ZURICH INSURANCE COMPANY; ZURICH AMERICAN COMPANIES; AND ZURICH AMERICAN INSURANCE COMPANY AND TOM MCDONALD, JUDGE JEFFERSON CIRCUIT COURT V. JACKIE KNOTTS AND LLOYD KNOTTS
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AMEfWgD: AUGUST 29,200-I
RENDERED: AUGUST 23,2001
TO BE PUBLISHED
2000-SC-000660-MR
,/C _
ZURICH INSURANCE COMPANY;
ZURfCH AMERICAN COMPANIES; AND
ZURICH AMERICAN INSURANCE COMPANY
(REAL PARTIES IN INTEREST)
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AND
TOM MCDONALD, JUDGE
JEFFERSON CIRCUIT COURT
V.
APPELLANT
ORIGINAL ACTION FROM COURT OF APPEALS
2000-CA-1137
‘:
JACKIE KNOTTS AND
LLOYD KNOTTS
APPELLEES
OPfNlON OF THE COURT BY JUSTfCE GRAVES
Affirminq
An attorney who handles a personal injury action is not necessarily
disqualified as an advocate in an action for bad faith in the insurance claims process
merely because he files a personal affidavit in opposition to a motion for summary
judgment. The limited and specialized use of an affidavit by an attorney, who does not
testify at trial for his clients, provides an insufficient justification to allow opposing
counsel to deprive a party of its right to counsel of its choice. Being hearsay, affidavits
are generally inadmissable in evidence; however, where the judge is the trier of fact,
affidavits serve the important purpose of being a ready and economical vehicle to
~~
expedite the disposition of motions for summary judgment. The use of an affidavit in
opposition to a motion for summary judgment does not make the affiant a likely
necessary witness absent a showing that the information contained therein is
unobtainable from other sources.
Appellee, Lloyd Knotts, has brought this bad faith action based on the handling
of an insurance claim for personal injuries resulting from an accident on November 10,
1992. Knotts was working as a business invitee at the Lawson Mardon Flexible
Packaging Company, Inc. (“Lawson Mardon”)’ when he was injured in a thirty-foot fall to
a concrete floor. Lawson fvlardon
was insured by Appellant/Real Party in Interest,
Zurich Insurance Company (“Zurich”). Shortly after the accident, Knotts and his wife,
Jackie, hired Attorney Larry Franklin to represent them in the personal injury action.
Throughout the litigation, Franklin handled all settlement negotiations.
Following a trial
in August 1994, the jury awarded total damages in the amount of $1,‘202,104.29.
In August 1997, the Knottses filed a bad faith action against Lawson Mardon*
and Zurich, alleging that both had violated the Unfair Claims Settlement Practices Act
(UCSPA) and the Consumer Protection Act (CPA).
The Knottses were again
represented by Franklin, however, attorney Lee Sitlinger was also retained as cocounsel. In their complaint, the Knottses alleged that Zurich acted in bad faith by: (1)
failing to acknowledge and act reasonably promptly upon communications; (2) failing to
adopt and implement reasonable standards for investigations; (3) refusing to pay claims
’ At the time of the accident, Lawson Mardon was named Alusuisse Flexible
Packaging, Inc.
* Lawson Mardon obtained summary judgment in its favor which was affirmed by
the Court of Appeals. Discretionary review was not sought. Thus, Lawson Mardon is
not a party to this appeal.
.-
.-
2
without conducting reasonable investigations; and (4) not attempting in good faith to
effectuate prompt, fair and equitable settlements of claims in which liability is
reasonably clear. See KRS 304.12~230(2),
(3) (4) and (6).
While the case was pending in federal court, Zurich filed a motion for summary
judgment. In response, Attorney Franklin filed a personal affidavit referring to his
settlement negotiations with Zurich and its representatives. In the affidavit, Franklin
stated that there were genuine issues of material fact within his personal knowledge, as
a result of his acting as the primary negotiator for the Knottses.
Shortly thereafter, Zurich filed a motion to disqualify Franklin on the grounds that
he made himself a necessary witness by filing his personal affidavit with the response
to motion for summary judgment. Zurich pointed out that the Knottses had already
deposed several of the defense attorneys who participated in the underlying case, and
stated that it intended to depose Franklin regarding his knowledge of the settlement
negotiations. The Knottses responded that Franklin was not, in fact, a necessary
witness and that they had no intention of calling him at trial. Nonetheless, the trial
court granted Zurich’s motion to disqualify Franklin, concluding that he was a necessary
witness and that his participation as both an advocate and witness would violate SCR
3.130, Rule 3.7.
