Missouri Injury Law Blog

A car accident occurred in Illinois as the result of a truck going approximately 60 MPH and ramming into the back of our client's, Donald's, vehicle that was sitting at a stop light. We are pursuing two claims on behalf of Donald, a personal injury claim against the at fault driver as a result of his negligence and an Illinois Workers' Compensation claim as Donald was driving a company vehicle at the time of the accident and was on duty for is employer.

Personal injury claims and Workers' Compensation claims vary in many ways. In Workers' Compensation claims the amount of money, or damages, Donald is entitled to is based on his injury translated into a disability rating which is then calculated by different factors depending on what part of the body is injuried and how much he earned per week at the time of the injury.

The personal injury claim is filed through the Illinois court system as a negligence case against the driver. The primary issues are liability and damages, or in other words, whose fault it is and how much money the victim should get as a result of that fault and the resultant injuries. These cases are ultimately decided by a jury, if a settlement is not reached, and damages are based on the jury's determination based on bills, economic damages, and pain and suffering, non economic damages. There is no magic formula for determining the damages but it is left to the jury.

When both types of cases are filed, the Workers' Compensation insurance company is entitled to a lien on the proceeds from the personal injury case. This lien is based on the fact that in workers' compensation claims liability is not an issue and medical bills are paid by the work comp insurer, entitling them to a lien to recover their expenses for paying the medical bills as the result of the 3rd party's negligence.

It is always worthwhile to pursue both the work comp case ans the negligence case when their is an a fault party that is not also employed by the same employer. Many clients worry about the lien, however, this can often be negotiated down to make sure the client receives a good recovery on both cases, and ultimatley a larger recover than if they pursued only one case.

After a traumatic motor vehicle accident in Illinois involving a large pickup truck and a smaller sedan with three severly injured passengers, the families of the victims desperately needed a personal injury lawyer and contacted us, we immediately cleared our schedule and traveled to the hospital in Illinois to visit the families.

Our investigation of the truck accident revealed that the driver of the pickup truck was drunk, had several bottles of liquor in his car, and was doing about 80 MPH when he struck the sedan that was coming to a stop to make a turn. The impact from the truck threw the sedan about 150 yards into a ditch and there were no skid marks from the truck evidencing that he did not even touch his brakes. The property damage to the sedan is severe and it is amazing that all of the passengers survived.

We now represent three of the passengers that were in the sedan. Two of the passengers have severe and debilitating injuries. The man in the back seat was trapped in the car for several hours and suffered degloving injuries (removal of the skin from the impact) to his face and has endured a severe and traumatic brain injury. The young girl in the back seat suffered a broken pelvis and broken neck.

When faced with a case such as this a lawyer's primary concern is insurance coverage and if there will be enough to fully compensate our clients, the victims. The sedan driver's insurance may be on the hook as she apparently stopped suddenly and may not have used her turn signal, the injured parties insurance may provide coverage under their medical payments ("Med Pay") coverage, under-insured motorist coverage, and uninsured motorist coverage. The interesting issue will be what insurance we can get to cover for the truck driver's negligence. The driver of the truck was clearly the most negligent and reckless, additionally, he is the son of a local car dealer and the truck had dealer plates on the truck. Therefore, the auto or general liability policy of the auto dealership should cover. Moreover there is a potential case of negligent entrustment of the vehicle by the parents or the dealership potentially allowing access to home owner's or umbrella coverage.

In Missouri the 2005 tort reform has severely limited the rights of victims of personal injury as the result of the negligence of someone else, and apparently that devastation to the legal justice system is not enough. Additionally, Illinois personal injury rights are under attack daily as well. The new trend is now to push for mandatory arbitration, particularly in medical malpractice cases under the guise of "Health Courts". This is essentially mandatory arbitration, taking away your right to a trial by jury. Voluntary arbitration is acceptable and very useful in our legal system in all types of cases including personal injury cases; however, it has be to be in case where arbitration is likely to produce a fair result and both parties want to forego the time and expense of a jury trial.

Recently, the Arbitration Fairness Act of 2007 was introduced in an attempt to curtail this unfair trend. With the understanding that mandatory arbitration prevents victims of personal injury and their families from having a fair opportunity to justice through the legal system when they are injured by the negligence or misconduct of others. More and more, corporations are using mandatory arbitration clauses to weaken the basic legal protections the constitution provides and further stack the deck against individuals who are forced to fight Goliath. Voluntary arbitration is an effective method to resolve disputes efficiently, but, unsuspecting consumers must not be forced into it through the fine and small print hidden on the back pages of an agreement.

