Missouri Injury Law Blog

In an earlier blog post, we discussed the Missouri work comp Second Injury Fund, a state program that encourages employers to hire people with pre-existing conditions and disabilities. The employer pays into the fund at a flat rate and, should an employee suffer a "second injury" on the job, the fund will help cover the costs. When these first funds started after World War II, they helped maimed returning veterans obtain jobs. As the decades passed, the fund was used to compensate injured workers in Missouri who came about their disabilities in a non-military context. Unfortunately, recent times have depleted these funds, leaving them on the brink of insolvency.

Last week's Wall Street Journal discussed how several states are facing shortfalls in their Second Injury funds. Twenty states have already shut down these funds and more are at the brink of insolvency. Even New York State, the first state to create a Second Injury Fund, ceased accepting new claims in July 2010. Use of the funds by veterans from the wars in Iraq and Afghanistan have only pushed these funds faster into insolvency, which is ironic considering that the Second Injury funds were initially created specifically to benefit veterans.

Second Injury funds encourage employers to hire disabled workers by limiting their financial liability. Typically, when a worker gets injured on the job he is compensated by his employers' workers' compensation insurance. Rates that employers pay vary based on the risk associated with the job. But for the Second Injury Fund, employers pay a flat rate. Therefore, payment out of the Second Injury Fund could be less costly than the cost of increased workers comp premiums for employers. This incentive to use the Second Injury Fund to pay out claims have left many states struggling with shortfalls.

Unfortunately, Missouri's Second Injury Fund is one of those the Wall Street Journal singles out as being on the brink of insolvency. Last year, the fund received $43 million in payments from employers, but took on $77 million in liabilities. State Attorney General Chris Koster described the situation as "spiraling out of fiscal control." Much of the fund's troubles can be traced back to a 2005 law that capped the Second Injury surcharge on workers' compensation premiums at 3%. Currently, there is support to raise the surcharge cap to 4.5% or 6%, but that may not be enough to save the Fund. Many of the businesses that supported the 3% cap back in 2005 are the ones campaigning for an increased surcharge now.

With resources becoming even scarcer, it becomes vital that you have an advocate who can navigate the legal pitfalls. An experienced Missouri Work Comp attorney will provide you with the representation you need to fight for the benefits you deserve. Please contact Sansone/Lauber today for a free initial consultation at (314) 863-0500.

Source: "State disability funds going broke, and going away" by The Associated Press, published at WSJ.com.

See Our Related Blog Posts:

2012 Legislative Agenda for Missouri Workers Compensation

Supreme Court to Decide, what is Within the Scope of Employment under Missouri Workers' Compensation

As the Baby Boomer generation continues to age, one thing is certain--the roads will be increasingly filled with older drivers. Currently, thirteen percent, or 34 million Americans, are over sixty-five years of age. That number is expected to increase by 60% over the next fifteen years. Based on these numbers, it is projected that one in five drivers will be 65 or older by 2025.

While the older drivers may have more experience on the road, they are also responsible for a disproportionate number of accidents. A report released by TRIP states that although drivers over 65 account for 8% of all miles driven, they are involved in at least 17% of all reported crashes.

Missouri is high middle-of-the-pack in multiple statistical categories pertaining to older drivers. (See "Missouri's Oldest Drivers Causing More Than Their Fair Share Of Accidents") The state is eleventh in the nation in raw number of older drivers killed in car accidents and twelfth in the number of accidents involving at least one driver over the age of 65. Missouri is ranked seventeenth in the nation for number of older licensed drivers. Unsurprisingly, the number one state in many of these categories is Florida.

Older drivers are more susceptible to serious injury from car accidents for a number of reasons. First, age comes with increased physical frailty and related medical issues. These issues include slower reaction time, poorer eyesight, and reduced muscle dexterity. Furthermore, when such accidents happen, injuries tend to be more severe due to this increased frailty. TRIP singles out "safely moving through intersections" as especially hazardous for older drivers.

Despite these numbers, no one is suggesting that we revoke the licenses of all older drivers. One of the major determining factors in quality of life is mobility and to deny that to an ever-increasing proportion of the population could only lead to trouble. Rather, it is being suggested that steps be taken to make the roads safer for older drivers. Some of the more prominent suggestions include clearer signs with larger lettering, increased width of pavement markings, widening lanes, and brighter lighting.

In addition to making the roads easier for older drivers to use, the TRIP report has recommended the expansion of public transportation and "non-traditional and public sector approaches that are tailored to the needs of older adults." Such non-traditional approaches include carpools, volunteer driving programs, and door-to-door community transportation services.

