Mesothelioma Cases at Florida Tile

Private Disability Benefits for Those With Mesothelioma

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About a third of us have private disability insurance as an employment benefit, while many others purchase it on their own. You should qualify for benefits if you have mesothelioma and suffer from its side effects. You must go through the claims process first, and if you’re turned down, you can challenge the decision.

Do You Meet the Policy’s Definition of “Disabled”?

Private disability insurance partially replaces your income if you can’t work. Compared to Social Security Disability Insurance (SSDI), these policies usually have broader definitions of disability. You must be totally disabled and unable to perform any job to get those benefits. Depending on your policy, you may have a lower barrier to overcome.

Definitions vary, but these are the three most common:

  • “Own occupation”: Policyholders qualify if they can’t perform the duties of their particular occupation
  • “Own occupation” with time limits: You can’t do your job for a limited time. If you still can’t perform your job after this time frame (usually one to five years), you must show you can’t perform “any” occupation, which is the SSDI standard
  • “Any occupation”: To be awarded benefits, you must show you can’t perform any job, like SSDI

Another reason private disability coverage is better than SSDI is that the benefits are usually greater. There’s a relatively low cap on SSDI benefits, while a personal policy may give you about 70% of what you were paid when your disability started.

Can You Prove You’re Disabled?

Filing for benefits requires submitting proof that you meet the policy’s definition of disability. Depending on your insurer, you may be able to apply over the phone, through the mail, or online.

You and your employer will have forms to fill out. Your physician will also have paperwork to complete and provide copies of medical records backing up your claim. The approval process is quick. You should receive a response in a few weeks to a little more than a month.

The parties involved have different information to provide:

  • You: You’ll provide documents providing details of your condition, its degree, and its impact on your work. You will also provide contact information, where you worked, income sources, the identities of your healthcare providers, information about your health insurance, and other benefits you may receive
  • Your doctor: Should show you meet the policy’s disability definition. They must provide a lot of information, including your diagnosis, treatment history, level of impairment, and the doctor’s opinion on whether you’re able to return to work
  • Your employer: They describe what you did, your pay, how your disability affects your ability to work, and what, if any, other benefits you receive. There may be a checklist of tasks you can or cannot perform, and the insurance company will want to know your last day of work

Your policy probably requiresyou to apply for SSDI benefits. If awarded, their amount will be deducted from your private disability benefits. If they’re denied, which is unlikely, you should get these personal benefits in full.

If Your Claim’s Approved, You May Need to Wait for Benefits

If your claim is approved, there may be a delay before your benefits start. Your policy probably has a 90-day “elimination period,” which begins the day you become disabled. Your benefits may be delayed depending on how long you waited to file your claim and how long the insurance company took to decide.

Payments may last until the benefit period ends, which for long-term disability insurance can last from two years to the time of your death.  

If the Company Rejects Your Claim, You May Appeal Their Decision

If your claim’s rejected, there’s a good chance the insurance carrier will say it’s because you:

  • Didn’t meet the policy’s disability definition
  • Misrepresented something on your initial application when you bought the coverage
  • Are claiming disability for an illness that’s excluded from coverage (such as a pre-existing condition)

Their denial may be based on something simple you can resolve. They may want more medical records or claim you didn’t seek treatment before applying for benefits.

Before you file your appeal, get a copy of the insurance company’s information about you. If there are mistakes, you can correct them. You could file your internal appeal with any information or documents they claim are missing. You may have grounds to appeal through the courts if your internal appeal is denied.

Call Us Today For A Free Mesothelioma Lawsuit Consultation

In addition to disability insurance benefits, you may qualify for compensation from the asbestos industry. If you or someone you love has mesothelioma or another asbestos-related illness, Satterley & Kelley can help. Call our Louisville office at 855-385-9532 or complete our contact form to schedule a free initial consultation.

Quality of Care

Quality of Care Goes Down, Early Deaths Go Up, After Private Equity Buys a Nursing Home

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If you or a loved one will be living in a nursing home, you want to pick the one you trust the most. Though every facility is unique, nonprofit nursing homes generally provide better care than those run by businesses. This is especially true when the owner is a private equity investment firm, according to a study released in 2021.

Researchers from the Wharton School of Business at the University of Pennsylvania examined the impact on residents of private equity (PE) investors buying nursing homes. The study states:

  • Resident care declined
  • The number of employees who cared for residents went down
  • Short-term mortality increased sharply
  • Nursing homes charged more for their services

The data they looked at covered 18,485 nursing homes (1,647 bought by PE) from 2000 to 2017, caring for about 7.4 million Medicare patients.

What is Private Equity?

