Free Consultation
(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.
Sad that summer is going, going, gone. Let's get down to business.
Diacetyl is dangerous and banned in many countries. It should not be in e-cigarettes. Our firm is pursuing these claims. If you or someone you know needs help, or you want to refer someone to us, contact us please.
Diacetyl is a compound that can be found in e-cigarettes. It imparts a buttery or butterscotch flavor that can enhance the experience of using an e-cigarette or vape-pen. Guess what? It’s also banned in over 28 countries in Europe.
Why? Because the inhalation of this chemical can cause serious and detrimental health effects to your lungs. In some cases, it can even lead to death. But if this chemical is extremely deadly, then why is it allowed in vape-pens?
According to the Centers for Disease Control and Prevention, a whopping 21 percent of high schoolers use e-cigarettes, up from just 1% in 2011.
And recently, the Food and Drug Administration announced it has received 127 reports of seizures and other serious neurological symptoms linked to vaping since 2009. Tobacco and e-cigarette companies want to make money. They need you to be hooked on their products, and nicotine goes a long way to ensuring that you’re chemically bound to their products. But if that isn’t enough, they also want to fool you into thinking that what you are inhaling tastes interesting or good. Diacetyl helps with that.
It gives a buttery or even candy-like butterscotch flavor that will keep you hooked and keep you using it. Diacetyl is dangerous, and even deadly. There is no confusion regarding that. You may be more familiar with microwave popcorn workers dying from exposure to diacetyl. This was way back in 2007.
If Diacetyl was known to be dangerous in 2007, why was it allowed to be used in vape pens and vaping flavors? Greed, plain and simple. Vaping Companies and E-cigarette companies want you to be hooked and to stay hooked to their product.
Many harmful trace metals have also been discovered in e-cigarettes. Most e-cigarettes produce an aerosol by heating an e-liquid with a metal coil. The heating element in e-cigarettes emits tiny particles, sometimes including metals, which can lodge themselves deep into the lungs and get absorbed into the body’s circulatory system.
Nickel, chromium, cadmium, tin, aluminum, silica and lead have all been observed and are potential carcinogens. A 2018 study found that the metals associated with these heating coils were leaching into the liquid solution and into the bodies of people inhaling them. Chronic exposure to such metals has been linked to lung, liver, heart and brain damage, and may also depress immune function and increase cancer risk.
Additionally, while flavoring liquids can vary from e-liquid to e-liquid, propylene glycol (PG) and vegetable glycerin (VG) are essentially universal. These are considered non-toxic when ingested, but may be toxic when inhaled. When PG/VG is heated, it can become oxidized to produce carbonyl compounds, such as glyoxal, acrolein, acetaldehyde, and formaldehyde, a cancer-causing substance.
Vaping seems to be capable of causing a variety of injury patterns in the lung. This reflects the large number of different chemicals involved, which may have variable pathological effects.
Facts alone don’t help you get better, and now you’re suffering from a serious lung illness or disease because of the greed of these companies. What can you do? What should you do?
Call us at [wdac-phone] and we can help.
This week we settled two accidents for two clients for policy limits. In both cases, we knew our clients deserved the full amount of the policy. In both cases, they got really low offers at first. But we didn’t give in and come off of the policy limit demands.
Instead, we regrouped, and re-presented the insurance company with better documentation on their injuries and damages. In each case, the insurance company came back with a policy limit offer.
Our first client, Cori, was injured when a driver ran a red light.
The driver gave false insurance information to the officer at first, so our clients' uninsured insurance wouldn’t accept liability. After some investigation, they discovered the driver did not have insurance. The officer at the scene had gotten a video of the accident from the building on the corner that shows the unknown uninsured driver running the red light.
Cori had significant injuries. Her medical bills alone were more than the amount of insurance available. We demanded policy limits. The insurance company came back with a very low offer – a third of the limits. We refused to come off our policy limit demand.
Instead, we made another demand for policy limits under the new bad faith statute supplementing all medical bills and wage loss, clearly outlining our client’s injuries in the records for the adjuster, and sent the video along again. This time, the insurance company came back offering policy limits.
Our second client, Mike, was injured when a car rear-ended him while he sat at a red light. He had braced for the impact with his hands on the steering wheel, severely injuring his hands and shoulders.
Mike started with conservative treatment, but when the pain did not go away, he consulted a surgeon. After injections into his shoulder joint and an MRI, Mike was diagnosed with a labral tear that would need surgery.
At the same time, Mike was seeing a chiropractor and pain management specialist for his back and neck symptoms. In all, Mike had significant medical bills from the accident. His doctors indicated he would need an additional surgery on his hands to relieve his pain.
Our office made a policy-limit demand for Mike. Again, the insurance company came back with a very low offer claiming prior injuries were the real cause.
Mike had prior shoulder surgery. However, the doctor’s notes were clear – his prior surgery had nothing to do with the labral tear surgery.
Sticking with our policy limit demand, we pulled the specific records where doctors had stated his injuries were a direct result from the accident – highlighting it for the adjuster. We were able to get them to come back with policy limits.
Although fall is coming, the bugs in my yard are still terrible. I decided that I would put up some bat boxes to see if bats will help.
A single bat can eat up to 1,200 mosquito-sized insects every hour, and each bat usually eats 6,000 to 8,000 insects each night.
On the lawyer front, let me talk about my argument in the Western District Court of Appeals on Tuesday, more Lawyer v Lawyer podcasts and a $200,000 med mal settlement we recently completed.
Here's a scary story with Halloween coming up. Our client Roy goes to Wal-Mart on May 20, 2016, for new eyeglasses. He sees Dr. Kenton McWilliams and complains his left eye is painful and tearing.
