Kentucky Personal Injury Lawyer Blog

The Supreme Court of Kentucky recently decided a “Coots” case in favor of the Underinsured Motorist Carrier (UIM Carrier). In June of 2009, the Kentucky Supreme Court held that a letter sent by a Plaintiff to his UIM Carrier did not satisfy the legal Coots standard and thus the dismissal by the lower court was appropriate.

In Malone v. Kentucky Farm Bureau Mutual Insurance Co., 287 S.W.3d 656 (Ky. 2009) Mr. Malone was involved in a car accident with Mr. Bruce. Mr. Malone, via his car accident lawyer, sued Mr. Bruce and then added his own UIM Carrier Kentucky Farm Bureau (KFB). In July of 2005, Mr. Bruce’s insurance company, Atlanta Casualty, offered to pay its policy limits to Mr. Malone. In Kentucky, pursuant to a well known case, Coots, in order to properly resolve a car accident case that involves a UIM carrier, the injured party must follow KRS 304.39-320 which describes what type of notification the injured party must give to his or her UIM carrier prior to settling a claim with the underlying bodily injury carrier; in this case, Mr. Bruce’s carrier.

Pursuant to KRS 304.39-320, if an injured person, or, in the case of death, the personal representative agrees to settle a claim (emphasis added) with a liability insurer and its insured, and the settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underinsured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage. The underinsured motorist insurer then has a period of thirty (30) days to consent to the settlement or retention of subrogation rights. An injured person, or in the case of death, the personal representative, may agree to settle a claim with a liability insurer and its insured for less than the underinsured motorist’s full liability policy limits. If an underinsured motorist insurer consents to settlement or fails to respond as required by subsection (4) of this section to the settlement request within the thirty (30) day period, the injured party may proceed to execute a full release in favor of the underinsured motorist’s liability insurer and its insured and finalize the proposed settlement without prejudice to any underinsured motorist claim.

In Malone’s car accident case, after it received the offer from Atlanta Casualty for the policy limits, Mr. Malone’s car accident lawyer sent a “Coots” letter to KFB and wrote in pertinent part “Atlanta Casualty has advised that they have policy limits of $25,000.00 and this amount has been offered to settle their portion of Mr. Malone’s claim. We are considering whether to accept this offer….” The letter then went on to site the “Coots” case and put in the rest of the legal language that was needed to satisfy KRS 304.39.320.

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A Federal Court in Louisville, Kentucky recently answered the question on whether evidence of numerous criminal convictions of the driver of a truck involved in an automobile accident should be allowed in at trial in a civil automobile accident case.

The facts of that case are as follows. An accident occurred on I-65 in Louisville. A car was in traffic when it was hit from the rear by a tractor-semitrailer rig owned and operated by Beelman Truck Company. The impact pushed the car into the vehicle in front of it, forcing the car partially under the semitrailer of that vehicle which was operated by Paschall and driven by a Mr. Wendell Price. Initially, Plaintiff Ms. Smith only sued Beelman Truck Company. But, Beelman brought in the Paschall vehicle claiming that it was defective in that among other things, it had an underride protection bumper that was inadequately attached to the semitrailer. Beelman also claimed that Paschall was negligent in the hiring or retention of Mr. Price because Mr. Price failed to recognized the inadequacy of the underride bumper and that he was unqualified to operated a commercial motor vehicle. (See Smith v. Beelman Truck co., 2009 WL 126590 (W.D.Ky.))

It was brought to the court’s attention that Mr. Price had prior felony and misdemeanor convictions. Paschall moved to exclude this evidence in that it contends that Mr. Price’s prior convictions are irrelevant and therefore inadmissible. And if even irrelevant, its probative value is substantially outweighed by the danger of unfair prejudice. This was a very good outcome for Mr. Price’s Louisville car accident attorney.

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Recently, in January of 2009, the U.S. Court of Appeals for the 6th Circuit decided a case regarding hostile work environment and race discrimination. An African American woman named Christine Ladd sued her former employer for the race based harassment and retaliatory discharge against her former employer Grand Trunk Western Railroad. (See Ladd v. Grand Trunk Western Railroad Incorporated, 442 F.3d 495 (6th Cir. 2009)).