Currently, Missouri has no special provisions for older drivers, such as renewals contingent on vision tests. The only extra burden an older driver would have is that he would have to get his licensed renewed every three years rather than the every six years required for drivers aged 21-69. Compare this to Illinois, which requires all renewal applicants over the age of seventy-five to take a road test.

We at Sansone/Lauber encourage older drivers to use their honest best judgment to determine if they are still capable of navigating the road. As experienced St. Louis car accident lawyers, we have seen many accidents caused or exacerbated by factors related to the age of the driver. For information on how to protect your legal rights if you or a loved one has been seriously injured, call one of our Missouri car accident attorneys today at (314) 863-0500.

Source: "Missouri's Oldest Drivers Causing More Than Their Fair Share Of Accidents," by Allison Blood, published at StLouis.CBSLocal.com.

See Our Related Blog Posts:

Child Cyclist Hit by Car Loses at Trial

The biggest driving distraction might just be... your car?

As a Missouri personal injury attorney handling auto accidents, one of the standard documents we work with is the police report. While we often note that they can be biased against the victim (especially in the case of bicycle accidents), they are still asked for by insurance companies to determine payouts and are typically evidence if a case goes to trial. However, if you are unfortunate enough to get into an accident in some parts of Missouri, you may not receive police report because it will never be created.

Missouri law requires that for all accidents on public roads that either result in injury or apparent property damage great than $500, law enforcement officials must submit a report to the Missouri State Highway Patrol superintendent. Certain branches of law enforcement, such as the state troopers, will generate a report for every accident, no exceptions. For others, such as the local Columbia Police Department, whether a report is generated depends on the nature of the damage caused.

Back in 2009, the city of Columbia implemented a policy that allows officers to "clear" a 911 call, i.e. respond to an accident without generating a report, if a) there were no injuries and b) no need for a tow truck. The amount of damage sustained by a vehicle is irrelevant. The goal of the change was to reduce the workload of officers; generating these reports take two and a half to three hours according to Columbia Police Chief Ken Burton. Since this policy went into effect, traffic citations have been reduced 48%.

Burton also indicated during a February 6 city council meeting that similar paperwork reduction strategies are being used in the Kansas City and St. Louis areas.

By not generating a police report and issuing a citation, it is as if the accident never happened. It won't become an entry for the Statewide Traffic Accidents Record System, and the driver will not receive points on his license. The justification for this procedure is that many who are in this minor collision already choose to circumvent insurance companies anyway. Drivers in single car accidents caused by running through red lights or going into a ditch typically just call friends and solve the problem without making reports to anyone. Drivers who get into minor collisions with other drivers typically negotiate what repairs would cost on the spot and agree not to involve the police or insurance companies.

Should the victim of an accident choose to involve his insurance company in one of these no-injury, no-tow accidents, records are much more scant. There is a record of the 911 call made that led to the dispatch of an officer, but no record investigating the accident. Insurance companies must then gather their own evidence and make the best possible decision based on their findings. One thing insurance companies recommend doing in cases where there is no police report is to make an in person "walk-in" verbal report at the police department so that there is at least some record of the accident made close to the time it occurred.

As experienced Missouri personal injury attorneys, those of us at Sansone/Lauber emphasize the importance of having as full a record as possible of the accident. If you have been injured in a car accident contact us today at (314) 863-0500 for a free consultation.

Source: "Police Department's no-report accident policy reduces tickets, raises concerns," by Bobby Watson, published at ColumbiaMissourian.com.

See Our Related Blog Posts:
Missouri Bicycle Plates - Way to Raise Money for Bike Safety in Missouri

Cyclists - you can now buy a witness! Witnesses are Critical in Bike Injury Claims

As a long time personal injury lawyer, I have seen an increase in cases involving motorcycle accidents. The increased popularity of and purchase of motorcycles along with increased population density and insufficient safety precautions have unfortunately made preventable accidents far too common.

One such accident occurred in 2010 when Michael Heaston of Centralia died after he crashed his motorcycle into a city bus. The wrongful death claim brought by Heaston's family against the city of Columbia (where the accident occurred) was settled last week for $1.4 million.

The accident occurred early in the morning on July 12, 2010. Archie Smith, a city bus driver, attempted to make a left-hand when Heaston's motorcycle struck the side of the bus. He had stopped at the stop sign before turning, but said that he did not see Heaston until after he heard a loud bang and a screeching sound. By that point, the fatal accident had already occurred. Heaston had attempted to swerve to avoid the collision, but could not get out of the bus's way. In the ensuing wrongful death suit, the family alleged that Smith failed to take steps to avoid the accident and was not paying proper attention to the road.

