author: /s/ Joseph E. Lambert CHIEF JUSTICE

text:
    KENTUCKY BAR ASSOCIATION, CLE Commission, Movant, v. Bruce Wayne LOMINAC, Respondent,
    No. 2005-SC-000919-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.
   OPINION AND ORDER

The CLE Commission of the Kentucky Bar Association has recommended that the Court find Respondent, Bruce Wayne Lo-minac, whose Bar Roster Address is 104 Falls Street, Suite B-l, London, Kentucky 40741 and whose KBA Member Number is 86232, in non-compliance with the minimum annual continuing legal education requirements (MCLE) of SCR 3.661 for the 2004-2005 educational year. Pursuant to our Show Cause Order of November 3, 2005, both the Movant and the Respondent have submitted Responses outlining them respective positions.

Despite numerous warnings, Respondent failed to complete his MCLE requirements during the time allotted for the 2004-2005 academic year. Similarly, he failed to submit his Application for Extension of Time for Completion of Continuing Legal Education in a timely manner— though it was due September 10, 2005 Respondent’s application was postmarked September 13, 2005. Having reviewed the responses from each of the parties, it seems clear that Respondent’s reliance on his personal records of CLE attendance, rather than on the official records maintained by the KBA, was a primary reason for his non-compliance. Although it is unnecessary to provide any detailed explanation of the circumstances which led to Respondent’s deficiency, it must be noted that Respondent’s non-compliance was clearly documented in his official CLE Record and it was his responsibility to correct any discrepancies which might have existed between his personal file and the official record.

As such, upon the CLE Commission’s certification of the Respondent’s name to this Court for CLE non-compliance under SCR 3.669, we find that Respondent has failed to show cause why he should not be suspended from the practice of law or otherwise sanctioned. Wherefore, the following sanctions are adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED:

For his non-compliance with the minimum CLE requirements of SCR 3.661 for the 2004-2005 educational year:

(1) We hereby ORDER Respondent to pay a fine in the amount of four hundred dollars ($400.00), payable to the Kentucky Bar Association within twenty (20) days from the date of this Order.

(2) It is also ORDERED that the CLE Commission apply back 2.5 hours of the 4.0 technologically-transmitted credits Respondent earned after June 30, 2005 to Respondent’s 2004-2005 CLE record.

(3) Respondent must complete and report to the CLE Commission the remaining 1.25 live credits he needs for 2005 “apply-back” compliance within twenty (20) days of the date of this Order. If Respondent fails to complete and report the credits in a timely manner, he will be subject to suspension from practice for non-compliance upon motion of the Commission and Order of this Court.

(4) Furthermore, pursuant to SCR 3.667(2), Respondent shall not apply for a non-hardship extension for either the 2005-2006 or the 2006-2007 educational years.

All concur.

ENTERED: January 19, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


source: Caselaw Access Project

author: SCOTT, J., /s/ Joseph E. Lambert CHIEF JUSTICE

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Mark Joseph SMITH, Respondent.
    No. 2005-SC-0292-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.
   OPINION AND ORDER

Mark Smith, whose last known bar roster address is 8500 Running Spring Drive, Louisville, Kentucky, was admitted to the practice of law in Kentucky on May 1, 1991. On May 13, 2002, Smith was privately admonished for violating SCR 3.130-1.4(a), when he failed to adequately inform a client that he was not going to proceed with her case and thereafter failed to timely return her original documents. On February 20, 2003, Smith received a public reprimand for violating SCR 3.130-1.3 and 1.4(a), when he failed to diligently and promptly proceed with the representation of a client and to inform that client of the status of a divorce action. Kentucky Bar Association v. Smith, 97 S.W.3d 449 (Ky.2003).

On October 15, 2002, the Inquiry Commission charged Smith with three counts of professional misconduct. Count I alleged that Smith violated SCR 3.130-1.3 by failing to timely proceed with the representation of his client, J & J Properties, in the Jefferson Circuit Court and the Court of Appeals. Count II charged a violation of SCR 3.130-1.4(a), by failing to adequately communicate with the same client regarding litigation in the Jefferson Circuit Court and Court of Appeals. Finally, Count III charged Smith with violating SCR 3.130-1.8(h) and SCR 3.130-8.3(a), by attempting to settle a potential claim for malpractice liability with the same client without first advising, in writing, that independent representation in connection with such settlement negotiations is appropriate.

FACTS

J & J Properties was sued by Abeo-Bramer in the Daviess Circuit Court over a rental contract dispute. At that time, J & J owner, Jeff Gillette, hired attorney Bryan Reynolds (with the firm of Sullivan, Mountjoy, Stainback & Miller). When the case was dismissed for improper venue and refiled in the Jefferson Circuit Court, Reynolds advised Gillette that he needed to seek local counsel. Gillette thereafter contacted Smith about acting as counsel in the Jefferson County action. Per the information he had received from Reynolds, Gillette informed Smith that an answer was due on June 12, 2000. While Smith now contends that he did not agree to begin representation until the end of June, the record reflects that he informed Gillette he could handle the case and to have Reynolds fax the file documents to him. Nevertheless, Smith did not file an entry of appearance or an answer. As a result, on June 28, 2000, Abco-Bramer filed a motion for default judgment. On June 30, Smith filed an entry of appearance and a motion for an extension of time. Nonetheless, the trial court denied an extension of time and granted the default judgment on July 6, 2000.

Smith did not inform J & J of the default judgment and instead filed a motion to alter, amend, or vacate the default judgment. The trial court held a hearing on July 31, 2000, and on October 25, 2000, denied the motion. Again, Smith did not inform J & J of the proceedings and, on November 22, 2000, filed a second motion to alter, amend, or vacate the October 25 order.

Smith filed an untimely notice of appeal in the Court of Appeals on February 12, 2001. However, the court never reached the issue of timeliness because Smith did not file a signed prehearing statement, despite the deficiency notice sent by the clerk. After Smith failed to respond to a show cause order, the Court of Appeals finally dismissed the appeal. Smith did not inform J & J of such.

In the interim, Abco-Bramer twice garnished J & J’s bank accounts, collecting $15,257.00. Subsequently, through phone conversations in March and April 2001, Smith orally agreed to pay J & J restitution in the amount of $13,000. Smith was to draft a written agreement and begin paying $1,000 monthly, beginning in June 2001. He did neither. Also, Smith failed to advise J & J that independent representation in regard to the restitution/malpractice negotiations was advisable.

DISCIPLINARY PROCEEDINGS

Following an evidentiary hearing in January 2004, the trial commissioner filed his report finding Smith guilty of all three charges and recommending a nine month period of suspension based, in part, upon Smith’s two prior disciplinary sanctions. Smith thereafter appealed the decision to the Board of Governors.

Pursuant to SCR 3.370(6), the Board of Governors considered the matter de novo. Following a hearing, the Board found Smith guilty on Count I (SCR 3.130-1.3) and not guilty on Count III (SCR 3.130-1.8(h) and SCR 3.130-8.3(a)). However, three quarters of the Board (or in this case, 11 of the 16 members present and voting) were unable to reach a decision on Count II, as required by SCR 3.370(6). Nor was the Board able to reach eleven votes as to the recommended sanction for Smith’s ethical violation under Count I. The final vote was split with eight members voting for a public reprimand and eight members voting for a thirty-day suspension from the practice of law.

Pursuant to SCR 3.370(8), the Kentucky Bar Association filed a notice of review in this Court. The KBA asserts that absent review: (1) there will be no determination as to Smith’s guilt under Count II; (2) Smith will not be sanctioned for his violation of SCR 3.130-1.3 under Count I; and (3) Smith will not be assessed costs associated with the disciplinary action ($1,974.57). The KBA notes that it does not seek review of the Board’s factual resolution of Counts I and III.

SCR 3.370(6) states that “[b]oth the findings and any disciplinary action must be agreed upon by eleven (11) or three-fourths (3/4) of the members of the Board present and voting on the proceedings, whichever is less.” However, the rules do not provide for what occurs in the event the Board cannot reach a majority decision. Thus, we are in the unusual position of being compelled to take review since the Board has failed to fulfill its responsibility under the rules.

Certainly this Court has the authority to review a decision of the Board, SCR 3.370(9), as we have original jurisdiction of all disciplinary matters. However, we have typically done so in cases where we disagree with the recommended sanction. Here, the Board failed to make any recommendation as to a sanction with respect to Count I, or as to guilt on Count II.

After conducting a de novo review of the record, and hearing oral argument, we uphold the Board’s finding of guilt on Count I, and we also conclude that Smith is guilty of violating SCR 3.130-1.4(a), as charged in Count II. However, although Smith has twice been disciplined for unprofessional conduct, his counsel pointed out during oral argument that neither sanction had been imposed at the time of the violations at issue herein. Smith’s counsel argued, and the KBA did not disagree, that Smith’s professional misconduct in this case and the two prior cases all occurred contemporaneously during a time period in which Smith was not properly managing his office. Since that time, Smith has apparently undertaken some measures to improve his office and management skills and states that he is not the subject of any additional complaints. As such, we disagree with the trial commissioner’s recommendation of a nine month suspension.

Accordingly, it is hereby ordered that:

(1) Mark Joseph Smith is suspended from the practice of law in this Commonwealth for a period of fifteen days for his violations of SCR 3.130-1.3 and SCR 3.130-1.4(a). The suspension shall commence from the date of entry of this order and shall continue until Smith is reinstated pursuant to SCR 3.510(2).

