Kentucky Injury Lawyers Blog

Published on: July 22, 2014

Tracy Morgan Sues Walmart after Tractor-Trailer Deadly Collision

Sprinter limo bus

Comedian Tracy Morgan has filed suit against Walmart after he was critically injured in a multi-vehicle collision in New Jersey on June 7, 2014 that killed Morgan’s friend, James McNair, and injured several others. Police believe the truck driver, Kevin Roper of Georgia, dozed off while driving the Walmart tractor trailer, allowing his large rig to slam into the Sprinter limo bus Morgan and six others were riding in. Roper is charged with vehicular homicide and four counts of assault by auto, and the criminal complaint against Roper stated that he had been awake for more than 24 hours at the time of the trucking accident.

Morgan suffered multiple broken bones in the accident including broken ribs, a broken leg and a broken nose and was listed in critical condition after the accident. He has since been released from the hospital to continue his rehabilitation at home. McNair, a comedy writer, was fatally injured and three others were transported to the hospital with injuries of various severities.

Walmart truck

The National Transportation Safety Board is investigating the 6-car pileup caused by the driver of the Walmart tractor trailer. During its investigation, the NTSB will review the driver’s log and fuel receipts to determine the driver’s activities prior to the accident and investigate all available facts to determine whether the driver was in violation of the rules regarding hours of service. Under Federal law, drivers can work no more than 14 hours for any shift and only 11 of those hours can be spent driving. Read the preliminary report on the crash from the NTSB here.

According to the lawsuit filed in federal court in New Jersey against Walmart by Tracy Morgan and others, Roper commuted from his home in Georgia to the Walmart facility in Delaware to begin his shift driving the Peterbilt truck-tractor and semitrailer combination vehicle. The limo bus in which Morgan and others were riding had slowed on the New Jersey Turnpike due to construction work and closed lanes on the Turnpike. The driver of the Walmart commercial truck apparently did not slow down and struck the rear of the limo bus. The lawsuit seeks damages against Walmart since Roper was an employee of Walmart and was operating the truck in the regular course of his employment.

Published on: July 8, 2014

Why Should I Sue Someone After a Car Accident in Kentucky?

by Sandra M. Varellas

In our Kentucky personal injury practice, we sometimes hear the question: I’m not the type to sue someone for injuring me, so why should I? There’s a short answer: that’s what insurance is for. People purchase insurance policies specifically to guard against the risk of being sued, and insurance companies expect to have to pay for losses. While insurers are not inclined to pay out claims easily, they do anticipate paying in the event that their insured customers’ liability for your injuries are proven. Moreover, Kentucky has a built-in protection against weak claims that should alleviate any possible anxiety you may feel about bringing a lawsuit.

Kentucky is a “no-fault” insurance state, which means that usually your right to sue someone for causing your injuries is already limited to those threshold instances set by statute. In order to sue in most motor vehicle cases, you must incur at least $1,000 in medical expenses or you must suffer a fractured bone, loss of a bodily function, disfigurement, loss of a body member, loss of a bodily function, a permanent injury, or death. “No fault” also means your motor vehicle policy will include coverage to pay the first $10,000 of your medical bills and lost wages in the event you are in a car accident; these benefits are available to you even if an accident is your fault. This coverage makes sure your medical bills are paid without delay and helps protect your credit rating.

The underwriting departments of insurance companies evaluate risk and rate an insurance company’s exposure to a lawsuit before an insured person pays a single premium. Insurance companies collect premiums from consumers based on their calculation of the risk of insuring that particular person. The risk analysis is somewhat similar to the analysis undertaken by a bank when it offers a homeowner a mortgage. Also, if an applicant purchases a homeowners’ policy, he or she will be asked about characteristics of the property, type of construction, square footage and more. Similarly, as you know if you’ve purchased auto insurance, an applicant is asked a variety of questions related to his or her vehicle, age, gender, the names of other drivers for the vehicle and geographic location in order to determine the premium to be charged. Continue reading

Published on: April 22, 2014

What Should You Do If An Insurance Company Wants to Settle Your Case in Kentucky?

by Sandra M. Varellas

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

Published on: February 18, 2014

Breach of Duty in Kentucky Car Accident Cases

by D. Todd Varellas

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.

Published on: October 30, 2013

Punitive Damages in Kentucky

by Sandra M. Varellas

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.

Published on: September 5, 2013

What To Do After Your Car Is Hit By A Semi Tractor-Trailer

by Varellas & Varellas

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.

Published on: August 20, 2013

Motorcyclists Suffered No Prejudice in Personal Injury Trial

by D. Todd Varellas

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.

Published on: August 6, 2013

How Quickly Should You File Suit After a Vehicular Accident With Injuries?

by D. Todd Varellas

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

Published on: July 30, 2013

When Are Parents Liable for their Children’s Car Accidents?

by D. Todd Varellas

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

Published on: July 18, 2013

What’s In a Name? Varellas Name Appears in the News With Various Spellings

by Sandra M. Varellas

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