Private equity firms buy companies, medical practices, and nursing homes. They make changes so they’re more profitable and usually sell them in a short time frame. The money to make the purchases comes from outside investors and loans.

What Costs Do PE Firms Add to Nursing Homes?

Nursing homes have low profit margins, high fixed costs, and are tightly regulated. These issues typically make them unattractive to investors, but that’s not the case. After PE buys a nursing home, the income and overall costs generally stay the same, but the costs are different. Less money is spent on nursing staff (their salaries and benefits are about half of a facility’s expenses), and more money is spent in ways that benefit investors.

Organizations bought by PE are usually sold a few years later, so the emphasis is on quick and deep cost-cutting, and increasing profitability, to make it attractive to potential buyers.

There are three added costs related to PE profits and tax-limiting strategies:

  • Monitoring fees: The PE firm charges the entity owning the nursing home fees for managing the operation. These fees rise dramatically after a PE purchase
  • Lease payments after a nursing home’s real estate are sold to generate cash, often to a business entity related to the PE firm: A nursing home often has multiple assets, including the building and the land it’s on. The new owner can sell these assets to generate cash that goes to investors, but the nursing home has new costs – lease payments to other entities who own the building and land. If the nursing home operation fails, the company still owns the real estate, which it can sell or lease to the building’s next tenant
  • Interest payments on debt: On average, post-purchase interest payments triple after PE takes over a nursing home. Nursing homes are generally bought through a leveraged buyout. The investment firm gets a loan, buys the facility, then puts the loan on the nursing home’s financial accounts, making it responsible for the payments. These payments decrease the facility’s cash flow and limit its ability to cover costs or invest in improvements

Due to these new costs, cash on hand declines by about 38% after a buyout. The amount of cash a nursing home has increases right after it’s purchased but eventually turns negative. As a result, a nursing home is less equipped to manage unexpected costs, like buying personal protective equipment during the COVID-19 pandemic.

How Are These Costs Covered?

Cutting payroll provides the most money. Though overall income is the same before and after PE buys the operation, payments from Medicaid and Medicare generally increase by 19.5%. This frees up cash but results in residents getting worse care.

The study found PE ownership leads to a 3% decline in hours by frontline nursing assistants per patient-day and an overall staffing cut of 1.4%. The number of registered nurses increase slightly.

“The increase in RN staff hours does not compensate for the decline in lower-skilled nurse hours because RNs account for a small fraction of all staff hours,” according to the report.

Nursing assistants provide the vast majority of time and effort spent on residents, including mobility assistance, personal interaction, personal hygiene, and cleaning to minimize infection risk and ensure sanitary conditions.

How Do These Actions Harm Residents?

Researchers estimate that PE ownership will increase the short-term mortality of Medicare patients by 10%. The report states, “In the context of the health economics literature, this is a very large effect.” For the 12 years under study, that comes to about 20,150 premature deaths caused by management changes due to PE ownership.


They found these increased deaths were among older patients who were relatively healthy with low disease burdens. A small fraction of residents, those younger but with more healthcare problems, lived longer.

Some of the other impacts of these staffing decisions include:

  • The use of antipsychotic medications increases by about 50%. This is consistent with insufficient staff because these drugs can be used as a chemical restraint. If residents are heavily medicated, they do less and require less supervision. The use of these drugs by nursing home residents is discouraged because it increases their mortality rate
  • Resident mobility declines as fewer staff push wheelchairs or supervise people who have difficulty walking safely
  • Pain intensity increases as injuries increase, and fewer people provide pain medication

When private equity takes over a business, if the quality of the products or services declines or the prices go up, typically, consumers have other options, so they’ll spend their money elsewhere. With limited nursing home options, if PE management makes a nursing home unsafe, few residents can quickly leave for another facility. This makes mismanagement all the more deadly.

Speak To A Nursing Home Injury Attorney Today

Our lawyers will fight for your loved one to obtain the respectful, competent nursing home care they deserve and compensation for their injuries. To reach our Louisville office to set up a free initial consultation with an experienced lawyer at our firm, call 855-385-9532 or contact us online.

Natural Disasters and Mesothelioma Patients

Dealing with Natural Disasters as a Mesothelioma Patient

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With the weather getting wilder, natural disasters have been on the news—and in our daily lives—much more frequently. Many governmental and nonprofit organizations have actively encouraged people to prepare for these events, and even put out checklists to help the average person effectively protect themselves and their families in the event of a natural disaster.