(2) In accordance with SCR 3.450, Smith is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $2,187.67, and for which execution may issue from this Court upon finality of this Opinion and Order.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, ROACH, and WINTERSHEIMER, JJ., concur.

SCOTT, J.,

dissents.

I respectfully dissent. Not even the KBA Board of Governors found the Respondent guilty of Count II — nor can I. Neither did a majority of the KBA Board of Governors recommend a suspension on Count I. Under these facts I would impose a public reprimand on Count 1.1 therefore dissent.

Entered: January 19, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


author: /s/ Joseph Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Kenneth W. LAMPE, Respondent.
    No. 2005-SC-0847-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) moves this Court to declare Respondent, Kenneth W. Lampe, guilty of several charges brought in two cases before the Association. Respondent’s last known address is P.O. Box 22847, Louisville, Kentucky, 40258. The KBA also moves this Court to impose an appropriate sanction for these violations. We adopt the recommendations submitted by the Board of Governors and impose the sanctions reflected herein.

I. KBA File 8712

Respondent was properly served a four (4) count charge issued by the Inquiry Commission on March 20, 2003, alleging violations of the Rules of Professional Conduct in connection with his representation of Linda Fish.

Ms. Fish hired Respondent in November 1999 for the purpose of re-opening a workers’ compensation claim that was settled in March 1997. Ms. Fish provided a copy of her settlement agreement to Respondent. She contacted Respondent because she saw a television commercial for Respondent’s firm offering legal representation in workers’ compensation matters. Ms. Fish never made face-to-face contact with Respondent, but rather, Respondent provided all consultations and communications over the telephone. All contact between Respondent and Ms. Fish was initiated by Ms. Fish. Respondent frequently failed to return Ms. Fish’s telephone calls. When Respondent did speak with Ms. Fish, he told her that he was working on her claim and was simply waiting on an impairment rating from her physician.

In fact, Respondent was not actively working on Ms. Fish’s case and had not retained a physician to assess Ms. Fish’s impairment rating. Respondent further failed to file the necessary documents to re-open Ms. Fish’s claim prior to the expiration of the four (4) year statute of limitations which passed in March 2001. On July 6, 2001, Respondent’s law partner sent Ms. Fish a letter terminating the representation. After the termination and after receiving a bar complaint, Respondent sent a letter to Ms. Fish’s physician stating that he was representing her and requesting medical records. Respondent also sent a medical authorization signed by Ms. Fish to the physician. On the medical authorization form, Respondent falsely indicated that the form was signed sometime after the representation was actually terminated.

At a hearing on the matter, Respondent claimed that he was not aware that there was a four (4) year statute of limitations for re-opening workers’ compensations claims and that he had little experience in workers’ compensation matters. The Trial Commissioner found Respondent guilty of violating SCR 3.130-1.1, for failing to provide competent representation to a client; SCR 3.130-1.3, for failing to act with reasonable diligence and promptness in representing a client; SCR 3.130 — 1.4(a), for failing to keep his client reasonably informed about the status of the matter and promptly complying with reasonable requests for information; and SCR 8.3(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation during the course of Respondent’s representation of Ms. Fish and his response to her bar complaint. Respondent was also adjudicated guilty of all charges by a unanimous vote of twenty to zero (20-0) by the Board of Governors.

II. KBA File 10845

Respondent was properly served a three (3) count charge issued by the Inquiry Commission on February 11, 2004, alleging violations of the Rules of Professional Conduct in connection with his representation of Saeid Khosdel. Respondent failed to respond to the initial bar complaint and a reminder letter. Respondent, nonetheless, was permitted to defend the claim and did participate in a hearing on the matter. Respondent claimed that he was suffering from a serious depression and that was a factor in his initial failures to respond.

Respondent was hired by Mr. Khosdel in March 2001 for the purpose of commencing a bodily injury claim. At this time, Mr. Khosdel was receiving medical treatment for his injuries. Respondent corresponded with the insurance companies, interviewed the police officer who completed a police report in the matter, interviewed Mr. Khosdel, and interviewed a witness to the accident. On August 20, 2001, Mr. Khosdel’s medical provider sent a letter to Respondent stating that Mr. Khosdel had reached maximum medical improvement (MMI).

After receiving the August 20, 2001, letter, Respondent failed to correspond with the liability insurance company, file a lawsuit, or otherwise pursue Mr. Khosdel’s claim. Respondent made no attempts to contact Mr. Khosdel and when Mr. Khos-del contacted him, he repeatedly stated that he was working on Mr. Khosdel’s case. After sixteen months of failing to take any action on his claim, Mr. Khosdel terminated Respondent’s representation. Mr. Khosdel hired another attorney and his matter is currently pending in the Jefferson Circuit Court.

At a hearing on the matter, the Trial Commissioner found that Respondent violated SCR 3.130-1.3 for failing to act with reasonable diligence and promptness in representing a client; and SCR 3.130-1.4(a) for failing to keep his client reasonably informed about the status of the matter and promptly complying with reasonable requests for information. The Trial Commissioner found Respondent not guilty of violating SCR 8.1(b), for knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority. On review, the Board of Governors adopted the Trial Commissioners’ determinations by a vote of eleven to nine (11-9) for violating SCR 3.130-1.3 and SCR 3.130-1.4(a) and eight to twelve (8-12) for not violating SCR 8.1(b).

III. Conclusion

The record in this case indicates a clear pattern of noncompliance with the rules of Respondent’s chosen profession. Upon the foregoing facts and charges, we find sufficient evidence to find Respondent guilty of all counts charged in KBA File No. 8712 and guilty of violation of SCR 3.130-1.3 and SCR 3.130-1.4(a) in KBA File No. 10845. We further hold that Respondent should be sanctioned.

Accordingly, it is hereby ORDERED that:

1. Respondent, Kenneth W. Lampe, is adjudicated guilty of all charges alleged in KBA File 8712 and guilty of violation of SCR 3.130-1.3 and SCR 3.130-1.4(a) in KBA File No. 10845.

2. Respondent is suspended from the practice of law in Kentucky for a period of 120 days. The period of suspension shall commence on the date of entry of this order.

3. In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings in the amount of $2,188.27 for which execution may issue from this Court upon finality of this Order.

4. In accordance with SCR 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his suspension from the practice of law. Respondent shall furnish copies of said letters of notice to the Director of the Kentucky Bar Association. Upon the issuance of said Opinion and Order, Respondent shall immediately, to the extent possible, cancel and cease any advertising activities in which he is engaged.

All concur.

ENTERED: January 19, 2006.

/s/ Joseph Lambert Chief Justice


author: /s/ Joseph E. Lambert Chief Justice

text:
    Lawrence R. WEBSTER, KBA No. 75195, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0972-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.
    Lawrence R. Webster, Pikeville, for Movant.

      Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, for Respondent.
   OPINION AND ORDER

Lawrence R. Webster, KBA No. 75195, whose bar roster address is P.O. Drawer 712, Pikeville, Kentucky 41502, was admitted to the practice of law on August 1, 1970.

Pursuant to SCR 3.3480(2), Webster moves this Court to publicly reprimand him for violations he admits of SCR 3.130-1.4(b), SCR 3.130-1.5(c), and two distinct violations of SCR 3.130-1.15(a). He also asserts that he will reimburse a client a portion of fees.

The Kentucky Bar Association states that it has no objection to Webster’s motion and sets forth that the public reprimand include a condition that Webster reimburse his client $1,258.50, which represents one-half of the contingency fee taken within thirty (30) days of this order. It suggests that the sanction for failure to comply with the condition be a thirty (30) day suspension.

In 2000, a client hired Webster to file a lawsuit, which resulted in a default judgment in the amount of $25,000. On July 12, 2000, Webster sent a letter to the client explaining the judgment and that he would try to attach the judgment to whatever property the defendant owned. This process resulted in a sheriffs sale which yielded $8500. On September 6, 2001, the Pike Circuit Court issued a check to Webster for $7,552.24 representing the proceeds less property taxes. On September 11, Webster deducted one-third as a contingency fee and forwarded that amount to his client.

On September 24, 2001, Webster received a check for $68.33 from the county for overpayment of property taxes on the proceeds of the sheriffs sale. Webster deposited this check to a general fund, and not an escrow account, despite it being client property. On October 3, Webster issued a check to the client for this amount minus one-third.

There was no written client agreement stating that the .contingency fee was one-third. However, Webster wrote with the delivery of the October 3 check, “as per our agreement, my fee is one-third of any money collected.”

On March 22, 2002, another sheriffs sale yielded two life estates purchased at $500 each. The Pike Circuit Court sent the check directly to the client for $961.

Webster claims to have advised his client of the nature of sheriffs sales such as the rights the client would have to bid, the responsibilities they would have such as the potential for cash bonds, and that they can arrange for representation. However, none of the letters sent to the client contained any information about these matters. Webster further admits that he failed to advise the clients in a manner reasonably sufficient for them to make informed decisions.

In September and October of 2001, Webster maintained a general checking account at a Pikeville Bank. This account was used for paying bills and employee salaries, including his. During this time, he caused client funds to be deposited into this account. At least 14 separate checks, in amounts ranging from $600 to $40,000, on behalf of at least 9 clients were deposited into this account.

Webster admits that he violated SCR 3.150-1.4(b) by failing to explain sufficiently the execution and sale process in the aid of collections nor advising the client concerning appropriate actions the client could take such that the client was unable to make informed decisions regarding the sheriffs sales.

