen to that episode, get your CLE credit. With that, why don't we transition into today's topic? Kentucky Rules of Appellate Procedure – Rule 22 Robert Mattingly: All right, well, here we go. The first one we're going to cover today is Rule of Appellate Procedure (RAP), rule number 22.  In relation to 22, Kevin, why don't you tell us what's popping? Kevin Burke: All right, what's popping? Jack Harlow. There we go. Jack, the local guy, Jack Harlow, local fellow, doing great. We're very, very proud of him. Shout out to him, he's Atherton High School graduate, same school my daughter graduated from, so just had to throw that out there. Robert Mattingly: Hashtag Jack Harlow. And if you're listening, Jack, send us an email. We can tell you how the Rules of Appellate Procedure works. Kevin Burke: Send us some good stuff, free stuff too. Robert Mattingly: Alright, jump in. Tell us what we got. Kevin Burke: Alright, so RAP 22 covers the pre-hearing procedure. So if you've handled an appeal, a civil appeal, you probably know that after you file the notice of appeal, you have to do something within a few days. In fact, 20 days after the notice of appeal, you have to file something called a civil appeal pre-hearing statement. And this has been around for a while. This was included in the 2023 overhaul of the rules. It's basically a form, it's an AOC form administrative office of the court's form, that you fill out. And the most important part of that form is always has been that you have to identify all the issues that you intend to raise in the appeal. Robert Mattingly: And that was a big deal. You had to do this pre-hearing statement, and if you left an issue off that pre-hearing statement under the old rule, you had problems. Kevin Burke: That was a big problem. So these were kind of gotcha issues where if you failed to identify that issue in this just standard AOC form, then you were limited in the issues you could raise later on in your brief when you filed your brief. So it actually limited the review, the standard of review. So you weren't like the court of appeals wouldn't say we're not going to consider it at all, but you were limited to what's called palpable error review. So if you didn't identify that issue, maybe it was a really good issue, could be a summary judgment issue where it would be de novo review, the court would look at it for the first time, that sort of thing. But if you didn't identify it as an issue in your pre-hearing statement and you briefed it later, you were limited to palpable error review, which is a really high, like it's got to manifest injustice, that sort of thing. Robert Mattingly: Yeah, you did not want to be there. Kevin Burke: You do not want to be under the palpable error rock, I can tell you that. So it really limited your ability to argue issues if you didn't identify them in this civil appeal pre-hearing statement. Robert Mattingly: And that's the old rule. That's the rule that I grew up with from the time of law school forward, you've probably done, I mean maybe a thousand times, but making sure you get the pre-hearing statement right. I know we've had discussions and you've talked to lawyers before, they're midway through the appeal and now they're calling you because they didn't do that pre-hearing statement right. And in the committee, the committee gets together. For those that don't recall from Episode 16, Kevin was on the committee that worked these rules that put them together and modified them, et cetera, and made these changes. So what was the committee's discussions on that rule? Why did you decide to change it and how does it work now? Kevin Burke: Yeah, so really the purpose, what the committee looked at was and considered was the purpose of the rule. The purpose of the rule was to expedite settlement discussions. So the identification of the issues gave notice to the opposing party of what issues you intended to brief down the road. And the court of appeals might have a pre-hearing conference where it gets the parties together to talk about potential settlement or maybe streamlining the issues or something along those lines. So the whole purpose was to facilitate settlement. But in practice, what had been happening was that there w

