Blog Posts in October, 2011

  • Bicycle and motorcycle right of way at unmarked intersections

    || 31-Oct-2011

    Right-of-way at intersections is commonly misunderstood and one of the legal issues of who is at fault when dealing with bicycle accident cases. More accidents occur at intersections not monitored by traffic signals. When two or more vehicles (bicycles included) arrive at an intersection at the same time and there is neither person nor sign in place to indicate whose turn it is to go; the person ...
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  • Calculating Worker's compensation damages

    || 29-Oct-2011

    Damages (money) for injuries under Missouri general negligence cases are determined by the amount of medical bills incurred (past and future), lost wages (past and future), prescriptions, property damage, other expenses attributable to the injury, and finally, pain and suffering. Pain and suffering is that uncertain dollar amount that a jury may award you for the pain and suffering of having to go ...
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  • Missouri ruling limits Arbitration clause for unconscionability

    || 27-Oct-2011

    A case from the Missouri Court of Appeals, Western District, sitting en banc, with two separate opinions. The case provides a very detailed discussion of whether an arbitration provision in a contract between an insurer and a chiropractor is enforceable. The court concludes that the agreement is unconscionable: While an ordinary person could reasonably expect general arbitration provisions in an ...
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  • How to thwart cumulative defense witnesses

    || 26-Oct-2011

    It is often the approach of medical malpractice insurance companies and their lawyers to fight them with little to no negotiation and vigorous defense. A common defense tactic in big medical malpractice cases is to name multiple doctors to testify on the same subject as an expert. Why do this? Two reasons, one, if one doctor testifies bad in a deposition then the defense will dis-endorse that ...
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  • Limits on an insurer's duty to provide legal defense after settlement

    || 23-Oct-2011

    In a new case, the Missouri Court of Appeals, Eastern District, held that an insurer that had paid its policy limits in full settlement of one claim arising from an incident was no longer required to provide a defense to the insured in connection with another claim arising from the same incident. National Beef Packing v. Zurich : http://www.courts.mo.gov/file.jsp?id=45195
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  • Affirmative defense to running red lights in Missouri

    || 22-Oct-2011

    Have you ever been on a bike or a motorcycle and encountered a red light that would not change for an unreasonable amount of time? That is because many traffic signals are triggered by pressure sensors in the road. Until recently, however, there was no affirmative defense whatsoever for running the red light. Recently, however, Missouri's Bicycle Law was changed by Missouri Statute 304.285, ...
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  • Are preliminary expert reports protected?

    || 19-Oct-2011

    A preliminary report by an expert containing mental impressions based on initial review of case should be protected under Rule 56.01(b)(3) as Trial preparation materials. Rule 56.01(b)(3) states that a "party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by ...
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  • Risk of injury from outside work is irrelevant

    || 17-Oct-2011

    A recent Missouri case held that when the connection between an injury and a workplace activity is clear, the risk of injury during the injured worker's activities outside of work is irrelevant. Statutes provide that where relation between work and injury is clear, exposure to risk outside of employment is irrelevant. Evidence supports finding of no pre-existing permanent injury and award of ...
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  • Missouri Dram Shop liability

    || 15-Oct-2011

    Under Missouri Statute § 537.053 a Dram Shop case has three main elements to the cause of action: 1. The claim must be brought (1) "by or on behalf of any person who has suffered personal injury or death" 2. Against a "person licensed to sell intoxicating liquor by the drink for consumption on the premises. . ." 3. Clear and convincing evidence the seller "knowingly ...
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  • Health Insurer cannot seek reimbursement from lawsuit proceeds

    || 11-Oct-2011

    Lets say you are involved in a Missouri auto accident with injuries and your health insurance, that you pay for, covers your medical expenses. Can that heath insurer now demand you pay them back from the proceeds of your auto accident settlement or judgment against the at fault driver? Absolutely not - but they try all the time. Under Missouri injury law it is clear that a lien or subrogation ...
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  • Can pregnant women sue for wrongful death of fetuses in Missouri?

    || 10-Oct-2011

    In Missouri, a personal injury lawyer can file a wrongful death action on behalf of an unborn child, as under Missouri's wrongful death statutes and the court's interpretation of them, an unborn baby is a "person" capable of supporting a claim for wrongful death pursuant to § 537.080. In Conner v Monkem Co, Inc., 898 S.W.2d 89 (Mo. 1995) , the Missouri Supreme court decided ...
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  • Missouri Liability for third party criminal acts

    || 8-Oct-2011

    Missouri personal injury premise liability for criminal acts arises when there is (1) a "special relationship or circumstances" between the landowner and the personal injury victim, (2) personal injury resulting from a criminal act of a 3rd party, and (3) causation, i.e. the criminal act would have likely been prevented with proper security. At the end of this article are several ...
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  • Workers Comp Calculation of Damages

    || 6-Oct-2011

    In Missouri, the calculation of damages (money) for the same injury under general negligence law (i.e. injured in a car or truck accident ) as opposed to the calculation under Missouri workers compensation (i.e. work related injury) are very, very different. A common reaction from clients injured at work, is the disbelief that an injury, just because it occurs at work, can be worth less than that ...
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  • Proving causation in auto accident cases

    || 5-Oct-2011

    A Missouri personal injury lawyer must prove liability and damages to succeed in a personal injury claim. Liability is whether or not the negligent driver violated a duty, i.e. drove too fast, failed to keep a lookout, or violated various other rules of the road. That violation must be the cause of the damages to the victim. In most cases, causation is obvious and easily proven, but it sometimes ...
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  • Dealing with ERISA liens on personal injury settlements

    || 4-Oct-2011

    In Missouri and throughout the country ERISA Liens are becoming more complicated and more common in car accident and other personal injury settlements. Essentially, if you are injured in a car accident or have another actionable personal injury claim, and your health plan is an employer funded health plan and qualified under ERISA, the plan can sometimes circumvent State anti-subrogation laws. ...
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  • Insurance Company Withholding Settlement Check pending Medicare lien

    || 3-Oct-2011

    Medicare liens and other healthcare liens play an important role in personal cases and need to be addressed early on in the case and handled properly to limit the amount of the lien. In the case of Wilson v. State Farm Mutual Automobile Insurance Company, No. 3:10-CV-256-H, 2011 WL 2378190 [2011 U.S. Dist. LEXIS 63430 (W.D. Ky., June 15, 2011), the United States District Court for the Western ...
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  • Proving Causation in Auto Accident cases

    || 2-Oct-2011

    A Missouri personal injury lawyer must prove liability and damages to succeed in a personal injury claim. Liability is whether or not the negligent driver violated a duty, i.e. drove too fast, failed to keep a lookout, or violated various other rules of the road. That violation must be the cause of the damages to the victim. In most cases, causation is obvious and easily proven, but it sometimes ...
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  • Plaintiffs win $1.1M judgment in drunk driving accident

    || 1-Oct-2011

    Accident victims Clarence Everett Wood and Mary Wood won a $1.1 million dollar judgment in Missouri drunk driving car accident lawsuit. The plaintiffs sued Huey E. Crocker for causing a Missouri front impact accident. The accident occurred on January 28, 2008 on U.S. Highway 50. Crocker drank heavily before driving his pickup truck. Crocker swerved across the centerline of the roadway and slammed ...
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