Many of these guides include basic Emergency Preparedness items, such as:

  • Having a physical evacuation and/or shelter-in-place plan from your home, and knowing the scenarios in which it is safer to evacuate as well as those in which it is safer to shelter-in-place (in case you are unable to access official instructions).
  • Having a plan to communicate if phone lines go down (such as social media or messaging apps).
  • Keeping all official or important documents in one accessible place, ideally in a waterproof bag or folder, and having digital copies of all documents readily accessible online.
  • Keeping an emergency natural disaster supply kit in your home. These can be purchased readymade or assembled individually. Good things to include in these kits include non-perishable food, water, cash, a flashlight, a first aid kit, prescription medications, masks, hand sanitizer, a whistle or airhorn, local maps, and spare eyeglasses.

These are all excellent tips, and plans that have pieces of advice like the ones above are a great place to start.

However, if you are a mesothelioma patient or loved one, these checklists may not be sufficient. Mesothelioma patients have many specific needs that aren’t usually covered by standard disaster preparedness planning tools. That’s why we put together this list of supplemental disaster preparedness tips that focus specifically on the needs of mesothelioma patients, so that you can get as close as possible to covering all necessary bases.

  • Discuss alternate treatment plans with your team. If you live in an area that is especially prone to natural disasters, or if you have a treatment or procedure scheduled during a forecasted emergency, it is wise to cover all bases and identify alternate treatment plans. That way, if your planned treatment becomes impossible due to a weather event, you may be able to schedule an appointment to get your treatment or procedure at a facility outside of the potential disaster zone.
  • Make a plan with your medical team to communicate and coordinate continued care: It is always a great idea to have a clear line of communication between yourself and your mesothelioma care team. This is especially essential in the event of last-minute emergencies. With an accessible line of communication open, you will be able to contact your care team and get information and advice about how best to protect yourself and continue your treatment in the face of a natural disaster.
  • Have your treatments and medications documented, along with important numbers. Make sure to have a “cheat sheet” about your mesothelioma care with you at all times. This can be a piece of paper or booklet (ideally laminated or otherwise waterproofed) with your specific diagnosis, the names and contact information of your care team, and your full list of medications. You should also include a full copy of your insurance information, and information about clinical trials you’re participating in (if applicable).
  • Try to get extra medication refills. If a natural disaster is forecasted, try to have your doctor send you additional prescriptions or refills of your medications so that you can stock up. While this may not be possible for all of your medications, it is usually helpful to at least have extra refills on file at a chain pharmacy that can be refilled outside of the disaster area if need be.Mesothelioma patients should always keep their medication doses on schedule if possible, and having an extra supply may become necessary depending on the scope and duration of the emergency event.
  • Have additional safety supplies for group shelter scenarios. In some cases, people are instructed to evacuate to group shelters in the event of a natural disaster. In case of such an evacuation order, you should prepare necessary PPE in order to keep yourself as safe as possible from COVID-19 and other contagions, which can be especially harmful to mesothelioma patients.Consider having a store of PPE on hand, including alcohol-based sanitizer, high-quality masks and/or respirators, bottled water, and disposable medical gloves.
  • Contact the Cancer Information Service: The CIS has resources available to mesothelioma patients going through a natural disaster. They can help with disaster prep, can give updates on potential closures and re-openings of treatment centers, and can help organize and provide references to alternative treatment centers if needed. They can be reached toll-free at 1-800-4-CANCER (1-800-422-6237).

Are you or a loved one looking for more information about mesothelioma? Call (855) 385-9532 to learn more.

Talc Lawsuit

New Ruling Against Johnson & Johnson Puts Thousands of Asbestos Cases Back in Motion

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For those following the J&J asbestos cases and associated bankruptcy, a recent new development has changed the playing field in significant ways.

To catch up readers who may not be familiar with the case, here are the basics:

Asbestos Contamination and Initial Lawsuits

  • J&J produced asbestos-contaminated talcum powder products for many decades—and were allegedly aware of the contamination. Johnson & Johnson’s talcum powder products, including baby powder and Shower-to-Shower powder, consistently tested positive for asbestos contamination since at least the 1950s. Internal J&J documents indicated that the company was aware of this and continued manufacturing the products regardless, even after the dangers of asbestos became abundantly clear around the late 1970s.
  • Many tens of thousands of people who were exposed to asbestos via Johnson & Johnson products have developed ovarian cancer or mesothelioma.  Medical research has causally linked the use of asbestos-contaminated talcum powder to both conditions.
  • Thousands of lawsuits have been filed against J&J for damages by cancer patients and their families. Many victims who were exposed (or had their loved one exposed) to asbestos via a J&J product have filed lawsuits against the company for damages. Approximately 50 of these lawsuits have gone to trial so far, resulting in billions of dollars in jury verdicts against J&J. There are nearly 40,000 similar suits currently pending.

