Cohen v. Alliant Enterprises, Inc.

JOHNSTONE, Justice,

Dissenting.

Respectfully, I dissent. The issue in this case is whether an action for vicarious *540liability may proceed against the master when the servant is immunized from liability by the statute of limitations. To answer this question in the affirmative, the majority ignores precedent or characterizes holdings as mere dicta. Indeed, the majority opinion does not cite one Kentucky case in which a principal was held responsible without a finding of liability on the part of the servant.

Copeland v. Humana of Kentucky, Inc., Ky.App., 769 S.W.2d 67 (1989), is distinguished on the basis that no settlement or “covenant not to sue” was involved in the case at bar. The Copeland court stated:

It matters little how the servant was released from liability; as long as he is free from harm, it appears to us that his master should also be blameless. Max v. Spaeth, 349 S.W.2d 1 (Mo.1961).
This result is required for either or both of two reasons: “That such a result will avoid circuity of action or that since the liability of the master or principal is merely derivative and secondary, exoneration of the servant removes the foundation upon which to impute negligence to the master or principal.” Holcomb v. Flavin, 34 Ill.2d 558, 216 N.E.2d 811, 814 (1966).

Id. at 69.

The majority dismisses this language as dicta. However, I would submit that the principles expressed were a crucial component of the decision by the Court of Appeals.

Floyd v. Humana of Virginia, Inc., Ky. App., 787 S.W.2d 267 (1989), is distinguished on the ground that there was no finding in Floyd that the hospital’s agent acted with negligence. Yet, as in the case before us, the plaintiff in Floyd named the wrong party and belatedly made an attempt to amend her complaint.

The majority concludes by pronouncing that “it is the law in Kentucky that a plaintiff may bring suit and recover from the principal under a vicarious liability theory, without first filing suit and getting a judgment against the agent.” Op. at 539. This declaration is based on a 1948 Sixth Circuit Court of Appeals1 case that stated:

As a matter of procedure appellee was not required to sue both Southeastern and Masters. He could have sued them separately; or jointly, as he did here.

The majority apparently forgets that appellant could not sue the doctor in this case either separately or jointly. Such an action was barred by the applicable statute of limitations.

I believe that it is elementary that a viable action against a servant for negligence is a condition precedent for imputing vicarious liability to the master. Today’s majority holding changes that longstanding principle.

. Southeastern Greyhound Lines v. McCafferty, 169 F.2d 1, 3 (6th Cir.1948).