Preview:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON DARLENE BLAIR Plaintiff, V. GEICO GENERAL INSURANCE COMPANY Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil No. 11-156-GFVT

MEMORANDUM OPINION & ORDER

*** *** *** *** As a result of an automobile accident, Darlene Blair, the plaintiff, has sued GEICO General Insurance Company ("GEICO"), her insurance carrier and the defendant in this case, to collect Underinsured Motorist ("UIM") benefits under her insurance policy. GEICO removed the case to federal court, and here argues that summary judgment is appropriate on two grounds. First, GEICO argues that this case represents the second action arising from the same accident and insurance policy, and because splitting such an action is impermissible under the res judicata doctrine, summary judgment is appropriate. Second, GEICO claims that until the filing of its second motion for summary judgment, it had not received any Rule 26 expert disclosures. As these late and incomplete disclosures did not comport with the Scheduling Order of this Court or the Federal Rules of Civil Procedure, GEICO claims that expert evidence may not be used pursuant to Rule 37(c)(1). Further, GEICO claims that upon exclusion of Blair's expert testimony, summary judgment is appropriate because under Kentucky law medical testimony is required to prove an element of the action. Because GEICO's second argument is correct, summary judgment is appropriate and Blair's

claims are dismissed with prejudice. I. On June 19, 2009, a truck driver, who ultimately proved to be an underinsured motorist, crashed into Darlene Blair allegedly causing injuries to both drivers. Though her discovery materials are vague on the type of injuries suffered, her medical records indicate that immediately following the wreck Blair was treated for neck pain, an ailment for which she had been treated previously, as well as fibromyalgia. Blair filed an application for basic reparations benefits ("PIP") from GEICO, her insurance company. GEICO paid $8,700 of the benefits before it terminated payments upon the recommendation of its physician's evaluation of Blair's injuries. On March 10, 2011, Blair sued GEICO in Laurel County District Court for improper denial of around $1,300 of PIP benefits, which she claimed she was owed from the June 17 automobile accident. Over the next month, Blair apparently settled with the tortfeasor in the amount of his policy limits of $25,000. On April 28, 2011, while her PIP claim was pending in Laurel County District Court, Blair filed an UIM claim against GEICO in the Laurel County Circuit Court because her settlement at the limits of the tortfeasor's insurance policy was insufficient to compensate her for the injuries she sustained in the same June 17 accident. Subsequently, GEICO paid the remaining PIP benefits, but continued to dispute the amount of interest, court costs, and attorney's fees. On February 6, 2012, the Laurel County District Court granted GEICO's summary judgment motion and stated, "all claims of the plaintiff, Darlene Blair, against GEICO arising out of the facts set forth in the Complaint are DISMISSED WITH PREJUDICE." [R. 10-3]. GEICO removed the remaining UIM claim to federal court, and here argues that because 2

this claim was not asserted in the first action, the principles of res judicata bar it from being raised here. Blair counters that at the time of the filing of the PIP claim the UIM claim was not ripe, and even if it was the two claims are so distinct that they need not be brought in the same action. As this automobile accident case continued through discovery, a new wreck developed on the Court's docket. Blair failed to disclose the specific identity of witnesses with discoverable information as required by Federal Rule of Civil Procedure 26(a)(1). [R. 9]. On December 27, 2011, GEICO attempted to secure the identities of Blair's possible expert witnesses so that it could begin to prepare its defense, but was unsuccessful. [R. 15 at 2]. The Court's Scheduling Order required all 26(a)(2) reports from experts to be submitted by the Plaintiff by May 31, 2012, but that date also came and went without any expert disclosures by the Plaintiff. Having received no expert disclosures, on August 31, 2012, GEICO filed its second motion for summary judgment asserting that without experts Blair lacked medical proof and could not prove her case under Kentucky law. Blair finally responded, albeit incompletely, to GEICO's requests on September 17, 2012. [R. 34 at 2]. These responses were not only more than seven months after the deadline set by the requests, but they were also over a month beyond the deadline for the completion of discovery and just two months before the original trial date. [R. 34]. On November 20, 2012, Blair filed a notice of intent to take a deposition of Dr. Debra Eadens. [R. 20]. GEICO filed a motion for protective order on November 29, 2012 to prevent the deposition from taking place due to the many rules and scheduling order violations. [R. 24]. Blair responded with a motion to amend her expert disclosures with which she finally included the expert disclosure information that was more than six months late under the scheduling order. 3

[R. 25]. Magistrate Judge Edward Atkins granted GEICO's motion for a protective order and denied Blair's motion to amend her expert disclosures pursuant to Federal Rule of Civil Procedure 37(c)(1), effectively excluding all of Blair's medical testimony. [R. 34]. He then subsequently denied Blair's motion to reconsider. [R. 40]. With these events having transpired, the applicable question now existing from GEICO's second motion for summary judgment is whether Blair may proceed in this action without any expert testimony.

II. When sitting in diversity, a federal court applies the substantive law of the state in which it sits. Hayes v. Equitable Energy Resourcs Co., 266 F.3d 560, 566 (6th Cir. 2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). However, when considering the issue of summary judgment, a federal court applies the standards of Fed.R.Civ.P. 56 rather than "Kentucky's summary judgment standard as expressed in Steelvest, Inc. v. Scansteel Serv. Ctr. Inc., 807 S.W.2d 476 (Ky. 1991)." Gafford v. Gen. Elec. Co. 997 F.2d 150, 165 (6th Cir. 1993). Under Rule 56, summary judgment is appropriate where "the pleadings, deposition, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The burden is initially on the moving party to inform "the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 4

(1986). The moving party may make this showing by demonstrating the absence of evidence to support one of the essential elements of the nonmoving party's claim. Id. at 322-25. Once this burden is met, the nonmoving party, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Further, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Instead, "the non-moving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 665 (6th Cir. 2001). III. A. In determining whether summary judgment is appropriate under GEICO's first motion, Kentucky's res judicata law governs. See Smith v. Bob Smith Chevrolet Inc., 275 F.Supp. 2d 808 (W.D.Ky 2003). In general, the res judicata doctrine "stands for the principle that once the rights of parties have been finally determined, the litigation should end." Coomer v. CSX Transportation, Inc., 319 S.W.3d 366, 371 (Ky. 2010) (citing Slone v. R & S Mining Inc., 74 S.W.3d 259, 261 (Ky. 2002)). Three elements must be present under Kentucky law for a second action to be barred by claim preclusion: "(1) identity of the parties, (2) identity of the causes of action, and (3) resolution on the merits." Id. (citing Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459 464 (Ky. 1998). Related to the res judicata doctrine of claim preclusion is the rule against splitting causes of action. Id. Kentucky courts have adopted the transactional approach of the Restatement 5

(Second) of Judgments,

Download 25344.pdf

Kentucky Law