Many injury victim advocates, such as AAJ, support strong consumer protection laws to keep the playing field level so that individuals can access justice and wrongdoers can be held accountable.

2007 ARBITRATION FAIRNESS ACT

Continue reading "Injury Law - Missouri and Illinois - Mandatory Arbitration in Injury Cases? An Attempt to Deny Victims their Constitutional Right to a Trial by Jury" »

Recently, an Alton Illinois woman was killed in motorcycle accident when she struck a concrete retaining wall and a tree. She died from massive head injuries, additionally, she was not wearing a helmet. Apparently, she was learning to ride the motorcycle as she had very little experience.

Unfortunately, when a motorcyclist is in a motorcycle accident in Missouri, Illinois, or anywhere else, they usually lose unless properly trained and equipped with the proper safety equipment, namely, a helmet. In Missouri, motorcyclists must wear a helmet as mandated by state law, however, this is not the case in Illinois as it is legal to ride a motorcycle without a helmet.

I have been in two motorcycle accidents and walked away from both, however, I did suffer a minor head injury from one of the motor vehicle accidents. The reason i walked away from both, I was wearing safety equipment and was trained how to react when in a motorcycle accident.

In St Louis, Missouri I was in a motorcycle accident at the intersection of Clayton and Big Bend when a driver failed to see me on my motorcycle and failed to yield and pulled out in front of me without warning. My reaction, drop the bike on its side and slide behind it. The motorcycle took most of the damage and I slide under the car and struck my head on the rocker panel. I walked away and suffered only minor injuries. If I was not wearing a helmet I would be dead.

A Missouri personal injury claim was filed against the driver through his insurance company and a favorable settlement was quickly reached after I recovered from my head injury and other back and neck injuries. The damage to the helmet makes a great exhibit for the force of the impact when pursuing these claims.

Illinois applies the same standard as Missouri. In Illinois an attorney who was retained on a contingency contract and is subsequently discharged is limited to recovery under Quantum Meruit. Hofreiter v. Leigh, 124 Ill. App 3d 1052. The fee to which you are entitled is calculated by time spent on the case in performing legitimate legal services for the client and multiplying that by a reasonable hourly rate. John v. Klecan, 198 Ill. App. 3d 1013, 1019.

Under Missouri law, an attorney discharged without good cause has a right to a reasonable fee for services rendered. The discharge of an attorney employed under a contingent fee contract will work a termination of the contingent fee agreement. Plaza Shoe Store, Inc. v. Hermel, Inc., 636 S.W.2d 53 (Mo. banc 1982). In Plaza Shoe Store the Supreme Court of Missouri held that an attorney working on a contingent fee contract who is discharged by the client without cause is entitled to recover the reasonable value of his services, as measured by his normal hourly rate and the amount of hours put into working on the case.

People often rush to hire a personal injury lawyer based on the recommendation of a friend or relative and sometimes find that they are not satisfied with their attorney or come to find that a different attorney has more experience in injury law. Many lawyers who do not handle a lot of personal injury cases take personal injury cases. So if you find you want to hire a lawyer with more experience in injury law but are afraid of what you will owe the previous lawyer and that changing lawyers will mean less money for you, do not worry, the law is on your side.

Once a personal injury lawyer is discharged (for cause or just because) the contract is legally void and the attorney has a lien for the reasonable time he or she has put into the case multiplied by a reasonable hourly fee. If the case comes to me after you discharge your lawyer I will satisfy the previous lawyers fee out of my fee, therefore, you the client will not be disadvantaged financially for switching lawyers and in most cases you will receive more money as a better result may be obtained,as we have in the past made millions on cases rejected by otehr lawyers who did not know how to recognize the issues that mattered most.

The wrongful death case brought by the Handcock family stemming from the car accident wherein Josh Hancock was killed has been dismissed without prejudice against all Defendants.

PLEASE REFER BACK TO PREVIOUS POST - Missouri Wrongful Death Claimed by the Estate of Deceased Cardinal's Pitcher Josh Hancock - Frivilouis Lawsuit?

