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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.
Below, I share a story on our amazing young attorney Mike, a recent Illinois underinsured win, an appeal we are filing with the Appellate Court and some great Lawyer v. Lawyer podcasts.
But first, did you know:
We recently settled an uninsured claim for our client Andy in Illinois for $92,000. Andy was injured when a car crossed over the center line and hit him head on. The other driver was driving too fast around a curve and caused the violent collision.
After Andy was hit, the defendant showed him an insurance card. We put the insurance company on notice, but they claimed they did not insurance the other driver.
After some back and forth with the insurance company, it turns out they had dropped him for failure to pay premiums. Surprise to Andy – no insurance.
We were able to switch gears quickly and filed an uninsured claim against Andy's own insurance. Andy needed wrist surgery for numerous fractures that required plates and screws. But he recovered well and is back to running his businesses.
We were able to get Andy a great settlement so he can put this all behind him. Great to represent such a great guy.
Last week we filed an appeal to the Eastern District Appellate Court. We did so because a trial court granted summary judgment against us based on Sovereign and Official Immunity for a City and its EMS employees.
Public officials are not protected by official immunity for “torts committed when acting in a ministerial capacity,” and immunity only applies to discretionary acts. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. Banc 2008).
The Missouri Supreme Court has explained that “a discretionary act requires ‘the exercise of reason in determining how or whether an act should be done or course pursued.’” Kanagawa v. State, 685 S.W.2d 831, 836 (Mo. banc 1985).
A ministerial act is performed “in a prescribed manner, in obedience to the mandate of legal authority, without regard to [the public official's] own judgment or opinion concerning the propriety of the act to be performed.” Richardson v. City of St. Louis, 293 S.W.3d 133, 139 (Mo. App. E.D. 2009).
EMS workers are protected by immunity only in situations where they are exercising discretion and not simply following protocol. Richardson, 293 S.W.3d at 142. When “presented with fixed and designated facts giving rise to a duty,” EMS workers are not immune. Richardson v. Burrow, 366 S.W.3d 552, 556 (Mo. App. E.D. 2012) (“Richardson II”).
Whether an act is discretionary is “made on a case-by-case basis, considering (1) the nature of the public employee’s duties; (2) the extent to which the act involves policymaking or exercise of judgment; and (3) the consequences of not applying official immunity.” Southers, 263 S.W.3d at 610.
Moreover, the law only gives official immunity to state employees if they are performing a duty that requires their professional judgment or discretion. This is a discretionary duty.
The law does not afford immunity if there is a set protocol that instructs the employees on exactly what to do given a specific set of facts since no professional judgment would be required. This is a ministerial duty.
Missouri statute specifically says Sovereign immunity is waived if the City has purchased liability insurance to cover the at issue negligence. The city in this case bought insurance to cover the negligence of EMS personnel.
Under Missouri statute, a public entity can purchase tort liability insurance, and in doing so statutorily waive sovereign immunity. RSMo. § 71.185 and § 537.610. Courts have interpreted these statutes and have long held 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 is waived. Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo. App. W.D. 1997).
In our brief we argued hard that the EMS personnel were performing ministerial duties. Can't wait to give my oral argument.
Thanks to everyone who came out to the May 29 CLE with Debbie Champion, Robert Cohen, Mike and I. It was a fun day and everyone learned a lot.
Check out past podcast episodes here.
Hope your summer is going great. Mine is. Had a great road trip with our family for a family reunion in Chicago last weekend. Read to the end learn about Illinois Liens, a $220,000 settlement, and our social media and driving scholarship.
We are excited about our 2018 Dangers of social media and driving scholarship. We will support a student passionate about raising awareness of the risks of using social media while driving.
We will award $2,000 towards the education of a student who creates a plan to teach their peers about the dangers of distracted driving. Please visit our scholarship page to learn how you or someone you know can apply. We will implement the idea of the scholarship winner.
So many crashes are caused by distracted driving and the numbers are only continuing to rise. Burger Law wanted to be a part of the change, by alerting young people to the dangers.
By engaging people to think through solutions, maybe together we can help stop people from using social media and texting while driving.
George Robinson was making a delivery to a defendant’s warehouse. As he was going through a door to make a delivery for his employer, he tried to hold it open for an exiting UPS delivery man. The door unexpectedly sucked close and traumatically amputated part of his right index finger.
He was working at the time and pursued a workers’ compensation claim. We did not represent him in that and he settled that case. He then came to us and we pursued a premises liability claim for the dangerous condition of the door.
I took the designee deposition of the defendant and made the case. He admitted that because of the exhaust fans in the warehouse, a draft would suck at the door at issue and cause it to close hard. This was a longstanding problem and the draft could slam the door hard.
There was also a door closer apparatus at the top of the door which had never been repaired or adjusted. Door closers usually work to slow how doors close so that people’s digits are not slammed in a door jam. He admitted this did not work for a long time with the door at issue, had never been repaired and had never been adjusted.</p.
We conclusively proved the Defendant had knowledge of this hard door closing and its danger for a long time prior to the incident at issue in this case. Defendant’s designee admitted the door was unsafe. He agreed that the force with which the door closed was very hard.