He admits violating SCR 3.130-1.5(c) by taking a contingent fee from client funds without a proper written client agreement. SCR 3.130-1.5(c) requires that a fee contingent on the outcome of a matter be based on a written client agreement that sets forth, among other things, the percent to be taken and how expenses are to be handled with regard to the calculation of percentages.

He admits violating SCR-3.130-1.15(a) for causing client funds to be deposited into his general office account both with his client for whom he was collecting funds and with other clients.

This Court, upon reviewing this case, finds the sanction to be appropriate in this matter. In 1984, Webster received a private admonition. In 1990, he was privately reprimanded and in 1992, he received a private admonition. Although two of these previous discipline cases were based on violations similar to his violation of SCR 3.130-1.5(c) wherein he took contingency fees without a written client agreement, we expect that with this public reprimand Webster will not take such fees again without a written client agreement as stated in that rule.

Therefore, it is ORDERED that:

1. Lawrence R. Webster is publicly reprimanded for violating SCR 3.130-1.4(b), SCR 3.130-1.5(c), and SCR 3.130-1.15(a);
2. Within thirty (30) days of this order, Webster must reimburse $1258.50 to his former client. Failure to perform this reimbursement shall result in a 30-day suspension.
3. Webster shall not attempt to collect any other fee from his former client for work done in the matter of collecting the $25,000 default judgment for that client.
4.Pursuant to SCR 3.450, Webster is directed to pay all costs associated with these disciplinary proceedings in the amount of $204.80, for which execution may issue from this Court upon finality of this Order.

All concur.

Entered: January 19, 2006.

/s/ Joseph E. Lambert Chief Justice


text:
    Brad COFFMAN, Esq., KBA Member No. 13043, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-000973-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.

      Peter L. Ostermiller, Louisville, Counsel for Movant.
    Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Office of Bar Counsel, Kentucky Bar Association, Frankfort, Counsel for Respondent.
   OPINION AND ORDER

Movant, Brad Coffman, Esq., was admitted to the practice of law in the Commonwealth of Kentucky in 1977. He practices in Western Kentucky and concentrates his practice in the area of criminal defense both in state and federal courts. His bar roster address is 917 College Street, P.O. Box 1359, Bowling Green, KY 42102-1359.

On August 12, 2002, a criminal information case number 02-CR-42 was filed against Mr. Coffman by the U.S. Attorney’s Office for the Eastern District of Kentucky for allegedly failing to pay taxes. On December 19, 2002 Mr. Coffman entered a guilty plea to one count of the information and the other count was dismissed and the matter was passed for sentencing.

On April 17, 2003, the U.S. District Court conducted a sentencing hearing in which Mr. Coffman was present in person and by counsel, Scott Cox. At the hearing, Dr. Loreen Rugle, a psychologist and a recognized expert in the area of gambling addictions, testified that she conducted a psychological assessment of Mr. Coffman and had reached the professional conclusion that Mr. Coffman’s conduct during the late 1990’s met the diagnosis of a pathological gambler. She further spoke on the seeming inconsistencies in the behavior patterns of pathological gamblers as to what financial obligations are paid and what financial obligations are not paid by a person engaged in pathological gambling. Dr. Rugle noted that approximately one-half of all persons suffering from pathological gambling disorders also have a concurrent substance or alcohol abuse problem and that in her opinion Mr. Coffman primarily suffered from a gambling addiction problem which had a secondary disorder of alcohol abuse.

The U.S. District Court found that Mr. Coffman suffered from a pathological gambling disorder and that his disorder significantly reduced his mental capacity to commit the criminal offense of willful failure to pay income taxes. The U.S. District Court concluded that Mr. Coffman’s gambling disorder fully contributed to the commission of the offense on which he entered his guilty plea and accordingly, the U.S. District Court sentenced Mr. Coffman to misdemeanor probation for five years, and imposed certain conditions of his probation, such as, drug and alcohol testing, mental health counseling, and restitution for the unpaid tax obligations as set out in his plea agreement. The U.S. District Court’s sentencing decision is reflected in its Amended Judgment entered May 12, 2003.

Mr. Coffman has since seriously and aggressively addressed his gambling addiction, alcohol abuse and major depression issues. Mr. Coffman has not engaged in any gambling activity since July of 1999 and attends GA meetings once a month in Louisville. Additionally Mr. Coffman has been sober since October of 2002 and attends regular AA meetings at least two times per week. Since late 2003, Mr. Coff-man has also been a volunteer counselor in the Kentucky Bar Association’s Kentucky Lawyer Assistance Program, i.e., KYLAP.

Because Mr. Coffman has aggressively and appropriately addressed his gambling addiction and alcohol abuse problems, he has requested and filed a verified motion for consensual discipline. The Kentucky Bar Association, in response to the Mr. Coffman’s Verified Motion for Consensual Discipline, stated that it has no objection to the Respondent’s motion and after reviewing the facts and case law, the KBA concluded that the appropriate discipline in this matter is a public reprimand and a suspension of sixty-one days, with the period of suspension probated until termination of the period of probation in his underlying criminal case.

This Court, in previous decisions, has granted similar discipline in which attorneys have been publicly reprimanded, with a probated suspension period. Aulenbach v. Kentucky Bar Association, 151 S.W.3d 330 (Ky.2004); Pulliam v. Kentucky Bar Association, 84 S.W.3d 455 (Ky.2002); Kentucky Bar Association v. Colston, 54 S.W.3d 158 (Ky.2001).

Therefore, we adopt the finding of the KBA regarding the appropriate discipline in this matter and order Mr. Coffman shall be publicly reprimanded and suspended for sixty-one days, with the period of suspension probated until termination of the period of probation in his underlying criminal case, United States v. Coffman, 02-CR-42, subject to the conditions set forth in the Verified Motion for Consensual Discipline and this Order.

Thus, it is ORDERED that:

1) Mr. Coffman will remain in compliance with all terms of the probation in case number 02-CR-42.

2) Mr. Coffman will abstain from the consumption of alcoholic beverages.

3) Mr. Coffman shall continue attending alcoholic’s anonymous meetings and shall abstain from gambling in any form.

• - 4) Mr. Coffman shall submit to supervision as approved by the Kentucky Bar Association’s Lawyer Assistance Program, and such supervision shall continue to the extent and duration as deemed necessary and appropriate by KYLAP during the period of his federal probation.

5) Mr. Coffman shall not have any additional disciplinary charges initiated against him pursuant to SCR 3.190.

6) Mr. Coffman, shall pay the costs of $8.38, for which execution may issue from this court upon finality of this Opinion and Order.

7) Mr. Coffman shall execute an appropriate release to authorize the Kentucky Bar Association to directly communicate with, and obtain information from, his probation officer in case number 02-CR-42

8) In the event Mr. Coffman violates the terms of his probation as set out in the Motion for Consensual Discipline, and this Order, prior to the termination of the period of probation in his underlying criminal case, United States v. Coffman, Eastern District of Kentucky, case number 02-CR-42, the KBA may file a Motion with this Court requesting the issuance of a Show Cause Order directing him to show cause, if any he has, why the sixty-one day suspension should not be imposed.

9) At the expiration of the probationary period as set forth above, and in the event of Mr. Coffman’s full compliance with, and performance of, all of the conditions imposed herein, the Order of Suspension shall be terminated, and all of the terms of Mr. Coffman’s probation pursuant to said Order shall be terminated.

All concur.

ENTERED: January 19, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. James Basil GRAY, Respondent.
    No. 2005-SC-0908-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.
   OPINION AND ORDER

This matter is before the Court on the motion of the Kentucky Bar Association (KBA) for an Order of temporary suspension of the Respondent, James B. Gray, KBA Member No. 88427, of Independence, Kentucky. The Court grants the motion in accordance with SCR 8.166 due to Respondent’s felony conviction in the Kenton Circuit Court.

On October 27, 2005, Respondent pled guilty to Theft of a Controlled Substance with a Value of $300 or Less, a Class D felony. KRS 218A.1418. On October 28, 2005, he was granted pretrial diversion.

Any member of the Kentucky Bar Association who pleads guilty to, or is convicted by a judge or jury of, a felony in this State or in any other jurisdiction shall be automatically suspended from the practice of law in this Commonwealth .... The suspension shall take effect automatically beginning on the day following the plea of guilty or finding of guilt by a judge or jury or upon the entry of judgment whichever occurs first.

SCR 3.166(1). The suspension required by this rule is not affected by the fact that the member was subsequently granted a pretrial diversion. Ky. Bar Ass’n v. Haggard, 57 S.W.3d 300, 302 (Ky.2001).

ACCORDINGLY, IT IS HEREBY ORDERED:

(1) That Respondent was suspended from the practice of law in the Commonwealth of Kentucky from October 28, 2005, “the day following the plea of guilty;”

(2) That this suspension will continue until superseded by subsequent order; and

(3) In accordance with SCR 3.166(4) and 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify in writing all courts in which he may have matters pending, and all clients for whom he is actively involved in legal representation, of his inability to provide further legal services, and he shall furnish the Director of the Kentucky Bar Association with a copy of all such letters. Furthermore, Respondent shall make arrangements to return all active files to the clients or to new counsel, shall return all unearned attorney fees and client property to the client, and shall advise the KBA Director of such arrangements within the same ten day period.

All concur.

