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The Kentucky Court of Appeals has overturned a circuit court’s decision to affirm a Kentucky Board of Claims’ final order in a motorcycle accident case. In Commonwealth of Kentucky v. Bunch, a man sued after suffering multiple injuries when he crashed his motorcycle on Greenbelt Highway in Louisville. According to the man, he lost control of his motorcycle and suffered permanent harm when his tires hit an improperly patched and uneven pothole in the roadway. Following the accident, the man argued before the Kentucky Board of Claims that his accident occurred because the roadway where the pothole was patched was significantly elevated. The man also stated the condition of the road made it impossible for him to safely navigate the highway. Testimony offered before a hearing officer indicated that potholes were a recurring problem in the area where the accident occurred, due to a defect in the concrete roadway. In addition, evidence suggested the pothole in question was repaired multiple times. Still, the Kentucky Department of Highways maintained that it had no record of receiving any complaints about the patched pothole during the four-month period preceding the man’s motorcycle collision. Additionally, there was no record of other motor vehicle accidents occurring in the area during that time. After testimony concluded, the hearing officer recommended denying the injured man’s claim for damages because he failed to establish that the patch was unreasonably dangerous, that the Department of Highways maintained the roadway in a negligent manner, or that it had notice of the allegedly dangerous condition. Despite the hearing officer’s recommendation, the Board of Claims found that the Department of Highways created an unreasonable risk of harm to drivers and remanded the action back to the hearing officer to determine comparative fault and damages. Finally, the Board of Claims awarded the man nearly $90,000 in damages. The Jefferson Circuit Court affirmed the Board’s decision, and the Department of Highways filed an appeal with the Kentucky Court of Appeals. Read More

A recent accident on Interstate 65 has claimed the life of a Brownsville man, and once again highlighted the dangers of drunk driving. Michael Campbell, 41, was driving a Chevrolet Corvette north on Interstate 65 when his vehicle was hit head-on by another driving in the wrong direction. He was killed in the accident, which occurred on Sunday, January 11, 2015.  His passenger in the vehicle, Terry Anderson, 32, is still in the hospital recovering. According to news accounts, the driver going the wrong way on Interstate 65 told police that she had had too much to drink. She was also injured and was hospitalized, and is expected to be charged with vehicular homicide by intoxication and vehicular assault. News accounts indicate the accident with Campbell was the second accident that night the alleged drunk driver was involved in. No one has been convicted of any crime in this case, but because of the statements the driver allegedly made, the accident has thrown a new spotlight onto the importance of always having a designated driver, a taxi or some other form of safe and sober transportation when you've consumed alcohol. Make arrangements ahead of the time in which you expect to be drinking alcohol so that you will not be tempted to drive after drinking. Even one drink can impair a driver, and you could face very serious consequences. Statistics from MADD show that 10,322 people were killed and another 345,000 injured in accidents involving drunk drivers in 2012. Read More

The Kentucky Court of Appeals has affirmed a lower court’s decision in favor of an automobile insurer in a motorcycle wreck case. In Black v. Nationwide General Insurance Co., a woman was hurt in a crash while riding as a passenger on her husband’s motorcycle in 2010. The same motorcycle was apparently damaged in a 2008 collision and placed in storage. Between 2008 and 2010, the couple allowed both the registration and insurance on the vehicle to lapse. About two weeks before the woman was hurt, her husband repaired the motorcycle, but he did not register it or resume insurance coverage. On the date of the accident, the couple reportedly rode the motorcycle around the block. While doing so, the motorcycle collided with another vehicle that allegedly drove into the path of the couple. Following the crash, the woman was treated for spinal cord injuries. At the time of the motorcycle accident, the couple carried an automobile insurance policy on two other passenger vehicles. The policy included both underinsured motorist and personal injury protection coverage. Nearly two years after the motorcycle crash, the woman filed a lawsuit against her automobile insurer, seeking to collect compensation for her damages in excess of those paid by the at-fault motorist’s insurance company. The woman’s insurer countered that the couple’s insurance policy did not cover the motorcycle. In addition, the insurer claimed the clear and unambiguous terms of the auto policy excluded coverage for injuries sustained while using any vehicle owned by or available for the regular use of the couple that was not insured by the company. Next, the insurance company filed a motion for summary judgment with the Jefferson Circuit Court. A motion for summary judgment is filed when there is no material issue of fact in dispute, and the moving party believes it is entitled to judgment as a matter of law. Normally, a court must consider such a motion in the light that is most favorable to the non-moving party. After reviewing the facts of the case, the Circuit Court granted the insurer’s motion and dismissed the woman’s lawsuit. In response, she filed an appeal with the Kentucky Court of Appeals. Read More

