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(314) 500-HURTEvery personal injury claim is unique, but hearing others' stories can help you understand what to expect. Burger Law offers a new collection of our previous clients' stories and how we were able to help.
Come to our AMAZING CLE on May 29 at the MAC downtown. Full day CLE with all your ethics needs for the year - including How to Surrender your Law License.
Below, I also discuss the ethics rules about law license surrender (like our former County Executive) and two settlements from last week.
I was recently able to get a great resolution for our client, Bob Schneider. Bob was driving on Highway 367 when he was rear ended by a driver who was going too fast attempting a lane change. Bob's car was totaled, with the rear bumper completely knocked off the car.
Bob went to the hospital, where he was evaluated and kept overnight for observation. Bob had CT scans of his neck, back head, shoulder, and chest. He was diagnosed with a reversal of the normal curve of the cervical spine and a hiatal hernia.
Bob received treatment for a year, with maintenance care continuing afterwards. The driver who hit Bob only had a legal minimum policy with coverage up to $25,000. We were able to secure this for Bob while he was still treating. As he continued to recover, we tried to negotiate and then filed suit against Bob's own insurance company.
They initially offered $1,000.00, and did not increase their offer. We continued to press them, and even held depositions. A judge recommended both sides go to mediation. At mediation, we were able to secure $35,000.00 for Bob.
The final total for Bob's accident was more than SIX times his paid and owed medical after adjustments and lien negotiations.
Well, I got rear ended the other day driving home from work. Surprised me.
Even more surprising was that the driver who rear ended me did a hit and run. Took off in her car. I chased them, tried to get them to stop.
After I tell this story, I have a little bit from our CLE below.
They kept moving over to the right to get off the highway. I followed them. They exited but got stuck at a light. I got out and tried to get their information. They just yelled at me.
So, I took a picture of their license plate. A witness had called 911 and followed us off the highway. Nice guy. I chased a bit more then let them go. What's the point?
My wife and the police later told me not to do that again. The reporting St. Louis City Police officer was great. Made a police report.
The next day I called my investigator:
Me: "You get the picture I sent? Can you run that plate?"
Investigator: "Temp tags are hard. Why don't you just call the place where she got the car?"
Me: What?
Investigator: "Look at the picture you took – there's the dealership sticker on it."
Me: "Oh."
So, I called A & E Auto Sales, Inc. Nice people. I highly recommend them. 618-332- 2007.
They gave me the hit and run drivers name, address, phone number and the day she bought the car. I called her. She hung up. I texted – no response.
The police (and I assume the defendant) were surprised I got the info so quick. Hope she has insurance. My neck and low back hurt.
I went to urgent care that day. Then to see my new chiropractor last week.
I think I'll file suit against her this week. Need to find a good lawyer. Don't want to have a fool for a client…
At the CLE, a panel of judges imparted wisdom about what attorneys should and should not do in the courtroom.
The presenters included Angela Turner-Quigless from the Missouri Court of Appeals, Judge David Vincent from St. Louis County Circuit Court, and David Roither, City of St. Louis Associate Circuit Court.
To start, Judge Vincent referenced a statewide survey of the trial judges and commissioners addressing, “What Impresses Judges About Attorneys and What Turns Them Off?” The Ethics of Practice Management: Playing by the Rules (Missouri Bar Survey Edition – 2016 Update)
The top five responses from all responding circuits about what impresses them include: 1) Being prepared; 2) Courteous/Polite; 3) Punctual/Prompt; 4) Professionalism; and 5) Knowledge of Laws. The top five responses about what turns them off include 1) Unprofessional Behavior; 2) Unprepared; 3) Late; 4) Lack of Knowledge of Laws.
Impressed by attorneys who naturally disagree but not disparage opponent, candid on status of law, are punctual, dress appropriately (clients also), have respect for court and others, pre-mark exhibits, prepare instructions early, admit weaknesses of case, have knowledge of facts and applicable law, present case succinctly, provide case law, and properly filling out paperwork.
Also, brevity, promptness, and communicating with opponents and resolving issues. Turned off with increased “personalizing,” gamesmanship, redundancy, addressing clients by first name only, misrepresenting facts and law, providing unconfirmed information, arguing in front of judge or jury, “petty bickering”, lack of civility and professionalism, not accepting court rulings, coaching clients to lie, unprepared, not properly dressed, not informing themselves about the client, details of case, and division procedures, and ex parte communications.
