Joseph H. McKinley jr

The case involved Scott Thornton, a former field representative for Western & Southern Life Insurance Company, who sued the company and its benefits plan after termination due to neck injuries and surgeries, seeking long-term disability benefits under an ERISA-governed self-insured plan, vested benefits under a Long Term Retention Incentive Plan, unpaid wages under state law, and damages for appropriation of his name and likeness. The court granted defendants' motion for summary judgment on the ERISA claims (finding the condition was preexisting under plan definitions and did not meet eligibility timing or total disability standards based on medical evidence including an IME), the wage claim (as Thornton qualified as an outside salesman exempt from the statute), and other counts, while denying summary judgment on the appropriation claim. It also denied Thornton's cross-motion for LTIR benefits, as he was not found long-term disabled per the plan's terms. The case was referred for settlement on the remaining claim.

labor & employmentbusiness & regulatorytorts & liability

This case involved plaintiff Madison Capital Company, LLC, as assignee of a secured creditor's position, suing defendants S & S Salvage, LLC and River Metals Recycling, LLC for conversion, trespass, and wrongful withholding after the defendants purchased mining equipment collateral that had been sold without authorization by the original borrowers. The court had previously granted partial summary judgment to the defendants, and Madison moved to reconsider the dismissal of its conversion claim while the defendants sought summary judgment on the remaining claims. The court denied the motion to alter its prior order and granted summary judgment to the defendants on the trespass and wrongful withholding claims. It reasoned that all claims were barred by Kentucky's two-year statute of limitations for conversion of personal property under K.R.S. § 413.125, which began running no later than August 2006 when the original creditor knew or should have known of the unauthorized sales, well before the suit was filed in November 2008. The court treated the other claims as derivative of the conversion claim and thus subject to the same limitations period.

propertyproceduretorts & liability

This case concerns a dispute over benefits under a supplemental cancer insurance policy purchased by plaintiffs Michael and Carol Gough from Transamerica Life Insurance Company's predecessor, where the insurer changed its interpretation of 'actual charges' from the full billed amount to the discounted amount actually paid and reduced payments accordingly without prior notice. Plaintiffs sued for breach of contract seeking the difference in benefits after the insurer paid only a portion of claimed amounts for Carol Gough's cancer treatment. The court addressed cross-motions for summary judgment, a motion to strike a sur-reply, and a motion seeking to apply another judge's memorandum opinion from related litigation as controlling. The opinion sets forth the summary judgment standard under Fed. R. Civ. P. 56 and reviews background facts, including a nationwide class action settlement in Runyan v. Transamerica that potentially binds the plaintiffs and resolves identical coverage issues.

business & regulatoryhealthcareprocedure

The case concerned a non-tenured teacher who alleged that her school district failed to renew her one-year contract in retaliation for her husband's reports of sexual harassment against her stepdaughter by another teacher, asserting claims under Title IX and the First and Fourteenth Amendments via 42 U.S.C. § 1983. The defendants moved for summary judgment, arguing among other points that liability required proof of an official policy or custom. The court addressed the motion by clarifying that the Monell policy-or-custom standard applicable to § 1983 municipal liability does not govern Title IX retaliation claims, recognized that Title IX standards are analyzed under Title VII principles, and noted the potential availability of a third-party retaliation theory following recent Supreme Court precedent while declining to resolve that issue without further briefing.

civil rightslabor & employment

This case concerns a secured creditor's claims against salvage companies after collateral mining equipment (Joy Longwall System shields) was sold without authorization as scrap metal. Madison Capital, having acquired the loan position from Community Trust Bank, sued S & S Salvage and River Metals Recycling for conversion, negligence, trespass, replevin, and related claims arising from the 2005 transactions. The court denied Madison's summary judgment motion on conversion and negligence, granted the defendants summary judgment on conversion, negligence, replevin, and constructive trust claims due to the statute of limitations and lack of evidence on certain elements, but denied summary judgment on trespass and wrongful withholding claims as well as the laches defense because genuine issues of material fact remained regarding timing and prejudice.