  3. Mar 24

    Kentucky Rules for Appellate Procedure Changes Effective 4-1 -2026 – PART 1

    Episode 16:  Louisville attorneys Rob Mattingly and Kevin C. Burke are happy to provide an opportunity for 30 minutes for Kentucky continuing legal education credit. This PART 1 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 listeners about the process for amending these rules. I understand you're on that committee, right? Kevin Burke: Right.  I've been on the Appellate Rules Committee for about 10 years or so. And so our listeners might, if you've handled an appeal since then, you might know that there was a complete overhaul of the Appellate rules in 2023. And the Appellate Rules Committee actually worked on that complete overhaul of the appellate rules and worked for years before that to get those changes. And then after 2023, what we learned is that there were some rules that just needed a few tweaks, clarifications, that sort of thing. So those are the amendments that are going into effect coming up April 1st. So the Appellate Rules Committee had worked on those, recommended those changes to the Supreme Court itself, and the Supreme Court then adopted those rules which go into effect April 1st. Rob Mattingly: So it sounds like a lot of what we're doing, our listeners would've kept up with the rule changes a few years ago, and this sounds like it was a lot of, okay, they've been in play for a few years, where could we improve, kind of fix some things, et cetera. Is that right? Kevin Burke: That's right. That's exactly what happened. Rob Mattingly: Right. And again, give us 30 seconds to a minute on who's on this committee. Just in general. I think our listeners might find that educational. Kevin Burke: Yeah, so there are representatives from people who handle appeals like me. Rob Mattingly: So, I'm not on the committee. Kevin Burke: Rob. I mean, we could have you.  You've handled a couple. Rob Mattingly: No, no, no. I call Kevin. Kevin Burke: Yeah. So if you're a regular appellate practitioner, we have representatives from just about every walk. So they're criminal appellate practitioners. There's a representative from the Department of Public Advocacy, for example, their appellate division, the Attorney General's office. There's a larger firm representative. There are staff attorneys from the Court of Appeals and the Supreme Court, there's the Clerk of the Court of Appeals and the Clerk of the Supreme Court. And then we have a justice who wrangles everybody and makes sure everybody stays on task and that sort of thing. Rob Mattingly: Well it sounds like it's a great working committee, and while I would say you did this, the committee did this a few years ago, when you all got back together, did anyone say something like, Hey look, we're all back together. Don't call it a comeback. Kevin Burke: I mean that would make sense since we're talking about raps. Rob Mattingly: LL Cool Jay.  LL Cool J. Kevin Burke: I'm with you. I follow you Rob. Rob Mattingly: All right. For those counting, that's number one. Kevin Burke: That's number one right there. But yes, it was a comeback. So we got the gang back together again, and we came up with these recommendations, these rules changes here. Rob Mattingly: Now was that Cool ant the Gang? Kevin Burke: It was Cool and the Gang, although they're not rap really, I mean more R&B sort of thing, but that's okay. It's similar. It's close enough.   Rules of Appellate Procedure Rule 2 Rob Mattingly: Let's keep the corny jokes going. But let's also get down to the real rule here. I understand that you would like to start with RAP rule of appellate procedure number two. Kevin Burke: Right. RAP 2. So the major change here, and again for the attorneys out there, if you go back and look at your emails, you got an email from the KBA with these rule changes.  Go back and look at the beginning of January. It'll be in your inbox if you haven't deleted it. But it has the amendments in there. This was the first major change to the rules. And the main change out of RAP 2 is when you have multiple appellants.  So Rob, I think you and I talked about this, not every case is one appellant appeals, one person appeals. Well, you might have four or five plaintiffs for example, or four or five defendants appealing in the same case. And the question is how are those handled? And the original rule wasn't very clear about how those cases can either be consolidated or how they're heard together in the court of appeals, by the same panel of judges, you have three judge panels. So this rule just clarified that process and how somebody who's taking an appeal to the court of appeals can make sure other appeals that are similar to theirs can be heard together by the same panel, or maybe they want it separate. So this addresses that. Rob Mattingly: Yeah, so let me make sure the listeners understand me because this rule really does affect them a lot. There's two major examples that it would apply to. One, you have a semi-truck driver and he's drunk and he runs into another vehicle that stopped on the highway because it broke down and that vehicle was a commercial motor vehicle (I'm just creating a scenario with lots of parties) and someone gets

  4. 09/09/2025

    Using a Trust to Preserve Client Benefits After a Bodily Injury Settlement

    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."

