JEFF AND TRACY YAZELL v. FOREMOST INSURANCE COMPANY
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 4, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002155-MR
AND
NO. 2004-CA-000219-MR
JEFF AND TRACY YAZELL
v.
APPELLANTS
APPEALS FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
CIVIL ACTION NOS. 03-CI-00297 AND
01-CI-00401
FOREMOST INSURANCE COMPANY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND GUIDUGLI, JUDGES; PAISLEY, SENIOR JUDGE. 1
PAISLEY, SENIOR JUDGE:
This is an appeal from certain orders of
the Grant Circuit Court.
Jeff and Tracy Yazell had filed suit
against Foremost Insurance Company, claiming breach of contract,
common law bad faith, and violations of the Unfair Claims
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Settlement Practices Act (UCSPA), Kentucky Revised Statutes
(KRS) 304.12-230.
The action arose out of Foremost’s denial of
the Yazells’ claim under a homeowner’s insurance policy
following a fire that destroyed their mobile home.
The trial
court granted Foremost summary judgment on the Yazells’ bad
faith and UCSPA claims prior to trial, and also granted
Foremost’s motion to strike the Yazells’ expert witness.
Following a jury trial on the remaining claim of breach of
contract, the circuit court entered judgment in favor of
Foremost.
This appeal has been consolidated with the appeal of
an earlier order of the court dismissing a separate complaint
that the Yazells had filed against Foremost under the Consumer
Protection Act.
See KRS 367.170.
On May 14, 1998, Tracy Yazell and her father James
purchased a mobile home for $29,500.00.
The purchase was made
under a land contract that required installment payments of
$306.00 per month.
James and his wife lived in the home for
about two years, but he was unable to continue making the
payments, so he sold his share in the property to Tracy for
$5,000.00 and she took over the payments under the contract.
Tracy, her husband Jeff and their four children moved into the
home.
In early November 2000, they bought a mobile homeowner’s
insurance policy from a local Foremost agent.
They made the
purchase on the advice of Tracy’s father who had maintained a
-2-
similar policy on the home.
The home structure was insured for
$50,000.00, the personal property contents for $30,000.00 and
additional living expenses for $10,000.00.
The Yazells lived in
the home until it was destroyed by fire on November 25, 2000,
about two weeks after they took out the policy.
After investigating the fire for several months,
Foremost informed the Yazells that the company was denying their
claim because Foremost’s arson investigator had determined that
there was sufficient evidence to demonstrate that the fire was
intentionally set, and that the Yazells were involved.
The Yazells filed suit against Foremost in Grant
Circuit Court on November 21, 2001, alleging breach of contract,
common law bad faith and violations of Kentucky’s Unfair Claims
Settlement Practices Act, KRS 403.12-230. 2
The complaint
requested punitive damages, alleging that Foremost had acted in
an “oppressive, fraudulent and malicious [manner] with reckless
disregard for the consequences [of their actions]” and had “been
grossly negligent toward the plaintiffs.”
Foremost took the deposition of the Yazells’ proffered
bad faith expert, Douglas Koliboski, on April 23, 2003.
On
August 1, 2003, Foremost filed a motion to strike Koliboski on
the grounds that his opinions were neither relevant nor
2
KRS 446.070 authorizes a private cause of action for damages arising from a
violation of the UCSPA. See State Farm Mutual Automobile Insurance Co. v.
Reeder, 763 S.W.2d 116, 117 (Ky. 1988).
-3-
reliable.
The circuit court held a hearing in the matter which
is not included in the record, and thereafter granted Foremost’s
motion to strike Koliboski.
The court also granted Foremost’s motion to exclude
evidence of emotional distress; it ordered that no party or
witness be allowed to make any reference to polygraph or voice
stress tests; and it granted Foremost’s motion for partial
summary judgment on the Yazells’ bad faith and UCSPA claims.
It
also denied the Yazells’ motion to amend their complaint to add
a claim under the Consumer Protection Act, KRS 367.170.
The
Yazells thereafter filed a second complaint, alleging violations
of the Consumer Protection Act.
The court denied their motion
to consolidate the two actions, and granted Foremost’s motion to
dismiss the second complaint.