Stryker is the maker of the Rejuvenate modular hip system. Many people who have had the Stryker modular hip system implanted have had it removed and replaced, and many of those have sued Stryker to seek compensation for injuries caused by the faulty hip system. These cases have been making their way through courts and have been combined into several large cases. Cases are pending in state courts in New Jersey, Florida and several other states, and in federal court in Minnesota. To pay those injured by the hip system, Stryker established a compensation fund of $1.45 billion. That amount could grow as cases continue to mount against Stryker. More than 8,000 people have sued Stryker seeking compensation for injuries - but time is running out. Those who are interested in obtaining a settlement from this fund have limited time to seek compensation, and need to consult with an attorney right away. The settlement date is November 3, 2014, so patients need to show that revision surgery occurred prior to that date to participate in the compensation fund. Read More

A 2011 accident involving a tree-trimming crew resulted in the death of one worker and injuries to another. The Kentucky Court of Appeals recently ruled on a lawsuit concerning the accident after it was appealed from Warren County Circuit Court in Bowling Green, Kentucky. You can read the Kentucky Court of Appeals ruling in the case here: http://opinions.kycourts.net/coa/2013-CA-000078.pdf The accident involved three men: James Coleman, Davison Crocker, and Dale Cherry, all of whom were employed by A&G Tree Service, Inc., which is located in Leitchfield, Kentucky. In August 2011, they were sent to a job site in Tennessee, and traveled together to the job site in a company vehicle. On the way back, an accident occurred that took the life of Cherry and injured Crocker. The employment handbook for A&G indicates that their employees are considered to be at work once they arrive at the site where their work is to occur. The workers may use company vehicles for their convenience and carpooling is permitted. After the accident, Crocker received workers' compensation benefits, and Cherry's estate received workers' compensation death benefits. Crocker sued Coleman and his personal insurance carrier, Progressive Casualty Insurance Company, arguing that Coleman's negligent driving had caused the accident. Progressive argued that workers' compensation should be the sole source of benefits for Coleman and Cherry's estate, but Crocker argued that the men were not on the clock, so tort relief was also possible. The Warren County Circuit Court did not agree. Kentucky law says that the either an employee may recover workers' compensation benefits, if in fact their injury occurred while the employee was on the job, or the worker may recover tort damages if the employee was not on the clock at the time of the injury or damages, but the person may not recover both. Read More

The U.S. District Court for the Eastern District of Kentucky recently ruled in favor of a medical device manufacturer in a products liability case in which the plaintiff did not participate in written discovery. In Johnson v. Zimmer Holdings, Inc., a man had four medical devices implanted into his body when he underwent hip surgery in 2010. Unfortunately, the man’s hip dislocated at least six times between 2010 and 2012. About two years after his initial surgery, the man underwent a second procedure to replace three of the four medical products. Following the second surgery, the man filed a products liability lawsuit in a Kentucky federal court against the manufacturer of the medical devices that were initially implanted into his body. According to his complaint, the man experienced pain, suffering, emotional distress, and unnecessary surgery as a result of the medical device manufacturer’s defective products. Pursuant to the Eastern District of Kentucky’s scheduling order, the parties entered into the discovery stage of the lawsuit. This is a pre-trial phase of a case in which each party is entitled to request certain relevant information from the opposing side. Discovery may include depositions, interrogatory and document requests, and more. Although the medical device manufacturer served the allegedly harmed man with written discovery requests, he failed to submit any discovery requests prior to the deadline that was imposed by the court. As a result, the medical device manufacturer filed a motion for summary judgment in the case. Read More

