RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-001644-MR

NICOLE T. MCGUFFEY, AS 

ADMINISTRATRIX OF THE

ESTATE OF JONATHAN C. MCGUFFEY APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE JOHN E. REYNOLDS, JUDGE

ACTION NO. 14-CI-04220

RONALD HAMILTON AND

JASON LAMB APPELLEES

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES.

CALDWELL, JUDGE: Pursuant to the principle of circular indemnity, the Fayette 

Circuit Court granted summary judgment to Jason Lamb and Ronald Hamilton on 

Nicole McGuffey’s claims stemming from her father’s death due to injuries he 
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sustained in a moped accident. The accident was caused by oil which leaked from 

a tractor-trailer (the truck) driven by Lamb and owned by Hamilton. Because 

indemnity is premised upon parties being at unequal fault, we conclude summary 

judgment was inappropriate because the record does not show that Lamb and 

Hamilton have markedly different fault than Select Diesel Repair, a garage which 

had recently serviced the truck. We also conclude the trial court erred by requiring

Nicole McGuffey, hereafter simply referred to as McGuffey, to have an expert 

witness to present legally cognizable claims that Lamb and Hamilton violated the 

Federal Motor Carrier Safety Regulations (FMCSR) and their Kentucky 

counterpart. 

INTRODUCTION AND GENERAL INDEMNITY PRINCIPLES

Usually we would begin by reciting this appeal’s relevant procedural 

and factual history. But this is not the usual case because its outcome depends on 

understanding fully the thorny concept of indemnity, particularly one of its subsets, 

circular indemnity. Therefore, we deem it necessary to discuss the essential tenets 

of indemnity before relating the case’s facts and procedural history. 

Indemnity is a common law principle whereby a party seeks

“restitution for damages he/she was required to pay for injuries sustained by 

another and which were entirely or primarily caused by the party against whom 

indemnity is sought.” Degener v. Hall Contracting Corp., 27 S.W.3d 775, 781-82 
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(Ky. 2000). Therefore, indemnity is a form of reimbursement, proper only if the 

party seeking it is only secondarily, or less, at fault than the party from whom it is 

sought. See, e.g., Ruby Lumber Co. v. K.V. Johnson Co., 299 Ky. 811, 187 S.W.2d 

449, 450 (1945) (“The general rule is that before one who has paid damage may be 

entitled to indemnity or restitution from another, it is essential that such other 

should be primarily responsible for the negligent act which caused the injury.”). 

Courts generally utilize the Latin phrase in pari delicto to describe a situation in 

which the parties are at roughly equal fault, in which case indemnity is unavailable, 

so for Lamb and Hamilton to be entitled to summary judgment based on indemnity 

they had to show they were not in pari delicto with Select Diesel. However,

though “in pari delicto” means “[e]qually at fault[,]” BLACK’S LAW DICTIONARY

(11th ed. 2019), courts do not require a showing that the parties are “literal 50/50 

partners in the plaintiff’s injury.” Stanford v. United States, 948 F. Supp. 2d 729, 

744 (E.D. Ky. 2013). 

“[I]ndemnity traditionally shifts the entire loss to the tortfeasor who 

was actually at fault.” 1 COMPARATIVE NEGLIGENCE MANUAL § 9:13 (2020). That

shifting of the entire loss (i.e., damages) is “[e]ssentially an all-or-nothing 

proposition . . . . ” 1 AMERICAN LAW OF TORTS § 3:28 (2020). See also Stanford, 

948 F. Supp. 2d at 745 (“Since the right [to indemnity] precedes the creation of 

several liability, it does not divide liability up among the parties. Rather, it is a 
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right of total indemnity. . . . Thus, a proper indemnity claim must allege that one 

tortfeasor deserves all or nearly all the blame for the plaintiff’s injury.”) (internal 

quotation marks and citations omitted). Consequently, indemnity has some 

characteristics of the ancient, discarded doctrine of contributory negligence, which 

has caused some jurists, both within and outside Kentucky, to question its 

continuing propriety in our modern, comparative negligence legal world. See, e.g.,

Degener, 27 S.W.3d at 786-87 (Keller, J., dissenting) (referring to indemnity as “a 

relic from days gone by” and opining that “[t]he same principles of fundamental 

fairness that compelled the discarding of contributory negligence in favor of 

comparative negligence also compels the elimination of indemnity between joint 

tortfeasors who shoulder unequal fault”); Eclectic Inv., LLC v. Patterson, 357 Or. 

25, 346 P.3d 468, 475 (Or. 2015) (“The doctrine of common-law indemnity was 

developed before comparative responsibility and is inconsistent with its 

framework.”); Memorial Sports Complex, LLC v. McCormick, 499 S.W.3d 700, 

708 (Ky. App. 2016) (Maze, J., concurring) (opining that indemnity was “not 

needed” and urging our Supreme Court to “take the opportunity to sort out the 

continued viability of contribution and indemnity and their proper relationship to 

statutory apportionment of fault. Doing so would alleviate a great source of 

confusion for trial courts and for juries.”). Nonetheless, twenty years ago a 

majority of our Supreme Court held that common law indemnity, archaic though it 
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was to the dissenters, had survived Kentucky’s transition from contributory 

negligence to comparative negligence. Degener, 27 S.W.3d at 780-81. 

This case primarily involves a subset of common law indemnity 

known as circular indemnity. Under circular indemnity, a plaintiff’s claims against 

a non-settling party are extinguished when a plaintiff settles with another party and 

agrees to hold the settling party harmless for claims made against it by the nonsettling party—in other words, the plaintiff “would end up indemnifying another 

party for its own original claim.” In re El Paso Refinery, LP, 302 F.3d 343, 350 

(5th Cir. 2002). A typical hypothetical example would be: a plaintiff sues Roe and 

Doe; plaintiff settles with Doe and agrees to hold Doe harmless from claims 

brought against it by Roe; plaintiff receives a $100,000 judgment against nonsettling party Roe; Roe then seeks, and receives, $100,000 from settling party Doe

via indemnification; and the indemnification/hold harmless terms of the plaintiff’s 

settlement agreement with Doe require plaintiff to reimburse Doe $100,000—the 

end result being plaintiff receives a $100,000 judgment from Roe but has to pay 

$100,000 to Doe. 

Expending scarce judicial resources on allowing a plaintiff to pursue a 

judgment from one defendant on the front end which the plaintiff would have to

essentially repay to another defendant on the back end is inefficient, if not 

pointless. Thus, circular indemnity acts to preclude a plaintiff’s functionally 
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valueless claims against the non-settling party, Roe in our example, and under the 

trial court’s reasoning, Lamb and Hamilton in the case at hand. 