  5. 06/10/2025

    Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode)

    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 Structures (ABS).  Utah approved a 7-year regulatory sandbox.  This will provide room for experimentation.  Different business structures could involve the delivery of business services.  They could be owned my nonlawyers, a mix of lawyers and nonlawyers and situations in which nonlawyers are providing legal services under strict regulation and oversight.  Utah is considered a ABS Plus ULP.    In Arizona, however, the legal work is still required to be done by a lawyer, even though the entire ABS could be owned by nonlawyers.  A regulatory structure is involved, requiring the ABS to appoint a compliance lawyer.  Washington state, in December of 2024, issued an order with a time-bound, data-driven pilot test of 5.4.  It will allow companies and non-profit entities to offer legal services under carefully monitored conditions, according to the Washington State Bar Association, December 13th, 2024.  Nina suggests this will be similar to Utah's approach. The Stanford Law Review Center on the Legal Profession, published the Legal Innovation After Reform, in September, 2022.  It found the legal reforms were spurring substantial innovation in 5 key ways. 1st – Traditional law firms are making changes…to expand. 2nd – Law companies practicing by providing legal services with non-lawyer ownership. 3rd – Non-Law companies expanding into law…"one-stop-shops." 4th – Intermediary platforms create marketplaces for consumers and lawyers. 5th – Entities using nonlawyers and tech to practice law. There were several notable findings.  In state courts, in 75% of the civil cases, at least one party is unrepresented (usually the defendant).  These individuals are navigating the legal environment without legal counsel.  The changes to 5.4 could address issues related to access to justice.  Rob points out that improving access to justice is terrific.  However, VCs and other investors might focus more on personal injury matters, rather than lower-margin civil cases.  Nina agrees and points to an article, The Pitfalls and Promises of Nonlawyer Ownership of Law Firms (Yale Law Journal Forum, Oct. 19, 2022).  It stated that a profit-motivated company or corporation might have a misalignment with the core values of the legal profession.  There's risk of negative outcomes for clients.  While the clients are receiving access to justice, other harms may occur.    The article notes attorneys spend hours in law school in professional ethics, stressing the duties owed to clients.  There are serious consequences for violating those rules.  Nonlawyers do not face the same consequences.  The root of this is about the public trust regarding services to clients.  We want to avoid a system in which different people get different levels of representation.  Maintaining Ethical Standards in a Commercial Environment Stanford urges us to keep in mind 2 questions:         What types of innovation in legal services delivery model will different reform approaches generate?         Who will be served by the new market entrants? Kevin observes the dark side of this innovation is how tech-savvy commercial entity could enter a jurisdiction by selling the change as good for the underserved.  All the while, having the ulterior motive of competing with medium to large-sized firms.  Have other states set up task forces to consider this change?  If so, do they include business professionals and advisors who can advise lawyers on the business-end of this innovation and how it might affect us? Nina reports that other states have setup task forces, and some have said no.  California, Florida, New York, Illinois and New Jersey have said no.  In Arizona, KPMG has recently been approved to be an ABS.  They are one of the Big-4 accounting firms.  They have a global presence and actively practice law outside of the US.  KPMG is precluded from offering legal services to any company they might audit (in Arizona).  The Impact to Solo and Small Firm Practitioners Nina explains there are multiple business structures that might be interesting to the plaintiffs bar.  Rocky Mountain Justice, in Utah, is a plaintiffs firm that merged with a radio marketing company.  The goal was to enhance their marketing capacity.  Lawyers provide the legal services, while nonlawyer partners assist in the advertising and marketing. Nina provides an example from the UK where a private equity firm was allowed to enter smaller firms in certain jurisdictions.  The Stowe Family Law Firm was established in 1982 and formed 10 offices.  In 2017, they were acquired by the private equity firm, Living Bridge.  As a result, they double their number of offices and gained 150 clients a month.  Access to capital and economies of scale were key factors in the growth.  Zero Attorney Fees was a traditional, plaintiffs law firm that entered the Utah sandbox.  It teamed up

    Reimagining SCR 3.130(5.4): A Look at Jurisdictional Approaches to Non-Lawyers in Law (Ethics Episode)

