2012 News

  • Update to School Violence Issues

    In light of last week’s tragic events at Sandy Hook Elementary, we thought it may be helpful to revisit information on “Active Shooter Situations,” which was a part of our presentation at the MSBA Conference in September.

    Lawrence J. Wadsack, attorney with Lashly & Baer, spoke on School Violence Issues as the 2012 MSBA Conference. He spent twenty-six years with the St. Louis County Police Department before attending law school. Prior to the MSBA Conference, he had the opportunity to confer with the police commanders of the Safe Schools Partnership (the “Partnership”), a collaborative effort partnering law enforcement agencies with school districts. Together the Partnership has made progress in strengthening the security and safety of the local school environment. Information supplied by the police commanders provided the opportunity for Larry to present the latest defensive tactics used in “Active Shooter” situations, including “Shelter in Place” and “ALICE.” During the presentation they also discussed the critical importance of training in this area, ideally with the assistance and cooperation of your respective law enforcement agency.

    Click here to review the slides on this issue from his PowerPoint MSBA Presentation. Additional information can also be found on the Safe Schools Partnership website.

  • No Coverage for Penalties Under the Telephone Consumer Protection Act

    Karen S. Little, L.L.C. brought a class action against HIAR Holdings for violation of the Telephone Consumer Protection Act (“TCPA”) alleging that HIAR violated the act by sending “junk faxes.”  Pursuant to the TCPA, HIAR was potentially liable for statutory damages of $500.00 per fax sent.  Ultimately, Little settled the claim for five million dollars. 

    Columbia Casualty Company refused to defend or indemnify HIAR and filed a declaratory judgment action seeking a judgment holding that it had no obligation to do so.  The trial court, however, found against Columbia and it appealed. 

    On appeal, the Missouri Eastern District Court of Appeals found that there was no coverage.  First, statutory damages under the TCPA are penal in nature and, as penalties, do not constitute “damages” covered by an insurance policy.  The Columbia Casualty policy obligated it to “pay those sums that the insured becomes legally obligated to pay as damages because of [property damage or advertising injury] to which this insurance applies.”  Because the statutory damages under the TCPA were penal in nature they were not “damages” as defined under Missouri law and, therefore, there was no obligation to defend or indemnify HIAR for the claim.

    HIAR argued, however, that it had reached a settlement for somewhere less than the total liability and, therefore, the five million dollars constituted something other than a penalty (the total potential exposure was 6.25 million dollars).  However, even if that was so, the Eastern District Court noted that the exclusion providing that “this insurance does not apply to [property damage or advertising injury] for which the insured has assumed liability in a contract or agreement” and would exclude coverage.  Because HIAR assumed the liability through settlement, this exclusion applied and there was no coverage.

    The case is pertinent to any defendants exposed to statutory penalties imposed under state or federal law.  Depending upon the facts of the case and the statutory language, these statutory awards may well fall outside the definition of damages under Missouri law and, therefore, not fall within the coverage of an insurance policy.

    Columbia Casualty Company v. Little, et al.

  • Nonpermissive Use Exclusion Okay If Included In Definition of Insured, But Not If It Is A Separate Exclusion

    In American Standard Insurance Company of Wisconsin v. Stinson, the Eastern District Court of Appeals addressed the exclusion from coverage of non-permissive users of a motor vehicle.  In this wrongful death case, Son took the car from Father’s auto dealership without Father’s permission.  Son subsequently crashed into a vehicle driven by Ricky Young, who died as a result of the collision.  American Standard insured the vehicle involved in the crash.  The policy at issue defined an insured person as “you or a relative,” but not “any person using a vehicle without the permission of the person having lawful possession.”  American Standard filed a Petition for Declaratory Judgment seeking a declaration of non-coverage on the basis that Son was not a permissive user of the vehicle.  The trial court granted American Standard’s summary of judgment and the wrongful death Plaintiff appealed

    Plaintiff appealed, arguing that the phrase, “any person” as used in the phrase “any person using a vehicle without the permission of the person having lawful possession” was ambiguous.  Plaintiff specifically relied upon the case of Miller’s Classified Insurance Company v. French, 295 SW3d. 524 (Mo. App. Eastern District 2009) in which the Eastern District did find that the phrase “any person,” as used in exclusionary provision of an insurance policy, was reasonably open to different constructions and, therefore, ambiguous.  However, the Eastern District distinguished the instant case by noting that the use of this phrase in the definition of insured was different than the use of the phrase in the exclusionary policy.  An insurance policy is ambiguous when it promises the insured something at one point, but then takes it away at another.  The Eastern District Court of Appeals upheld the trial court’s grant of summary judgment in favor of American Standard, finding that the Son was not an insured person under the policy.  The Eastern District seemed to distinguish French because the use of “any person” in a separate exclusion was different than the use of “any person” in the definition of insured. 

    This appears to be a case where the courts have construed potential ambiguity in favor of an insurance company, rather than against it.  The Eastern District seems to be saying that there is a difference in the analysis of language depending on whether the language is in an insuring provision or an exclusion.  If the alleged ambiguity is contained within the initial grant of coverage, there seems to be less of a chance of finding an ambiguity than where the alleged ambiguous phrase is used in the exclusionary portions of the policy.

    American Standard Insurance Company of Wisconsin v. Stinson

  • Two Lashly & Baer, P.C. Lawyers Selected as Top 50 Attorneys in St. Louis

    Kenneth C. Brostron and Kevin L. Fritz were recently selected by their peers as the Top 50 Attorneys in St. Louis. Brostron and Fritz ranked top of the list in the Missouri & Kansas Super Lawyers 2012 nomination, research and review process through peer recognition and professional achievement.   Download Press Release

  • Waiving Co-Pays and Deductibles

    Lashly & Baer partner, Stuart J. Vogelsmeier, published an article in the Healthcare Financial Management Association (HFMA) Greater St. Louis Chapter Summer Newsletter entitled “Waiving Co-Pays and Deductibles.” CLICK HERE to download a copy of the article or visit the HFMA Greater St. Louis Chapter website to view the Fall Newsletter.

  • Ten Lashly & Baer, P.C. Lawyers Selected as 2012 Missouri & Kansas Super Lawyers, Two Selected as Top St. Louis Lawyers, and Two Selected as 2012 Missouri Rising Stars

    Missouri & Kansas Super Lawyers has selected ten Lashly & Baer, P.C. lawyers for the 2012 Missouri & Kansas Super Lawyers edition. They are John Fox Arnold, Kenneth C. Brostron, Matthew J. Eddy, Kevin L. Fritz, Terrance J. Good, James C. Hetlage, Stephen G. Reuter, Michael J. Smith, Richard D. Watters, and Wendy J. WolfKenneth C. Brostron and Kevin L. Fritz have also been selected as two of the Top 50 Lawyers in St. Louis. Missouri & Kansas Super Lawyers are selected by their peers as being in the top 5% of Missouri and Kansas lawyers.  In addition, 2012 Missouri & Kansas Rising Stars has selected Patrick E. Foppe and Sarah J. Hugg-Turner as top young lawyers in Missouri and Kansas.

  • Christopher D. Castellanos Joins Lashly & Baer, P.C.

    Christopher D. Castellanos has recently joined Lashly & Baer, P.C. as Of Counsel. Castellanos holds a J.D. and LL.M. from Washington University School of Law and primarily concentrates his practice in trusts and estates including a wide range of estate planning and probate matters, asset protection planning, and estate and trust administration. He is a member of the American Bar Association, The Missouri Bar, and the Bar Association of Metropolitan St. Louis. Download Press Release

  • Lashly & Baer Attorney Elected to USLAW NETWORK’s Board of Directors

    Monday, October 22, 2012 – USLAW NETWORK has announced that Kevin L. Fritz of Lashly & Baer, P.C. has been elected to the 2012-13 USLAW NETWORK’s Board of Directors. The announcement was made at the organization’s annual membership meeting held in Washington, DC. For the past two years, Kevin has served as the Chair of USLAW’s Transportation Practice Group.