McWilliams treats Plaintiff with steroid eye drops without doing a diagnostic culture. Roy’s condition gets worse – blurry vision, watering, severe pain and pressure, and light sensitivity.
A few weeks later, Roy sought treatment from another doctor who performed appropriate diagnostic testing and determined that Plaintiff had a staphylococcus infection for which antibiotics were necessary and steroid drops were harmful.
His left eye had become really red.
After his treatment, Roy was left with greatly diminished vision in his left eye and sensitivity to light.
We filed suit and did depositions in the case. We tried to show that Dr. McWilliams breached the standard of care by failing to properly diagnose Mr. Payne, by prescribing Neo Poly Dex, and failing to rule out contraindicated diagnoses (including, but not limited to, fungal infections). If you put steroids in a fungal infection, it’s like putting gas on a fire.
What started out as a likely corneal abrasion and eye infection spiraled into a large corneal ulcer with permanent scarring and vision loss. My Deposition of McWilliams went well – he did not even have a diagnosis when he prescribed the medication. Here are some excerpts:
Q: And then what did you diagnose him with?
A: Well, I wasn’t sure what it was. So, it looked like recurrent corneal erosion. And I have a question mark.
Q: So, then what did you decide to do?
A: I don’t – I think I explained to him there’s something going on, but I’m not sure what it is. I don’t know if I explained the term recurrent corneal erosions because typically, I don’t explain that under those terms.
It does not take an expert to understand that in order to properly treat a condition, you have to know what the condition is. McWilliams didn't.
And the standard of care when prescribing Neo Poly Dex drops requires that an optometrist rule out contraindicated diagnoses, otherwise further damage to the eye, such as corneal ulcers and scarring, can occur.
Q: So, it is the standard of care to rule those corneal, fungal and viral out before you prescribe it; is that correct?
A: Generally speaking, yes.
Q: And you did not rule those out prior to making the prescription that you did, fair?
A: I would say that’s fair in any case, but yes.
Q: Isn’t a – aren’t you supposed to check for a fungus infection before you prescribe that medication?
A: Or at least rule it out.
Q: Did you rule it out?
A: I couldn’t really rule out anything at that point.
Dr. McWilliams had to admit that:
A: Typically if you suspect fungal you wouldn’t prescribe it. If you suspect corneal viral, especially herpes, you wouldn’t want to prescribe it.
Dr. McWilliams also breached the standard of care by failing to schedule a follow up appointment with Mr. Payne to monitor his condition.
Q: Is it important to, if you’re giving someone an antibiotic with a steroid, to do close monitoring of his condition thereafter?
A: I would agree.
Later I asked:
Q: So, you did not tell him to come back in seven days. You told him to take the medication for seven days, correct?
A: Yes.
McWilliams had to admit:
Q: What would you have done differently, knowing the history?
A: Knowing all the history and his visits to the second, third, and fourth doctors I probably would have referred his case right away.
Q: Meaning when he first came to you?
A: Had I known how bad it potentially could have been I would have referred him to a corneal specialist.
Q: So, are you saying you would have referred him to a specialist, May 20, the day you saw him, had you known everything in hindsight, or are you saying that had he called you back you would have referred him?
A: Both.
Not surprisingly:
Q: Did you have complaints about patients – from patients about the care they received?
A: I would say occasionally.
We settled the case for $200,000. There were notes in the medical records that Roy's vision was not significantly diminished and he did take some time before he went and got additional medical care.
Had a blast arguing before the Western District Court of Appeals in our Department of Corrections Class action case. The Judges asked impressive questions of my opponent and I, were extremely well prepared, and got to the heart of the issues quickly.
We are hopeful for a good result. Decisions take months to craft and we will update you with any new information.
It's exciting sports week with the Cardinals entering the playoffs and the Blues opening their season next Wednesday.
In this email, I discuss how to get approval of wrongful death and minor settlements, whether a lawyer can promise to pay a lien in a settlement, the Illinois Lien reduction statute used to reduce liens in settlements, and 10 great things about my recently departed dog, King (and a plug for more Lawyer v Lawyer podcasts featuring interview of CD Longo).
Sometimes when we settle cases, Court approval is required. In Missouri this occurs in two situations: Wrongful Death and a Minor Settlement. In Illinois it occurs if a settlement is made with only one defendant (in my next newsletter/email). We have had a lot of these Court hearings lately.
Under RSMo. § 537.080 and RSMo. § 537.095, the Court must approve a wrongful death settlement. Typically, a Motion or Application for Approval of Wrongful Death settlement is filed with the Court. The lawyer and client appear in Court and the lead plaintiff takes the stand to testify to approve the settlement.
To approve a wrongful death settlement, both the Motion should say, and the lawyer should have their client testify to, the following:
Then, typically the Court will approve the settlement if the terms are fair and just. Sometimes, cases are confidential - in that case you provide the Court with a copy of a document showing settlement, attorneys fees, expense, and distribution plan directly, but do not put it in the Motion. If a case is not confidential, you put those numbers in your Motion for Approval.
The second situation for Court approval that is necessary is in a minor settlement.
Typically, by Court order (and I require with my clients) that the money be put in a restricted account, a conservatorship, or structured settlement. This way all the money goes to the benefit, health, education or welfare of the minor. We have many situations like this.
To approve a minor settlement, there needs to be a Motion for Approval and an Order stating the following:
Then the question becomes where do you put the money from the settlement for the minor. You can put the money into a restricted account with a bank pursuant to the statute.
You can also open a conservatorship in probate court. These forms for conservatorship in St. Louis City or County can be found here and here.