  6. 06/04/2025

    Direction of PIP Benefits for Medical Expenses

    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.  The Court is using the general assembly's intent as its north star.  Additionally, there's language addressing any ambiguity.  The Court will rely on statutory interpretation to clear up the ambiguity and resulting confusion. There's also a statement that, "the Legislature meant exactly what said and said exactly what it meant."  Ideally, the general assembly will use plain language, however, as Kevin notes, it can't envision every possible scenario.  When applied to specific circumstances, ambiguities can arise.  These are termed, "latent ambiguities."  Page 10 – "…Look to the common meaning of the particular word chosen…"  This again emphasizes the objective of using plain language.  Issues arise when there are multiple definitions of words. Additionally, Adam noticed "…We must not be guided by a single sentence of a statute.  We must look to the provisions of the whole statute in its object and policy."  Kevin explains this emphasizes the importance of context.  How the Court Used these Tools to Interpret the Elements of Loss It's important to remember the Supreme Court is talking to multiple audiences, beyond the parties themselves.  The Court wants to show its work, so to say.  They noted the word "loss" is defined in the MVRA.  However, there is no definition for "element of loss."  The court said element is ambiguous.  It also considered other relevant statutes and how they've changed.  To resolve the issue, the considered the intent of the MVRA.  It's to protect accident victims, as listed at the outset of the Act.  This drives the analysis, regarding how "elements of loss" are defined.  Therefore, the elements would include the broad categories, such as medical expenses and lost wages, but also the narrow categories, such as the EMS bill, the chiropractor bill, the hospital bill (the sub-categories).  Based on the analysis, the Court found the claimants were within their rights to direct the PIP benefits paying for individual elements of loss.  For instance, pay the EMS bill, but not the hospital bill.  The health insurance might be used to pay the hospital bill, instead. Page 20 – "…but we are upholding [the court of appeals] for different reasons."  In this case, the Supreme Court agreed with the court of appeals, but while they arrived at the same answer, the got there via different paths.  Kevin notes this isn't all that uncommon in the appellate world.  How Did the Court Decide on the Remaining Issues? There were still questions involving the interest for the delay of payments and the attorney fees.  The Court did find that the claimants were due interest, based on the delayed payments.  There are 2 interest rates that might apply (12% and 18%).  The trial court found Erie acted without reasonable foundation, therefore the court assessed the 18% interest rate.    The circuit court awarded attorney fees, as well.  This was for the first opinion and for the second opinion.  The court of appeals affirmed both the interest rates and the fees.  The Kentucky Supreme Court said the 18% was not warranted, because the question was unsettled.  Subsequently, it assessed the 12% interest rate.  Because the law was unsettled, the Court denied the attorney fees.  That's a wrap on today's discussion.  We hope you found the discussion insightful.  As always, we encourage you to share this episode with your colleagues.  If you'd like the case notes, please sent us an email request and we'll be happy to email you the file including the cases, rules, etc. 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    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."

    Direction of PIP Benefits for Medical Expenses

  7. 05/26/2025

    Liability for Letting a Minor Drive a Vehicle (KRS186.590)