Although there are common themes regarding “dos and don'ts'' in the courtroom, Judge Vincent emphasized that every judge and every courtroom is different. He recommended calling judges’ clerks to ascertain judge-specific quirks.
Personally, Judge Vincent does not like it when attorneys or witnesses interrupt him. Interestingly, he divulged that the judges all talk to each other about attorneys and their reputations, so civility is important!
From a Court of Appeals perspective, Judge Quigless said that she cannot emphasize Missouri Supreme Court Rule 84 (procedures in the Court of Appeals) enough. In appellate briefs, attorneys should not have argumentative statements of fact, and their “points relied on” alone dictate what issues the Court can consider.
She reiterated the importance of preserving issues on appeal during a trial and establishing a proper record. Objections should be specific, an offer of proof must be made, and the precise error must be stated in the offer of proof, because the judges cannot act as advocates. As a practice tip, she strongly recommended that attorneys attach important exhibits to the appendix in their brief.
Judge Roither agreed with the survey that attorneys need to be prepared and not waste his time. He also emphasized civility in the courtroom, among attorneys, with the clerk, and with the judges He explained that the judge has ultimate discretion. If an attorney does not respect him, his courtroom staff, or opposing counsel, he will be less inclined to use his discretion to favor that attorney.
Your reputation and way you conduct yourself in the courtroom matters! As summarized in the judicial survey:
“It is the duty of each lawyer to engage in conduct that brings dignity to and promotes civility in the profession. Toward that end, each lawyer shall be: respectful, trustworthy, courageous, cooperative in all dealings with judges, lawyers, clients and other members of the public that they serve.”
--Gary Burger
Went down to the Blues parade with the family on Saturday. What a great time. Couldn't see much of the parade – but loved the sea of humanity.
Amazing to celebrate this with the whole City. Were there really 1.5 million people there? Below are comments from our CLE and I dive in on 6 ethics questions.
From our CLE, Debbie Champion and I did a fantastic ethics presentation. Here are our top 7 comments to our CLE (there were no bad ones):
RULE 4-1.3: DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client.
RULE 4-1.4: COMMUNICATION (a) A lawyer shall: (1) keep the client reasonably informed about the status of the matter; (2) promptly comply with reasonable requests for information; and (3) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance not permitted by the Rules of Professional Conduct or other law.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 4-8.3:
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
(c) This Rule 4-8.3 does not require disclosure of information otherwise protected by Rule 4-1.6 or information gained by a lawyer or judge while participating in an approved lawyer’s assistance program.
Rule 16.01. (b) Substance abuse causes or contributes to incompetence and malpractice of the law by lawyers and judges, which damages the public and the legal profession. Substance abusers neglect clients, violate rules of professional and judicial conduct and commit crimes.
In order to maintain public confidence in the legal profession and the disciplinary process, the committee shall strive to address substance abuse or addiction problems among lawyers or judges before said abuse or addiction results in complaints or grievances against those lawyers or judges and, when complaints or grievances have been filed, to assist in promptly resolving those complaints or grievances, thereby serving the public and the profession.
The Missouri Lawyers' Assistance Program is a professional, confidential counseling program for members of The Missouri Bar, immediate family members who reside with them, and law students. Through a variety of free services, MOLAP helps individuals overcome personal problems such as depression, substance abuse, stress, and burnout.
Services include:
All MOLAP services are free of charge and strictly confidential. Or call me on my cell at 314-799-4848. I am a member of the MOLAP and the Missouri Intervention Committee.
Well, you can hire an ethics lawyer for more serious violations or handle it on your own.
Draft non-conformational response to Alan Pratzel’s letter citing rules, formal and informal advisory opinions and/or case law. Say why you did not violate any ethics rule.
Your response, along with the complaint and any reply will go to the Regional Disciplinary Commission with jurisdiction for their review. They can dismiss, recommend admission, or if really bad, send it straight to the Supreme Court/OCDC. The purpose of discipline is not to punish the attorney, but protect the public and maintain the integrity of the legal profession.” In re Kanzanas, 96 S.W.3d 803, 807-08 (Mo. banc 2003).
Rule 7.2(c) prohibits providing a thing of value in return for a recommendation for services, i.e., a lawyer cannot pay someone to send him or her a case or to recommend a client to him or her for money.
Distinction between seeking an honest review and seeking an endorsement for a lawyer? A review can be positive or negative, and the attorney requesting the review does not know what he or she is going to get.