With both conservatorship and restricted accounts, you will have to do yearly reports and accounting to the Court to show what is happening with the accounts for the minor. You can also place the money in a structured settlement. This is an annuity where an insurance company or other investment company holds the money and pays the money out over time. The advantage of this is that you get tax benefits and this is a good way to safeguard the money.
Wait until the Minor is over the age of 18 to pay them. I usually require additional time to get the money out – I do not know many 18-year-olds that handle money smartly. Plan for money to pay for college and then wait for a period of time before the rest of the settlement funds are provided to the recipient.
The tax advantage is that personal injury settlements are not taxable and if you put them in a structure the interest earned on the money is not taxable either. So, the interest on the money for a certain amount of time gets paid eventually in the structure and no tax is paid on that.
If you have any other questions about how to get a wrongful death or minor settlement approved, please call us at [wdac-phone] for more information.
In Missouri, a lawyer cannot guarantee payment of liens in a settlement. The client can, but not the lawyer. Informal Opinion 125 from the Missouri Supreme Court advisory committee states this is a violation of ethics rule 4-1.8(e).
The client has the right to instruct the lawyer not to honor the lien. But see Comment 8 to Rule 4-1.15 (“[a] lawyer may have a duty under applicable law to protect such third party claims against wrongful interference by the client.
In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved”).
Illinois is similar but a bit different. ISBA Advisory Opinion No. 06-01 says that an attorney personally guaranteeing payment of liens is in violation of Rule 1.8(d). It goes on to say, however, that:
"Under Rule 1.15(b), a lawyer representing a plaintiff has an obligation to segregate the settlement funds over which a third party has a claim, to notify persons who have an in interest in those funds (including lien/subrogation claimants) and then distribute the funds owed to said persons. Based on language of Rule 1.15 and the court’s opinion in Western States Insurance Co. v. Olivero, it is clear that a lawyer representing a plaintiff is ethically obligated to identify the portion of funds which are due and owing to a lien/subrogation claimant and to ensure that those funds are properly paid to those entities."
Liens are a huge part of any personal injury case, whether you are on the defense or plaintiff’s side of the “v.” Cases where liens are not at issue are rare.
As a service to clients, I try to reduce liens as much as possible. This obviously puts more money in the client’s pocket. It’s important not only to maximize the settlement amount on the front end, but also to minimize any liens on the back end. Lien resolution also gives finality to the outstanding medical bills for the injured party. And it’s worth noting that both the defendant and the plaintiff want the liens completely resolved.
Managing and resolving liens is an important part of our legal service to clients. Yet, it can be overlooked, an afterthought or dreaded. I have an article on lien reduction which can be found on our Lawyer-to-Lawyer page.
Missouri and Illinois have lien statutes, which are typically used when the liens are large and it would be too hard to get the lienholders to take large deductions. I will do an article about the Missouri Lien Statute in my next email. In Illinois, liens are governed by 770 ILCS 23/1. It is not as strong as Missouri’s law – mostly because in Illinois the lienholder can still pursue the client for the balance after the liens are reduced under that statute.
So, the smart lawyer will try to negotiate the liens down – but the statute guides us as to what a court would do and what is a fair reduction - but it is complicated.
Under the Illinois Lien Statute:
Let me do an example with a $50,000 offer in a case with $29,051.60 in liens. Under this example:
Now, applying these rules to the liens:
Now, applying this to the net settlement for the client:
50,000 - $15,000 (Atty fee + costs of 406.29) - $20,000 (liens) = $15,000
The client could still be on the hook for $9,051.60 in unsatisfied charges.
Call me at [wdac-phone] if you have any questions about the Illinois Lien statute.
RIP King. So sad to lose this partner of mine for 10 years. Here’s 10 extraordinary things about him:
We have three great new lawyer v lawyer episodes up. You can find them wherever you listen to podcasts.
In one, we interview my friend and great lawyer CD Longo about his career and firm Longo Biggs. Congrats to Doug Biggs getting married in a couple weeks.
Our 14,000 correction officer class members and I are grateful to advise that the Court of Appeals for the Western District of Missouri today affirmed the Trial Court Judgment in our $113.7 Million verdict last year.
I said at the oral argument, and repeat here that today, Oct 8, thousands of corrections officers are still required to do pre- and post-shift work and are not paid for it. This is despite our work, the Trial Court Judgment and now the Court of Appeals decisions. You will not find a harder working and deserving group than these officers. I am so grateful to be able to fight for them.
In this email, I discuss parts of the Court of Appeals opinion, what is pre and post shift activity, an article on three new cases we recently filed, and working on my bee hives to guard against hive beetles (cause Jamarin asked about my bees this morning).
The Court of Appeals affirmed the Trial Court's judgment and denied all six points raised by the Missouri Department of Corrections. Here are my 16 favorite quotes from the opinion:
The pre and post shift activity discussed includes:
We have been filing a lot of lawsuits lately. Often, I talk about settlements in these newsletters, but thought I would mention some new suits that cover a wide variety of legal issues. We pride ourselves in representing clients for a lot more than only car and truck crashes.
Wrongful Death against Pam Hupp
We recently filed a wrongful death action against Pam Hupp. Pam was indicted for first degree murder for the death of Louis Gumpenberger. Pam had fraudulently concealed her actions as was reported by many news agencies.
In the criminal case, Pam entered into an Alford plea. An Alford plea is where the individual enters into a guilty plea for the case, but does not admit guilt for the crime itself and asserts their innocence with respect to the crime.
This crime took place in August of 2016, but any assertion that the statute of limitations has run is not a defense she is entitled to under State ex rel. Beisly v. Perigo, 469 S.W.3d 434 (Mo. banc 2015).