The jury trial commenced on November 19, 2003, solely
upon the Yazells’ remaining claim for breach of contract.
The
jury rendered a verdict in favor of Foremost by responding “Yes”
to the following question: “Do you believe from the evidence
that the Yazells or someone on their behalf brought about the
destruction of the property by fire?”
After the trial, the Yazells filed a motion for a
mistrial on the grounds that the jury had mistakenly been
allowed to see evidence of the Yazells’ refusal to take a
-4-
polygraph test.
The circuit court denied the motion and entered
judgment in favor of Foremost.
This appeal followed.
I.
The Yazells’ first claim on appeal is that the trial
court erred in granting Foremost’s motion to strike Douglas
Koliboski as their expert witness on bad faith.
After holding an evidentiary hearing on September 10,
2003, the circuit court granted Foremost’s pretrial motion to
strike, on the grounds that it had been shown that
Mr. Koliboski’s proffered testimony violates
the standards set forth in Daubert v.
Merrell Dow Pharmaceuticals, Inc. (1993),
509 U.S.579, and Kumho Tire Co., Ltd. v.
Carmichael (1999), 526 U.S. 137, as well as
violates the Kentucky Rules of Evidence,
including KRE 702, as Mr. Koliboski is not
qualified to render such opinions and
proffered testimony is unreliable and
inadmissible.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the United
States Supreme Court held that scientific expert testimony is
admissible only if it is both inherently reliable and relevant
to the case at hand.
Id. at 589, 113 S.Ct. at 2795.
Relevance
means that the proposed testimony “must assist the trier of fact
to understand the evidence or to determine a fact in issue.”
Id. at 591, 113 S.Ct. at 2795-96.
-5-
The task of determining whether an expert’s testimony
was reliable and relevant was assigned to the trial judge, and a
nonexhaustive list of factors was provided to assist the courts
in assessing the reliability of such testimony.
These include
whether the theory or technique can be or has been tested;
whether it has been subjected to peer review and publication;
whether there is a high known or potential rate of error; and
whether it has general acceptance within the relevant
scientific, technical, or other specialized community.
Id. at
593-94, 113 S. Ct. at 2797.
In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the Court extended
this “gatekeeping” function of the trial judge to apply to
testimony based on technical or other specialized knowledge.
“[W]here such testimony’s factual basis, data, principles,
methods, or their application” are called into question, the
trial judge must determine whether the testimony has “a reliable
basis in the knowledge and experience of [the relevant]
discipline.”
Kumho Tire, 526 U.S. at 149, 119 S. Ct. at 1175
(citations omitted).
The Kentucky Supreme Court has similarly stressed that
the trial court has broad discretion in deciding both how
reliability is to be assessed, and whether the testimony of an
expert meets this standard.
-6-
The test of reliability is “flexible,” and
Daubert’s list of specific factors neither
necessarily nor exclusively applies to all
experts or in every case. Rather, the law
grants [the trial] court the same broad
latitude when it decides how to determine
reliability as it enjoys in respect to its
ultimate reliability determination.
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577-78
(Ky. 2000).
In determining whether the trial court erred in
excluding the testimony of an expert witness, our review is
performed in two stages.
First, the trial court’s findings of
fact are reviewed under the clearly erroneous standard.
Then,
the trial court’s ultimate decision as to admissibility is
reviewed under the abuse of discretion standard.
Miller v.
Eldridge, 146 S.W.3d 909, 915 (Ky. 2004).
In performing the first step of this analysis, we note
that although the record indicates that a Daubert hearing was
held, the videotape of this hearing was not designated as part
of the record, and the trial judge made no written findings of
fact.
While we prefer that trial courts include
findings of fact and conclusions of law in
their Daubert rulings . . . failure to
include those findings and conclusions is
not automatically indicative of
arbitrariness, unreasonableness, unfairness,
or application of the wrong legal standard.
Such a failure, absent a motion at trial
-7-
requesting findings of fact, is not grounds
for reversal.
Id. at 921-22 citing CR 52.04.
No such motion requesting findings of fact was made by
the plaintiffs in this case.
Under these circumstances,
[t]he proper appellate approach when the
trial court fails to make express findings
of fact is to engage in a clear error review
by looking at the record to see if the trial
court’s ruling is supported by substantial
evidence.
