Appellate Decisions

Richard S. Sexton v. Stephen L. Bates, Judge, Kentucky Court of Appeals, 41 S.W.3d 452 (2001). Mr. Walters represented Mr. Sexton in a case that found a civil defendant in Kentucky has the right to choose the physician who will examine the plaintiff. The Judge in the underlying case ordered that the Court would choose a physician to perform a medical examination on the Plaintiff, as opposed to allowing the Defendant to make that choice. Mr. Walters appealed the Judge's decision directly to the Kentucky Court of Appeals, arguing that the Trial Judge does not have the authority to choose the examining physician on behalf of the Defendant. The Kentucky Court of Appeals agreed, and concluded that the Defendant and his counsel had the sole discretion to select a physician of their choosing. This decision was not appealed to the Supreme Court, and the Court of Appeals' decision was published.

Metropolitan Property & Casualty Insurance Company v. Robert B. Overstreet, Judge, Kentucky Supreme Court, 103 S.W.3d 31 (2003). Mr. Walters represented MetLife in a case that set the standard in Kentucky for Plaintiff's counsel's involvement in a medical examination of their client. In the underlying case, the Trial Judge ordered that the Plaintiff would be permitted to video tape the medical examination of the Plaintiff performed by the physician retained by MetLife. Mr. Walters, on behalf of MetLife, appealed that decision to the Supreme Court. The Supreme Court ultimately concluded in a published opinion that, while the Plaintiff was entitled to video tape the defense's medical examination under certain limited circumstances, there must be a specific showing by Plaintiff's counsel of a need for such video taping.

Bartley v. Educational Training Systems, Inc., Ky., 134 S.W.3d 612 (May 20, 2004) (Released for Publication June 10, 2004). Mr. Davis responded on behalf of a Lexington real estate school to an appeal of summary judgment against a plaintiff student who tripped and fell in a classroom. The primary issue concerned the legacy of the Court's newly-established burden-shifting approach to slip and fall cases set forth in Lanier v. Wal-Mart Stores, Inc., which involved transient substances. Because the Court's rationale in Lanier was based upon the unique qualities of transient substances in self-service retail environments, ETS argued that Lanier should have no application to other types of slip and falls. However, the Kentucky Supreme Court held that its new burden-shifting approach would not be limited to self-service retail shops.

Lexington Fayette County Food and Beverage Association v. Lexington-Fayette Urban County Government, Kentucky Supreme Court, 131 S.W.3d 745 (2004). Mr. Walters represented a group of Fayette County bar and restaurant owners who were contesting the constitutionality of the smoking ban enacted by the Lexington Fayette Urban County Government. This smoking ban was the first of its kind in the state of Kentucky, and made national news due to Kentucky's reputation as a tobacco state. During the course of this litigation, Mr. Walters appeared numerous times on state and local news broadcasts, local radio programs, and was quoted often in the state's newspapers. During a seven month period, Mr. Walters appeared twice before the Fayette Circuit Court, twice before the Kentucky Court of Appeals, and finally before the Kentucky Supreme Court to argue the constitutionality of the ban. Ultimately, the Supreme Court upheld the smoking ban in a 6 to 1 published opinion.

Scottsdale Insurance Company v. Norman Flowers and Kathleen Burke, Sixth Circuit Court of Appeals, Civil Action No. 3:06-CV-632. Mr. Walters represented Scottsdale Insurance Company in a declaratory judgment action filed against its insured, Norman Flowers, and the Plaintiff, Kathleen Burke. In the underlying state court action, the Plaintiff had accused Mr. Flowers of abusing his relationship as her therapist by persuading her to engage in a romantic relationship outside of therapy. Mr. Walters, on behalf of Scottsdale, moved for declaratory judgment arguing that Scottsdale owed no coverage to Mr. Flowers for these alleged actions as a therapist, as the acts were taken outside the scope of his employment. The District Court agreed and granted a declaratory judgment on behalf of Scottsdale. The Plaintiff, Kathleen Burke, appealed this matter to the Sixth Circuit Court of Appeals. In a published opinion, the Sixth Circuit Court of Appeals affirmed the decision of the District Court, finding that Mr. Flowers' actions were outside the scope of employment and, therefore, not covered. The Sixth Circuit also considered the issue of federal court jurisdiction for the coverage issue, and concluded the federal court had properly exercised jurisdiction over the coverage issue.

Coomer v. Phelps and Progressive Northern Insurance Company; 117 S. W.3d 389 (Ky. 2005). Golden and Walters represented Mr. Phelps in this matter. He was driving his vehicle and ran over the Plaintiff's leg. The Plaintiff executed a release with Progressive. After the release was executed, the Plaintiff learned her injury was much more severe than originally thought. Golden and Walters filed a Motion for Summary Judgment which was granted. The ruling was challenged and was argued in front of the Kentucky Supreme Court. Mr. Feld advocated on behalf of Mr. Phelps and the Kentucky Supreme Court issued a unanimous opinion in Mr. Phelps' favor.

Board of Education of Fayette County, Kentucky v. Melinda Lewis Cobb, Kentucky Supreme Court, 163 S.W.3d 389 (2005). Mr. Walters and his partner, Dale Golden, represented Ms. Cobb before a three person tribunal and an administrative law judge in a hearing on the propriety of her termination. The Fayette County School Board had terminated Ms. Cobb, a principal, for allegedly bringing a gun into the school building among other various charges. The tribunal ultimately found that the firing was not substantiated, and instead concluded that a short suspension was more appropriate. The school board appealed the tribunal's decision, and argued that the tribunal did not have the power to reduce the punishment handed out by the school superintendent. Mr. Walters argued before the Kentucky Supreme Court that the tribunal did have this power, and the Supreme Court agreed in a published decision.

Geneva C. Bartley v. Educational Training Systems, Inc., Kentucky Supreme Court 134 S.W.3d 612 (2004). Mr. Walters represented the Defendant, ETS, who was awarded Summary Judgment on the Plaintiff's claim of a slip and fall injury based upon the use of a runner in ETS' classroom. The Trial Court concluded that the Plaintiff could not establish an inherent problem with the runner, and could not establish that the condition of the runner was known to ETS prior to the fall. This decision was appealed by the Plaintiff, and, in the interim, the law changed with regard to the proper standard for summary judgment on a slip and fall in a public store. The Supreme Court concluded that the change in the law applied to a school as well, and remanded the case to the Trial Court for further proceedings consistent with that ruling.

Estate of Clem v. Western Heritage Ins. Co., 195 Fed. Appx. 328, 2006 U.S. App. LEXIS 20604 (6th Circuit, 2006). As lead counsel for defendant/appellee, Mr. Davis represented and obtained summary judgment in favor of insurer which denied coverage to its insured parade organizer for the claims of the estate of a teenager killed in a parade accident after leaving the main parade route, based upon a policy exclusion for participants. The estate reached a $6 million settlement with the parade organizer and filed suit against the insurer, and that case was removed to the U.S. District Court for the Eastern District of Kentucky. Both parties filed for summary judgment, which the district court granted to the insurer. The Sixth Circuit affirmed, and the plaintiff/appellant's petition for writ of certiorari was denied on February 20, 2007.