J&J’s Bankruptcy Scheme

  • To avoid liability, J&J utilized a scheme called the “Texas Two-Step”. While some believe that J&J went bankrupt from their lawsuits, the truth is much more complicated—and much more unfair to the people who have been harmed. In fact, Johnson & Johnson never went bankrupt, and continues to operate as a very lucrative company worth hundreds of billions of dollars, if not more, to this day.

To avoid having to fairly compensate their victims and creditors, J&J utilized a procedure called a “divisive merger” (also known as the “Texas Two-Step”) in 2021. This involved forming two new companies: one with all of the assets, the product line, and nearly all business J&J is involved with, which would continue  operating as usual, and the other, LTL Management, with all of the talc liability.

LTL Management was immediately moved to North Carolina, a jurisdiction considered more favorable to corporate interests, and then declared bankruptcy a few days later. The North Carolina bankruptcy court ultimately moved the case to New Jersey, where Johnson & Johnson is headquartered.

  • As a part of the ensuing “bankruptcy” proceedings, all of the lawsuits against Johnson & Johnson were frozen as of October 2021. When a company declares bankruptcy, all lawsuits against it are immediately paused (or “stayed”). As a result of the legal maneuvering involved in the “Texas two-step”, when LTL Management declared bankruptcy, all of the nearly 40,000 asbestos lawsuits filed against Johnson & Johnson were effectively frozen.
  • Johnson & Johnson submitted a bankruptcy plan, which was granted preliminary approval. This “bankruptcy” plan would not involve J&J functionally going bankrupt at all. Rather, it would involve funding LTL Management only a certain amount, which would be divided amongst its creditors (i.e., the people with asbestos lawsuits against J&J), thereby getting rid of the lawsuits and all future lawsuits and allowing J&J to continue operating as usual without suffering any of the normal consequences of declaring bankruptcy.

The Update

  • In January of 2023, Johnson & Johnson’s bankruptcy plan was rejected by the U.S. Court of Appeals for the Third Circuit. A group of asbestos claimants asked the bankruptcy court handling the case to dismiss the bankruptcy or lift the stay on lawsuits against J&J, so that people pursuing those lawsuits could have their day in court.

The bankruptcy judge handling the case in New Jersey rejected that request, with the reasoning that claimants would get a much more expedient resolution in bankruptcy court. He argued that since there were so many lawsuits and only 50 had gone to trial so far, it would take far too long to do it any other way.

However, the claimants disagreed with this ruling, and went straight to the Third Court of Appeals to appeal it. After hearing their appeal, the Third Court of Appeals ruled in the claimants’ favor, saying the bankruptcy should be dismissed. The Court of Appeals further found that the bankruptcy was not filed in good faith, since the company was not actually in financial distress (in part because the actual parent company, J&J, was not in financial distress).

  • This means that all previously frozen asbestos liability lawsuits against Johnson & Johnson are back in motion. As a result of this massive win for claimants, the cases will be returned to the court system, and those harmed by Johnson & Johnson will be able to pursue their claims individually, as had been done in the past.

Barring further legal interference by Johnson & Johnson, it is expected that by spring or early summer of 2023, all those who filed lawsuits against Johnson & Johnson for asbestos exposure damages will be able to have their day in court.

The attorneys working hard on behalf of those who have been harmed by asbestos exposure via Johnson and Johnson talcum powder products are thrilled with this development. They look forward to helping their clients get the justice they deserve and are entitled to by our tort system and the Seventh Amendment of the Constitution.

Have you or a loved one been damaged by exposure to asbestos-contaminated Johnson & Johnson products? Let us fight for you.

Contact the Law Firm of Satterley and Kelley PLLC at (855) 385-9532 to learn more.

Social Security Disability Benefits

I Have Mesothelioma. Do I Qualify for Social Security Disability Benefits?

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Applicants with the most debilitating conditions, including mesothelioma, are typically awarded benefits without going through the process that usually determines eligibility. If you have sufficient documentation of your diagnosis, it shouldn’t be a problem. You should bypass the process used for most applicants and be awarded expedited benefits.

What are Social Security Disability (SSDI) and Supplemental Security Income (SSI) Programs?

SSDI and Supplemental Security Income (SSI) programs help those meeting benefit requirements.

  • SSDI pays benefits to you and certain family members if you are considered “insured.” This requires that you worked long and recently enough while paying Social Security taxes on your earnings
  • SSI pays benefits to those considered disabled and who have limited incomes and resources. It allows people who have been unemployed long term or who “worked under the table” and didn’t pay Social Security taxes on their wages to receive disability benefits

There are different qualifications, but the medical requirements are the same. If you pass them, you should receive monthly benefits if your medical condition’s expected to last at least one year or cause your death.

