All Posts

Posted in In the community on October 24, 2019   |  by Gary Burger

New Lawsuits II

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 Mo. Rev. Stat Section 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. The 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 cam thisclose 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.