Ms. Ladd began her employment in April of 2000 with Grand Trunk. She was twice promoted. She was the only African American woman there. She claimed a co-worker in the fall of 2004 sexually harassed her. And then in March of 2005, she claimed retaliatory discharge after she file an injury report and was subsequently fired. In her deposition, she only sited to one person, a co-worker, not superior, who made a specific race or sex based offensive remark. While at work, Ms. Ladd did hear remarks about someone being a lesbian or gay or dyke, but these comments were not directed at her. Further, Ms. Ladd testified that she did not complain about any of the remarks to anyone nor did she complain of any of the other remarks about “this being a man’s job, etc.” to any other supervisor. Though, she did complain once to a supervisor when she thought a co-worker called her a “black bitch.” This matter was immediately investigated by her supervisors and was resolved. A Louisville employment lawyer could help explain the intricacies of such a matter.

Then in March of 2005, Ms. Ladd hurt her back while at work because she claims the man who called her a black bitch, moved the truck while she was on it, causing her back pain. She reported it right away. The matter was investigated and it sent to a formal hearing to see if Ms. Ladd was lying ie. filing a false injury report, or if the man who moved the car was lying. After several witnesses testified, it was determined that Ms. Ladd was not credible and so she lost. After she lost, Ms. Ladd filed a sex discrimination charge with the EEOC based on the events that had taken place. The EEOC granted Ms. Ladd her right to sue letter and so she brought her hostile work environment claims.

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Recently, in June of 2009 an appellate court in Kentucky sustained the lower trial court’s October 2007 rulings in a criminal case that sent a man to prison for 15 years. The Supreme Court denied reviewing it.

In Mills v. Commonwealth, 2009 WL 1705605 (Ky.App.), the following events transpired. On September 3, 2006, it was alleged that Mr. Mills, while driving drunk, was involved in a car accident that killed another man and then drove away. The accident happened around 10:45pm. A key witness testified that he saw Mr. Mills earlier that evening staggering and carrying 3 beers. Another witness says that she saw Mr. Mills around 2am (3-4 hours after the accident) and that Mr. Mills was not drunk and did not smell of alcohol. Also, there was testimony that at the accident scene it did appear Mr. Mills was staggering around, but the witness could not testify if it was as a result of being drunk or hurt. Another witness who pulled Mr. Mills out of the car testified that he did not appear to be drunk, nor did he smell of alcohol. And then, a doctor at the hospital that saw Mr. Mills 2 days after the accident did testify that he smelled of alcohol. Mr. Mills did admit that he had been drinking that day, 2 days after the accident. He also admitted to drinking on the day of the accident, but not on the night of, and that the only reason he fled the scene was because he was shaken up when he heard the sirens. Mr. Mills was charged with murder, fleeing the scene of an accident, assault, and DUI.

At trial, the state introduced evidence of 5 photographs of the scene of the accident. Two of them showed the damage to the car the victim was in, with the victim still in it, though covered up. The trial court and appellate court found no reversible error in showing these to the jury. They showed points of impact and were even used to help contradict Mr. Mills’ story that the driver of the other vehicle crossed the double yellow lines. The prosecution is permitted to prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see. The general rule is that relevant pictures are not rendered inadmissible simply because they are gruesome and the crime is heinous. Id.

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Recently, in a Federal Court in Louisville, Kentucky, a Federal Judge threw out a products liability case that had to do with a Louisville Car Accident. In the case at hand, a woman from Louisville took an Ambien sleeping pill before she went to bed. She applied a cosmetic facial mud mask and put curlers in her hair. About 20 minutes later she was involved in an automobile accident in which she struck a utility pole about a mile from her home. (See Gibson v. Sanofi-A Ventis U.S., LLC, 2009 WL 3490454 (W.D.Ky.)) At the time of the accident, she was dressed for bed, was not wearing her glasses and was wearing a mud mask and hair curlers. Her Louisville car accident lawyer filed a products liability case alleging negligence, strict product liability, breaches of express and implied warranties, negligent misrepresentation, and violation of Kentucky Consumer Protection Act in the manufacture and sale of Ambien.

Ms. Gibson contended that she was “sleep-driving,” which is an involuntary activity and that but for her taking the Ambien this accident would not have occurred. Ms. Gibson presented the court with many specialist doctors. Dr. McCullough, a physician who treated Ms. Gibson at the hospital, concluded that she had been driving herself to the hospital for cardiac symptoms and fell asleep at the wheel due to her earlier ingestion of two Ambien. Ambien is the most widely prescribed sleep aid in the United States. A Dr. Rodger explained his basis for concluding that it is “medically probably’ that the accident was caused by sleep driving caused by Ambien. Id.