    USLAW NETWORK is an international organization composed of over 108 independent, defense-based law firms with nearly 6,000 attorneys covering the United States, Canada, Latin America, Europe, Asia and Africa. Within the U.S.-based firms, there are over 150 offices in 47 U.S. states. USLAW is comprised of AV-rated law firms who are part of the Network by invitation only and are experienced in commercial and business law, employment and labor law, litigation and other business-related areas of law. All firms have substantial trial experience. USLAW member firms provide legal representation to major corporations, captive insurance companies, and large and small businesses across the United States.  Fritz holds a J.D. degree from University of Missouri School of Law.    Download Press Release

  • Students 2012 Updates on School Violence, the Use of Social Media and More…

    On Saturday, September 29, 2012, Lisa O. Stump and Lawrence J. Wadsack presented to more than 100 board members and administrators at the Missouri School Boards Association (MSBA) Annual Conference in Osage Beach, Missouri.  Their presentation entitled, “Students 2012 Updates on School Violence, the Use of Social Media and More…” addressed legal issues associated with school violence issues, off-campus student conduct, bullying, and an update on student related laws and policies.

    To view the presentation, click here.

  • Lashly & Baer Attorney Accepts NorthShore Foundation’s Award on Behalf of His Client

    Lashly & Baer partner, Stuart J. Vogelsmeier, spoke at the NorthShore University HealthSystem (NorthShore) Foundation’s 1891 Society Luncheon on Tuesday, September 11, 2012, in Evanston, Illinois. NorthShore Foundation’s was recognizing the generosity of long-time Lashly & Baer client, Mr. Roy F. Kehl, who died in February of 2011.  During his lifetime, Mr. Kehl endowed the Gasteroentology Laboratory at NorthShore’s Evanston Hospital.  Mr. Kehl named NorthShore’s Foundation as the primary beneficiary of his Trust, supported academic medical education, research and indigent patient care. NorthShore named Mr. Kehl a Distinguished Benefactor in recognition of total gifts in excess of $4,000,000, and the award was presented to Mr. Vogelsmeier, as Mr. Kehl’s attorney and advisor.

    Lashly & Baer represented Mr. Kehl for over 50 years, and Mr. Vogelsmeier advised Mr. Kehl on the implementation of his charitable planned giving.  Mr. Kehl was a nationally known organist and church music scholar, and was generally regarded as the world’s foremost historian on Steinway pianos.

  • Buy, Sell, Hold: In Today’s Long Term Care Market

    Lashly & Baer member, Nelson H. Howe, II, along with the Senior Living Forum Affiliated Partners, discussed the long and short term market value for Senior Living Communities including information on HUD financing. The discussion was held on Wednesday, October 3, 2012 at Missouri Athletic Club West. To learn about upcoming Senior Living Community presentations, contact Tiffany Walker at tiffanyw@heffins.com.

  • Anti-Fraud Provisions of the Affordable Care Act Should Not Be Overlooked

    Lashly & Baer partner, Stuart J. Vogelsmeier, published an article in the Healthcare Financial Management Association (HFMA) Greater St. Louis Chapter Summer Newsletter entitled “Anti-Fraud Provisions of the Affordable Care Act Should Not Be Overlooked.” CLICK HERE to download a copy of the article or visit the HFMA Greater St. Louis Chapter website to view the Summer Newsletter.

  • EMPLOYERS BEWARE— EEOC targeting lesbian, gay, bisexual, and transgender individuals discrimination and pregnancy accommodations.

     

    In its Strategic Enforcement Plan, the U.S. Equal Employment Opportunity (EEOC) has elevated to the status of “national priorities” issues concerning the Americans with Disabilities Act Amendments Act (ADAAA); application of Title VII antidiscrimination provisions to lesbian, gay, bisexual, and transgender individuals (LGBT), and workplace accommodations for pregnancy.  The new initiatives further illustrate the Obama Administration’s unprecedented interpretation of federal employment laws, in that, LGBT are not a protected class under Title VII, as written; and accommodations are not required under the Pregnancy Discrimination Act.

  • Attorneys’ Fees Counted as Damages For Purposes of Punitive Damages Cap

    The Missouri Supreme Court again analyzed portions of the State of Missouri’s 2005 Tort Reform Bill in a recent employment discrimination decision.  In that decision, the Missouri Supreme Court found that attorneys’ fees should be included in the determination of the “net amount of judgment” that is used to calculate the maximum amount of punitive damages pursuant to Section 510.265, RSMo. 

    Section 510.265 limits the amount of punitive damages in most civil cases to the greater of $500,000 or 5 times the net amount of the judgment awarded to the plaintiff against the defendant.  The Missouri Supreme Court ruled that in determining the net amount of the judgment against the defendant, attorneys’ fees should be included.  In other words, actual damages plus any awarded attorneys fees are added together and any appropriate reductions then applied.  This amount is then multiplied by 5 in order to determine the total amount of punitive damages awardable. 

    While punitive damages may not play a significant role in the majority of cases, including attorneys’ fees in the net amount of judgment certainly has the potential to significantly raise the floor on the amount of punitive damages awardable in such cases. 

     Hervey v. Missouri Department of Corrections

  • The Temporary Worker Exception to the Employee Exclusion: In Missouri Referring An Employee Means Furnishing an Employee

    In May 2006, Len Mendenhall interviewed for a job with the Family Center of Farmington, Inc. (“Family Center”).  The Family Center did not hire Mr. Mendenhall, but the Family Center employee who interviewed Mr. Mendenhall informed Jay Walker, the owner of the Family Center, that Mr. Mendenhall would be a good candidate for a job.  Based upon on this recommendation, Mr. Walker hired Mr. Mendenhall to work for him personally at the cattle farm Mr. Walker co-owned with his wife.  Mr. Mendenhall worked at the farm on an as-needed basis and, although he was always paid by the farm, Mr. Walker occasionally asked Mr. Mendenhall to perform tasks for the Family Center.  Mr. Walker also permitted Mr. Mendenhall to use a truck and trailer owned by the Family Center.  This truck and trailer was covered under a Business Automobile Liability Policy (“The Hartford Policy”) provided by Property and Casualty Insurance Company of Hartford and issued to the Family Center.  On March 8, 2007, Mr. Mendenhall was using the Family Center’s truck to haul rock at the farm when the vehicle overturned and he was killed. 

    Mrs. Mendenhall filed a wrongful death suit against the Family Center and the Walkers.  Mrs. Mendenhall dismissed her claim against Mrs. Walker and obtained an $840,000 judgment against Mr. Walker and a $50,000 judgment against the Family Center.  Prior to the judgment, Mr. Walker and Mrs. Mendenhall entered into an agreement pursuant to Section 537.065, RSMo., which provided that any judgment against Mr. Walker would be collected from the proceeds of the Hartford Policy.  Hartford denied any obligation to indemnify Mr. Walker for the claims resulting from Mr. Mendenhall’s death.

    Mrs. Mendenhall subsequently filed an action for equitable garnishment in an attempt to satisfy the $840,000 judgment under the Harford Policy.  The Hartford Policy contained an exclusion from liability coverage for employees of the insured.  The definition of employee specifically included a leased worker, but did not include a temporary worker.  Of importance to the decision is that a “temporary worker” was defined as “a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions.”  The trial court entered summary judgment for Hartford and Mrs. Mendenhall appealed.

    In reversing the decision of the trial court, the Missouri Supreme Court found that the Family Center furnished Mr. Mendenhall to the Walkers for employment.  Therefore, Mr. Mendenhall qualified as a temporary worker and was not considered an “employee” for purposes of the exclusion from liability coverage for employees of the insured.  The Court noted that, in order to furnish an employee, it was not necessary for the Family Center to have an employment or agency relationship with Mr. Mendenhall.  The Court focused on the fact that Mr. Walker did not interview Mr. Mendenhall and relied solely on the Family Center’s referral in making his decision to hire Mr. Mendenhall.  “The Family Center’s referral supplied and provided Mr. Walker with the information he used to hire Mr. Mendenhall on an as-needed basis.  Without the information furnished by the Family Center, a business owned solely by Mr. Walker, Mr. Walker would not have hired Mr. Mendenhall.  It was through the Family Center’s referral that Mr. Mendenhall was ‘furnished to’ Walker as a temporary worker.” 

