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McBrayer Blogs

Insurers Beware: Bad Faith Claims

Things seemed to be going better for insurers on bad faith claims in Kentucky after the case of Hollaway v. Direct General Insurance in September of 2016, which clarified the stringent standards for third party bad faith claims. Bad faith law in Kentucky took another turn, however, with the Kentucky Supreme Court case of Indiana Insurance Co. v. Demetre¸ which upheld a $3.425 million verdict against Indiana Insurance Company. What makes this case even more challenging for insurers is that Indiana Insurance paid the claim AND defended the insured in court, proving that bad faith can still be found even where the insurer substantially performs as required. More >

Advantages of Mediation

The world of mediation can be a strange place for those expecting a more adversarial process. Rather than act on behalf of either party, the mediator plays a role in the middle, acting as a buffer between the parties to bring them together for mutual benefit. Just as with the conductor of an orchestra, the mediator is there not to create something herself, but to guide the others to do so. A mediator is not only a conductor or a referee, however, and the way a mediator works within the role can add significant value to a mediation. More >

Kentucky Motor Vehicle Reparations Act: The Basics

Sometimes referred to the “No-Fault Act,” the Kentucky Motor Vehicle Reparation Act (“MVRA”) was enacted by the General Assembly in 1974 and ushered in great change in the Commonwealth’s motor vehicle insurance law. The MVRA, which is codified at KRS 304.39, consists of two main components: basic reparation benefits (“BRB”) and tort limitations. Below, some of the key tenets of each component are discussed. More >

Breaking Down the Magnuson-Moss Warranty Act

The federal Magnuson-Moss Warranty Act is the law that keeps manufacturers up at night, and rightfully so. The law is designed to provide a remedy to consumers for failure of manufacturers to abide by their warranties, but it provides an even heavier cudgel for attacking manufacturers than Congress may have intended.  Regardless of its flaws, it pays to understand the outline of the law as it applies to manufacturers. More >

Legislature Takes the Bite Out of Landlord Liability for Dogs

In news that should have tails wagging for landlords and insurance providers throughout the Commonwealth, the statehouse passed a revision to the law that confers liability on dog owners by largely exempting landlords from liability.  This modification is a response to a 2012 Kentucky Supreme Court case that conferred potential strict liability on landlords for dog bites. Since that decision five years ago, landlord groups, insurance companies, and chambers of commerce have been working to pass a law to clarify that liability is the responsibility of the dog owner. Earlier this year, Rep. Stan Lee of Lexington led the charge  to make the change in law, which is expected to result in lower insurance premiums and less court appearances for landlords across the state. More >

No Malice Aforethought: The Current State of "Malicious Prosecution"

To effectively limit and guide human behavior, the law needs (at least) discoverability, predictability and, above all, consistency. To be just, a cause of action and its elements should be defined and applied in the same way for similarly-situated individuals. That makes it especially problematic that there are so many conflicting rules and interpretations for “malicious prosecution” at both the state and federal levels. More >

The Case for Diversity in a Law Firm Setting

Posted In Corporate, Diversity

As lawyers and legal professionals, we work in one of the least diverse professions in the country. At McBrayer, we are committed to doing our part to help improve diversity and inclusion in the profession. Lawyers can be slow to change, much like the law itself, but several recent initiatives give us hope.  More >

Rule 30(b)(6) in Depositions and at Trial

Posted In Litigation

One of the big “if only” moments in corporate litigation concerns testimony: if only a corporation as a corporation could face deposition. Despite the legal fiction that corporations have an identity, it remains impossible, absent some serious and frightening advances in future technology, for a corporation to testify on its own behalf. To get around this dilemma, the Federal Rules of Civil Procedure include Rule 30(b)(6) (“30(b)(6)”). This rule allows a party to name an entity such as a corporation, an association or a governmental agency as a deponent, and that entity will then designate a representative to be deposed on behalf of the company. (Kentucky’s Civil Rule of Procedure 30.02(6) substantially tracks the federal rule, so this information applies to both Kentucky and federal courts.) The rub is that 30(b)(6) deponents face a different set of standards for testimony than regular deponents, and that difference could create havoc for a client, up to and including sanctions. More >

Five Ways Municipalities Invite Exposure to Liability

Municipalities can be complicated and complex entities serving hundreds to thousands of individuals and businesses, while  employing numerous people themselves. Cities, not unlike any small or big business, face similar challenges (and liabilities) as  any private corporation, only with the added mandate of providing services and protection for all of those who work or live within their boundaries.  It is impossible, of course, to eliminate all liability facing municipalities in today’s public sector legal environment. Still, liability can be avoided to a large degree with planning and consideration. With that in mind, below are five ways municipalities invite exposure to liability, and more importantly, insight on how to prevent it. More >

Supreme Court Upholds Strict Diversity of Citizenship of Non-Corporate Entities for Diversity Jurisdiction

In a unanimous decision on March 7, 2016, the United States Supreme Court affirmed its longstanding principle that unincorporated entities cannot claim diversity jurisdiction for federal court purposes. This case highlights the striking differences between corporations and other entities, and provides a roadmap for how major unincorporated entities are viewed by the federal court system. More >

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