ENTERED: January 19, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Gary L. GREENWELL, Respondent.
    No. 2005-SC-000921-KB.
    Supreme Court of Kentucky.
    Jan. 19, 2006.
    John D Meyers, Kentucky Bar Association, Frankfort, Counsel for Movant.
    Gary Greenwell, Louisville, Counsel for Respondent.
   OPINION AND ORDER

On November 5, 2005, a Show Cause Order was served upon Respondent, Gary L. Greenwell, whose bar roster address is 217 Fairmeade Road, Louisville, KY 40207, for his non-payment of bar dues and noncompliance with continuing legal education requirement. Mr. Greenwell is deficient 7.25 credits and is in non-compliance with the minimum annual continuing legal education requirements (MCLE) of SCR 3.661 for the 2004-2005 educational year and has not certified any credits to remedy this deficiency.

Beginning May 2005, the Kentucky Bar Association Continuing Legal Education Commission sent five written notices concerning Mr. Greenwell’s deficiency by mail. In addition to these written notifications, the Assistant CLE Director attempted to contact Mr. Greenwell by telephone at his home. On September 10, 2005, the Assistant Director left a voicemail message for a return call. Again, the Assistant Director called the same number on October 6, 2005 and left another message to return the call. On the next day, the Assistant Director tried, yet again, to contact Mr. Greenwell and left a message with a woman who answered the phone; Mr. Green-well did not return either call.

One week later the Assistant Director again called Mr. Greenwell and left a message for a return call. Another week later, Mr. Greenwell finally returned the call and told the Assistant Director he wanted to put his license “into retirement” because he does not practice law and does not wish to pursue his legal career. The Assistant Director told Mr. Greenwell that to do so, he would have to file a motion to withdraw as soon as possible so as to avoid certification for CLE non-compliance. The Assistant Director transferred Mr. Greenwell to Karen Cobb in the KBA Membership Department for information and forms regarding withdrawal from membership.

In response to the Show Cause Order and the conversations with the Assistant Director, Mr. Greenwell wrote a letter, filed by the Court on November 22, 2005 to Paula Yeast stating that he wished to retire or withdraw his bar license due to retirement. Mr. Greenwell stated he had never actually practiced law, because he was a registered Architect. All dues and late fees were paid in full, although he has still not completed the CLE requirements for the past year.

The Commission has asked this Court to suspend Mr. Greenwell’s license for his failure to obtain any credits to cure his 2004-2005 deficiency and his failure to show cause why he should not be suspended form the practice of law pursuant to SCR 3.669(4).

Accordingly, on motion of the Kentucky Bar Association CLE Commission pursuant to SCR 3.669, it is ordered that Respondent, Mr. Greenwell is suspended from the practice of law in this Commonwealth and shall surrender his license to practice.

It is further ordered that:

1) Respondent shall not be permitted to engage in the practice of law in the Commonwealth of Kentucky as defined by SCR 3.020 until such time as this Court enters an order restoring his membership in the Kentucky Bar Association.

2) Respondent shall not file an application for restoration until such time as any CLE deficiency is cured and he has met the requirements SCR 3.675.

3) Any application for restoration shall be governed by SCR 3.500, the rule providing for restoration in cases of failure to comply with the continuing legal education requirements of SCR 3.661.

All concur.

ENTERED: January 19, 2006.

/s/ Joseph E. Lambert CHIEF JUSTICE


author: COMBS, Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Karen Holroyd BULT, Individually and as Executrix of the Estate of Ashley Holroyd Bult; Craig Betenson Bult; Lee E. Sitlinger; and Sitlinger, McGlincy, Steiner, Theiler Karem, Appellees.
    No. 2002-CA-000482-MR.
    Court of Appeals of Kentucky.
    June 6, 2003.
    As Modified June 27, 2003.
    Discretionary Review Denied by Supreme Court Feb. 15, 2006.

      Wayne J. Carroll, J. Scott Sweeney, Louisville, KY, for Appellant.
    Lee E. Sitlinger, Curt L. Sitlinger, Louisville, KY, for Appellees.
    Before COMBS, GUIDUGLI, and SCHRODER, Judges.
   OPINION

COMBS, Judge.

United Services Automobile Association (USAA) appeals from a judgment of the Jefferson Circuit Court following a jury verdict in favor of Craig and Karen Bult. The Bults had filed a complaint alleging bad faith on the part of USAA in settling an insurance claim. USAA also appeals from the post-trial award of the Bults’ attorney’s fees. We reverse and remand.

On the evening of July 18, 1997, Ashley Bult, the fifteen-year-old daughter of the Bults, was critically injured in a single-vehicle accident. She was a passenger in an automobile owned by Hal and Cheryl Metcalfe and operated by the Metcalfes’ son, Chad Metcalfe. Chad had obtained his driver’s license less than three weeks before the accident. He admitted that he was “going for a thrill” as he drove at an excessive rate of speed in an attempt to render the vehicle airborne at a railroad crossing. Chad lost control of the car, and it collided with a tree. The impact occurred at the rear passenger door where Ashley was seated. Ashley sustained grievous head injuries. She never regained consciousness and died the following day. Two other passengers in the car, Jennifer Lord and Natasha Maze, also sustained serious physical injuries as a result of the accident.

Both the Metcalfes and the Bults carried their automobile insurance coverage with USAA. The Metcalfes immediately notified USAA of the accident. On Saturday, July 19, 1997, a USAA representative contacted the parents of all of the injured passengers — including Craig Bult — to inform them of USAA’s involvement. On Monday, July 21, 1997, John Moriarty, a senior claims adjuster for USAA, was assigned to handle the claims arising from the accident. He mailed forms to all those injured in the accident in order to initiate the payment of basic reparations benefits (BRB’s). Cheryl Metcalfe suggested that Moriarty let some time pass before contacting the Bults again.

Moriarty waited a few days before telephoning the Bults’ home on August 8, 1997. He testified that Karen Bult informed him that she and her husband did 'not want to discuss insurance matters at that time. At trial, Karen acknowledged receiving the call from Moriarty. However, she disagreed with Moriarty’s recollection of what transpired. Karen disputed expressing any disinclination to discuss insurance matters; rather, she testified that she told the adjuster that her husband handled such matters and that Moriarty should contact him. She also testified that she did not mention the call to her husband.

Moriarty did not hear from the Bults after his telephone call of August 8. He phoned a second time on October 9, 1997, and again spoke with Karen. He informed Karen of the $100,000 limit of liability available under the Metcalfes’ policy and the availability of a seat belt death benefit of $15,000. He also reminded her that she and her husband had not yet filed a claim for underinsured motorist coverage (UIM) and/or other benefits available under their own automobile policy. He requested that they send him a death certificate and a short biography of Ashley. Moriarty testified that Karen replied that she would relay the information to Craig and that they would be in touch with him. At trial, Karen recalled discussing some of these coverages with Moriarty. Once again, she testified that she referred Moriarty to her husband as she had following the previous contact. Although she did inform Craig of this call, he did not return Moriarty’s call. Nor did the Bults send the requested documents.

Finally, on October 23, 1997, after having heard nothing from the Bults, Moriarty sent them a certified letter. First expressing his sympathy at Ashley’s death, Moriarty informed them as follows:

We are the insurance company for Hal G. Metcalf[e], Mr. Metcalf[e]’s Liability Policy has a $100,000 limit as well as a Seat Belt Death Benefit of $25,000. I am prepared to offer you those amounts at this time.
Since you are USAA members, I have taken the liberty of opening a claim under your Underinsured Motorist Policy.
I realize that you are dealing with a difficult loss, and I look forward to hearing from you when the time is right.

Instead of responding to this letter, the Bults conferred with two attorneys. In early November 1997, they contracted with the appellee, Lee Sitlinger, for legal representation. On December 10, 1997, nearly five months after the accident, the Bults, through their attorney, made their first demand for benefits under their own policy. They requested only the payment of no-fault payments, submitting for payment some of the medical bills incurred as a result of Ashley’s hospitalization. The Bults did not mention Moriarty’s offer to set up an UIM file.

In his response to Sitlinger’s letter of December 10, 1997, Moriarty sent a letter on December 22, 1997, outlining his unsuccessful efforts to establish communication with the Bults. He informed Sitlinger that he would be on vacation until after the holidays and promised to resolve the Bults’ claims “in an amicable fashion” upon his return to the office. In January 1998, Moriarty began paying the outstanding medical bills presented to him. On February 23, 1998, USAA sent a check for $28,306.87 to Anthem, the Bults’ health insurer, to which the hospital had submitted its bills. Thereafter, between the middle of February and the first of May of 1998, USAA paid the Bults . the amounts due under their policy in the order in which they were demanded by their attorney. By the first week in May, the Bults had received all of the benefits to which they were entitled under their own policy, including: $300,000 in UIM benefits, $70,000 in BRB’s, and $15,000 — the seat belt death benefit.

On January 8, 1998, the Bults filed a claim in the Jefferson Circuit Court against Hal, Cheryl, and Chad Metcalfe. Karen, as administratrix of Ashley’s estate, sought damages for Ashley’s wrongful death; both Karen and Craig sought damages for their loss of Ashley’s consortium; and Holly Bult, Ashley’s adult sister, sought damages for the loss of her sister’s consortium. On May 12, 1998, the Bults amended their complaint to allege entitlement to $200,000 of UIM coverage provided by the Metealfes’ policy. They had by now received $300,000, the limits of UIM coverage under their own policy. In September 1998, the Bults received permission to’ file a second amended complaint in which they sought to hold CSX Transportation, Inc., jointly liable for Ashley’s injuries. They alleged that CSX was aware of the “dangerous, hazardous and unsafe condition” of the railroad crossing where the accident occurred.