Smith was convicted of careless and imprudent driving. He served a six month suspended sentence and is on two years of unsupervised probation. Columbia's Transit Safety Committee determined the accident to be preventable. Boone County Assistant Prosecutor Ryan Haigh chose not to pursue charges of involuntary manslaughter because, although careless, Smith's conduct did not rise to the level of criminally negligent.

Under §537.080 of the Missouri code, the following parties are entitled to bring a wrongful death claim:

"[the] spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive...if there be no person's in this class....brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death...if there be no persons in [either the first or second groups], then by a plaintiff ad litem...[who] shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action."

The settlement in this case was apportioned to Heaston's surviving wife, parents, and three minor children. The funds for the minor children were set up as individualized trusts while the payments to the adults were in lump sums up front.

St Louis Injury Lawyer, Ben Sansone, has substantial experience with a variety of cases, including motorcycle accidents. If you or a loved one has been involved in such an accident, contact us at 314-863-0500 for a free consultation.

Source: "City settles suit with Motorcycle crash victim's family," by Brennan David, published at ColumbiaTribune.com.

See Our Related Blog Posts:

Motorcycle Injuries on the Rise: Causes, Prevention, and Resolution

Medical Damages Submitted at "UM" or "UIM" Car Accident Trial - Amount "Paid" versus Amount "Billed"

Ever look around in the airport, an elevator, or any public place where people are waiting? Notice most people are staring at their cell phone. Unfortunately, sometimes this habit does not change much when people are behind the wheel. See Missouri Texting Laws, Car Crashes, and Wrongful Death. Below is a handful of scary statistics showing how obsessed people are with their smart phones. I have heard the phrase and believe - "Texting While Driving is the New Drunk Driving".

Created by: OnlineMastersDegree.com

Texting or surfing he web while driving is a developing area of the regarding punitive damages. In Missouri and in limited cases, lawyers are seeking punitive damages for drivers who cause serious injury or death while driving. These approaches are case specific, however, an inured party or relatives of a person killed by a distracted driver only needs to show wanton or willful disregard for the safety of others to make an admissible punitive damages case to a jury.

Realted Link:

Missouri's Anti-Texting Bill currently pending in Missouri Senate

UPDATE: Good Quotes from Oral Arguments Today:

Judge Laura Denvir Stith pointed out that the right to a jury trial "is a fundamental constitutional right, not simply a matter of common law." Letting the jury "find the facts and throw them in the waste can." Judge William Ray Price Jr. asked if the caps violate the right to equal protection of the law. A plaintiff with noneconomic damages that exceed the cap would receive only a fraction of the amount the jury said was owed, while a person with damages below the cap would recover everything. "The very most injured people are hurt the worst by the cap, relative to those who are the very least injured people who make a full recovery," he said.

ORIGINAL BLOG ARTICLE:

Back in November 2011, the constitutionality of the medical malpractice non-economic damages caps were argued in front of the Missouri Supreme Court. That case, the Sanders case, has not been decided yet as it pertained to cases prior to 2005 which is before the 2005 cap limiting awards to $350,000 for non-economic damages (pain and suffering, disability, loss of limbs ... basically anything that does not have a bill or invoice attached to it). It is thought the justices are holding off on ruling on that prior case until ruling on the current caps as well whihc is being heard today, therefore, the Watts case being argued today is much more relevant to the future of the CAPS in Missouri. For more details on the prior case see: Constitutional Challenges to the Missouri Medical Malpractice Damage Caps.

The current post tort "reform" case addressing the now $350,000 damage cap is being argued today and oral arguments as well as a summary of the case and all briefings can be viewed Missouri Supreme Court Docket Page for March 27, 2012.

At its core, the Plaintiff's argument is that the imposition of an predetermined and arbitrary damage cap denies individuals of their right to a trial by jury. St Louis Medical Malpractice lawyer Ben Sansone filed a brief outlining the unconstitutionality of the caps int eh form of a Motion to Strike Defendant's Affirmative Defenses relying on the damage cap statutes. See Plaintiff's Motion to Strike - Constitutionality of Damage Caps Challenged.

The Supreme Court generally issues its ruling withing a few months and sometimes even quicker depending on the issue. We will update this blog when the decision is handed down. To view the Supreme Court's opinions by date issued or search by case name go to: Opinions for Missouri Supreme Court.