To assert the wrongful death claim, we alleged that Louis Gumpenberger was killed as a direct and proximate result of her actions and pursuant to RSMo. § 537.080 and § 537.090 the next kin of Louis Gumpenberger.
Terrence J. Dee v. Synergy Chiropractic Center, et al.
This case was referred to us by a lawyer in Kansas City. Our client went to Synergy Chiropractic Center for a routine adjustment.
While there, the chiropractor negligently adjusted our client’s neck, causing an acute dissection and occlusion of his left vertebral artery and eventually leading to an acute ischemic stroke. We initially filed suit against Synergy Chiropractic Center and Dr. Rodney Bampton.
However, as we learned more about the case, we learned that it may have been another chiropractor that adjusted our client, and amended our petition before the statute of limitations in order to make sure we obtain justice against the proper party. The records say Brampton did the adjustment but it was really another chiropractor.
Because no answer had been in the case, we were able to amend as a matter of course. This case is pending in St. Charles County and is assigned the case number 1911- CC00920.
Michael Asher v. James Mowry and Drain Medics
We filed a petition against one of our clients’ employers for failure to maintain an OSHA compliant work environment. Our client was working as a drain technician and while up on a ladder, the ladder slipped out from under him and he seriously injured himself breaking both wrists.
The ladder did not have footings to keep it from slipping and was provided by the employer. Under OSHA, an employer must provide compliant equipment to its employees. There is a general negligence component but also a negligent supply of dangerous instrumentality.
We alleged both for our client. To allege negligent supply of dangerous instrumentality, we stated it was supplied by the employer, it had a defect, the employer knew or should have known, and they failed to exercise care to correct it and it caused our client damages.
There was also a discrimination component to the petition. This is a work-related injury, and thus a workers compensation claim was filed. After it was filed, our client began to lose pay – his employer was progressively lowering his rate of pay by the week and that it was because he couldn’t afford to pay him and he had a workers compensation attorney.
An employer cannot retaliate against an employee pursuing work comp benefit. This violates RSMo. § 287.780.
I visited with my client Jamarin before his depo this morning. He asked about my bees. So, I am adding this to the newsletter. (Great job in your depo by the way).
I did some work on the hives over the weekend to get them ready for summer and to guard against hive beetles. I drilled holes in the sides of the hive and will block the bottom entrance to make it harder for hive beetles to get in the hive.
It’s a challenge to drill holes and drive screws around thousands of irritated bees. But it went off without a hitch on only one sting. And no, I do not use gloves.
The small hive beetle (Aethina tumida) is a beekeeping pest. It is endemic to sub-Saharan Africa, but has spread to many other locations, including my backyard.
The small hive beetle can be a destructive pest of honey bee colonies, causing damage to comb, stored honey, and pollen. If a beetle infestation is sufficiently heavy, they may cause bees to abandon their hive. Its presence can also be a marker in the diagnosis of colony collapse disorder for honey bees. The beetles can also be a pest of stored combs, and honey (in the comb) awaiting extraction. Beetle larvae may tunnel through combs of honey, feeding and defecating, causing discoloration and fermentation of the honey.
Well, I cannot top my last email about the Court of Appeals affirming our class action verdict. But we have been busy. In this email, I share two stories about our firm's work that were in the news lately – time clocks being installed (wrongly) by the DOC and a new class action we filed for correction nurses.
Then an article on the Illinois Contribution Statute for settling claims among multiple defendants and three other interesting new cases we filed.
We were in the news twice last week: one for a new case we filed and one for a development in our class action case.
‘The state is doubling down on their bad decision’ in not paying corrections officers, attorney says.
The State is installing time clocks at its prisons – but not at the front door of prisons. Here's from the article: “What they’re doing instead is putting these time clocks back in the bowels of the institution,” Burger said. Instead of one timeclock at each prison, the Missouri Corrections Officer Association said it could take as many as 25 to equip each post.
“It’s going to be another failed system,” said Gary Gross, an MCOA spokesman. “It’s going to have to be challenged. It does not comply with the court order, in our opinion.” Meanwhile, the Department of Corrections has stopped talking about it ever since Fox 2 started keeping track of the interest that climbs by the second. Spokesperson Karen Pojman has ignored questions about the time clocks in July, again in September, and now this month, all while an appeals court just last week affirmed the court order and judgment.
We also filed a case for corrections nurses. They have to do the same pre and post shift work that corrections officers have to and do not get paid. The case is not against the State, but against a private employer - Corizon. It is an FLSA claim and we will seek class certification as Corrections Nurses are treated similarly. Here's a quote from the article:
Nurses who work in Missouri’s prison system say they too are owed potentially millions of dollars in back pay, according to a lawsuit filed Friday. In a 20-page suit filed in federal court, a trio of nurses who work for a contractor at the state’s lockup in Licking alleged they have not been paid for work they do once they arrive at the prison.
The lawsuit seeks class-action status covering all current and former nurses in the sprawling Missouri Department of Corrections facilities.
The case mirrors one in which a Cole County jury found that 13,000 current and former correctional officers were owed $113.7 million because the state wasn’t paying them when they entered a prison’s security envelope, even though they were expected to respond to incidents once inside.
The bill for that case has grown by at least $12 million while the state appeals. Unlike the case brought by the guards, the nurses are suing a private company that has been contracted out by the state to provide healthcare for inmates.
Corizon, which has similar contracts across the country, has been paid more than $1.1 billion by the state since 2012.