The Comment to the MO rule states: “A lawyer is allowed to pay for advertising permitted by this rule but otherwise is not permitted to pay another person for channeling professional work.”
The comments to the ABA rule says “lawyers are not permitted to pay others for recommending a lawyer or services over channeling professional work to them.” The comment also makes it clear that there are a lot of ways that lawyers can pay for being recommended: a lawyer can pay for advertising and communications; a lawyer can pay for employees, agents, and vendors to market for them; a lawyer can pay for business development and staff and web designers and social media consultants; a lawyer may pay others for generating client leads such as internet based client leads; a lawyer may pay the usual charges for a legal service plan or loyal referral service; a lawyer may refer cases to another professional or lawyer with the promise that the other professional will in return refer clients to the lawyer.
Online Legal Marketplaces
Online legal platforms such as Avvo, Legal Zoom, and Rocket Lawyer bring with them the potential for ethical complaints.
Avvo ended its Avvo Legal Services product in 2018, due to concerns it was in violation of legal ethics rules. The platform offered online clients limited legal services provided by a participating lawyer for a flat-fee, determined by Avvo. Client satisfaction was “guaranteed.” Avvo defined the lawyer’s flat-fee, the scope of representation, and the type of services offered. Avvo paid the lawyer after the service was complete, but the lawyer was required to pay a “marketing” fee back to Avvo.
State bar ethics committees in eight states – New Jersey, Virginia, Indiana, Pennsylvania, Ohio, Utah, New York and South Carolina – issued opinions that a lawyer’s participation in the program, and similar programs, violated multiple state ethical rules. Four aspects of the program were found to be the most problematic:
MRCP 56.01- Motion for Protective Order
MRCP 61.01- We rarely, if ever, do this.
(a) Failure to Make Discovery: Sanctions - For the purpose of this Rule 61, an evasive or incomplete answer is to be treated as a failure to answer.
(b) Failure to Answer Discovery Answers - Courts may enter an order striking pleadings/dismissing the action/render a judgment by default against the disobedient party – it can grant additional time to serve answers, but shall provide that if the party fails to answer the interrogatories within the additional time allowed, the pleadings of such party shall be stricken/ action shall be dismissed or default judgment shall be rendered.
(c) Failure to Answer Request for Admissions - Non-answer shall be taken as admitted. If a party denies document genuineness and then the other party proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order for expenses and attorney fees.
(d) Failure to Produce Documents, and Things or to Permit Inspection – Trial court can refuse to allow the disobedient party to support or oppose claims, strike pleadings or parts thereof, stay further proceedings until the order is obeyed, dismiss the action, Order treating failure to obey as a contempt of court; or pay the reasonable expenses, including attorney fees
(e) Failure to Appear for Physical Examination - Court may make any order (f) Failure to Attend Own Deposition – Court may take any action.
(g) Failure to Answer Questions on Deposition - Questioner may move for an order compelling an answer; may complete or adjourn the deposition examination before applying for an order. If the motion is granted, shall require the party/deponent to pay movant’s expenses and attorney's fees, unless action was substantially justified.
Hope all my readers had as great a Father’s Day as I.
--Gary Burger
Happy Independence Day. We are closing our office Friday to let our attorneys and staff enjoy the holiday and a long weekend. Below I celebrate Casey Fluegel’s 10 years working with me and helping our clients and discuss a jury trial last week and one of our lawyers, Genavieve Perino.
But first, I thought I would give you 10 surprising facts about the Declaration of Independence:
While the declaration was adopted by the Continental Congress on the 4th, most of the men did not sign it until August 2nd of that year and New York delegates did not even give their support until July 9th.
July 2nd was when the Continental Congress voted on Independence and the day they thought would be remembered and celebrated as Independence Day.
Most people see the original Declaration on display at the National Archives in Washington, D.C. While it is the original, it is not the only one -- there were hundreds of copies made. These copies are known as the “Dunlap Broadsides”. They were used to spread the news of the Declaration throughout the colonies. The rebels had a great system of copying and disseminating information quickly.
In 1989, a Philadelphia man got very lucky when he found an original Dunlap Broadside copy in the back of a picture frame he bought at a flea market for $4. It sold for $8.1 million in 2000. What a find! A 26th known Dunlap broadside emerged at the British National Archives in 2009, hidden for centuries in a box of papers captured from American colonists during the Revolutionary War.
