SCOKY Holds Refusal to Admit a Contested Fact Later Proved by Opponent Does Not Justify Attorney Fee Award

A recent decision by the Kentucky Supreme Court clarified Kentucky law on the issue of a litigant’s entitlement to attorney’s fees when it prevails on an issue that an opponent failed to admit in an answer to a CR 36 request for admission. In Rumpel v. Rumpel, 438 S.W.3d 354 (Ky. 2014), the Court, in an opinion by Justice Abramson, held that attorney’s fees should not be awarded for a refusal to admit where the issue in question is a “matter of legitimate dispute that must be tried.” The Court’s holding relied on the exceptions contained in CR 37.03 that provide that fees should not be awarded for a failure to admit where the “party failing to admit had reasonable ground to believe that he might prevail on the matter” or “there was other good reason for the failure to admit.”

Considered in context with the Supreme Court’s recent decision in Bell v. Com., Cabinet for Health & Family Svcs., Dept. for Cmty. Based Svcs., 423 S.W.3d 742 (Ky. 2014), in which the Court narrowed the circumstances in which a trial court may make an award of attorney’s fees in equity or as a sanction, the Rumpel decision is a further signal that Kentucky trial courts should not deviate from the so-called “American rule,” under which each litigant is responsible for his or her own attorney’s fees, unless there is a clear factual and legal basis to do so.

Note: The foregoing post includes commentary reprinted from the forthcoming 2015 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.

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