In 1979 the Illinois Legislature enacted the Joint Tortfeasor Contribution Act (“JTCA”). 740 ILCS 100/2. The goal was to promote 2 policies: encouraging tortfeasors to settle disputes and equitable apportionment of damages among tortfeasors.
It’s a complicated law – mostly because it’s brief and does not give a lot of direction. It also affects other joint liability statutes in Illinois. Below I give some highlights of the JTCA.
The Act itself really only has one requirement: that the settlement be made in “good faith.” 740 ILCS 100/2 (c). The act does not define good faith, does not state what should be considered when making a good faith determination, and does not give guidelines to a court on whether a full evidentiary hearing is necessary to make this determination.
The Illinois Supreme Court has given the only guidance stating “a trial court should consider the totality of the circumstances surrounding the settlement to make this determination. In re Guardianship of Babb, 642 N.E.2d 1195 (1994).
This standard enables the trial court to strike a balance between the public policy favoring the peaceful settlement of claims and the policy favoring the equitable apportionment of damages among tortfeasors. Associated Aviation Underwriters, Inc. v. Aon Corp., 800 N.E.2d 424 (Ill. 2003).
On the flip side, a settlement will not be found to have been made in good faith where there has been collusion, unfair dealing, or wrongful conduct by the settling parties. Babb, 642 N.E.2d 1195.
In addition, a settlement agreement that conflicts with the terms of the Contribution Act or is inconsistent with its underlying policies cannot satisfy the good-faith requirement. Dubina v. Mesirow Realty Development, Inc., 756 N.E.2d 836 (Ill. 2001).
A finding of good faith though is extremely beneficial to the settling tortfeasor. A settlement and the apportionment made in good faith relieves a settling party of any liability for contribution to the non-settling defendants. Babb, at 1198.
Other than the “good faith” requirement, the Act gives restrictions for when it applies, such as only when there exists a right of contribution among tortfeasors where one has paid more than their fair share of the liability. 740 ILCS 100/2(a), (b).
The JTCA also affects apportionment of fault at trial. Until 2008, Illinois courts could apportion liability among plaintiffs, settling parties, non-settling parties, and even nonparties. That changed in Ready v. United/Goedecke Services, Inc., 905 N.E.2d 725 (Ill. 2008).
Courts cannot apportion damages to settling parties anymore. To have a settling party be considered in apportionment of fault, the defendant must implead them as liable to the defendant for contribution. However, if the court made a finding the party settled in good faith, then they cannot be liable for contribution. That is the JTCA at work to promote settlement.
Still filing a lot of lawsuits. We pride ourselves in representing clients for a lot more than only car and truck crashes.
I. Bad Faith Claim – Missouri
We have two bad faith vexatious refusal petitions we filed in Missouri. The first is only over property damage. Our client gave her daughter permission to drive her vehicle. Unfortunately, her daughter was involved in an accident.
The insurance company refuses to pay for anything despite there being an automobile policy that covers the vehicle’s damage and the third-party damage.
Under RSMo. § 375.296, to show a vexatious refusal to pay claim we must show: (1) the claimant made a demand; (2) the insurer failed or refused to pay for a period of thirty days after the demand; and (3) the refusal to pay was vexatious and without reasonable cause.
“A plaintiff who successfully shows vexatious refusal may be awarded, in addition to the amount due under the contract of insurance and interest thereon, damages and attorney fees.” Tauvar v. Am. Family Mut. Ins. Co., 269 S.W.3d 436, 439 (Mo. Ct. App. 2008).
This claim is a first party claim to pay for the insured’s property damage. In order to show bad faith, we have to show: (1) The insurance company assumes control of the negotiation, settlement and defense of the action; (2) the insured has demanded that the insurer settle the claim; (3) the insurance company refuses to settle within the liability limits of the policy; and, (4) the insurance company acted in bad faith, rather than negligence, in refusing to settle. See Dyer v. Gen Am. Life Ins. Co., 541 S.W.2d 702, 704 (Mo. App. 1976).
This is a third-party claim. In Zumwalt the court defined bad faith as when the insurance company has intentionally ignored the financial interest of the plaintiff in the hope that the insurance company can escape its responsibility under the policy. Zumwalt v. Utilities Ins. Co., 360 Mo. 362, 374, 228 S.W.2d 750, 756 (1950).
Since there is an automobile policy, no exclusions for drivers, and the driver had permission, we believe we have a strong case for vexatious refusal and bad faith. If we show both, we can get additional damages, emotional distress, attorneys fees, and possibly punitive damages. Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 589 (Mo. Ct. App. 2008).
The second Missouri bad faith claim stems from an auto accident that happened in 2016. Our clients were hit by two vehicles. They were on highway 270 westbound and the traffic was stopped.
They stopped for traffic and were rear ended by a car that had been rear ended by another car. They had underinsured insurance through their insurance carrier and we demanded payment under them on behalf of our clients.
We settled with the main liable party and obtained permission to do so from our underinsured carrier. However, the other driver did not offer much and came this close to winning summary judgment.
We advised the Underinsured Carrier it was in bad faith for them to require full recovery from the middle driver when we did so from the driver in the back that started the whole thing. We have been trying to talk with the underinsured company for months without significant response.
So, we made a demand and filed suit against the insurer.
One of the underlying claims is going to trial soon so updates to come.
We also filed a lawsuit against a physical therapy company and physical therapist on behalf of two separate patients who were both sexually assaulted during their treatment.
The physical therapist at issue had already been disciplined by the Missouri licensing board for sexual abuse of a patient prior to the assaults against our clients.
Furthermore, several other patients reported his inappropriate conduct to the facility, yet the facility continued to employ him. In our lawsuit, we are alleging counts for assault and battery, medical negligence, general negligence, negligent supervision, negligent failure to warn, negligent hiring and retention, negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages.