Applying those principles to the facts of this case, for circular 

indemnity to apply the record must show with the unmistakable clarity required to 

support granting summary judgment that: 1) Lamb and Hamilton are entitled to 

indemnity from the settling defendant, Select Diesel, and 2) McGuffey would have 

to repay (hold harmless) Select Diesel for Lamb and Hamilton’s indemnity claims. 

See In re El Paso Refinery, LP, 302 F.3d at 350 (“In order to invoke circuity of 

action as a defense in this case, TRMI must show that two requirements are met. 

First, the non-settling defendant [TRMI] must be entitled to indemnity or 

contribution from the settling defendant [the Debtor]. Second, there must be an 

express or implied obligation on the part of the plaintiff [RHC] to hold harmless 

the settling tort-feasor [the Debtor] from further liability, by indemnity or 

contribution.”) (internal quotation marks and citations omitted).

It is beyond dispute that McGuffey agreed to hold Select Diesel 

harmless, but Lamb and Hamilton’s right to seek indemnification from Select 

Diesel is disputed. At this stage, the relative fault of Select Diesel vis-à-vis Lamb 

and Hamilton is hazy and “[i]ndemnity is not an issue until fault has been 

determined.” Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 253 (Ky.

1995), overruled on other grounds by Martin v. Ohio County Hosp. Corp., 295 
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S.W.3d 104 (Ky. 2009). Therefore, courts at the summary judgment stage must

tread carefully before pretermitting claims based upon indemnity. Later in this 

opinion we will discuss precedent which illustrates when summary judgment based 

on indemnity is proper (when the relative fault of the parties is obvious) and when 

it is not (when the relative fault of the parties is murky). Distilled to its essence, 

summary judgment based upon indemnity is proper only when “the settling party 

[here, Select Diesel] was clearly the party at fault, and any liability of the 

nonsettling party [here, Lamb and Hamilton] was only through the settling party’s 

fault.” York v. Petzl America, Inc., 353 S.W.3d 349, 354 n.5 (Ky. App. 2010). 

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Having set out the indemnity lens through which this case must be 

properly viewed, we now turn to relating this appeal’s most germane underlying

facts and procedural history. Hamilton owns a trucking company and employed 

Lamb as a truck driver. On July 21, 2014, Lamb picked up the truck from Select 

Diesel Repair in Dry Ridge, Kentucky, where it had undergone maintenance, 

including changing the oil and oil filter. According to Lamb, he performed a pretrip inspection and then drove the truck from Dry Ridge to Frankfort, Kentucky, 

where he picked up a load of scrap metal. Lamb then drove the truck to Baker’s 

Iron & Metal in Lexington, Kentucky, where he unloaded it, reloaded it, and went 
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back to Frankfort. As was his routine, Lamb then went on a second run, driving

the again reloaded truck back towards Baker’s Iron in Lexington. 

After exiting I-75 and turning south on North Broadway in Lexington, 

Lamb heard a buzzer sound and saw that the oil indicator light was illuminated. 

The oil pressure gauge then dropped to zero and the truck shut down, but Lamb 

managed to maneuver it to the median lane, where he coasted to a stop. He

activated the truck’s flasher lights, placed safety triangles behind it, and called 

Hamilton. At that point, according to Lamb’s deposition, oil was pouring out of 

the truck. Although Hamilton testified at his deposition that he had “no idea” who 

called the fire department, it is uncontested that fire department personnel

eventually arrived to secure the scene and attempt to clean up the substantial 

amount of spilled oil.

 Meanwhile, the decedent, Jonathan McGuffey, rode his moped in the 

opposite direction on North Broadway, going past the stranded truck and cleanup 

operation. As he attempted to turn left from North Broadway onto a side street, his 

moped slipped on oil which had leaked from the truck as it passed through that 

area, causing the injuries which ultimately led to his unfortunate death. 

After her appointment as administratrix, Nicole McGuffey, Jonathan 

McGuffey’s daughter, filed a complaint alleging that the negligence of Hamilton 

and Lamb in failing to properly maintain the truck resulted in her father’s wrongful 
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death. She subsequently amended her complaint to add negligence claims against 

Select Diesel in its maintenance and repair of the truck. 

In December 2015, she settled her claims against Select Diesel and

executed a release agreement. In relevant part, the release provides:

 It is further agreed that, in exchange for this 

settlement[,] Plaintiff, Nicole T. McGuffey, as 

Administratrix of the Estate of Jonathan McGuffey and 

on behalf of the Wrongful Death Beneficiaries of 

Jonathan McGuffey, agrees to indemnify and hold 

harmless [Select Diesel] . . . for all claims which were or 

could have been raised against them by any other party to 

the civil action currently pending before the Fayette 

Circuit Court, Division III, . . ., being Civil Action #14-

CI-4220 in that court, or any other civil action arising 

from the subject incident which occurred on or about July 

21, 2014 on North Broadway, U.S. Highway 27, in 

Lexington, Fayette County, Kentucky and/or the service 

and maintenance of a 2000 Freightliner owned by Ronald 

P. Hamilton and operated by Jason Lamb . . . .

* * * *

 It is understood that this Release is intended to 

release only [Select Diesel]. . . . This Release has no 

effect upon Nicole T. McGuffey, as Administratrix of the 

Estate of Jonathan McGuffey and on behalf of the 

Wrongful Death Beneficiaries of Jonathan McGuffey’s 

claims against other parties in the litigation currently 

pending before the Fayette Circuit Court, Division III, 

. . . being Civil Action #14-CI-4220.[1]

 

1 Portions of the release were quoted in various documents in circuit court, and the full release 

was apparently provided to the trial court. But, for unknown reasons, a full copy of the release is 

not in the circuit court record before us. McGuffey attached a copy of it to her brief, and Lamb 

and Hamilton have not taken issue with her doing so, nor have they argued that the copy she 

attached is inaccurate and/or incomplete. Under those unique circumstances, we conclude our 
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Appellees Hamilton and Lamb thereafter filed two motions for 

summary judgment. The first claimed entitlement to summary judgment based 

upon McGuffey’s failure to provide expert testimony to buttress her claim they had 

violated the FMCSR, the alleged violation(s) of which provided the basis for her 

negligence per se claims.

2

 The second motion was based upon circular indemnity, 

specifically language in the release under which McGuffey agreed to indemnify 

Select Diesel and hold it harmless “for all claims which were or could have been 

raised against [it] by any other party” to the litigation (i.e., Hamilton and Lamb). 

The trial court granted both summary judgment motions. First, the 

court concluded that without expert testimony a jury would lack the necessary 

knowledge to evaluate Hamilton and Lamb’s conduct concerning alleged

violations of the FMCSR. Second, the court concluded that Lamb and Hamilton 

were not in pari delicto with Select Diesel in causing Mr. McGuffey’s injuries;

thus, the principles of circular indemnity foreclosed McGuffey’s claims against 

them because McGuffey would have eventually had to reimburse Select Diesel for 

the indemnity claims it would have had to pay to Lamb and Hamilton. This appeal 

followed entry of the second summary judgment.

