A second jury may hear evidence in the ongoing legal dispute between Lowe’s Feed and Grain and former city inspector Rick Maxwell.
Feed mill owner Don Lowe sued Maxwell and the city of Bowling Green in 2007, seeking to hold them liable for a 2002 power outage that shut down the business for 17 months.
Lowe accused Maxwell of misrepresenting to him the cause of the power outage and failing to notify him in a timely fashion about purported city code violations at the mill and what Lowe needed to do to bring the business into compliance.
The case has traveled back and forth between Warren Circuit Court and the Kentucky Court of Appeals.
A Warren County jury in 2012 awarded Lowe a total of $970,000, finding that Maxwell committed negligent misrepresentation against Lowe and the city committed fraudulent misrepresentation.
The decision was reversed by the state appeals court, which in a ruling eliminated $120,000 in punitive damages and found the city to be immune from liability.
Warren Circuit Judge John Grise found that Lowe’s due process rights were violated by Maxwell’s failure to promptly notify Lowe as soon as possible about the specific code violations at the building and how to remedy them, restoring the $850,000 verdict against Maxwell in a 2016 ruling.
The state appeals court reversed that decision last year and remanded the case back to circuit court.
Mediation between Lowe and Maxwell was unsuccessful, and attorneys for both sides returned to court Wednesday for a status conference.
The issue that remains to be determined is whether Maxwell acted in what is known as “subjective bad faith” in his dealings with Lowe about the power outage – whether Maxwell acted with a subjective intent to harm Lowe.
The most recent court of appeals decision directed a “fact finder” on the circuit court level to conclude whether Maxwell acted in subjective bad faith, as opposed to the previous ruling in favor of Lowe that found his due process rights were violated.
On Wednesday, Warren Circuit Judge John Grise directed the attorneys involved in the case to submit briefs arguing for either a jury trial or a bench trial.
Lowe’s attorney, Charles Greenwell, supported a bench trial, seeking restoration of the $850,000 reward in compensatory damages plus interest accrued since the original jury verdict from seven years ago.
“We think we should rely strictly on the evidence that the jury heard at the original trial,” Lowe’s attorney, Charles Greenwell, said at Wednesday’s hearing.
Attorney Tom Kerrick, representing Maxwell, appeared to favor bringing the case before a jury to decide the matter.
Kerrick said the scope of the case has narrowed with the removal of the city from the lawsuit, making for a “condensed version” of the original trial.
“It would appear as though there is a material issue of fact to be decided by the finder of fact, which we believe would be a jury,” Kerrick said Wednesday.
Grise directed both sides to submit briefs arguing their respective positions by Aug. 6, and set a hearing for Aug. 21.