Jay R. Vaughn Personal Injury Law Blog on Lawyers.com

MAJOR DIFFERENCES BETWEEN OHIO & KENTUCKY LAW

By:      Dennis Mahoney, Esq., O’Connor, Acciani & Levy, LLC, 

            Jay R. Vaughn, Esq., Busald Funk Zevely, P.S.C.

      The purpose of this article is to highlight some of the major differences between Kentucky and Ohio law.  We only addressed some of the most common differences, but obviously didn’t discuss every difference between the two states.  Hopefully this will serve as a good quick reference guide for Kentucky practitioners to keep in their office for future reference.

STATUTE OF LIMITATIONS

KENTUCKY

OHIO

Commencement of action

An action shall be deemed to commence on the date of the first summons or process issued in good faith

KRS 413.250

Written agreements entered into in good faith and at arms length to extend limitations periods for the filing of civil actions shall be valid and enforceable according to their terms.

KRS 413.265

An action is commenced by filing a complaint, if service is obtained within one year.

Civ. R. 3(A)

Automobile

2 years from accident or

2 years from last PIP payment, whichever is later

KRS 304.39-230(6)

2 years from date of accident

O.R.C. 2305.10

Medical Malpractice

1 year from date of malpractice

KRS 413.140(1)(e)

1 year from when you knew/should have known KRS 413.140(2)

1 year after treatment ends with defendant doctor/facility

Case law

1 year after the cause of action accrued (knew or should have known-discovery rule), in any event the most time a person has is 4 years after the act or omission. 

Ohio has the 180 day rule. If prior to the expiration of the one-year period written notice is given then any time within 180 days of the notice the action may be commenced

Derivative claims are also included

O.R.C. 2305.113

On 7/1/05, Civ. R. 10(D)(2) was amended to now require that an Affidavit of Merit verified by an expert be filed along with a Complaint in medical malpractice cases

Wrongful Death

1 year from death or 1 year from date of appointment of personal representative if done w/in 1 year of death

KRS 411.130

2 years after the decedent's death. (some differences for product liability, construction defects, etc)

O.R.C. 2125.02

Slip & Fall

1 year from injury

KRS 413.140

2 years from injury

O.R.C. 2305.10

Loss of Consortium

1 year from injury

KRS 411.145

4 years from injury (unless specifically set out like in Medical Malpractice)

O.R.C. 2305.09

Minors

Statute of limitations for a minor begins to run once they reach age of majority

KRS 413.170

Statute of limitations for a minor begins to run once they reach age of majority

O.R.C. 2305.16

Contract

15 years for written contract

KRS 413.091

5 years for contract not in writing

KRS 413.120

15 years for written contract unless a lesser time is stated

O.R.C. 2305.06

AUTOMOBILE INSURANCE

KENTUCKY

OHIO

Minimum liability limits

$25,000/$50,000 liability

$10,000 property damage

KRS 304.39-110(a)(1)

$12,500/$25,000 liability

$7,500 property damage

O.R.C. 4509.51

Uninsured/Underinsured Motorist

Can stack both UM & UIM

Can collect tortfeasor’s liability limits plus underinsured limits

Can’t stack UM or UIM

Can only get UIM if limits exceed liability limits, and then can only get difference between liability & UIM limits

O.R.C. 3937.18(F)

Personal Injury Protection

Yes - $10,000 minimum

Not a no-fault state; only has Medical Payments coverage if purchased

Hit & Run/Uninsured motorist

Kentucky requires physical contact

Burton v. Kentucky Farm Bureau, 116 S.W.3d 475 (Ky. 2003)

Also, Dowell v. Safe Auto Ins. Co., 2006 Ky. Lexis 321, 2005-SC-000153, strongly suggests that insurers can specifically exclude coverage for the “hit and run” situation

Does not require physical contact; only corroborating evidence

O.R.C. 3937.18(B)(3)

CIVIL PROCEDURE RULES

KENTUCKY

OHIO

Service of Summons

Can serve by certified mail or sheriff; no regular mail service

CR 4.01(1)(a,b)

If defendant not found, then can having warning order attorney appointed but is not sufficient to give personal jurisdiction unless WOA locates defendant who is then served

KRS 4.05-4.09

Out of state defendant or corporation (or statutory agent) through Secretary of State

KRS 454.210

Can serve by certified mail, regular mail, personal service either by sheriff or bailiff or an appointed service representative over 18