The Missouri Bicycle and Pedestrian Federation is sponsoring the upcoming Bicycle and Pedestrian Day at the Capitol on Monday, April 2nd in Jefferson City. If you are interested in attending this event you can pre-register at: http://MoBikeFed.org/CapitolDay Additionally, you can be a "Capitol Day Sponsor" as every dollar helps the Mo Bike Federation deliver their message safer bicycling and walking. Donate Here: http://MoBikeFed.org/SponsorCapitolDay

As previously discussed in this Injury Law Blog, our firm routinely handles bicycle injury cases, we value bicycle safety and support the Missouri Bike Federation as they are pivotal in passing new bicycle safety rules through our State and local governments. One such law that is crucial to most Missouri bike injury cases that I use is the failure to maintain a safe distance when overtaking a bicycle. See Bicycle Injury Lawyer Article.

MORE ABOUT 2012 CAPITOL DAY IN JEFFERSON CITY

MoDOT Director Kevin Keith will kick of Capitol Day by speaking about MoDOT's plans for bicycling and walking at the Awards Ceremony, 10:30am in the 1st Floor Capitol Rotunda.

Rep. Cauthorn introduced a bill this week that would require bicyclists to wear a reflective vest whenever riding on a state road or highway. We need to talk to our legislators about what real measures they can take to improve cyclist safety--and stop this bill in its tracks. The bill will only discourage more people from bicycling and do nothing real to improve safety--but we need you to take this message personally to your own legislators so that we can make real progress in improving safety and stop discouraging measures like this.

Several important bills this year that have the potential to impact bicycling and walking for the better:

1. Anti-distracted driving bill
2. Bill creating greater penalties for drivers who injure or kill
3. Bike rack/license plate bill Bill to name a bridge path after legendary bicycle advocate (and former MoBikeFed President) Bob Watts.

Pedestrian Deaths in Missouri on the Rise: How to be Safe and Avoid an Accident

Missouri Bike Accidents and Injury - Common Causes and Proving Driver was Drunk

Continue reading "Missouri Bicycle Safety: Bike and Pedestrian Day at Capitol on April 2, 2012" »

Ever since the 2005 Tort "reform" law changes in Missouri there has been an ongoing debate as to what the amount of medical damages submitted to a jury is. Auto insurance companies and their lawyers argue for the amount paid by the individual or their health insurance and not the full amount of the bill. As most people know, the amount of a medical bill and the amount actually paid often differ. See Injury Law Article: Medical Bills at Trial. This previous injury law article discusses the background of the "paid" versus "billed" debate.

Recently, Missouri Federal Judge Mummert issued an order pertnaing to this issue in an Under-Insured Motorist "UIM" case which would logically also apply to a Missouri Uninsured Motorist "UM" case as well. Judge Mummert ruled that Mo.Rev.Stat. § 490.715.5(2) is inapplicable in a under-insured motorist case, and thus also a uninsured motorist case, because the negligent person responsible for the injuries, the Under-insured motorist, is not a party to the case, thus the statue is not applicable. Section 490.715.5(1) reads that "[p]arties may introduce evidence of the value of the medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party." Because the medical treatment rendered to Plaintiff was the proximate result of a non-party, a plain reading of the statute forecloses application by the insurance company; which is the named defendant (party) to a UIM or UM case. See Mummert.Order.490.715.pdf

This is an important ruling for all "UM" and "UIM" cases going forward as it helps put the argument to rest of what amount to consider going to the jury in an auto crash or other personal injury trial. The difference between the amount Paid versus Billed is oftentimes very significant and makes a major difference in settlement negotiations as well as at trial. The "Paid" versus "Billed" battle is still ongoing and is not settled law in Missouri. However, Orders like this one, even though it is pertinent to UM or UIM cases only, helps settle the issue at least for certain types of cases.

Related Articles:

Medical Bills at Trial: "Billed" versus "Paid" Amount, what if Bills Partially Paid? So "Billed" versus "Partially Paid"?

Missouri Personal Injury Trial Evidence: Increased Risk of Future Surgery Admissible When.....

Auto accident lawyer Ben Sansone focuses his practice on personal injury, auto accidents, premise liability, and medical malpractice. For a free & no obligation consultation with a personal injury attorney, contact a lawyer today or call (314) 863-0500.

Injury law firm, Sansone / Lauber, is a long time supporter of the Missouri Bicycle and Pedestrian Federation; they are the major player in Missouri to help make laws for the safety of cyclists and pedestrians. To see the importance of this cause read St Louis Bike lawyer artilce about bike safety in Missouri: Missouri Bicycle Injuries and Safety.

