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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

In a recent Kentucky Supreme Court case, a medical malpractice suit was filed by a couple against a doctor and his practice. The doctor had performed a thyroidectomy on the wife. She started experiencing breathing difficulties the night of the surgery. She was placed on a ventilator for four days and stayed in the hospital a total of 12 days. Post-surgery, she had trouble breathing and talking. She consulted with an otolaryngologist. He diagnosed her with right vocal cord paralysis. The couple filed a medical negligence lawsuit in connection with the thyroidectomy.During discovery, the doctor asked whether other physicians had stated that he deviated from good medical practice. The plaintiffs' response stated that a surgeon had verified there was a departure from the appropriate standard of care to cut or otherwise alter the vocal cord. The response cited various treating physicians. The doctor filed a motion to set the case for trial. The judge set a schedule requiring the couple to disclose expert witnesses on a particular date. The order by the judge did not contain a specific deadline for disclosure of expert witnesses. It did require quick and efficient witness disclosure.Three years after the suit was filed the doctor moved for summary judgment. He argued they had failed to identify a surgeon who would testify he deviated from the standard of care. The plaintiffs filed a motion to reschedule the trial and to get an extension of time to list experts. They argued that summary judgment was not appropriate because evidence in the depositions raised genuine issues of material fact. The woman's medical records showed he was being treated for hypothyroidism, or an underactive thyroid before the surgery. She consulted with an internist because she was short of breath and had palpitations. An ultrasound showed she had an enlarged right lobe of thyroid with a small lesion. She was referred to the defendant doctor to see whether removal of the gland was appropriate. She consulted with him once before the surgery and signed a consent form in connection with it. The form explained she had a "thyroid storm." The internal medicine doctor said a thyroid storm is an emergency condition. The appropriate treatment is hospitalization and consultation with an endocrinologist. Surgery is not appropriate. Read More

Bob Young elected Chair of the Law Practice Division of the ABA Read More

Heather Coleman attends immigration law conference Read More

Cravens Priest speaks at employment law seminar Read More

In a 2013 unpublished appellate case, a woman’s estate appealed after the circuit court granted summary judgment on some of the estate’s claims and directed the verdict on the remaining wrongful death claims. The case arose from the death of Cheryl Powers from chronic obstructive pulmonary disease (COPD). Before dying, Powers called 911. A dispatcher took the call. Powers couldn’t speak clearly, but she tried to give her address before the call was disconnected. The dispatcher called the number back, but it went to the woman’s voice mail. The dispatcher called the police dispatcher instead of an ambulance and explained that she thought the woman had given a particular address.The dispatcher replayed the 911 call and called the police dispatcher again, saying that she thought that the woman had said “Vista Apartments.” The police dispatcher sent an officer to the first address, but the first address did not exist. The police dispatcher told the officer there was no additional information and thereby “cleared” the 911 call. Therefore, no emergency services responded to the woman’s 911 call, and she died. On the following morning, the woman’s boyfriend found her dead in the hallway. Read More

In Kentucky, personal injury cases where negligence is alleged, a plaintiff must establish (1) a duty owed to the plaintiff, (2) breach of the duty, (3) that proximately causes injuries, and (4) actual damages. Negligence, including the element of causation, is never presumed in Kentucky. What happens, however, if some surprising act occurs to cause an accident that is not related to a defendant's otherwise negligent conduct? A "superseding cause" can absolve a defendant if it is extraordinary and independent — that is not arising out of a negligently created condition.In a recent unpublished opinion that illustrates how Kentucky looks at the issue of superseding causes, the Court of Appeals of Kentucky considered a case involving two accidents on opposite sides of an interstate highway. The first accident involved the defendant's car, which she had driven into the median and hit the base of the eastbound bridge under the roadway. The second accident happened when the plaintiffs were driving eastbound. They had come to a total stop in a traffic jam after the defendant's car's accident. A tractor-trailer rear-ended their vehicle, killing a family member and injuring another.The plaintiffs sued the defendant, claiming that her first accident directly and proximately caused their injuries and damages. The defendant moved for summary judgment, arguing that her accident had happened more than a mile away and that the traffic jam was the result of the emergency personnel's response and the negligence of the tractor-trailer driver, not her driving. The defendant argued that both of these events were superseding causes of the plaintiffs' injuries. The trial court agreed, ruling that the first responders had stopped traffic and the  tractor-trailer's negligence were both superseding causes. Read More

A 2013 Tennessee motor vehicle accident case involved a collision between a car driven by plaintiff Ramey Long and an 18-wheeler owned by a trucking company. The plaintiff was driving around 5 a.m. in the left lane on Interstate 40. As she tried to pass it, the 18-wheeler and her car collided. Her car stopped in the left lane and stayed smashed and unable to be operated after the collision.The front left brake booster and tire of the truck were also damaged.Another truck driver stopped at the scene and came over to help. The plaintiff got out of her car and crossed the interstate to get in the emergency lane.At the same time Ms. Adair was traveling alone the same route in an SUV. They came to the accident and she brought the SUV to a stop in the right lane. However, a Greyhound bus rear-ended it, sending it into the emergency lane and an adjacent grassy area. The SUV hit the plaintiff, dragging her into a ditch. She suffered spinal fractures. Read More

Nathan Vinson joins ELPO as tax attorney Read More

Aaron Smith ends term as local bar President Read More