Ambien does come with warnings as to what you should or should not do after you take one. Driving a car is one of the warnings.

Kentucky does recognize product liability claims for strict liability, negligence, and breach of warranty. But, it does state that a common element of each is demonstration that a product was defective or unreasonably dangerous. The court held that such a product was not and that the warnings that came with the drug were sufficient.

Ms. Gibson’s Louisville car accident lawyer also argued that Ambien was defective because of a “but for” argument, that but for her the Ambien causing her to “sleep-drive” she would not have had the car accident. This is the doctrine of res ipsa loquitur. But, the court held that it did not apply in that the doctrine is only to be applied when the nature of the accident itself not only clearly supports the inference of negligence but excludes all others. In that Ms. Gibson could not testify as to what happened right before the car accident because she does not remember, she cannot exclude all other possible negligent acts. This is something a Louisville car accident attorney would help review with you if you were ever in a similar situation.

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Recently, in the Circuit Court of Knott County, Kentucky, a jury awarded an estate of a man who was killed after he was struck by a motor vehicle, $2 million in compensatory damages and an additional $2 million in punitive damages. An appeal was taken and the appellate court reversed the punitive damages and said that the presence of a juror whose father had been involved in a fatal car accident, did not taint the jury verdict. That is why sometimes the winning of a car accident trial can be won or lost at the outset; at the beginning when you are picking the jury. A good Louisville car accident lawyer will know what kind of juror would make the best juror for your car accident case.

In the above case, the accident occurred on November 2, 2004. A trailer overturned and spilled its cargo of coal across a dark unlit portion of Kentucky State Road 80. After 2 hours of deliberation, on December 5, 2007, the jury awarded to the plaintiff its decision. (Fuel Transport v. Gibson, 2009 WL 3047578 (Ky.App.))

Fuel Transportation argued that a juror concealed the fact that her father had been killed in an automobile accident. Fuel Transportation claimed that they only discovered this in a post trial interview. And had this information been revealed during voir dire, Fuel Transportation argued the juror would have either been struck for cause or they would have used a preemptory strike to remove her from the panel.

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Recently, a Louisville car accident case was heard in a Louisville Circuit Court. A car accident occurred in September of 2005 that was finally brought to trial in December of 2007. The facts are that a driver of a truck was rounding a blind curve when he came upon a few cars stopped for a light. Not having time to stop, he slammed on his brakes causing him to avoid the accident in front of him, but causing his trailer to swing into the opposite lane of traffic, striking the vehicle of a Ms. Carroll, significantly injuring her legs. At trial, the court allowed the jury to be given jury instructions on the sudden emergency doctrine. Ms. Carroll lost at trail and brought the appeal by her Louisville car accident lawyer.

The common-law doctrine of sudden emergency for a Louisville car accident attempts to explain to a jury how to judge the allegedly negligent conduct of a person, plaintiff or defendant, who is suddenly confronted with an emergency situation that allows no time for deliberation. The sudden emergency doctrine does not excuse fault; it defines the conduct to be expected of a prudent person in an emergency situation. (See Carroll v. Wright, 2009 WL 414064 (Ky.App.))

When a defendant is confronted with a condition he has had no reason to anticipate and has not brought on by his own fault, but which alters the duties he would otherwise have been bound to observe, then the effect of that circumstances upon these duties must be covered by the instructions. The trial court gave the normal standard of care jury instructions, but also included the sudden emergency instructions as well.

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In April of 2009, a U.S. Court of Appeals in the Sixth Circuit, decided an appeal from a lower Tennessee court. The issues on appeal were that the Plaintiff claimed that two evidentiary rulings were made by the district court: 1) the exclusion of an exhibit offered by Plaintiff as hearsay due to the lack of an appropriate witness to lay the proper foundation for the document, and 2) the granting of a motion in limine in which the district court prohibited the admission of certain evidence from a prior action between the same parties. (See Cobbins v. Tennessee Department of Transportation, 566 F.3d 582 (6th Ct. of App. 2009). A race discrimination lawyer can assist you with this case.