business & regulatorypropertytorts & liability

This case involved investors who purchased unregistered securities from Heartland Resources, Inc., an oil and gas company, suing Heartland's securities lawyer Hunter Durham for alleged misrepresentations and omissions in the private placement memorandums he drafted or reviewed, including failures to disclose that the securities were not exempt from registration and that Heartland's principals had prior regulatory prohibitions. Durham moved for summary judgment on claims under Kentucky securities statutes, arguing he was not a seller or agent liable for the violations. The court granted the motions, holding that Durham did not qualify as an agent under K.R.S. § 292.480(1) or (4) because he only provided legal services like drafting documents and was not involved in the solicitation or sale of securities to the plaintiffs, and that any post-investment conversations or other theories did not create liability. The court also noted that related claims under other securities provisions were dependent on the primary liability findings and thus failed as well.

business & regulatoryprocedure

This case involved American Dairy Queen Corporation (ADQ) suing Fortune Street Research and Writing Inc. and its owners for breach of franchise operating agreements after the defendants began operating competing Rally's restaurants while running Dairy Queen locations in Kentucky. The agreements included non-compete clauses and a liquidated damages provision requiring payment of two years' worth of licensing fees upon termination for default. After the defendants failed to sell their Dairy Queen restaurants by the deadline in a subsequent Mutual Cancellation and Release Agreement, ADQ terminated the franchises and sought damages. The court granted ADQ's motion for summary judgment, finding no genuine issues of material fact on the enforceability of the agreements, the breach, or the validity of the damages claim, and awarded $99,722.56 plus attorneys' fees and costs.

business & regulatoryprocedure

The case involved a dispute over the interpretation of benefits under a supplemental cancer insurance policy issued by Life Insurance Company of Alabama to Italo Pedicini. The policy provided benefits based on "actual charges" for treatments like chemotherapy and radiation, but the insurer changed its practice to pay based on the discounted amount accepted by providers rather than the billed amount. The court granted partial summary judgment to the plaintiff on his breach of contract claim, finding that the term "actual charges" was ambiguous and must be construed in favor of the policyholder based on the policy language and the company's prior course of performance. The defendant's motion for summary judgment was denied.

business & regulatoryhealthcare

Tobacco manufacturers sued the United States challenging multiple provisions of the 2009 Family Smoking Prevention and Tobacco Control Act that restricted cigarette advertising, required new graphic warning labels covering half of packaging, limited modified-risk product claims, banned outdoor ads near schools, prohibited brand sponsorships and free samples, and allowed stricter state rules. The district court ruled on cross-motions for summary judgment, granting and denying each motion in part. Applying the Central Hudson test for commercial speech regulations, the court upheld some limits as directly advancing the government's interest in curbing adolescent tobacco use while striking down others, such as certain modified-risk speech rules and the outdoor advertising ban, as insufficiently tailored or unsupported. Separate claims under the Fifth Amendment's due process and takings clauses were also addressed in the partial rulings.

free speechbusiness & regulatoryfederal powerproperty

In Patterson v. City of Earlington, the former police chief sued the city and mayor under 42 U.S.C. § 1983 for alleged violations of his First and Fourteenth Amendment rights, along with claims under the Kentucky Whistleblower Act and for intentional infliction of emotional distress, after he was terminated shortly following his report to state police about the mayor's potential violation of election residency requirements and concerns over handling of police evidence. The court granted the defendants' motion for summary judgment. It held that the plaintiff did not speak as a citizen on a matter of public concern for purposes of his First Amendment retaliation claim, that his equal protection claim under a class-of-one theory was foreclosed by Supreme Court precedent in the context of public at-will employment, and that it would decline to exercise supplemental jurisdiction over the remaining state-law claims.

