FIELDS, MD (LARRY S.) VS. WOMACK (ANDREA), ET AL.
Annotate this Case
Download PDF
RENDERED: SEPTEMBER 11, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001255-MR
LARRY S. FIELDS, M.D.
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 03-CI-00429
ANDREA WOMACK, ADMINISTRATOR
OF THE ESTATE OF HOMER T. WOMACK, JR.;
NOAH THOMAS HOMER WOMACK,
THROUGH HIS GUARDIAN, CHERYL
MILLER; AND AMERICAN PHYSICIANS
ASSURANCE CORPORATION
APPELLEES
AND
NO. 2007-CA-001337-MR
ANDREA WOMACK, ADMINISTRATRIX
OF THE ESTATE OF HOMER T.
WOMACK; AND NOAH THOMAS
WOMACK, THROUGH HIS GUARDIAN
AND NEXT FRIEND, CHERYL MILLER;
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 03-CI-00429
LARRY S. FIELDS, M.D.; AND FAMILY
MEDICINE CENTER, P.L.L.C.
CROSS-APPELLEES
AND
NO. 2007-CA-001361-MR
FAMILY MEDICINE CENTER, P.L.L.C.
v.
CROSS-APPELLANT
CROSS-APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 03-CI-00429
ANDREA WOMACK, ADMINISTRATOR
OF THE ESTATE OF HOMER T. WOMACK,
JR.; AND NOAH THOMAS HOMER
WOMACK, THROUGH HIS GUARDIAN,
CHERYL LYNN MILLER
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
JUDGE.
LAMBERT, SENIOR JUDGE: The instant appeal presents three issues for our
review. Appellants/Cross-Appellees, Larry S. Fields, M.D. and Family Medicine
Center, P.L.L.C., contend that the trial court erred in approving a mediated
settlement of a medical negligence claim brought against them. They further argue
that it was error for the trial court to deny their motions to dismiss the underlying
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
-2-
claim for untimeliness. Appellees/Cross-Appellants, Andrea Womack, et al., argue
that it was error for the trial court to fail to award them attorney fees. Upon our
review of the record, we affirm the judgment of the Greenup Circuit Court.
On March 15, 2002, Homer T. Womack was taken by ambulance
from his home in Carter County to a hospital in Boyd County. He was treated but
died the next day when he suffered an aortic valve dissection. From March of
1995 through January 2002, Womack had been a patient of Dr. Larry S. Fields and
the Family Medicine Center at their medical offices in Greenup County.
Womack’s wife and son brought a medical negligence action in the Boyd Circuit
Court on March 13, 2003, naming various doctors, a hospital and other medical
personnel as defendants. They claimed that Womack’s death was caused by failure
to diagnose and treat his bicuspid aortic valve/aortic root dilation.
Dr. Fields and Family Medicine Center moved to dismiss for
improper venue. The Boyd Circuit Court sustained the motion relying on KRS
452.450 and 452.460, statutes that require certain actions to be brought where the
defendant or his agent resides or where the injury occurred. The “without
prejudice” order of dismissal of the Boyd Circuit Court was entered July 21, 2003.
On August 6, 2003, the Womacks filed a substantially similar civil action in the
Greenup Circuit Court. It named Dr. Fields and Family Medicine Center as
-3-
defendants, and they promptly sought dismissal on grounds that the claim was not
timely. The trial court overruled the motion.
The parties invested significant time and expense in discovery. In
January 2005, the insurance company that provided medical malpractice insurance
coverage to Dr. Fields and Family Medicine Center elected not to renew coverage.
Pursuant to the insurance contract, the insureds, Dr. Fields and Family Medicine
Center, were offered an opportunity to purchase an extended reporting
endorsement, commonly referred to as “tail” coverage. The required premium was
never paid. The insurance carrier, American Physicians Assurance, then chose to
enforce the consent clause of the policy, granting the insurance company the right
to settle any claim without the consent of the former insureds, Dr. Fields and
Family Medicine Center.
On August 26, 2005, the trial court entered an order pursuant to an
agreed motion requiring the parties to submit to mediation. Dr. Fields and Family
Medicine did not participate. Counsel for the insurance carrier negotiated a
settlement with the Womacks, and the Womacks filed a motion to have the trial
court approve the agreed upon settlement. Dr. Fields objected. The insurance
company, American Physicians Assurance, then filed its motion to intervene, and
the trial court approved the settlement by order entered March 14, 2007. Dr. Fields
and Family Medicine Center appealed to this Court, and the Womacks crossappealed.
-4-
By order entered on July 12, 2007, this Court directed the Womacks
to show cause why their cross-appeal should not be dismissed as it had been filed
one day beyond the prevailing deadline. The notice of cross-appeal was tendered
to the clerk’s office in a timely manner along with the fee required for filing. For
reasons that are unclear, the clerk’s office erroneously failed to file the notice until
an additional fee was paid. The notice was therefore not filed as such by the clerk
until one day after the deadline. Family Medicine Center then filed its own crossappeal referencing the Womack’s cross-appeal. As determined by this court’s
motion panel, sufficient reasons were shown to prevent dismissal and to allow both
cross-appeals to go forward. We reaffirm that ruling herein. Hill v. Kentucky
Parole Board, 250 S.W.3d 314 (Ky. 2008); See also Motors Ins. Corp. v. Fields,
294 S.W.2d 518 (Ky. 1956); Merrick v. Commonwealth, 132 S.W.3d 220 (Ky.
App. 2004); Smith v. Goodyear Tire & Rubber Co., 772 S.W.2d 640 (Ky. App.
