Kentucky Injury Law News

Garmer & Prather files lawsuit on behalf of Bob Evans servers in Kentucky, Indiana, and Tennessee

May 10, 2022 | by Garmer & Prather, PLLC

On May 9, 2022, Garmer & Prather and its co-counsel filed a lawsuit on behalf of Bob Evans servers in federal court in Ohio alleging violations of the federal Fair Labor Standards Act, the Kentucky Wages and Hours Act, and the Indiana Minimum Wage Law. The case covers certain Bob Evan restaurants in Kentucky, Indiana, and Tennessee.

Under both state and federal law, restaurants may pay their servers less than the $7.25 per hour minimum wage assuming the server earns sufficient tips to make up the difference. But that exemption from the minimum wage requirement applies only to work that is part of their “tipped occupation,” and does not include time spent working on tasks such as preparing or cooking food, washing dishes, running carry-out orders, working as a host/hostess, cleaning bathrooms, training other employees, etc. On the other hand, employers can take advantage of the tip credit and pay servers less than minimum wage for certain work that directly supports the tip-producing work, for activities like rolling silverware, refilling condiments, setting tables and bussing them, and cleaning floors in the service area, but only if that work takes up a limited amount of time. While there are nuances to the law, in general the employer must pay the full minimum wage even for that “directly supporting” work if that work occupies more than 20% of the server’s total time, or any stretch of more than 30 consecutive minutes.

In the case filed this week, the servers allege that (1) Bob Evans required them to do non-tipped work without paying the minimum wage of at least $7.25 per hour, (2) even when the non-tipped work was directly supporting the tipped work, it frequently took up more than the 20% of work time allowed by law or lasted more than 30 consecutive minutes, and (3) in some instances, the restaurant’s on-site manager told employees to clock in at a pay rate well above minimum wage, but long after the shift was over, Bob Evans’ management would log in to the system and retroactively and reduce their rate of pay to $2.13 per hour.

Kentucky Supreme Court reverses longstanding law protecting victims of wrongful death

December 20, 2021 | by Garmer & Prather, PLLC

There has been a major change in the law of damages in Kentucky for children (or others) who die as a result of negligence, and the change doesn’t help the injured person.

In Kentucky wrongful death cases, the estate of the person who died may recover damages for funeral expenses and the destruction of the dead person’s ability to earn money. W. L. Harper Co. v. Slusher, 469 S.W.2d 955 (Ky. 1971). The estate may also recover damages that the deceased person incurred before he or she died, such as pain and suffering and medical expenses. KRS 411.133. In many cases, though, especially when a death occurred suddenly, the bulk of the damages available to an estate is the loss of the ability to earn money.

Some juries have been hesitant to award damages for destruction of earning capacity when a child dies before he or she has started working. Until last Thursday, the law in Kentucky was that unless the child had some pre-existing condition that would have prevented him or her from earning money as an adult, the jury was required to award damages for destruction of earning power. In other words, as long as the child was a relatively healthy person before he or she was injured, if a jury determined a defendant was negligent and caused the child’s death but awarded $0 for destruction of earning capacity, it was an inconsistent verdict. Either the court had to order the jury to continue deliberations and determine a fair award, or the plaintiff was entitled to a new trial on the issue of damages only. That is, once liability was established in the first trial, all the jury could do in the second trial was award additional damages for destruction of earning capacity.

Federal Court awards $4.7 Million Judgment to Garmer & Prather Clients in Class Action Lawsuit Against Marketer of Fraudulent Health Insurance Policies

November 29, 2021 | by Garmer & Prather, PLLC

In a class action lawsuit, Senior Judge Joseph Hood of the U.S. District Court for the Eastern District of Kentucky in Lexington has certified a statewide class and entered judgments totaling $4,696,124 against Defendant The Aliera Companies, Inc., the creator and marketer of purported “health care sharing ministry” (“HCSM”) products. Aliera was founded by Timothy Moses and his wife and son in December 2015, the same year that Moses finished serving a six-year federal prison sentence for securities fraud and perjury.

HCSMs are organizations through which members share medical expenses among themselves. But HCSM plans must meet strict requirements in order to avoid being regulated as insurance products. For example, under federal law, an HCSM must have been in existence with members continually sharing health care costs since 1999, and under Kentucky law, all members of an HCSM must be members of the same denomination or religion. Since its inception, Aliera failed to comply with these requirements.

With this judgment, it is now established that despite the claims by Aliera that its health plans were “not insurance,” they were in fact insurance products as a matter of Kentucky law. Further, it is also established that the health insurance policies Aliera sold to customers as cheaper alternatives to traditional health insurance coverage did not comply with important requirements of Kentucky and federal insurance law, including requirements designed to protect consumers and ensure adequate funds were available to cover health care expenses.

Social Media Use During Litigation

February 23, 2021 | by Garmer & Prather, PLLC

These days, almost everyone will have a social media account during their lifetime. Consequently, social media has found its way into almost every part of modern life, including the courtroom. This is one reason why it is extremely important to monitor your social media accounts, especially if you are involved in litigation. Our team at Garmer & Prather can guide you through every step of your personal injury case, including how to handle your social media accounts.

