In June of 2010, the United States District Court for the Western District of Kentucky heard a case that involved a woman and her car accident and the bad faith violation (Unfair Claims Settlement Practices Act) she alleged against the Defendant. (See Phelps v. State Farm Mutual Automobile Insurance Co., 2010 WL 2471845 (W.D.Ky.)).

The facts of this Kentucky car accident case are as follows. The Defendant was driving in Louisville when he pulled out from a gas station in front of the Plaintiff causing the Plaintiff’s car to strike his car. Liability is not in question. The Plaintiff was transported to a hospital and was diagnosed with herniated disc requiring surgery. Id. The Louisville car accident was in July of 2003 and Plaintiff’s surgery was on October 15, 2003. Id. Plaintiff submitted her claim to Defendant’s insurance company (State Farm) for her personal injuries and damage to her car. Id. State Farm began to investigate the claim and found in February of 2004 that Plaintiff had a preexisting back problem from a 1999 car accident. Id. After further investigation, Defendant found out that all therapy for the 1999 car accident ended in 1999 and thus decided to make an offer of $25,000 to settle this claim. Id.

In Burris, the Plaintiff in this car accident case appealed his case because she felt she was entitled to more money. But, this Court reviewing the trial’s court transcript and reading the appellate briefs did not agree. “A jury can refuse to award pain and suffering, even it if does award medical damages, if there is a reason to believe that the plaintiff did not incur those damages.” Id.

Plaintiff in her Louisville pregnancy discrimination case alleged pregnancy discrimination in violation of the Kentucky Civil Rights Act. Id. “To successfully plead the cause of action, a plaintiff must allege four elements: 1) that she is a member of a protected class (i.e. that she was pregnant), 2) that she suffered an adverse employment action, 3) that she is qualified for the position, and 4) that a similarly situated employee outside her protected classification was not subject to the adverse action.” (cites omitted). Id. Defendant argued that the complaint did not allege that anyone outside the plaintiff’s protected class was treated any better than she was. Id. To this argument the Court did not agree.

“The FLSA exempts employees who are “employed in a bona fide executive, administrative, or professional capacity.”” (cites omitted). Id. In order to be exempt under the administrative exemption it must be demonstrated that “1) the employee is compensated at a salary or fee basis at a rate of not less than $455 per week, 2) the employee’s primary duties include the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, and 3) the employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” (cites omitted). Id.

The case was before the Court on a motion to conditionally certify the proposed class as permitted by the FLSA for purposes of notice and discovery. Id. The Plaintiffs also wanted the names and contact information of those that held the same or similar job within the past 3 years, they wanted this information on a Microsoft Excel format, and they wanted 90 days for the Notice period to have time to send out the notices. The Court agreed to all this and granted Plaintiff’s Motion. The reasoning is as follows.

In Ms. Seals’ instance, she did not work overtime, but the Court held, that she was at least entitled to the pay for the hours she worked over the twenty hours per week for which she was not paid. Id. The Court also had to determine the exact amount of time that Plaintiff was entitled to her unpaid wages. An employee is entitled to paid for every hour worked for an employer.

In Gonzales, on January 2, 2004, the Defendant caused a minor car accident to the vehicle in front of her, hitting that vehicle from behind. Id. Just prior she was at a complete stop and traveled no more than 2 feet before she struck that car in the rear. The Plaintiff, a 10 year old boy, was a back seat passenger. Id. After the accident the police arrived and no one reported injuries. Id. The car Plaintiff was in was not seriously damaged, and Defendant’s car had just a fist sized dent in the bumper where it impacted the trailer hitch on Plaintiff’s car. Id. Shortly thereafter, Plaintiff claimed that he was injured and that he sustained whiplash. Id. He treated with a Dr. Hellman having $2,683 worth of medical bills. Id. The car accident case went to trial on September 15, 2008. Id.

In Clemens, Ms. Clemens was injured in an automobile accident on June 10, 2004. At trial, Plaintiff had the deposition testimony of her family doctor and her car accident chiropractor read into evidence. Id. The jury awarded zero damages so Plaintiff appealed. Based on the facts, this Court denied the appeal.

In Gersh, Plaintiff Gersh appealed a lower court’s judgment whereby Mr. Gersh was found liable for the serious bodily injuries he caused to Ms. Bowman following an automobile accident. The jury found Plaintiff liable for past and future medical expenses, pain and suffering, and impairment of her power to work and earn money, as well as punitive damages. Id.

In Hutchinson, the Plaintiff was involved in a car accident on July 21, 2003. Id. The car was rear-ended by the defendant as the Plaintiff waited to turn. Id. The trial judge awarded the Plaintiff over $100,000. Id. The Defendant appealed claiming not all of her injuries were from this accident. This Appellate Court modified the award by half. The reasoning is as follows.

The issue of whether a person has suffered a threshold injury is one for the court as a question of law. Id. A serious impairment of body function means “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.” Id. The Courts look to see if the Plaintiff is able for the most part to lead a normal life. (cites omitted). Id. It has to be more than a minor interruption in life. Id. The Plaintiff’s entire life course is looked at and if that course is still on track, then one’s injuries do not meet the serious impairment of body function threshold. Id.

In TBCI, Ms. Shaholaa was involved in a car accident in October of 2003 where she claims she suffered a brain injury. Id. The bench trial held that she had not suffered a brain injury and she appealed. This Appellate Court sustained the trial court’s decision. Id.

In Highlands Hospital Corporation v. Preece, 2010 WL 569745 (Ky.App.), the Kentucky Court of Appeals held that the employer did violate the employee’s FMLA rights. The reasons are as follows.

Ms. Preece began working for the defendant as a Certified Nursing Assistant in July of 2000. Id. In April of 2004 she discovered she was pregnant. Id. She went to her HR person and was told she had 12 weeks of leave available but was not told how that leave was to be calculated. Id. Plaintiff was never informed she could use her accumulated vacation and sick days instead of FMLA leave. Id. Beginning June 16, 2004 up until the birth of her child on October 21, 2004, Plaintiff took intermittent leave. Id. She did not know that her time off was going towards her FMLA leave. Id.