5 www.loubar.org June 2025 Elizabeth Monarch MBA, CAI, CRI Auctioneer/Realtor 2023 KYR Realtor State President Lonnie Gann GRI, CAI Auctioneer/Realtor 502.551.1286 auctionsolutionsllc.com Real Estate & Auction Specialist Providing Real Estate & Auction Services: • Estate Liquidation • Senior Living Transitions • Divorce Property Settlements • Business Liquidation • Real and Personal Property Evaluation Serving all of Kentucky and Indiana may be dismissed where a court finds that “the damages plaintiffs seek are the same economic losses arising from the alleged breach of contract.” New London Tobacco Mkt., Inc. v. Ky. Fuel Corp., 44 F.4th 393, 414–15 (6th Cir. 2022) (quoting Nami Res. Co. v. Asher Land & Min., Ltd., 554 S.W.3d 323, 335 (Ky. 2018)); see also Ali v. Allstate Northbrook Indem., Co., 3:23-CV-108-RGJ, 2024 WL 1199023, at *5 (W.D. Ky. Mar. 20, 2024). Succinctly, “[t]he doctrine prohibits the law of contract and the law of tort from dissolving into each other.” Ali, 2024 WL 1199023, at *5 (W.D. Ky. Mar. 20, 2024). Where a court determines that a fraud claim is “indistinguishable” from a contract claim, the plaintiff may not be permitted to pursue the fraud claim. Id. But, if “[a] breach of a duty aris[es] independently of any contract duties between the parties, however, [that breach] may support a tort action.” Nami Res. Co., L.L.C. v. Asher Land & Min., Ltd., 554 S.W.3d 323, 336 (Ky. 2018) (quoting Superior Steel, Inc. v. Ascent at Roebling’s Bridge, LLC, 540 S.W.3d 770, 792 (Ky. 2017)). The potential impact of a court’s determina- tion that a party’s tort claims are barred by the economic loss doctrine cannot be overstated. Such a ruling may jeopardize, at minimum, a plaintiff’s access to punitive damages and attorney’s fees. No one wants to be in the position of the plaintiff in New London Tobacco Mkt., Inc. v. Kentucky Fuel Corp., 44 F.4th 393, 414 (6th Cir. 2022), who won $17 million in punitive damages, only to see the ruling vacated through the court’s ap- plication of the economic loss rule. Because of the economic loss rule, any plaintiff hop- ing to successfully prosecute both tort and contract claims should take special care to support their damages and plead their causes of action. The failure to do so can be, much as the machining equipment’s failure was in Giddings, catastrophic. Michelle C. Fox is a managing associate in Frost Brown Todd’s Product, Tort, and Insurance Litiga- tion Practice Group. She focuses her practice in fire and explosion, dram shop, medical device and product liability litiga- tion. Michelle is Chair of the LBA’s Litigation Section. Jacob Robbins is a se- nior associate in Frost Brown Todd’s Construc- tion Group focusing his practice on all aspects of construction law, in- cluding general advice and project counseling, contract preparation, re- view and negotiation, as well as litigation. Jacob is Vice-Chair of the LBA’s Litigation Section. n (Continued from previous page) STARTS AT NOON AM I IN TROUBLE? ...NAW, YOU’RE IN BIG TROUBLE! THE LATEST IN LAWYERS MISBEHAVIN’ Our annual compilation of entertaining lawyer misbehavior features new, real-life fact patterns and the opportunity to discuss which ethical obligations are potentially implicated. The fact patterns—while extreme at times—provide attendees an opportunity to see how various rules can overlap and interact in the real world. Attendees will then be asked to determine what discipline, if any, should apply in each scenario. Being mindful of these potential ethical quagmires will hopefully help you avoid becoming the unwitting subject of a future ethics CLE! Speakers include Angela L. Edwards and Jared Burke, LMICK WEDNESDAY, JUNE 18 HYBRID OPTION 1.0 CLE ETHICS HOUR