FOX 2 ST LOUIS NEWS BROADCAST OF DISMISSAL

After a lawsuit filed by an injured driver a jury verdict was returned for $150,000 in favor of the plaintiff on the claim that the county negligently failed to maintain or repair a downed stop sign and that caused a motor vehicle accident in which the plaintiff sustained personal injury.

The county argued that sovereign immunity should have barred the lawsuit. However, the Missouri Supreme Court held that the cause of action for failure to maintain or repair a stop sign falls within the statutory waiver of sovereign immunity for injuries resulting from dangerous conditions on public property. Missouri Statute 537.600.

This is a victory for victims of injury as the court refused to narrowly interpret the above statute allowing government entities to escape liability for their negligence.

Douglas A. Hensley, Jr., Respondent, v. Jackson County, Missouri, Appellant

Missouri Statute 537.600 - Sovereign Immunity Exceptions

Wrongful death personal injury practice covers cases where families have suffered the tragic lose of a loved one. In one case our client died as the result of a surgeon's failure to treat post op complications about 2 weeks after a gastric bypass surgery. The doctor was enabled by the sponsoring hospital that aggresively advertised the procedure across the midwest and loaded him up with 100s of surgeries per year. The case is still pending against several other defendants, including the hospital, and we expect the case to settle for over 5 million dollars.

I handle a lot of DWI and DUI cases in Missouri and Illinois and have seen a lot of very interesting cases. As a DWI lawyer, it is disturbing, the number of cases wherein the police blatantly step over the line of proper policing by consistently stopping people solely on the the gamble that if a person is driving late at night on a weekend, and particularity a holiday weekend, that they are drunk driving.

Two drunk driving cases I recently handled last month highlight this abuse and the descriptions below are based on undisputed facts:

1. Designated driver goes through a sobriety checkpoint in a convertible, police officer interviews him briefly, indicates he is fine, and tells him to proceed. Well, the driver was taking his friends to a local gas station for beer and on the way back the same officer accused him of drinking and driving and ran him through a battery of field sobriety tests and arrested him without probable cause, why? because there was a case of beer in the back of the car. No other possible explanation for the harassment.

2. Police stop my client who was driving an ATV, specifically, a Rhino 660, which is a side by side seater 4 wheeler that essentially looks like a small jeep. The officer stopped him because he was on the road for a brief time to get to his neighbors property. The officer arrested him for DWI and illegal operation of an ATV on the road. Again, ridiculous! The Missouri definition of an ATV that is illegal to drive on the road is less than 600lbs, straddle seating as opposed to side by side, handlebars as opposed to a steering wheel, and less than 50: wide. My client's vehicle clearly, upon simply looking at it, did not fall under any of these specifications.

My advice to the police, enforce the laws on the books and stop using the ends to justify the means of arrest through harassment an blatantly unfounded charges. I vigorously fight these cases.

Workers' Compensation Claim for post traumatic stress disorder based on the fact that my client, Nathan, witnessed his brother, Jason, fall from a water tower to his death after a safety clip failed to close and failed to keep him attached to the structure after he slipped on ice and fell. Working just a few feet from him, his brother witnessed the entire event.

The alleged causes are the failure to have proper safety measures in place by the employer, as well as product liability based on defective safety equipment. The employer was cited by OSHA and fined almost $30,000. The employer, Phoenix Fabricators, is disputing the citations and that matter is ongoing.

There is also evidence that the caliper (pictured below) failed to close due to a defective design. This matter is currently under investigation by my firm. The picture above was taken from the position my client was when he slipped and fell to his death and from the vantage point my other client, Nathan, was when he witnessed the fall.

We have filed a Workers' Compensation claim on behalf of both brothers (the survisors for the deceased brother). Additionally, third party claims will be filed once the OSHA investigation report is released.

Currently I represent a wonderful lady involved in a bike accident who rides her bike several times a week early in the morning and on lightly traveled roads. About 6 months ago a driver in a hurry to get to work around 6:00 a.m. passed her and then made a sudden right turn directly in front of her causing her to strike the side of his truck and that caused her to be thrown off her bike. The driver got out, asked if she was ok, and then immediately left! She went to the hospital and was found to have a fractured elbow and had to have a bolt placed in her arm. She underwent months of pain and medical treatment. I filed a negligence claim on her behalf against the driver.

The Missouri Driver's Guide States:

If you are following a bicyclist and need to make a right turn, you must yield to the cyclist. It is often safer to slow down and remain behind the cyclist until you are able to turn.

