December 2009 Archives
Missouri Supreme Court hands down 2 rulings related to Missouri Uninsured Motorist Coverage Personal Injury Claims
Jason L. Rice v. Shelter Mutual Insurance Company, Missouri Supreme Court - SC90139
Ambiguities in insurance policies are construed in favor of the insured, this is because the insurance company is the one who drafted the policy and any ambiguities or mistakes must favor the insurer or victim as they did not draft the policy.
In the above mentioned Missouri Supreme Court case the court ruled that a Shelter Insurance Missouri auto policy excluding and including certain amounts or policy limits for total uninsured motorist coverage was ambiguous and therefore unenforceable. In one portion of the policy it guarantees additional coverage for Missouri uninsured motorist claims and then under another provision attempts to limit it.
For the full opinion regarding ambiguous UM policy provisions see Rice v Shelter.
Debra Derousse v. State Farm Mutual Automobile Insurance Company, Missouri Supreme Court - SC90093.
Missouri Statute requires uninsured motorist coverage to cover damages caused by owners or operators of uninsured motor vehicles for "bodily injury, sickness, or disease" See Mo Statute 379.203.1
In the above Missouri Supreme Court case it was determined that mental injuries are included as the personal injury plaintiff's lawyer plead that her mental injuries were a sickness under the Statute and the Court agreed that mental injury is a sickness.
This case stemmed from a St Louis motor vehicle accident wherein a body was ejected from a car, his the Plaintiff's windshield and rolled off and came to rest just outside her door. She opened the door and saw the dead body, additionally, she knew the victim which caused even more emotional distress. her emotional distress manifested itself into physical pain, loss of sleep, depression, nightmares, etc. The full Missouri personal injury uninsured motorist opinion.
In a previous Missouri injury lawyer blog entry, I discussed an Illinois dangerous product personal injury claim we are pursuing on behalf of an Illinois personal injury client. He was struck violently in the face and nose by a log piece that was ejected from a log splitter. See - Illinois Dangerous Product Personal Injury Claim - Log Splitter.
Oftentimes, personal injury claims can be settled favorably prior to a personal injury lawsuit needing to be filed. However, this is an example of a case that the insurance company and I cannot agree on the amount of damages as I believe strongly that my client's several painful nasal surgeries, past and future pain and suffering, and loss of his sense of smell are much more valuable than what they want to pay.
Therefore, personal injury lawyer Ben Sansone of Sansone Law in St Louis Missouri, recently filed a MacCoupin County Illinois products liability claim against the manufacturer of the log splitter and other parties involved in the design and marketing of the defective product. A detailed list of the defective designs making this log splitter a dangerous product when put to a reasonably anticipated use are laid out in our Illinois products liability complaint, described here.
Other examples of personal injury product liability / dangerous product cases our firm has handled or is currently handling:
Missouri Medical Malpractice - Constitutionality of Damage Caps to be Heard by Missouri Supreme Court
In 2005 Missouri tort reform was passed and its main thrust was to eliminate personal injury medical malpractice cases in Missouri. One of the primary mechanisms to eliminate these cases was to institute non-economic damage caps of $350,000, which cannot be adjusted for inflation. The old caps were adjusted for inflation, as anyone with a basic understanding of economics knows the value of the dollar changes over the years. With low limits Plaintiff lawyers cannot pursue these cases as their upside is low because they take cases on contingency basis and front all costs, while the defense lawyers are well funded by Missouri medical malpractice insurers and can afford to fight every single case and spend thousands of hours.
There are many arguments in favor of the caps, mainly a hatred for trial lawyers based on years of tort reform propaganda. However, a simple fact, trial lawyers are the only group in the United States that represent and fight to protect the rights of the future injured. People that have never experienced medical malpractice are not concerned about those rights, as people do not foresee themselves as ever having that problem and buy into the tort reform propaganda of doctors fleeing, insurance rates increasing, and trial lawyers bringing merit-less cases. If a personal injury lawyer brings a merit-less case they will soon be out of business, as those cases are thrown out of court or lose in front of a jury, costing the personal injury lawyer tens of thousands in out of pocket expenses and 1000s of hours of lost time they will not be compensated for. Any good persoanl injury lawyer only pursues legitimate cases.
I cannot tell you the countless times people, that have generally though of themselves as for tort reform, that experience death or serious injury in their family as a result of medical negligence, very quickly change their tune, realize the inequities of the current system in Missouri, and get very angry. The life of a spouse, child, or parent is now capped at $350,000, that is what Missouri legislature says your family member's life is worth. On top of that, if the Missouri medical malpractice insurance company is looking at a worst case scenario of $350,000, they will fight legitimate cases tooth and nail, as the risk of financial loss has now just flown out the window. As all Missouri medical malpractice insurance policies are at least $500,000 but the vast majority are 1 Million or more per Missouri law.
Finally, 4 years after the institution of the caps, the Missouri Supreme Court will hear a case challenging the constitutionality of those caps. See: Post dispatch Article of 12/6/2009 by Tony Messenger - "Limits to jury damage awards to be debated by Missouri Supreme Court". In his article the arguments over the caps and sample cases are laid out in detail. I refer you to this article as I could write dozens of pages discussing this Missouri personal injury topic.