Id. at 922.
We have performed such a review of the record and
determined that the trial court’s ruling that Koliboski’s
testimony was not reliable was supported by substantial
evidence.
Koliboski was formerly a licensed insurance adjuster
in Kentucky, but at the time of the deposition his license had
expired and he had been operating a window cleaning business for
almost four years.
Koliboski was employed as a claims adjuster
for Ohio Casualty until 1989.
manager.
He then became a litigation
In his years of working for Ohio Casualty, he was
never involved in a SIU (“Special Investigation Unit”)
investigation; nor was he ever involved in the investigation and
adjustment of arson property claims.
He had served as an expert
in three prior lawsuits that involved attorney malpractice,
toxic mold, and an underinsured motorist claim.
-8-
Koliboski’s work has never been published or peerreviewed.
Furthermore, he openly admitted that the opinions he
gave were not based on any documented, generally-accepted
standards.
At his deposition, defense counsel asked:
So there is nothing that you can point this
court to show in any type of publications,
treatises, any type of documentation that
the opinions you’re giving and want to give
in this case are generally accepted within
the insurance industry; is that true?
Koliboski replied: “Certainly that is true.”
His testimony also indicated that he was not familiar
with the elements necessary to prove a claim of bad faith in
Kentucky.
The report submitted by Koliboski makes no reference
whatsoever to any violations of the UCSPA; and he admitted at
the deposition that he had only printed out the text of the Act
the day before and had not reviewed it for the report.
Koliboski’s record, deposition and report provide
substantial evidence to support the trial court’s finding that
his testimony was not sufficiently reliable to be admitted into
evidence.
II.
We are next asked to determine whether the trial court
erred in granting summary judgment to Foremost on the Yazells’
common law and statutory bad faith claims on the grounds that,
under the facts of the case, expert testimony was required.
-9-
The
appellants have not challenged the award of summary judgment on
any other terms.
Summary judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
(CR) 56.03.
Kentucky Rules of Civil Procedure
The circuit court must view the record “in a light
most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476, 480 (Ky. 1991)(citations omitted).
On appeal, the standard
of review is “whether the trial court correctly found that there
were no genuine issues as to any material fact and that the
moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
Furthermore, “the inquiry should be whether, from the
evidence of record, facts exist which would make it possible for
the non-moving party to prevail.
In the analysis, the focus
should be on what is of record rather than what might be
presented at trial.” Welch v. American Publishing Co. of
Kentucky, 3 S.W.3d 724, 730 (Ky. 1999).
“It is not necessary to
show that the respondent has actually completed discovery, but
-10-
only that the respondent has had an opportunity to do so.”
Hartford Ins. Group v. Citizens Fid. Bank & Trust Co., 579
S.W.2d 628, 630 (Ky. App. 1979).
On November 14, 2003, the trial court entered an order
granting Foremost’s motion for partial summary judgment as to
the common law and statutory bad faith and punitive damages
claims, concluding “that the Plaintiffs must have expert
testimony to present their common law and statutory bad faith
claims under the facts of this case.”
The Yazells have drawn our attention to cases from
other jurisdictions where it has been held that expert testimony
is not necessary to prove bad faith insurance claims.
But the
trial court was not, as appellants suggest, mistakenly assuming
that expert testimony is required in all bad faith insurance
cases.
Rather, the court decided that under the specific facts
of this case, an expert was required to articulate for the jury
what constituted a bad faith claim, and how Foremost’s conduct
could be shown to meet the standard for such a claim.
To maintain a bad faith action against an insurer,
whether premised upon common law theory or a statutory
violation, the insured must prove three elements:
(1) The insurer must be obligated to pay the
claim under the terms of the policy; (2) the
insurer must lack a reasonable basis in law
or fact for denying the claim; and (3) it
must be shown that the insurer either knew
-11-
there was no reasonable basis for denying
the claim or acted with reckless disregard
for whether such a basis existed[.]
Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky. 1993); Kentucky Nat.
Ins. Co. v. Shaffer, 155 S.W.3d 738,741-42 (Ky. App.,2004).
Furthermore, an insurer is entitled to challenge a claim and
litigate it if the claim is debatable on the law or the facts.