The trial was scheduled to commence in April, 1999. Prior to trial, the court dismissed Holly Bult’s claim for loss of her sister’s consortium. Citing Pridham v. State Farm Mutual Insurance Co., Ky. App., 903 S.W.2d 909 (1995) (review denied), the trial court granted USAA’s motion for summary judgment on the first amended complaint, finding no liability on the part of USAA to the Bults for $200,000 of UIM coverage provided by the Met-ealfes’ policy. Finally, it granted CSX’s motion for summary judgment on the issue of its liability.

The only claims remaining to be resolved were the Bults’ negligence claims against the Metcalfes. These items were settled on the morning of trial as follows: the Metcalfes agreed to pay the Bults $25,000 immediately and to give the Bults a note for an additional $25,000 to be paid within six months and to be secured by a hen on the Metcalfes’ home; the Met-calfes agreed (as previously offered by USAA on October 23, 1997) to pay the Bults $100,000, the maximum amount of liability coverage in the Metcalfes’ USAA policy; the Metcalfes agreed to assign to the Bults any bad faith claim they may have against USAA; and the Bults agreed to release the Metcalfes from any further action or claims. Although the parties agreed that the Metcalfes would be entirely released by the payment of $150,000 (later reduced to $135,000), they agreed that a bench trial would be conducted to determine the actual amount of damages suffered by the Bults. Even though all of the defendants either had been dismissed from the lawsuit or had been released by settlement, the trial court agreed to permit the Bults to have a trial in order to ascertain the damages to which they might have been entitled had they not settled.

On June 10, 1999, the court entered a judgment in which it determined that the Bults had sustained damages in the amount of $2,313,071.20. The Bults then filed a third amended complaint, claiming that USAA had acted in bad faith in its handling of the Metcalfes’ defense and in its handling of the first-party benefits owed under the Bults’ insurance policy.

The bad faith claims were tried before a jury in October 2001. The Bults asked the jury to award them $1.8 million — the difference between the trial court’s determination of damages and the amount that they actually recovered from USAA. They sought a similar amount for their humiliation and embarrassment. Asking that the jury be “generous” in setting damages on their first-party claim of bad faith, the Bults urged the jury to send the insurance company a message by assessing hefty punitive damages.

The jury found in favor of USAA on the assigned claim and found that the Bults would not have settled their claim against the Metcalfes for the policy limits — regardless of the manner in which USAA handled the claim. Nonetheless, the jury found that USAA acted in bad faith in its handling of some of the benefits to which the Bults were entitled under their own policy. Accordingly, it awarded the Bults $100,000 in compensatory damages and $1,000,000 in punitive damages. A judgment of $1,100,000 was entered on October 26, 2001. On February 26, 2002, the trial court denied USAA’s motion for a judgment notwithstanding the verdict (jnov) or for a new trial. It also awarded the Bults an additional judgment against USAA in the amount of $366,667 for their attorney’s fees. This appeal followed.

USAA argues that the trial court erred in failing to grant its motion for a directed verdict or for a judgment notwithstanding the verdict (jnov) based on an absence of sufficient evidence to support a claim for bad faith. USAA contends that the Bults failed to meet their burden of presenting evidence of the type of gross misconduct necessary to establish a claim for bad faith in the context of the handling of insurance claims. We are compelled to agree with USAA.

Actions for bad faith insurance claims settlements in Kentucky may arise either under common law or by way of the Unfair Claims Settlement Practices Act, KRS 304.12-230. The definitive case on the subject is Wittmer v. Jones, Ky., 864 S.W.2d 885 (1993). Wittmer holds that in order to prevail on a bad faith claim, the insured must prove the following 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 there was no reasonable basis for denying the claim or acted with reckless disregard for whether such a basis existed.

Id. at 890. Holding that “there is no such thing as a ‘technical violation’ of the UCS-PA,” Wittmer defines and prescribes the nature of evidence that must exist in order for the matter to be properly submissible to a jury:

Before the cause of action [for bad faith] exists in the first place, there must be evidence sufficient to warrant punitive damages:
“The essence of the question as to whether the dispute is merely contractual or whether there are tortious elements justifying an award of punitive damages depends first on whether there is proof of bad faith and next whether the proof is sufficient for the jury to conclude that there was ‘conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” [Citations omitted.] (Emphasis added.)
This means there must be sufficient evidence of intentional misconduct or reckless disregard of the rights of an insured or a claimant to warrant submitting the right to award 'punitive damages to the jury. (Emphasis added.)

Id. See also, Guaranty National Insurance Company v. George, Ky., 953 S.W.2d 946 (1997), and Motorists Mutual Insurance Co. v. Glass, Ky., 996 S.W.2d 437 (1997, modified 1999).

The evidentiary threshold is high indeed. Evidence must demonstrate that an insurer has engaged in outrageous conduct toward its insured. Furthermore, the conduct must be driven by evil motives or by an indifference to its insureds’ rights. Absent such evidence of egregious behavior, the tort claim predicated on bad faith may not proceed to a jury. Evidence of mere negligence or failure to pay a claim in timely fashion will not suffice to support a claim for bad faith. Inadvertence, sloppiness, or tardiness will not suffice; instead, the element of malice or flagrant malfeasance must be shown.

A review of the evidence presented by the Bults reveals a complete absence of the type of conduct required to meet this standard. The Bults had carried both homeowners and automobile insurance coverage with USAA for many years prior to the accident. As late as the trial on their claims of bad faith, they continued to insure their home with USAA. Although the Bults made several claims under their automobile insurance policy over the years, they testified they were unaware that they were entitled to any sums under their own policy to compensate them for their daughter’s injuries since the accident did not involve their vehicle. Because they were unable to pay the medical and funeral expenses that they had incurred, they testified that were humiliated by the receipt of dunning notices from the providers of those services.

The Bults denied ever receiving the forms mailed by Moriarty immediately after the accident to commence the payment of BRB’s. However, they acknowledged receiving Moriarty’s phone calls and his letter of October 23, 1997, tendering an offer to give them the Metealfes’ policy limits and offering to open a claim under their own policy for UIM benefits. They testified that they did not respond to the letter because friends had encouraged them to retain legal counsel.

Four expert witnesses testified for the Bults: John W. Partlow, an insurance litigation consultant; Michael McDonald, a former judge of the Jefferson Circuit Court and of the Kentucky Court of Appeals, who had worked as an insurance claims adjuster in the 1960’s; Martin Huelsmann, a law school professor; and Larry Franklin, a practicing attorney. In support of their opinions, the experts alluded to one or more of the following facts which they believed to be elements of bad faith on the part of USAA: the insurer’s failure to employ separate claims adjusters for each of its two insureds; Moriarty’s initial setting of the reserve for the company’s liability for Ashley’s death at $75,000; USAA’s failure to inform the Bults of all the benefits to which they were entitled under their own policy immediately following the accident; USAA’s failure to offer the $100,000 liability coverage before October 28, 1997; Moriarty’s failure to follow by letter his phone calls of August and October 1997; USAA’s failure to send a personal representative to the Bults’ home to establish a line of communication; USAA’s failure to supervise Moriarty more carefully; the failure of USAA to maintain a sufficient staff to handle complex claims more promptly; and USAA’s failure to pay the first-party benefits in a more timely manner.

The Bults contend that this lengthy recital of alleged omissions is not merely indicative of bad faith but that it also constitutes compelling evidence of the insurer’s misconduct. We disagree.

It would most assuredly have been the better practice for USAA to employ two separate adjusters to avoid even the appearance of a conflict of interest. However, the Bults point to no statutory or common law duty requiring an insurer to assign two separate claims adjusters under the circumstances presented in this case. Moreover, it is undisputed that neither the Bults nor their attorney requested that a separate adjuster be assigned to handle their claims. There is no evidence to indicate that a separate adjuster to handle the Bults’ first-party claims would have been more successful than Moriarty in establishing communication with the Bults. The Bults admitted that their refusal to respond to Moriarty’s calls and letters had no relation to the fact that he was handling the claims of others involved in the accident.

Representatives of USAA testified that it was the company’s normal practice to assign separate adjusters in cases involving a collision among multiple vehicles for which it provides insurance. However, it deviated from that policy and allowed Moriarty to handle all the claims in this matter because there was only one car involved (eliminating any dispute as to which driver was at fault) and because there was no question that the damages would exceed the available limits of coverage under both policies. Thus, USAA contends that its decision not to assign a separate adjuster did not create a conflict of interest in handling the claims — nor did it cause any prejudice to the Bults.

The Bults’ experts testified that the use of one adjuster created the potential for the improper handling of claims because it might enable the adjuster to leverage the coverages owed under one of the policies against the other. However, the existence of a mere potential for conflict does not suffice to meet the burden of proof imposed upon the Bults. It was incumbent upon them to prove that USAA did in fact act improperly in handling their claims. The potential for mischief must be shown to have ripened into the reality of tortious conduct:

We recognized in Wittmer, supra, that to find bad faith there is a threshold, and the evidence must be sufficient to establish that a tort has occurred.

Guaranty National Insurance Company v. George, supra, at 949.

The Bults did not allege nor did they present evidence that Moriarty (or any other representative of USAA) offered them any amount less than the total benefits provided for in their own policy as well as the liability limits of the Metcalfes’ policy. Thus, there was no evidence of the type of leveraging suggested by the conjecture of the Bults’ expert witnesses. While assigning two adjusters might have hastened or expedited the process of handling the many claims that arose from the accident, the use of only one did not give rise to any reasonable inference that USAA was motivated by evil design or recMess disregard for the rights of the Bults.