The Knotts thereafter sought a writ of mandamus in the Court of Appeals to
compel Judge Tom McDonald to withdraw his order of disqualification. In a 2-l
decision, the Court of Appeals granted CR 76.36 relief. The court concluded that
Franklin’s disqualification would cause the Knottses irreparable harm by depriving them
of “counsel of their choice who ‘has the unique knowledge and familiarity with the
underlying facts in that action to better represent [them] . . . .‘.‘I The court also opined
3
that the order of disqualification was prematurely based on “a mere assumption that
Zurich will choose to call him as a witness at trial because he has ‘material knowledge
concerning Zurich’s conduct during the settlement negotiations and trial of the
underlying tort case’ and because Zurich intends to depose him.” Accordingly, the
Court of Appeals directed the trial court to vacate the order of disqualification. Zurich
thereafter appealed to this Court.
Zurich argues that Kentucky courts have repeatedly held that “when a lawyer is a
witness for his client, except as to merely formal matters, . . . he should leave the trial of
the case to other counsel.” Morrison’s Administrator v. Redmon, Ky., 287 S.W.2d 167,
168 (1956). Indeed, this long-standing principle is espoused in Rule 3.7 of the
Kentucky Rules of Professional Conduct (Supreme Court Rule 3.130):
(a) A lawyer shall not act as an advocate at trial in which the lawyer is
likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal
services rendered in the case; or
(3) Disqualification of the lawyer would work a substantial
hardship on the client.
Rule 3.7 is an ethical rule without an evidentiary counterpart. Courts routinely
decide evidentiary questions and usually leave ethical matters to the bar.
The commentary to the Rule 3.7 explains that the party’s right to choice of
counsel must be weighed against the unfair prejudice created when that attorney
testifies:
[A] balancing is required between the interests of the client and those of
the opposing party. Whether the opposing party is likely to suffer
prejudice depends on the nature of the case, the importance and probable
tenor of the lawyer’s testimony, and the probability that the lawyer’s
testimony will conflict with that of other witnesses. Even if there is risk of
such prejudice, in determining whether the lawyer should be disqualified
due regard must be given to the effect of disqualification on the lawyer’s
4
client.
SCR 3.130-3.7, Comment (4). The drafters were concerned primarily with the prejudice
that could potentially befall the opposing counsel when an attorney testifies on behalf of
his clients. In fact, Comment 2 notes that a major source of prejudice is the likelihood
that the jury will confuse the attorney as a witness with the attorney as an advocate.
Similarly, the Annotated Model Rules of Professional Conduct, Rule 3.7, p. 356
(ABA 3’” ed. 1996) provides:
The rule that a lawyer should not combine the roles of witness and
advocate is designed to avoid public perception that the lawyer as witness
is distorting the truth for the sake of a client or enhancing his or her own
credibility as an advocate by taking an oath as a witness, and to spare
opposing counsel the unfair and difficult task of cross-examining an
adversary and impeaching the adversary’s credibility. See In re Am.
Cable Publications. Inc., 768 F.2d 1194 (lOth Cir. 1985) (concluding that
Rule designed primarily for situations in which lawyer acts simultaneously
as counsel and witness, or in which trial counsel’s partner is nonparty
witness); Jones v. Citv of Chicaao, 610 F.Supp. 350, 362 (N.D. III. 1994)
(major purpose behind advocate-witness rule is to avoid confusion
between role of advocate and role of witness).
Since Kentucky Appellate Courts have not interpreted Rule 3.7, Zurich relies on
several cases from other jurisdictions interpreting rules similar to Rule 3.7, in support of
its argument that disqualification of Franklin is warranted. 155 North Hiah. Limited v.
Cincinnati Insurance Co., 650 N.E.2d 869 (Ohio 1995), was a bad-faith action which
arose out of a property-damage claim brought by 155 North High against Cincinnati
Insurance Company. The attorney for 155 North High, James Wiles, conducted all
settlement negotiations- on his client’s behalf up until the time he filed a complaint
against Cincinnati Insurance Company alleging bad faith. Prior to trial, Wiles listed
himself as a potential witness for his own client and was, in fact, permitted to testify at
trial.