The expression that, once something is on the internet it is there forever and anyone can find it, holds true for litigation purposes, too. You should assume that opposing lawyers and witnesses will look for your social media profiles. You should also assume members of the jury will explore your social media accounts, too.

At times, social media can be detrimental to your case, even if it was a seemingly harmless or unrelated status update or post. Consider this: You are involved in a case and are claiming serious lower back injury from a recent automobile collision. You probably know that you should not post about the owner of the vehicle that rear-ended you. However, last weekend you posted a photo of you and some friends enjoying a hike at a local nature trail. This seemingly innocent post can be misrepresented or misinterpreted by opposing counsel or a juror. They may not know that your physical therapist encouraged you to exercise to control your pain. They may simply conclude that the injuries you claim were not realistic.

You could become the victim of an improperly secured load

January 5, 2019 | by Garmer & Prather, PLLC

Like any other drivers here in Kentucky, truck drivers get distracted, fatigued and even impaired, but they still drive. When accidents occur, it is to these factors that you may attribute the crash.

This isn’t always the case, though. Truck drivers can do everything right behind the wheel and still cause you injury. They and others are responsible for the proper securing of their loads. If one has not properly secured a load, it can shift or even fall off the truck. In either case, you could suffer injuries because of the carelessness and negligence of someone else.

Securing a load is a top priority for everyone

Contact an attorney if you suspect medical malpractice

January 2, 2019 | by Garmer & Prather, PLLC

Nothing is guaranteed in medicine. Knowing that, how do you tell the difference between an ordinary bad outcome and medical malpractice?

Medical malpractice can occur under a variety of circumstances. It generally refers to mistakes that are made through a physician or medical provider’s negligence, which simply means making a mistake that an ordinarily cautious doctor or nurse would not make. Some common forms of medical malpractice include:

Prescription errors

Nursing homes now face financial penalties over patient care

December 20, 2018 | by Garmer & Prather, PLLC

Medicare, the federal insurance program that provides payments to many skilled nursing homes, is now penalizing skilled care facilities when too many patients end up admitted to hospitals over and over again due to avoidable issues. Many people — of all ages — end up in skilled nursing care for a time after surgeries, accidents and illnesses.

However, Medicare typically only fully covers 20 days of a patient’s stay, after which other insurance programs like Medicaid gradually take over. Since the profit a facility makes on a patient decreases the longer the patient is there, facilities can be in a hurry to discharge patients in order to maximize the profit made on each bed.

Patients sent home before they are ready often end up right back in the hospital again. In 2016, 11 percent of skilled nursing patients ended up back in a hospital due to avoidable problems within 30 days of their discharge from a facility. That’s a huge signal that something is wrong with the way skilled nursing homes operate.

Kentucky court rules medical review panels unconstitutional

November 28, 2018 | by Garmer & Prather, PLLC

On Nov. 15, 2018, the Supreme Court of Kentucky struck down the Medical Review Panel Act.

The Act, which was pushed into place through partisan support in the legislature at the urging of groups like the Kentucky Association of Health Care Facilities and the Kentucky Medical Association, required plaintiffs who wished to pursue a medical malpractice suit against a doctor, hospital, nursing home or other health care provider to submit the case to a panel for review.

Each panel consisted of three medical professionals who would — eventually — vote on whether they believed the medical provider in a case violated the applicable standard of care. While plaintiffs could proceed to court without the panel’s approval, the panel’s decision could be used as evidence in the case.

Kentucky ends panel system for medical malpractice

November 20, 2018 | by Garmer & Prather, PLLC

On November 15, the Kentucky Supreme Court struck a blow on behalf of victims of medical malpractice across the Commonwealth. The Court struck down a much-decried law that forced potential litigants to go through a lengthy and cumbersome review system by finding the law violated the Kentucky Constitution.

Many malpractice and personal injury attorneys have been vocal against the 2017 law that set up the review panels for the very reason that the state’s top court pointed out: It was a system that largely denied people free and equal access to the courts.

That was precisely the intention of the law in the first place. The Kentucky Medical Association was one of the chief proponents of the 2017 law — which was put in place supposedly to stem the tide of “excessive” malpractice claims. Nursing homes, hospitals and physicians largely supported the law because it made actually filing a claim for malpractice a feat of endurance for any claimant.

The rising numbers of fatal trucking accidents

November 6, 2018 | by Garmer & Prather, PLLC

No one wants to be involved in a truck accident, least of all a trucker. Unfortunately, industry demands and the pressure from employers to make deliveries on time — despite all risks — can push a truck driver to make poor decisions that put his or her life, and the lives of others, on the line.

According to data collected through 2016, the most recent year available for study, fatal accidents involving trucks are on the rise. While fatalities involving big rigs have yet to reach the level they were in 2005 (when they were at an all-time high), they’re still 29 percent higher than they were in 2009. If the trend continues, the number of fatalities may eventually exceed those 2005 levels.

Causes