 

consideration of the release attached to McGuffey’s brief is permissible and does not violate the 

rule generally preventing us from considering materials not found in the record. 

2 McGuffey originally had a trucking expert but failed to timely disclose the expert, so the trial 

court ruled the expert could not testify. After that, McGuffey argued, out of necessity, that she 

did not need an expert. 
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ANALYSIS

A. Issues Presented

McGuffey contends neither summary judgment was proper. As to the 

first, she argues the trial court improperly grafted the general rule requiring expert 

witnesses in medical malpractice cases onto her FMCSR claims. She argues the 

second summary judgment was improper because the trial court erroneously 

concluded that Lamb and Hamilton were not in pari delicto with Select Diesel, 

which led it to foreclose her claims via misapplication of circular indemnity. We 

agree with McGuffey that both summary judgment motions were improvidently 

granted.

B. Summary Judgment Standards of Review

We commence our analysis by reiterating the familiar, stringent 

summary judgment standards in Kentucky:

 The standard of review on appeal of a summary 

judgment is whether the trial court correctly found that 

there were no genuine issues as to any material fact and 

that the moving party was entitled to judgment as a 

matter of law. Kentucky Rules of Civil Procedure (CR) 

56.03. There is no requirement that the appellate court 

defer to the trial court since factual findings are not at 

issue. Goldsmith v. Allied Building Components, Inc., 

Ky., 833 S.W.2d 378, 381 (1992). “The record must be 

viewed in a light most favorable to the party opposing the 

motion for summary judgment and all doubts are to be 

resolved in his favor.” Steelvest, Inc. v. Scansteel Service 

Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). 

Summary “judgment is only proper where the movant 
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shows that the adverse party could not prevail under any 

circumstances.” Steelvest, 807 S.W.2d at 480, citing

Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 

(1985). Consequently, summary judgment must be 

granted “[o]nly when it appears impossible for the 

nonmoving party to produce evidence at trial warranting 

a judgment in his favor. . .” Huddleston v. Hughes, Ky.

App., 843 S.W.2d 901, 903 (1992), citing Steelvest,

supra (citations omitted).

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). 

C. An Expert Witness Was Not Required

McGuffey argues the trial court abused its discretion in applying the

general requirement that a plaintiff present an expert in medical negligence cases, 

as set out in Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010), to other types of 

claims. On the other hand, Lamb and Hamilton argue the jury would not be able to 

understand adequately the requirements imposed by the FMCSR without expert 

testimony. We agree with McGuffey, a conclusion which should not be a huge

surprise since we and our Supreme Court have consistently refused to expand the 

Blankenship requirement of expert testimony to non-professional negligence 

cases.

3

 

3 We refer to professional negligence instead of medical negligence because we held an expert 

was required to present a cognizable legal malpractice claim in Gleason v. Nighswander, 480 

S.W.3d 926, 929 (Ky. App. 2016). See also 4 LEGAL MALPRACTICE § 37.123 (2020) (“Whether 

an attorney has complied with the standard of care is an issue of fact, unless the evidence of 

negligence is so conclusive that reasonable persons can reach only one conclusion. Otherwise, 

expert testimony is necessary to establish the standard of care, since only an attorney can 

competently testify to whether the defendant met the prevailing legal standard.”) (footnotes 

omitted). Having experts for legal or medical malpractice cases is premised upon the fact that 
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We concisely explained why expert witnesses are generally not 

required in non-professional negligence cases in Stathers v. Garrard County Board

of Education, 405 S.W.3d 473, 479-80 (Ky. App. 2012):

We begin by noting that “causation . . . presents a mixed 

question of law and fact.” Therefore, whether a 

plaintiff’s damage was caused by the tort defendant 

typically “should be left to the jury to determine.” It is 

not surprising then that, with the exception of 

[professional] malpractice cases, we could find no 

Kentucky appellate opinion affirming any grant of 

summary judgment based on a plaintiff’s inability to 

establish, through expert testimony, the existence of a 

genuine issue of . . . material fact . . . .

(Emphasis added) (footnote and citations omitted). No case since Stathers has 

imposed the requirement for an expert witness in medical negligence cases to 

claims not involving professional malpractice. 

As underscored in Stathers, the pivotal question is whether, 

considering the record and the reasonable inferences therefrom, “it is still 

impossible, in a practical sense, for [an appellant] to prevail at trial.” Id. at 481. A 

trial court’s determination that an expert is required is reviewed on appeal for 

abuse of discretion. Caniff v. CSX Transportation., Inc., 438 S.W.3d 368, 374 (Ky. 

 

doctors and attorneys receive lengthy, specialized education and the appropriate standards of 

performance for those professions are based upon that specialized training. Although the 

trucking industry is vital and requires some special skills, it is not based upon years of 

specialized training in areas generally unfamiliar to the general population. In short, McGuffey’s 

claim that Lamb and Hamilton violated trucking regulations is qualitatively different than 

allegations of professional malpractice. 
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2014). We readily conclude the trial court here abused its discretion by granting 

summary judgment to Lamb and Hamilton based upon McGuffey’s failure to have 

an expert trucking witness.

An expert is not required simply because a plaintiff alleges violations 

of a federal regulatory system with which most jurors are likely unfamiliar. In 

Caniff, for example, the trial court granted summary judgment to defendants in a 

case involving alleged violations of the Federal Employers Liability Act (FELA), 

which governs the railroad industry, because the plaintiff did not have an expert 

railroad industry witness. Id. at 371. Our Supreme Court found no expert was 

necessary, explaining its reasoning as follows:

The case at bar is not a medical malpractice case, or any 

other type of professional negligence case. At its root, 

this case is a normal “slip and fall” case. Under FELA, 

the jury is asked to determine whether CSXT’s 

negligence played any role in Caniff’s injuries. 

Blankenship is also unlike this case in that the trial court 

there granted summary judgment based upon an 

undisputed need for an expert witness. There was no 

such undisputed need for an expert witness in the case at 

bar. . . . Experts are often required in complex cases in 

which a jury will not understand, through common 

knowledge or experience, the intricacies involved in the 

negligence claim. This is simply not one of those cases. 