What is the Compassionate Compliance Listing?

The Social Security Administration (SSA) gets more applications for disability benefits than it can comfortably handle. Severely disabled applicants waited for extended periods for their application to be decided while those less afflicted filled the system.

The agency created the Compassionate Compliance Listing to cut some of the backlog and provide benefits to those most deserving. If an applicant’s condition is on the list, the application gets a shortcut to approval. Decisions would be made in weeks, not months or years. This listing includes pleural, peritoneal, and pericardial mesothelioma.

Typically applicants need to establish their diagnosis and how it prevents them from performing any paid work for at least a year to get benefits. That’s not the case if you have mesothelioma.

How Do I File for Benefits?

Satterley & Kelley, PLLC, can help you through the process. You’ll get benefits faster if you take your time and provide the necessary information and documentation with the first application instead of re-filing applications and filling in gaps. A complete application has a better chance of approval.

You can apply online, on the telephone, or at the local SSA office. You can start the online application, stop, and start again later. The SSA provides this Starter Kit so you can learn what information is needed. Part of it is a medical and job worksheet to fill out.

No matter how you file for benefits:

  • Thoroughly answer all of the questions
  • Make detailed explanations and avoid general answers
  • Submit any relevant medical evidence. Your oncologist should be familiar with what the SSA is looking for both in the types of documents and the information on them

Though the SSA will want a lot of information, don’t be intimidated by filing for benefits. If you have mesothelioma and take a systematic approach to the application, the information, and the documents being sought, you should be awarded benefits. If not, we can solve problems with the application, and the decision can be appealed.

Get Boots on The Ground Working For You

At Satterley & Kelley PLLC, we aim to take action in asbestos exposure cases. We help victims and their families in whatever way we can. You may have a valid compensation claim if you’ve been diagnosed with an asbestos-related disease. Don’t hesitate to contact us to discuss your case in a free initial consultation.

To schedule an appointment with the experienced mesothelioma attorneys at our firm, call 855-385-9532 or contact us online.

Train Collision and Train Derailment

Train Collision and Train Derailment Injury Cases (Podcast)

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Paul Kelley from the Satterley and Kelley personal injury law firm talks about train-related injuries. He explains the types of injuries that can be caused by derailments and collisions. Then, he outlines who’s liable and what to do if you’ve been injured.

John Maher: Hi, I’m John Maher. I’m here today with Paul Kelley. Paul is a partner with the Kentucky Personal Injury Law Firm, Satterley and Kelly, which has over 30 years of collective experience in handling personal injury and wrongful death claims. Today we’re talking about train collision and train derailment injury cases. Welcome Paul.

Paul Kelley: Hey, John. How are you doing today?

Do You Have a Case If You’re Injured as a Result of a Train Derailment?

John: Good, thanks. Paul, you know a significant train derailment has been in the news lately in Ohio. If you’re injured as a result of a train derailment, do you have a potential case?

Paul: The answer is possibly. Facts of the derailment or the collision always have an impact on whether or not there’s a case. When we’re talking about a derailment, you’ve got two typical situations that occur.

One, you’ve got human error on the part of the engineer who’s operating the train, or you have equipment problems. Maybe there’s a problem with the track, maybe there’s a problem with the train itself. Maybe there’s a problem with some of the switch material or mechanisms that switch tracks. There’s all kinds of potential possibilities for what causes a derailment.

Typically speaking, if a train derails and it somehow causes an injury, whether in some way the train came into contact with a person or a vehicle that a person was riding in or there was a chemical exposure, which I think is what’s occurred more recently and people get sick as a result of that, absolutely there is a potential claim there.

Railroads are not exempted or immune from liability as a result of their stature in this country. If they do something and their negligence or a defective product associated with the train or any of those things that I mentioned, cause an injury, you absolutely have a case. How good that case is, of course, is always going to depend on the injury and the facts of the case and how the derailment occurred, but it’s certainly something that’s worth pursuing.

Who Is Liable?

John: All right. Who do you have a case against? Who could you recover from as if you’re injured as a result of a train derailment?

Paul: Most likely you’ll have a potential recovery from the train company itself. I won’t name any names because that’s not appropriate for what we’re doing today, but there’s numerous train companies that are out there in the country and if it happens to be from human error because the engineer or the conductor didn’t do what they were supposed to do, then you’d have a case against the train company itself.

You could potentially have a case against the operator of the train so the individual in charge. They’re an employee of the company and so that liability is kind of intertwined a little bit, but certainly you have a case against both of them.

