Tuesday, January 25, 2005
U.S. 8th Circuit Court of Appeals had held in EMCASCO v. DIEDRICH (01/19/05 - No. 03-2722) that a defendant's intentional acts of criminal sexual molestation, committed while assisting at his parent's daycare, were excluded from coverage under defendant's Homeowner's Policy.
Tuesday, January 11, 2005
Cycling superstar Lance Armstrong and his girlfriend Sheryl Crow have been caught up in a bitter lawsuit brought against them by the Tour De France hero's former assistant. Mike Anderson, who also worked as Armstrong's mechanic, claims he was wrongfully dismissed after performing above and beyond the call of duty for his boss and his girlfriend. Anderson also claims he had a deal with Armstrong to open up a bike shop, which has now been scrapped, and he wants $500,000 in damages.
Sunday, November 21, 2004
Defective Mountain Bike Forks
The U.S. Consumer Product Safety Commission (CPSC) announced that Dynacraft BSC Inc., of San Rafael, Calif., has agreed to pay a $1,400,000 civil penalty to settle allegations that it violated federal reporting requirements. CPSC alleged that Dynacraftfailed, on multiple occasions, to inform the government in a timely manner about a serious defect with their mountain bicycles. Between July 1999 and March 2001, Dynacraft imported nearly 250,000 mountain bicycles that were manufactured with two types of defective forks. The forks, which are part of the steering column, can break apart and separate from the front wheel, causing the rider to lose control and suffer serious injuries. Over 50,000 of these bicycles also were made with a defect that caused the pedals to come loose and fall off, resulting in a loss of control by the rider.
Tuesday, November 09, 2004
Mo. Malpractice Claims Fall But Premiums Rise
The number of medical malpractice claims filed and paid is declining in Missouri, yet physicians' premiums are rising, according to a report from the state Insurance Department. New medical malpractice claims dropped 14 percent in 2003 to what the department said was a record low, and total payouts to medical malpractice plaintiffs fell to $93.5 million in 2003, a drop of about 21 percent from the previous year. "Payments in 2002 took an unexplained jump that vanished in 2003. Unfortunately, this data does not explain why the current medical malpractice crisis in cost and availability has occurred,'' said Insurance Department Director Scott Lakin. The report found that doctors' malpractice insurance premiums rose by 121 percent between 2000 and 2003 while payouts to plaintiffs rose 14 percent during that time.
Tuesday, November 02, 2004
Federal Court Upholds Reporting Requirement for Companies Major victory for CPSC against company that challenged $300K civil penalty
The U.S. Consumer Product Safety Commission (CPSC) is announcing a major court victory that upholds one of CPSC's most potent weapons: the requirement for companies to report dangers and defects with consumer products to the government in a timely manner. The court ruled unanimously that companies who fail to abide by the reporting requirement can be held liable to pay substantial civil penalties.
Thursday, October 28, 2004
Workers Compensation Premium Rates
Results from 2004's first nine months indicate Missouri should post its lowest rate of premium increases for workers' compensation insurance since 2000, according to Department of Insurance Director Scott Lakin. With 206 insurers filing rate changes for 2004, overall market rates have increased only 1.9 percent, Lakin said, compared to 14.7 percent last year.
Monday, October 04, 2004
Medical cases also involve suits against drug manufacturers. For instance, Vioxx manufactured by Merck & Co., was pulled from the market by the drugmaker because it might increase the risk of heart attacks and strokes. Clinical trials have indicated that long term use of the painkiller Vioxx doubles a person's risk of heart attack and stroke. It is estimated that 2 million people are taking Vioxx worldwide.
Merck's action is the direct result of a huge clinical trial comparing Vioxx to sugar pills. The trial's main goal was to see whether Vioxx could prevent recurrent colon polyps. But the trial was also designed to look at the drug's long-term safety. For the first 18 months of the trial, patients taking Vioxx every day had no more heart attacks or strokes than those taking placebo pills. But after 18 months on Vioxx, patients' heart attack and stroke risks doubled.
Monday, June 21, 2004
Insurance Coverage - Lead Poisoning
Pollution exclusion bars coverage for lead poisoning claim. Linda M Heringer, Appellant v. American Family Mutual Insurance Company, Respondent, No. 62995 (Mo. App. W.D., May 4, 2004)
Monday, March 29, 2004
New Missouri Malpractice Carrier
Physicians have formed their third medical malpractice insurer under a special Missouri law that allows such firms to open without the typical capital investment. Department of Insurance Director Scott Lakin issued an operating license to Missouri Doctors Mutual Insurance Co., a St. Joseph-based concern that includes a state House member among its organizers. State Rep. Robert Schaaf, a family physician, will serve as board chairman of the new firm, which he formed with two other St. Joseph doctors, James Conant and Deborah Stoner (Bryan); policyholders, however, will own the company by law. The company is the eighth new entry into Missouri's medical malpractice market in the past year, although not all those companies are actively marketing.