Here, the duty, breach, foreseeability, causation, and 

injury which Caniff must prove in order to succeed in his 

action under FELA can be readily understood by the jury 

without the aid of an expert witness. Furthermore, there 

was no undisputed need for an expert, as existed in 

Blankenship. . . . At any rate, we are at an utter loss as to 

why an expert would be required in a case such as this. 
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Lay jurors can determine whether CSXT’s actions were 

negligent in this case without any such testimony to 

explain to them the standards as they existed in the 

railroad industry at the time of Caniff’s injury. While it 

would be within the discretion of the trial court to allow 

an expert witness to testify as to these industry standards 

in this case, it is not within its discretion to require as 

much in order for Caniff’s case to survive a motion for 

summary judgment.

Id. at 373-375 (footnotes and paragraph breaks omitted). If an expert was not 

required to explain the railroad industry norms in a FELA case, we are similarly 

“at a loss” as to why an expert would be required to explain the trucking industry 

norms in this FMCSR case.

Having examined the record in the light most favorable to McGuffey 

and resolving all doubts in her favor, we, like the Court in Stathers, are persuaded 

that “it is not impossible for a jury to rule” in McGuffey’s favor. Stathers, 405 

S.W.3d at 481 (citing Steelvest, 807 S.W.2d at 480). Regardless of whether the 

claims presented are based upon strict liability, negligence per se, or simple 

negligence, the fundamental principles remain the same. We are confident that the 

jurors of this Commonwealth can understand adequately the requirements of the 

FMCSR and whether Lamb and Hamilton failed to satisfy them. 
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We recognize that Lamb and Hamilton have identified experts who 

will purportedly testify that they did not violate the FMCSR.

4

 Perhaps a jury will 

find that testimony carries conclusive weight. Perhaps not. But the issue is not 

whether Lamb and Hamilton’s experts will prove to be more persuasive than 

McGuffey’s lay witnesses; the issue is whether it was impossible for McGuffey to 

prevail without presenting an expert trucking witness. It was not. See Chamis v. 

Ashland Hospital Corp., 532 S.W.3d 652, 656 (Ky. App. 2017) (“Ordinary 

negligence cases . . . can be established without expert testimony. Medical 

malpractice cases, however . . . usually require expert medical testimony . . . .”) 

(citation omitted). Consequently, the trial court abused its discretion by granting 

summary judgment to Lamb and Hamilton based solely upon McGuffey’s failure 

to produce expert testimony to support her claims of negligence per se.

D. The Record Does Not Show That Lamb and Hamilton Had a 

Clear, Unmistakable Entitlement to Claim Indemnity from Select Diesel 

Turning now to the judgment holding that Lamb and Hamilton were 

not in pari delicto with Select Diesel and are thus entitled to indemnity as a matter 

of law, we are again convinced that summary judgment was inappropriate. Lamb 

and Hamilton claim circular indemnity is triggered by language in the release by 

 

4 The record only contains identification of those experts, not their reports. In any event, 

McGuffey’s claims are not automatically extinguished just because the defendants retained 

experts in this non-professional negligence case. 
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which McGuffey agreed to indemnify Select Diesel and hold it harmless “for all 

claims which were or could have been raised against them by any other party” to 

the litigation. The question on summary judgment is whether the record shows 

that it would be impossible for McGuffey to prevail. And for McGuffey to 

overcome circular indemnity at the summary judgment stage, the record must show 

a possibility that Lamb and Hamilton were in pari delicto with Select Diesel. That 

possibility exists here. 

1. There Is Not Sufficient Evidence to Show Select Diesel Was 

Primarily at Fault 

First, in our view, Lamb and Hamilton are raising what amounts to a 

res ipsa loquitur (the thing speaks for itself) argument: the fact that the oil spill 

occurred on the day that Lamb picked up the tractor trailer from Select Diesel 

means Select Diesel’s negligence caused the oil to leak. It is possible that may 

turn out to be accurate. But the question is whether summary judgment was proper 

based upon what the record shows now, not what it may show later.

Lamb and Hamilton cite to nothing specific in the record to show that 

the temporal relationship between maintenance performed by Select Diesel and the 

leaking oil means that Select Diesel inevitably caused the leak. Specifically, the 

record does not contain affidavits or depositions by expert witnesses or lay persons 

with first-hand knowledge opining that the leak was caused by Select Diesel and
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Select Diesel has not admitted any negligence or responsibility for the oil leak. 

Generally, “[s]uspicion is not legally sufficient to support a finding of causation in 

a tort case: that evidence of an event followed closely by manifestation of 

conditions which did not appear before the event raises only suspicion that the 

event at issue caused the condition.” 86 C.J.S. Torts § 104 (2020). And even if 

Select Diesel negligently performed repairs, a jury could conclude that Lamb and 

Hamilton were also negligent. 

Lamb drove the truck extensively between the time he picked it up 

from Select Diesel and the time he had to pull into a median due to the leaking oil. 

It is common knowledge that a vehicle can be damaged any time it is driven—

especially if the vehicle is driven multiple times to scrap yards. It is also common 

knowledge that mechanical parts do not have an unlimited lifespan and thus can, 

and do, malfunction at any time, even absent negligence. Indeed, we do not know

exactly when the oil first began to leak. 

Moreover, in seeming contradiction to his current position, at his 

deposition Hamilton absolved Select Diesel from any responsibility for the oil 

leak.

5 Lamb similarly agreed at his deposition that he had no “firsthand 

 

5 The following colloquy occurred at Hamilton’s deposition:

Q [by McGuffey’s then-counsel] At one point there was an allegation that 

Donato, or Select Diesel Repair, per your pleadings had some responsibility in the 

subject oil leak. Do you recall that?

A [by Hamilton] No, I do not.
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knowledge” of what caused the oil leak at issue. Neither do we. A court cannot 

presume and assume its way to summary judgment. Because the record does not 

show conclusively the fault, if any, attributable to Select Diesel and/or Lamb and 

Hamilton in causing the oil leak which ultimately led to Mr. McGuffey’s tragic 

death, we cannot say that Select Diesel was primarily liable with Lamb and 

Hamilton having only distant, secondary liability. 

2. Lamb and Hamilton’s Heightened Duties

In addition to liability for the leak being unclear, Lamb and Hamilton 

also had additional duties under the FMCSR since Lamb is a professional truck 

driver possessing a Commercial Driver’s License (CDL) and Hamilton has a CDL 

and owns a commercial trucking company. In fact, neither Lamb nor Hamilton 

denies that he is subject to the requirements of the FMCSR.

 

Q Do you feel or is it your position that Donato, or Select Diesel Repair, had any 

contribution to this oil spill at all?

A No.

Q Per your investigation, should Select Diesel Repair have discovered this check 

oil valve leak prior to the date of the incident?

A No.

Q Did a representative from Donato express to you an opinion as to what caused 

the check valve failure?

A After the fact?

Q Yes, sir.

A It was just, you know, his opinion that that could happen, him being a 

mechanic.

