In 2009 the Kentucky Supreme Court substantially revised the Kentucky Rules of Professional Conduct.
Articles in this index written before 2009 citing Kentucky Rules of Professional Conduct must be checked for any changes to the rule cited.

Beware of the Easy Stuff, Walk Carefully through Probate

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by Bob Breetz, Claims Counsel

Fire Policies—Don’t get burned!

Lawyers Mutual has had several claims involving attorneys who mishandled claims against fire policies. Not only did the client's home or business burn, the lawyers got burned when they had to pay their deductibles. We believe these claims were avoidable if the lawyers had only taken the time to read their clients' insurance policies.

Quite often insurance policies contain a provision limiting the time to bring suit to less than the 15-year general statute of limitations on written contracts. A typical fire insurance policy imposes a one-year period of limitations. These contractually shortened periods have been upheld in Kentucky courts at least since 1944. Johnson v. Calvert Fire Insurance Company, 298 Ky. 669, 183 S.W. 2d 941 (1944).

Equally enforceable are contractual provisions requiring the insured to give sworn statements to the carrier. The carrier is not required to accept a deposition in litigation in lieu of a sworn pre-litigation statement. The refusal to give a sworn statement to his uninsured motorist carrier cost Mr. Temple his UM claim. Temple v. State Farm Mutual Insurance Company, Ky., 548 S.W. 2d 838 (1977). A similar refusal to a fire insurance carrier has twice cost a Lawyers Mutual insured a deductible and placed Lawyers Mutual in the fire insurance business.

Walk carefully through probate.
The staid world of probate has presented us with two problems worth bringing to your attention concerning the renunciation statute, KRS 392.080.

  • That statute requires the renunciation either to be “acknowledged before and left for record with the county clerk or his authorized deputy” or “acknowledged before a subscribing witness and proved before and left with the county clerk or his authorized deputy.”  Two circuit courts have held a simple acknowledgment before a notary public without “proving” the acknowledgment before the county clerk will not get the job done.
  • An attorney instructing a paralegal to prepare a document failed to differentiate between a renunciation under KRS 392.080 and a disclaimer under KRS 394.610.  That was a costly mistake.

Why wait?

What rule of law requires an attorney to wait until the last minute to file a date sensitive document? Missed deadlines continue to be a problem for far too many of our insureds. As Pete Reiser said "It doesn't take talent to be on time." Calendar all time sensitive matters (not just litigation) with adequate lead time to meet deadlines. Have two back up systems to make sure you don't forget. Your personal calendar, your secretary's calendar, and a periodic computer calendar printout will work for solos.

 


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Disclaimer: The contents of this Web site are intended for general information purposes only and should not be construed as legal advice or legal opinion on any specific facts or circumstances. It is not the intent of this Web site to establish an attorney’s standard of due care for a particular situation. Rather, it is our intent to advise our policyholders to act in a manner which may be well above the standard of due care in order to avoid claims having merit, as well as those without merit. In the event any statement on the Web site differs from a statement in an issued policy the policy will control.

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