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Mixed Messages On Stacking Of Automobile Liability Policies
Over the past several years, Missouri's appellate courts have addressed the stacking of underinsured motorist coverage on numerous occasions, and in many cases, permitting stacking despite seemingly unambiguous anti-stacking provisions. Recently, judicial attention in Missouri has turned to the stacking of automobile liability insurance. In two recent decisions, different districts of the Missouri Court of Appeals reached opposite conclusions, one permitting stacking, the other not.
In Farmers Ins. Co., Inc. v. Wilson, No. SD32632 (Mo. App. S.D., March 20, 2014), the Southern District of the Missouri Court of Appeals barred stacking under three automobile liability policies and a motorcycle liability policy. The court explained, in a unanimous decision, that the policies' anti-stacking language was clear and unambiguous and limited liability coverage for the insured to only the coverage applicable to the insured vehicle involved in the accident. The Southern District, in so ruling, noted that the application of the Missouri Motor Vehicle Financial Responsibility Law had not been raised by either party in the trial court, and, therefore, was not an issue on appeal.
The Western District of the Missouri Court of Appeals reached the opposite conclusion in Dutton v. American Family Mut. Ins. Co., No. WD74940 (Mo. App. W.D., January 21, 2014), based on the Court's analysis of the Financial Responsibility Law and the Law's impact on the stacking of automobile liability insurance. The Western District, in a 6-5 decision, held the Financial Responsibility Law requires minimum liability coverage of $25,000 for each applicable owner's or operator's policy insuring the driver involved in the accident, even if only one of the policies insures the vehicle involved in the accident.
The Dutton decision was accompanied by several strong dissenting opinions. Not unsurprisingly, the Missouri Supreme Court, on April 29, 2014, granted transfer to hear the case. We anticipate a decision from the Supreme Court sometime this fall. The Supreme Court's decision will very well set the parameters for the stacking of automobile liability insurance in Missouri. As soon as the Supreme Court rules, we will report the Court's decision in our newsletter.
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Illinois Appellate Court Broadly Construes TCPA Exclusion To Bar Coverage For Conversion And Consumer Fraud Claims
The Appellate Court of Illinois, in G.M. Sign, Inc. v. State Farm Fire & Cas. Co., No. 2-13-0593 (Ill. App. Ct., May 2, 2014), held an insurer had no duty to indemnify its insured's judgment creditor in a blast fax lawsuit brought by the class action plaintiff to recover damages for the sending of unsolicited facsimile advertisements. The plaintiff's claim included conversion and consumer fraud claims that were pleaded with the intention of creating coverage. Neither count made reference to the TCPA, although the claims were based on the same faxes underlying the plaintiff's TCPA claim. The Appellate Court, in ruling for the insurer, held the insurer's TCPA exclusion should be broadly interpreted to bar coverage for any claim arising out of the insurer's transmittal of the faxes, regardless of how the claims are characterized in the pleadings.
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Dog Bite Through Open Window Does Not Qualify As Uninsured Motorist Claim
In a well-written decision, the Missouri Court of Appeals in Walden v. American Family Mut. Ins. Co., WD75982 (Mo. App. W.D., April 15, 2014), addressed an unusual uninsured motorist claim. The insured was injured when a pit bull bit her through an open car window. The Court of Appeals, in rejecting her claim, held her injuries did not qualify for uninsured motorist coverage because they did not "arise out of the use" of a vehicle. The Court, in an extensive opinion, examined the history of what constitutes "arising out of the use" of a vehicle and held that the mere fact that the dog happened to be in a car at the time did not give rise to an uninsured motorist claim.
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Employer Liability For Retaliatory Discharge Following Employee's Workers' Compensation Claim Expanded
In a 5-2 decision, the Missouri Supreme Court, in Templemire v. W & M Welding, Inc., No. SC93132 (Mo. banc, April 15, 2014), liberalized the causation standard that an employee must establish to make a prima facie case for retaliatory discharge after making a workers' compensation claim. The Court held the employee need only show that the employee's workers' compensation claim was a "contributing factor" to the employer's discrimination or the employee's discharge, and not the "exclusive cause," as previously held by Missouri courts. The Court's decision, which reversed thirty years of Missouri Supreme Court precedent, is another example of the recent judicial trend to expand employee rights under Missouri law.