    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 checking and savings accounts, etc.).    Are You Protected if the Car is in the Child's Name? Kevin explains that this really depends upon the facts.  Assuming the car is titled in the child's name and there is insurance, it's possible the parents could escape liability, but it's not an automatic guarantee.  Kevin advises parents to simply assume they will be held liable.  Because Section 3 mentions anyone who gives or furnishes the vehicle to the minor, there will be questions about how the minor go the vehicle.  Did the parents help?  There are many considerations, so don't assume you won't be held liable. Applicable Case Law in Kentucky Again, we're talking about KRS186.590. It consists of 3 sections.  Section 1 states, the minor's negligence "shall be imputed to the person who signed the application.  That person shall be jointly and severally liable with the minor for any damages caused by the negligence."  Section 2 can relieve you of the liability.  It refers to keeping insurance on the vehicle in an effort to remove the liability from the individual, such as the parent.  Section 3 is very broad.  This states that if you own the vehicle and allow or knowingly permit the minor to drive it, you're responsible.  It goes on the say "and, any person who gives or furnished a motor vehicle to a minor shall be jointly and severally liable." Bottoms v. Smith (KY Court of Appeals, 2022) A grandfather is watching over his visiting 15 year old grandson.  While the grandfather is napping, the minor (who doesn't have a license) borrows the grandfather's truck.  The minor hits a pedestrian.  The pedestrian sues the grandfather.  This is a Sub-Section 3 issue.  The grandfather owned the truck.  The defendant motioned for summary judgement, because he was napping when the minor took the vehicle, without permission.  The Nelson circuit court granted the motion, noting that permission was not given to the minor.  The court of appeals affirmed the decision emphasizing the statue states "anyone who knowingly permits…"  This did not apply to the situation, because the boy took the keys while the grandfather was napping.  Commonwealth Fire and Insurance Company v. Manis (KY Court of Appeals, 1977) This is a permissive use case, including a dec-action. We'll focus primarily on the permissive use issues.  The plaintiff was a minor passenger.  The car was driven by a 16 year old who didn't own the car.  The mother gave permission to the daughter to drive the car.  The daughter gave permission to the 16 year old, who caused the accident.  The jury had to decide the permissive use.  They found decided yes, the mother was liable under Section 3.  However, the father of the 16 year old driver had a Safeco insurance policy.  The father was found not to be liable (under Section 1 or Section 3), even though he had signed the application for his son's license.  Practical Pointer:  Rob recommends that parents explicitly tell their minor drivers that they are not allow to let any other minors drive the car. This may help to counter a permissive use claim.  Parents can specifically revoke permission, which this action satisfies.  As always, it's very fact dependent, but worth doing.  State Auto Insurance Company v. Reynolds (KY Court of Appeals, 2000) This case involves an emancipated minor.  A 17 year old daughter is involved in a wreck, resulting in two fatalities (passengers in the 17 year old's vehicle).  The car was owned by his father.  The minor was a co-signer on the loan and was allowed to drive the car.  One of the estates for the deceased passengers had under insured motorist coverage.  The insurance company paid the UIM claim and sought to recover from the father.  They argued the father was liable under Section 3.    The father argued he had no control over his emancipated daughter.  The circuit court agreed with the father.  The insurance companies appealed, using the argument the statute makes no mention of emancipation.  The 17 year old is still considered a minor.  The court of appeals determined the father was the owner of the vehicle and knowingly permitted the minor to drive the car.  The court found the issue of emancipation wasn't relevant.  The language of the statue imposes liability on the father.  Rob notes the vehicle was in the father's name.  He could have transferred the title into the name of the child.  There were steps he could have taken to mitigate liability. Be sure to listen to Episode 13, which deals with statutory interpretation. Bryan v. Bear (KY Court of Appeals, 1977) This involves Section 1 and Section 3.  A minor boy was working with his neighbor.  The neighbor let the boy use his truck to get some shovels from the house.  The boy causes a wreck.  His father had signed for his driver's license and had insurance.  The plaintiffs sued the minor, the father (Sectio

  8. 11/25/2024

    Kentucky's Firefighter's Rule (First Responders)