Record (R.) at 938-39.
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Both the federal government and Kentucky’s state government have 

imposed heightened duties upon persons involved in the trucking industry. Indeed, 

at his deposition Hamilton agreed that commercial, professional truck drivers have 

a “heightened standard of care, exceeding that . . . expected of the citizens on the 

roadway . . . .” For example, pertinent to this case, 49 Code of Federal Regulations 

(C.F.R.) § 396.5 provides: “Every motor carrier shall ensure that each motor 

vehicle subject to its control is—(a) Properly lubricated; and (b) Free of oil and 

grease leaks.” Kentucky adopted large portions of the FMCSR for commercial 

motor vehicles, including 49 C.F.R. § 396. See 601 Kentucky Administrative 

Regulations (KAR) 1:005 § 2(11). Therefore, both Lamb and Hamilton had a 

specific duty to ensure the tractor-trailer was not leaking oil. 

Lamb also had a specific duty to make sure the tractor-trailer was “in 

safe operating condition” before driving it under 49 C.F.R. § 396.13(a).6 Indeed, 

Lamb testified at his deposition that the truck at issue was taken for repairs or

 

6 McGuffey’s complaint specifically cited only to § 396.5 but generally alleged that Hamilton 

and Lamb had not “properly maintain[ed]” the tractor-trailer at issue. R. at 28. 49 C.F.R. § 

396.3 mandates that “[e]very motor carrier and intermodal equipment provider must 

systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, 

and maintained, all motor vehicles and intermodal equipment subject to its control.” Therefore, 

though better practice would have been to specifically cite to §§ 396.3, 396.11, and 396.13, the 

complaint contains allegations which are at least the functional equivalent of the requirements of 

those regulations. Indeed, it is beyond serious dispute that commercial trucking companies and 

drivers have a duty to properly maintain commercial trucks. In short, any omission of an exact 

citation to any applicable provision of the FMCSR does not relieve Lamb or Hamilton from their 

obligation to properly inspect and maintain the truck at issue.
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service, some admittedly minor, fifteen times between February 2014 and when the 

oil leak occurred in July 2014. But Lamb admitted that he noted none of those 

fifteen repairs on his daily vehicle inspection reports, as is required by §§ 396.11

and 396.13. Lamb also agreed that a trucking company with twenty-four safety 

violations like Hamilton’s company incurred in an eight-month period, which we 

will soon discuss, needed to “reevaluate or remedy its system of inspection of 

safety equipment . . . .” Lamb also testified that Hamilton “took fairly good care of 

the equipment.” But a jury could have reached divergent conclusions as to 

whether Hamilton and Lamb met their FMCSR inspection, repair, and reporting 

duties. 

Moreover, Lamb testified that Hamilton did not guarantee Lamb could 

drive an alternate truck when Lamb’s assigned truck was being repaired. Thus, 

Lamb’s income was potentially negatively impacted whenever his truck needed 

repairs or maintenance since he was paid by the load and so did not earn money 

unless he was driving. A jury could conclude that system created a perverse 

financial disincentive for Lamb to get his assigned truck serviced. 

Turning to Hamilton, he testified at his deposition that he did not train 

Lamb on how to perform the requisite pre-trip inspections, nor did Hamilton’s 

company have written policies governing pre-trip inspections. Moreover, 

Hamilton failed to notice, or at least failed to correct, some reports submitted by 
-22-

Lamb which were deficient. Indeed, Hamilton admitted his drivers and trucks had 

been cited numerous times by Kentucky and Ohio officials for violations, such as 

not having properly operating turn lights and having defective breaks; yet he made 

no changes to his company’s procedures. In fact, Hamilton did not even reprimand 

a driver (not Lamb) who received eight violations in Kentucky, and an oil leak 

violation in Ohio, during a single month in 2014. 

Hamilton also answered no when asked if Lamb’s driver’s log 

sheet/time sheet for the date of the oil leak showed Lamb had engaged in a pre-trip 

inspection. Hamilton testified that he believed a fifteen-minute listing of “on duty, 

not driving” from 2:00 a.m. on the time sheet covered a time when Lamb 

performed his pre-trip inspection. Lamb testified that he performed a pre-trip 

inspection, which included looking at the “engine bay” at 4:30 to 5:00 a.m., then 

later testified he performed an inspection from 2:00 to 2:15 a.m. He also testified 

that he noticed no issues or defects with the truck’s “oil system” during that 

inspection. 

Perhaps a jury would agree Lamb and Hamilton performed their 

respective FMCSR duties, including conducting a proper pre-trip inspection the 

day of the oil leak; perhaps not. But that is the point. The trial court ruled as a 

matter of law that Lamb and Hamilton were not in pari delicto with Select Diesel, 

implicitly accepting the argument that the lion’s share of fault lay at the feet of 
-23-

Select Diesel. But that conclusion has no solid evidentiary ground upon which to 

rest; by contrast, there is evidence in the record from which a reasonable juror 

could conclude that Lamb and Hamilton failed to meet their FMCSR duties. 

Given that, how then may it be reasonably said that it would be 

impossible for McGuffey to show that Select Diesel and Lamb and Hamilton were 

in pari delicto? To ask the question is to answer it. Since the record here does not 

support a conclusion that, as a matter of law, Select Diesel was primarily 

responsible for the oil leak, the trial court erred by finding Select Diesel and Lamb 

and Hamilton were not in pari delicto. 

3. Precedent Holding That Indemnity Was Proper Is 

Distinguishable Because There Was an Obvious Allocation of Fault in Those 

Cases

We will not burden this already lengthy opinion by discussing each 

case cited by the parties. Instead, we will discuss three of the main cases: Brown 

Hotel Company v. Pittsburgh Fuel Company, 311 Ky. 396, 224 S.W.2d 165 

(1949); Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987); and Butt v. 

Independence Club Venture, Ltd., 453 S.W.3d 189 (Ky. App. 2014). Each of those 

cases, along with the others cited by the parties in which indemnity was found to 

apply, have distinguishable facts but share a common core: it was plain which 
-24-

parties were primarily liable and which were only secondarily liable—i.e., there 

could not be a reasonable dispute that the parties were not in pari delicto. 

a. Brown Hotel Company v. Pittsburgh Fuel Company

We begin with Brown Hotel, which remains the keystone case in 

Kentucky indemnity law despite being rendered over seventy years ago. In that 

case, “[a]n employee of the appellee, Pittsburgh Fuel Company, left insecure the 

lid of a manhole into which he had unloaded coal, and a pedestrian was injured 

when it turned with him.” 224 S.W.2d at 166. Even though Kentucky was then 

still using contributory negligence, “[a] judgment for $5,277 for damages was 

rendered against the fuel company and the Brown Hotel Company. The verdict 

specified each should pay an equal part.” Id. The issue was whether Brown Hotel, 

via its insurer, was entitled to indemnity from Pittsburgh Fuel Company. 