Mr. Cobbins is an African-American male who worked for the defendant as a maintenance worker since February of 1994. In March of 2004, Mr. Cobbins applied for any open position. In May of 2004, the Highway Maintenance County Supervisor position became available. And after a few people dropped out, it came down to Mr. Cobbins and Mr. Staggs for the position. Mr. Staggs is white and had a higher civil service score than Mr. Cobbins. In Tennessee, the Department of Human Resources is responsible for reviewing applications to verify that the applicants meet the minimum qualifications for the posted job. Then it creates a list of ‘Certificate of Eligibles’ which is then submitted. The H.R. also comes up with the civil service score based on the applicants education, training, and work experience.

Mr. Cobbins had less education, less training and less work experience. Also, in his file there were several oral and written warnings from his prior supervisors, Mr. Yocum. Mr. Yocum is white and Mr. Cobbins had filed a racial discrimination lawsuit against him prior to this case. He had a race discrimination lawyer to assist him.

The attached is a video showing a classic example of racial discrimination that had made the news a short while ago. See it and then continue on with the case at hand.

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In January of 2009, a Louisville, Kentucky Federal Court ruled on a Louisville car accident case. The case is captioned Norton v. Canadian American Tank Lines, 2009 WL 86603 (W.D.Ky.). In Norton, Mr. Norton collided with the rear of a tractor-trailer that was parked by the defendant on the side of a road. The driver was inside the sleeper cab of the tractor asleep when the accident occurred. The accident occurred at approximately 6am. The night before the accident, the driver of the tractor trailer parked on the side of the road with the left tires of the vehicle on the pavement, and the right tires on the grass shoulder. The tractor trailer extended seven feet into the roadway. The driver placed no warning devices such as reflective triangles or flares in the roadway.

Mr. Norton in his Louisville car accident case alleged that the driver was negligent in the parking of his vehicle and that this negligence was the proximate cause of his injuries. Mr. Norton claimed the driver was negligent because he violated a statutes (negligence as a matter of law) and because he breached a general duty of care (ordinary negligence). The court reviewed the applicable statutes and case law. The court reviewed case law from the 1930’s and the 1950’s. And after careful reasoning, it determined that the defendant did in fact violate a state roadway statute and thus was liable according to the rule of negligence per se. And as the driver was negligent as a matter of law, his employer is vicariously liable for the injuries that were caused by his negligence. So, in this case, Plaintiff’s Louisville car accident lawyer won and the court granted Plaintiff’s motion for summary judgment.

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Recently, in the Federal Sixth Circuit U.S. Court of Appeals, an FMLA case was heard in May of 2009. This case revolved around a female nurse practitioner who had sued her employer, the Church of Christ Home for the Aged. The lower district court had granted the employer summary judgment on Ms. Lafata’s Family Medical Leave Act (FMLA) claims.

In February of 2000, Ms. Lafata began working as a licensed practical nurse for the defendant at its assisted living facility. In November of 2000, Ms. Lafata hurt her shoulder while at work lifting a patient. In April of 2002, Ms. Lafata was promoted and became the Health Services Coordinator at the assisted living facility. In February of 2003, Ms. Lafata fell in her driveway at home and fractured her foot. It was placed in a cast. She returned to work 2 weeks later in March of 2003. But, after a short period of time, Ms. Lafata realized that she could not perform her duties and accordingly, a few weeks later got a note from her doctor and requested FMLA leave and disability leave from her boss. But, Ms. Lafata only received the disability forms and not the FMLA forms. She subsequently collected disability payments while on leave for her foot injury.

Two months later, Ms. Lafata received a letter at home informing her that her employer had filled her position. She subsequently filed a complaint with the Department of Labor (DOL). The DOL determined that the employer failed to comply with applicable notice requirements under the FMLA. Thus, following this investigation, the employer gave Ms. Lafata twelve weeks of unpaid leave beginning July 28, 2003 to October 20, 2003. Ms. Lafata gave her employer a doctor’s note stating that she could return to work.

Prior to returning to work, Ms. Lafata spoke to her employer and the discussion of what she was going to do came up. The employer told Ms. Lafata that the only position available was that of a Restorative License Nurse. Ms. Lafata told her employer that she could not do that as it required lifting and was not an “equivalent position” to the one she held before which was Health Services Coordinator. Her employer told her that was what was being offered and to take it or leave it. Ms. Lafata ultimately did not return to work and filed a charge of discrimination with the EEOC and after receiving a right to sue letter, filed her lawsuit. She hired a FMLA lawyer.

The below is a good video explaining FMLA. And if you watch this video, there are many other related videos that come up along with it that you can watch as well.

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