General Acc. Ins. Co. v. Blank, No. 92-CA-2548-MR

CourtCourt of Appeals of Kentucky
Writing for the CourtHOWERTON
Citation873 S.W.2d 580
PartiesGENERAL ACCIDENT INSURANCE COMPANY, Appellant, v. Kenneth R. BLANK, II, Appellee.
Decision Date03 December 1993
Docket NumberNo. 92-CA-2548-MR

Page 580

873 S.W.2d 580
GENERAL ACCIDENT INSURANCE COMPANY, Appellant,
v.
Kenneth R. BLANK, II, Appellee.
No. 92-CA-2548-MR.
Court of Appeals of Kentucky.
Dec. 3, 1993.
Discretionary Review Denied by
Supreme Court May 18, 1994.

Gerald R. Toner, Emily A. Hoffman, O'Bryan, Brown & Toner, Louisville, for appellant.

Dale Golden, Rudloff, Golden & Evans, Bowling Green, for appellee.

Before GARDNER, HOWERTON and JOHNSTONE, JJ.

OPINION

HOWERTON, Judge.

General Accident Insurance Company (GA) appeals from a jury verdict and judgment of the Warren Circuit Court awarding Kenneth R. Blank, II $160,698.07 and 100 percent of the taxable court cost. In a post-judgment proceeding, the court also awarded an attorney fee of $68,000. Blank was being paid benefits for a workers' compensation claim, but when GA refused to pay for questionable surgery and stopped his temporary total disability payments, Blank filed this action in the Warren Circuit Court seeking $1,000,000 for pain and suffering, $5,000,000 for punitive damages, $3,000,000 for mental anguish, $5,575 for lost house payments, $5,200 for lost disability payments, $800 for the fair market value of a car, and $9,327.55 for medical expenses. Part of his claim was based on GA's alleged violation of the Consumer Protection Act (CPA) and the Unfair Claims Settlement Practices Act (UCSPA). The case was allowed to go to the jury, which awarded $405 for the value of the car, $5,575 for house payments, $5,200 for disability payments, $8,973.07 for medical expenses, $40,000 for mental anguish, $25,000 for pain and suffering, and $75,000 for punitive damages.

The dispositive issue presented by GA is whether the exclusive provisions of the Workers' Compensation Act preclude this action in circuit court. We agree that workers' compensation is the exclusive remedy for Blank, and we therefore reverse every award granted by the circuit court, including the

Page 581

attorney fee which was not a specific issue raised on appeal. If the court had no jurisdiction to try this case, it had no jurisdiction to do anything. GA also argues that the CPA and the UCSPA are not applicable to this action, and we agree.

The remaining allegations by GA can generally be summarized as follows: even if the CPA and the UCSPA are applicable, Blank did not prove bad faith; the instructions to the jury were erroneous; comments by the trial judge invaded the province of the jury; and the trial court improperly excluded evidence. We have no need to resolve these issues, and we decline to do so.

This saga began June 18, 1991, when Blank alleged that he hurt his back while washing out an exhaust flue at a Cracker Barrel Restaurant in Hilton Head, South Carolina. He was employed by Cone's Industrial Wash, Inc. and was treated in South Carolina and subsequently in Bowling Green, Kentucky. A Bowling Green orthopedic surgeon, Dr. Lynn Olson, reported that Blank had a history of chronic back pain dating back 20 years. When he scheduled Blank for back surgery, GA requested a second opinion. Blank was seen by Dr. John Burch, another orthopedic surgeon, who reported that Blank denied any history of back problems. Dr. Burch conducted a physical exam on August 8, 1991, and concluded that Blank's symptoms had improved since Dr. Olson had seen him, and that he should be treated conservatively with physical therapy and medication rather than surgery.

Since the medical opinions conflicted, GA sent Blank to a third orthopedic surgeon on October 9, 1991. Dr. John McInnis reviewed the records and examined Blank, and he reported that the chances of surgery improving Blank's symptoms were "probably less than 50-50." Dr. McInnis was also reluctant to recommend surgery.

