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Kentucky Creates Tort Of Intentional Trespass Presumably To Make Damages Easier To Recover

The Practical Consequences May Be Much Different

As an element of a claim, knowledge is sometimes difficult to prove.  When you do, however, damages tend to flow easily.  Think negligence (a common mistake) and fraud (an intentional mistake).  When you prove fraud, punitive damages are next.

And so is a loss of insurance coverage.  Most states, including California, preclude insurance companies from covering intentional torts.  It just doesn't make sense to allow people to "intend" to inflict harm and then insure them for it.

In Kentucky, a divided Supreme Court adopted the tort of intentional trespass, and allowed those damaged by contamination flowing from another site onto their property to recover damages.  According to the report from Lexis in the last link, all a landowner has to do to recover is show a diminution in value from the trespass.

Not hard to do when it's contamination that's the vehicle of the trespass.

With that ruling, landowners can presumably recover damages for the trespass, but you'll want to check with a lawyer licensed in the great state of Kentucky.  MIPTC isn't.

The only problem with the ruling is the practical aspect:  insurance carriers won't be helping make those payments, which will make the real recovery of damages less likely.

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, June 22, 2007 at 23:52 Comments Closed (0) |
 
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