The former Court of Appeals began its analysis by setting forth the 

basic principles of indemnity, which have subsequently been cited numerous times

by Kentucky appellate courts:

The general common law rule that a joint tort feasor who 

is compelled to pay damages for the negligent or tortious 

act of another is not entitled to indemnity from the latter 

has become subject to so many exceptions and 

limitations—resting upon reasons at least as forceful as 

those which support the rule itself—the rule has become 

so narrow that it can hardly with propriety now be called 

the general rule. The general rule has become the 

specific rule only where joint tort-feasors were in pari 

delicto—equal fault. Other than that, the socalled [sic] 
-25-

exceptions have become rules themselves. An Act of 

1926, now Kentucky Revised Statutes 412.030,[7]

authorizing contribution among tort-feasors where the 

wrong reflects no moral turpitude, abrogated the socalled general rule but made no change in the exception 

which allows the right of indemnity where the person 

seeking it and the person from whom it is sought are not 

in pari delicto, as where the party who was compelled to 

pay the damages was less culpable than the other 

wrongdoer, although both were equally liable to the 

person injured. Where one of two parties does an act or 

creates a hazard and the other, while not concurrently 

joining in the act, is, nevertheless, thereby exposed to 

liability to the person injured, or was only technically or 

constructively at fault, as from the failure to perform 

some legal duty of inspection and remedying the hazard, 

the party who was the active wrongdoer or primarily 

negligent can be compelled to make good to the other 

any loss he sustained.

Id. at 166-67 (citations omitted).

The Court in Brown Hotel held that indemnity was proper because it 

was clear that Pittsburgh Fuel was primarily responsible for the pedestrian’s 

injuries—i.e., it was inarguable that the hotel and fuel company were not in pari 

delicto:

The primary, efficient and direct cause of the accident 

was the positive antecedent negligence of the fuel 

company’s employee in failing to replace the manhole lid 

securely. This exposed the hotel company to liability. 

Its fault was a negative tort in failing to check upon the 

 

7 Unchanged since its enactment in 1942, Kentucky Revised Statutes (KRS) 412.030 provides in 

its entirety that “[c]ontribution among wrongdoers may be enforced where the wrong is a mere 

act of negligence and involves no moral turpitude.”
-26-

act of the coal delivery man and in failing to observe its 

affirmative duty to the public to see that the way was free 

of obstruction or the pitfall. Both were in fault but not 

the same fault toward the party injured. The employees 

of the two companies were not acting jointly or 

concurrently or contributorily in committing the tort. 

They were not in pari delicto.

. . .

Under the common law rule there may be complete 

indemnity where one party’s liability is secondary 

because it arose from the negligence of the other party 

and would not have arisen but for it. This right is not 

derived from the statute but stands entirely on principles 

of equity. 

Id. at 167-68. 

The trial court reasoned that, like the hotel employees in Brown, 

Hamilton and Lamb’s fault was secondary, stemming from a failure to check the 

proper performance of another party. The trial court concluded that the oil leak 

was “because of the failure of the oil filter installed by Select Diesel.” However, 

there is insufficient evidence to support that sweeping conclusion. The fact that 

the oil spill occurred on the day that Lamb picked up the tractor-trailer from Select 

Diesel does not inevitably lead to the conclusion that Select Diesel’s negligence 

was the sole cause of the accident, as has previously been discussed. Select Diesel 

has not admitted liability, nor has its liability, if any, been proven. Without 

liability, there cannot be indemnity. Clark, 910 S.W.2d at 253. Moreover, the trial 
-27-

court failed to address the heightened duties of Lamb and Hamilton under FMCSR, 

or the alleged violations thereof. 

Even if it is ultimately determined that the only reason the truck

driven by Lamb on the day in question spilled oil onto the road was because of the

improper work performed by Select Diesel, Lamb and Hamilton would not be

automatically relieved of all liability. Regardless of the reason the truck lost oil,

Lamb, as the driver, had a duty to operate the truck in a manner consistent with the

commercial trucking industry guidelines at all times, even—especially—when

other hazards appear. Regardless of the cause of the mechanical failure,

commercial truck drivers have an unflagging duty to inspect and then operate

commercial vehicles in a safe manner and a failure to do so can implicate liability.

Did Select Diesel negligently perform maintenance on the truck? Maybe. Did

Lamb inspect the truck fully and react appropriately and timely to the oil spill? 

Maybe. Did Lamb and Hamilton make sure the truck was properly maintained? 

Maybe. Was Select Diesel’s alleged negligence primary, with Lamb and

Hamilton’s being only secondary? Maybe. Maybes are insufficient to warrant

summary judgment.

b. Crime Fighters Patrol v. Hiles

In Hiles, Robert Cook, a customer at a White Castle fast food 

restaurant, attacked another customer, Larry Hiles. Hiles sued White Castle for 
-28-

failing to exercise reasonable care in preventing the assault; White Castle filed a 

third-party complaint against Crime Fighters Patrol, the security company it had 

hired. 740 S.W.2d at 937. White Castle also filed a third-party complaint against 

Cook, seeking indemnity. Crime Fighters Patrol, in turn, filed a cross-claim 

against Cook, also seeking indemnification. Id. Cook filed an answer, alleging 

Hiles had executed a release that provided in relevant part that Hiles would 

“indemnify and forever hold harmless” Cook “against loss from any further claims 

. . . brought against him by anyone for the purpose of enforcing a further claim for 

damages on account of my injuries sustained on or about March 13, 1982, 

specifically including any claims for contribution and/or indemnification.” Id.

Like the case at hand, the trial court concluded that release entitled 

White Castle and Crime Fighters Patrol to summary judgment on Hiles’ claims via 

application of circular indemnity. Id. After aptly noting that trying to apply the 

principles enunciated in Brown Hotel led courts to experience “much difficulty[,]” 

the Court framed the issue as follows:

Thus, we must decide whether the alleged negligent acts 

of White Castle and Crime Fighters Patrol should be 

considered “in pari delicto” with Cook’s wrongful acts in 

causing Hiles’ injury, in which case White Castle and 

Crime Fighters Patrol have only a claim for statutory 

contribution or partial indemnity, extinguished only by 

half because of the indemnity agreement from Hiles to 

Cook, or whether White Castle and Crime Fighters Patrol 

have a claim over against Cook for complete indemnity 
-29-

extinguished completely by the promise of indemnity 

from Hiles to Cook.

Id. at 938-39.

