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Brown & James
General Defense & Insurance
Law Symposium
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 January 23, 2014 Brown & James presents its annual Symposium on trends in the law at the Sheraton Westport Hotel. Invitations will be forthcoming this fall. Save the date.
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Illinois Places New Burdens on Defendants Settling Cases
The Illinois General Assembly has placed limits on Defendants settling cases. Under Illinois Senate Bill 1912, a defendant settling personal injury, wrongful death, property damage, and tort claims involving monetary damages must tender the settlement documents to the plaintiff within fourteen days of written confirmation of the settlement and tender payment within thirty days after receipt of the executed settlement documents. Under the new law, which takes effect on January 1, 2014, if the defendant fails to meet these deadlines, judgment for the settlement amount will be entered against the defendant, plus costs, including attorney fees, and interest from the date the plaintiff tendered the required documents. Senate Bill 1912 permits parties to opt-out of its requirements by agreement. Insurers and other defendants settling cases in Illinois in 2014 should be mindful of the statute and its requirements before engaging in settlement negotiations and should consider whether they will need to reach an opt-out agreement with the plaintiffs. Such an agreement may be critical in cases where liens and/or the recovery rights of Medicare or Medicaid are involved.
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Co-Employee Suit Again Struck Down
In another co-employee lawsuit, the Missouri Court of Appeals in Amesquita, et al. v. Gilster-Mary Lee Corporation, et al., Case No. ED99266 (Mo. App. E.D., September 10, 2013), affirmed the dismissal of personal injury claims brought by employees against their co-employees for work-related injuries. The Court reaffirmed under Missouri law that a co-employee owes no independent duty to another employee outside the employer's non-delegable duty to provide a safe workplace; therefore, no claims could be maintained by the employee plaintiffs against their co-workers. The Court also addressed the employees' claims against their employer and allowed their lawsuit to proceed against the employer because their claims involved allegations of negligent exposure to dangerous conditions that resulted in occupational disease. The Court, in so ruling, explained that the Missouri workers' compensation statute does not provide an exclusive remedy in occupational disease cases.
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Conflicts in "Dec Page" Make UIM Definition Ambiguous
Where the tortfeasor's liability policy had the same limits as the insured's UIM coverage, the Missouri Court of Appeals held the UIM coverage was ambiguous because the policy's declarations page contained no limitations on the policy's UIM limits. Accordingly, the Court held it was reasonable for the insured to believe that he was entitled to the entire UIM limit under the policy, despite the policy's UIM definition, its setoff provisions, and its limit of liability section. In Fanning v. Progressive Northwestern Insurance Company, No. WD75943 (Mo. App. W.D., August 27, 2013), the Western District of the Missouri Court of Appeals, following its recent decision in Miller v. Ho Kun Yun, explained that the declarations page rendered the policy ambiguous because there was nothing in the declarations that advised the insured that the limits stated in the declarations were subject to reductions by other policy provisions, including a reduction based on the liability limits available under the tortfeasor's policy.
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Missouri Motor Vehicle Financial Responsibility Law is Applicable in Multiple Policy Situations
Where the vehicle's permissive user had his own liability insurance policy, which provided primary coverage, the vehicle owner's policy was also held to provide an additional $25,000 in coverage even though the owner's policy had a provision excluding the driver from coverage. The Missouri Court of Appeals, in Rutledge v. National Casualty Co., No. SD31979 (Mo. App. S.D., May 28, 2013), held that when there are two policies at issue, one an operator's policy and the other, an owner's policy, the MVFRL applies; therefore, the owner's policy must afford coverage up to the minimum limits required by the MVFRL despite the exclusion, which is otherwise enforceable as to sums in excess of the mandatory limits under the MVFRL.
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Owned Vehicle Exclusion Bars Coverage and Prevents Stacking
In Bush v. Shelter Mutual Insurance Co., No. WD75696 (Mo. App. W.D., August 13, 2013), the Missouri Court of Appeals reversed a trial court decision that had ordered stacking under a Shelter policy by holding that the "owned vehicle" exclusion was ambiguous when read in conjunction with the policy's "other insurance" clause. The Missouri Court of Appeals reversed, holding the "owned vehicle" exclusion was unambiguous and not in conflict with the policy's "other insurance" clause; therefore, there was no coverage and no stacking.
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Workers' Compensation Act Bars Action by Employee of Subcontractor Against General Contractor
Where a subcontractor's employee truck driver was injured at a job site by the general contractor's negligence, the employee's exclusive remedy against the general contractor is workers' compensation because the general contractor is immune from suit as a matter of law according to the Missouri Court of Appeals in Shaw v. Mega Industries, Corp., No. WD75501 (Mo. App. W.D., July 30, 2013).
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Exculpatory Clause Not Enforced When Ambiguous
In Fuller v. TLC Property Management, LLC, No. SD31931 (Mo. App. S.D., June 7, 2013), the Missouri Court of Appeals refused to enforce a clause in an apartment lease that held the landlord harmless for the tenant's injuries on the "premises," which the lease defined as the apartment unit rented to the tenant, because the injury took place in the common area parking lot. The Court's decision was accompanied by several concurring opinions in which the judges expressed their desire to hold all such clauses against public policy despite a Missouri Supreme Court decision to the contrary.
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Injured Uninsured Motorists May Not Sue for Pain & Suffering or Non-Economic Damages
By virtue of a rare legislative override, the Missouri General Assembly enacted House Bill No. 339. This law prohibits injured, uninsured drivers from recovering in whole or in part from another insured driver who is at fault for the accident for any non-economic damages.
