Wrongful Death

Published on: January 27, 2011

Kentucky Pedestrian Killed While On Expressway After Car Breaks Down

The Victim, age 56, of Louisville, Kentucky died Monday night due to injuries he sustained after his car broke down on the expressway, and he was attempting to flag down help. The Victim was stuck by another vehicle on the ramp from Phillips Lane and Louisville Airport. While no charges have been pressed against the other driver, fault in this case is still undetermined. The Victim leaves behind a wife and children. Vandeveer’s family has suffered a huge lose, for which the Kentucky Courts will allow an avenue for recovery.

The Victim’s family will need to setup an Estate through Probate, which will empower them to handle wrapping up his affairs and transferring his assets to his wife and children. Additionally, the Estate will be in a position to seek recovery of medical bills, funeral bills, loss of consortium claims, and a claim for a lifetime of lost wages/earning potential from both the other driver & the other driver’s insurance company and from the Victim’s own insurance company. This type of action is known as a wrongful death claim. While the legal system cannot bring the Victim back or lessen the pain his family is experiencing, it can provide a recovery financially for the family so they can be assisted in moving their lives forward and provide the money that they have lost as a result of this tragedy and the money that the Victim would have earned for the family over his lifetime.

Fault isn’t an issue at this time, and unless a person is 100% at fault, Kentucky law allows for a recovery of damages on a percentage basis. This is known as comparative fault under Kentucky Law. For example, under comparative fault and Kentucky law, a person injured or killed could bear 80% fault for an accident and the other party only bear 20%, and the party injured or killed who bore 80% fault could seek recovery of the 20% from the other party and their insurance company. Under such a theory, if the damages were calculated at $500,000.00 from an accident where a person was injured or killed, the recovery allowed under such an 80/20 split of fault would allow the injured or killed party to recovery $100,000.00.
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Published on: January 23, 2011

Jefferson County Kentucky Prosecutors Appealing Ruling In DUI Case: DUIs Cause Serious Injures & Deaths Everyday Across Our Country.

By Ackerson Law Offices

At 5:00 a.m. in January 2010 in Louisville, Kentucky, police were called to the scene of a parking lot where a man was passed out asleep in his truck. The keys were in the ignition, the truck was running, the man’s foot was on the accelerator, one hand was on the steering wheel, the other hand was on the gear shift, and the man was unconscious. The police officers reported hearing the engine running loudly from more than a block away, due to the truck being in park but having the gas pedal stepped on by the unconscious man. At the scene, the police had to break out the window because the man would not wake up and respond to the officers, and officers were afraid the vehicle would either caught on fire or jump into gear and propel itself through the parking lot.

The man admitted to police that he had been drinking at 4th Street Live and the breathalyzer given at the scene showed the man was nearly 3 times the legal limit of impairment. He was dangerous and could have injured or killed someone in the state he was in and driving a car.

However, in October 2010, the Jefferson District Court Judge ruled that the man should not have been charged with DUI, because he was asleep and did not have physical control of the vehicle.

Judges in Kentucky have relied upon a 1986 Kentucky Court of Appeals Case when dealing with DUIs and facts similar to this case. In that Court ruling, the Appeals Court stated that there are four factors to consider when the intoxicated person is asleep in the vehicle, as to where a DUI has been committed. The factors to consider if the person should be charged with DUI are:
(1) Whether the suspect in the vehicle was awake or asleep;
(2) Whether the engine of the suspects vehicle was running;
(3) The vehicle’s location and all circumstances explaining how the vehicle got there; and (4) The intent of the person behind the wheel.
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Published on: January 21, 2011

Kentucky Cell Phone Texting Laws Meant To Prevent Accidents

By Ackerson Law Offices

Kentucky has passed a law and now is enforcing it that prohibits cell phone texting while driving. The law is designed to make it illegal for drivers to text while driving, which takes drivers’ hands off the steering wheel of the car and takes drivers’ attentions off of the road. Cell phone usage, including texting, causes many accidents in Kentucky. The use of these devises while driving distracts drivers and seriously diminishes the driver’s control over their vehicle. It may seem like a small thing to use a cell phone or text while driving, but the reality is it causes major accidents which injury and kill people. Drivers who text or take their attentions off of the road can injure or kill pedestrians, including people at crosswalks, motorcyclists, bike riders, and drivers of other vehicles.

Kentucky’s law prohibiting texting while driving is limited in its effects due to the problems in enforcing it, which include only a small fine for getting caught. Because the consequences of having an accident and seriously injuring or killing others are so substantial, the law and its enforcement needs to be strengthened.