5
In holding that Wiles should have been disqualified, the Ohio Supreme Court
relied on Ohio Disciplinary Rule 102(a), which is substantially similar to rule 3.7, and
concluded that the rule forbids a lawyer from “serving in the dual role of witness and
advocate . . . to protect three distinct interests: those of the client, those of the adverse
party, and that of insuring the institutional integrity of the legal system as a whole.” Id.
at 872. The court ultimately held that Wiles should have been disqualified since he was
the principal negotiator for 155 North High and his testimony was necessary to prove
his client’s claims. Id. at 873.
155 North Hiah. Limited is distinguishable because the
attorney listed himself as a ‘witness for his own client. Here, it is the opposing party who
has designated Franklin as a witness.
Similarly, Warrilow v. Norrell, 791 S.W.2d 515 (Texas App. 1989) also involved
a bad-faith action in which the attorney in question, Allan King, was designated not only
as a witness for his client, but also as an expert witness in the case. In holding that the
trial court erred in refusing to disqualify King, the Texas Court of Appeals found that
King “was called upon to testify about his strategy and what transpired during the
settlement negotiations he personally conducted in the underlying causes of action on
behalf of [his client]; his testimony was crucial to prove bad faith on the part of
Warrilow.” Id. at 520. The court commented that a problem associated with this type of
testimony is the attorney-witness vouching for his own credibility, which is seemingly
unfair to opposing counsel.
We do not accept this reasoning because cross-
examination by a skilled adversary should be sufficient to test the credibility of any
lawyer who is a witness. That is, a witness who is also an advocate is more readily
impeachable because of interest in the outcome of the litigation.
The Warrilow court noted that disqualification of an attorney sought to be called
6
as a Witness for the opposing party is subject to a more stringent standard because “a
litigant may call his or her opponent’s attorney as a trial tactic, seeking to disqualify the
attorney from the case.” Id. at 521, n.73 (citing Jones v. Citv of Chicaqo, supra); see
a& General Mill Supplv Co. v. SCA Services, Inc., 697 F.2d 704 (6th Cir. 1982).
Similarly, In McClure Enterprises v. Burnett, 735 S.W.2d 309 (Tex. App. 1987), the
Texas Court of Appeals again held that the mere announcement by an adversary of his
intention to call opposing counsel as a witness is insufficient to warrant counsel’s
disqualification. “There must be a genuine need for the attorney’s testimony, which
should be material to the movant’s case as well as prejudicial to the interests of the
attorney’s client . . . .” Id. at 311. (internal citations omitted); see also Saraent Countv
Bank v. Wentworth, 500 N.W.2d 862 (N.D. 1993); Cottonwood Estates. Inc. v.
Paradise Builders, Inc., 624 P.2d 296 (Arizona 1981).
The crucial inquiry in determining whether an attorney can act as both an
advocate and a witness is the prejudicial effect it will have upon the attorneys’ own
client. Certainly, the opposing party may have a proper objection where the
combination of roles would prejudice that party’s rights in litigation. A witness is
required to testify on the basis of personal knowledge, while an advocate is expected to
explain and comment on evidence given by others. It may not be clear to a jury
whether a statement by an advocate-witness should be taken as proof or as an analysis
3 Texas Disciplinary Rule 5102(b) specifically addresses such a situation
and provides:
If after undertaking employment in contemplated or pending
litigation, a lawyer learns or it is obvious that he or a lawyer
in his firm may be called as a witness other than on behalf of
his client, he may continue the representation until it is
apparent that his testimony is or may be prejudicial to his
client.
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of the proof. Consequently, balancing is required between the interests of the opposing
parties lest the rule be used as a tactical weapon for expense, delay, inconvenience,
and sequestration of a witness.
Notwithstanding, disqualification is a drastic measure which courts should be
hesitant to impose except when absolutely necessary. See University of Louisville v.
Shake, Ky., 5 S.W.3d
107 (1999). Disqualification separates a party from the counsel
of its choice with immediate and measurable effect. Here, attorney Franklin has lived
through the previous litigation from its inception and has in his memory, or at his
fingertips, knowledge of the case no one else could duplicate. Moreover, regardless of
the level of competency of a successor attorney, the degree of confidence and trust that
has developed between the Knottses and Franklin cannot be replaced. Franklin has
stated that he will not be called to testify on behalf of the Knottses and, in fact, has no
information that it is crucial to the Knottses claims against Zurich. We agree with the
Court of Appeals that disqualification of Franklin would work a substantial hardship
upon the Knottses and would result in irreparable harm.