free speechcivil rightselections

This case involves plaintiff Joseph Thomas, a general laborer employed by defendant Mechanical Consultants, Inc., who was diagnosed with tuberculosis in 2006, disclosed it to a foreman in January 2007, and was laid off shortly thereafter while other workers were reassigned. Thomas filed an EEOC charge claiming ADA discrimination, after which he experienced a delay in recall until May 2008. He sued for disability discrimination under the Americans with Disabilities Act and Kentucky Civil Rights Act, as well as retaliation under federal and state law. The court denied the defendant's motion for summary judgment, finding that Thomas had established prima facie cases for both claims and that genuine issues of material fact existed as to whether the employer's stated reasons for the layoff and delayed recall were pretextual, based on evidence that similarly situated employees without protected activity were treated more favorably.

civil rightslabor & employment

In Walker v. Davis, the plaintiff sued Allen County Deputy Sheriff Danny Davis and Sheriff Sam Carter after Davis struck and killed Thomas Germany during a high-speed pursuit of Germany's motorcycle, asserting §1983 claims under the Fourth and Fourteenth Amendments for excessive force, as well as state-law negligence claims against both defendants and claims against the sheriff for failure to train or enforce pursuit policies. The defendants moved for summary judgment on grounds of qualified and official immunity. The court outlined the summary judgment standard under Fed. R. Civ. P. 56, reviewed the pursuit facts including Davis's decision to strike the motorcycle, and analyzed whether the claims could proceed based on the officer's intent, objective reasonableness of the force, and whether the acts were discretionary or ministerial for immunity purposes under Kentucky law.

civil rightsproceduretorts & liability

In Cummins v. BIC USA, Inc., the case arose after a three-year-old child suffered burns when he used a BIC disposable lighter with its child-resistant guard removed to ignite his clothing, prompting state-law claims for product liability, breach of warranty, failure to warn, and violation of the Kentucky Consumer Protection Act against the manufacturer. BIC moved for summary judgment, contending that the federal Consumer Product Safety Act and its regulations on lighter child-resistance standards preempted the state claims under theories of field and conflict preemption. The district court denied the motion, holding that the CPSA's express savings clause preserves non-conflicting state actions, that Congress did not intend to occupy the entire field of lighter safety regulation, and that compliance with both federal minimum standards and additional state requirements is possible without direct conflict.

torts & liabilityfederal powerbusiness & regulatory

The case involved Dossia Brogan suing U.S. Speciality Insurance Company for breach of an insurance policy by failing to pay disability benefits, with the case removed to federal court on diversity grounds after adding a Kentucky defendant. The court addressed Brogan's motion to remand, finding that the amount in controversy did not meet the $75,000 threshold required for diversity jurisdiction. The defendants argued that potential future benefits could exceed this amount, but the court held that such future payments could not be considered because the dispute concerned only the extent of the insurer's obligations under the policy, not its validity, per Sixth Circuit precedent. Consequently, the court granted the motion to remand the case to Jefferson Circuit Court, without addressing the fraudulent joinder issue.

procedurebusiness & regulatory

This case is a contract dispute arising from participation and operating agreements for gas exploration and development of the Park City Gas Field in Kentucky, in which plaintiffs Aus-Tex and DMS allege that defendant RET, as operator, breached fiduciary duties by failing to hold deposited funds in a separate account, provide regular settlement statements, conduct an audit upon request, or deliver investment returns, and they seek declaratory and injunctive relief including an audit, equitable accounting, and removal of RET as operator. The court granted the plaintiffs' motion to amend the complaint as a matter of course under Fed.R.Civ.P. 15(a) and denied RET's motion to dismiss for lack of diversity jurisdiction and standing. The court held that the amount in controversy exceeds $75,000 because the plaintiffs' good-faith claims control under the legal certainty test from St. Paul Mercury Indemnity Co. v. Red Cab Co., and that Aus-Tex has standing to sue as assignee of DMS's interests under Rule 17 as the real party in interest.