The State of Tennessee, which also has laws outlawing texting while driving, has begun to have special patrols designed as “text patrols” which use unmarked vehicles to specifically watch for and issue tickets to those drivers texting while driving.
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Published on: January 20, 2011

Kentucky Wrongful Death Lawsuit Money: Who Does the Money Go To?

By Ackerson Law Offices

In Kentucky, wrongful death lawsuits are brought by the Estate of the deceased person. Therefore to even have the authority to bring a wrongful death claim, an Estate must be setup through the Probate Court to empower a legally authorized representative for the Estate to handle the matters. Even though the wrongful death suit is started through the establishment of an Estate in Probate Court, the actual monetary settlement or award does not fall under the probated Estate. Even if the decedent had a will, the monetary funds from the wrongful death case are controlled by Kentucky Statute (KRS 411.130) which directs who is to receive the settlement and awarded funds.

KRS 411.130 directs that the funds from a wrongful death claim go to:
(1) If there is a living spouse, but no children, then 100% to the surviving spouse;
(2) If there is a surviving spouse and surviving child/children, then 50% to the surviving spouse and 50% is given equally to any surviving child/children;
(3) If there is no surviving spouse but there are surviving children, then the surviving children split the money equally;
(4) if there are no surviving spouse nor surviving children, then the money is split between the living parents of the decedent; and (5) if the decedent died without a wife or kids, and his/her parents are all deceased also, then the money would go to the Estate and be distributed through such to the right remaining heirs.

Additionally, there are a couple of Kentucky Statutes that deal with parents which have abandoned their children, as related to KRS 411.130. These statues are referred to as Mandy Jo laws, and deal with cases where KRS 411.130 would instruct money to go to the surviving parents, but not if the parent had abandoned the child and not had a role in the child’s life. Under the Many Jo laws, the courts treat the parent who was not involved in their child’s life as having not survived the child and therefore the wrongful death monies would pass to the next legal heir.
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Published on: January 17, 2011

Fort Knox Man Charged With Murder & DUI After Fatal Car Crash

By Ackerson Law Offices

A tragic Kentucky car crash has killed a woman in Louisville. Martha Diaz, age 40, of the 5000 block of Quail Court in Louisville, Kentucky has died from injuries she sustained in an automobile accident on Sunday. The fatal crash was caused by Francisco Balderez, age 26, after the BMW he was driving went off the road and hit a sign and a utility pole early Sunday morning on the Greenbelt Highway near Lower River Road. At the time of the crash, Balderez’s blood alcohol level was reported to have been .211, which is nearly 3 times the legal limit. Balderez has been charged with one count of murder, one count of first degree criminal mischief, one count of possession of a controlled substance, and DUI. Balderez was taken to UL hospital with non-life-threatening injures.

Further details of the accident are pending.

This is clearly a case where Balderez should not have been driving and is responsible for the death of Diaz. Diaz’s Estate will have a wrongful death claim against Balderez for the role he played in Diaz’s death. Kentucky wrongful death laws will allow Diaz’s Estate to seek damages from Balderez, including his automobile insurance carriers. Additional investigation into where Balderez was coming from may shed light on other persons who may share some fault in this tragic accident. In cases where alcohol was supplied to the drunken driver when it should not have been, due to their already known intoxicated state, either at a party or a bar, those persons or businesses can become liable to the Estate of the decedent for the drunken condition which caused the accident.
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Published on: January 17, 2011

$2 Million Dollar Settlement Reached In Police Shooting

By Ackerson Law Offices

Fairfax County, Maryland has agreed to a $2 million dollar settlement from an unarmed man being shot and killed by police. In 2006, a Fairfax County police officer shot an unarmed man in front of his townhouse. The man was being arrested by a SWAT team for betting on football games when the officer claimed his gun accidently discharged and killed the man. The police officer was never charged with a crime, and the prosecutor’s office deemed it an accidental shooting.

This type of case here in Kentucky would be a civil right violation and negligence action. Such a case in Kentucky where a person was wrongfully shot and killed by a police officer would be a wrongful death lawsuit brought by the Estate of the deceased, where the Estate would be able to claim damages from the medical bills related to the shooting and the lost lifetime earning capacity of the deceased. Additionally, if the decedent had a wife or children, then there would be a claim for loss of consortium by such family members.

In Kentucky, in wrongful death suits, the damages that can be sought will likely reach over a million dollars due to the claim for a lifetime of lost wages.