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
Earlier this year, the U.S. District Court for the Western District of Kentucky in Bowling Green refused to certify a question of law to the Kentucky Supreme Court in a tractor-trailer accident case. The case was Meherg v. Pope. The case centered on a semi-truck accident in which the tractor-trailer allegedly struck a stopped car from behind on Interstate 65 in Hart County. The force of the impact apparently caused the stopped car to hit another vehicle that was carrying three people. As a result of the crash, five individuals were reportedly injured, and a child was killed.
About one year after the big rig collision, several of the injured victims filed a gross negligence claim against the truck driver and a respondeat superior claim against the trucking company that employed the truck driver. The doctrine of respondeat superior allows an employer to be held responsible for the negligent acts of an employee when the acts were performed during the course of the worker’s employment. In addition, the plaintiffs accused the trucking company of negligent hiring, training, and supervision of the driver. Three years later, the federal court held that the driver did not commit gross negligence and stated the plaintiffs failed to demonstrate he was reckless. The court also ruled that punitive damages were not warranted in the case. Punitive damages are normally awarded by a court in an effort to punish particularly egregious conduct. They are also designed to deter others from acting similarly in the future.
Since the driver admitted to acting negligently, and the trucking company admitted to respondeat superior liability, the Western District of Kentucky stated a trial would be held on the sole issue of any personal injuries sustained by the plaintiffs as a result of the 18-wheeler accident. The federal court also refused to allow the plaintiffs to offer evidence related to the trucking company’s alleged negligent supervision or hiring of the trucker. According to the federal court, most Kentucky courts had previously refused to hold that a negligent training and supervision claim could survive an employer’s admission of respondeat superior liability. The doctrine of respondeat superior allows an employer to be held responsible for the negligent acts of an employee when the acts were performed during the course of the worker’s employment. Read More