Civ. R. 4.1 

If defendant not found, then can serve by publication Civ. R. 4.4

Out of state service is by certified, express mail or personal service

Civ. R. 4.3

If service of summons is not made within 6 months and good cause cannot be shown, the Court shall dismiss on its own initiative

Civ. R. 4(E)

Filing of Answer to Complaint

Must file within 20 days of service

CR 12.01

Must file within 28 days of service

Civ. R. 12(A)(1)

Discovery to Parties

1) Providing electronic format is encouraged

CR 26.01(2)

2) Interrogatories limited to 30 & must be answered within 30 days of receipt or 45 days if served with Complaint

CR 33.01

3) Request for Production not limited & must be answered within 30 days of receipt or 45 days if served with Complaint

CR 34.01

4) Request for Admissions limited to 30 & must be answered within 30 days of receipt or 45 days if served with Complaint

CR 36.01

1) Providing electronic format is mandatory

Civ. R. 33(A)

2) Interrogatories limited to 40 questions (including subparts) & must be answered within 28 days of receipt

Civ. R. 33

3) Request for Production are not limited & must be answered within 28 days Civ. R. 34

4) Request for Admissions are not limited & must be answered within 28 days of receipt

Civ. R. 36

Offer of Judgment

Defendant can file & get costs

CR 68

Not allowed to use for costs

Civ. R. 68

CIVIL TRIAL

KENTUCKY

OHIO

Jury

Panel made up of 12 jurors

KRS 29A.280(1)

Need ¾ for verdict - 9 of 12

KRS 29A.280(3)

Panel made up of 8 jurors

Civ. R. 38(B)

Need ¾ for verdict - 6 of 8

Civ. R. 48

Jury Instructions

“Bare Bones”

Very detailed See Ohio Jury Instructions (O.J.I.) for extensive topics and approved instructions

Peremptory Strikes

In general, 3 per side

CR 47.03(1)

Shall be exercised simultaneously by striking names from qualified list of jurors

CR 47.03(3)

In general, 3 per side

Civ. R. 47(B)

Shall be exercised alternately, beginning with the plaintiff.  A prospective juror peremptorily challenged shall be excused and another juror shall be called to take the place of the excused juror

Civ. R. 47(B)

Closing Argument

Defense then Plaintiff

Plaintiff, Defense, then Plaintiff

CONTINGENCY FEES

KENTUCKY

OHIO

Wrongful Death & Minors

Whatever client agrees to

If fee is more than 33.3%, then must get prior approval before fee agreement is signed

Ohio Sup. R. 68 & 71

WRONGFUL DEATH STATUTE

KENTUCKY

KRS 411.130

OHIO

O.R.C. 2125.02

Funeral & burial expenses

Yes

Yes

Medical expenses

Yes

Yes

Destruction of earning capacity

Yes

Yes

Loss of consortium

1) Death of child – loss of consortium until child’s 18^th birthday

2) Death of parent – loss of parental services until child is 18; no claim for adult children

3) Death of spouse – no

Spouse, minor/adult children & “next of kin” have claim for loss of services; only spouse & minor children have claims for loss of consortium & mental anguish

BAD FAITH

KENTUCKY

OHIO

1^st Party

Yes by statute & case law

KRS 304.12-230

No statute; case law;  Ohio does have administrative regulations which do not form the basis for a cause of action, evidence of duties only

3^rd Party

Yes by statute & case law

KRS 304.12-230

May be assigned after a successful verdict over policy limits

TORT REFORM

KENTUCKY

OHIO

Statute

No

Yes, Ohio has put restrictions on jury awards, product liability actions, changed the standard of proof in some actions, limited or eliminated other actions, restricted insurance coverages, etc

SB 80

MEDICAL BILLS

KENTUCKY

OHIO

Can you introduce amount charged by provider or only lien amount owed?

Can introduce amount charged by provider

Baptist Healthcare v. Miller, 177 S.W.3d 676 (Ky. 2005)

Medical expenses paid under PIP are presumed reasonable & necessary

KRS 304.39-020(5)(a)

Plaintiff can introduce amount charged by the medical provider and Defendant can introduce the amount accepted by the medical provider as full payment.  The jury can then use this information to decide the reasonable value of medical services.

Robinson v. Bates, 112 Ohio St. 3d 17 (2006)

(however, according to Footnote 1 on page 21, Court suggests that O.R.C. 2315.20 will apply to all accidents that occur on or after 4/7/05)

Medical bill shall be prima facie evidence of the reasonableness of any charges

O.R.C. 2317.421