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A common scenario that arises in Kentucky and other states occurs when an insurance company for the person that injured you calls and asks you questions before you get a chance to talk to your own lawyer. We are commonly told by an injured person that an insurance company wants to settle a claim and asked whether he or she should settle the case without a lawyer.

You should absolutely consult an attorney before agreeing to settle a case. Whether the injuries were sustained in a car wreck, bicycle accident, trucking accident or other type of collision, and whether the injuries appear to be relatively minor or resulted in a fatality, broken bones, paralysis or other injuries, you should talk to an attorney before making any decisions regarding settlement and before talking to an insurance agent or adjuster about the facts of the case.

Often, people don’t realize that the friendly insurance adjuster that asks them questions is not on their side. An insurance adjuster for a primary liability policy owes a duty to the insurance company’s insured customer, an excess policy if there is one, and shareholders. They do not owe duties to you after you have been injured.

In fact, an insurer’s goal is to pay an injured person that is not insured under its policy as little as possible. To that end, an adjuster may be excessively friendly to try to cajole you into making an admission they can use against you should you bring a lawsuit. Alternatively, an adjuster may use threats, bullying and misstatements to try to convince you and make you agree that the other person was not at fault or make another damaging statement. An adjuster may ask you to make a recorded statement. Continue reading

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In Kentucky, to bring a negligence action for personal injury damages in a car accident case, a plaintiff must prove three elements: the defendant’s duty, the defendant’s breach of that duty, and a causal relationship between the defendant’s breach and the plaintiff’s injury.

Occasionally, circumstances arise that can make it difficult to establish one or more of these elements. In 2012, the Kentucky Court of Appeals considered an automobile accident case in which the plaintiff was sitting in a parked car in a parking lot. Suddenly his car was struck by a moving vehicle that had just been hit by another vehicle on a nearby highway.

In the first accident, a driver had moved from the westbound lane into the eastbound lane of the highway, hitting the driver of another vehicle who was driving for his job. The latter’s vehicle then hit the plaintiff’s car. The plaintiff filed suit against several car insurers and also the employer of the driver whose car hit him, claiming negligence.

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 Monetary awards in personal injury cases are generally intended to compensate a victim of negligence for actual past and future compensatory losses or “special damages”—whether medical bills, lost income, future impairment of ability to earn money—as well as pain and suffering. However, where a defendant has acted with  at least recklessness or gross negligence in Kentucky, an award of punitive damages by a jury is warranted. Additionally, where intentional conduct is involved—such as an intentional assault and battery—punitive damages against the one who caused the harm are similarly warranted.

Punitive damages can be used in a wide array of circumstances, whether it is to punish an individual who drives drunk or texts while driving and injures someone else, whether it is to punish and deter a bouncer and bar for an intentional assault of a patron by the bouncer, or whether it is to punish a corporate or wealthy defendant whose conduct the jury wants to deter, such as the owner of a service station who permits an attendant to possess and use a  firearm but fails to train the employee resulting in injury, just to name a few situations. A punitive damages award can also be used to deter a particular type of conduct generally, among similarly situated defendants, such as manufacturers of similar products or hospitals that employ similar policies that are detrimental to patients.

In a car accident case which went to the Court of Appeals this year, a couple that had undergone gastric bypass surgery several years earlier were driving home when another driver turned his Nissan Altima into the wrong lane and drove towards them. An SUV driving in front of them managed to swerve away, but they crashed into the Altima. The Altima driver, who was drunk, died on the scene.

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Semi tractor-trailer accidents in Kentucky can lead to some of the most serious personal injuries or death. A semi can weigh more than 80,000 pounds; compare this to the average automobile that weighs only about 3,000 pounds. Although there are fewer semi accidents than car accidents, accidents involving semis are much more dangerous and can lead to catastrophic results.