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In Equitable Garnishment Action Court Finds Construction Defect Claims Covered By Liability Policies
Missouri courts continue to find coverage under liability insurance policies for construction defect claims. In The Village at Deer Creek Homeowners Ass'n, Inc. v. Mid-Continent Cas. Co., No. WD76191 (Mo. App. W.D., April 1, 2014), the Missouri Court of Appeals held a construction defect claim presented a covered claim for "property damage" caused by an "occurrence" under the insurer's policies at issue. The case was another example of an adverse coverage decision following an insurer's refusal to withdraw its reservation of rights defense and the subsequent entry of a consent judgment following an agreement between the insured contractor and the claimants to limit recovery to the insurer's policies in exchange for the insured's agreement not to defend the claim at trial. In the later equitable garnishment action, the Missouri Court of Appeals held the insurer was bound by the trial court's findings of fact which were written to establish coverage under the insurer's policies.
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Supreme Court Accepts Appeals To Address Whether A Fraudulent Concealment Claim Tolls The Three-Year Statute of Limitations Governing Missouri Wrongful Death Claims
Missouri wrongful death claims are governed by a three-year statute of limitations. In two recent cases, separate districts of the Missouri Court of Appeals have addressed whether a fraudulent concealment claim tolls the three-year limitation period. In State ex rel. Beisly II v. Perigo, No. SD32800 (Mo. App. S.D., January 23, 2014), the Southern District of the Missouri Court of Appeals refused to extend the three-year statute of limitations based on fraudulent concealment. In contrast, the Western District of the Missouri Court of Appeals in Boland v. St. Luke's Health System, Inc., No. WD75364 (Mo. App. W.D., November 26, 2013), reached the opposite conclusion, holding the plaintiffs could file their wrongful death claims some eight years after their decedents' death. On March 25, 2014, the Missouri Supreme Court granted transfer in each case to address the conflict.
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| In a large products liability case, Brad Hansmann and Kevin Glynn received a 9-3 defense verdict for the defendant product manufacturer. The plaintiff was severely injured and rendered a paraplegic after his car struck grates manufactured by the defendant. At trial, the plaintiff sought over $18 million in damages. After a two-week trial and four hours of deliberations, the jury returned a defendant's verdict. |
| Dave Ellington and Halle Dimar, in a medical malpractice case tried in Marion County, Missouri, received a unanimous defense verdict for their clients. The plaintiff alleged the defendant doctor had failed to place the plaintiff on DVT prophylaxis upon her admission to the hospital for cellulitis, although the hospital's own risk assessment forms placed the plaintiff at a "very high risk" for developing blood clots. After discharge, the plaintiff had a DVT and developed post-thrombotic syndrome, requiring a number of stenting procedures. The plaintiff's pre-trial demand was $2 million, and at trial, the plaintiff sought over $3.5 million in economic damages and a non-specified amount of non-economic damages. |
| Ken Burke, in a medical malpractice action tried in Randolph County, Illinois, received a defense verdict for his OB/GYN physician client who had been accused of suturing a portion of the plaintiff's large bowel as part of a vaginal cuff repair during the performance of a vaginal hysterectomy. |
| Joe Swift and Scott Morgan won an appellate court victory for their client, a national restaurant chain. The plaintiff, who slipped and fell in Illinois, filed her lawsuit in Missouri in an attempt to escape Illinois' two-year statute of limitations, claiming she planned her trip in Missouri based on information contained on the chain's website. In response, Joe and Scott demonstrated that Missouri's "borrowing" statute governed the plaintiff's action, and required the application of the Illinois statute limitation, regardless of where the plaintiff had filed her lawsuit. |
| David Bub came in with a big win for his client who was sued by a co-employee in Jackson County, Missouri. His client, the defendant employee, struck the co-employee plaintiff while operating a backhoe at a construction site. The plaintiff had underwent three surgeries with total medical specials of $185,000 and his expert testified that he would require a future knee replacement at a cost of $250,000. At trial, the plaintiff asked the jury for $2.4 million in damages. After a five-day trial, the jury found for the defendant. |