In Wright v. Carroll, a woman who was seriously injured in a tractor-trailer crash filed a lawsuit in Elliott County Circuit Court against the driver of the big rig that struck her automobile. In her complaint, the woman accused the semi-truck driver of negligently maintaining the vehicle. She also alleged that the wreck occurred because the truck driver operated the vehicle in a negligent manner when he lost control of the 18-wheeler and entered her driving lane after navigating a blind curve in the road. In the initial trial, the jury sided with the tractor trailer operator, but that verdict was overturned by the Kentucky  Court of Appeals due to improper jury instructions. According to the Kentucky Court of Appeals, the jurors should not have been instructed on the sudden emergency doctrine, since the tractor-trailer collision did not constitute an emergency that the driver could not have anticipated. As a result, the personal injury case was remanded for a new trial. Following a second trial, jurors again entered a verdict in favor of the truck driver. The trial court denied the woman’s motion for a directed verdict, and she appealed the jury’s decision. The Kentucky Court of Appeals held that the trial court should have granted the woman’s motion and ordered the lower court to hold an additional trial only on the issue of damages. The tractor-trailer driver then sought review by the Kentucky Supreme Court. Read More

What happens if you're in a funeral procession an involved in an accident? In a recent Ashland, Kentucky, case, a plaintiff unsuccessfully argued that the funeral home was at fault for the accident. The case is Christian v. Steen Funeral Home. The accident involved a man who was a passenger in a private car that was participating in a funeral procession. The car he was in collided with another vehicle at an intersection. According to the injured man, the crash occurred because the funeral home that organized the procession failed to clearly mark the vehicles involved in the procession with flags or other markers. Following the collision, the injured man filed a negligence lawsuit in Lawrence County Circuit Court against both drivers and the funeral home. He also accused the funeral home of negligence per se. In response, the funeral home filed a motion to dismiss the lawsuit. The funeral home argued that the man failed to state a cause of action, and that the funeral home did not owe him a duty of care under Kentucky Revised Statutes Section 189.378. Under Kentucky law, vehicles involved in a funeral procession do not have to be marked with any sort of special flag or other marking. The man countered by claiming the funeral home owed him a duty of reasonable care, and the company breached that duty when it failed to require the driver of the vehicle in which he was riding to turn on his headlights or otherwise indicate the vehicle’s participation in the procession. Read More

The Kentucky case Estate of Ferrell v. J & W Recycling, Inc. involved a semi truck and car accident in which both drivers died. The two drivers were killed when an automobile and a tractor-trailer collided in Greenup County, Kentucky, in 2011. The driver of the semi-truck was apparently operating the commercial vehicle during the course of his employment for a recycling company. When the accident occurred, the recycling business carried commercial general liability insurance. Still, the company’s insurer refused to honor the policy and indemnify the business after the fatal accident. Following the tragic wreck, the wife of the automobile driver filed a wrongful death lawsuit against the recycling business. According to her complaint, the accident resulted in part from improper truck loading by a forklift operator. After nearly two years of litigation, the man’s wife and the recycling company agreed upon a settlement in which the business admitted fault for the deadly collision. As part of the agreement, the decedent’s wife accepted the recycling company’s rights under its liability insurance policy. When she filed a petition with the court to “adjudge the existence of coverage” under the policy the insurer sought to move the case to the U.S. District Court for the Eastern District of Kentucky based upon diversity jurisdiction. 28 U.S.C. § 1332 allows a party to a lawsuit to remove a case from state court where the parties are residents of different states and the amount in controversy exceeds $75,000. The Federal Declaratory Judgment Act, however, allows a federal court to refuse jurisdiction where appropriate. After examining several factors, the federal court declined to hear the case. Read More

Earlier this year, the Kentucky Court of Appeals made a significant ruling that's largely viewed as favorable to plaintiff's attorneys. The court ruled that the statute of limitations begins on an Underinsured Motorists claim when the insurance company turns down the insurance claim, rather than from the date of the accident or the date of the last Personal Injury Payment (PIP) was made. Underinsured Motorists provisions are included in most insurance policies. The provisions allow motorists to cover the costs of property damage, physical injuries, rehabilitation and other issues caused by another driver who is underinsured or does not have enough insurance to compensate someone for their injuries and damages. Those involved in such an accident file a claim with their own insurance company seeking compensation. The provisions vary by company and by policy, and some accident victims seek the assistance of an attorney to file such a claim. The recent Kentucky Court of Appeals case cited here was Amberee N. Hensley v. State Farm Mutual Automobile Insurance Co. Read More