Wittmer at 890.
A cause of action for statutory bad faith premised on
a violation of the UCSPA may be maintained only if the evidence
suffices to justify punitive damages.
“In order to justify an
award of punitive damages, there must be proof of bad faith
sufficient for the jury to conclude that there was conduct that
was outrageous, because of the defendant’s evil motive, or his
reckless indifference to the rights of others.”
Motorists
Mutual Ins. Co. v. Glass, 996 S.W.2d 437, 452 (Ky. 1997) citing
Wittmer v. Jones, 864 S.W.2d 885, 890-91 (Ky. 1993).
“An action for bad faith . . .
more than mere negligence.
requires something
The term itself implies some
intentional wrongful conduct . . .
Mere errors in judgment
should not be sufficient to establish bad faith.” Blue Cross &
Blue Shield of Ky., Inc., v. Whitaker, 687 S.W.2d 557, 559 (Ky.
App. 1985)(citations omitted).
Bearing these standards in mind, we see in the record
that the Yazells’ proffered expert, Doug Koliboski, stated in
-12-
his deposition: “It’s my understanding that the company believes
they had reasonable justification [to deny the Yazells’ claim].”
He also answered “yes” to the following question from Foremost’s
counsel: “[N]ow, giving every benefit of the doubt in this case,
the most you can say is that you believe that Foremost made a
mistake and should have paid this claim, fair statement?”
Clearly, if the Yazells’ own proffered expert did not
hold the opinion that Foremost had acted in bad faith, the court
was right to infer that another expert was necessary in order to
demonstrate that the claim had some factual support.
What would
have been essential for the jury would have been an expert
elucidation of the claims review process specifically for claims
where arson is suspected, and in what manner Foremost’s conduct
apparently failed to meet this standard.
The trial court did
not therefore err in granting summary judgment on these grounds.
III.
The Yazells’ third claim is that the trial court erred
in failing to grant their motion for a mistrial on the ground
that the jury was inadvertently permitted to review, as part of
the trial exhibits, a document indicating that the Yazells had
refused to take a polygraph test.
The evidence of their refusal is contained in a fire
investigation report by Kentucky State Police officer Curtis S.
-13-
Combs.
Combs attached a statement to his report that he had
contacted Tracy Yazell to ask if she and her husband would
submit to a polygraph test.
She advised him to contact Bill
Adkins, an attorney whom they had retained in connection with
the matter.
Combs accordingly met with Adkins who informed him
that he was advising the Yazells to refuse a polygraph.
Combs
asked him whether “this could be considered a formal refusal”
and Adkins said yes.
Approximately two years later, the Yazells took a
“voice stress analysis” test that purported to indicate that
they were telling the truth about their noninvolvement in the
fire.
The admissibility of these two pieces of evidence: (1)
the page attached to Combs’ report indicating the Yazells’
refusal to take a polygraph, and (2) the results of the “voice
stress analysis” test, was a continuing point of contention
between the parties.
Foremost made a motion in limine at the final pretrial conference to exclude the voice stress analysis test
report (and related proposed expert testimony) at trial.
The
motion was granted by the court in an order which also stated
that
No party or witness shall make any reference
to polygraph tests or voice stress tests
including Plaintiffs’ refusal or willingness
-14-
to take the polygraph. COUNSEL SHALL ADVISE
ALL WITNESSES IN THIS REGARD AND SHALL
DELETE ANY SUCH REFERENCES FROM DEPOSITIONS
TO BE READ OR VIEWED.
(Emphasis and capitals in the original.)
During discussions in chambers, and in the period
before the jury was instructed, the trial court also verbally
directed the parties to delete or redact any references to the
polygraph and voice stress tests from the exhibits.
Nonetheless, Combs’ report made its way into the trial exhibits,
and was seen by the jury.
After the jury rendered its verdict in favor of
Foremost, the Yazells filed a motion for a mistrial or hearing,
asserting that the presence of the exhibit had decisively
influenced one of the jurors in favor of Foremost.
from the juror was attached.
An affidavit
Counsel for the plaintiffs
subsequently submitted two more affidavits from jurors who also
maintained that the polygraph evidence had had a decisive effect
in swaying the verdict of the jury in favor of Foremost.
