Transportation Cabinet Argues Exclusive Remedy Bars Wrongful Death Suit

Wednesday, February 24, 2016 | 0

The Kentucky Transportation Cabinet contends that the exclusive remedy of workers' compensation bars a lawsuit filed by the families of a worker killed and another who was injured when a retaining wall collapsed in 2012 during a roadway reconstruction project, according to a report in the Glasgow Daily Times.

The estate of fatally injured worker Kenneth Decker and injured worker Steve Nelson, along with his wife Linda, contend that negligence by Transportation Cabinet and its employees caused Decker's death and Nelson's injury. They point to citations issued to the Transportation Cabinet by the U.S. Occupational Safety and Health Administration after the accident as evidence.

The Transportation Cabinet's attorney, Thomas Kerrick, contends that the suit is barred by the Workers' Compensation Act, despite his opposing attorney's "creative" strategy to get around exclusive remedy by pointing to the safety violations.

Even if the Transportation Cabinet is not immune, the Transportation Cabinet's actions did not cause the accident. He noted that a subcontractor on the project, Vanmeter Contracting Inc., had admitted that the collapse was caused by the failure of anchor bolts placed by its employees.

Kerrick and the families' attorney, Mike Breen, argued over a motion to dismiss the case and other matters before Barren Circuit Court on Friday, according to the Daily Times report. Judge John T. Alexander did not rule on the motion.