    As the dissent in this matter noted, this decision has potentially wide-ranging consequences.  First, there is the issue of the Court’s equating the term “refer” with the term “furnish.”  Interpreted broadly, the decision could mean that any time an employee is referred to his or her employer, that employee may qualify as a temporary worker and fall outside of the employee exclusion in a liability policy.  The second issue that arises is whether or not this will inhibit an employee’s ability to obtain a referral from a current or former employer.  Current and former employers may be hesitant to refer employees for fear that they will be deemed to have furnished an employee to another. 

    Finally, under the Missouri Workers’ Compensation Act, “temporary workers” are not covered by their employers’ workers’ compensation insurance.  The finding that employees in situations such as Mr. Mendenhall’s are considered temporary workers for purposes of a liability policy may allow courts to find that they are also temporary workers for purposes of the Missouri Workers’ Compensation Act.  This would mean that they would fall outside the Act and not be eligible for worker’s compensation remedies.  If they are not covered by the Missouri Workers’ Compensation Act, employers may be exposed to tort claims from their “temporary workers.”

    Mendenhall v. Property and Casualty Insurance of Hartford

  • Missouri Supreme Court Strikes Down Cap on Non-Economic Damages in Medical Malpractice Cases

    On July 31, 2012, the Missouri Supreme Court issued its opinion in Watts v. Lester E. Cox Medical Center.  In that case, Deborah Watts filed a medical malpractice action alleging that her son was born with disabling brain injuries because of Cox Medical Center and its associated physician’s medical malpractice.  The jury returned a verdict in favor of Watts and awarded $1.45 million in non-economic damages and $3.371 million in future medical damages.  The Court entered a judgment reducing Watts’ non-economic damages to $350,000 as required by Section 538.210, RSMo.  The judgment also established a periodic payment schedule pursuant to Section 538.220, RSMo.  This periodic payment schedule required immediate payment of half of all net and future medical damages with the other half paid in equal, annual installments over the next 50 years at an interest rate of .26%. 

    All parties appealed.  Watts asserted the cap on non-economic damages provided by Section 538.210, RSMo violated the right to trial by jury and several other provisions of the Missouri Constitution.  She also asserted that the Section 538.220 periodic payment schedule established by the trial court was arbitrary and unreasonable in that it did not assure full compensation due to the low interest rate and the 50 year payment schedule.  Cox cross-appealed asserting that the trial court erred in its immediate award of future medical damages.  Cox asserted that Section 538.220 prohibited a lump sum payment of a portion of future medical damages and, instead, requires that all future medical damages be paid pursuant to a periodic payment schedule regardless of when the need for medical damage payments will arise. 

    The Missouri Supreme Court ruled in Watts’ favor and struck down the cap on non-economic damages in medical malpractice cases as well as in Watts’ favor on the issue of the arbitrariness and unreasonableness of the schedule of periodic payments for future medical damages.  In striking down the Section 538.210 cap on non-economic damages, the Missouri Supreme Court relied on Article One, Section 22(a) of the Missouri State Constitution.  That Section provides, in relevant part, “The right of trial by jury as heretofore enjoyed shall remained in violate….”  Thus, Article One, Section 22(a) of the Missouri Constitution required the Court to analyze two propositions to determine if the non-economic damage cap violated the state constitutional right to a trial by jury.  The first portion of that analysis is whether Watts’ medical negligence action and claim for non-economic damages was included within the “right of trial by jury as heretofore enjoyed.”  The Missouri Supreme Court found that medical malpractice actions were recognized at common law prior to the adoption of the Missouri State Constitution in 1820 and, therefore, fell into the category of civil cases which enjoyed a right to jury trial prior to the adoption of the Missouri Constitution.  The Supreme Court then analyzed whether the damage caps allowed the right to jury trial to remain inviolate.  The Court specifically found that a jury’s primary function is fact finding, which includes a determination of plaintiff’s damages.  Therefore, like other types of damages, the amount of non-economic damages is a fact that must be determined by the jury and is subject to the protections of the Missouri Constitution’s right to trial by jury.  The Court further stated that an injured party’s right to a trial by jury does not remain inviolate “when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.”  Thus, the Missouri Supreme Court held that the statute providing for a cap on non-economic damages in medical malpractice cases necessarily and unavoidable violated the right to trial by jury.  In its ruling, the Missouri Supreme Court overruled the prior Missouri Supreme Court decision of Adams by and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo banc 1992), which had upheld a prior statutory cap on non-economic damages in medical malpractice cases. 

    With regard to both parties appeal of the periodic payment schedule set forth by the trial court pursuant to Section 538.220, RSMo, the Missouri Supreme Court denied Cox’ appeal and held that the statute does not require all future medical payments be paid according to the payment schedule.  In other words, the trial court had the discretion to award an initial lump sum payment and schedule periodic payments for the remainder of any future medical damages.  With regard to Watts’ appeal, the Missouri Supreme Court found that the trial court’s use of a .26% interest rate virtually guaranteed that inflation in healthcare costs would result in the child having insufficient funds to pay his future medical costs.  Thus, the periodic payment schedule provided none of the financial security intended by the statute.  Because the jury rendered a verdict of a present value amount of plaintiff’s future damages, the trial court’s use of an inconsistent future damages interest rate guaranteed the jury’s damages award would not actually cover the future medical costs and, therefore, took from the plaintiff the full value of the jury’s award.  Therefore, the Missouri Supreme Court reversed the case and remanded it to the trial court to enter a new periodic payment schedule consistent with the goal of reducing medical malpractice costs and also ensuring that the plaintiff would receive the benefit of the jury’s award for future medical care. 

    The impact of the Watts decision is likely to be felt for a long period of time.  The Missouri Supreme Court not only struck down the latest incarnation of the Missouri cap on non-economic damages, but, essentially, stated that any damages awarded on claims which existed at common law prior to the adoption of the Missouri Constitution cannot be capped by the legislature.  Therefore, the result of the Watts decision is not that the state of the law in Missouri reverts to prior statutory caps, but, instead, is that no cap exists for non-economic damages for medical malpractice claims. 

    Watts v. Lester E. Cox Medical Center

  • EMPLOYERS BEWARE: The Federal Government Wants to “Friend” Your Employees

    The federal government is looking for ways to communicate with your employees. Why, to gain access to disgruntled employees to start regulatory investigations and audits?

    Many federal agency investigations and audits begin with a single disgruntled worker (or union) filing a complaint to the government, often after being terminated. Without the inside mole, i.e., the informant, it is difficult for a government agency to uncover employment law violations. To this end, federal agencies are expanding their outreach to employees, placing businesses at risk for more government investigations and audits.

    The United States Department of Labor (“DOL”) just published an “Employee Guide” on the Family and Medical Leave Act. In addition to explaining the requirements of the law, it instructs employees on how to file a complaint with the agency. The DOL hosted a webinar explaining the Guide and encouraged participants to publicize the Guide through social media outlets. Likewise, The National Labor Relations Board (“NLRB”) is also adapting its methods to get its message to employees. Despite numerous legal challenges, the NLRB created an interactive webpage describing workers’ rights to engage in “protected concerted activity.”

    The NLRB and DOL both have Facebook pages with thousands of “likes.” The Commissioner of the EEOC, has a Twitter account with more than 1,600 followers; the NLRB has more than 3,700. The DOL has more than 43,400 followers. These numbers prove the agencies are succeeding in getting the attention of U.S. workers.

    Employers should not underestimate the savvy of the government in reaching their employees all in covert effort to initiate audits and investigations; and the end game, of course, is more financial penalties paid to Uncle Sam. Now is the time to look at your policies and practices, before your employees send the government in to do it for you!

  • UIM Insurer Allowed to Intervene After Initial Denial of Coverage

    Consumers Insurance Company provided underinsured motorist (“UIM”) coverage to Bradford Charles.  Charles was subsequently injured in a motor vehicle accident with Christina Ranum.  Charles’ attorney subsequently made a UIM claim on the Consumers UIM policy.  Initially, Consumers denied UIM coverage, but subsequently determined that there may be UIM coverage under its policy.