One of many important laws passed as a result of Mo Bike Fed's efforts was the 2005 law requiring motorists to maintain a safe distance when overtaking a bicycle. See Safe Distance to be Maintained when Overtaking Bicycle. This is a very effective law and I have personally used it in several St Louis bike injury lawsuits. One is currently ongoing as a result of a Wentzville, Missouri drunk driver struck my client who was bicycling on the side of the road. The police charged the drunk driver with DWI and under the failure to maintain safe distance statute and he plead guilty to both charges and was convicted of failure to maintain a safe distance when overtaking a bicycle. For a more detailed and extensive list of bike laws see the MO Bike Federation's list of Missouri Bicycle Laws.

A new effort by the Missouri Bike Federation is to raise money by encouraging cyclists to get Bike Plates. This is not mandatory and they are not pushing for legislation requiring bike plates. The fee of $55 goes partially to the state ($15.00) for making the plates, but the remainder of $30.00 goes to the Bike Federation so they can keep doing the good work they are doing. To register for Missouri Bike plates click here.

Not only is the donation a benefit to the Bike Federation, the plates help promote awareness that bicyclists have the same rights to the road as motor vehicles, the plates can help identify you in the unfortunate instance you are involved in an accident and are unconscious or unable to identify yourself. This will help in getting you the proper medical treatment and allowing authorities to notify your family or friends.

Related Articles:

The "I did not see the cyclist" Defense and dealing with it at Trial

Missouri Bicycle Injury Law - Rights and Duties

Continue reading "Missouri Bicycle Plates - Way to Raise Money for Bike Safety in Missouri " »

No, not paying someone off to say what you want, but a cycling accessory that tracks your ride and takes video and still pictures. Bike accessory manufacturer Cat Eye has released the "Inou" which is a front facing camera that takes stills and video. Additionally, it tracks your ride and has lots of other cool features other than documenting an accident.

After handling dozens of bike accidents in St Louis and across the State of Missouri and Illinois, one thing is for sure, cyclists get hurt badly and the driver never admits fault. In fact the driver will often blame the cyclist even though though the cyclist was legally traveling on the road and did nothing negligent. It is the nature of most drivers, blame the pesky people riding bikes, getting in the way on the road, and slowing down traffic. More often than not, there are no witnesses and as previously discussed on this blog, no witness is bad news for an injured cyclist. All jurors are drivers but only a few are cyclists, and even fewer are regular cyclists. Who do you think they are going to instinctively relate to and side with?

If you are a regular cyclist you should really consider something like this camera, especially if you ride solo. An example from my experience as a bike crash lawyer.

The 911 caller saves the day: A few years back we had a jury trial on a bike injury case as the insurance company offered nothing claiming the entire time the hurt bicyclist was entirely at fault. See - St Louis Bike Accident Trial. The cyclist was the victim of the "right hook" meaning the driver passed her and then made a right turn right in front of her cutting her off and forcing her to crash into the side of the truck. See Bike Lawyer Article: "Missouri Bike Accident - Caused by the "Right Hook" - Injured Cyclist Hired St Louis Missouri Injury Lawyer After Settlement Negotiations Halted"

Of course the driver of the truck said the bicycle accident was completely the biker's fault and even the responding police officer opined that it was the cyclists fault, even though he did not witnesses it. In fact, when the injured biker saw the report she called the police to supplement. The officer did, but made comments that he believed she was supplementing the report just for a lawsuit and he believed she was at fault. Statements that were prevented from being presented to the jury at trial.

So, at this point this case is a loser, why? no witnesses! Had this cyclist had a forward facing camera it would have been clear she was cut off. Fortunately, we were able to track down the 911 caller, he testified that he saw the bike versus car collision and it was the driver's fault. Without this eye witness testimony the only evidence the jury would have had to go on was a driver's testimony who was covering his own behind and the testimony of a cop that did not witnesses the accident and apparently did not like cyclists.

MORAL OF THE STORY: Buy a camera witness because independent human witnesses rarely see a bike crash. I cannot stress it enough, as time and time again I see police reports written up automatically blaming the cyclist, and investigation and witness interviews tell a completely different story.

Continue reading "Cyclists - you can now buy a witness! Witnesses are Critical in Bike Injury Claims" »

In a previous Missouri injury law blog post I discussed that a witness' opinion that another witness or one of the parties to the lawsuit is telling the truth or lying is inadmissible in most situations. See: Witnesses Generally Cannot Testify that they Believe another Witness is Telling the Truth here.