We are also asserting that the facility is vicariously liable for the physical therapist's conduct. Even though it is blatantly obvious that sexually assaulting patients does not constitute the practice of physical therapy, we nevertheless have to assert medical malpractice claims due to the strict interpretation of Missouri's statutes since tort reform.
This is very significant because medical malpractice claims only have a two-year statute of limitations, rather than the five years for other personal injury claims.
Even though we have several different negligence theories, courts often require that all are asserted within the two-year statute of limitations since they are levied against medical providers arising out of the doctor-patient relationship.
It’s the middle of the week and I know you're busy.
In this email I share: details of how to make a demand to help clients show an insurance company is acting in "bad faith;" our awesome volunteer experience with Gateway Pet Guardians last weekend; and a partial med-mal settlement and legal ethics rules about pretrial publicity.
Let's get to it.
The Missouri Legislature issued new rules last year with more requirements for a written demand to be put into evidence in a bad faith case.
A bad faith case is when an insurance company should settle a case, but does not and leaves its insured subject to personal liability. It happens often. An insurance company acts in bad faith when it violates duties to an insured (who has paid premiums for years) and does not protect them when they are sued.
Spoiler alert – it worked and we settled Letitia's case for $100,000.
How to do a demand under RSMo. § 537.058 you ask?
First, put all the statutory requirements in the beginning:
Second, describe the incident and damages, like this:
We represent Letitia for injuries she sustained in an automobile accident on August 18, 2017. This accident was caused when an uninsured motorist negligently changed lanes without signaling, crashing into Ms. Letitia Stout’s vehicle.
We previously provided medical bills and records to your client, Geico Casualty Company. For your reference, below is a summary of Ms. Stouts medical costs:
Provider Amount
Total Access Urgent Care $304.64
Accelerated Care Center $3,275.43
Athletico $7,484.17
Greater MO Imaging $6,000.00
Total $17,064.24
After the accident Ms. Stout suffered immediate pain in her left shoulder. She also had pain in her neck, chest, and back. Ms. Stout went to Total Access Urgent Care on August 20, 2018 and reported pain in her shoulder, neck, chest, and back, along with numbness in her extremities. She was diagnosed with a fractured shoulder and rib contusion.
Due to continuing pain, Ms. Stout went to Accelerated Care Center for further treatment. At ACC she reported continuing neck and shoulder pain. She also suffered from numbness, radiating pain, and limited mobility. She was diagnosed with a cervical strain and a CT scan was ordered for her neck and shoulder.
After a CT scan, Ms. Stout was diagnosed with a lumbar strain, cervicalgia, and a torn labrum. She started treatment at Athletico Physical Therapy on September 14, 2017. She attended 16 visits over the course of two months. Ms. Stout received four pain injections for her shoulder, but still continues to suffer from ongoing pain.
Letitia complained of shoulder pain immediately. She indicated this in the police report. She then indicated this to the urgent care center where she went for medical treatment. At the urgent care center, an x-ray revealed that her shoulder was fractured.
Dr. Solman at ACC entered a note on January 16, 2018 indicating that an MRI showed there was a rotator cuff tear and he recommended surgery. He says in his notes and we would expect him to testify at trial, that the tear was caused by this accident.
Letitia’s medical bills and treatment history indicate that this was a serious accident. She continues to suffer from ongoing pain and is expected to incur additional medical costs, including a rotator cuff surgery which would cost $95,000. Plaintiff hereby demands $100,000.00 to fully settle and resolve this claim.
Third, tell them how you complied with the statute:
This is a demand for settlement pursuant to RSMo. § 537.058. This is an offer of unconditional release of liability for Geico from all present and future liability for this case, as described by RSMo. § 537.060.
This demand is:
We believe, because of the clear liability and our client’s extensive injuries, it would be faith for your client to not settle this case for the policy limits. If you need any further information or documents to evaluate this claim, or have any questions, please let me know. Call me at [wdac-phone].
Fourth, accept the policy limits like we did for Letitia or go to trial and pursue the bad faith case.
We had a great time volunteering at Gateway Pet Guardians in East St. Louis on Saturday. Gateway provided straw to area pet owners to line dog houses for warmth this winter. We had tons of folks come by for straw and to visit.
Gateway Pet Guardians truly earns its slogan "Beyond Rescue." It is a nonprofit animal welfare organization in the East St. Louis metro area by providing resources to the community in order to eliminate homelessness for dogs and cats. I am really proud of my wife Kristen, for her work on the board. Gateway works hard to rescue strays in East St. Louis.
But they also exert a huge effort to make sure that good pet owners in ESL can take care and keep their pets – and go Beyond Rescue. We all know how much pets can enrich our lives - but they can be expensive. Gateway assists with vaccinations, spay and neutering and food for dogs and cats.
They teach pet owners best practices for animal care too. They reduce strays by keeping them home’d in the first place. They do weekly outreach, knocking on doors to support dog owners and teach responsible ownership.
For their latest project, Gateway Pet Guardians will turn the former Miles D. Davis elementary school into a community resource center to bring much needed animal services to the area.
They bought an entire school to transform it into a center for pets in East St. Louis. They are cementing their presence in the community to make life better for pets and the people who love them.
Their volunteers also feed the strays in East St. Louis on a daily basis. When a foster family comes forward, they can then rescue one of the many dogs in the area. All of Gateway Pet Guardians’ adoptable animals are in the care of loving foster families within their network while they patiently await their turn to be adopted to a forever home.