    After Consumers initial denial of coverage, but before its determination that there may be coverage, Charles filed suit against Ranum and entered into a partial settlement whereby Charles agreed to limit his recovery to Ranum’s policy limits without conceding that his damages were limited to that amount.  Immediately after the settlement between Charles and Ranum occurred, Consumers moved to intervene in the action for the purposes of contesting Ranum’s liability and/or Charles’ damages.  Charles did not object to the motion and the trial court allowed Consumers to intervene.  Charles subsequently filed a Motion for Summary Judgment contending that consumers should not be allowed to intervene because it initially denied coverage and, therefore, forfeited any right it had to defend Charles’ allegations against Ranum.  The trial court eventually granted that Motion for Summary Judgment, finding that Consumers had initially denied coverage, but then changed its position.  This, according to the trial court, resulted in Consumers forfeiting its right to intervene.  The trial count then conducted a hearing at which Ranum did not appear to contest Charles’ case and entered a judgment in favor of Charles in the amount of $350,000.  Ranum had only $50,000 in liability coverage.

    The Missouri Court of Appeals for the Western District overturned the trial court’s judgment and found that Consumers should have been allowed to intervene.  In doing so, it distinguished between first party and third party claims.  The trial court acknowledged that an insurer may forfeit all of it rights under the contract should it deny coverage on a third party claim.  However, an insurer’s right to intervene in a cause of action when there is litigation which may affect a potential first party claim such as UIM coverage, the insurer’s right to intervene arises out of the Missouri Rules of Civil Procedure rather than the insurance contract.  Therefore, even after an initial denial of coverage, Consumers claim that coverage may apply was sufficient to establish that Consumers had an interest in the litigation to justify its intervention.

    This case is important for a couple of reasons.  First, in a potential first party claim situation, an initial denial of coverage will not necessarily prevent an insurer from intervening in underlying litigation against a third party.  Thus, claims representatives should keep in mind that an initial denial of coverage does not necessarily foreclose intervention.  Second, this case also makes clear that an insurer does not have to admit coverage in order to intervene.  The insurer only has to acknowledge that coverage may apply and that the disposition of the underlying litigation may, as a practical matter, impair or impede the insurer’s ability to protect its interests.

    Charles v. Consumers Insurance

  • Attorney Mark Levison Joins Lashly & Baer

    Well-known attorney brings civic leadership and litigation experience to firm – Long-time St. Louis attorney Mark H. Levison recently joined the law firm Lashly & Baer, P.C. Levison, the senior member of the Missouri Bar Board of Governors – currently running for re-election – is known for his significant involvement in civic and legal organizations including the Missouri Bar, the St. Louis Development Corporation, the Urban League of St. Louis, and the City’s Land Reutilization Authority. His experience includes commercial and general litigation, and intellectual property. As a trial lawyer, Levison has helped set legal precedent in several distinct areas.

    Levison also practices in the area of government relations, with a concentration in economic development incentives, real estate and zoning. He has written speeches for local, state-wide and national politicians. Often working behind the scenes he led the successful effort to win the RFPs to bring the two newest casinos to St. Louis City and County. According to James H. Buford, President/CEO of the Urban League of St. Louis, “If you need to get a message across, or you need to get something done in our community, you go to Mark for help.”

    “Mark is a great fit at Lashly & Baer because he has that combination of civic-mindedness, skill in litigation, and experience handling significant projects that has been a hallmark of our firm since we were founded 100 years ago,” said Kenneth C. Brostron, President and Managing Partner of Lashly & Baer. “In fact, Mark’s resume has some similarities to that of our founder, Jacob Lashly. Both served as presidents of various bar associations and on a number of civic boards. And, like Mr. Lashly, Mark is an excellent litigator as well as a thoughtful advocate for the integrity of the law profession.”

    For more than 25 years, Levison has written a nationally syndicated column for and about attorneys and the practice of law, called “Under analysis.” His insightful, often humorous musings on the legal world are published through The Levison Group, a nationwide syndication. Levison is also a frequent speaker on continuing education topics ranging from ethics to real estate to professionalism.

    He is a recognized leader of the organized bar, being one of only two lawyers in the history of the Missouri Bar to serve as president of both the Bar Association of Metropolitan St. Louis and the Trial Lawyers Association of St. Louis and to serve as a member of The Missouri Board of Governors. In his work with the Missouri Bar, he led the Special Committee in revamping the rules that govern how Missouri’s lawyers can advertise their services.

    Levison was also a member of the Missouri Legislature’s subcommittee on the privatization of government services. Early in his career, he served on the staffs of the United States Senate and the U.S. House of Representatives in Washington D.C.

    Levison earned his J.D. from Washington University School of Law. He is active in the non-profit St. Louis Internship Program, which Mark helped establish in 1992. He resides in the City of St. Louis with his wife, and has three daughters and two step-sons.

    Click here to download press release.

  • EMPLOYERS BEWARE: Federal Government Eroding State-Law Employment At-Will Doctrine

    The NLRB General Counsel has attacked employers’ use of at-will employment acknowledgments.  The federal government has taken the position that the mere signing of an at-will acknowledgement form is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not.  Accordingly to the federal government, such standard at-will acknowledgements premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship; and, therefore, clearly chill employees who were interested in exercising their Section 7 rights.  

    Employers should consult with their labor counsel to review and revise their current at-will acknowledgments to address this recent and unprecedented attack on at-will employment.

  • Illinois Appellate Court Allows Evidence of Plaintiff’s Lack of Health Insurance

    Typically, evidence of the existence of health insurance is inadmissible at trial. Nevertheless, the Illinois Fifth District Appellate Court recently concluded that such evidence may be admitted in certain circumstances.

    Although a jury in her trial entered a $30,286.46 verdict in her favor, plaintiff Kathryn L. Vanoosting appealed, arguing that she was deprived a fair trial when the trial court refused her testimony that a lack of medical insurance prevented her from seeking medical attention in the years prior to the trial.

    She also claimed that the jury’s $0 award for loss of a normal life was the result of an improper argument made by defense counsel, who referred to her damages request for both loss of a normal life and pain and suffering as “double dipping.”

    The appeals court unanimously concluded that plaintiff’s lack of health insurance was relevant because plaintiff, “did not seek further treatment due to her lack of insurance is of consequence to her claim for future medical expenses and to the rebuttal of defense theory that she no longer has pain and suffering or a need for treatment due to her lack of treatment in the last three years.” The court was mindful of the potential impact that the plaintiff’s financial position may have on the sympathies of the jury, but concluded that the trial court, upon request, could have restricted the evidence to its proper purpose and scope and instructed the jury accordingly.

     

    Vanoosting v. Sellars, 2012 IL App (5th) 110365, 2012 WL 2161580 (Ill. App. 5th Dist., June 14, 2012).

  • Facebook Post Results in Removal of Juror

    Mr. and Mrs. Khoury filed a products liability suit against ConAgra for personal injuries Mrs. Khoury suffered. The day prior to voir dire, the trial court and counsel agreed that the attorneys for the parties would investigate the jury panel members’ litigation history on case.net (Missouri’s online court information system) and determine the following morning whether any of the 80 panel members may have failed to answer questions accurately. This was done and the individual jury panel members were questioned about information found on case.net. The parties subsequently exercised their peremptory strikes and strikes for cause and a jury of 12 plus 4 alternates was empaneled.

    Prior to opening statements, counsel for ConAgra informed the court that he had found that one of the selected jurors was “a prolific poster for anti-corporation, organic foods” on Facebook. ConAgra moved for a mistrial or, in the alternative, to strike the juror because of the alleged misconduct and claimed that the juror intentionally failed to disclose information that affected his ability to be a fair and impartial juror. The trial court and counsel for the parties then questioned the juror after which, counsel for ConAgra renewed its motion based upon the juror’s intentional nondisclosure. The trial court denied the motion for mistrial, but sustained the motion to strike. The juror was excused and an alternate replaced him. The jury eventually found in favor of Defendant Con-Agra and Plaintiffs appealed for a number of reasons, including a claim of error in striking the juror after the jury had been empaneled.

     The Western District Court of Appeals found that the striking of the juror for possible bias was within the discretion of the trial court and not a reversible error on appeal. The Western District Court took this opportunity to again remind counsel that any research into a juror’s bias should be brought to the trial court’s attention at the earliest possible moment and should not wait until the case has been submitted to the jury. This case serves as another warning from the courts that attorneys representing parties should make every effort to use all available resources to investigate jurors’ background prior to submitting the case to the jury in order to avoid waiving any claim of bias or prejudice on the part of jurors.

