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Garmer & Prather, PLLC v. Independence Bank as Administrator of Estate of Bryant

Court of Appeals of Kentucky

June 30, 2017

GARMER & PRATHER, PLLC AND ST. JOHN & ST. JOHN, LLC APPELLANTS
v.
INDEPENDENCE BANK AS ADMINISTRATOR OF THE ESTATE OF KIRA KELLEY BRYANT APPELLEE

         APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE TIMOTHY KALTENBACH, JUDGE ACTION NO. 11-CI-00718

          BRIEFS FOR APPELLANTS: E. Frederick Straub Jessica Shay Morgan Paducah, Kentucky

          BRIEF FOR APPELLEE: Charles E. Moore Owensboro, Kentucky

          BEFORE: JOHNSON, JONES, AND THOMPSON, JUDGES.

          OPINION

          JOHNSON, JUDGE

         Garmer & Prather, PLLC and St. John & St. John, LLC (collectively "Garmer") appeal from a McCracken Circuit Court order granting Independence Bank's motion for summary judgment. The dispute arises from a wrongful death case that was simultaneously prosecuted in separate federal and state court actions. After the state court case was settled, the federal case was dismissed. Garmer, the attorneys who litigated the federal case, argue that they are entitled to recover fees and expenses from Independence Bank ("Bank"), the Administrator of the decedent's Estate, on a quantum meruit basis. After reviewing the record and the applicable legal authorities, we REVERSE and REMAND to the McCracken Circuit Court.

         BACKGROUND

         The decedent, Kira Kelley Bryant ("Kira"), was fourteen years of age when she died on June 14, 2011, as the result of a motorcycle accident. Kira was a passenger on the motorcycle, which was driven by Jamison Turney ("Jamison"), her stepfather. Neither Jamison nor Kira was wearing a helmet and Jamison was intoxicated (Jamison later pleaded guilty to second-degree manslaughter and received a sentence of five years.). There was evidence that Kira's mother, Dedra Turney ("Dedra"), knew that Jamison and Kira were riding without helmets and also possibly knew that Jamison was inebriated. Jamison had borrowed the motorcycle owned by Paducah Nissan LLC, a dealership owned by Dedra's father. Dedra and Jamison were both employed at the dealership.

         Following Kira's death, the McCracken District Court appointed Dedra as the Administratrix of Kira's Estate ("Estate") on July 5, 2011. On the same day, Dedra, on behalf of the Estate, filed a complaint against Jamison in McCracken Circuit Court on behalf of the Estate, alleging negligence and seeking compensatory damages. As the McCracken Circuit Court later observed, Dedra's appointment as Administratrix was ill-advised, as she had numerous conflicts of interest due to the fact that potential tort claims existed against her, her husband Jamison, and Paducah Nissan-her employer and her father's business.

         On September 6, 2011, Kira's father, Rick Bryant ("Rick"), who resides in Alabama, filed a wrongful death suit in the United States District Court for the Western District of Kentucky against Dedra, Jamison and Paducah Nissan, seeking punitive damages. He brought the suit individually and as a beneficiary of Kira's Estate in order to preserve any claims that Dedra failed to bring in state court. Rick hired Garmer to litigate the suit.

         Garmer thereafter diligently pursued the federal lawsuit, locating witnesses, conducting written discovery, taking depositions and retaining expert witnesses. The attorneys paid an investigator to locate two individuals, whom they subsequently deposed, who had witnessed the entire crash sequence and provided the initial assistance at the scene of the accident. They deposed the sales manager, the back-office manager, and three salesmen from the Nissan dealership about Jamison's purchases and consumption of alcohol during work hours. They also took the deposition of the owner of a liquor store where Jamison frequently sent employees to purchase vodka. They retained and paid for an expert economist who calculated Kira's destruction of earning capacity, and a behavioral pharmacologist who testified that Jamison's blood alcohol level was so high at the time of the accident that his intoxication should have been evident to an ordinary person such as Dedra. They also ensured the preservation of the motorcycle and hired a motorcycle mechanic to examine its brake system when it appeared that Jamison would try to attribute the crash to faulty brakes. After Garmer took the deposition of an accident reconstructionist and the results of the motorcycle inspection were revealed, Jamison and Paducah Nissan chose not to contest the cause of the crash.

         Meanwhile, on September 16, 2011, Dedra, on behalf of the Estate, filed the first amended complaint in the state action, adding Paducah Nissan, LLC as a defendant and claiming that it had negligently entrusted the motorcycle to Jamison. On November 21, 2012, Paducah Nissan LLC filed a motion for summary judgment against the Estate in both the state and federal cases. Because the Estate had conducted virtually no discovery, Dedra used the discovery conducted by Garmer in the federal lawsuit and attached it to the Estate's response to the motion.

         Following the filing of the summary judgment motion in federal court, Garmer amended Rick's complaint to include a claim of negligent entrustment against Paducah Nissan. According to Garmer, the addition of this claim revealed that Paducah Nissan had insurance coverage in the amount of $5 million, whereas it had been assumed that coverage was limited to only $300, 000 for Jamison's liability as an employee.

         On February 15, 2013, the Estate filed a second amended complaint claiming vicarious liability against Paducah Nissan and a claim for punitive damages. On September 9, 2013, Dedra was removed as Administratrix of the Estate on Rick's petition. The McCracken District Court appointed the Bank as the Administrator of the Estate on September 30, 2013. The Bank initially approached Garmer to represent the Estate, but Garmer refused out of concern for a potential or perceived conflict of interest with his concurrent representation of ...


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