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In late April, Mehr, Fairbanks & Peterson Trial Lawyers defeated Allstate Insurance Company’s motion for protective order of insurance claim files relating to a bad faith claim. In their opinion entered on April 28th, the Circuit Court held that the probative value of the documents to the Plaintiff’s case outweighed any prejudice to the Defendant, thus denying Allstate’s claim that information within the documents should be protected from discovery during the ongoing litigation.

The case at issue arose after an automobile accident occurred in Tennessee. The parties reached a settlement for bodily injury claims, though the injured party subsequently filed suit for Underinsured Motorist (UIM) coverage in Kentucky court. The Plaintiff later moved to amend their complaint to include claims against Allstate for bad faith and Unfair Claims Settlement Practices. After this motion, the Plaintiff moved to compel discovery of Allstate’s complete copy of their insurance claim file. This motion was granted, and Allstate ordered to comply within 30-days. Allstate then moved for a protective order of the documents, stating that they should be shielded from discovery under both the work product doctrine and attorney-client privilege. The work product doctrine requires that documents that have been prepared by legal counsel in preparation for litigation should not be discoverable by the other party, as it would provide an unfair edge to opposing counsel. Attorney-client privilege protects the private information shared between an attorney and their client from discovery.

Since the discovery request relates to the bad faith claim against Allstate, the Court must make several considerations when determining whether to grant a protective order. First, the Court must classify the bad faith claim by determining whether it is first- or third-party. First-party bad faith claims occur when “the insured sues the insurer for failing to use good faith to resolve the insured’s claim.” The Court concludes that the current claim falls into this category, as it “concerns a claim between an insurer and its insured.” Next, the Court must consider whether any privilege exists which could exclude part of the requested document from discovery, though not its entirety. Here, the Court looks to established case law stating that, “attorney-client privilege and work product doctrine are generally inapplicable in first-party bad faith cases.” The Court states that even if the claim file includes information that is work product or is protected by attorney-client privilege, in this category of cases, “discovery of the entire claim file is appropriate.”

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The National Trial Lawyers Announces M. Austin Mehr as One of Its Top 100 Civil Plaintiff Trial Lawyers in Kentucky For Immediate Release

The National Trial Lawyers is pleased to announce that M. Austin Mehr of Mehr Fairbanks Trial Lawyers has been selected for inclusion into its Top 100 Civil Plaintiff Trial Lawyers in Kentucky, an honor given to only a select group of lawyers for their superior skills and qualifications in the field. Membership in this exclusive organization is by invitation only and is limited to the top 100 attorneys in each state or region who have demonstrated excellence and have achieved outstanding results in their careers in either civil plaintiff or criminal defense law.

The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who have demonstrated exceptional qualifications in criminal defense or civil plaintiff law. The National Trial Lawyers provides accreditation to these distinguished attorneys, and provides essential legal news, information, and continuing education to trial lawyers across the United States.

covid-19-update-on-office-operations
Effective immediately, due to COVID-19 and government recommendations, our office will be closed to the public until further notice, unless you have confirmed a time to meet with someone in our office directly. However, we will continue to provide the highest level of legal services to our current clients and potential clients.


If you have a meeting scheduled with one of our attorneys in the next few weeks, we will likely contact you about rescheduling.

If you are seeking legal assistance or consultation, please contact us via phone at 800-249-3731, or contact one of our attorneys or staff directly via email at:

[Article: Salyersville Independent – https://salyersvilleindependent.com/article/jury-awards-15-mil-mineral-rights-case]

SALYERSVILLE – A Magoffin County jury made the largest bad faith judgment in Magoffin County’s history on Friday, awarding a family over $15 million in an 11-year-old civil case.

Just as a brief synopsis, and at the risk of missing something pertinent in the long and detailed case, around 2003 or 2004 J.D. Carty Resources reportedly drilled a natural gas well where they had not been given the rights. Those rights belonged to the heirs of Ben and Lillian Salyer, who had signed the deed to mineral rights 100 years ago. The well was beyond successful, producing $1.3 million worth of natural gas, even at one point having to evacuate the area around it on Stinson Creek (on Patton Fork). However, the family still hasn’t seen the first dime of the money.

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In his decision back in April, U.S. District Judge David L. Bunning declined to dismiss former members of St. Elizabeth Medical Center Employees’ Pension Plan Administrative Committee from an Employee Retirement Income Security Act breach-of-fiduciary-duty claim that the plan had not been properly funded.

On Friday, October 5, 2018, Judge Bunning once again rejected the former administrative committee members’ attempts to be dismissed from the case and denied their motion for reconsideration.

Arguing that the Judge’s April order was in conflict with Duncan v. Muzyn, a Sixth Circuit Court decision where it was found that the plaintiff in the case hadn’t alleged any “more than a hypothetical loss of expected benefits,” and based thereon, dismissed the plan management team from the claim.

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On October 4, 2018, a Kentucky jury found against defendant, Greenwich Insurance Co. in favor of dozens of heirs of Ben and Lillian Salyer, plaintiffs. The case arose from JD Carty and other companies insured by Greenwich for trespassing on land owned by the Salyer’s, building roads and drilling wells to access natural gas under the land for several years.

The jury determined that Greenwich acted in bad faith by refusing to settle claims in the matter. The jury awarded plaintiffs $15 million in compensatory and punitive damages.

Having found that Greenwich committed multiple violations of Kentucky’s Unfair Claims Settlement Practices Act, the jury awarded a total of $834,000 in anxiety and mental anguish damages to plaintiffs, plus $14.3 million in punitive damages.

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Austin Mehr will be in Bowling Green on Thursday, January 12, 2017, to speak to the Warren County Bar Association regarding insurance bad faith. Austin’s insurance bad faith seminar will be held at 440 Main Restaurant located at 440 E. Main Street, Bowling Green, Kentucky, beginning at 11:00 a.m. CST.

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