They also have an Emergency Shelter located at 5321 Manchester Avenue in Saint Louis. Due to the emergency nature of the animals in our care, our shelter is not open to the public.
Super proud to settle part of a medical malpractice case for the Irving Family.
We settled part of the case as some defendants accepted responsibility. We will continue to pursue the ones who have not. But I will not talk about it too much here for two reasons: First, confidentiality is often part of med-mal settlements.
Also, did you know there is an ethics rule about pre-trial publicity?
Rule 4-3.6 provides:
TRIAL PUBLICITY(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
But a lawyer may state:
But what happens when the other side talks? Well then:
(c) Notwithstanding Rule 4-3.6(a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this Rule 4-3.6(c) shall be limited to such information as is necessary to mitigate the recent adverse publicity.
With Thanksgiving next week, our focus is on thanks.
A recent settlement we completed underscores how fragile life is and a reminder to have gratitude for our families and loved ones.
I discuss this case below and dive in on sovereign and official immunity in cases. I do not have any family pics or descriptions in this one – didn't feel right.
We represent Paul’s family. He tragically died last year. He was traveling with his wife near Potosi Missouri on highway 185 when they encountered a car crash.
Being the kind of guy Paul was, he stopped his car and got out to help. He was walking to the top of a ridge to flag oncoming vehicles when he was hit and killed. He was walking in the center of the highway.
Devon DeClue was responding to the first accident on behalf of the Potosi Fire Protection District. As the police report states, DeClue:
It was a tough case in that Paul was in the middle of the highway and DeClue was responding to an emergency as a volunteer EMT. But the reconstruction stated DeClue was going 60 mph at a minimum. This was not that fast on a highway. DeClue should only have been going 45 mph.
The reconstruction report also correctly noted that DeClue was “responding with the fire department to assist with the first crash and should have been aware a crash was in the area.”
We noted that multiple other cars were able to successfully stop without hitting Paul or other cars. All of the witnesses listed on the police report state they saw Paul, knew he was flagging down cars, and were all able to stop safely.
We filed suit and engaged in discovery. We negotiated with the other side and were able to agree to a settlement. The money will go into a structured settlement for Paul’s sons and his wife. Such a sad case to handle.
So lucky to be able to help the family – we also had to open a probate case to get Paul’s life insurance proceeds. And lucky to help provide financial security for them in the face of this tragedy. Legally in a case like this we navigate sovereign and official immunity, as discussed in the next article.
Sovereign immunity has been recognized in Missouri since 1821 and official immunity has been recognized since 1854. Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. 2008).
Both types of immunity derive from the British common law. Sovereign immunity reflects the British common law idea that the “King can do no wrong.”
In Missouri, official immunity was adopted in Reed v. Conway, 20 Mo. 22 (1854), also from British common law, based on the idea that public officers are immune from liability for discretionary decisions, so long as their motives were “not tainted by fraud or malice.”
The law surrounding each has application to many different types of political subdivisions and public employees. It is helpful to provide an overview of the laws, and then specify their application to different defendants under current Missouri law.
State Sovereign Immunity
The State of Missouri and its governmental divisions are generally immune from suit for torts, as they are sovereigns. RSMo. § 537.600. However, § 537.600 provides that immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is expressly waived in two instances and a third instance is covered in RSMo. § 537.610.
Those 3 instances where sovereign immunity is waived are:
Four notes on these waivers (and a note on Illinois handling of sovereign immunity):
First, for negligent design claims against the Missouri Highway and Transportation Commission (don’t sue MODOT), they have a special defense. If the highway department can prove that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards, they get a complete bar to recovery. § 537.610(2).
Second, RSMo. § 537.600.2 clarifies that the waivers of immunity are absolute waivers of sovereign immunity.
Third, longstanding case law interpreting the statutes holds that municipalities waive sovereign immunity for governmental functions to the extent they are covered by liability insurance. Southers, at 609.
Where a party can show the existence of insurance and that it specifically covers the negligence at issue, immunity for public entities has been waived under Missouri statute. Brennan v. Curators of the University of Mo., 942 S.W.2d 432, 434 (Mo. Ct. App. 1997).
Fourth, under RSMo. § 537.610, the maximum amount of coverage shall not exceed $2 million for each occurrence and shall not exceed $300,000 for any one person. Further, if coverage of the insurance is less than these amounts, immunity is only waived up to the coverage of the amount of insurance.
No award for damages against a public entity within RSMo. § 537.600 and § 537.650 can include punitive or exemplary damages. RSMo. § 537.610(3).
Lastly, Illinois has a slightly different model. In Illinois, the Illinois Court of Claims has exclusive jurisdiction to hear all claims against the state founded upon any law of the State of Illinois, founded upon any contract entered into with the state, and all claims against the state for damages in cases sounding in tort. 705 ILCS 505/8.
Further, pursuant to Court of Claims Act § 22-1, any person who brings a claim for personal injuries in the Court of Claims must file specific notice of the claim within one year from the date of the injury or when such cause of action accrued in the office of the Illinois Attorney General and the Clerk of the Court of Claims. 705 ILCS 505/22-1.
Municipality Sovereign Immunity
Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996) -- found common law sovereign immunity belonged only to state entities and sometimes municipalities. Municipalities are not provided immunity for proprietary functions but are immune under sovereign immunity for governmental functions. Id.
Proprietary functions are performed for the benefit or profit of the municipality as a corporate entity. Id. On the flip side, governmental functions are those performed for the common good. Id.
The operation and maintenance of a police force is a governmental function. Fantasma v. Board of Police Commissioners, 913 S.W.2d 388, 391 (Mo. Ct. App. 1996).