We thought we would succeed in showing the jury that the door suddenly slamming shut was a dangerous condition of the defendant’s premises. Defendant knew of but did not warn of this condition. The Defendant failed to either prop the door open or maintain the door closer to ensure that injuries like what happened to Mr. Robinson would occur. Or it could warn of the condition or do other changes to affect the draft.
George had an initial revision of the right index finger at the level of the middle distal phalanx and later needed another surgery to remove parts of the finger to help healing and try to stop some pain George experienced.
In his deposition, Mr. Robinson complained of daily pain and aches, numbness and sensitivity in his finger. He complained of swelling which increased over the course of the day. He was a piano player and essentially stopped playing because the amputated finger threw him off. He cannot type well with his shortened finger on a keyboard.
George had about $20,000 in billed medical expenses and we settled his claim for $220,000. We paid off his work comp lien after successfully reducing it.
Eliminating or even reducing medical liens in Illinois is no easy task and must always be considered before settling a claim. The Illinois legislature has made it clear that medical providers will recover all or at least a substantial amount of their medical bills when rendering services to an individual involved in a lawsuit.
Medical lien reduction in Illinois is governed by the Healthcare Services Lien Act (770 ILCS 23/1). The Act abolished the Illinois Supreme Court holding in Burrell v. Southern Truss, 176 Ill. 2d 171, 679 N.E.2d 1230 (1997).
Prior to the Health Care Services Lien Act there were numerous lien statutes. In Burrell, the Illinois Supreme Court held that each category of lien holder, and there were many, was entitled to assert a lien of up to 33.3% of the settlement amount which could lead to no recovery for a plaintiff.
The Healthcare Services Lien statute consolidated all other healthcare liens into two categories: healthcare professionals such as licensed physicians, dentists, optometrists, psychologists or physical therapists; and health care providers like licensed hospitals, surgery centers, home health agencies, and emergency medical providers.
The charges must be reasonable and total health care services liens cannot exceed 40% of the gross settlement. Each category is limited to 20% of the gross settlement and 40% combined. If the lien amount is more than the statutory percentage of the gross each provider within that category is to share on a pro-rata basis.
Illinois Courts are reluctant to reduce liens outside the boundaries of the Statute. In a recent case we attempted to reduce multiple medical liens from uncooperative medical providers. One particular surgical charge was quite expensive and our client had got a bad result and needed a second surgery. The court noted that the total amount of lien was within the statutory boundary and there was no provision for reducing a lien due to a bad surgical result.
However, we were able to extinguish the lien of the provider who at first accepted our client’s insurance but reversed the payments when he learned that his patient was a plaintiff in a lawsuit.
While the Illinois healthcare lien statute protects providers and professionals bills up to 40% of the gross settlement amount the statute places strict requirements on the placing the lien.
The lienholder must provide written notice containing the name and address of the injured person, the date of the injury, the name of the health care provider and the name of the party liable to the injured party.
The lien must be served by registered or certified mail or in person on the injured person and the liable party. Failure to provide proper notice will likely lead to the lien being extinguished or reduced.
Last Wednesday, a Cole County Jury returned a verdict for $113,714,632.00 for the class of Corrections Officers I represent. This was the latest chapter in a case I have litigated for years. From my voir dire, through opening, 16 live witnesses, the defense case and closing, it was a true pleasure to see our civil justice system working in Missouri’s capital. The front-line Corrections Officers and Sergeants testified at trial that the Department of Corrections required them to perform pre and post shift work but refused to pay them for it. The jury awarded a little more than the amount I requested in closing. We presented damage evidence for the 11-year class time period to pay for the wages earned in pre and post shift activity by the 13,000 class members.
They calculated our expert's report and testimony to arrive at a damage figure to the dollar. I am grateful to the 711-year team of lawyers, legal professionals and clients who gave their all for years to accomplish this.
I am so lucky to have been able to represent these hard working and honorable men and women Corrections Officers fight the Missouri Department of Correction’s dishonorable system. My clients and I hope this verdict tells the DOC to stop making their officers work and refusing to pay for it.
I asked the hard-working jury to hold the DOC responsible for not fully paying their employees. Because the DOC breached its agreement with its officers, it is responsible for all the harm it caused. I asked the jury to not “leave anyone behind” in the verdict for this large veteran-comprised workforce. We put on a strong case and our evidence sought to simply show the damages to the class.
The court entered judgment on the verdict on Friday where we also obtained a declaratory judgment that the DOC violated its agreement with the class and their Union, MOCOA. I hope the Department of Corrections takes this opportunity to pay this verdict and change its system for the hard-working officers continuing to work and not getting fully paid.
The officers are forced to go into the prison, report, get keys and radios, go through metal detector and x-ray machines, go through airlocks, scan ID, fingerprint IDs, and they then pass through a number of the gates to their post.
When they get to their post, they have to exchange information with the person they are relieving in order to be able to do their job. For all this, the state refused to pay them. For years.
My response: This is not about weekend games - it's about wage loss for hard working officers; and our expert was not an amateur archer or bowler, rather he was a professional economist - much more like the professional bowlers or archers who hit the bullseye or bowl a strike every time.
I cross-examined him and pointed out how different his testimony was from all discovery answers - interrogatories and recent Requests for Admissions. Because of the defendant's discovery abuse, the Court correctly instructed the jury not to consider his testimony.
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