Next, the Bults’ experts found evidence of bad faith from the amount of reserve set by Moriarty, While he originally set a reserve under the Metcalfes’ liability policy at $75,000, within a matter of days Moriarity’s supervisor increased the reserve to the full limits of liability of $100,000. Nevertheless, Judge McDonald testified that:

[wjhether [Moriarty] was low balling it or not, there’s an inference that he was gonna try to low ball it and get the thing settled for $75,000.00.

In a similar vein, attorney Franklin told the. jury that by setting the reserve at $75,000, USAA had created the potential of cheating the Bults out of their $800,000 of UIM coverage:

Well, I’m a former military person as you’ve heard and I’m with USAA, too, and I was — I was outraged to see this kind of conduct by USAA. It’s not what I want to see from people that are supposed to represent us because [setting the reserve] is the first sign of bad faith. If you got a $100,000.00 coverage and you know the liability’s absolute and they had this boy’s statement where he said it was just me, I was driving, nobody did anything else, and he said, Ashley’s got her seat belt on and then she dies and know all of that, that all they got is $100,000.00, why would you set the reserve for $75,000?
... And the treacherous part to me is if the family — the Bults were then told well we have $75,000 for you, if they would’ve accepted that, it would’ve totally knocked out their $300,000 underin-sured motorist they had in their own policy.
Now, the problem with all this is as lay people we don’t usually know all the intricacies of policies. You ever read one, it’ll put you to sleep, boring as can be, but they had rights and USAA had both families insured. These are families that lived together in the same neighborhood, these are families that prayed together for their children’s sake at the hospital. These are families that didn’t need to be pitted against each other. They just needed for the company that they both paid their hard earned money to, to do the right thing for them, and by setting that limit at $75,000.00, had they taken it, then the underinsured motorists couldn’t come into play because under the law they wouldn’t have exhausted all the insurance that was available on the car that she was in.

Judge McDonald further outlined that the purpose for setting a reserve is to satisfy state regulatory statutes and to guarantee that the insurer will have the ability to pay a claim once its liability has finally been established — either by settlement or judgment. It is certainly possible that the amount of reserve set by an adjuster could be indicative of bad faith if the insurer has denied a claim or has attempted to “low-ball” a claim. It is undoubtedly a red flag. However, we believe that the reserve set in this ease did not constitute bad faith on the part of USAA for two reasons: (1) the reserve was very quickly increased by the company after further investigation; and (2) there was never an actual attempt to negotiate or to settle the claim for $75,000. The pitfalls described in Franklin’s testimony never materialized in the actual course of conduct by USAA in processing the claim.

The remaining issues about which the Bults’ experts testified involved: Moriarty’s failure to follow up his telephone conversations with letters; his failure to meet with the Bults in person; and his failure to contact them earlier than August 8, 1997. While this evidence would at the most perhaps indicate neglect on Moriarty’s part, it falls far short of reckless disregard of the Bults’ rights or of a malevolent plot to deprive them of the benefits provided by their automobile insurance policy. In making the following observation about the case to the attorneys outside the presence of the jury, the trial judge accurately reflected upon the insubstantial nature of these complaints:

I know everybody would agree, it’s just — it’s just a shame that we’re even here. I — I mean, if just a few little things would’ve been done differently, we wouldn’t be here, and — and I think— USAA can make a very good argument to the jury. The few little things that could — would’ve been done differently to have kept us [away from] here would’ve been Mr. Bult picking up the phone and calling and — and vice versa.

As we have already observed, the evidence reveals that the Bults received all the benefits to which they were entitled under their automobile insurance policy by various payments made between January and May of 1998. While Moriarty was slow, he nonetheless secured payment of the various coverages in the order in which they were demanded by the Bults. USAA did not deny a single claim; nor did it deny the limits of coverage in the Bults’ policy. In essence, the Bults’ claim of bad faith narrows down to a delay in their receipt of those payments.

USAA correctly relies on Motorists Mutual Insurance Co. v. Glass, supra, 996 S.W.2d at 452, which holds that:

Clearly there was some delay in making the payments after demand was made. USAA offered explanations for the delays as follows: the number of claims that Moriarty had to process; the confusion created by the health insurance carrier; the necessity of obtaining a legal opinion on the issue of what is contemplated by “surviv- or’s economic loss”; and with respect to the UIM claim, the multiple tiers of company officials that Moriarty had to consult in order to obtain authority to issue the $300,000 draft. Our search of the record reveals no evidence from which the jury could reasonably infer that the delay that the Bults encountered was designed to either “extort a more favorable settlement” from them or to conceal the amount of their coverage. On the contrary, a fair measure of the delay is attributable to their own conduct. The Bults did not dispute that they made no effort to submit the documentation that Moriarty requested or to contact anyone at USAA.

In summary, viewing the record in the light most favorable to the Bults and drawing all inferences in their favor, we conclude that there was insufficient evidence of bad faith to permit the jury to consider the issue. Accordingly, the judgment of the Jefferson Circuit Court is reversed, and this matter is remanded with directions that the complaint against USAA be dismissed.

ALL CONCUR.

      . The figures of $15,000 and $25,000 are used interchangeably and contradictorily with reference to the seat belt benefit. A summary at Exhibit 20 (page 4) of the appellant’s brief reveals that a check for $25,000 was issued in error when in reality the seat belt benefit was for $15,000. Moriarty had been proceeding under the mistaken belief that the Metcalfes’ vehicle was equipped with air bags, which would have entitled the Bults to the $25,000 benefit. For death to a passenger wearing a seat belt where air bags were not involved, the benefit was $15,000 instead of $25,000.

      . Refer again to footnote one.

      . The rule of Pridham dictates that where a passenger in a one-car accident has recovered policy liability limits, no UIM will be available.

      . The Bults appealed the summary judgment in favor of the railroad. On November 3, 2000, this Court reversed the judgment, holding that the testimony of the Bults’ expert, if believed, could support an apportionment of the fault for the fatal accident against CSX. On June 21, 2001, the Bults settled their claim against CSX for $200,000.

      . After obtaining a financial statement from the Metcalfes, the Bults agreed to reduce the Metcalfes’ personal contribution to a one-time payment of $35,000.

      . This amount included the following elements of damage: $7,757.54 for funeral and burial expenses; $31,268.66 in medical expenses; $100,000 for Ashley's mental and physical pain and suffering; $2,049,255 for Ashley’s loss of power to labor and earn money; $100,000 for the Bults’ loss of consortium; and $25,000 in punitive damages.

      . Kentucky Revised Statutes.

      . This is a small portion of the statements made by attorney Franklin in his capacity as a witness while standing in front of the jury. USAA objected to the trial court's allowing the witness to make a closing-type argument to the jury as well as to his misstatements about the law concerning underinsured motorist coverage. Because of our ruling that the evidence was insufficient to be submitted to the jury in the first instance, it is not necessary for us to address USAA’s argument that it is entitled to a new trial based on the prejudice created by Franklin’s alleged misstatement of the law or as to conduct more befitting counsel than a witness.

      . The Bults could have invoked the provisions of KRS 304.12-235, which would have provided 12% interest on the value of the final settlement as well as reimbursement for a reasonable attorney’s fee for failure to pay a claim to an insured within thirty days of notice and proof of claim. The Bults instead elected to pursue a claim pursuant to KRS 304.12-230, the Unfair Claims Settlement Practices Act, involving the much higher burden of proof that we have analyzed at some length.


author: MINTON, Judge.

text:
    Judy L. COMBS, Individually, and as Executrix of the Estate of Virgil Combs, Appellant, v. ALBERT KAHN & ASSOCIATES, INC., and Turner Construction Company, Appellees.
    No. 2004-CA-002178-MR.
    Court of Appeals of Kentucky.
    Jan. 6, 2006.

      Kenneth L. Sales, Joseph D. Satterley, Paul J. Kelley, Louisville, KY, for appellants.
    James M. Gary, Russell H. Saunders, Patrick W. Gault, Louisville, KY, for appel-lee Albert Kahn & Associates, Inc.
    Rebecca F. Schupbach, Rania M. Basha, Louisville,. KY, for appellee Turner Construction Company.
    Before BARBER, MINTON, and TAYLOR, Judges.
   OPINION

MINTON, Judge.

Judy Combs appeals from an opinion and order of the circuit court granting summary judgment in favor of Albert Kahn & Associates, Inc., and Turner Construction Company. The trial court dismissed the Combses’ claims against Kahn and Turner on the sole ground that these claims were barred by the applicable statute of limitations. We hold that summary judgment was proper, and we affirm.

The General Electric Appliance Park was built in the 1950s. The buildings contain asbestos insulation in numerous areas and various applications. Virgil Combs worked at the Appliance Park from 1973 through 1999. In January of 2000, he was diagnosed with asbestosis. He alleged that he was exposed to asbestos fibers and asbestos dust from the buildings’ deteriorating insulation while he was employed at the Appliance Park. On July 27, 2000, the Combses filed a lawsuit against a number of manufacturers or distributors of products containing asbestos, seeking recovery for Virgil’s asbestosis, his increased risk of developing mesothelioma or other types of cancer, and mental suffering due to anxiety caused by this increased risk of cancer.