Further, employees are not entitled to the sovereign immunity of their state or municipality employers. Per Southers, even though municipalities act through employees, the waivers of immunity applicable to municipalities and political subdivisions do not abrogate official immunity protections afforded to public employees. Southers, at 609.
If municipalities have tort immunity, they still waive immunity with auto and premises claims, and applicable insurance. RSMo. § 71.185 and § 537.610; Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. Banc 1996).
Official Immunity
Employees of governments sometimes get Official Immunity, which is a judicially created doctrine. Official Immunity protects public employees for the alleged acts of negligence committed during the scope of their official duties for the performance of discretionary acts. Davis v. Lambert-St. Louis International Airport, 193 S.W.3d 760, 763 (Mo. banc 2006).
This means the doctrine does not provide protections for torts committed when acting in a ministerial capacity. Kanagawa v. State, 685 S.W.2d 831, 835 (Mo. banc 1985).
Classifying an act as discretionary or ministerial depends on the degree of reason and judgment required. Kanagawa, 685 S.W.2d at 836.
Courts use a three-pronged test to determine how to classify an act. You consider: 1) the nature of the public employee’s duties; 2) the extent to which the act involves policymaking or exercise of professional judgment; and 3) the consequence of not applying official immunity.
Because the defense of official immunity is personal to a public employee, it cannot be extended to protect his employing government entity sued under the doctrine of respondeat superior. Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. 2008).
A government employer may still be liable for the actions of its employee even if the employee is entitled to official immunity because the doctrine protects the employee from liability, but it does not erase the existence of the underlying tortious conduct for which the government employer can be vicariously liable.
Application of official immunity law regarding paramedics includes an additional step in the analysis. Courts must still determine if the action was discretionary or ministerial, however, first courts now ask if the defendant was operating in a “true emergency situation” with limited information available.
If so, then their decisions are judged based on the information they had available at the time. Thomas v. Brandt, 325 S.W.3d 481 (Mo. Ct. App. 2010). However, simply because an action is taking place during an emergency does not mean it is automatically discretionary. This was the court’s finding in Richardson v. Burrow, 366 S.w.3d 552 (Mo. Ct. App. 2012) (“Richardson II”).
Richardson II, decided after Thomas, involved the failure of EMT personnel to intubate a patient properly during transport when the patient’s stats fell below 80. The court found the paramedic did not engage in discretionary conduct because his conduct was mandated by the criteria requiring intubation under the circumstances presented – even if the circumstances were emergent in nature. Id.
There, the court pointed out that even in a true emergency, an act can still be ministerial. Even in the emergency situation, the paramedic had all the information necessary, but just did not act according to the policy correctly.
Police Officers and Firefighters
Normal traffic accidents and high-speed chases where a fleeing vehicle injures someone, constitute some of the vast situations where the defendant is a police officer. The main case applicable to these situations is Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. 2008).
Debra Southers sued the City of Farmington and individual police officers for negligence. The police officers were responding to an emergency and were engaged in a car chase with the suspect. While in chase, the officers crashed into a vehicle, killing two people and injuring Debra Southers as well. The plaintiffs sued the city and the officers involved in the chase and collision.
The issue before the Missouri Supreme Court was who had what immunity. The court ultimately found that the officers who were involved in the accident were immune from suit. The Court in Southers stated that the official immunity doctrine applies to officers responding to emergencies.
If the conduct is in the course and scope of employment – and for officers an emergency is just that – they are immune from suit. However, if the officer is not responding to an emergency, then they might not be entitled to official immunity. Subsequent cases have attempted to draw a line where acts are discretionary.
In Rhea v. Sapp, 463 S.W.3d 370, 372–73 (Mo. Ct. App. 2015), as modified (Apr. 28, 2015), Margaret Rhea filed a wrongful death suit against multiple defendants after her car was struck by a fireman responding to a fire. The question on appeal was whether the individual firefighter was entitled to official immunity.
The firefighter alleged he was performing a discretionary act and the court agreed. Id. at 376. The court found the individual firefighter acted in the course of his duties as chief of the fire department when he responded to the fire. Id. at 378. Based on the circumstances known to him at the time, the firefighter exercised his discretion when he elected to speed while traveling to the fire. Id.
This required judgment on behalf of the firefighter in determining the speed he could travel in response to a call from dispatch of a fire on a cattle trailer in the middle of the highway. Id.
What if the firefighter violates internal policies on speeding: “[p]ublic employees' conduct that is contrary to applicable statutes or policies can constitute evidence that their conduct was negligent, but that conduct does not remove their negligence from the protections of the official immunity or public duty doctrines where the provisions at issue indicate no intent to modify or supersede these common law immunity protections.” Southers, at 617.
In McCormack v. Douglas, 328 S.W.3d 446 (Mo. Ct. App. 2010), the court considered whether the official immunity doctrine applied to a volunteer firefighter. The court found the volunteer was entitled to official immunity and there was no bad faith because the volunteer violated the district’s policy and without more, the facts amounted to negligence during the course and scope of employment and performing discretionary acts. Id. at 451.
521 W. Main Street Suite 201 O
Belleville, IL 62220
By appointment only
(618) 500-4878 GET DIRECTIONS332 S Michigan Ave Suite 900
Chicago, IL 60604
By appointment only
(312) 500-HURT GET DIRECTIONS100 Chesterfield Business Pkwy Suites 200-222
Chesterfield, MO 63005
By appointment only
(314) 648-8348 GET DIRECTIONSNO FEES UNTIL WE WIN YOUR CASE
We offer free consultations and are available 24/7 to take your call. Live chat, text, and virtual meetings are available.
or call us at
(314) 500-HURT