Thomas Jefferson, John Adams and James Monroe all died on the Fourth of July. Adams and Jefferson both died on the 50th anniversary of the Declaration’s passage. James Monroe died 5 years later on July 4, 1831.
Benjamin Franklin was the oldest signer at 70 years old. But 44 years his junior was Edward Rutledge, a lawyer from South Carolina who was only 26 at the time.
In the movie “National Treasure,” Nicholas Cage’s character claims that the back of the Declaration contains a treasure map written in invisible ink. That is not sure, but there is writing on the back. It reads: “Original Declaration of Independence dated 4th July 1776.” It’s thought this was added as a label, but no one is sure when.
The first time was when the British attacked Washington during the War of 1812, and the second time was during World War II from 1941 to 1944 when it was stored at Fort Knox.10. Every 4th of July the Liberty Bell in Philadelphia is tapped (not rung) 13 times in honor of the original thirteen colonies.
The family and I visited the Midway Aircraft carrier yesterday in San Diego -- It’s a must see. I have so much gratitude for the amazing job our service men and women do. Special Happy Independence Day to members of our Armed Forces and Veterans.
This year we welcomed attorney Genavieve Perino to the firm. She has nearly a decade of litigation experience, and is not afraid to go to trial on any case, large or small. Although the majority of our cases settle, sometimes they do not. Then, we are forced to go to trial to prove to the insurance companies that we are willing to fight to obtain verdicts above their insufficient, low-ball offers.
She recently battled Allstate at trial in St. Clair County, Illinois, and obtained a jury verdict in favor of our client, Dwight Keener. The defendant rear-ended Mr. Keener, but after two years, still had not accepted responsibility for the accident. As a result of the crash, Mr. Keener went to the emergency room, attended 15 chiropractic visits, and incurred $7,431.51 in medical charges. By the end of his two-month chiropractic treatment, Mr. Keener had fully recovered.
This was a smaller, soft-tissue injury case, with very little property damage.
Nevertheless, the Friday before trial, Allstate was still only offering $10,000. With an offer like that, Genavieve and Mr. Keener did not think there was much to lose by going to trial. Judge Kolker presided over the case, which only took one day to try.
The week before trial, defense counsel expressed that he wanted to “admit liability” and just have a trial on damages. This is a common defense tactic used to take the heat off the defendant and make the plaintiff look greedy.
Other times, it is used when they have a defendant who makes a very poor witness. Typically, when a defendant admits liability, they seek to keep the plaintiff from presenting evidence on how the accident happened or testimony of the defendant altogether.
Genavieve had already taken the defendant’s deposition, and knew she made a poor witness. In her deposition, the defendant did not admit fault, but rather, pointed the blame at Mr. Keener. Genavieve thought that the defendant’s demeanor and testimony would help the plaintiff's case, so she filed a Rule 237 Notice, compelling the defendant to appear.
Since defense counsel was not going to have her testify, Genavieve put her on the stand in her case-in-chief as a hostile witness. As expected, she continued to blame Mr. Keener, and made a very poor witness at trial.
The jury found in favor of Mr. Keener against the defendant, and awarded $15,431.51 ($7,431.51 in medical bills, and $8,000 in pain and suffering). We also were awarded $1,000 in taxable costs.
Judge Kolker told Mr. Keener that that was the highest verdict he had gotten on a soft-tissue injury case in the past year, explaining that jurors rarely award 2x medical. We were satisfied with the result, and hope that Allstate will take notice that we aren’t afraid to go to trial, even in small cases, in the face of lowball offers.
Prior to trial, Genavieve successfully argued a motion in limine to exclude certain evidence. The judge ruled in her favor, and held that the defendant could not present evidence of Mr. Keener’s prior injuries to the same body parts at issue, prior lawsuits, unrelated health conditions and the fact that Mr. Keener was on social security disability, among other things.
These rulings really undermined the defendant's strategy to blame plaintiff’s pain on pre-existing conditions. Genavieve argued that in Illinois, a defendant must have expert medical testimony if he wants to claim prior injuries are relevant, even if they are to the same body parts.
The judge agreed, which is consistent with the Illinois Supreme Court’s ruling in Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275 (2000) (holding, “if a defendant wishes to introduce evidence that the plaintiff has suffered a prior injury, whether to the ‘same parts of the body’ or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence.”)
