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In Boarman v. Grange Indemnity Ins. Co., a man was seriously injured in a motor vehicle collision when another motorist ran a red light and collided with his vehicle. Unfortunately for the injured man, both the driver and the vehicle that struck him were not insured at the time of the accident. Despite this, the man obtained a judgment of more than $90,000 against the other driver for his accident injuries. Since the at-fault motorist was uninsured, the man never collected the damages that were awarded to him. About one month before the man was hurt, his wife obtained a new automobile insurance policy naming both members of the couple as insured drivers. Following the crash, he filed a claim for uninsured motorist coverage from their auto insurer. The insurance company denied the man’s claim because his wife rejected uninsured motorist coverage in writing when she obtained the policy. The man then filed a lawsuit in Daviess County Circuit Court against his insurance company to recover the uninsured motorist benefits he believed he was statutorily entitled to. The man testified at trial that his wife was asked to obtain the same accident coverage the couple held with their previous motor vehicle insurer, which included uninsured motorist coverage. In addition, the injured man claimed that he was a co-applicant who did not reject his statutory right to uninsured motorist coverage, as evidenced by the fact that he did not sign the insurance policy application. Still, he received a copy of the policy and paid insurance premiums that did not include uninsured motorist benefits. Read More

In Putnam v. Medtronic, Inc., an Indiana woman filed a medical product injury lawsuit asserting 15 state-law causes of action in Jefferson County Circuit Court against her Kentucky doctor, the manufacturer of a medical product, and the Kentucky hospital where she underwent spinal fusion surgery. According to the woman’s complaint, the physician used the medical product to treat her in an off-label manner that was not approved by the Food and Drug Administration. In addition, she accused the manufacturer of the product of intentionally and illegally promoting it for off-label use. The woman claimed she suffered harm as a result of this unapproved use and asked the Circuit Court to award her both compensatory and punitive damages. The manufacturer of the medical product immediately removed the woman’s case to the Western District of Kentucky in Louisville based on diversity of citizenship. The manufacturer also asserted that removal was appropriate because the case involved questions of federal law. In response, the woman filed a motion to remand the lawsuit back to state court. In considering the woman’s motion, the U.S. District Court examined the two sources of federal jurisdiction alleged in the case. Diversity jurisdiction is proper when the amount in controversy exceeds $75,000 and the parties hail from different states. Federal question jurisdiction exists only when a lawsuit arises from the United States Constitution, federal statutes, or a treaty the nation is a party to. The U.S. District Court continued by stating the burden of establishing federal jurisdiction is on the party that seeks removal, and the case must be remanded if jurisdiction is not proper. Read More

Read Bob Young's column on the importance of keeping up with technology Read More

On Monday, the National Highway Traffic Safety Administration released a report indicating that motorists who drive vehicles with airbags made by Takata could be in grave danger. The airbags are designed to inflate and protect motorists in the event of an injury, but instead, they can explode, causing the death of the driver. In at least four instances, motorists have been killed in accidents in which their airbag exploded, covering them in shrapnel. Others have been severely injured. The problems are so dangerous the NHTSA is asking people not to carry passengers in the front seats of the recalled vehicles - but you may not even want to drive these vehicles after reading about these problems. Most of the vehicles are older models, some going back to 2001. Motorists should check their vehicles as soon as possible. The NHTSA recall affects about 4.7 million vehicles throughout the U.S., though safety experts have put the number at 12 million world wide. The recall includes vehicles made by  Toyota, Honda, Nissan, Mazda, BMW and General Motors. If you are unsure if your car has been affected by the recall, you can enter the Vehicle Identification Number (VIN) on your registration paperwork and enter it at this web site to check: http://www.safercar.gov/. All drivers nationally can use this, including drivers in Kentucky and Tennessee who are concerned with this product recall. You can read the full report and find specifics on the recall here. Read More

