GLASGOW, Ky. — The Kentucky Court of Appeals has overturned a judgment totaling more than $22.5 million against Scotty’s Contracting and Stone LLC, stemming from a 2012 construction accident along Highway 90 that killed one worker and injured three others.

The court ordered the case dismissed, reversing a Barren Circuit Court judgment that had found seven Kentucky Transportation Cabinet engineers responsible for the workers’ injuries and the death of Kenneth Decker.

The case dates to Oct. 8, 2012, when a large concrete form being used to build a retaining wall collapsed during a Highway 90 widening project in east Barren County.

Decker, an employee of VanMeter Contracting, was killed. Three other VanMeter employees: John McIntosh, Steve Nelson and Jamie Groce, were injured.

At the time, VanMeter was working as a subcontractor for Scotty’s.

What the trial court found

The workers and Decker’s estate sued several KYTC engineers involved in the project.

In a 2023 ruling, Barren Circuit Judge John T. Alexander found the engineers responsible for the accident.

The court found the engineers failed to enforce safety requirements, require certified plans, enforce OSHA shoring rules, inspect the form’s anchoring and make sure qualified personnel were performing the work.

The court found the seven engineers 100% at fault and assigned no fault to VanMeter, its employees or Scotty’s.

The judgment, as amended in February 2024, awarded more than $12.5 million in compensatory damages and $10 million in punitive damages.

The awards included:

• $437,587 to the estate of Kenneth Decker
• $2 million to Decker’s widow, Velma Decker
• $1.68 million to John McIntosh
• $4.73 million to Jamie Groce
• $2.73 million to Steve Nelson
• $1 million to Linda Nelson’s estate for loss of consortium

The total judgment exceeded $22.5 million.

Why the appeals court overturned it

In an opinion issued Aug. 28, the Kentucky Court of Appeals reversed the judgment and ordered Barren Circuit Court to dismiss all of the claims.

One issue involved Kentucky’s workers’ compensation laws.

The appeals court said Scotty’s was considered an “up-the-ladder” employer because VanMeter was working for Scotty’s as a subcontractor.

Under Kentucky law, that gave Scotty’s the same protection from lawsuits over workplace injuries that an injured worker’s direct employer generally receives through the workers’ compensation system.

That meant Scotty’s could not be held responsible through a lawsuit for injuries covered by workers’ compensation.

The appeals court also considered agreements between Scotty’s and the Kentucky Transportation Cabinet that addressed who would be responsible for certain claims.

The court said Kentucky law does not allow such an agreement to require Scotty’s to pay for damages caused by the transportation cabinet or its engineers’ own negligence.

In other words, the appeals court said Scotty’s could not be required to cover the engineers’ liability if the engineers themselves were found to have caused the injuries through their own negligence.

Court questions evidence about the accident

The appeals court also found a problem with the evidence used to determine what caused the concrete form to collapse.

A key question was whether VanMeter employees had improperly secured the form before the accident.

The appeals court said the trial court had assumed the workers failed to properly secure the form but had not established that fact with sufficient evidence.

The appeals court pointed to a separate workers’ compensation case involving Groce.

In that case, an administrative law judge found that VanMeter employees had properly secured the form and had not violated safety requirements.

The Kentucky Supreme Court later upheld that finding.

Because of that, the appeals court said there was not enough evidence to establish the necessary link between the engineers’ actions and the injuries.

The court said the evidence did not establish that the engineers’ conduct was the direct or primary cause of what happened.

Nearly 14 years later

The appeals court also considered how long the case had already been in court.

Nearly 14 years had passed since the accident.

The court said sending the case back for another trial would add more years to the litigation.

The plaintiffs had also agreed not to collect the judgment from the engineers. At the same time, workers’ compensation protections prevented them from recovering additional damages from VanMeter or Scotty’s.

Because of those circumstances, the appeals court ordered the entire case dismissed rather than sending it back for another trial.

Judges Acree, McNeill and Taylor all agreed with the decision.

The bottom line

A Barren Circuit Court judgment exceeding $22.5 million tied to a 2012 construction accident has been overturned.

The Kentucky Court of Appeals said Scotty’s was protected from the claims under Kentucky workers’ compensation law and found the evidence did not sufficiently establish that the KYTC engineers’ actions were the direct cause of the workers’ injuries and Decker’s death.

The appeals court ordered all claims dismissed.

Read the full opinion here.