Mediation between the owner of a Bowling Green feed mill and a former city electrical inspector has failed to bring an end to their long-standing legal dispute.
Don Lowe of Lowe’s Feed and Grain has sought to hold Rick Maxwell liable for the extended closure of his business following a 2002 power outage.
Lowe sued Maxwell and the city of Bowling Green in 2007, alleging that they misrepresented to him the cause of the power outage and failed to notify Lowe in a timely fashion about purported city code violations at the mill and what he needed to do to bring the business into compliance.
Lowe laid off his employees while his business lacked power, which was not restored for 17 months.
The case has bounced between Warren Circuit Court and the Kentucky Court of Appeals, with the appeals court twice reversing decisions from the lower court in favor of Lowe.
“This has been a real nightmare case for Mr. Lowe and I have to say I admire him for standing up to the establishment on this one,” said Charles Greenwell, Lowe’s attorney.
A Warren Circuit Court jury in 2012 found that the city committed fraudulent misrepresentation against Lowe and that Maxwell also committed negligent misrepresentation, awarding Lowe $850,000 in compensatory damages and $120,000 in punitive damages.
The verdict was then overturned by the Kentucky Court of Appeals, which found the city had legal immunity and was effectively shielded from liability and also eliminated the punitive damages award and remanded the case against Maxwell back to circuit court.
A subsequent circuit court ruling in favor of Lowe was vacated in a second appeal, which led to Warren Circuit Judge John Grise ordering the two sides into mediation in an effort to settle the case.
Attorneys involved in the case said last week that the mediation, overseen by Indiana-based mediator Peter Palmer, was unsuccessful and the parties will return to Grise’s court Wednesday for a status conference.
“I think we need to let the judge lay the groundwork for where he wants to go on this,” Greenwell said.
Both sides continue to dispute whether Maxwell acted in bad faith in his dealings with Lowe.
Maxwell concluded that the feed mill was unsafe in 2002 due to multiple electrical code violations and ordered that electricity not be restored until the building was brought into compliance.
Lowe has contended that Maxwell withheld accurate information about the type of repairs needed to be made at the feed mill to bring it into compliance, while Maxwell, represented by attorney Tom Kerrick, has argued that Lowe cannot point to any evidence supporting the claims of bad faith.
In a 2016 ruling, Grise found 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,” and restored the $850,000 verdict against Maxwell.
Last year, the state appeals court reversed that decision and remanded the case back to the circuit court.
In making its ruling, the appeals court determined that, while Grise’s ruling that Maxwell acted in bad faith was based on an objective legal analysis that Maxwell violated Lowe’s due process rights regarding his property, Lowe did not identify any property rights that Maxwell violated.
“Rather, Lowe’s Feed put forth evidence that went to the subjective element (of bad faith) and stated that Maxwell’s actions in withholding information were so arbitrary, egregious and reckless as to constitute intentional and malicious bad faith intent to cause injury,” Judge James Lambert wrote last year for the appeals court.
The appeals court mandated further analysis from the circuit court on the question of whether Maxwell acted in bad faith and whether he is entitled to immunity.
“This is a fairly limited issue that needs to be reviewed,” Kerrick said. “I think the parties will have to discuss with the court if it is something to be decided by the judge or a jury.”
A status conference set for Wednesday is likely to give the attorneys some guidance on how the case will proceed, and Greenwell said he is prepared to make his case once more to Grise.
“We would say even when a court reaches the right result for the wrong reason, the appellate court should give deference to the trial court if there’s any basis to do that,” Greenwell said. “We would maintain that the evidence is already in. ... If the court reviews that evidence with the mindset of determining whether (Maxwell) acted in subjective bad faith, we feel pretty confident on the plaintiff’s side that we’ll get past that hurdle.”