In Waltenburg v. St. Jude Medical, Inc., a man received an implantable cardioverter defibrillator (“ICD”) that was manufactured by St. Jude Medical, Inc. The electrical ICD device was inserted into the man’s body through a vein and then attached to his heart in an effort to correct irregular heart rhythms. Not long after the device was implanted into the man’s chest, he apparently began experiencing unexpected and unnecessary electrical shocks. Several years later, the man’s physicians reportedly told him that the ICD device implanted into his body was faulty, but it was too risky to remove it. The man filed a products liability lawsuit seeking damages for physical injury and emotional distress from the manufacturer of the ICD in the Western District of Kentucky. In his complaint, the man claimed the medical device manufacturer was strictly liable for the allegedly defective ICD. He also claimed the company manufactured the product in a negligent fashion, negligently failed to warn him about the product defect, and alternately should be held accountable through the doctrine of negligence per se. A negligence per se cause of action normally arises when someone is injured after another party violates a law that was designed to protect the public or a specific class of individuals from the type of harm that the injured person sustained. In general, negligence per se is easier to prove than other types of negligence because the reasonableness of an at-fault actor’s conduct is not at issue. The medical device manufacturer countered by alleging the man’s claims were preempted by the Medical Device Amendments (“MDA”) to the federal Food, Drug, and Cosmetic Act and argued the lawsuit should be dismissed because the man failed to state a claim on which relief may be granted. Preemption occurs when a state law conflicts with a federal law in such a way that the purpose of the federal law is thwarted. According to the Supremacy Clause of the United States Constitution, federal law controls in such cases. Read More

The U.S. Department of Transportation's National Highway Traffic Safety Administration just released statistics for 2012 for auto and large truck fatal accidents. There are three reports, which provide a wealth of information about fatal accidents in the U.S. Links to the reports are available here: A state-by-state analysis of all of the data, including large truck and auto accidents: http://www-nrd.nhtsa.dot.gov/Pubs/812033.pdf Data on passenger vehicles: http://www-nrd.nhtsa.dot.gov/Pubs/812070.pdf Information on large truck accidents (gross weight 10,000 pounds or more): http://www-nrd.nhtsa.dot.gov/Pubs/811868.pdf In this blog post, we'll concentrate on the first report, which analyzes all data from all of the accidents combined. Read More

The Kentucky Court of Appeals has upheld a jury’s verdict in a lawsuit over a tractor-trailer accident. In Werner Enterprises, Inc. v. Northland Ins. Co., three tractor-trailers were involved in a Webster County, Kentucky crash. All three vehicles were apparently headed in the same direction when several coal trucks passed them in the left hand lane. According to evidence offered at trial, a cloud of dust obscured the vision of each semi-truck driver after the coal trucks hit a bump in the roadway. After being passed by the coal trucks, the first truck stopped in the roadway and the three big rigs collided. The coal trucks were not involved in the collision. Following the crash, the driver and passenger of the first semi-truck filed a personal injury and property damage claim against the driver and owner of the second tractor-trailer. In turn, the driver and owner of the second vehicle sought damages from the driver of the first truck, his insurance company, and the owner of the coal trucks. Following a jury trial, the driver and owner of the second big rig were held fully responsible for the accident. The owner of the tractor-trailer who was held liable for the collision then filed an appeal with the Kentucky Court of Appeals. According to the second truck's owner, the trial court committed an error when it allowed a state trooper to testify as an expert regarding human factors that allegedly played a role in the collision. The company also claimed that the lower court should have entered a directed verdict in its favor. On appeal, the Kentucky Court of Appeals stated it would defer to the trial court’s decision and reverse the case only if exceptional circumstances existed. Then the Kentucky appeals court addressed the appellant’s argument that the trial court had improperly allowed the law enforcement officer to testify about human error by stating that the company had failed to object at the trial court level and preserve its right to challenge his testimony. The court also held that the state trooper’s testimony was permissible because he did not render an opinion regarding who actually caused the collision. In addition, the Kentucky court said the trooper's testimony was more likely to assist jurors in reaching a decision than create prejudice against the owner of the big rig. Read More