We do not mean to imply that motions to disqualify counsel may not be
legitimate, for there obviously are situations where they are both legitimate and
necessary. However, the showing of prejudice needed to disqualify opposing counsel
must be more stringent than when the attorney is testifying on behalf of his own client,
because adverse parties may attempt to call opposing lawyers as witnesses simply to
disqualify them. Consequently, Zurich has failed to demonstrate that: (a) Franklin’s
testimony is important to its proof at trial; (b) there is any probability that Franklin’s
testimony will conflict with that of other witnesses; and (c) the information contained in
Franklin’s affidavit is unattainable from other sources. It is Zurich who seeks to call him
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as a witness. While such is permissible, it does not, and should not, result in Franklin’s
disqualification.
The Court of Appeals properly found that Appellees demonstrated their
entitlement to extraordinary relief. As such, we affirm the issuance of the writ of
mandamus.
Lambert,
C.J., Graves, Johnstone, and Stumbo, J.J., concur.
Cooper, J., dissents by separate opinion in which Keller and Wintersheimer, J.J.,
join.
COUNSEL FOR APPELLANTS:
James Douglas Harris, Jr.
Lewis, King, Krieg, Waldrop.& Caatron
918 State Street
P.O. Box 1220
Bowling Green, KY 42102-1220
Robert E. Stopher
Boehl, Stopher & Graves
Providian Center
Suite 2300
400 West Market Square
Louisville, KY 40202-3346
COUNSEL FOR APPELLEES:
Larry B. Franklin
Franklin & Hance, PSC
505 West Ormsby Ave.
Louisville, KY 40203
Lee E. Sitlinger
Sitlinger, McGlincy, Steiner, Theiler & Karem
370 Starks Building
455 South Fourth Ave.
Louisville, KY 40202
RENDERED: AUGUST 23,200l
TO BE PUBLISHED
2000-SC-0660-MR
ZURICH INSURANCE COMPANY;
ZURICH AMERICAN COMPANIES; AND
ZURICH AMERICAN INSURANCE COMPANY
(REAL PARTIES IN INTEREST)
APPELLANTS
AND
TOM MCDONALD, JUDGE
JEFFERSON CIRCUIT COURT
APPELLANT
ORIGINAL ACTION FROM COURT OF APPEALS
2000-CA-1137
v .
JACKIE KNOTTS AND
LLOYD KNOTTS
APPELLEES
DISSENTING OPINION BY JUSTICE COOPER
Supreme Court Rule 3.130(3.7) provides, inter alia, that “[a] lawyer shall not act
as advocate at a trial in which the lawyer is likely to be a necessary witness except
where . . . disqualification would work substantial hardship on the client.” (Emphasis
added.)
This is an appeal from an original action in the Court of Appeals that resulted in
the issuance of a writ of prohibition against Appellant Judge McDonald to prevent him
from disqualifying attorney Larry Franklin as counsel for Appellees Lloyd and Jackie
Knotts in the underlying “bad faith” action brought by the Knottses against Appellant
Zurich Insurance Company. The Knottses claim that Zurich violated the Uniform Claims
Settlement Practices Act (UCSPA), KRS 304.12-230, during the litigation of a personal
injury action brought by the Knottses against Alusuisse Flexible Packing, Inc. In their
discovery depositions in the bad faith action, both Mr. and Mrs. Knotts disclaimed any
knowledge of any settlement negotiations that did or did not occur during the personal
injury action, asserting that they entrusted such matters entirely to their attorney, Larry
Franklin.
Q.
Do you have a feeling that anything bad was done to you by Zurich
before the trial?
A.
I really don’t know because I wasn’t in -- I left it up to my attorney.
...
Q.
Well, let me ask you this. Do you think it was reasonable for Zurich
to make you prove your claim?
A.
I really don’t know anything, any legal things about it. I just let? it up
to my attorney.
...
Q.
During the course of the case and before the trial, what did you
yourself [do] to try to settle the claim?
A.
We left it up to our attorney to handle the total case.
