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New Bankruptcy Rules in Effect
Amendments to the Federal Rules of Bankruptcy Procedure brought important changes to the administration of consumer bankruptcy cases, particularly Chapter 13 cases, effective on December 1st of 2017. These new rules require adjustment to the calendaring of the due date for a proof of claim. The most prominent rule changes are a new proof of claim bar date tied to the date of the bankruptcy filing, a requirement that secured creditors file a proof of claim, the required use of a Model Chapter 13 Plan, deadlines regarding plan confirmation, and methods by which courts can determine the amounts of secured claims. More >
How to Keep Recreational Pilots Droning On and On
You’d probably never guess that something you can pick up for your kid from Toys ‘R’ Us on your way home could be the center of a swarm of complex legal issues and a growing regulatory scheme. Welcome to the new world of drones, a world where everyone from the FAA to the local police is struggling to adapt to the challenges posed by the ability of anyone and everyone to purchase what is essentially a flying robot capable of doing everything from spying on the neighbor’s kids to interfering with commercial air traffic. Those challenges are being met with cold, hard law and regulation, so drone operators must understand the growing and serious set of legal rules that come with buying that new drone. More >
Insurers Beware: Bad Faith Claims
Things seemed to be going better for insurers on bad faith claims in Kentucky after the case of Hollaway v. Direct General Insurance in September of 2016, which clarified the stringent standards for third party bad faith claims. Bad faith law in Kentucky took another turn, however, with the Kentucky Supreme Court case of Indiana Insurance Co. v. Demetre¸ which upheld a $3.425 million verdict against Indiana Insurance Company. What makes this case even more challenging for insurers is that Indiana Insurance paid the claim AND defended the insured in court, proving that bad faith can still be found even where the insurer substantially performs as required. More >
Advantages of Mediation
The world of mediation can be a strange place for those expecting a more adversarial process. Rather than act on behalf of either party, the mediator plays a role in the middle, acting as a buffer between the parties to bring them together for mutual benefit. Just as with the conductor of an orchestra, the mediator is there not to create something herself, but to guide the others to do so. A mediator is not only a conductor or a referee, however, and the way a mediator works within the role can add significant value to a mediation. More >
Kentucky Motor Vehicle Reparations Act: The Basics
Sometimes referred to the “No-Fault Act,” the Kentucky Motor Vehicle Reparation Act (“MVRA”) was enacted by the General Assembly in 1974 and ushered in great change in the Commonwealth’s motor vehicle insurance law. The MVRA, which is codified at KRS 304.39, consists of two main components: basic reparation benefits (“BRB”) and tort limitations. Below, some of the key tenets of each component are discussed. More >
Breaking Down the Magnuson-Moss Warranty Act
The federal Magnuson-Moss Warranty Act is the law that keeps manufacturers up at night, and rightfully so. The law is designed to provide a remedy to consumers for failure of manufacturers to abide by their warranties, but it provides an even heavier cudgel for attacking manufacturers than Congress may have intended. Regardless of its flaws, it pays to understand the outline of the law as it applies to manufacturers. More >
Legislature Takes the Bite Out of Landlord Liability for Dogs
In news that should have tails wagging for landlords and insurance providers throughout the Commonwealth, the statehouse passed a revision to the law that confers liability on dog owners by largely exempting landlords from liability. This modification is a response to a 2012 Kentucky Supreme Court case that conferred potential strict liability on landlords for dog bites. Since that decision five years ago, landlord groups, insurance companies, and chambers of commerce have been working to pass a law to clarify that liability is the responsibility of the dog owner. Earlier this year, Rep. Stan Lee of Lexington led the charge to make the change in law, which is expected to result in lower insurance premiums and less court appearances for landlords across the state. More >
No Malice Aforethought: The Current State of "Malicious Prosecution"
To effectively limit and guide human behavior, the law needs (at least) discoverability, predictability and, above all, consistency. To be just, a cause of action and its elements should be defined and applied in the same way for similarly-situated individuals. That makes it especially problematic that there are so many conflicting rules and interpretations for “malicious prosecution” at both the state and federal levels. More >
The Case for Diversity in a Law Firm Setting
As lawyers and legal professionals, we work in one of the least diverse professions in the country. At McBrayer, we are committed to doing our part to help improve diversity and inclusion in the profession. Lawyers can be slow to change, much like the law itself, but several recent initiatives give us hope. More >
Rule 30(b)(6) in Depositions and at Trial
One of the big “if only” moments in corporate litigation concerns testimony: if only a corporation as a corporation could face deposition. Despite the legal fiction that corporations have an identity, it remains impossible, absent some serious and frightening advances in future technology, for a corporation to testify on its own behalf. To get around this dilemma, the Federal Rules of Civil Procedure include Rule 30(b)(6) (“30(b)(6)”). This rule allows a party to name an entity such as a corporation, an association or a governmental agency as a deponent, and that entity will then designate a representative to be deposed on behalf of the company. (Kentucky’s Civil Rule of Procedure 30.02(6) substantially tracks the federal rule, so this information applies to both Kentucky and federal courts.) The rub is that 30(b)(6) deponents face a different set of standards for testimony than regular deponents, and that difference could create havoc for a client, up to and including sanctions. More >