After an extensive discussion of the Restatement (Second) of Torts, 

the Court concluded summary judgment based upon circular indemnity was 

proper:

The basic allegation by Hiles against White Castle, 

and the fundamental fact that requires summary 

judgment, is that the appellants, White Castle and Crime 

Fighters Patrol, have at most failed to prevent an assault 

by Cook upon Hiles. They did not participate in making 

the assault. The issue must be resolved against the 

appellees even if we accept the case as they put it in their 

Brief, “an affirmative duty on the part of a business 

establishment to protect its business invitee from attacks 

of another business patron.” The fact pattern is 

analogous to the situation in Brown Hotel where the 

Pittsburgh Fuel Company left the lid of a manhole 

insecure and the Brown Hotel failed to maintain its 

premises free from this dangerous condition. It calls for 

complete indemnification.

. . .

[A]s between White Castle and Crime Fighters Patrol, 

whose negligence, if any, consisted of failing to prevent 

the assault, and Cook, who perpetrated the assault, 

applying equitable principles the parties are not in pari 

delicto; White Castle and Crime Fighters Patrol would be 

entitled to complete indemnity from Cook. This is a case 

where there is no disagreement as to the material facts. 

The only dispute is the legal significance of those facts. 

A summary judgment is proper. 

Id. at 939-41.
-30-

Though portions of Hiles may not be written in optimally clear and 

concise language, its basic premise is the same as Brown Hotel: indemnity is 

proper when the undisputed facts show one party is obviously the primary cause of 

a plaintiff’s injuries. As discussed, there is no such obviousness here so Hiles does 

not support granting summary judgment to Lamb and Hamilton.

c. Butt v. Independence Club Venture, Ltd.

Butt, the third main case relied upon by Lamb and Hamilton, involves 

indemnity in light of the Kentucky Dram Shop Act. After leaving a bar owned by 

Independence Club Venture, Ltd. (Independence), an intoxicated driver, Nathan 

King, was involved in a fatal accident which killed three of his passengers and 

injured the fourth, Bruce Butt. 453 S.W.3d at 191. The estates of the deceased 

passengers and Butt settled their claims with King and his insurer. As part of the 

settlement, the estates and Butt executed a release which stated in relevant part that 

it was not intended to “preclude” claims against “potentially responsible parties, 

such as liquor stores, restaurants, bars, and the like,” but the estates and Butt were 

obligated to “hold harmless, and to indemnify [King and his insurer] from any and 

all claims, liens, causes of action, demands or suits of any kind which may have 

been brought because of the accident . . . or for any amount that they . . . may be 

hereafter compelled to pay on account of any claims arising out of the accident 

. . . .” Id. 
-31-

Over nine months after executing the release, the estates and Butt sued 

Independence, “alleging that it violated Kentucky’s Dram Shop Act by negligently 

serving alcohol to King on the evening of February 28, 2010, and that said 

negligence was a substantial factor in causing the accident.” Id. at 191-92. The 

trial court granted summary judgment to Independence on circular indemnity 

grounds. Id. at 192. The estates and Butt appealed.

After discussing, among other things, Hiles, we concluded:

We are cognizant of the effect that this opinion 

will have on Appellants. Nevertheless, we cannot 

construe the release document in variance to its plain and 

unambiguous language regardless of what Appellants 

now assert was its intent. We believe that there is no 

conclusion that can be reached other than any cause of 

action against Appellee is moot because there ultimately 

can be no recovery of damages.

We conclude that the rationale set forth in . . .

Hiles is dispositive herein. Although Appellants 

preserved their right to pursue a cause of action against 

Appellee [Independence], the “hold harmless” provision 

effectuates a release of any dram shop liability. 

Accordingly, we are compelled to agree with the trial 

court that “[Appellants] are precluded from any recovery 

against [Independence] because it would then be entitled 

to indemnity against King for the amount of any 

recovery, and [Appellants] would be required to hold 

King harmless to the extent of the indemnification.” 

Again, this is the “circuity of litigation” that courts must 

avoid.

Id. at 195.
-32-

Superficially, Butt resembles the case at hand in that there was a 

release with a seemingly broad hold harmless/indemnity provision which lived in 

odd, uneasy juxtaposition with another clause stating that the release was not 

intended to impact a plaintiff’s right to pursue claims against other allegedly liable, 

non-settling parties. However, there is a materially distinguishing feature between 

this case and Butt: the Dram Shop Act specified King, the consumer of alcohol, 

was primarily liable, leaving the dram shops only secondarily liable. In other 

words, the General Assembly had enacted a law which made it impossible for King 

and Independence to be in pari delicto. 

KRS 413.241(1) and (3) generally mandate that consuming, not 

serving, alcohol “is the proximate cause of any injury, including death and 

property damage, inflicted by an intoxicated person upon himself or another 

person” and so “[t]he intoxicated person shall be primarily liable with respect to 

injuries suffered by third persons.” Consequently, retail furnishers of alcoholic 

beverages, like Independence, may only be secondarily liable. “Thus, KRS 

413.241 dispelled the suggestion . . . that the dram shop and the drunken driver 

ought to be considered in pari delicto.” DeStock No. 14, Inc. v. Logsdon, 993 

S.W.2d 952, 957 (Ky. 1999) (footnote omitted). 
-33-

In short, dram shop actions are well-suited for claims of indemnity 

because, as a matter of public policy, the liability of the consumer of alcohol and 

the furnisher of the alcohol is settled. As our Supreme Court held in DeStock:

Since Logsdon [the consumer of alcohol] and DeStock 

[the furnisher of alcohol] were not in pari delicto and 

Logsdon is primarily liable and DeStock only secondarily 

liable to Reid and Alvey [injured plaintiffs who settled 

their claims against Logsdon and sued DeStock], 

DeStock will be entitled to indemnity against Logsdon 

for any sums it is required to pay in damages to 

them . . . . Unlike the situation presented in Crime 

Fighters Patrol v. Hiles, Ky., 740 S.W.2d 936 (1987), we 

are not required in this case to address the policy issue of 

whether the dram shop ought to be deemed in pari delicto 

with the drunken driver or whether it ought to be only 

secondarily liable, because that policy issue was decided 

by the legislature when it enacted KRS 413.241. This 

conclusion nullifies the basis for Logsdon’s summary 

judgment against DeStock, i.e., that the respective 

liabilities of the dram shop and the drunken driver must 

be apportioned in accordance with KRS 411.182 . . . .

Since it has been legislatively determined in KRS 

413.241(1) that DeStock’s negligence did not 

proximately cause Reid’s and Alvey’s injuries, 

comparative fault and apportionment are inapplicable to a 

determination of DeStock’s liability. As far as Reid and 

Alvey are concerned, KRS 413.241(2) imputes 

Logsdon’s liability to DeStock and recovery can be had 

against either or both. However, as between Logsdon 

and DeStock, KRS 413.241(3) declares Logsdon to be 

primarily liable and DeStock only secondarily liable, 

which entitles DeStock to the remedy of indemnity.

