United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY, JR., CHIEF JUDGE
matter is before the Court on a motion by Third-Party
Defendant, Western Express, Inc., to reconsider [DN 174].
Western Express moves the Court to reconsider its denial of
summary judgment on Dixie and Georgia Pacific's
third-party complaint arguing that the Court made a clear
error of law in failing to invoke the public-policy exception
of Kentucky's choice-of-law rule. Fully briefed, this
matter is ripe for decision.
Sixth Circuit recognizes that a district court has authority
both under common law and under Rule 54(b) “to
reconsider interlocutory orders and to reopen any part of a
case before entry of final judgment.” Rodriguez v.
Tennessee Laborers Health & Welfare Fund, 89
Fed.Appx. 949, 959 (6th Cir. 2004). “Traditionally,
courts will find justification for reconsidering
interlocutory orders when there is (1) an intervening change
of controlling law; (2) new evidence available; or (3) a need
to correct a clear error or prevent manifest
injustice.” Id. (citing Reich v. Hall
Holding Co., 990 F.Supp. 955, 965 (N.D. Ohio 1998)). A
motion to reconsider under Rule 54(b) may not, however,
“serve as a vehicle to identify facts or raise legal
arguments which could have been, but were not, raised or
adduced during the pendency of the motion of which
reconsideration [is] sought.” Owensboro Grain Co.,
LLC v. AUI Contracting, LLC, 2009 WL 650456, at *2 (W.D.
Ky. Mar. 10, 2009).
Express argues that because KRS § 281.592 expressly
forbids enforcement of “indemnify, defend, or hold
harmless” clauses in motor carrier transportation
contracts, the public policy exception to Kentucky's
choice-of-law rule mandates dismissal of Georgia-Pacific and
Dixie's third-party complaint. The Court disagrees.
current Kentucky legislation expressly forbidding enforcement
of such indemnification clauses exists, that legislation does
not impact the enforcement of the “indemnify, defend,
or hold harmless” clause in the Contract Carriage
Agreement at issue in this case. The statute relied on by
Western Express, KRS § 281.592, was enacted in 2014. It
did not exist when the Contract Carriage Agreement was
executed in February 2008, when Plaintiff's accident
occurred in July 2008, when Plaintiff's lawsuit was filed
in October 2008, or when Dixie and Georgia Pacific were
granted leave to file their third-party complaint in June
2013. Thus, at all relevant times, there was no Kentucky
public policy demonstrated by statute or judicial opinion
which made contractual indemnity provisions in motor carrier
transportation contracts void and unenforceable.
the Court finds no authority to suggest that KRS §
281.592 is retroactive.“Kentucky law governing statutory
construction states that ‘[n]o statute shall be
construed to be retroactive, unless expressly so
declared.'” American Exp. Travel Related
Services. Co., Inc. v. Kentucky, 730 F.3d 628, 632 (6th
Cir. 2013)(quoting KRS § 446.080(3)). “This
fundamental principle of statutory construction in Kentucky
creates a strong presumption that statutes operate
prospectively and that retroactive application of statutes
will be approved only if it is absolutely certain the
legislature intended such a result.” Coleman v.
Sanitation Dist. No. 1 of Northern Kentucky, 2016 WL
1558499, at *2 (Ky. Ct. App. Apr. 15, 2016). While
“there are no mandatory ‘magic words' for
retroactive legislation,  the legislature ‘must
expressly manifest its desire that a statute apply
retroactively.'” Utility Mgmt. Grp., LLC v.
Pike Cty. Fiscal Court, 531 S.W.3d 3, 9-10 (Ky.
2017)(quoting Baker v. Fletcher, 204 S.W.3d 589, 597
(Ky. 2006)). See also Commonwealth Dept. of Agriculture
v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000). The Kentucky
Supreme Court has noted that this rule should be
“strictly construed.” American Exp.
Travel, 730 F.3d at 632(citing Hamilton v. Desparado
Fuels, Inc., 868 S.W.2d 95, 97 (Ky. 1993)).
§ 281.592 contains no express or implied statement of
retroactivity. To the contrary, the statute specifies an
effective date of July 15, 2014. The Court finds no basis to
conclude that the General Assembly intended the law to apply
to a motor carrier transportation contract performed prior to
that date. See, e.g., Beacon Ins. Co.
of Am. v. State Farm Mut. Ins. Co., 795 S.W.2d 62, 64
(Ky. 1990)(Supreme Court of Kentucky held that “[t]here
is no legal basis for asserting the public policy embodied in
[a new automobile household exclusion statute] as
controlling” where the insurance contract, accident,
and injury occurred prior to effective date of statute.);
Cumberland & Ohio R. Co. v. Judge of Washington Cty.
Court, 73 Ky. 564, 574 (1875)(“[N]o statute,
however positive it may be in its terms, will be construed as
designed to interfere with existing contracts, unless such
intention is expressly declared; and courts will apply new
statutes only to future cases unless there is something in
the very nature of the case or in the language used which
shows that they were intended to operate
retroactively.”). Thus, the “indemnify, defend, or
hold harmless” clause contained in the Contract
Carriage Agreement in this case is enforceable.
reasons set forth above, IT IS HEREBY
ORDERED that the motion by Third-Party Defendant,
Western Express, Inc., to reconsider [DN 174] is
DENIED. This matter is referred to the
Magistrate Judge Brennenstuhl for both a scheduling
conference and a settlement conference.
 The Court recognizes that in the
previous opinion it perhaps improperly presumed for purposes
of the motion that the statute was retroactive. The Court now
addresses the retroactivity of the statute.
 The Court considered the case Otis
& Co. v. Securities and Exchange Commission, 323
U.S. 624 (1945) which was cited by Defendant and finds that
the principle of contract frustration discussed in