concurring in part and dissenting in part:
I concur with the majority’s conclusion in affirming the Court of Appeals by rejecting the argument of Landrum & Shouse that Kuhlman Electric/Self Insured was a separate entity from Kuhlman Electric Corporation. Kuhlman Electric was the client of Landrum & Shouse when insured by Amerisure and did not cease to be the client when Amerisure’s interest became adverse. However, I disagree with the majority in concluding, as the Court of Appeals did, that sufficient evidence is before the Court to conclude Kuhlman Electric would be unable to demonstrate damages even if it successfully proves Landrum & Shouse and Amerisure violated fiduciary duties.
Significant Procedural History
The majority cites to the record of the Court of Appeals ruling in Kuhlman Electric Corporation v. Stephen R. Chappell, et al, Nos.2003-CA-001232-MR and 2004-CA-000633-MR, 2005 WL 3243498 (Ky.App. Dec.2, 2005) which points out discovery before the trial court was not closed or complete when the trial court was asked to address the question, “who is the client”. The record was sufficiently complete to *14address this primary question. When the trial court wrongly concluded there was no attorney-client obligation between Land-rum & Shouse (herein L&S) and Kuhlman Electric/Self Insured (herein “Kuhl-man/SI”), the trial court fairly resolved there was no reason to go further and dismissed the claims as to L&S and Amer-isure.
When the Court of Appeals reversed the trial court on the threshold issue of attorney-client relationship, and then adopted the results of the trial court in dismissing the claim as to L&S, it concluded no damages would have been provable under any set of facts. This conclusion was based on the finality of the workers’ compensation award finding a new injury with apportionment of benefits.
I disagree that the issue of damages or breach of any duty would be foreclosed.
By the time the summary judgment was being considered, sufficient information would have been before the trial court, had it concluded an attorney-client relationship existed, to require further review. These circumstances could have been apparent at least as early as when the Motion to Add Kuhlman/SI to the workers’ compensation claim was filed on August 26, 1992 by L&S as attorney for Kuhlman Electric. L&S had knowledge to support its theory that the August 20, 1991 injury, allegedly worsening the condition of Burgess, may have been a “new injury”. The record implies these conclusions were communicated to Amerisure and possibly others but not the client, Kuhlman Electric. And because the workers’ compensation claim was held in abeyance from November 20, 1992, until January 23, 1996, Kuhlman/SI may not have focused on the medical-legal issues to support its own defense of the second reopening claim since Kuhlman/SI could have reasonably expected to believe it could rely on its attorney, L&S, to keep it informed.
At a minimum, L&S should have been expected to share its conclusions and impressions of the claim with Kuhlman Electric, its client. If L&S had informed Kuhlman/SI of its impressions, Kuhlman Electric may not have been found to have been estopped to raise reasonable and valuable defenses to this “new injury” theory, and, thereby avoid the results of the adverse ruling. Alternatively, on review, the trier of fact might find Kuhlman/SI had sufficient information and it could have been more diligent when it was added as a party self-insured. Either way, such circumstances and questions were sufficient to allow proof of causation and any damages.
Apparently in 1992, L&S had resolved in its own mind its theory of “multiple identities” was acceptable, to believe no conflict of interest occurred in its continuing to represent Kuhlman Electric either as a client or as a former client. This theory, while providing protection to attorneys from conflict of interest claims, does nothing to give a client confidence in the profession exclusively charged with representing the client’s interest before adversarial tribunals (nor in the settlement of claims).
Remaining Factual Conclusions to be Determined
The record, as interpreted in the light most favorable to the non-moving party, requires this Court to support the ruling of the Court of Appeals, concluding L&S had but one client, and that was Kuhlman Electric. I am persuaded this Court is also compelled to reverse in part the conclusion, as the record now stands, that there could be no damages provable to prevail on the so-called “case within the case”. While the compensation award for Burgess is final, had there been disclosure *15by the attorney of its impression to its client in 1991, the Burgess claim may have resulted in a different outcome or a lessening of the consequences to Kuhlman Electric.
A long line of decisions has held that the question of whether the conduct of an attorney meets the standard of care test is one for the trier of fact to determine.1 Recently, this Court, in Marrs v. Kelly, 95 S.W.3d 856 (Ky.2003), remanded a matter to the trial court on a causation issue. In concurring in part, and dissenting in part, Justice Cooper argued forcefully the matter should not be referred back to a jury, as a trier of fact, on the question of causation. Rather, this matter should strictly be within the province of a judge, sitting without a jury.
If this Court is prepared to adopt the Court of Appeals’ opinion, holding the issue of causation and damages was so closed to warrant summary judgment, there being nothing for the trier of fact to decide, then the precedent from this ruling may send a confusing interpretation of whether causation issues are now strictly the province of the court as a matter of law rather than an issue for a jury sitting as fact finder. If this Court is prepared to accept those consequences, then it should clearly hold and say so.
If this is not the majority’s position, then the only result one can expect from the status of this case when it was before the Fayette Circuit Court when summary judgment was issued, mandates that it be remanded for further proceedings.
This matter should be remanded to the trial court to complete discovery and address this and similar issues in defenses relating to any breach of duties in the attorney-client relationship and damages caused thereby, if any.
I do not mean to suggest ultimately that the outcome may be different, but the record as it stands, does not support summary judgment.
While the factual and legal situation is different with Amerisure, the rulings on summary judgments were so dependent on the issue of whom L&S represented, the summary judgment in favor of Amerisure should also be remanded for consideration. Based upon further discovery and development of the facts, the interactions between the litigants may be subject to further scrutiny.
SCOTT, J., joins.
. See Daugherty v. Runner, 581 S.W.2d 12 (Ky.App.1978)