Id. at 957-58 (paragraph breaks omitted).
-34-

Obviously, this is not a dram shop case and there is no statute 

declaring as a matter of public policy that Select Diesel or Lamb and Hamilton are 

primarily liable here. Therefore, Butt is materially distinguishable and does not 

support the trial court’s granting summary judgment to Lamb and Hamilton. 

d. York v. Petzl America, Inc.

By contrast, perhaps the clearest statement on why summary judgment 

based upon indemnity is inappropriate when there is uncertainty as to the 

respective liability of various parties may be found in our decision in York, 353 

S.W.3d 349. In York, Matthew York was injured in a rappelling class and sued the 

maker of the rappelling harness, Petzl, and the class instructor and supervisor, 

Charles Sparks and Charles Shaw. Id. at 351. Petzl filed indemnity-based crossclaims against Sparks and Shaw. Id. York settled with Sparks and Shaw, and 

executed a release which required York to “indemnify . . . and hold harmless 

[Shaw and Sparks] from any and all other claims, cross-claims, damages, demands, 

actions or causes of action by any party, including, but not limited to [Petzl], for 

reimbursement of any sums paid to or on behalf of [York] as a result of the injuries 

or damages allegedly sustained which is the subject of the lawsuit.” Id.

Sparks and Shaw then moved for summary judgment on Petzl’s crossclaims, but the trial court held that Petzl was entitled to common law indemnity 

from them. Id. at 352. Petzl then was granted summary judgment on York’s
-35-

claims against it based upon circular indemnity principles. When York appealed, 

we held in relevant part:

In this case, taking every allegation in Petzl’s 

cross-claim as true, the fact remains that no agency or 

quasi-agency relationship existed between the parties, 

nor can it be said with complete certainty that any 

negligence on the part of Sparks or Shaw was the entire 

or primary cause of York’s injuries. Rather, a jury could 

decide that York was injured solely as a consequence of 

Petzl’s failure to design the rappelling harness correctly 

or Petzl’s failure to supply proper warnings regarding 

the use of the harness. A jury might also determine that 

Petzl, Sparks, and Shaw were all equally liable, or in 

pari delicto, which would bar any claims for indemnity 

by Petzl. Accordingly, we conclude that summary 

judgment was not appropriate in this situation.

Moreover, it is a well-established principle that 

one cannot be required to indemnify if one is not liable. 

In this case, no determination of liability has been made 

with regard to Shaw or Sparks.

The agreement states that York will indemnify and 

hold harmless Shaw and Sparks “from any and all other 

claims, cross-claims, damages, actions or causes of 

action by any party, including, but not limited to [Petzl]

. . . .” At this point, there has not been a determination 

that Shaw and Sparks have any fault or liability 

whatsoever on any claim or cross-claim. Rather, the 

agreement specifically states that “[t]he parties to this 

Settlement Agreement and Release understand, 

acknowledge and agree that the damages, expenses, and 

fees that they have allegedly sustained and the alleged 

legal liability are disputed and denied[.]” The agreement 

further states that “the payment is not to be and will not 

be construed as an admission of liability on the part of 

[Sparks and Shaw].”
-36-

As the Kentucky Supreme Court stated . . .

“[i]ndemnity is not an issue until fault has been 

determined.” [Clark, 910 S.W.2d] at 253. Therefore, 

because there was no determination made regarding 

Sparks’s and Shaw’s liability, there could be no summary 

judgment on the issue of common law indemnity at that 

point.

Under Kentucky’s comparative fault principles, the 

jury should be instructed to apportion liability in 

proportion to the fault of each defendant (as well as to 

York, if appropriate), as KRS 411.182 provides for fault 

to be apportioned to a settling party. Assuming Petzl’s 

allegations in the cross-claim are true and the jury agrees, 

the amount of the accident caused by the negligence of 

Sparks and Shaw will be apportioned to them and not to 

Petzl. Petzl will be liable only for its own negligence, if 

any.

York, 353 S.W.3d at 354-55 (emphasis added) (footnote omitted).

The fundamental similarities between York and the case at hand are 

striking. In both cases, a plaintiff settled with some parties, reserving claims 

against others. The settlement agreement in both cases expressly stated the settling 

defendant was not admitting to having any liability for the plaintiff’s injuries and 

required the plaintiff to indemnify/hold harmless the settling defendant from 

claims which could be made by the non-settling defendant(s). The non-settling 

defendants moved for summary judgment on circular indemnity principles in both 

cases. However, the respective liabilities of the settling and non-settling 

defendants were not plain in either case. Therefore, it could not be said as a matter 

of law that the settling defendant and non-settling defendants were not in pari 
-37-

delicto, so the non-settling defendants were not entitled to summary judgment 

based upon circular indemnity. In fact, summary judgment is even more 

inappropriate here than in York because of the heightened FMCSR duties imposed 

upon Lamb and Hamilton and the evidence from which a reasonable jury could 

conclude they failed to satisfy those duties.8 Thus, this case falls squarely within 

our general pronouncement in York that when a case involves disputed, or 

unknown, facts “the question of whether there should be indemnity is a question of 

law once the facts have been determined by a jury.” Id. at 353 (emphasis added).

CONCLUSION

For the foregoing reasons, the Fayette Circuit Court twice 

improvidently granted summary judgment to Jason Lamb and Ronald Hamilton. 

Accordingly, we reverse each of the summary judgments at issue in this appeal and 

remand the case to the Fayette Circuit Court for further proceedings consistent 

with the opinion.

 

8 Another case in which a court concluded indemnity was improper because the parties were in 

pari delicto is Lahutsky v. Wagner Moving & Storage, Inc., No. 5:10-CV-00007-R, 2011 WL 

5597330 (W.D. Ky. Nov. 17, 2011), which we cite briefly because of its prominence in the 

parties’ briefs and trial court’s order. In that case, a plaintiff sued a business after falling on icy 

stairs because the business failed to install a handrail or canopy, as required by the Kentucky 

Building Code; the business filed a third-party complaint for indemnity against the company who 

constructed the stairs. Id. at *1. The court held the business was not entitled to indemnity from 

the construction company because the business had apparently consciously chosen to not ask the 

construction company to install a handrail or canopy. Id. at *14-15. In short, the court came to 

the unremarkable conclusion that indemnity was inappropriate because the parties were in pari 

delicto. 
-38-

ALL CONCUR.

BRIEF AND ORAL ARGUMENT

FOR APPELLANT:

Karl Price

Louisville, Kentucky

BRIEF FOR APPELLEES:

Gregg E. Thornton

Jillian D. House

Betsy R. Catron

Lexington, Kentucky

ORAL ARGUMENT FOR

APPELLEES:

Gregg E. Thornton

Lexington, Kentucky