Laura A. Wright is a guest author, who contributed this post. Laura writes on the topic of online paralegal degree . She can be reached at her email id: firstname.lastname@example.org
When you or a loved one is injured in an accident or hurt in some way by the wrongful actions of others, you may have a personal injury case on your hands. This means that you can sue the person who was responsible for your accident or misfortune and ask a jury to award you a certain sum of money for all the losses you have suffered and the pain you were forced to undergo. But is this case worth your time and energy? Will the outcome be satisfactory? Or are you going to be in a worse position than when you started at the end of the case? Your personal injury case is worth fighting if:
• You have a strong case: (Legal Liability) When you know that you’re not in the wrong and when you can prove this fact, you could file a personal injury case. While it’s true that juries have awarded millions in damages to a woman who was stupid enough to pour hot coffee on herself, most panels award money only when they know the case is airtight and that you’re in the right.
• You have a good lawyer: When you have a skilled and able lawyer on your team to fight for you, you know that you have a good chance of winning the case. A qualified personal injury attorney who is well versed and has experience in personal injury cases could analyze your case, put together the facts and ensure that he/she does all they can to win.
• You have the time to dedicate to a lengthy trial: Some complex personal injury cases could go on for some time and you may have to put your life on hold till they’re over. This means revisiting the accident in your mind every day, a feat that is going to be difficult especially if you’re still suffering nightmares from the horror of the accident. You also have to give up your source of income and devote all your energies to the cause of your case, no matter how long it drags on.
• You don’t pin all your hopes on the outcome of the case: While you may win a huge amount of money, you could also end up with nothing. So don’t pin all your hopes on the jury awarding you a large sum in compensatory and/or punitive damages, because even if it does, an appeal could take it all away from you. You will have to spend some money from your bank balance, because even though your attorney is paid on a contingency basis (a percentage of your settlement), there may be other incidental expenses that you have to bear.
• Take a settlement when it’s good enough: If the opposition offers you a reasonable settlement, take it and end the legal battle at the earliest. If you’re greedy for more, you may end up with nothing except wasted time and efforts. Talk to your lawyer and other well-wishers before deciding to accept or reject a settlement.
To know if you have solid grounds for a personal injury case, seek out a lawyer and discuss your case at the earliest. The longer you wait, the colder the trail of evidence and harder to prove that you are responsible for your injury and condition.
St Louis Personal Injury Lawyer Benjamin Sansone's comments on the above article:
While I agree with most of the above article, my Missouri personal injury clients and Illinois personal injury clients do not have to expend costs or expenses in their case. Also, while some complex cases, i.e. Missouri wrongful death claims or Illinois medical malpractice claims involve a lot of the client's time, most Missouri and Illinois auto accident, slip and fall, premise liability, or other personal injury type cases actually require very little of the personal injury client's time.
One aspect of the article above that I strongly agree with, do not pin your financial hopes and future on money you expect to recover from your case. While 99.9% of my Missouri and Illinois personal injury clients see a good to excellent recovery, do not make financial plans that rely on a future recovery. This inevitably will put yourself in a financial bind and then your financial needs will dictate what you want out of the case and when, which often times compromises the case. The value of a personal injury case depends on many different categories of recoverable damages, one factor that does not determine the value of your case is your financial wants and needs in life.
As discussed in an earlier Missouri injury Law blog article, we represent victims of 3rd party criminal action when the criminal was allowed to attack the victim as a result of faulty security or safety measures of the property owner. One such St Louis injury case arises from the rape of a young woman because of faulty security doors at her apartment. See - St Louis Personal Injury Rape Lawsuit arising from Faulty Security by Apartment Complex Owner.
These cases are egregious especially when the injury could have been avoided by simply repairing faulty security doors or doing simple other preventative measures. Recently, a jury returned a verdict of $54 million ($5 million compensatory damages and $49 million punitive) resulting from the rape a a patient at a health services company. This amount may seem excessive, however, the victim will never collect anything near that amount. But what that verdict did do was send a message to large corporations that they need to be concerned about the safety and security of the "little people".
Other sample cases similar to our St Louis rape and personal injury lawsuit are discussed in the Missouri personal injury blog article linked to above.
Missouri Circuit Courts are the proper place for the Missouri Work Comp Second Injury Fund to bring a Subrogation Case
Recently, the Missouri Supreme Court, in the case of Joseph Banks v. Clint Zweifel, Treasurer of the State of Missouri, SC90131, determined that the Missouri Workers Compensation second injury fund can pursue subrogation actions in the circuit courts of Missouri.
Prior to this ruling the issue was whether or not the second injury fund subrogation case needs to be heard in the Work Comp courts or the State Circuit Courts. The Missouri Supreme Court's ruling was based on the premise that “the [second injury] fund’s common-law subrogation interest does not arise under the worker’s compensation act.” The Missouri work comp courts only have the authority to determine issues under the Missouri workers’ compensation act, so the authority for subrogation cases lies with the circuit court.
Subrogation occurs when a personal injury case is pending against a 3rd party that caused the workplace injury, the second injury fund uses subrogation to recover some of what they paid out to the victim under the work comp settlement which is separate than any Missouri personal injury settlement or judgment.