The principal exceptions to this prohibition are limited to cases in which the at-fault insured driver was under the influence of drugs or alcohol, or was convicted of manslaughter or assault as a result of the accident. In addition, passengers in an uninsured motorist vehicle are excluded from the statute's effects.
This legislation will reduce the amount recoverable in many automobile collision cases. Obviously, a key area for claim investigation will be whether the injured driver making the claim was insured at the time of the loss. For a copy of the legislation, click on the bill's citation above.
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| In a premises liability case tried in St. Louis County against a local grocery store, the jury returned a unanimous verdict for Tucker Blaser's client. Tucker, in a case in which the plaintiff claimed $50,000 in damages, persuaded the jury that the plaintiff's claimed slip and fall on smashed grapes on a floor rug in the store's produce aisle was not due to a dangerous condition that the store had to guard against. |
In an uninsured motorist case, Mike Maguire obtained a defendant's verdict for his insurance carrier client when the jury did not believe that the alleged uninsured motorist was responsible for the accident. In a case in which the plaintiff sustained a rotator cuff tear, $24,000 in medical expenses, and $17,000 in future medical projected expenses, the St. Louis City jury simply did not believe the plaintiff and returned a defense verdict for Mike's client.
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In a rare defendant's verdict in a Missouri Merchandising Practices Act case, Brad Hansmann convinced a jury that his roofing company client was not guilty of committing consumer fraud despite the fact there were problems with the roof following construction.
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| Ross Davis, in an Illinois personal action brought against the local mass transit authority, persuaded an arbitration panel that the plaintiff's injuries resulting from a fall while walking over a grade crossing were due to an open and obvious condition, despite the plaintiff's claim that a combination of loose gravel at the crossing and an uneven surface had caused her fall. |
Russell Watters and Cynthia Juedemann successfully argued before the Missouri Court of Appeals that an insurer issuing an insurance policy to a rental car company did not owe coverage for a wrongful death action resulting from an accident in which a husband crashed the car and killed his wife, based on the application of the "household" exclusion. *See Affirmative Insurance Co. v. Broker, No. ED98700 (Mo. App. E.D., July 30, 2013).
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John Greffet and Brad Hansmann convinced the Missouri Court of Appeals in Safe Auto Ins. v. Hazelwood, Nos. SD 31928 & 31929 (Mo. App. S.D., February 7, 2013), that a passenger in a vehicle could not be liable for an accident caused by the vehicle's driver; therefore, the driver's policy afforded the passenger no liability coverage for the accident.
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Mike Ward and Patrick Bousquet obtained summary judgment in the United States District Court for the Eastern District of Missouri for their insurance client in a declaratory judgment action in which the insured sought coverage for claims based on the insured's failure to properly supervise, train, and hire persons who later allegedly sexually molested minors in their care.
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In an unusual case involving an attempt by a plaintiff to pierce the corporate veil and impose personal liability on a corporate officer, David Bub and J.C. Pleban convinced a jury that their client was not personally liable for a $750,000 judgment entered against him. The jury found that the only liable party was the corporation, which had no assets; therefore, the plaintiff was unable to collect on the judgment. |
 "Go-To Law Firm" in Litigation for Top 500 Companies For seven consecutive years, Brown & James has been named by The Top 500 Companies as a "Go-To Law Firm ," an elite group of law firms that deliver exceptional service to companies in the Fortune 500. For 2013, Brown & James was named a "Go-To Law Firm" for the Top 500 Companies in Litigation. READ ON |
Firm Names Two New Principals
Newly named St. Louis principal Brandon Copeland and Kansas City principal Derek MacKay were officially honored earlier this month. Copeland, a former claims adjuster, focuses his practice primarily on first-party insurance and construction defect work. MacKay concentrates on products liability, commercial litigation and insurance coverage matters. |
Phil Willman Elected DRI Mid Region Director
St. Louis principal Philip Willman was recently elected to serve on the Defense Research Institute's Board of Directors as the next Mid Region Director. A DRI member since 1985, Willman has been actively involved with the Medical Liability and Health Care Law Committee. He was appointed to vice chair from 2007-09 and served as chair from 2009-11. |
Upcoming Speaking Engagements and Events
- St. Louis principal and ALFA International Women's Initiative Practice Group vice chair Elaine Moss will be moderating a plenary session on diversity at ALFA's Annual Business Meeting & Women's Initiative Program on October 24-26 at The Westin Chicago River North.
- Principals Beth Kamp Veath and John Rahoy will be speaking at ALFA International's 2013 Hospitality Law Practice Group Seminar being held November 6-8 at the Hotel Del Coronado in Coronado, California.
- Springfield principal Kristie Crawford will be attending the National Association of Women Lawyers' 9th Annual General Counsel Institute event on November 7-8 at the Intercontinental Hotel in New York's Times Square. As part of Brown & James sponsorship of this event, clients and colleagues who are in-house attorneys may receive a $100 discount by using the promo code (GCI9AAS) to sign-up.
- St. Louis principal Robert Brady will moderate, "Legal Panel 1: Case Law Update and Emerging Trends in First-Party Insurance Law" as part of the National Society of Professional Insurance Investigators' 2013 Advanced Insurance Fraud Seminar on November 11-12 at the Hilton at the Ballpark in St. Louis.
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About Us
Brown & James, P.C. is a Midwest regional law firm with more than 100 attorneys representing companies in litigation, appeals and insurance coverage matters.
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Contact Us
If you have any questions:
Managing Principal
314-242-5306
Principal
314-242-5252
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