The case is currently set for trial in December 2007. One of the difficulties I anticipate we will have is jury selection. As we all know, drivers do not particularly like bicyclists, they get in our way when we drive! I am an avid bicyclist and I often have these thoughts when someone is riding their bike on a busy street.

Hopefully we can overcome the bias that is apparent in our society, especially considering my client in this case was riding early in the morning, on a side road with a large shoulder area, and she was riding on the shoulder which was several feet wide.

Missouri Law related to Bicyclists - As published by the Missouri Bicycle Federation

Statements from Missouri Driver's Guide about Sharing the Road

St Louis residents familiar with the intersection of Dunn Road and I-270 know that the on ramp cuts across a lane of traffic, known as a "slip ramp". This is particularly dangerous and was almost fatal to the client of a lawyer in my office suite. This was negligent design by MODOT that contributed to the cause of the car accident.

Car Accident Lawyer:

The setup of the intersection at Dunn Road and I-270 made it prime for collisions like Hill's, he said. Cars waiting on Dunn to jump onto the on-ramp must yield to oncoming traffic, but many drivers zip in front of traffic or dart around yielding vehicles. With no traffic islands, signage or stoplights, Pedroli said the area is a chaotic free-for-all.

Ryan Hill's car was struck by another driver using the on ramp that cuts across the lane of traffic Hill was traveling in. Hill almost died, he ended up with near fatal injuries and over two hundred thousand in medical bills.

VIDEO OF FOX NEWS REPORT ABOUT THE ACCIDENT

St Louis Daily Record and Countian Article

Due to the risk of burn injuries and other personal injury risks, the classic "Easy-Bake" oven manufactured and distributed by Hasbro for over 40 years has been recalled. All ovens produced since May 2006, about 1 million, have been recalled as there is a risk that children will get their hands or limbs caught in the door due to its design. Additionally, many children have suffered burns.

The oven has been linked to approximately 280 incidents where kids kids get their hands and limbs caught in the door. There are also reported cases of partial amputation.

SUNTIMES ARTICLE ON PRODUCT LIABILITY RECALL

This reminds me of a similar injury case we currently have pending. Our client's daughter was 6 years old when she lacerated her cornea using a toy kitchen set knife. Upon inspection the plastic toy kitchen knife was serrated and actually quite sharp. The design should have been a blunt or very dull edge and the injury to her eye would not have occurred.

CPSC Defective Product Recall Article

Defective Product Manufacturer Hasbro's Website for Injured and Concerned Consumers

M.A.E. v. Dr Smith, M.D. (confidentiality agreement), Missouri 2006

Medical Malpractice settlement after my client underwent a de Quervain's release, a simple outpatient procedure designed to relieve pain caused from injured tendons at the base of the thumb and wrist. The Dr. negligently cut 90% of the siatic nerve when making the incision, reducing our clients ability to feel the back of her hand and causing a numbing sensation.

My client incurred nominal additional expenses and lost wages as a result of the doctor's negligence. There was a zero offer from defendant to settle the case until 2 days before trial and the case was settled for $60,000. Additionally, because the underlying injury that required surgery in the first place was work related, we settled her work comp case for medical bills plus $20,000.

This was not a record breaker, but given the nature of the injuries it was definitely a victory. The primary reason any offer was made at all on the case was that we destroyed the Defendant's medical expert in deposition the week before trial. He is the type of doctor that believes most, if not all legal cases against doctors are frivolous, in the deposition he all but admitted the doctor was negligent.

Recent wrongful death case that may be filed as either a Missouri or Illinois lawsuit is the result of a December 2006 fatal accident of our client's late husband when fell to his death when working on a water tower. The possible defective clip to his safety harness failed to close and secure him as debris from welding builds up in the closing mechanism. Allegedly, the employer, Phoenix Fabricators, failed to replace the safety equipment, additionally, the safety clip itself may have been poorly designed or malfunctioned.

Its a disturbing case to me especially considering his death could have been prevented by taking the required safety measures. OSHA has issued several citations to Phoenix Fabricators based on their continued failure to follow safety measures.

These tank workers have high risk jobs and they deserve the proper safety equipment. Below is a link to an article talking about the dangers of the job and the experiences of several workers for Phoenix Fabricators.

General Article about Water Tank Workers