When preparing a personal injury case for trial the insurance defense lawyers may try to establish a theme or red herring to witnesses suggesting that the injured Plaintiff is not really hurt but motivated by money, in other words, asking for an opinion that the injured client is not telling the truth to help their lawsuit. This situation also falls under the above premise that witnesses cannot comment on truth or veracity of other witnesses.

A Defense Doctor (or other witness) Cannot Imply a Plaintiff's Complaints of Injury is Greater because a Lawsuit is Pending

In Yingling v. Hartwig, 925 S.W.2d. 952 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation. The court held that comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, that is an issue for the jury to decide, not fact witnesses. The testimony was a comment on a plaintiff's credibility; a statement that plaintiff's generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Taylor, 663 S.W.2d. 235, 239 (Mo.banc 1984) ("Expert opinion testimony is not admissible as it relates to credibility of witnesses."

Attacking Plaintiff for their use of the Legal System

Comments that the Plaintiff has used the legal system in an attempt to discredit them must be prevented. Questions about when the Plaintiff first consulted their Missouri personal injury lawyer is not allowed, because the questions were asked "to discredit plaintiffs as avaricious because they sought the services of a lawyer soon after their son's death." Carlyle v. Lai, 783 S.W.2d 925, 929 (Mo.App. W.D. 1989)("Accessing the legal system is normally not to be discouraged and, exercising one's right to utilize the legal system within established rules and procedures should normally not be used to attempt to discredit a litigant with a jury.") Also, comments on when the Plaintiff filed the lawsuit are improper, Edgell v. Leighty, 825 S.W.2d 325 (Mo.App. S.D. 1992)(Court properly excluded evidence concerning date injured motorist filed suit).

Conclusion on how to handle Criticism of the Plaintiff regarding their Truthfulness or Motivations:

Opposing counsel and their witnesses must be prevented from injecting improper issues of motivation of the Plaintiff for bringing a lawsuit. Defense counsel and their witnesses should not be allowed to argue to the jury that Plaintiffs are faking or exaggerating their injuries for purposes of litigation when there is no evidence that this is the case, apart from the speculative and inadmissible opinions of Defendant's hired expert.

Throughout litigation, discovery, depositions, motions, etc ... opposing lawyers will often make these types of accusations so you know they are coming. However, do not wait for it to be brought up at trial, experienced injury lawyers know to address this in pretrial motions with the judge asking for advanced rulings on these issues.

Accusations of lying for monetary gain is the red meat for the defense oriented jurors. If those arguments get in front of a jury through express opinions of witnesses or implied by defense lawyers in their comments that is ammo for defense oriented jurors to improperly convince or sway the other jurors that are following the law. These arguments are used all the time by local St Louis insurance defense attorneys, a good injury trial lawyer is on their toes and ready for these types of arguments and ready to counter them or prevent them before they get in front of a jury.

Ben Sansone is a Clayton based Injury Attorney for over ten years and has handled hundreds of personal injury cases to successful conclusions. If you need to speak with a lawyer call us today at (314) 863-0500 for a FREE and NO OBLIGATION Consultation.

Last week a jury returned a verdict holding the driver not liable for injuries caused to a child on a bike. All I know is what I have read about this case in the legal papers, but I am not surprised that despite the evidence that the driver was at fault, the jury sided with the driver. As a lawyer and advocate for bicyclists' rights, I have written many articles about the issues and challenges that are faced when representing bikers. See - St Louis Bike Lawyer Blog.

The defenses that must be handled at trial by addressing these issues through the case, are the - I did not see the cyclist defense, cyclist right of way at intersections, assumption of the risk, and claims the cyclist was violating the law. See Cyclists' right and duties.

The I did not see the cyclist is an all too common defense theme. It is an attempt to shift blame onto the cyclist for using the road, when under Missouri law a biker has the same rights and duties as a driver of a motor vehicle. Early investigation and preservation of evidence is critical. Take pictures of the scene as soon as possible, keep the clothing you were wearing, any protective gear, and the bike itself. Particularly get pictures of any reflective gear you were wearing, safety gear, and any lights or flashing LEDs you may have had on the bike. Insurance defense lawyers imply it and jurors sometimes buy the argument that the cyclist should not have been on the road and the driver is the victim for having to go through litigation after hitting you. FACT, in Missouri not seeing a cyclist is not a legitimate legal defense and this must be addressed with the jury head on as soon as possible. Unless the cyclist was riding in the dark with no lights and dark clothing, I did not see the cyclist is not a defense!