Q.
So Mr. Franklin was in charge of the case and Mr. Franklin would
have been in charge of trying to settle the case?
A.
Yes, sir.
Q.
And you left it up to him to handle that?
A.
That is correct.
Q.
With regard to offers of settlement or attempts at settlement, do
you know if any offer made by Mr. Franklin, if any offer, was it a
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joint offer on behalf of you and Mrs. Knotts or would it have been
an offer for you and a separate offer for Mrs. Knotts, if you know?
A.
I don’t know.
Q.
As between you and Mrs. Knotts, who controlled the claim?
A.
Our attorney.
...
Q.
Can you tell me when in time you believe that an offer of settlement
should have been made to you by Zurich?
A.
I don’t know.
Q,
Is this again something you would have left up to Mr. Franklin?
A.
Yes, sir.
...
Q.
Are you able to tell me what amount you think should have
been offered by Zurich to settle the case?
A.
Again, we relied upon Larry Franklin.
Q.
Can you tell me what amount you would have accepted in full and
complete settlement of your claim?
A.
Again, we would have to -- I would have just left it up to Larry. I
really don’t know.
...
Q.
Are you able to tell me how much money would have satisfied
your claim in your mind?
A.
No, sir, I can’t.
Q.
Did Larry Franklin ever tell you how much your case was worth?
MR. SITLINGER: Are you talking about before trial?
Q.
Before trial?
A.
No, not really.
-3-
Q.
Did you ever have any discussion with Larry Franklin about what
the case was worth?
A.
The money -- the money wasn’t really the major -- it wasn’t really it.
We wanted our bills paid and they refused to do so, and money, we
never talked about money.
...
Q.
Did you ever talk with him about what the case was worth?
A.
I don’t recall.
Q.
Did you ever have, in your own mind, an idea as to what the case
was worth?
A.
No, sir.
Zurich filed a motion for summary judgment. In response, the Knottses filed the
affidavit of attorney Franklin, which included the following:
It was not until the third day of trial that the very first and only offer
was made by Zurich. And at that time, they offered the deductible of the
policy which was the personal responsibility of the Defendant and nothing
from Zurich. This remained the offer throughout the trial. On the last day
of trial, Plaintiffs made their final request to settle for $1 ,OOO,OOO.OO.
There was no response to this. The jury awarded $1,200,000.00.
At a settlement conference held at the appellate level, Zurich
requested that the Plaintiffs reduce the verdict by an additional 25%. . . .
When asked what basis that Zurich wanted this additional 25% reduction.
(Sic.) They failed to give a reason.
It was quite clear through the trial of this matter that the defense
attorney, Bissell Roberts, wanted, very much, to deal in good faith with
me, but that his hands were tied and that his recommendations were
ignored. . . .
When Zurich American appealed this matter, they asked for a
reduction in the amount of interest on the Judgment. . . . I could only
attribute additional harassment and bad faith by Zurich for not paying this
working man, who had no other source of income and who was totally
precluded from his ability to earn a living and who already had most of his
possessions repossessed to then file an appeal. And I also wrote to the
appellate attorney that this was just yet another continuing act of bad faith
by Zurich.
4
The letter mentioned in the last sentence was attached to the affidavit and
included the following:
I can see no reason for Zurich American’s position in this case except, as
always, it appears to be just business as usual trying to take an unfair
advantage as a result of their relative positions of power in this case with
Zurich American being the multinational, all-powerful and wealthy
insurance company and Lloyd being just a poor citizen of the state of
Kentucky. I really think that their conduct in this case has been the utmost
in bad faith and I think by continuing to deny Lloyd the payment of the
judgment that he received as a result of the trial that they forced him
through is only a further extension of their callous disrespect for the
human goodness of the individual and the jury system and the citizens of
our state.
On the basis of Franklin’s affidavit and attached letter, summary judgment was
denied.
Because this case began as an original action in the Court of Appeals, we do
not have access to the record in the underlying action. However, the Knottses had
already retained attorney Lee Sitlinger to represent them in the bad faith action; and if
Sitlinger, as lead counsel, prepared and filed the response to the motion for summary
judgment that was supported by Franklin’s affidavit, then Sitlinger was acting as the
Knottses’ attorney and Franklin as their chief witness in that phase of the litigation.