In March of 2003, Virgil was diagnosed with lung cancer. On April 9, 2003, the Combses moved to amend their complaint to add a claim for lung cancer. As part of this amended complaint, they also sought to add two new defendants, Kahn and Turner. Kahn is the architectural and engineering firm that prepared the specifications for the design of the Appliance Park. Turner is a construction company that served as the general contractor for the building of the Appliance Park from approximately 1951 through 1954. The Combses allege that Kahn and Turner were negligent in specifying the use of asbestos-containing products in the Appliance Park or, alternatively, in not warning the workers at the Appliance Park, such as Virgil, of the risks of asbestos exposure. The language of the amended complaint indicates that the Combses seek to hold all of the defendants, including Kahn and Turner, liable for Virgil’s asbestosis, lung cancer, and his severe anxiety related to them. But at oral argument the Combs-es’ counsel conceded that they have no viable claim against Kahn and Turner for Virgil’s asbestosis, his increased risk of developing cancer, or his anxiety concerning his increased risk of developing cancer. They seek to hold Kahn and Turner liable only for any claims related to Virgil’s lung cancer.

The trial court permitted the Combses to amend their complaint. Kahn and Turner soon filed a motion for summary judgment on the ground that any claims against them were barred by the statute of limitations. The trial court agreed with the movants that the Combses’ causes of action for lung cancer against Khan and Turner accrued when Virgil was diagnosed with asbestosis in January of 2000 and that a one-year statute of limitations governed the Combses’ claims. Accordingly, the trial court granted summary judgment in favor of Kahn and Turner, dismissing the Combses’ claims against them as time-barred. The Combses filed this timely appeal. They assert that the trial court erred in granting summary judgment in favor of Kahn and Turner.

Before discussing the merits of the trial court’s grant of summary judgment, we must define the scope of our review. In assessing the propriety of the trial court’s grant of summary judgment to Kahn and Turner, we are mindful of the fact that summary judgment was appropriate only if Kahn and Turner showed that the Combses “could not prevail under any circumstances.” In ruling on a motion for summary judgment, we must view the evidence in the light most favorable to the non-moving party or parties, who are the Combses in this case. When we review a trial court’s decision to grant summary judgment, we must determine whether the trial court correctly found that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Because findings of fact are not involved in the summary judgment process, the trial court’s decision is entitled to no deference.

The trial court stated that the case was governed by a one-year statute of limitations but did not specify which one applied. We hold that KRS 413.140(1) is the appropriate statute of limitations for personal injury claims due to asbestos exposure. Personal injury actions governed by KRS 413.140(1) “shall be commenced within one (1) year after the cause of action aecrued[.]” The parties seem to agree that a one-year statute of limitations is applicable, but they disagree on when the Combses’ causes of action against Kahn and Turner accrued.

The fact that the original complaint filed against the manufacturers and distributors of asbestos products was timely filed does not save any untimely claims brought later against the newly-added defendants, Kahn and Turner, because these claims would not relate back to the original complaint. This is not a case in which Kahn and Turner had such notice of the claims against them so as not to be prejudiced by having these claims relate back to the earlier lawsuit. A new party cannot be brought into a lawsuit by amended complaint when the statute of limitations governing the claim against that party has already expired. If, as Kahn and Turner averred, the limitations period governing the claims against them expired in January 2001, one year after Virgil was diagnosed with asbestosis, these claims cannot relate back to the original complaint filed on July 27, 2000.

The instant case involves alleged injuries or diseases due to exposure to a harmful or toxic substance, asbestos, with a period of latency between the exposure and the development of or diagnosis of the diseases. In Louisville Trust Co. v. Johns-Manville Products Corp., the Supreme Court was faced with a case, like the one before us here, in which the claimant first developed asbestosis and then developed cancer due to asbestos exposure. The Court decided to extend the discovery rule to tort actions for injury resulting from a latent disease caused by exposure to a harmful substance. The following rule was established: “ ‘A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.’” No cause of action accrues for mere exposure to a harmful substance, such as asbestos, unless or until the exposure actually causes injury. But once an individual realizes that he has been injured by the tortfeasor, his cause of action accrues, even if he does not yet realize the extent of his injury.

Cases involving exposure to asbestos pose a particular challenge in determining when a cause of action accrues because it is possible for a person to develop more than one disease over the course of time as a result of exposure to the same harmful substance. The Kentucky Supreme Court has explained the relationship between asbestos, asbestosis, and lung cancer as follows:

Since the discovery of its toxicity, asbestos has been found to be the cause of several impairments, mostly respiratory. Some, such as pleural plaques and thickening, are not debilitating. Others are potentially fatal, such as lung cancer and the rarer mesothelioma. Asbestosis can cause impairment, or ... it can be a milder disease. What is important to note is that these diseases are not causes or prerequisites for each other. One does not flow from the other.

“[Ajsbestosis and lung cancer are separate and distinct diseases that both arise from asbestos exposure.”

States have been categorized as “one-disease” states or “two-disease” states by the way they treat multiple injuries or recurring injuries from a single exposure to a toxic or harmful substance:

Because a person may develop more than one injury (or experience a recurrence of an injury) from the same toxic exposure, a particularly difficult issue has been when the cause of action accrues in respect to each subsequent injury. In some states the first manifestation of an injury caused by toxic exposure begins a single statutory period. In these “one-disease” states the plaintiff has only one opportunity to sue for all injuries resulting from the same toxic exposure. He must bring a cause of action within the period of limitations after the development of the first disease or forever lose his right to sue for any injuries resulting from the same toxic exposure. In other jurisdictions, so called “two-disease” states, a new cause of action accrues with each injury discovered. Thus, when a person experiences a non-debilitating injury from toxic exposure he does not lose his right to sue if and when another injury later develops.

As the Supreme Court acknowledged, “Kentucky has never been a ‘two disease’ state....” One of the factors weighing against Kentucky courts treating each injury discovered as a separate cause of action is the equitable rule against splitting of causes of action. This rule “requires a party to assert all causes of action which may arise from a single ‘transaction’ in a single lawsuit, rather than proceeding piecemeal in multiple actions.”

In Carroll, the Supreme Court explained the general rule for handling asbestos-related claims as follows: “Under Capital Holding Corp., suits for asbestos-related claims in Kentucky may be brought only once and may encompass all current or future damages, because a claim made early can take into account damages which may occur in the future.” A person with a current injury, such as asbestosis, is also permitted to seek recovery for an increased risk of future complications or disease. Mental distress due to anxiety over this increased risk of future complications or disease is also recoverable.

Kentucky’s system requiring a plaintiff to seek recovery for all possible injuries due to asbestos exposure at the first sign of injury is consistent with the “one-disease” state model. The Supreme Court criticized the system followed by Florida, which would allow a plaintiff to recover for asbestosis and fear of developing cancer due to asbestos exposure but would not let him sue for enhanced risk of developing cancer, instead requiring him to file a separate suit if he actually develops cancer due to asbestos exposure. The Court called Florida’s rule “unwieldy and unnecessary” under Kentucky law, which allows for a single suit to be brought for asbestosis and for all current or future damages, including an elevated risk of developing cancer and mental distress due to anxiety about this elevated risk of developing cancer.

The Court later recognized that Capital Holding Corp. did not address the appropriate procedure to be followed “when the plaintiff is not sufficiently impaired to warrant suing for the earlier illness.” This was the situation that the Court had to address in Carroll. The Combses rely on Carroll as support for their claim that their causes of action against Kahn and Turner did not accrue until Virgil developed lung cancer. To see why the Combs-es rely on Carroll and why their reliance is misplaced, we must summarize the facts and holding of that case.

After being exposed to asbestos through his job for thirty years, James Carroll was diagnosed with “a mild, non-progressive form of asbestosis.” He did not file a lawsuit over his asbestosis, presumably because his condition was not disabling. But eight years later, he was diagnosed with lung cancer. Within five months of his diagnosis of lung cancer, Carroll filed suit against an asbestos manufacturer. The question in that case was whether Carroll’s cause of action for lung cancer accrued when he was diagnosed with lung cancer or when he was diagnosed with asbestosis. If the cause of action accrued when he was diagnosed with asbestosis, then his lawsuit was untimely because it was filed after the one-year limitations period expired. The Court ultimately held that “the action for cancer accrued on the date of the diagnosis of the cancer, not the diagnosis of asbestosis, which is a separate and distinct disease.”

Based on this holding, the Combses assert that their causes of action against Kahn and Turner also accrued when Virgil was diagnosed with lung cancer in March of 2008 rather than when he was diagnosed with asbestosis in January of 2000, in which instance their motion to amend their complaint and add Kahn and Turner as defendants in April of 2003 was timely. But Carroll did not radically change the law of Kentucky, making it a “two-disease” state, as the Appellants seem to suggest. The holding in Carroll is much narrower than that. And the reasoning behind the Court’s decision is very fact-specific. Because the facts in the instant case are distinguishable from Carroll in several key respects, the rule established in Carroll does not apply to the instant case.

First, the Supreme Court found that “[w]hen Carroll was diagnosed with asbestosis, he did not necessarily know, nor should he have known that he would also eventually develop lung cancer.” Moreover, the Court held that “[o]nly actual knowledge or knowledge of the probability of disease” triggers the running of the statute of limitations under the discovery rule set forth in Louisville Trust Co.