     

    Elaine Khoury and Alex Khoury v. ConAgra Foods, Inc.

  • William E. Buckley Joins Lashly & Baer, P.C.

    Friday, June 1, 2012 (St. Louis, Missouri) – William E. Buckley has recently joined Lashly & Baer, P.C. Buckley holds a J.D. from Saint Louis University School of Law and focuses his practice in business services, construction, real estate and taxation law. Buckley was formerly with Gallop, Johnson & Neuman, L.C. He is a member of the American Bar Association, The Missouri Bar, and the Bar Association of Metropolitan St. Louis. Click here to view the press release.

  • EMPLOYERS BEWARE: More Government Scrutiny of Social Media Policies But With a Little Help on the Way.

    On May 30, 2012, Acting General Counsel to the NLRB, issued a report on social media. The report addresses seven recent cases. In 6 of the 7, it was determined that the employer’s social-media policy was, at least in part, in violation of the NLRA. But in one case, it was determined that the social-media policy complied with the NLRA. Employers who have worried about avoiding the scrutiny of the NLRB over social-media policies no longer need to worry. The NLRB provided a safe-harbor sample policy in its entirety. While substantially weaker than most employers’ policies the policy does nevertheless provide some useful guidelines to follow.

  • Brightening Up A Day

    Margaret M. Mooney is busy planting flowers at the YWCA Metro St. Louis during a beautification project on May 19, 2012.  The landscaping of the YWCA front entry was redesigned in an effort to brighten the day for those working and living at the facility, including women transitioning from homelessness.   The firm is working towards completing 100 acts of kindness during 2012 to celebrate the firm’s centennial.

  • James E. McDaniel Receives BAMSL President’s Award

    Tuesday, May 1, 2012 – James E. McDaniel was honored with the President’s Outstanding Service Award by The Bar Association of Metropolitan St. Louis (BAMSL). Mr. McDaniel received the award at their Annual 2012 Law Day.

  • Lashly & Baer Attorneys Recognized for Pro Bono Services at Special Olympics Missouri Spring Games

    Melissa A. Vighi and Lawrence J. Wadsack were recognized during the Opening Ceremonies of the 37th Annual St. Louis Metro Area Spring Games held on April 28, 2012 for providing pro bono legal services to Special Olympics Missouri.

  • EEOC Rules That Gender-Identity Discrimination Is Covered by Title VII

    According to an opinion issued on April 20, 2012, by the Equal Employment Opportunity Commission (EEOC) an employer who discriminates against an employee or applicant on the basis of the person’s gender identity, i.e., transgender, is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964.

    The EEOC decision will apply to all EEOC enforcement and litigation activities at the commission and in its 53 field offices throughout the country.  Numerous cases are pending with federal courts on whether gender-identity discrimination falls within the protections of Title VII.

  • NLRB “Poster Rule” Put On Hold – Again

    The National Labor Relations Board (NLRB) issued a rule requiring most private sector employers to display a poster giving employees notice of their rights under the National Labor Relations Act. The controversial rule’s effective date was to be April 30, 2012. Its status has been uncertain as the legality of the rule was challenged in federal court proceedings. Recently, the U.S. Court of Appeals for the District of Columbia Circuit enjoined enforcement of the NLRB’s “poster rule.” The court’s action came only a few days after a federal court in South Carolina struck down the rule. A federal district court in the District of Columbia had held earlier that the NLRB had the authority to issue the rule but had struck down key enforcement provisions. The rule was scheduled to take effect April 30.

  • DOL Issues: New FMLA Forms

    The Department of Labor finally revised six important Medical Certification Forms used by most employers. The old forms expired on December 31, 2011, leaving a very confusing situation for employers who wondered if it was still acceptable to use an expired form for its FMLA administration. The new forms can be found on the DOL’s website and are: Notice of Eligibility and Rights and Responsibilities, Designation Notice, Certification of Health Care Provider for Employee’s Serious Health Condition, Certification of Health Care Provider for Family Member’s Serious Health Condition, Certification of Qualifying Exigency for Military Family Leave, and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave. The expiration date on the new forms is February 28, 2015.

  • No Title? No Problem?

    A recent decision by the Missouri Court of Appeals for the Eastern District of Missouri is a reminder that title to personal property is not required to prove an insurable interest in that property.  It serves as an example of the court’s general desire to find insurance coverage when possible and the perils of an insurer relying on one issue to the exclusion of others in determining coverage. 

    Pamela Coke and Ward Ferrell purchased an RV from a seller in Sacramento, California.  The RV was titled in the name of, and therefore owned by, Toy Hon USA, a company owned by Ferrell. Coke and Ferrell then used the RV to travel to various states. They spent thousands of dollars in repair costs on the recreational vehicle, built a building in which to store it, and lived in it while building a house.

    In November 2008, Coke was staying in an RV park in Mesa, Arizona when she decided to drive the RV into a nearby mountain range to spend the night.  While driving, Coke became concerned about the RV’s brakes and pulled to the shoulder of the highway to check out a hissing noise coming from the back of the RV.  While Coke was walking next to the RV, it began to roll and eventually tumbled into a ravine.

    At the time of the accident, Coke and Ferrell had an insurance policy with American Family Mutual Insurance Company which included both comprehensive and collision coverage for the RV. Coke and Ferrell were the named insureds on the policy. They made a claim with American Family for the loss of the RV. 

    American Family denied the claim and filed an action against Coke and Ferrell seeking a declaration of no coverage. Coke and Ferrell responded with counterclaims that include a breach of contract and vexatious refusal to pay. The trial court ultimately entered a directed verdict in favor of American Family due to the lack of title in Coke and Ferrell’s name. 

    The Eastern District Court of Appeals reversed this decision.  In support of its decision, the Court of Appeals noted that, generally, title is not a prerequisite to the enforcement of insurance contract.  Instead, in order to enforce the insurance contract, the insured must have an insurable interest in the property both at the time of the contract was made and the time the loss is sustained.  Such an insurable interest may be unrelated to any title, lien, or possession and may exist due to the possession, enjoyment, or profits of the property as well as other benefits growing out of or dependent upon the property.  The Eastern District further noted that Missouri strongly favors finding an insurable interest and the courts will make every effort to find one in order to sustain coverage. 

    The Court of Appeals went on to note that, in this case, the appellants paid for the RV, paid for repairs to the RV, purchased a warranty for the RV, and built a garage in which to store it.  In addition, there was ample evidence that Coke and Ferrell possessed the RV and utilized it for their personal enjoyment. This was substantial evidence that Coke and Ferrell had an insurable interest in the property.

    This case reiterates a series of Missouri decisions supporting the finding of an insurable interest, when possible.  It also reinforces the fact that Missouri Courts will not look to “legal title” alone as a prerequisite or a dispositive fact on the issue of an insurable interest.  Instead, the courts will look to whether the individuals claiming coverage possessed the property and/or received enjoyment, profits, or other benefits growing out of the property, when determining the existence of an insurable interest.

    http://www.courts.mo.gov/file.jsp?id=52439

  • Southern District Clarifies Foundation For Admission of Medical Bills

    The qualifications of the witness and that witness’s necessary testimony for the admission of medical bills into evidence is an issue frequently addressed by litigants and their attorneys in everything from collection matters to tort claims.  The Missouri Southern District Court of Appeals recently issued an opinion providing some guidance on the qualifications of a witness to lay the foundation for the admission of those medical bills as well as the type of testimony necessary to sustain the medical bills’ admission.

    Saint Francis Medical Center in Cape Girardeau, Missouri, filed a collection action against the Reeves family seeking to collect unpaid medical bills relating to the birth of the Reeves’ child.  Only one witness testified at trial, the hospital’s business manager, Roberta Matlock.  Ms. Matlock offered the following testimony:

    • She was employed in the hospital’s business office for 28 years and handled credit, collections, and billing matters;
    • She was familiar with the Reeves’ account;
    • Mrs. Reeves and her child were patients at the hospital;
    • The hospital billed defendants the “ordinary and customary charges” for services and supplies furnished by the hospital;
    • The hospital charges were “fair and reasonable for [its] area” based on her experience working with reimbursements paid by Medicare, private insurance companies, and from studies prepared by independent consultants hired by the hospital to review how its charges align with charges and post by other Missouri hospitals; and
    • The hospital’s charges fall “in the middle end” of that range.