The Federal Motor Carrier Safety Administration (FMCSA), a division of the U.S. Department of Transportation, conducted a Truck Causation Study  to determine the top 10 common causes of tractor trailer accidents. These are: issues with brakes, traffic congestion, prescription drug use, speed, unfamiliarity with a road, road problems, required stops, over the counter medication use, inadequate sight, and driver fatigue.

Just this summer, a woman was killed in a crashwith a semi near Louisa, Kentucky. She crossed over the center dividing line and collided head-on with a semi tractor-trailer. The driver claimed to have hit the brakes as soon as he saw her, but it was too late.

Because of accidents like this one, driving a semi tractor-trailer is covered by more restrictive laws than driving a car. For example, drivers of semi tractor-trailers cannot drive for more than a set number of hours before being required to stop for a rest. If you get into an accident with a semi tractor-trailer, the trucking company may have a team of lawyers already working on the case before you get a chance to consult an attorney. You may even get a tempting quick offer to settle.

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Although less common than car accidents, motorcycle accidents remain common in Kentucky. In 2009, there were 1,915 motorcycle accidents in Kentucky, which included 89 fatalities, according to the Kentucky State Police. Getting in a motorcycle accident in Kentucky can be the result of road conditions, another driver, or a variety of other reasons. While they are less common than car accidents, the personal injuries caused to a motorcyclist can be quite severe.

If you go to trial against a potentially responsible party after a motorcycle accident, prior to the trial both sides will try to limit the subjects which can be presented to a jury by making what are called motions in limine. By the time the actual trial comes around, the judge will typically have ruled on most of these motions and you will mostly know what the other side will be allowed to argue at trial. A defendant driver, for example, might argue that you were at fault as a motorcycle driver for failing to use an appropriate signal while turning or failing to stop at a stop sign. Sometimes, however, a surprising statement or unexpected issue may still  surface at trial.

A case last year illustrates the difficulty of predicting the outcome of a motorcycle accident case. In the case, two couples who went motorcycle riding together were involved in a crash. As they rode down the hill, the second couple saw the first couple crash their motorcycle. Seconds later, the second couple’s motorcycle also crashed and struck the woman motorcyclist. She was knocked into a pickup truck and badly hurt. Several witnesses testified later that the motorcyclists lost control of their motorcycles because of a slick substance, probably diesel fuel, on the road.

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In Kentucky, car drivers are required to carry basic Personal Injury Protection (PIP) insurance coverage. PIP benefits are also commonly referred to as “no-fault” benefits because they are to be paid to the person injured through use of a motor vehicle, regardless of whose fault the injury is. An injured driver or passenger can claim against the basic PIP of the vehicle in which he or she was riding. An injured pedestrian can claim against the PIP coverage for the car that struck him or her. Basic PIP gives coverage to each person in each accident a minimum of $10,000 to cover out of pocket costs, such as medical expenses or lost wages.

Unlike other states, in Kentucky, drivers are presumed to have limited rights to sue unless they file a special form rejecting no-fault limitations. If they are subject to no-fault limitations, they cannot recover medical expenses or wage loss from the at-fault party unless they have more than $1,000 worth of medical expenses, a broken bone, a permanent injury or disfigurement. A person’s estate may collect if they die.

If you are in a car accident and have any kind of significant injuries or pain, it is important to not only alert insurance carriers but consult an attorney as soon as possible, too. Last year, a Kentucky appellate court considered a car accident case in which a woman had been injured when her car was rear-ended. She received basic PIP benefits from her own carrier. About two months after the accident, the woman started to experience serious medical problems like projectile vomiting, vertigo and Raynaud’s phenomenon. Her physicians couldn’t figure out what was wrong with her for two years. Continue reading

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Motor vehicle owners in Kentucky who are also parents need to pay attention to whether or not it’s appropriate to let their children drive. Even though a parent who signs the application for a minor to obtain a driver’s license accepts liability for any damage caused by the teen, a parent who doesn’t sign the application can also be held liable for damages caused if there is negligent supervision of the teen. In addition, if an underage driver without a license gets into a car crash while driving his parent’s car, those that he hurts may have a cause of action against the parents for negligent supervision.