The trial court denied the motion for a mistrial in a
lengthy order that stated in relevant part:
It is the Court’s belief that the Plaintiffs
should not be permitted to create their own
mistrial, even through inadvertence, and be
rewarded for their negligence by being given
another trial. The Court had cautioned the
parties about eliminating all such
references and redacting such items from
anything to be presented to the jury and
-15-
Plaintiffs’ Counsel simply failed to do that
with the exhibit that was viewed by the
jury. Having failed to do so, and having
further vehemently argued for the admission
into evidence of this exhibit, which was
opposed by Defendant, the Court finds that
Plaintiffs cannot now benefit from their
neglect.
The Yazells argue that it is not possible to determine
how the report came to form part of the trial exhibits.
But our
review of the record shows that the report in question was
labeled “Plaintiff’s Exhibit 59” and is contained in a folder
marked “TRIAL EXHIBITS.”
Although the Yazells insist that the
report was also part of defendant’s Exhibit “H,” that particular
exhibit is not in the “TRIAL EXHIBITS” folder.
Foremost has drawn our attention to the principle of
Kentucky law which states “that one cannot complain of an
invited error.” Miles v. Southern Motor Truck Lines, 173 S.W.2d
990, 998 (Ky. 1943). “We have often held that a party is
estopped to take advantage of an error produced by his own act.”
Wright v. Jackson, 329 S.W.2d 560 (Ky. 1959)(plaintiff not
entitled to award for pain and suffering when plaintiff’s
proffered jury instructions contained the phrase “if any” that
led to this outcome.)
In this case, the record shows that
counsel for the plaintiffs was responsible for this evidence
making its way to the jury.
-16-
The Yazells nonetheless argue that based upon the
jurors’ affidavits, a new trial should have been granted.
They
contend that it was impossible to undo the adverse effects of
this disclosure, and that certainly it was not intentionally
created error.
“The bottom line is that the evidence was so
favorable to Appellants, but for the jury seeing an exhibit the
Court ordered they not receive.”
Appellants’ Reply Brief at 2.
The standard of review for denial of a motion for a
mistrial is abuse of discretion.
S.W.2d
Clay v. Commonwealth, 867
200, 204 (Ky. App. 1993).
Furthermore,
[i]t is universally agreed that a mistrial
is an extreme remedy and should be resorted
to only when there is a fundamental defect
in the proceedings which will result in a
manifest injustice. The occurrence
complained of must be of such character and
magnitude that a litigant will be denied a
fair and impartial trial and the prejudicial
effect can be removed in no other way. . . .
Mistrials in civil cases are generally
regarded as the most drastic remedy and
should be reserved for the most grievous
error where prejudice cannot otherwise be
removed.
Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996).
Foremost has questioned the propriety of allowing
jurors to impeach their own verdict following trial.
The
Yazells claim, however, that the rule that a juror may not
impeach his or her verdict is “old and dated.”
-17-
The general rule that a juror may not impeach his or
her verdict is still in effect in Kentucky, however, see e.g.,
Gall v. Commonwealth, 702 S.W.2d 37, 44 (Ky. 1985) (juror’s
testimony that jury improperly considered defendant’s mental
illness and parole eligibility during deliberations was
incompetent).
Moreover, the case relied upon by the Yazells, In
re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir. 1981),
stands for a different proposition: that a juror may impeach a
verdict if extraneous evidence or influence was brought to bear
upon the jury’s deliberations. 3
In this case, the police report
formed part of the evidence properly considered by the jury.
Although it may have been included as a result of counsel’s
error, it did not constitute an improper outside influence.
3
This principle is codified in Fed. R. Evid. 606(b):
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter
or statement occurring during the course of the
jury's deliberations or to the effect of anything
upon that or any other juror's mind or emotions as
influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror's
mental processes in connection therewith, except that
a juror may testify on the question whether
extraneous prejudicial information was improperly
brought to the jury's attention or whether any
outside influence was improperly brought to bear upon
any juror. Nor may a juror's affidavit or evidence of
any statement by the juror concerning a matter about
which the juror would be precluded from testifying be
received for these purposes.