Franklin was the attorney who conducted the negotiations that are the gravamen
of the Knottses’ bad faith claim. The Knottses disclaim any knowledge of any facts
supporting their claim and assert that they relied entirely on Franklin to negotiate with
Zurich. Franklin’s affidavit relates personal knowledge, observations and opinions that
are uniquely known to him and essential to the success of his clients’ claim. For that
reason, I conclude that Judge McDonald did not err in deciding that Franklin was “likely
to be a necessary witness” at trial, thus, should be disqualified as counsel for the
Knot&es. Mauze v. Curry, 861 S.W.2d 869, 870 (Tex. 1993) (attorney should have
-5
r.
.
.
been disqualified after rendering an expert opinion in an affidavit filed in response to the
defendant’s motion for summary judgment).
The facts of this case are almost identical to those in 155 North High. Ltd. v.
Cincinnati Insurance Co., 650 N.E.2d 869 (Ohio 1995) except that the Ohio case was
decided in the context of an appeal from an adverse judgment (which was reversed)
whereas this case is decided in the context of an appeal from the grant of a pretrial writ.
[we find it obvious not only that Wiles’s testimony was admissible,
but also that it was clear that he “ought to be called as a witness on behalf
of his client.” Wiles had personal knowledge regarding the alleged acts of
bad-faith claims handling. He was an active participant in dealings and
negotiations beginning shortly after the fire and continuing up to the time
the lawsuit was filed. He testified to conversations and actions taken by
the insurance company. Thus, his testimony was necessary to prove his
client’s claims. Moreover, this was not a sudden development. Wiles had
known early on that he was a key witness. This fact is attested to in his
affidavit which was attached to appellant’s memorandum contra
Cincinnati’s motion for summary judgment. . . .
Id. at 872-73. See also General Mill Supplv Co. v. SCA Services. Inc., 697 F.2d 704
(6th Cir. 1982).
Nor does Franklin’s disqualification fall within the “undue hardship” exception to
the rule of disqualification. As noted in Warrilow v. Norrell, 791 S.W.2d 515 (Tex. Ct.
App. 1989), “[tlhis exception generally contemplates an attorney who has some
expertise in a specialized area of the law such as patents, and the burden is on the
attorney seeking to continue representation to prove distinctiveness.” Id. at 520.
Intimate familiarity with the case and mere increased expenses do not meet this
standard. 155 North Hiah. Ltd., supra, at 873-74. If bad faith litigation is a specialized
area of the law, then Sitlinger, not Franklin, is the presumed specialist, since he was
specifically retained to act as lead counsel in the bad faith case against Zurich.
(Actually, considering Franklin’s reputation as a skilled and successful litigator, it is
-6-
more probable that Sitlinger was retained as lead counsel because Franklin knew he
was “likely to be a necessary witness” and, thus, would be disqualified as counsel at
some point during the litigation.)
An unfortunate consequence of the outcome of this appeal may be that Franklin
is now precluded from testifying as a witness at trial even if subsequent events indicate
that he “ought to be called as a witness on behalf of his client” either to prove the facts
as he viewed them or to rebut a contrary version offered by Zurich’s witnesses. 155
North High. Ltd., N e v e rath872-73. , t h e Knot&es p r e f e r t o h a v e F r a n k l i n
supra, t e l e s s
at counsel table rather than’on the witness stand, and the majority of this Court has
granted their wish. This case may prove the adage of “be careful what you ask for; you
might get it.”
Accordingly, I dissent.
Keller and Wintersheimer, JJ., join this dissenting opinion
-7. . .-
- -
. -
2000-SC-000660-MR
ZURICH INSURANCE COMPANY;
ZURICH AMERICAN COMPANIES; AND
ZURICH AMERICAN INSURANCE COMPANY
(REAL PARTIES IN INTEREST)
APPELLANTS
AND
TOM MCDONALD, JUDGE
JEFFERSON CIRCUIT COURT
V.
APPELLANT
ORIGINAL ACTION FROM COURT OF APPEALS
2000-CA-1137
JACKIE KNOTTS AND
LLOYD KNOTTS
APPELLEES
ORDER AMENDING OPINION
On the Court’s own motion, the opinion rendered August 23, 2001, in the
above styled case is hereby amended with the substitution of a new page 7, attached
hereto. The correction of this page does not change the holding of this opinion.
ENTERED: August &q
,200l.
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