As I mentioned before, sometimes train collisions or train derailments can be caused by a defective product. It could be a brake failure, it could be a defect with the rails, it could be a defect of warning lights, it could be broken handrails, it could be the result of communication equipment that failed. In those instances, it’s not just the train company that could be held responsible. It could be the manufacturers of those companies that could also be held responsible if it can be proven that those defects or that there was a defect of those products that caused or contributed to the collision or to the derailment. That just has to come from investigation.

I mean, when a derailment occurs, all we know is that it happened. We know something went drastically wrong. I would contend that the derailment occurs, it’s not just some odd accident that we look the other way and say, okay, well hopefully it’ll turn out better next time. I mean, something went wrong, somebody was negligent. It was the result of a defective product and so when these things happen, we have to investigate.

That comes in the form of interviews of the parties that were involved, witnesses who saw the derailment occur. There’s something called the black box on these trains and I’m sure everybody knows what the black box is, but it’s electronic data that can provide some information. Maybe the train inexplicably sped up at a time when it wasn’t supposed to do that and the black box can give us that information. It can be a complicated investigation for sure, but certainly the people involved in the collision, the railroad company involved in the derailment, and a lot of product manufacturers who provided equipment that may have failed can all be held responsible for causing the derailment in any injuries that occur as a result.

When Outside Contractors May Be Liable

John: Could it be like maintenance workers as well? If maybe there was a part that was failing and the maintenance workers didn’t pick up on that failure in time or something like that?

Paul: Absolutely, or it could be a contractor that provided maintenance to the trucks or maintenance to the equipment and didn’t do such a good job in any of that. Yeah, there’s a lot of potential parties that could be responsible for causing these injuries. The railroads typically do have their own staff to perform maintenance, but that’s not going to be universal. There are plenty of outside contractors that come in and will do all kinds of work for railroads. That’s why the investigation’s so important.

Collisions at Railroad Crossings

John: We’re talking about train derailments in part because of this derailment, this high profile one that happened in Ohio recently. Other than train derailments, are there other types of situations where a railroad could be held responsible for maybe a collision with a car or with a person?

Paul: Absolutely. Probably an even more common occurrence is going to be a collision at a railroad crossing. Now, frequently, John, those are not the railroad’s fault or any railroad employees fault. Sometimes unfortunately, for a variety of reasons, people will negligently go onto a railroad track themselves.

They are trying to beat the train. Hopefully, it’s not a lot of times where people have some bad intentions for themselves, but there’s certainly a lot of situations where people will impermissibly be on railroad tracks when they shouldn’t be.

Then there’s going to be a whole category of collisions that occur that the railroads can be held accountable for. I’ll focus on Kentucky law because that’s where I am but in Kentucky law, at a public railroad crossing, the railroad has several duties. It has to give a warning. Their folks have to give a lookout. If there is an ability for them to stop a train when somebody’s on the tracks and they have sufficient opportunity to do so, they can’t just not act and say, well, that’s that person’s fault, they’re on the tracks.

Probably the most common situation that we see is a poorly maintained crossing. Everybody’s probably encountered one in the past where you have to inch up a little bit because there’s some trees or bushes or some sort of foliage that’s blocking your view down the track. The gate’s up, so you don’t know for sure that anything’s coming. The signal hasn’t rung, and people are trying to progress across the track, and they get hit. And so, railroads have a duty at a public crossing.

What’s a public crossing? To be as simplistic as possible, a public crossing’s one that’s on a state road, county road, a publicly maintained road. They have duties to maintain those crossings in a safe fashion. Again, that includes signals, gates, warnings and making sure that vision’s not obstructed down the track. When those situations occur under the right circumstances, a railroad can be held accountable for causing a collision.

Now, there’s also something called private railroad crossings. Private railroad crossings are a little bit different. Keep in mind the history of this country. I mean, railroads were the way of travel. They were the way of transporting goods across the country for many years before other forms of transportation really existed and became prevalent and so we have a lot of tracks going through this country.

We have a lot of tracks that now go through people’s properties that they’ve been given some access to. The railroad’s responsibility at those crossings are a little bit different. They don’t have the gate requirements, they don’t have the signal requirements and the only time that they can really be held accountable is if a crossing at a private crossing is categorized as something called ultra hazardous.

Ultra hazardous is kind of a nebulous term. It doesn’t have a great definition, but certainly a crossing that has a poor grade. You’ve crossed them before. Have to go up a steep hill a little bit and there’s a lot of gravel associated with it and it’s sometimes difficult to get over real easily, particularly in a normal passenger car. Under some circumstances, that’s been considered an ultra hazardous crossing.