Here at Burger Law, I am happy to be working with another lawyer who has the experience to take cases to trial and obtain great results for our clients.
This past week was the tenth anniversary of my paralegal Casey and I working together and a simple bio in my newsletter is not long enough to tell everyone what she does on a daily basis for my firm.
Ever have someone you love working with, who seems like she can read your mind, and who you're grateful is in your life (other than your awesome wife)? That's Casey.
She goes above and beyond. Oftentimes she knows what I need for a trial, a hearing or a case before I even think about it. She keeps the office standing while I am gone, and is a huge go to person for everyone in my office – paralegals, receptionists, and my attorneys too.
Honestly, she is why the office remains standing even when I am there.
She has a cape on the back of her chair with a pink superman logo that fits her role in the office perfectly. She solves problems before they happen and I am so impressed by her on a daily basis and when I look back to when she first started with me, I am even more impressed.
She can write petitions better than most lawyers and knows how to help clients with their needs. Hate to admit it, but she gets more compliments in our firm's 575 Google reviews than I do.
I continue to beg her to go to law school and one day I think it could happen. Until then, I will continue to be grateful for all she does.
Thank you, Casey.
Have a fun and safe July 4.
--Gary Burger
As it's the middle of summer and my kids are loath to learn anything, I thought it the perfect time to visit with you about jury selection. It’s what I do and truly important to our system of justice.
So below, I discuss the basics of jury selection, challenges for cause, a video of the classic "can we go now" question from my 9-year-old, and great voir dire questions with law to back them up.
The cornerstone of our judicial system lies upon the constitutional right to a fair and impartial jury, composed of twelve qualified jurors. Williams v. Barnes Hospital, 736 S.W.2d 33, 36 (Mo. Banc 1987). It is fundamental that jurors should be thoroughly impartial. Kendall v. Prudential Insurance Co., 327 S. W. 2d 174, 177 (Mo. 1959).
Seven hundred years ago, the Magna Carta guaranteed a person could not be punished without "the lawful judgment of his peers." Voir dire literally means “to speak the truth”. It's when lawyers ask questions of prospective jurors to get “A fair cross section of the citizens of the county for which the jury may be impaneled." Many think that it’s really to get only good jurors for a lawyer's client - which has some truth but the process does achieve a balanced jury.
The purpose of voir dire is to ferret out any bias or prejudice of potential jurors. State v. Ball, 622 S.W.2d 285, 287 (Mo. App. 1981).
Jurors have to be:
“The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the Constitution. A state of mind in a juror evincing bias to either party is a ground for challenge.” Kendall, 327 S.W.2d at 177.
To be meaningful, the constitution “contemplates twelve [fair and] impartial qualified jurors."
People can be excused from jury service under RSMo. § 494.430 because they:
A party “is entitled to a full panel of qualified jurors before being required to make peremptory challenges and that there is prejudicial error in failing to sustain a meritorious challenge for cause.” State v. Wacaser, 794 S.W.2d 190, 193 (Mo. banc 1990).
So, after voir dire, lawyers ask the court to strike jurors for cause who should not serve.
Failure to grant a legitimate challenge for cause is reversible error. State v. Stewart, 692 S.W.2d 295, 298 (Mo. 1985).
RSMo. § 494.470 establishes a juror must be stricken if he/she:
The court should exclude prospective jurors for any potential bias, even though the circumstances may not come specifically within the reason for exclusion set out above. See, e.g., Johnson v. Missouri-Kansas-Texas R.R. Co., 374 S.W.2d 1, 3 (Mo. 1963) (the 494.470 factors are not exclusive grounds for a cause challenge).
A prospective juror is not the judge of her own qualifications. State v. Coleman, 725 S.W.2d 113, 114 (Mo. App. 1987). The court must carefully consider the responses of the venireperson and make an independent evaluation of the juror’s qualifications. Id.
In making its determination, the trial court must analyze the facts detailed by the person and must not accept their own assessment that she could be unbiased. State v. Kaiser 637 S.W.2d 836, 837 (Mo. App. 1982).
The trial court must sustain a challenge for cause if there is any doubt about a person’s impartiality. “If the answers of prospective jurors to questions posed by counsel or the court raise a doubt as to their ability to be fair, such doubt is to be resolved by removing them from the jury panel.” State v. Hamlett, 756 S.W.2d 197, 199 (Mo. App. 1988).