Bikers' have all the same rights and duties as drivers of cars. They have the right to be on the road, to use the road, and not to be overtaken and cut off. Being overtaken and cut off is what I call the right hook and is a common cause of bike injuries. See Cyclist Injuries from the "Right Hook" and explaining the law in Missouri about maintaining a safe distance when overtaking a bicycle.

First and foremost in handling any bike injury case, you must show more than mere inattention by the driver, as all jurors are drivers, and only a few are cyclists, therefore, most jurors side with the driver over the cyclist. Unfortunately, many jurors' perception of cyclists is that big group of cyclists that were blocking the roadway and slowing down traffic as the cars passed them one at a time. This must be dealt with early on with potential jurors who may see cyclists as a roadway nuisance instead of a citizen with the same rights as everyone else on the road.

It has been a mild winter here in St Louis and spring is upon us, which means beautiful bike riding weather. Remember to be careful on the roads and always assume a driver does not see you. Please read St Louis Cyclist Attorney blog on how to avoid common causes of bike accidents.

If you find yourself in the unfortunate position of being a victim of a bike accident, call us as soon as possible for a free consultation. Do not talk to the insurance companies, they are trained to get you to say what you should not say and to investigate the case in the light most favorable to their insured, the at fault driver. They will not pay you anything close to what your case is worth, they claim they will, do not listen. You need a powerful advocate on your side, get Bike Accident Lawyer Ben Sansone on your side.

We have talked repeatedly about the dangers of distracted driving, particularly the distraction of texting. Studies have shown that texting while diving can be even deadlier than driving while intoxicated. The proliferation of smartphones have only exacerbated the problem. However, perhaps the greatest driving distractions may come from devices built into the cars themselves.

Gone are the days when the bulky car phone was a rare luxury enjoyed only by a few incredibly wealthy people. Nowadays, the cars manufactured both domestically and abroad are becoming "virtual iPads on wheels." Multitasking has become the norm. Drivers can even order movie tickets, get stock quotes, or receive status updates from their Facebook pages. The Facebook update feature received focus during one car commercial that debuted during Super Bowl XLV.

If the car companies have their way, this can only get better (or worse, depending on your perspective). Mercedes-Benz is working on a feature that would allow drivers to project readable information on the windshield. Ford is working on a feature that would allow a smartphone to be converted into a wireless router, giving drivers internet access. It is anticipated that in five years, 90% of new cars will come equipped with some form of internet access.

The purpose of this technological arms race is to reach the so-called millennial generation, believing that this 19-31 age cohort sees app technology "as extensions of themselves." Consumer surveys reveal that 75% of potential buyers would like touch-screen technology and in-dash apps in their new vehicles. In other words, car companies are simply responding to consumer demand.

While touch-screen "auto infotainment" seems to be the wave of the future, there is fear that we are not ready to implement this new technology safely. Touch-screen dashboards require more attention than the traditional push button interface of most cars, says David Champion, director of automotive testing for Consumer Reports. According to Champion, touch-screen controls by their very nature require users to look down at them, causing them to take their attention away from the road. And according to the National Highway Traffic Safety Administration, drivers who glance away from the road for even two seconds increases their risk for accidents twofold. Even Clifford Nass, a consultant to automakers who specializes in automobile interfaces says that "there really hasn't been enough research on how to safely design for these things."

Despite the apparent risks of creating cars with greater distractions, companies say that the purpose behind these innovations is to increase safety. Jim Buczkowski, Ford's director of electrical and electronics systems, says that a major reason for these innovations is that consumers are already partaking in texting/Facebook updating/stock quote checking while driving. Since these acts aren't going to stop, the next best thing is to attempt to make them safer.

However, as many a personal injury attorney can tell you, all the attempts in the world to make distractions "safer" won't change the fact that distracted driving is still inherently dangerous. Injury lawyers at Sansone/Lauber believe that the best way to protect yourself against distracted driving is to focus full attention on the driving and road ahead of you. For information on how to protect your legal rights if you or a loved one has been seriously injured, call one of our Missouri car accident attorneys today at 1-314-863-0500.

Source: "Cars connectivity seen as a safety hazard," by John Boudreau, published at StAugustine.com.

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Missouri - texting or phone use and driving laws - Texting Ban Map - Texting and driving Wrongful Death

Truck and Bus Drivers' Use of Hand Held Cell Phones while Driving Banned

Missouri Takes Aim at Distracted Driving

Last year, we discussed Missouri punitive damages under Ronald Sanders v. Iftekhar Agmed, MD, et al, one of several cases to go before the Missouri Supreme Court on the issue of punitive damages caps. Last month, one of these cases was decided. If this case is a harbinger of what's to come, then it looks like these caps are here to stay.

