Are Emotional Distress Damages Available Without Physical Injury?

11/17/2008 | Legal Malpractice

Yesterday, I wrote about a legal malpractice trial going on here in Louisville.  In one of the largest legal malpractice verdicts in Kentucky history, a jury returned a verdict today against attorney Steve Keeney for $5 million. The allegations of legal malpractice arise out of his handling of a case for Brenda Osborne, of Middlesboro.  The Jefferson Circuit Court jury determined that Keeney lost a federal court case stemming from the an airplane accident in which she could have recovered about $1.3 million (this is known as the "case within a case."  It awarded her that amount, as well as $250,000 for mental anguish. The jury also voted 11-1 to award of $3.5 million in punitive damages, which are meted out to deter and punish intentional and willful misconduct.

This was an unusual case because Osborne was not physically injured when a small plane crashed into her home.  She escaped her home without physical injury--however, Keeney told her the case was worth about a $1 million. This jury agreed with her; however, it's Keeney's legal malpractice insurance company that will have to pay the verdict, not the pilot of the plane. 

The verdict will likely be appealed to address the issue of whether emotional distress damages are available when you don't have a physical injury. It has always been my position in legal malpractice cases that physical injury is not required in a legal malpractice case because of a special Kentucky statute KRS 411.165

Fortunately, we may soon have an answer on this issue as I will be appealing a judge's ruling on this exact issue later this year.  I'll post the briefs to the site. 

Hans Poppe