Moreover, when someone gives equivocal responses to questions about whether he can follow the Court’s instructions, such equivocation requires that the venireperson be stricken when challenged for cause. State v. Long, 795 S.W.2d 598, 602 (Mo. App. 1990).
When someone has expressed doubts about her ability to set aside her bias and decide that case on the laws and the evidence without a predisposition against one the parties, she is subject to removal for cause. State v. Houston, 803 S.W.2d 195, 197 (Mo. App. 1991).
When a prospective juror has made unequivocal statements of bias or prejudice, that person must be stricken for cause and cannot be rehabilitated by the other side. State v. Edwards, 740 S.W. 2d 237, 243 (Mo. App. 1987) (emphasis added).
It does not save a venireperson that she affirmatively answered a coercive leading question about whether she believed she could follow the law and the court’s instructions. State v. Wacaser, 794 S.W.2d 190, 192-94 (Mo. 1990).
You need to ask venirepersons about any prejudices or personal feelings which could prevent a panelist from following the court’s instructions. State v. Henderson, 750 S.W.2d 555 (Mo. App. 1988). In particular:
Well, our family got new dogs. Below, I talk about running for the Missouri Board of Governors, how insurance companies try to get out of coverage for lack of cooperation of their insured, a video of my recent ethics CLE and a case success.
Why we did it is pretty sad. Our great dog, Jackson passed away from cancer and our other dog King is going that way as well.
But the happy news is we have these two new 1- and 2-year-old dogs from a rescue in Pacific, Missouri - Kingdom Canine. They do board, training and have a good facility. They also rescue and rehome a lot of dogs. Give them a try if you’re thinking of adding a dog to your family.
If elected, I will work to improve services the Bar provides to lawyers and the public. We need to ensure issues that concerns are heard and promptly addressed.
The election is currently underway and ends on Thursday, August 15. Votes will be tabulated on August 15, 2019 once the electronic voting is closed.
Here are my qualifications:
It can happen. Defendants get resentful that someone is pursuing them or may try to dodge their responsibility. Unfortunately for the claimant, there is an exclusion in every insurance policy - auto or homeowners - that if an insured does not cooperate with the insurance company, the insurance company either: (1) declines coverage all together and there is absolutely no insurance coverage or (2) the auto insurance coverage is reduced from the normal coverage limits to the minimum limits of $25,000.
I settled a case two weeks ago where the defendant did not cooperate with his attorney to answer interrogatories or show up at his deposition. He absolutely refused to cooperate. The defense attorney threatened to reduce the amount of coverage from $100,000 to $25,000.
So, we told the defense lawyer that we did not need answers to interrogatories and did not need his deposition. We were happy to proceed to trial without any participation from the defendant. I made the decision, from a tactical point of view, that if we went to trial, we would not even mention that the defendant was not there (that much) at trial.
That way, we take the wind out of the sails of the insurance company and eliminate the grounds for them to deny or reduce coverage. Who really cares anyway? It was a great liability case and the defendant was questionable.
The defendant had good reason not to show – he had a long criminal history. However, we were still able to ensure that our client had the defendant’s full insurance coverage available to him for recovery. We mediated the case and settled the case for $90,000.
Here are some cases that discuss this issue:
Missouri courts have consistently held that to deny coverage pursuant to a cooperation clause, the insurance company must prove three things: (1) there was a material breach of the cooperation clause; (2) the insurer suffered substantial prejudice by the breach; and (3) the insurer exercised reasonable diligence to get the insured’s cooperation. Roller v. American Modern Home Insurance Co., 484 S.W.3d 110 (Mo. App. W.D. 2015); American Access Cas. Co. v. Alassouli, 31 (N.E.3d 803 Ill. App. 2015). This usually comes down to whether or not there is “substantial prejudice.”
In Hendrix v. Jones, 580 S.W.2d 740 (Mo. banc 1979), the Missouri Supreme Court analyzed the applicability of a non-cooperation clause when a Defendant failed to show up for trial. Noting the defendant’s questionable character, the Supreme Court held that the insurance company could not prove “substantial prejudice” from not having the defendant at trial. Id. at 744-45.
On the other hand, in Medical Protective Co. v. Bubenik, 594 F.3d 1047, the Eighth Circuit Court of Appeals applied Missouri law to analyze a non-cooperation clause. In this case, an insured physician refused to answer interrogatories, participate in discussions, share documents, submit to a deposition, or testify at trial. Id. at 1051. Noting that the defendant withheld useful information from his insurance company and attorneys, the Eighth Circuit held that the non-cooperation clause was applicable in this matter. Id. at 1053.