Nevertheless, Blank allowed Olson to perform the surgery on November 5, 1991. GA had paid temporary total disability to Blank until November 5, at which time it stopped payments. GA also refused to pay the expense of the surgery. Blank never returned to work for Cone's, but instead obtained a job with a landscape company in May 1992.

Procedurally, Blank filed his workers' compensation claim on September...

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9 practice notes
  • Farmland Mut. Ins. Co. v. Johnson, No. 1998-SC-0938-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • October 26, 2000
    ...(1942)). 30. Waggoner at 707 (citing Kling v. Geary, Ky., 667 S.W.2d 379 (1984)). 31. See General Accident Insurance Co. Blank, Ky.App., 873 S.W.2d 580 32. See Federal Kemper, 711 S.W.2d 844 (1986) (Leibson, J., dissenting); Feathers v. State Farm Fire and Casualty Co., Ky.App., 667 S.W.2d ......
  • Stringer v. Wal-Mart Stores, Inc., No. 2001-SC-0262-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • October 21, 2004
    ...case cannot be the basis for an action for outrageous conduct pursuant to Craft v. Rice."); General Acc. Ins. Co. v. Blank, Ky.App., 873 S.W.2d 580, 582 (1993) ("Craft is distinguishable from a situation involving a mere termination or delay of payments owned under a contract or a......
  • Travelers Indem. Co. v. Reker, No. 2000-SC-0846-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • January 23, 2003
    ...rise to a claim of bad faith or outrageous conduct under Kentucky law). Finally, in General Accident Insurance Co. v. Blank, Ky.App., 873 S.W.2d 580 (1993), the Court of Appeals, following Mitchell, held that neither the Consumer Protection Act, KRS 367.170 and 367.220, nor the UCSPA, KRS 3......
  • Davidson v. American Freightways, Inc., No. 1998-SC-0554-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 24, 2000
    ...workers' compensation insurer. Zurich Ins. Co. v. Mitchell, Ky., 712 S.W.2d 340, 343 (1986); General Accident Ins. Co. v. Blank, Ky.App., 873 S.W.2d 580...
  • Request a trial to view additional results
9 cases
  • Farmland Mut. Ins. Co. v. Johnson, No. 1998-SC-0938-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • October 26, 2000
    ...(1942)). 30. Waggoner at 707 (citing Kling v. Geary, Ky., 667 S.W.2d 379 (1984)). 31. See General Accident Insurance Co. Blank, Ky.App., 873 S.W.2d 580 32. See Federal Kemper, 711 S.W.2d 844 (1986) (Leibson, J., dissenting); Feathers v. State Farm Fire and Casualty Co., Ky.App., 667 S.W.2d ......
  • Stringer v. Wal-Mart Stores, Inc., No. 2001-SC-0262-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • October 21, 2004
    ...case cannot be the basis for an action for outrageous conduct pursuant to Craft v. Rice."); General Acc. Ins. Co. v. Blank, Ky.App., 873 S.W.2d 580, 582 (1993) ("Craft is distinguishable from a situation involving a mere termination or delay of payments owned under a contract or a......
  • Travelers Indem. Co. v. Reker, No. 2000-SC-0846-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • January 23, 2003
    ...rise to a claim of bad faith or outrageous conduct under Kentucky law). Finally, in General Accident Insurance Co. v. Blank, Ky.App., 873 S.W.2d 580 (1993), the Court of Appeals, following Mitchell, held that neither the Consumer Protection Act, KRS 367.170 and 367.220, nor the UCSPA, KRS 3......
  • Davidson v. American Freightways, Inc., No. 1998-SC-0554-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 24, 2000
    ...workers' compensation insurer. Zurich Ins. Co. v. Mitchell, Ky., 712 S.W.2d 340, 343 (1986); General Accident Ins. Co. v. Blank, Ky.App., 873 S.W.2d 580...
  • Request a trial to view additional results

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