business & regulatoryprocedure

This case involves a trademark infringement lawsuit filed by Holley Performance Products against Quick Fuel Technology and Marvin Benoit, in which the defendants filed a counterclaim seeking cancellation of Holley's DOUBLE PUMPER word mark on the grounds that it was merely descriptive. Holley moved to dismiss the amended counterclaim under Rule 12(b)(6), arguing that the mark had become incontestable under the Lanham Act after five years of continuous use and that the declaratory judgment claim was duplicative. The court granted the motion in part and denied it in part, holding that the counterclaim for cancellation was not part of the pending proceeding until after the incontestability period expired on July 17, 2008, making the mark immune from attack as descriptive. The court also found that counterclaims for declaratory relief on trademark validity are generally appropriate in infringement actions and not subject to dismissal as duplicative.

business & regulatoryprocedure

This case involves a civil False Claims Act suit by the United States against Dr. Michael Stevens, his pain management clinic, family members, and billing agents for submitting reimbursement claims to Medicare, Medicaid, and Tricare for unperformed neuromuscular junction tests using a Matrix machine between 1997 and 2003. The court granted partial summary judgment to the government on the FCA claims against Dr. Stevens, Jody Stevens, Edward Bailey, and Logan Pain Management, Inc., holding them jointly and severally liable for $863,769 in damages based on guilty pleas, acknowledgments of fraud, and undisputed facts showing improper use of CPT code 95937. It dismissed unjust enrichment claims against those defendants but denied both the government's summary judgment motion and Judith Bailey's motion to dismiss the unjust enrichment claim against her, finding it premature while the parallel FCA claim remained unresolved. The rulings rested on the absence of genuine factual disputes regarding the billing practices and resulting government losses.

healthcarecriminal lawprocedure

The case involved homeowners whose property suffered damage from faulty construction seeking coverage under insurance policies issued by Cincinnati Insurance and Great Northern, after the insurers denied claims and the homeowners alleged bad faith. The court reconsidered prior denials of summary judgment on coverage but upheld them, finding that ensuing loss provisions in the policies created coverage for resulting water damage due to policy ambiguity that must be resolved in favor of the insured under Sixth Circuit precedents interpreting similar clauses. It granted summary judgment to the defendants on bad faith claims, concluding that the coverage question was one of first impression under Kentucky law and thus fairly debatable as a matter of law. The court also granted summary judgment to defendants on Consumer Protection Act claims but denied it as to compensatory damages.

propertybusiness & regulatory

The case involved a Brazilian cigarette manufacturer, Sudamax, suing defendants including Buttes & Ashes, Pilot Importing, and Brian Cooper over an oral contract to produce cigarettes for distribution by Tantus Tobacco, with claims for breach of contract regarding escrow payments under the tobacco Master Settlement Agreement as well as related causes of action. The court granted summary judgment to the moving defendants and dismissed all claims against them. It reasoned that there was no evidence these defendants were parties to the contract with Sudamax and that the facts did not warrant piercing Tantus's corporate veil under Kentucky law because there was no separate showing of fraud or injustice. The court converted the motion to one for summary judgment after considering matters outside the pleadings and applied the standard requiring no genuine issue of material fact for the movants to prevail.

business & regulatoryprocedure

The case was a civil enforcement action under the Clean Water Act in which the United States alleged that defendants had discharged fill material into wetlands on their Kentucky property without a permit. After the Sixth Circuit remanded the case following the Supreme Court's Rapanos decision, the district court held an evidentiary hearing and concluded that the wetlands at issue are "waters of the United States." The court found that the wetlands have a continuous surface connection to Pond and Caney Creeks (tributaries of navigable waters) and are physically abutting those waters, satisfying both the Rapanos plurality standard and Justice Kennedy's significant-nexus test based on expert testimony, maps, and photographic evidence of hydrological connections during ordinary and high-flow conditions.

environmentfederal power