    After this testimony, the hospital offered into evidence the bills for the services and goods it provided to the Reeves.  The Reeves’ attorney made an objection that the witness was not qualified to testify to the reasonableness and necessity of the charges because the witness had not identified herself as a licensed medical professional and that the only evidence was that she works with Medicare and Medicaid and insurance companies and, for the most part, they pay the bills that the hospital sends them.  The court sustained the defendant’s objection and excluded the medical bills from evidence.

    On appeal, the Southern District Court of Appeals reversed the decision. The Southern District found Ms. Matlock qualified to testify about the rates and charges and she laid the necessary foundation for admitting the bills as business records.  The Southern District did note that questions concerning Ms. Matlock’s credibility would be relevant only to the weight the trial court might choose to give the exhibits once they were admitted into evidence.  The Southern District then ordered the trial court to reverse its judgment in favor of the defendants, receive the medical bills into evidence and give them whatever weight the trial court deems appropriate before rendering judgment. 

    This decision clarifies the fact that it is unnecessary to call a licensed medical professional to lay sufficient foundation for the admission of medical bills.  A member of a healthcare provider’s billing staff, assuming they have similar knowledge and qualifications as Ms. Matlock, can provide the necessary foundation for the admission of such exhibits thereby rendering depositions of actual treating healthcare providers unnecessary to obtain this evidence.

  • Managing Your Online Presence

    Lashly & Baer partner, Stuart J. Vogelsmeier, discusses social media and the Internet in the April issue of St. Louis Metropolitan Medicine, “Managing Your Online Presence.”

  • Public Bond Issues in Missouri – Does Proposed Legislation Provide Safeguards or Limitations?

    Missouri municipalities should be aware that eight separate bills were recently introduced in the Missouri House regarding the issuance of bonds. The proposed legislation is a response to last summer’s failure by the firm Mamtek to make good on its plan to set up and operate an artificial sweetener factory in Moberly, Missouri. Mamtek missed payment on $39 million in bonds issued by Moberly, resulting in the city likely defaulting on the bonds, the project halting, and the factory not opening. The bond rating of Moberly was downgraded by Standard & Poor’s as a result.

     

    The bills were introduced in the Missouri House with sponsorship by both Republicans and Democrats. For reference, the bills are house bills numbered 1304, 1771, 1772, 1773, 1774, 1775, 1776 and 1859. While these bills apply to all political subdivisions or local governments, the primary focus appears to be municipalities, particularly smaller municipalities. Based on initial reaction to these bills, ongoing discussion, debate and perhaps proposed bill amendments, could center on whether the bills in fact constitute needed oversight of, or undue restrictions on, public entities with respect to their development projects.

     

    Two of the bills, which would add sections to Chapter 67 of the Missouri Revised Statutes, bill numbers 1304 and 1771, respectively would require political subdivisions to obtain voter approval for any new bond issuance, unless repayment of the bonds is to be solely from revenue generated by the project, and also would require advance notice, to be published, and a public hearing, to be held at a regularly scheduled meeting of the governing body of the political subdivision. The notice must inform the public that the bond issuance may affect the political subdivision’s bond rating, and that bond default may result in adverse consequences, including reduction in credit rating or increase in cost of future borrowing.

     

    Another two of the bills in turn would add new sections to Chapter 108, Missouri Revised Statutes. Those, bill numbers 1776 and 1773, respectively would require the governing body of any local government issuing any appropriation bonds to provide insurance that repays such bonds in the event of default by the local government, and moreover, would require the underwriter and the rating agency for any bond issued by any municipal or local governing body to investigate the financial status and material business claims of any company or project for which a bond is issued and will benefit.

     

    The other pending bills would impose certain requirements on the Missouri Department of Economic Development when economic development assistance or state or local economic incentives are involved. For example, the Department has to share all information which it may have about a company seeking such assistance or incentives, with all local governments and economic development officials competing for that company’s business, and those local governments and development officials must share any negative information they have about the company with the Department. The Department has to develop a five-star system by which to advise local governments of the Department’s opinion on proposals for economic development incentives. Further, the Department must require applicants for economic development assistance to provide third-party verification of financial information when such information is submitted to the Department. If a company seeking development assistance has been licensed to conduct business in the state less than three years, the Department is to require the key officers of such company to pay fees for any basic criminal and personal financial background check.

     

    Given the publicity and political issues raised by the Mamtek matter, as well as the sponsorship by members of both parties, it appears that these bills at some point will move forward in the House. Assuming that the bills do move forward, political subdivisions and local governments should have a strong interest in tracking the process and being involved in the evaluation, discussion and debate.

  • Coupon Arrangement for Health Care Services Approved by OIG

    Lashly & Baer partner, Stuart J. Vogelsmeier, published an article in the Healthcare Financial Management Association (HFMA) Greater St. Louis Chapter Spring Newsletter entitled “Coupon Arrangement for Health Care Services Approved by OIG.”   CLICK HERE to download a copy of the article or visit the HFMA Greater St. Louis Chapter website to view the Spring Newsletter.

  • Illinois Supreme Court Fails to Resolve Issue of Secondhand Asbestos Exposure

    On March 22, 2012, the Illinois Supreme Court issued its decision in Simpkins v. CSX Transport. Inc.(Docket No. 110662). The Court had an opportunity to resolve a contentious issue that has split courts across the country, but declined to do so.

    The issue was whether a party owes a legal duty for secondhand asbestos exposure. CSX argued that employers do not owe any duty to a third-party, nonemployee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace.

    Unfortunately, the majority’s decision delivered by Justices Garman, Kilbride, Karmeier and Theis did not resolve this substantive question. Instead, the Illinois Supreme Court remanded the case to the Circuit Court in Madison County, Illinois, to allow the plaintiff to amend her complaint with additional allegations that CSXwould have been able to reasonably foresee the spouse’s injury from coming into contact with her husband’s clothing tainted with asbestos while working for CSX.

    The majority’s opinion reiterated that Illinois law recognizes that “every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.”

    Justices Freeman and Burke dissented and argued that they would have held that no legal duty is owed for secondhand asbestos exposure as a matter of public policy. The practical effect of the majority’s decision is that in Illinois the courthouse door will remain wide open for an even greater number of plaintiffs to seek damages against defendants they never worked for and whose products they never directly contacted.

    The full opinion can be found at: http://www.state.il.us/court/opinions/SupremeCourt/2012/110662.pdf

  • Seven Lawyers Selected for Super Lawyers Business Edition 2012

    Missouri & Kansas Super Lawyers has selected seven Lashly & Baer, P.C. lawyers for the Super Lawyers Business Edition 2012.  They are John Fox Arnold (Business/Corporate), Kenneth C. Brostron (Personal Injury Defense: Medical Malpractice), Stefan J. Glynias (Business Litigation), James C. Hetlage (Employment & Labor), Stephen G. Reuter (Personal Injury Defense: Medical Malpractice), Michael J. Smith(Personal Injury Defense: Medical Malpractice), and Wendy J. Wolf (Personal Injury Defense: Medical Malpractice). In addition, Kenneth C. Brostron has been selected as the Top 50 St. Louis lawyers.

  • Damage To Your Work And The Duty To Defend – A Case Study

    A recent Missouri lawsuit tested a “damage to your work” exclusion in an insurance policy. This complex case illustrates the danger in an insurer refusing to defend a case where the claim includes damages that may be covered as well as damages that may not.

    Continental Equipment Company hired Cook’s Fabrication and Welding, Inc. to install two mast radial stackers (essentially conveyors to move rocks and gravel from one location to another) at quarries owned by LaFarge North America, Inc.  Greystone, Inc. manufactured the stackers.  After Cook’s completed the installation of the stackers, both collapsed at various times causing damage including impairing the quarries’ ability to continue doing business while the stackers were repaired.  LaFarge and Continental eventually filed a products liability suit against Greystone alleging damages including “lost business, lost business opportunities, lost profits, and expenses.” Greystone filed a counterclaim that included counts against Cook’s for indemnification and contribution alleging that Cook’s negligently installed the stackers. 