1989).
Dr. Fields and Family Medicine Center claim trial court error for
failure to dismiss the second (Greenup Circuit) civil action brought by the
Womacks. The controlling statute is as follows:
If an action is commenced in due time and in good faith
in any court of this state and the defendants or any of
them make defense, and it is adjudged that the court had
no jurisdiction of the action, the plaintiff or his
representative may, within ninety days from the time of
that judgment, commence a new action in the proper
court.
-5-
KRS 413.270(1). The Womacks first filed suit in the Boyd Circuit Court within
the time allowed by law. Nothing in the record suggests that it was not brought in
good faith. As was their right, Dr. Fields and Family Medicine Center sought
dismissal of the action in the Boyd Circuit Court on grounds of improper venue,
and that court dismissed the action without prejudice on July 21, 2003. In such
circumstances, KRS 413.270(1) provides an additional ninety-day period to bring
the action in an appropriate forum. The Womacks did just that. They filed a new
claim on August 6, 2003, in the Greenup Circuit Court, naming Dr. Fields and
Family Medicine Center. This was well within the ninety-day time period allowed.
The Womacks’ Greenup Circuit Court action was protected by the
saving statute, KRS 413.270(1). Venue in the Greenup Circuit Court was proper,
and there was no error by allowing the action to proceed. Dollar General Stores,
Ltd. v. Smith, 237 S.W.3d 162 (Ky. 2007), is controlling.
Dr. Fields and Family Medicine Center next contend that the mediated
settlement is void as to each of them. They suggest this because neither they nor
their attorney were present at the mediation, and American Physicians Assurance,
who was present, lacked authority to settle the claim without their consent. They
also argue that there was never a grant of authority to the insurance company to
settle the claim, that the mediation was not conducted in a timely manner and that
the mediation included parties from the Boyd Circuit Court action. There is no
merit in these arguments.
-6-
As to the authority of the insurance company to settle, Dr. Fields and
Family Medicine Center were notified by American Physicians Assurance that
their medical malpractice policy would not be renewed. The insurance company
had this option as a part of the contract of insurance. They were provided the
opportunity to purchase ongoing or “tail” insurance coverage which would have
preserved their right to require the insurance company to refrain from any
settlement they did not approve. Dr. Fields and Family Medicine Center failed to
preserve this right.
“In the absence of ambiguity a written instrument will be strictly
enforced according to its terms.” Mounts v. Roberts, 388 S.W.2d 117, 119 (Ky.
1965). The insurance contract provides that the insurance company shall not settle
any claim without written consent from the insured unless “[t]he COMPANY, at
the time of payment of DAMAGES, no longer provides professional liability
insurance to the NAMED INSURED.” It is clear from the record that at the time
of the mediation, American Physicians Assurance had ceased to provide
professional liability insurance to Dr. Fields or Family Medicine Center. The
insurance company was free to settle the action as it chose. It did not require
authorization or permission from Dr. Fields or Family Medicine Center. All other
arguments are moot.
Finally, by their cross-appeal, the Womacks argue that it was error for
the trial court to fail to award attorney fees for what they term a “frivolous motion
-7-
and appeal.” They contend that it was not reasonable for Dr. Fields and Family
Medicine Center to object to the settlement in view of the clear contract language.
With respect to payment of attorneys’ fees, Kentucky follows the
American Rule. The rule provides “in the absence of a statute or contract
expressly providing therefor, attorney fees are not allowable as costs, nor
recoverable as an item of damages.” Cummings v. Covey, 229 S.W.3d 59, 61 (Ky.
App. 2007). There is nothing here to suggest that the trial court abused its
discretion when it followed the general rule that parties in litigation are responsible
for their own attorney fees. There was no abuse of discretion, and there was no
error.
In summary, the Greenup Circuit Court was correct in its
determination that the complaint was brought in a timely manner pursuant to the
saving statute. There was no error when the court overruled Dr. Fields’s and
Family Medicine Center’s motion to dismiss. By virtue of its contract, American
Physicians Assurance had full authority to settle the case, and the trial court did not
abuse its discretion when it declined to award attorney fees to the Womacks.
The judgment of the Greenup Circuit Court is affirmed.
ALL CONCUR.
-8-
BRIEFS FOR APPELLANT/CROSSAPPELLEE, LARRY S. FIELDS,
M.D.; AND FOR CROSSAPPELLEE/CROSS-APPELLANT,
FAMILY MEDICINE PRACTICE,
P.L.L.C.:
BRIEFS FOR APPELLEES/CROSSAPPELLANTS, ANDREA AND
NOAH WOMACK:
David O. Welch
Ashland, Kentucky
BRIEFS FOR APPELLEE/CROSSAPPELLANT, AMERICAN
PHYSICIANS ASSURANCE
CORPORATION:
Jerome P. Prather
Lexington, Kentucky
Walter E. Haggerty
Cincinnati, Ohio
-9-
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.