A recent Kentucky lawsuit demonstrates the importance of obtaining ample evidence before filing a lawsuit. In Fimbres v. Garlock Equipment Co., a roofer was seriously injured when an asphalt kettle manufactured by the defendant exploded. The man apparently suffered significant burns over a large percentage of his body as a result of the explosion. Unfortunately, the injured man died from a prescription pain medication overdose about one month after the workplace accident. When it was manufactured, the asphalt kettle was equipped with an automatic monitoring device that was designed to keep the kettle from overheating. On the day of the tragic workplace accident, however, the device was not attached to the kettle. A roofing company worker apparently stated that the monitoring device was removed about one year before the explosion due to an equipment malfunction. According to the asphalt manufacturer’s user manual, the self-regulating monitor may be removed as long as the product is manually observed to avoid overheating. Following the roofer’s death, his mother filed a products liability and wrongful death lawsuit against the manufacturer of the asphalt kettle. According to the plaintiff, the equipment was defectively designed, and the manufacturer failed to properly warn the decedent regarding the dangerous product. The equipment manufacturer responded by filing a motion for summary judgment. A motion for summary judgment means the moving party is asking a court to rule that there are no genuine questions of fact in a case and that the party is entitled to a verdict in his or her favor. Read More

In Big Spring Assembly of God, Inc. v. Stevenson, a youth minister for a church organized a camping trip with several teens. At one point during the trip, the minister took two children to his apartment in his personal automobile. While returning to the campground, the minister apparently allowed a 13-year-old to drive the vehicle. Sadly, the child lost control of the car and caused a wreck. The child died as a result of his injuries. Before law enforcement officials arrived, the minister allegedly asked the surviving youth to state the minister was driving at the time of the fatal accident. The child initially complied with the minister’s request but later admitted to police that the deceased 13-year-old was behind the wheel when the crash took place. After that, the estate of the deceased child filed a vicarious liability lawsuit against the church that employed the minister and sought damages as a result of the organization’s alleged negligent hiring, retention, and supervision of the man. The decedent’s parents also sought damages for loss of consortium. A trial court found that both the minister and the child committed negligence as a matter of law and asked jurors to apportion damages over the child’s death. Since Kentucky is a pure comparative fault state, the amount of damages an at-fault defendant is required to pay will normally be reduced by the percentage of fault attributed to the injured or deceased person. Although the jury determined the church was not vicariously responsible for the minister’s negligence because he was acting outside of the scope of his job duties when the deadly wreck occurred, it did hold the organization liable for its negligent hiring, retention, and supervision of him. As a result, jurors awarded the child’s estate $1 million in damages and attributed 80 percent of the fault to the minister’s actions. Since the jury found that the child was 20 percent to blame for his wrongful death, the damages award was reduced to about $800,000. The child’s parents also received approximately $60,000 for their loss of consortium claims. Read More

Finding out what insurance coverage is available for you after a motor vehicle accident can be challenging and complex. In a recent unpublished case, a Kentucky court had ruled an insurance company had no duty to defend or indemnify a man under a liability policy issued to a construction company. The construction company did highway mowing and landscaping, and its entire fleet of trucks was insured under a Tower liability policy. This policy excluded coverage for injuries that could be subject to worker's compensation or a similar law. An accident happened when an employee of the construction company fell from one of its pick-up trucks and died from his injuries. The truck was being operated by Brent Horn. Horn was not an employee of the company, but he had permission to operate the vehicle. Afterward, the decedent's estate filed a wrongful death action against Horn, who believed the liability policy for the trucks covered this type of action. He asked the insurance company to defend and indemnify him, which means paying any damages awarded by the jury. The insurer filed a complaint asking the court to decide whether it had to defend and indemnify Horn. The Court ruled that the insurance contract created coverage for Horn, however, because Horn was not an employee there was no coverage. Read More