The case is Estate of Overbey v. Chad Franklin National Auto Sales North, LLC, and was issued on January 31, 2012 from an en banc panel of the Missouri Supreme Court. While the case was about fraudulent misrepresentation under the Missouri Merchandising Practices Act (MMPA) instead of personal injury, many of the issues are applicable to personal injury cases. At trial, the Overbeys were awarded $1,000,000 in punitive damages against Chad Franklin, the proprietor of the dealership. Pursuant to Mo. Rev. Stat. Section 510.265, Mr. Franklin had the damages reduced to $500,000.

Under 510.265, - Limits of Punitive Damages in Certain Cases - "No award of punitive damages against any defendant shall exceed the greater of (1) Five hundred thousand dollars; or (2) Five times the net amount of the judgment awarded to the plaintiff against the defendant." On appeal, the Overbeys claimed that the reduction violated their rights to trial by jury. The "trial by jury" claim was also the basis for the plaintiff's appeal in Sanders.

The Missouri Constitution states that "the right of trial by jury as heretofore enjoyed shall remain inviolate." Mo. Const. art. I, § 22(a). Further, in Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140 (Mo. banc 2005), the Court held that the right to have a jury determine damages applies to any law that allows for damages as a remedy. This includes both nominal and punitive damages. However, in this case, the Court made clear that just because a plaintiff has the right to have a jury determine damages does not mean that he is entitled to unlimited damages "under the MMPA or under any statute" (emphasis added). So long as application of the cap did not interfere with how the case was decided, application of s 510.265 does not violate the Missouri Constitution.

The plaintiffs also alleged that the reduction of their punitive damages awards violated separation of powers, equal protection, their due process rights, and Missouri's prohibition on "special laws." The Court rejected each one of these challenges.

While this case was not about personal injury per se, the phrase "under any statute" gives the court plenty of room to find caps on punitive damages constitutional in a tort context. We should be getting a decision on Sanders in the next month or two. However, if it follows the lead of the court in Overbey, it appears that the 2005 tort reforms, including punitive damage caps, are here to stay.

See Our Related Blog Posts:
Today the Missouri Supreme Court had a Hearing on the Constitutional Challenges to the Missouri Medical Malpractice Damage Caps

Sansone obtains Punitive Damages Jury Verdict - 700 times actual damages.

Bike accidents happen all too frequently and as a St Louis bike injury lawyer the vast majority of bike accidents I see are exactly that, accidents. Accidents wherein a driver may be liable for the injuries because they were negligent, meaning they unintentionally and mistakenly did something wrong and failed to keep a lookout or yield and thus hit a bicyclist. Every so often I believe the driver may have done it on purpose or out of road rage. Additionally, I have often seen drunk drivers hit cyclists in Missouri and Illinois. Never have I seen a video as blatant as the one below, a bus driver was convicted of purposely hitting a cyclist, and it was caught on video.

The bus driver pleaded guilty to and was convicted of dangerous driving and causing grievous bodily harm to a biker. Had this incident not been caught on tape it may have been a hard conviction to make. Now consider if it was not a bus driver with passengers and on a road with witnesses, instead a car with a single driver that hits a cyclist on a rural roadway. See St Louis Cyclist hit By Drunk Driver. No witnesses and the driver can make up any story he wants, such as: the cyclist swerved into the lane, ran off the roadway themselves, or the even more common situation of the driver keeps going.

For these reasons is why any bicyclist needs an experienced St Louis bike lawyer to investigate and aggressively pursue the at fault driver or to pursue an Uninsured Motorist Claim if the driver fled the scene of the collision and could not be identified, thus becoming a phantom vehicle which is an uninsured motorist under Missouri law, thus the cyclist's injures should be covered if they have an auto insurance policy. Additionally, if there is evidence of purposeful striking of the cyclist or drunk driving, you must pursue punitive damages, this will result in a higher compensatory award as well as a punitive damages award. Punitive damages are a necessary allegation as the claim for punitive damages is not only legitimate, but raises the stakes for the defendant which puts more pressure on his car insurance company to settle the case for what it is worth.

Other Bike Accident and Injury Articles:

The "I did not see the cyclist" Defense and dealing with it at Trial

Bicyclist Right of Way at Unmarked Intersections

Continue reading "Bicycle Injuries - Usually Negligent but Sometimes Drunk Drivers or Road Rage" »