-18-
The trial court did not, therefore, abuse its
discretion in denying the motion for a mistrial, as there was no
fundamental defect in the proceedings.
IV.
The Yazells’ fourth argument concerns the trial
court’s refusal to allow them to bring a consumer protection
claim.
The Yazells initially filed a motion to amend their
complaint to add a claim under KRS 367.170, a provision of the
Consumer Protection Act, 4 on June 2, 2003. 5
denied.
The motion was
The Yazells thereafter filed a separate action against
Foremost alleging violations of the Consumer Protection Act and
moved to consolidate it with the existing action.
The trial
court denied the motion to consolidate.
While Kentucky Rule of Civil Procedure (CR) 15
“provides that leave to amend ‘shall be freely given when
justice so requires,’ it is still discretionary with the trial
court, whose ruling will not be disturbed unless it is clearly
an abuse.”
4
Graves v. Winer, 351 S.W.2d 193, 197 (Ky. 1961).
KRS 367.170 states:
(1) Unfair, false, misleading, or deceptive acts or practices in the conduct
of any trade or commerce are hereby declared unlawful.
(2) For the purposes of this section, unfair shall be construed to mean
unconscionable.
5
The Appellants’ brief incorrectly gives September 19, 2003, as the date the
motion was filed.
-19-
The Yazells’ motion to amend their complaint stated
that:
The facts are the facts are the facts
in this case. This cause of action does not
effect [sic] discovery or the remaining 5
months prior to the trial. The claim does
require intentional or grossly negligent
conduct which is alleged and supported by
the facts.
We have reviewed the record and find that the trial
court did not abuse its discretion in denying the motion to
amend the complaint.
“[S]ignificant factors to be considered in
determining whether to grant leave to amend are timeliness,
excuse for delay, and prejudice to the opposite party.” Lawrence
v. Marks, 355 S.W.2d 162, 164 (Ky. 1961).
The Yazells provided
absolutely no explanation as to why this claim could not have
been included in the initial complaint which was filed over
eighteen months before.
Furthermore, Foremost argued
convincingly that the amendment could cause prejudice in that
the deadline for the close of all discovery was only 1 ½ months
away; the deadline for exchange of all trial materials had
already passed; and Foremost’s expert witnesses had already
issued their reports.
The Yazells also claim that the trial court abused its
discretion in not allowing the consolidation of the complaints.
In its order dismissing the second complaint, the trial court
explained that
-20-
[t]his action violates the law of the
Commonwealth regarding splitting a cause of
action and is therefore barred by the
principle of res judicata.
The filing of a separate complaint and the attempt to
consolidate it with the earlier action appears to have been an
attempt on the Yazells’ part to make an end run around the
court’s earlier ruling denying the motion to amend the
complaint.
The trial court correctly decided that the issue had
already been conclusively resolved by its earlier order denying
the motion to amend.
V.
The final claim is that the trial court erred by
granting Foremost’s motion in limine to exclude evidence and
testimony concerning the Yazells’ allegations of intentional
infliction of emotional distress.
The basis for the motion, which was made on October
22, 2003, was that no separate count for intentional infliction
of emotional distress was pleaded by the plaintiffs in their
complaint, and that the plaintiffs did not have an expert
witness to present such a claim to a reasonable degree of
medical and scientific certainty.
The only testimony to be
offered by the Yazells was that of Brenda Elkins Davis, a
volunteer with the Red Cross who assisted the Yazells after the
fire.
-21-
The trial court granted the motion on November 14,
2003, one week before trial.
In the same order, it also granted
partial summary judgment to Foremost on the Yazells’ claims for
common law and statutory bad faith and punitive damages.
On appeal, the Yazells argue that they were not
required to plead intentional infliction of emotional distress
as a separate claim.
But the Yazells themselves acknowledge
that any damages for emotional distress would stem from the bad
faith and UCSPA claims.
As we have already determined that the
trial court properly granted summary judgment on these claims,
leaving only the breach of contract claim, the point is moot.
For the foregoing reasons, the orders and judgment of
the Grant Circuit Court are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric C. Deters
Fort Mitchell, Kentucky
Matthew J. Smith
Carmen C. Sarge
Cincinnati, Ohio
-22-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