Again, overgrown foliage around the crossing, particularly in conjunction with the poor grade can make a crossing that would ordinarily be safe and the railroad ordinarily had no duties, it can make it an ultra hazardous crossing that now requires the railroad to take certain precautions.

Railroads can assume duties of those crossings as well. If you’ve got a crossing that doesn’t really require a warning or require a gate or require a signal, but the railroad provides all those things and people get to rely upon them and then one day they don’t do those things, somebody gets hurt, an argument can be made that they’ve assumed the duty and now they’ve breached that duty by failing to do it under that particular circumstance.

The answer to the question may be there is no liability for the particular injury or event that happens to some people, but it’s always worth inquiring and asking because it could very well be that the railroad at issue failed lots of responsibilities, which directly led to a collision at a crossing.

Rail Companies’ Responsibilities at Crossings

John: Could the train’s responsibility or the train company’s responsibility in certain crossing cases, especially with the private land, just be that the train has to blow its horn a certain time before, half a mile before it gets to that crossing or something like that?

Then like you said, maybe there would be a case where, oh, the engineer forgot to blow the horn that one time and warn people that it was coming, something like that.

Paul: At a private crossing, they really don’t have to do those things unless they’ve assumed responsibility that they didn’t necessarily have to do. Really, their responsibility at a private crossing is to understand the lay of the land when they’re crossing, when their trains are passing through and if there is some reason to know that a particular crossing’s dangerous, this ultra hazardous type of crossing that we’ve talked about, then they have responsibilities at that point.

Nobody’s going to come up to them one day, no governmental agency, railroads are governed by the Federal Railroad Administration, nobody’s going to come up to them, more than likely, and say, okay, we’ve decided that this crossing right here is ultra hazardous so now you have to do all the things that you have to do at a public crossing. Usually, unfortunately, it takes one event to occur before a railroad’s really reasonably put on notice that a private crossing is particularly dangerous now.

Okay, public crossings, yeah, they have everything that you mentioned. They have all those duties. They have a duty of lookout. They have a duty of warning. Of course, they put the gates up, they put the lights up. I mean, all those things. If they didn’t do those things and somebody got hurt, well then they’ve failed a lot of responsibilities but at a private crossing, it’s really, do they have a reason to know or should know that there’s something unusual or unique about that crossing that is going to lead to injuries that they don’t do something.

Statute of Limitations on Train Collision and Derailment Injury Claims

John: Right, okay. Is there a statute of limitations for filing a claim for personal injury or death caused by a train derailment or a collision?

Paul: Sure. In Kentucky, it’s the same for any other personal injury case. You have a year from the date of the collision or the derailment to file a claim. Now, there’s some circumstances, if we use the chemical exposure example, some people may not realize that they’ve been injured from an exposure to a harmful chemical so they would have a year from the date they know or should know who they’ve been harmed by the chemical release from the derailment and know or should know what caused it.

To file a claim for wrongful death, they have a year to pursue a claim. That year really begins to run from when somebody’s been appointed, the personal representative, over their estate. The bottom line is that in most instances, people who have been injured as a result of either derailment or collision, they know immediately what caused the injury and they have a year to get that claim filed.

Then they need to move quickly because that year goes by fast and because of what I told you about a moment ago, that sometimes it’s not obvious as to exactly what caused the collision. It doesn’t matter whether it’s the railroad company, the operator of the train, or a product manufacturer who caused the derailment or the collision, it’s still a year, and we have got to have time to figure out who it is. Time is of the essence and it’s best to start investigating immediately.

What Should You Do If You’ve Been Injured by a Train Derailment or Collision?

John: What should someone do if they or a loved one or are injured from a train derailment or collision? Why would it be important that they speak with an attorney like yourself?

Paul: Well, again, sometimes it’s not easy to determine whether or not someone else was at fault for causing either the derailment or the collision. The derailment is an easier determination for sure. I mean, these trains aren’t supposed to derail, but they do. I’m not sure what the statistics are, but I’m confident that there’s hundreds, if not thousands of derailments every year.

Most of them are small and what’s considered a derailment is just a slight movement off of a track. Some are catastrophic where they leave the air and topple over and cause all kinds of problems.

Train collisions, sometimes a lot of people would say, well, guys, you’re on the tracks. I mean that you deserve, or don’t deserve, but you don’t deserve to recover from anybody for being somewhere where maybe you shouldn’t have been. Again, there’s so many facts that are associated with how it happened, and everything is bang bang so it’s critical to contact a lawyer. Contact a lawyer that has experience with litigating cases against railroad companies, handling train collisions, handling train derailments, and investigating as quickly as possible to try to uncover everything.