    At the time of the stackers’ collapse, Cook’s was insured under a commercial general liability (CGL) policy issued by Mid-Continent Casualty Company.  Mid-Continent initially agreed to defend Cook’s but shortly thereafter withdrew its defense contending that coverage for the incident was excluded by the CGL’s “damage to your work” exclusion.  This clause excluded coverage for any damages in Cook’s work (i.e. the stackers).  Additional litigation ensued and eventually the determination of coverage under the Mid-Continent policy came before the court.  The trial court initially found that the damage to your work exclusion applied and absolved Mid-Continent of any duty to defend or indemnify Cook’s. 

    On appeal, however, the Eastern District Court of Appeals found that the damage to your work exclusion did not apply to all damages claimed.  Because some of the damages claimed were lost profits and the loss of production capacity of the quarries at issue, the Court of Appeals found that the policy coverage did not exclude all damages claimed and, therefore, Mid-Continent had a duty to defend Cook’s in the underlying litigation.  The Eastern District Court of Appeals noted that the duty to defend arises when the facts evidence a claim that is potentially covered and, to be relieved of this duty, an insurer must demonstrate “that there is no possibility of coverage.”

  • Illinois Gives Green Light to Cameras in the Courtroom

    The Illinois Supreme Court’s recent announcement of a pilot program to allow cameras in trial courts has spurred discussions in legal and media circles about how this could impact the outcomes of trials. Some argue that the presence of news or even courtroom cameras could disrupt the case being tried since witnesses may be more hesitant to testify. Others say it gives the public a more accurate account of what goes on in the courtroom. Interestingly, each circuit’s chief judge will decide whether or not his or her courtroom will allow cameras.

    What are the pros and cons of having cameras in courtrooms?  As a trial lawyer for more than 40 years, I can see both sides.  Most of my trial experience is in Missouri courts, where cameras have been permitted for at least 20 years. In Illinois, the Supreme Court and Appellate Court have allowed cameras since 1983.

    The presence of news cameras will likely influence most people’s behavior in a courtroom, including testimony.  Some people will be intimidated by the whole process of being in court, regardless of whether cameras are present. That anxiety is natural, considering most ordinary citizens have little experience giving testimony in front of a judge and jury. Being on camera will probably make many of these folks even more nervous, and they may come across as uncertain or not credible.

    A smaller percentage of people relish the idea of being “on stage,” so to speak. Their behavior and testimony become exaggerated or inflated if they know the cameras are on, particularly news cameras.  This can backfire, though, if the judge or jury sees through the acting and decides the person is not believable.

    Another factor to weigh when thinking about cameras in courtrooms is whether the media will be able to provide more accurate coverage of a trial. Certainly having cameras pointed at witnesses or a defendant could lead to sensationalism in the media coverage, but at the same time, viewers get the opportunity to watch testimony and decide for themselves if they find it convincing.

    Finally, there’s the issue of the attorneys.  Some will preen for the camera and overdramatize their interrogations or opening and closing remarks. We saw this in the O.J. Simpson trial. Sensationalism was rampant in that case because of the celebrity factor, but for local cases in which news cameras are present, we tend not to see this high level of drama.

    Overall, there are many benefits to having access to courtroom video, and for news media being allowed to capture the proceedings in high-profile cases that are of interest to the public (but this is always at the judge’s discretion).  It’s important to note that in prosecutions for sexual abuse there will be no media coverage of the testimony of a victim unless the testifying victim consents. The policy also prohibits media coverage in any juvenile, divorce, adoption, child custody, evidence suppression and trade secret cases.

    Permanent cameras that are installed in many Missouri courtrooms can be helpful because they could allow original testimony to be reviewed in appeals courts, and the video provides a reliable record of the court proceedings should any behaviors or actions come under scrutiny later. Transparency is important, and can result in improvements to the legal system. At times, judges could also release portions of courtroom recordings to the media, which can be helpful as reporters summarize the proceedings.

    Another advantage of cameras is that the public can become more aware of how the judicial system actually works, versus what they see on television dramas and shows such as “Judge Judy.”  Negative perceptions can be corrected, and provide a more realistic picture of the courtroom.

    Those are my thoughts.  What do you think? Should judges allow news media in their courtroom? Why or why not?

  • Lashly & Baer Attorneys Discuss Balancing Work and Life in Missouri Lawyers Weekly

    Monday, March 5, 2012 – Michael J. Smith and James C. Hetlage discuss balancing work/life in Missouri Lawyers Weekly. The article sheds light on the work/life balance by comparing the West and East coast law firms with Midwest firms.

  • Lashly & Baer Attorney Obtains Certificate of Need

    On March 5, 2012, attorney Richard D. Watters obtained a certificate of need from the Missouri Health Care Facilities Review Committee on behalf of Bickford Senior Living. Bickford Senior Living received approval to convert its current independent senior living residence, located in Raytown, Missouri, to a 76-bed assisted living facility.

  • John Fox Arnold selected by St. Louis Business Journalas one of the Most Influential St. Louisans

    February 21, 2012 – Lashly & Baer attorney, John Fox Arnold has been selected by the St. Louis Business Journal as one of the Most Influential St. Louisans, Class of 2012. Click here to view the complete list.

  • Stuart J. Vogelsmeier Named 2012 FIVE STAR: Best in Client Satisfaction Wealth Manager

    Thursday, February 15, 2012 – Stuart J. Vogelsmeier of Lashly & Baer, P.C. was selected as a 2012 FIVE STAR: Best in Client Satisfaction Wealth Manager by St. Louis Magazine, in connection with his representation of health care providers and business owners.

  • Patrick E. Foppe Discusses Transportation Regulations with Ladue News

    Friday, February 10, 2012 – Patrick E. Foppe discussed the proposed new government regulations limiting the number of hours that truck drivers can be on the road with Lisa Watson of Ladue News.  Click here to read her article.

  • Missouri Adjusts Fee Schedule For Medical Records

    February 1, 2012 – The Missouri Department of Health and Senior Services has updated the fee schedule for medical records. Missouri state law requires DHSS to adjust the fee annually based on the inflation rate found in the Consumer Price Index. For paper copies, the new maximum fees for copying will be $ 22.01 plus $0.52 per page fee, and a $20.61 fee will apply to records maintained off-site. For electronic copies, the new maximum fees for copying will be $5.15 plus $0.52 per page, and the total fee is not exceed $25.77.

  • U.S. Department of Transportation Announces New Regulations Reducing the Maximum Allowable Hours Truck Drivers May Drive

    In December 2011, the U.S. Department of Transportation announced new regulations reducing the maximum allowable hours truck drivers may drive. The “hours of service” regulations are designed to reduce driver fatigue and to make sure truck drivers can get the rest they need to operate safely when on the road. Since 1938, the federal government has regulated the amount of hours that a commercial truck driver may drive. The framework for the current “hours of service” regulations has been in effect since 2004 and the new regulations are to go into full effect by July 1, 2013.
     
    The new “hours of service” regulations reduce the maximum number of hours a truck driver can work within a week by 12 hours. Under the current regulations, truck drivers can work on average up to 82 hours within a seven-day period. The new “hours of service” regulations limit a driver’s workweek to 70 hours, a 15% reduction.

    In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. The new regulations retain the current 11-hour daily driving limit.

    Further, the new regulations require truck drivers who maximize their weekly work hours to take at least two nights rest when their 24-hour body clock demands sleep the most from 1-5 a.m. This rest requirement is part of the 34-hour restart provision that allows drivers to restart the clock on their workweek by taking at least 34 consecutive hours off-duty. The new regulations allow drivers to use the restart provision only once during a seven-day period.

    Companies and drivers that commit egregious violations of the new regulations could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by three or more hours could be fined $11,000 per offense and the drivers themselves could face civil penalties of up to $2,750 for each offense.

    While the trucking industry generally supports the current “hours of service” regulations, it is expected to challenge the new regulations in court. The trucking industry will likely argue that the new regulations will increase transportation and shipping costs and destroy jobs. Also, since the current “hours of service” regulations have been in effect, truck related fatalities have decreased by 33% and truck related injuries are down 39%, as compared to all traffic fatalities, which are only down 21%. With positive results under the current “hours of service” regulations, the trucking industry will likely argue that the new regulations are unnecessary at this time. As such, there remains an open question whether the new regulations will survive a court challenge and actually take effect.

