BY MELINDA J. OVERSTREET
for Glasgow News 1
A judgment has ordered payments totaling roughly $22.5 million to multiple plaintiffs in a civil lawsuit that has been lingering for more than a decade in Barren Circuit Court.
On Oct. 8, 2012, one man died and three other people were seriously injured when a structure being used to build a retaining wall collapsed during the wall’s construction as part of a project to widen Ky. 90 east of Glasgow. Velma Decker, the widow of Kenneth Decker, 63, as well as John McIntosh, Jamie Groce, and Steve Nelson and his wife, Linda Nelson, sued a group of several employees of the Kentucky Transportation Cabinet Department of Highways who had varying levels of authority and responsibilities for the project.
The defendants named were Greg Meredith, the chief district engineer for the 10-county area that includes Barren County at the time of the collapse; Daryl Price and Kevin Gearlds, then transportation engineering branch managers; Thomas Lapham and Mark Love, the latter of whom is now deceased, then transportation engineering technologists; Ashley Graves, a transportation engineer supervisor; and Jon Lam, then the safety coordinator.
Decker, McIntosh, Groce and Steve Nelson all worked for VanMeter Contracting Inc., which was a subcontractor on the project. Scotty’s Contracting and Stone was the contractor. Scotty’s and VanMeter are third-party defendants in the lawsuit.
As Circuit Judge John T. Alexander described the “tragic highway construction accident” in his opening, “It has been vigorously litigated.”
The years passed, with various elements of the case being decided, some by higher courts and some by the local judge. For example, the question of whether the individual employees of the Transportation Cabinet had immunity due to their being state employees had gone to the Kentucky Supreme Court and back, and it was ruled they did not have immunity. Alexander ruled along the way that Scotty’s Contracting and Stone would be ultimately responsible for payment of any damages, due to language in their contract with the state that says they would reimburse for any judgments against them resulting from the project, said Mike Breen, attorney for the plaintiffs.
Then, in April 2021, Alexander granted a motion by the plaintiffs for the entry of a consent judgment and a consent judgment, assignment and forbearance was entered by agreement between the plaintiffs and defendants that the judge allowed. In this document, the defendants, who were represented by counsel provided by the state, agreed to accept liability in exchange for the understanding that the plaintiffs would not try to collect any damages from them personally. That then allowed pursuit of payment from other sources, Breen said. In November 2022, the defendants filed a notice “that they were no longer actively participating in the case,” and a one-day bench trial – before the judge only, no jury – took place in March 2023 to determine exactly what the damages were.
In his judgment entered Monday, Alexander summarized some of the testimony from the trial and the expert witnesses; explained how it was determined that the individuals named were responsible for collapse of the retaining wall that was under construction, e.g. ignoring safety requirements; and specified his findings with regard to each dollar amount determined as compensatory and punitive damages.
The judge allocated fault among the defendants in percentages as such: Meredith, Lapham and Price, 25 percent apiece; Gearlds and Graves, 10 percent apiece; and Love and Lam, 2.5 percent apiece.
Explaining where each person was at the time of the collapse, their injuries and other factors affecting the decision, Alexander determined the following compensatory damages totaling $12,583,729.90:
– $437,587 to the estate of Kenneth Decker for funeral expenses and lost earnings;
– $2 million to Velma Decker for loss of spousal consortium;
– $1,684,234.92 to McIntosh for past and estimated future medical expenses, lost earning capacity due to injuries suffered, and past and future pain and suffering;
– $4,730,084.98 to Groce for past and estimated future medical expenses, lost earning capacity and pain and suffering;
– $2,731,823 to Steve Nelson for past and estimated future medical expenses, lost earning capacity and pain and suffering; and
– $1 million to Linda Nelson for loss of spousal consortium.
The judge further found that an award of $10 million in punitive damages “is just and proper” and should be prorated among the plaintiffs.
The law allows for 6 percent interest, compounded annually, from the date the judgment is entered, and this was added to the judgment and is to be assessed until the total is paid, plus the plaintiff’s court costs.
Breen said the next step is for him to file a request asking the judge to order Scotty’s to make these payments.
“The clients are very grateful for a thoughtful and thorough opinion from the court and want to express their gratitude for that,” Breen said of his clients.
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