    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 recover damages from the owners.  The Firefighter's Rule was applied by the Court.  It emphasized the assumption of risk by the licensee (e.g. the firefighters), as well as the fact that they are public employees.  The Court did however recognize the improperly stored cleaning solvents could have created an unusual hazard.  Kevin notes when the Court recognized the Rule, it immediately recognized an exception.   Note:  The elimination of the assumption of the risk was overturned later, in 1967, in Parker vs. Redden.    The Hawkins Case This is Hawkins vs. Sunmark Industry, Inc., 727 S.W.2d 397 (Ky. 1986).  The Supreme Court has moved away from the assumption of the risk and that other parties may have liability.  Kevin also notes that comparative fault was recognized in 1984.  In Hawkins, firefighters were injured at a fire at a gas station.  There were numerous claims regarding liability for the injuries and deaths against the motorist who hit the gas dispenser and other parties.  The Courts maintained that the firefighters could not recover from the motorist.  They also could not recover damages from the owner or the operator of the station.  However, the Court said a products liability claim could be pursued against the manufacturer of the gas dispenser.  The plaintiffs raised a constitutional challenge based on Kentucky jural rights (Section 14).  The Court considered it but said the common-law defense of the Firefighter's Rule predated our 1891 State Constitution.  No case was cited by the Court.  However, Kevin and Rob point out that the Gibson opinion was in 1892.    The Salle Case In Salle vs GTE South, Inc., 839 S.W.2d 277 (Ky. 1992), a paramedic working for the Lexington-Fayette Urban County Government, responded to a call to help an assault victim.  The paramedic fell in a trench dug by GTE South, while he was exiting the ambulance.  A suit was filed based on the hazard created by GTE's trench.    The Kentucky Supreme Court rules the paramedic to bring a claim, regardless of the Firefighter's Rule.  The Court created a 3-part test.  First, the Court recognizes the policy of encouraging property owners to engage first responders when emergencies occur.  Second, the public employees are at the scene to engage a public risk.  Three, the policy extends ONLY to that risk.    In the Salle case, it failed "prong one" because GTE was not the property owner or occupier of land.   They weren't the one who called for help.  Rather, it was the assault victim.  It also fails "prong three" because the injury was unrelated to the specific risk (i.e. the assault).  Therefore, the Court ruled the paramedic could recover from GTE in a premises liability claim.  The Norfolk Southern Railway Case In Norfolk Southern Railway Co. vs. Johnson, 554 S.W.3d 315 (Ky. 2018), a police officer, employed by the Danville Police Department responded to a call involving a suspicious person, who was possibly intoxicated.  Upon arrival, the suspect flees onto Norfolk Southern's property.  The office falls down an embankment while pursuing the suspect.  The officer files a claim against Norfolk Southern, based on mismanagement of the embankment, which resulted in the fall and related injuries.  The "risk" was the investigation of the suspect.  One could argue the ensuing chase was unrelated to the mismanaged embankment.  There was no connection between the suspect and the railway.  The Kentucky Supreme Court applied the 3-factor test.  Norfolk Southern was an owner/occupier of the defect land.  The incident involved a public employee.  The court ruled that the officer engaged the specific risk and the injury arose from that risk (i.e. the investigation/pursuit of the suspect).  Therefore, the Firefighter's Rule applies. Wooster Motor Ways, Inc. vs. Gonterman The Wooster Motor Ways, Inc. vs. Gonterman (2023-SC-0062-DG) case involves a Kentucky State Trooper (Michael Gonterman), who responded to a situation on I-71.  Rob comments that this opinion, issued on 10/24/24, lays out what will probably be Kentucky's Firefighter's Rule for many years to come.  The Parties Involved John Crawford was driving a tanker truck and stopped in the emergency lane to remove 2 dogs from the interstate.  He called 911 to alert them to the issue. The 911 dispatcher gets KSP Trooper Michael Gonterman to respond.  He arrives at the scene and parks in the emergency lane.  Crawford and Gonterman are able to remove the dogs from the interstate.  Both men are walking single file back to their respective vehicles.    Kim Perkinson, driving a Nissan Altima approaches the scene.  James Baumhower, driving a box truck for EC Delivery is behind Ms. Perkinson.  Teddy Seery is behind Baumhower driving a tractor trailer for Wooster Motor Ways.  Traffic in the area is slowing down. Perkinson begins slowing down and moves to the left lane.  Ba

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About

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.

Information

  • Creator
    Attorneys Rob Mattingly, Kevin Burke and John DeCamillis
  • Years Active
    2023 - 2026
  • Episodes
    18
  • Rating
    Clean
  • Copyright
    © 2023
  • Show Website
    The Legal Notepad