Our client, Jason, was a front seat passenger in his friend’s vehicle while traveling eastbound on Highway 70 in Lafayette County, Missouri. They were towing a vehicle behind them when another vehicle, also traveling eastbound on Highway 70, struck the towed vehicle. This violent collision caused the towed vehicle to separate from the vehicle in which Jason was a passenger.
Jason suffered severe injuries as a result of this collision, including injuries to his neck, back, head, and both shoulders. Jason underwent conservative medical treatment, incurring $6,492.50 in bills. He also needs a future surgery which is estimated around $42,000. Due to his injuries, Jason has been unable to return to work since this accident in June 2016. Therefore, he has extensive wage loss damages.
The insurance company initially refused to give Jason a fair settlement, so we filed suit. As the suit progressed, we completed discovery and Jason gave his deposition. The defendant did not do either of those. Eventually, the matter was set for mediation.
During mediation, we presented the evidence and legal reasons why our client was entitled to a substantial settlement. At the end of it all, we obtained a $90,000 settlement for our client.
We are proud of the work we did for Jason and the great result we achieved.
I decided to expand my bee keeping by splitting a hive and creating a new one. It went well so far. I took some frames from an existing hive and put them in a box. Those bees will create a new queen by feeding regular larvae Royal Jelly – and they will turn into a queen rather than a regular bee.
But you have to put the hive at least two miles away or they will just go back to the old hive. I let my parents know I would be dropping a hive off in their backyard. The great thing about parents is they have to let their kids do this kind of stuff (or at least mine do).
The election is currently underway and ends on Thursday, August 15. Votes will be tabulated on August 15, 2019 once the electronic voting is closed.
If elected I will work to improve services the Bar provides to lawyers and the public. We need to ensure issues that concerns are heard and promptly addressed.
The defendant truck driver crossed into our client’s lane on Interstate 70, and crashed into her with his tractor-trailer. The impact caused our client’s car to careen into the median, flip over repeatedly, and come to rest on the driver’s side, causing her serious injuries necessitating surgery.
The truck driver fled the scene of the accident while our client was suspended upside down and had to be extracted by emergency personnel forty-five minutes later.
We investigated and filed suit quickly in the case. I was removed to federal court in the Southern District of Illinois. Defendant's often remove cases if they can - they force us to win a unanimous jury at trial instead of 9 of 12 in state court.
As a result of the accident, our client incurred over significant medical charges. She injured her head, neck, left side and left shoulder. She tried to treat conservatively with months of physical therapy, injections, and chiropractic treatment.
However, when that failed, she ultimately underwent successful shoulder surgery. The police investigated the scene of the accident and interviewed two witnesses who both stated they saw the truck driver cross into our client’s lane. In his report, the officer corroborated these statements based upon tire tracks and markings on the road.
The officer wrote that the truck driver initially blamed our client, but then “once faced with the evidence, stopped denying responsibility.” The officer issued the defendant driver a traffic citation for “improper lane usage.”
Subsequently, the truck driver’s employer terminated him. We obtained the Separation Report through discovery, and the reason for termination stated, “Driver was terminated for having an at-fault accident and then falsifying the details of events.”
At first glance, this seemed like a clear liability accident. Based on the police report, witness statements, and the Separation Report, you would think that the defendant would make a settlement offer.
However, during depositions, both the truck driver and his employer’s corporate representative changed their stories and surprisingly blamed our client for the accident, saying she swerved into his lane. The corporate representative was a young safety manager who had never been deposed before. The owner of the national truck company flew in to observe the deposition, and stared down the representative as he futilely tried to explain away the incriminating Separation Report, which he claimed was just an internal document.
In their depositions, the defendant's witnesses lacked credibility or remorse, which we did not think would bode well for them in front of a jury. They refused to take any responsibility whatsoever, and did not offer our client a dime until mediation.
At the mediation, we reiterated that the defendant was an unlikeable corporate truck driver who slammed into our client with a tractor-trailer, lied to police, and was fired for “having an at-fault accident and then falsifying the details of events.”
After a few hours of negotiating, the defendants finally made the $200,000 offer that our client and I were pleased with. Sometimes, even when all the evidence is in your favor, you still have to fight to get a reasonable offer.
Great job Genavieve!!
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