Negligent supervision cases are based on the idea that a parent has a duty to exercise reasonable care to make sure his or her minor child does not intentionally harm another or create an unreasonable risk of bodily harm. To provenegligent supervision in the context of a car accident, a plaintiff must show (1) the defendant has a duty, (2) breaches the duty; and (3) as a result of the breach, an actual injury occurred. More specifically, to be held responsible, a parent must know or have reason to know of his or her ability to control the minor and must know or should know that it is necessary  and possible to control the child.

Foreseeability is the issue on which a parent’s responsibility to control his or her child turns. Foreseeability usually requires that the child has committed the same or a very similar act previously. Parents are not required to be fortune-tellers about their child’s behavior. But in the case of car accidents, parents who know that their child has been drunk and driven on multiple prior occasions may be liable to anyone the child injures. Continue reading

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Some people find the name Varellas difficult to pronounce and spell. The name of our law firm is pronounced Va-Rel-iss (rhymes with trellis) and is sometimes misspelled as Varella, Varela, Varelas, Verallas, Varallas, Varillas, Varilla, Valera or Varallis. The misspellings are understandable since reports periodically appear in the news concerning people with names similar to ours but with various spellings.

In recent news, there was a report concerning Rosella Varela, the mother of four children who were on a school bus on April 9, 2013 that drove over an embankment in Rio Arriba County, New Mexico.  The driver of the school bus was killed and two of the Varela children were seriously injured. Derrick Varela, 9, suffered a broken hip and Rusti Dawn Varela, 16, lost several teeth and was taken to surgery to repair broken bones in her face. The other two Varela children sustained minor bruising and a chipped heel.

Monica Varillas, 21, was injured in an Anaheim, California car wreck in December 2011, when a driver made an unsafe left turn and fled the scene. Police reported that Varillas was driving a Honda Civic with her 1-year-old child when the wreck occurred. Donta J. Lewis and Heather M. Varalli, were slightly injured in August, 2012 in Montgomery County, Pennsylvania in a two-vehicle accident when Lewis turned left in front of Varalli’s vehicle, and he was struck by her vehicle, police said.

Victoriano Varelas and Bartolo Santos filed a lawsuit in 2009 against a truck driver and his employer, a Texas corporation, after the employee drove the truck into the rear of their vehicle. Varelas was driving his motor vehicle in Harris County, Texas with Santos as his passenger, and Brandon L. Dover was driving the truck behind them. The men alleged in their lawsuit that the trucking accident happened after Dover fell asleep, failed to control his speed, and crashed into the back of the vehicle in which the men were riding

In August, 2010, 18-year-old Anthony “Nini” Varela died in a car accident in Pleasant Grove, Texas when a drunken driver ran a red light. After he was declared brain dead, however, his parents donated his organs, bones and tissues thereby improving the lives of 114 people. One year later, the anniversary of his death was marked by a gathering at Grove Hill Memorial Park in Dallas by family, friends and those whose lives were touched by the generous donation of Nini’s parents. Continue reading

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Georgetown, Scott County, Kentucky

The Georgetown News-Graphic reports that Anthony Scott Ryman, 30, from Cocoa, Florida, the driver of a car on U.S. 25 in Scott County, Kentucky, lost control of his car on July 14, 2013 and struck a culvert, killing his passenger. Ryman was driving northbound on U.S. 25 (known also as Cincinnati Pike), just north of Georgetown, when he apparently was unable to negotiate a curve. The car left the road and overturned several times after hitting a light pole. The passenger in the car, identified by Scott County Coroner John Goble, was Brian D. Armstrong, 48, from Etowah, Tennessee. Armstrong was killed in the crash and pronounced dead at the scene. Ryman survived and was transported to Lexington, Kentucky, to University of Kentucky Chandler Hospital with serious injuries. High speed and alcohol are believed by state police to have been contributing factors in the accident and charges are pending against the driver. Armstrong’s death raises the total traffic fatalities in Scott County to six in just four weeks.