Then of course, as I mentioned just a moment ago, the statute of limitations, it runs fast. It runs very fast. Just waiting three months to talk to a lawyer now impedes that lawyer’s ability to conduct a full investigation because believe you me, the railroad company, as soon as the event happens, within minutes, they have somebody there and they’re conducting their investigation so they can determine what caused the collision. Frequently they come to conclusions that are contrary to the ones that we might come to had we been given all those facts because their mission is to avoid responsibility for these kinds of things. Every collision, every derailment, derailments in particular.

I mean, if you’ve released harmful chemicals into the air or harmful chemicals into the water, I mean, thousands of people are potentially impacted by that, I mean thousands. Most of these chemicals are not going to cause injury that’s going to immediately be noticeable in the next week or month even. I mean, it may be years before people really start to suffer the adverse consequences. The railroad’s going to have all that in their back pocket maybe before people even get sick.

It’s critical to reach out to someone, and the answer may be, we have to wait. Good news is, it doesn’t appear that you’ve been injured right now. Hopefully that’ll always be the case. Hopefully you’ll never get sick. Hopefully you’ll never have to talk to me or anybody else ever again about this. If the reality is that you do, memories aren’t better 10 years from now, they’re great today. The good news is with respect to derailments, a lot of people are collecting a lot of information right away and so it’s a little bit different from other types of things that I do.

John: Right, because of the investigations being done and things like that.

Paul: Absolutely. Some people are going to suffer, like this latest one that’s been in the news, some people are going to suffer more immediate consequences. It may just be property damage, maybe having to move from their home for a period of time while water is examined for harmful contaminants. Some people will be doing more investigation early than later.

Regardless, you can’t hurt to have a conversation. If the answer is there’s really nothing for you to do right now under the circumstances, then that’s fine. The answer could very well be, yeah, we need to get our ducks in a row. Even if you don’t have the case now, the work that we do now can help you later.

Contact Satterley and Kelley to Learn More

John: All right. Well, that’s really great information, Paul. Thanks again for speaking with me today.

Paul: Thanks, John, I appreciate it.

John: For more information about personal injury and wrongful death claims, visit the law firm of Satterley and Kelley at satterleylaw.com or call (855)385-9532.

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5 crucial safety tips when driving in construction zones

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Highway drivers in the Louisville area will continue to experience slowdowns and congestion attributed to a number of construction projects. With this disruption comes the critical reminder to drive safely in work zones.

Several minor wrecks already have worsened traffic in these areas. Future incidents have the potential to cause harm to drivers, passengers and construction workers. Please take the time to follow traffic rules and be extra cautious when driving in construction areas.

According to the National Safety Council, 898 people died and 40,170 sustained injuries in work zone crashes in the U.S. in 2023.

Here are some important tips to follow when driving in construction or work zones:

Stay alert and slow down

Obey the posted speed limit and look out for road workers. Remember that fines typically double for moving violations in construction zones.

This is especially not the time for distractions behind the wheel such as eating, fiddling with a smartphone or changing radio stations. Pay extra attention to the road. And expect the unexpected as work vehicles and equipment may abruptly enter your lane and other cars may slow or make unexpected stops and lane changes.

Keep your distance

Unexpected things happen in construction zones which is why you need to increase your following distance. While other cars may crowd together and tailgate, keep in mind that this behavior will not get you through a construction zone any faster. Instead, keep your distance so that you have the additional seconds you might need to avoid a wreck.

Make sure a safe distance exists between you and other vehicles. Rear-end crashes commonly occur in work zones.

Always assume that workers are present

Even though a construction zone may not look active, never assume that workers are not on site. Reduce your speed and stay alert for the men and women who could be working, even at night.

Obeying the speed limit in construction zones will not only increase your and the workers’ safety, it could help you avoid other potential collisions.

Obey the flaggers

Construction zones often include flaggers who direct and stop traffic. Any poor decision on a driver’s part may lead to tragedy.

Flaggers are present at construction zones in order to alert drivers of dangers. Some might force you to come to a stop because a piece of heavy machinery needs the lane ahead and others might be indicating that you need to merge into one lane. Follow their instructions in order to avoid an accident with construction zone workers, equipment or other drivers.

Follow traffic rules and stay safe

Safety should always be top of mind whenever you get behind the wheel. This especially holds true when driving in construction work zones, which Louisville-area drivers have seen plenty of recently. By remaining alert and following traffic rules, you minimize the chances of a crash in these areas.

While the above tips can help you stay safe in construction zones, other drivers may not exercise the same amount of caution and you may not be able to avoid a wreck with a reckless driver. If you have suffered an injury due to a car wreck in a construction zone, you might be able to take legal action to recoup your medical expenses, the cost of the repairs or replacement of your car and other damages.