In the instant case, it is clear that the Combses knew that Virgil was at a greater risk of contracting lung cancer due to his exposure to asbestos. They included a claim for Virgil’s elevated risk of developing cancer and for mental distress due to anxiety regarding this elevated risk in their initial complaint filed in 2000, several years before Virgil was diagnosed with lung cancer. Thus, unlike Carroll, the Combses “had knowledge of the probability of disease,” namely lung cancer, which is sufficient to trigger the running of the statute of limitations for that disease, even before Virgil was actually diagnosed as having lung cancer.

Second, Carroll never filed a lawsuit for his injuries relating to his asbestos exposure before the lawsuit he filed following his lung cancer diagnosis. This removed any concerns about violating the equitable rule against splitting causes of action. As the Court explained, “Splitting causes of action inherently implies more than one action; nothing is split when only one action is brought.”

Unlike Carroll, the Combses filed a lawsuit for asbestosis, elevated risk of cancer, and mental distress due to anxiety over the elevated risk of cancer after Virgil was diagnosed with asbestosis. Then, the Combses sought to amend this complaint approximately three years later by adding new claims for lung cancer and new defendants, Kahn and Turner. In effect, it is as if they filed two lawsuits. This raises a concern about splitting the Combses’ causes of action, which was absent in the Carroll case.

For all of these reasons, the instant case is distinguishable from Carroll. And the holding in Carroll, which permitted the plaintiff to sue for lung cancer long after he was diagnosed with asbestosis and long after the one-year limitations period for all potential personal injury claims related to his asbestos exposure would ordinarily have expired, is not applicable to the instant case.

Carroll did not establish Kentucky as a two-disease state. Instead, it merely created a narrow exception to the general rule established in Capital Holding Corp. that a plaintiff must file suit within one year of his first diagnosis of injury or disease resulting from asbestos exposure with this suit encompassing all current and future damages related to that asbestos exposure.

Carroll permits a plaintiff who has only a slight, nondisabling injury from asbestos exposure and has no reason to believe that he is at an elevated risk of suffering from any more serious injury, such as cancer, from his asbestos exposure to wait until he develops a more serious injury before filing a lawsuit. And, in that instance, the statute of limitations for the later injury or disease will start running when the plaintiff is diagnosed with that injury or disease rather than running from the date of diagnosis of the earlier injury or disease.

After Carroll, a plaintiff who has been injured from asbestos exposure must make an election of how to proceed. He may follow the Capital Holding Corp. path: filing suit within one year of diagnosis of his first asbestos-related disease or injury, in which case he must include any and all present and future damages from asbestos exposure or risk losing the right to pursue these damages due to the statute of limitations. Alternatively, if his first asbestos-related injury is non-disabling and he has no reason to believe that he is likely to develop a more serious disease or injury, he may follow the Carroll path: waiting to sue until he develops a more serious asbestos-related disease or injury and then filing within a year of being diagnosed with this more serious disease. But if he follows the latter path, he may risk losing any right to recover for the initial disease or injury. This is because the statute of limitations for this initial disease or injury begins to run immediately upon its diagnosis.

The Combses, having chosen the Capital Holding Corp. path, then tried, belatedly, to add new defendants to their suit by claiming the benefits of the later statute of limitations found by following the Carroll path. But what the Combses seek to do would violate the rule against splitting causes of action and is inconsistent with Kentucky law regarding latent injuries due to asbestos exposure.

We hold that the Combses’ causes of action against Kahn and Turner, whom they sought to add as defendants in their April 9, 2003, motion to amend, were time-barred. The one-year statute of limitations began to run on these claims when Virgil was diagnosed with asbestosis in January of 2000 and not when he was diagnosed with lung cancer.

In the alternative, the Combses assert that their causes of action against Kahn and Turner did not accrue until July 19, 2002, because they did not know until that date of the involvement Kahn and Turner had in the building of the Appliance Park. Purportedly, they first learned of the roles of Kahn and Turner in a deposition on that date in another case. Even if the Combses did not have actual knowledge of Kahn’s and Turner’s roles until that date, they have offered no reason why they could not have discovered this information sooner with reasonable diligence. “[T]he discovery rule does not operate to toll the statute of limitations to allow an injured plaintiff to discover the identity of the wrongdoer unless there is fraudulent concealment or a misrepresentation by the defendant of his role in causing the plaintiffs injuries.” A person who knows he has been injured has a duty to investigate and discover the identity of the tortfeasor within the statutory time constraints. The Combses have not shown that this information was unavailable or concealed. So we reject the argument that the statute of limitations was tolled until July 19, 2002, because of the discovery rule.

The statute of limitations for the claims that the Combses raised against Kahn and Turner in the April 9, 2003, motion to amend their complaint expired in January of 2001, one year after Virgil was diagnosed with asbestosis. Because all of the claims against Kahn and Turner were untimely, the trial court properly granted summary judgment in favor of Kahn and Turner. Finding no error, we affirm the trial court’s order of summary judgment.

ALL CONCUR.

      . Both Virgil Combs and Judy Combs were plaintiffs when the summary judgment was granted. But Virgil died during the pendency of this appeal, and Judy has been substituted as a party for Virgil in her capacity as personal representative of the estate.

        . See CompL, ¶28 (stating that "... [Virgil] was caused to contract diseases and injuries to his body, lungs, and respiratory system, and develop a significantly increased risk of mesothelioma and other cancers and injuries causing him pain, suffering and mental anguish, some or all of which may be permanent and/or fatal."); Compl., ¶ 29 (stating that "... [Virgil] has undergone great physical pain, mental anguish and shock to his nerves and nervous system and severe anxiety due to the knowledge that he has a significant medical risk of contracting cancer, some or all of which may be permanent or fatal, as a result of his exposure to defendants^] asbestos products.”)

        . See Am. Compl., ¶ 9(stating that "[Virgil] was caused to contract diseases and injuries to his body system, lungs, and respiratory disorders, including cancer. [Virgil] underwent great physical pain, mental anguish, shock to his nerves and nervous system and severe anxiety due to his contracting an asbestos related lung cancer as a result of his exposure to Defendants’ asbestos products.”)

      . Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991) (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985)).

      . Id.

      . Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).

      . Id.

      . Although the claim against Kahn might be considered a professional service negligence claim, we do not think that KRS 413.245, the statute of limitations for professional service malpractice actions, applies in this situation because of the language of that statute. KRS 413.245 begins as follows: "Notwithstanding any other prescribed limitation of actions which might otherwise appear applicable, except those provided in KRS 413.140,....” This language suggests that KRS 413.245 is not intended to govern the limitations period for any action that would otherwise be gov-emed by KRS 413.140. Regardless, since the period of limitations for a professional negligence action is also one year, it does not matter for the purposes of this opinion which one-year statute of limitations applies. See KRS 413.245.

      . See Kentucky Civil Rules of Procedure (CR) 15.03(2).

      . See id., Reese v. General American Door Co., 6 S.W.3d 380, 384 (Ky.App.1998).

      . 580 S.W.2d 497 (Ky.1979).

      . See id. at 498.

      . See id. at 499.

      . Id. at 501, (quoting Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 174 (1977)).

      . Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 192 (Ky.1994); Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849, 852 (Ky.2002).

      . Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky.1972) (holding that plaintiffs cause of action for personal injury claim accrued at the time of a bus accident in which he suffered minor injuries; although, he did not learn that he developed chronic pancreatitis as a result of that accident until six years later); Farmers Bank and Trust Co. of Bardstown v. Rice, 674 S.W.2d 510, 511 (Ky.1984) (holding that plaintiff's cause of action for medical negligence in failing to diagnose cancer occurred when she first learned that she had cancer, even though she might not have realized the full extent of her injury until later when she had a recurrence of cancer after a period of remission).

      . Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d 699, 700-701 (Ky.2000) (citing David E. Lilienfeld, "The Silence: The Asbestos Industry and Early Occupational Cancer Research: A Case Study," 81 Am. J. Pub. Health 791 (1991)).

      . Carroll, 37 S.W.3d at 700.

      . 1 Lawrence G. Cetrulo, Toxic Torts Litigation Guide § 7:37 (2005) (citations omitted).

      . Carroll, 37 S.W.3d at 700.

      . Capital Holding Corp., 873 S.W.2d at 193.

      . Id. at 194.

      . Carroll, 37 S.W.3d at 701 (citing Capital Holding Corp., 873 S.W.2d at 195).

      . Davis v. Graviss, 672 S.W.2d 928, 932 (Ky.1984); Capital Holding Corp., 873 S.W.2d at 193-195.

      . Davis, 672 S.W.2d at 932; Capital Holding Corp., 873 S.W.2d at 193-195.

      . See Cetrulo, supra.

      . Capital Holding Corp., 873 S.W.2d at 194-195, discussing Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla.App.1985).

      . Capital Holding Corp., 873 S.W.2d at 195.

      . Carroll, 37 S.W.3d at 701.

      . Id. at 699.

      . Id. at 700.

      . Id. at 703.

      . At oral arguments, Combs’s counsel conceded that Kentucky was not a “two disease state” and asserted that he was not advocating otherwise. Yet, he continued to assert that the Combses’ cause of action for lung cancer against Kahn and Turner accrued after their cause of action accrued against the other defendants for asbestosis, Virgil’s increased risk of cancer, and his anxiety concerning his increased risk of cancer. This is the essence of the "two disease” model.

      . Id. at 701.

      . Id.

      . See n. 1.

      . Carroll, 37 S.W.3d at 700.

      . Id.

      . Id. at 701, citing Capital Holding Corp., 873 S.W.2d at 195.

      . McLain v. Dana Corporation, 16 S.W.3d 320, 326 (Ky.App.1999).

      . Id.