Lexington, Fayette County, Kentucky

In Lexington, Kentucky on July 14, 2013, a woman working on a road crew was struck by a hit-and-run driver. The Lexington Herald-Leader reports that the road crew was working for a private company on Sunday night restriping the road near Nicholasville Road and Reynolds Road when the victim was struck by a vehicle described as possibly a blue Toyota Camry. The worker sustained non-life-threatening injuries and was transported to University of Kentucky Chandler Hospital. Police are looking for the driver and the car which appeared to sustain damage on the left side. The driver was believed to be a man with a white beard.

Liberty, Casey County, Kentucky

Late Sunday, July 14, 2013, James L. Baugh of Liberty lost control of his vehicle while driving on U.S. 27 just south of Liberty according to a report by the Lexington Herald-Leader. Baugh was driving a 2004 Saturn and overcorrected when he tried to regain control. The vehicle overturned and Baugh was killed. Samantha Dilbeck of Liberty was Baugh’s passenger and sustained injuries in the wreck. Dilbeck was treated and released at the Casey County Hospital. Kentucky State Police report that alcohol is suspected as a contributing factor in the fatal accident.

Frankfort, Franklin County, Kentucky

The driver of a 1996 Chevrolet Blazer that rear ended a tractor trailer in Franklin County on July 10, 2013 had to be extricated from his vehicle by the Franklin County Fire Department. Charles Bates was driving on U.S. 127 in Franklin County when the wreck occurred. Witnesses told Franklin County Sheriff Department deputies that Bates of Frankfort, Kentucky didn’t apply his brakes and was driving erratically before crashing into the rear of the tractor trailer. The State Journal reports that the driver was taken to Frankfort Regional Medical Center and then transported to University of Kentucky Chandler Medical Center where he was listed in serious condition.

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The National Highway Transportation Safety Administration (NHTSA) reports that in 2011, 3,331 people were killed and 387,000 were injured in motor vehicle accidents involving a distracted driver. The NHTSA further reports that for drivers under the age of 20 who were involved in fatal accidents, 11% were reported to be distracted at the time of the crash, and for 15-19 year olds who were distracted when involved in fatal crashes, 21% were distracted by using cell phones. The National Safety Council estimates that there were more than 500,000 crashes involving drivers using cell phones and texting in the first half of 2013 and that these distracted drivers cause an additional wreck every 30 seconds.

Kentucky enacted laws that went into effect in 2010 that prohibits drivers from “texting while driving,” i.e., text messaging while a vehicle is in motion. KRS 189.292. In addition, any person under the age of 18, whether using an instruction permit, intermediate license or operator’s license, is prohibited from both texting and cell phone use while driving. KRS 189.294. Text messaging is more dangerous than talking on a cellphone since it requires the driver’s visual, manual and cognitive attention, the three main types of distraction.

In spite of the laws prohibiting texting while driving in Kentucky, the Lexington Herald-Leader reported in May, 2013 that less than 1,000 citations had been issued state-wide during the more than two years since the new laws went into effect since police say it’s difficult to determine if someone is violating the law while driving down the road. Lexington police stated that in 2012 cell phones were a contributing factor in 26 accidents, but the number for 2013 had already climbed to 38 by May. The Louisville Courier-Journal reported in January, 2013 that although accidents caused by distracted driving dropped statewide in 2012, such accidents rose to the highest level in Jefferson County in a decade.

The National Transportation Safety Board found that when a driver crashed his truck into a van carrying 10 members of a Kentucky Mennonite community in March 2012, causing one of Kentucky’s deadliest highway accidents, the driver might have been on his cellphone. Continue reading

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