Blog

By Nathan Vinson, attorney English, Lucas, Priest and Owsley, LLP Life estates have long been an efficient and simple succession planning device for those who want to leave their homes to loved ones when they die. Here is a basic illustration of how it works:  Mom has survived Dad and owns her house outright.  She still lives in the home, which has a value of $300,000.  Mom wants to leave the home to her Son at her death.  So, Mom gives her house to the Son (the “remainder interest”) and reserves the right to live in the home during her life (the “life estate”). Read More

The Kentucky Court of Appeals has ruled in an unpublished opinion that a helmet is not an integral part of a motorcycle for purposes of uninsured motorist benefits. This issue was decided on in the case of Stallard v. State Farm Mut. Auto. Ins. Co. The case involved a motorcycle owner who was injured in an accident while riding with a group of other bikers. The man was riding in the center of a group of about two dozen motorcyclists when the group of riders suddenly slowed. As the man attempted to avoid an accident with another motorcycle, he sustained serious injuries when another motorcyclist’s unsecured helmet bounced into his tire. When the motorcycle accident occurred, the motorcyclist carried uninsured motor vehicle (UM) insurance. Since the injured man was not hit by another vehicle, however, the motorcyclist’s insurer denied his insurance benefits claim. After that, the injured rider filed a lawsuit against his insurance carrier in Jefferson County Circuit Court. In response, the insurer filed a motion for summary judgment, claiming it was not required to provide benefits under the terms of the policy because the motorcyclist was not physically struck by another vehicle, nor was he injured by an integral part of another vehicle. The hurt rider countered that he should be compensated by his UM insurer because a motorcycle helmet is an integral part of a motorcycle. The trial court sided with the insurance company and granted summary judgment in favor of the insurance carrier. Read More

Risperdal Plaintiffs seeking a judgment against Johnson & Johnson, the makers of the drug Risperdal, saw a big victory this week out of Philadelphia. A jury sided with the family of an autistic boy who grew size 44 DD breasts after taking Risperdal in 2002. The Wall Street Journal, along with many other publications, wrote about the verdict, which was handed down on February 24, 2015. Growing breasts was one of several risks that Johnson & Johnson knew about but hid from the Food and Drug Administration, lawyers said. The condition is called gynecomastia. Some patients have been forced to undergo surgery to remove the breasts. Due to the widespread use of this drug, our firm believes there are many patients who have taken Risperdal and may very well have suffered similar problems, or other side effects. ELPO is accepting cases against Johnson & Johnson, the maker of Risperdal, representing children and their families who have been harmed by Risperdal. The drug treats the symptoms of psychiatric disorders. In addition to gynecomastia, there is an increased risk of stroke and diabetes for patients taking Risperdal. We want to help patients protect their rights, and encourage anyone who has taken Risperdal or who has a family member who has done so to contact us as soon as possible. Read More

The Kentucky Court of Appeals has found that Virginia law applied in an uninsured motorist (UIM) coverage dispute arising out of a Kentucky tractor-trailer crash. In an unpublished opinion, a Virginia truck driver sued the insurance carrier for another motorist who struck his big rig head-on. The tractor-trailer wreck occurred on Interstate 65 in Jefferson County, Kentucky, in 2009. At the time of the collision, the other motorist was allegedly intoxicated and traveling in the wrong direction on the freeway. Following the accident, the truck driver settled with the at-fault driver’s liability insurer for the full policy limits of $25,000. After that, the semi-truck driver’s motor vehicle insurer waived its subrogation rights against the other driver.  The trucker then sought $25,000 in UIM benefits from his own auto insurer. The truck driver’s UIM insurer denied his claim because the at-fault driver was not an underinsured motorist according to the definition included in his insurance policy. In addition, the company claimed that Virginia law allowed it to offset the $25,000 payment the truck driver received from the other driver’s insurer against his potential UIM benefits. Because of this, the trucker’s insurer claimed that he was not entitled to receive additional payment as a result of his UIM coverage. Read More

In Barnes v. Saulsberry, a man sued a taxi cab driver and the owner of the taxi cab following an accident on the side of the highway. The man was standing on the shoulder of a Tennessee highway waiting for emergency personnel to arrive following a traffic collision. While the man was outside his vehicle, a taxi cab struck a parked automobile. The parked vehicle collided with the man’s car, which then hit the man. As a result, the man allegedly sustained permanent and disabling harm. About one year after the automobile accident, the injured man filed a negligence lawsuit against the taxi cab driver and its owner in Shelby County, Tennessee. According to the man, the defendants caused him to suffer numerous broken bones, ongoing pain and suffering, loss of enjoyment of life, and more. Following a jury trial, the man received a damages award of $1 million. After unsuccessfully seeking a new trial, the defendants filed an appeal with the Tennessee Court of Appeals in Nashville. Read More

The Kentucky Motor Vehicles Reparations Act allows a policyholder to recover damages for an auto insurer’s denial of basic reparation benefits following a Kentucky car crash. In Risner v. State Farm Mutual Automobile Ins. Co. , a man sued his insurance company for payment of benefits after he was apparently injured in a Lexington, Kentucky motor vehicle collision. Following the traffic accident, the man was treated by a local chiropractor. The injured man then sought reimbursement for his associated medical expenses from his auto insurer. About six months later, the insurance company notified the policyholder that it was denying coverage for certain medical bills he incurred as a result of the crash. In Kentucky, basic reparation benefits are typically used to pay the medical bills and certain other expenses of an individual who was hurt in a car accident, regardless of fault. After the man’s auto insurer discontinued his no-fault benefits, the injured man filed a lawsuit against the company in Rowan County Circuit Court. According to the man’s complaint, the motor vehicle insurer violated the Kentucky Motor Vehicles Reparations Act and the Kentucky Consumer Protection Act. In addition, the hurt man accused his insurance company of negligence, breach of contract, fraud, and numerous other claims. As a result, the policyholder asked the court to award him both compensatory and punitive damages. In general, punitive damages are only appropriate when a court seeks to punish a party and deter similar conduct in the future. Read More

In Simmerman v. Ace Bayou Corp., the parents of a three-year-old sued several parties following the death of their child, who became trapped in a beanbag chair. The parents filed a product liability action against the manufacturer of the allegedly defective chair, the department store where they purchased the item, and the manager of the store in Fayette County Circuit Court. In response to the lawsuit, the defendants removed the case to the U.S. District Court for the Eastern District of Kentucky in Lexington based upon diversity of citizenship. In general, a defendant may remove a case to federal court as long as the defendants are from different states than the plaintiff and the amount in controversy exceeds $75,000. Next, the parents filed a motion to remand the case back to Fayette County Circuit Court. Although the store manager was a resident of Kentucky, the remaining corporate defendants have main corporate headquarters in other states. According to the plaintiffs, the Kentucky manager destroyed diversity and required the case to be tried in state court. The store manager, however, countered that she was fraudulently joined in the case solely to defeat federal diversity jurisdiction. Read More

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