Missouri Injury Law Blog

Article by Erin Mace - Sansone Law, Staff

Above is a map showing each state’s current ban on text messaging while operating a motor vehicle. As you can see, more states are restricting all phone use while driving. 23 states and the District of Columbia ban all drivers from texting, while only 8 states ban the use of phones by novice drivers for any purpose – talking or texting. Novice drivers are defined as younger than 18 or 21 years of age, depending on the individual state.

One of the largest personal injury wrongful death verdicts, in a texting-while-driving wrongful death case, was recently handed down in the state of Texas. The defendant made 7 phone calls and sent 15 text messages during a span of 45 minutes before the accident took place. The family of the auto accident wrongful death victim is hoping to use this incident as a platform to make texting while driving illegal in the state of Texas. As you can see from the map above, they already have some restrictions on this – mainly directed towards novice drivers.

Missouri is currently one of the 8 states to have a ban on texting while driving for drivers 21 years of age or younger. If caught, they will be charged and given a fine not to exceed $200. Missouri is also working on a new bill (HB1202) that was first introduced in December of 2009. This bill will ban all drivers – no matter the age – of texting or talking on cell phones, without a hands free device. As the bill reads, “A violation of this section shall be deemed an infraction and shall be deemed a moving violation for purposes of point assessment under section 302.302, RSMo.” The fine will also be $200. The only exceptions to this law would be if a driver is dialing a number in preparation of making a phone call or setting a GPS feature on the phone. Also, the provisions will not apply to a person operating:

(1) A motor vehicle on a private or public gravel road;
(2) An authorized emergency vehicle; or
[(2)] (3) A moving motor vehicle while using a hand-held electronic wireless communications device to:
(a) Report illegal activity;
(b) Summon medical or other emergency help;
(c) Prevent injury to a person or property; or
(d) Relay information between a transit or for-hire operator and that operator's dispatcher, in which the device is permanently affixed to the vehicle.

The bill has been referred to the Public Safety Department and has yet to be calendared for a hearing. The proposed effective date is August 8, 2010. Rep. Jeff Roorda, D-Barnhart is in favor of the proposed revised law. However, as he stated, "The current law is incredibly subjective. Not only does (did) an officer have to look at a moving vehicle and determine whether the driver is 21 years of age or younger, but they must also determine if the device is being used for a prohibited or allowable use."

While it is clear that texting while driving is extremely dangerous, do we really need to add another law that will be almost impossible to enforce? Here are a few current laws that keep Missouri’s finest busy implementing and kinda cover the effects of texting while driving: failure to drive in a single lane, improper passing, impeding the flow of traffic, following too close, failure to stop at stop sign, speeding, and so on ad nauseum – not to mention vehicular manslaughter. The Missouri Revised Statue 304.012. states, “Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care”. Any person who violates this provision is guilty of a class B misdemeanor, unless an auto accident is involved, then is becomes a class A misdemeanor.

Texting/Talking while driving was difficult enough to enforce when the law was directed to young adults under the age of 22 – some lucky souls just have good genes and look young. But now, with exceptions such as: dialing a phone number to make a call; receiving a call; and setting GPS locators, it becomes almost impossible to make such discretionary decisions on the road. Why do texting-while driving wrongful death cases deserve more headlines, more punishment, and implementation of a new law than say….application of makeup-while driving as a basis for a wrongful death case? They both, technically, fall under the same definition and should be tried the same.

Ann Spradling, et al. v. SSM Health Care St. Louis, SC90613, has challenged the Missouri medical malpractice provision that requires a plaintiff to a file written opinion from a doctor “practicing substantially the same specialty” as the defendant doctor. This means until a doctor has reviewed all the records and signed an affidavit saying there was negligence, you cannot file a lawsuit because it will be dismissed. Doctors are the only class of defendants who get this special treatment. As a Missouri medical malpractice personal injury lawyer I personally do not mind the provision requiring a certificate of merit. However, the requirement that the expert is from the same specialty puts an extra burden, as many doctors are qualified to give opinions even though they are not denoted as a specialist in a certain area. The Plaintiff in the Spradling case is claiming that the higher standard to claim Missouri medical malpractice hampers her right to a jury trial.

The second case, Edith C. Deck v. Delmar Teasley, SC90628, deals with an issue we have discussed in this Missouri injury law blog before regarding the amount of medical bills admissible as damages at trial; the amount billed by health care providers or the reduced amount an insurer pays to satisfy the bill. Again, this is a constitutional argument of a right to a trial by jury.

In a recent St Louis Wrongful Death Verdict, a family will not be able to collect on the $2.4 million dollar St Louis Missouri wrongful death judgment against a local dentist, at least not against any Missouri malpractice insurance coverage. The St Louis wrongful death victim, Henry Johnston, underwent sedation at James Bubenik’s dentist office and died four days later from complications. It should be noted six months prior to Mr. Johnston’s visit, another patient died from the same complications. Apparently, during the trial, the Johnston family somehow decided to or stipulated to go after Mr. Bubenik’s insurance company only. Medical Protective Co., the insurance company, filed a lawsuit against the Johnston family, arguing that it was not liable for any Missouri medical malpractice judgment “because the dentist didn’t cooperate with the insurer in preparing his defense.” Bubenik had repeatedly asserted his Fifth Amendment rights, refusing to testify in court or depositions. U.S. District Judge E. Richard Webber said this refusal nullified the medical malpractice insurance company’s duty to provide coverage to Bubenik. The 8th U.S. Circuit Court of Appeals affirmed this decision – unanimously. Attorneys for the Johnston’s family argued that “the language of the general cooperation clause was ambiguous because it didn’t specifically require an insured to give testimony.” The 8th Circuit rejected the argument.

There is much more to this case than what is divulged in the different articles written about this. However, it is apparent that the defense had a good hand delivered to them and played it well. From the aces literally handed to them from the Plaintiff’s attorney during the trial, to the doctor’s sleight of hand, and finally the Circuit Court of Appeals decisions, the defense bluffed their way to a $2.4 million win that was justly due to the deceased’s family.

I encourage you to read this wrongful death decision and realize just another reason why you need to find an experienced and skilled Missouri personal injury attorney to represent you in a wrongful death case. It distresses me that the case I mentioned above was lost because of “bad lawyering” or inexperience. Sometimes a “friend-of-a-friend” or the guy that helped you out of a speeding ticket isn’t your safest bet.