| In another co-employee lawsuit, Russell Watters and Jackie Kinder persuaded the trial court in Greene County to enter summary judgment for their co-employee defendants under the evolving legal standards governing co-employee liability claims in Missouri. The defendants, a co-employee operating a fork lift and his foreman, were sued by the plaintiff who was run over by the fork lift. The trial court held as a matter of law that the plaintiff's exclusive remedy under workers' compensation barred the plaintiff's claims against both defendants. |
| John Cunningham, Dan Hasenstab, and Nicholas Biersbach persuaded the Circuit Court of Madison County, Illinois, to dismiss a complaint filed by an oil refinery against their client, a construction company. The refinery sought over $20 million in property damage and economic loss allegedly sustained when the construction company accidentally severed one of the refinery's power lines. The refinery filed its lawsuit over four years after the accident. John and his team successfully argued that the refinery's claim fell under Illinois' four-year statute of limitations for claims involving the construction of improvements on real property, rather than the general five-year limitations period for property damage. |
| Peter Spataro and Morgan Murphy received a defense verdict for their client in a medical malpractice case in a three-week jury trial in St. Louis County. The plaintiff brought a wrongful death claim for the death of his forty-five-year-old wife who died following complications from a gynecologic surgery that left the plaintiff's wife in a vegetative state for over eighteen months before dying. The plaintiff alleged her treating physicians had failed to timely diagnose a small bowel leak and abscess. Their client, a radiologist, was charged with misinterpreting the wife's abdominal CT scan. Before trial, the plaintiff's demand was $1,965,000 based on over $800,000 in medical bills, over $800,000 for wage loss and loss of services, and $350,000 in non-economic damages. |
| Kurt Schmid and Zachary Faires successfully persuaded the United States District Court for the Eastern District of Missouri to enter summary judgment for their client, a national hotel chain in a slip and fall case involving significant injuries and medical specials. Kurt and Zack convinced the court that the hotel had no notice of the defect that the plaintiff claimed was the cause of her fall. |
| Justin Chapell and Nick Cammarata obtained summary judgment in a business-related conversion case in which a customer sued the defendant for an employee theft of money during a commercial transaction. The trial court held as a matter of law that the employer was not liable for the employee's act in stealing the money. |
| John Cooney received a defense verdict in a jury trial for his farmer client in a case in which the client had pulled his tractor onto a road where it was struck by an oncoming tractor-trailer. John persuaded the jury that the accident was caused by the tractor-trailer's high speed at the time of the collision. |
| Justin Chapell and Nick Cammarata obtained another summary judgment, this time in a first-party property damage case where the plaintiff had argued that the implied covenant of good faith entitled her to "gap coverage" for the loan deficiency on her totaled vehicle, even though she did not purchase such coverage. The court rejected the plaintiff's theory and granted judgment for the defendant insurer based upon the policy's express terms. |
 Mock Trial PresentationJoe Swift recently participated in a mock trial presentation before the Association of Equipment Manufacturers. The "trial," a strict product liability claim, was based on an actual case and included a judge, a badly burned plaintiff, a grieving widow, and expert witnesses. The 170 AEM meeting attendees served as the "jury" and were polled throughout the trial by live interactive texting.
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Legal Diversity Program
Brown & James, together with Wells Fargo, Missouri Minority Counsel Program, The Bar Association of Metropolitan St. Louis, and others, is a sponsor of the upcoming "Keep Moving Forward with Legal Diversity" program on June 11, 2014, at Saint Louis University.
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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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