A dispute between a Bowling Green feed mill owner and a former city electrical inspector that has remained in the legal system for 12 years will return to court Tuesday.
Don Lowe of Lowe’s Feed and Grain has sought to hold Rick Maxwell liable for damages that resulted from a 2002 power outage at his business.
Attorneys for Lowe and Maxwell will make oral arguments Tuesday in Warren Circuit Court on the issue of whether Maxwell acted in subjective bad faith in his dealings with Lowe following the outage.
Warren Circuit Judge John Grise will have to decide, based on the evidence already in the record and arguments from the attorneys, whether Maxwell acted with intent to cause harm to Lowe’s business.
If Grise finds that to be the case, Maxwell will be found to have acted in subjective bad faith and a financial judgment against Maxwell could be restored.
If no evidence of subjective bad faith is found, Grise could declare that Maxwell has immunity from being held liable for damages at the feed mill.
The scope of the legal case has narrowed from the original lawsuit filed in circuit court by Lowe in 2007.
Lowe accused Maxwell of misrepresenting to him the cause of the power outage and failing to notify him in a timely fashion about specific electrical code violations at the mill, as well as what Lowe had to do to bring the mill into compliance and have his power restored.
The mill remained offline for 17 months, during which point Lowe laid off his employees, leading to the lawsuit against Maxwell and the city.
Lowe’s Feed and Grain reopened in 2004 following repairs that included the installation of a new breaker and a new conduit to connect the breaker to existing wiring inside the mill.
In 2012, a jury awarded Lowe $850,000 in compensatory damages and $120,000 in punitive damages, finding that Maxwell committed negligent misrepresentation against Lowe and the city committed fraudulent misrepresentation.
The verdict was overturned, however, by the Kentucky Court of Appeals, which ruled the city had legal immunity and was effectively shielded from liability.
The remainder of the case was remanded to circuit court, leading to a finding by Grise in 2016 that Lowe’s due process rights were violated by Maxwell’s failure to promptly notify Lowe “in writing, as soon as possible of the specific code violations at the building and how to remedy them.”
That ruling restored the $850,000 verdict against Maxwell, but the state appeals court reversed the decision and again remanded the case back to circuit court, directing the court to find whether Maxwell acted in subjective bad faith.
Attempts to settle the case through mediation failed, setting up Tuesday’s hearing.
Lowe’s attorney, Charles Greenwell, has maintained that Maxwell engaged in what is described in a recent court filing as “a prolonged and deliberate scheme of malicious deceit” motivated by “personal ill will” intended to keep Lowe’s Feed and Grain shut down.
“Maxwell’s subjective bad faith is not based on a single event but on a continuous scheme of events which demonstrate his malicious and oppressive treatment of (Lowe) over a prolonged period of time,” Greenwell said in a brief filed in September.
Greenwell argues in the brief that Maxwell intentionally concealed information from Lowe that he would have needed to know in order to repair the damaged mill and get his electricity restored, instead offering misleading information to Lowe about the cause of the outage and neglected to report the cutting off of electricity to anyone in the city for a month after the outage.
Maxwell’s legal team, comprised of attorneys Tom Kerrick and Shawn Rosso Alcott, responded in a brief filed in October that Lowe’s contentions have amounted to “wild speculations as to Maxwell’s motivations” and are not supported by the available evidence.
Alcott argues in the brief filed on behalf of Maxwell that the inspector met with electrical contractors engaged by Lowe’s Feed and Grain to do repair work each time he was asked to do so in a five-month period after the outage and provided all information requested of him, and that Lowe did not seek a permit to repair the mill until February 2003.
No electrician in contact with Lowe indicated that Maxwell delayed or impeded their ability to prepare bids for the job or complete the work to restore power, according to Alcott.
“Maxwell testified that his sole motivation behind the actions he took regarding Lowe’s Feed and Grain was his concern for the safety of Lowe’s Feed and Grain’s property and individuals working there as well as property and individuals in proximity to Lowe’s Feed and Grain,” Alcott said in the brief.