  • Lashly & Baer Attorney Re-Elected Chair of USLAW NETWORK’s Transportation Practice Group for Second Term

    Wednesday, January 25, 2012 ― USLAW NETWORK, Inc. re-elected Kevin L. Fritz Chair of USLAW’s Transportation Practice Group for a second consecutive term.  Fritz is the first person within USLAW to receive a second term.  USLAW NETWORK, Inc. is an international organization composed of over 100 independent, defense-based law firms with nearly 6,000 attorneys covering the United States, Canada, Latin America, Europe and Africa.  Among the U.S. based firms, there are over 150 offices in 47 US states specializing in business transactions and litigation.

  • Provision of Complimentary Transportation Services To Patients: Good Business or Regulatory Nightmare

    Lashly & Baer partner, Stuart J. Vogelsmeier, published an article in the Healthcare Financial Management Association (HFMA) Greater St. Louis Chapter Winter Newsletter entitled “Provision of Complimentary Transportation Services To Patients: Good Business or Regulatory Nightmare.” CLICK HERE to download a copy of the article or visit the HFMA Greater St. Louis Chapter website to view the Winter Newsletter.

  • Underinsured Motorist Case Studies

    Two recent Missouri court cases involving uninsured motorists illustrate that courts are willing to analyze specific language of the insurance policies, and that they tend to favor the injured party seeking coverage.

    In the first example, Vernie Long was killed when the F-350 truck he was driving was negligently struck by a vehicle driven by Lucas Dray. The wrongful death beneficiaries sustained at least $450,000 in damages. At the time of the accident, Dray was insured for automobile liability in the amount of $50,000 per person and that sum was paid in settlement to Long’s wrongful death beneficiaries on behalf of Dray, who was then released from further liability.  Long and his surviving spouse had seven insurance policies issued to them by Shelter Insurance Companies, which were in effect at the time of the accident.  The wrongful death class sued Shelter for payment of underinsured motorist (UIM) benefits. The trial court found that the policies were ambiguously worded and allowed “stacking” (use of all of the UIM benefits). Shelter subsequently appealed.

    All the policies had “Other Insurance in the Company” clauses which provided that Shelter’s “total liability under all [its] policies will not exceed the highest limit of any one policy.” The court, however, found that the “Other Insurance” clauses in the Shelter policies created an ambiguity in all the policies. In essence, the “Other Insurance” clause appeared to allow stacking while the “Other Insurance in the Company” clause appeared to disallow stacking.  Because ambiguities must be resolved in favor of the insured, the Missouri Western District Court of Appeals found in favor of the plaintiffs and affirmed a judgment in the amount of $400,000 in damages.

    In another case, Kyle Stewart was seriously injured in a single car collision as a passenger in a vehicle driven by Zachary Tanner. Stewart was insured by Liberty Mutual through a policy with a $100,000 limit for underinsured motorists (UIM) coverage on four separate vehicles.  Tanner was insured by American Standard Insurance Company of Wisconsin through an automobile policy with a $100,000 limit. Stewart obtained a judgment against Tanner for $500,000.  American Standard paid Tanner’s $100,000 policy limit while Liberty Mutual denied Stewart’s claim for payment under the UIM coverage.

    Stewart subsequently sued Liberty Mutual, contending it breached its contract by failing to pay the UIM policy limit of $100,000 on each of the four covered vehicles for a total of $400,000.  Liberty Mutual denied any obligation to make additional payments based upon anti-stacking provisions in the policy.  The trial court eventually granted Liberty Mutual summary judgment on the claim that it owed Stewart an additional $300,000.

    The key to the decision lay in the “Other Insurance” clause language providing that the UIM coverage was excess over any other collectible insurance, which provided coverage on a primary basis.  Because UIM coverage is not primary coverage, stacking would not be allowed.

    Both cases illustrate that courts will give specific effect to the language contained in the insurance policies when analyzing underinsured motorist coverage. Because underinsured motorist coverage is not a coverage required by statute, courts seem to be more willing to specifically analyze the language of the various clauses effecting coverage.  Courts, however, will still follow the general rules of construction in interpreting insurance policies and tend to favor a finding of coverage.

  • Lashly & Baer, P.C. Celebrates 100th Anniversary in 2012

    Saving a bridge, desegregating city schools, and revitalizing downtown are highlights of firm’s history       St. Louis, Missouri (January 4, 2012) – In 2012, the downtown St. Louis law firm Lashly & Baer, P.C. will mark 100 years of service to the St. Louis region. The firm, known for its involvement in civic activities and for handling a number of landmark legal matters, plans to continue its tradition of volunteerism and support of initiatives that benefit downtown St. Louis as well as the entire metropolitan area.

    “For our centennial, we wanted to find a way to reflect our commitment to St. Louis, so we will be renewing and increasing our efforts in community service activities. It’s important for us to know we are making an impact in the city where we live and work,” said Kenneth C. Brostron, President and Managing Partner of Lashly & Baer. “We’re proud of our long tradition of public service and are grateful for the opportunities we have had to make a difference in St. Louis.”

    Many of the firm’s attorneys have been active both professionally and personally in efforts to revitalize downtown St. Louis. In the late 1990s, John Fox Arnold, the firm’s Chairman, took on a leadership role to reorganize Downtown St. Louis, Inc. into a new partnership structure and to create Missouri’s first community improvement district. The Partnership for Downtown St. Louis now actively represents and advocates the interests of residents, business and property owners in all 360 blocks of downtown St. Louis and has helped develop a strong core for the region.

    Over the years, Lashly & Baer has provided counsel to clients engaged in some of the most significant projects in St. Louis including the MetroLink light rail transit system, the St. Louis Convention Center Headquarters Hotel, and the successful effort to transfer jurisdiction of the crumbling, historic McKinley Bridge to the Illinois Department of Transportation for rehabilitation. Arnold tirelessly led each of these projects, and his leadership on the bridge project led his fellow attorneys to dub him “the man who saved the McKinley Bridge,” according to Brostron.

    The firm is also well respected for its work on behalf of the Board of Education for the City of St. Louis in the desegregation case that began in 1972 and brought about equal education opportunities for city students and hundreds of millions of dollars for new and renovated schools in the city.

    Other noteworthy cases for the firm include a 1932 lawsuit involving the Moon Motor Car Company, a Brooklyn National League Baseball Club case in 1946, and the Land Clearance for Redevelopment Authority in 1954 that expanded downtown development.

    “We are very proud of the firm’s accomplishments over the past 100 years and look forward to the next 100,” said Brostron. “It is exciting for all of us to be a part of such a great milestone.”

    The firm was founded in downtown St. Louis in 1912 and led by Jacob M. Lashly. Lashly was considered one of Missouri’s most outstanding trial lawyers and served as President of the American Bar Association and The Missouri Bar. His brother, Arthur, and later his son, John H. Lashly, joined the firm. The firm’s other namesake, David Baer, Jr., joined in 1982.
    Today, Lashly & Baer has 43 lawyers who practice in diverse areas such as health care, government, banking, transportation, education and employment. The firm has been recognized by U.S. News & World Report and Best Lawyers as one of the “Best Law Firms in America,” and its leadership team of Brostron, Arnold, and Richard D. Watters has been named on the list of “Best Lawyers in America” for many years. In addition, Watters was named 2011 St. Louis Best Lawyers Health Care Lawyer of the Year.

    The firm is housed in a former bank at 714 Locust Street, built in 1917 and later converted into law offices when the firm purchased the building in 1978. The firm took great pains to retain the building’s original architectural features, including walnut paneling, the continued use of the teller windows and a magnificent bank vault that is now used as the law library. The thick metal doors and imposing locking mechanisms along with armored walls make this library, and the firm, one of a kind.

    “We like the idea of staying connected to St. Louis’ past, and to our firm’s history, but at the same time we always look forward,” Brostron said. “We’re planning for a future that allows us to continue to represent the needs of our region and clients in a positive way. We’re committed to staying downtown and supporting the city’s growth and success for many years to come.”

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