Monday, March 22, 2004
Missouri Concealed Weapons
Law permitting carrying of concealed weapons does not violate Article 1, section 23 of the Missouri Constitution, but may violate the Hancock Amendment, Article X, Sections 16 and 21 of the Missouri Constitution, limitations on unfunded mandates. In fact, four counties to the suit presented evidence sufficient to show that they will be impacted financially by this legislation, and are excused from compliance with the conceal and carry law. Brooks, et al, v. State of Missouri, et al., No. 85674 (Mo. banc, February 26, 2004)
Receivership - Conflict of Laws
In an apparent case of first impression, the Western District of the Missouri Court of Appeals held that application of Missouri law is not necessarily required in Missouri receivership proceedings. Westinghouse Electric Corporation was insured under excess liability policies issued by Transit Casualty Company, and Westinghouse had numerous toxic tort bodily injury claims asserted against it arising from alleged exposure to asbestos and steam generator claims. Viacom, Inc., as successor in interest to Westinghouse Electric Corporation, Appellant v. Transit Casualty Company in receivership, Respondent, No. 62864 (Mo.App. W.D., March 2, 2004)
Tuesday, February 10, 2004
Discount Health Cards
Kansas Insurance Commissioner Sandy Praeger is warning consumers to beware of companies soliciting discount health cards. Solicitations in Wichita appear to target the Hispanic Community. These so-called health care plans offer family benefits and coverage for as little as $40 to $100 per month and boast that there are no limits on age, usage or pre-existing conditions. The solicitation of these cards frequently comes by facsimile and e-mail.
Wednesday, January 28, 2004
A jury rejected a man's claims he should be compensated for a sleep disorder suffered since was served the wrong soup at a restaurant. Donald Johnson, 64, sought $55,356 from the Shoney's restaurant chain. The jury instead awarded him $407 for medical bills. Johnson, of Lake Worth, said he had to have emergency medical treatment in 1995 after eating clam chowder when he had ordered potato soup. He said an allergic reaction left him with psychological and sleep disorders. He rejected a $1,000 settlement in 1999.
Workers' Compensation Bad Faith?
A former nursing home worker has been awarded more than $12 million in a judgment against three insurance companies that denied her workers' compensation claim. A Rapid City, S.D. jury returned its verdict - $60,000 in compensatory damages and $12 million in punitive damages - last week after a a four-day trial in federal court. The suit was originally filed in U.S. District Court in Rapid City in July 2001. The plaintiff accused the companies of bad-faith dealing, barratry, abuse of process, and interference with business and contract relations. In 1999, Alice Torres, a cook at Meadowbrook Manor nursing home in Rapid City, filed a workers' compensation claim for carpal tunnel syndrome. She had sought about $8,000 for medical bills, lost time and physical impairment. But insurance adjusters denied the claim. The defendants in the case were Travelers Insurance Co., Insurance Company of the State of Pennsylvania, and Constitution State Services, a subsidiary of Travelers. All were involved as claims administrators or insurers for Beverly Enterprises, parent company of Meadowbrook Manor.
Monday, January 26, 2004
Cellphone Airtime Minutes Litigation
Plaintiff's challenge, arising from cellphone airtime minutes alleged to have been incorrectly billed, is neither a challenge to the reasonableness of defendant's rates nor a challenge to market entry, and therefore is not preempted by the Telecommunications Act. Thus, plaintiff's motion to remand the case to state court should have been granted.
U.S. 7th Circuit Court of Appeals, FEDOR v. CINGULAR WIRELESS CORP. (01/22/04 - No. 02-3332).
Tuesday, December 30, 2003
Missour Supreme Court Defines Standard For Expert Testimony
This Court reaffirmed its holding in Lasky v. Union Electric Co., 936 S.W.2d 797 (Mo. banc 1997), that the standard for the admission of expert testimony in civil cases is that set forth in section 490.065. As discussed in the decision, this is also the standard to be applied in administrative cases. To the extent that civil cases decided since Lasky apply Frye or some other standard, they are incorrect and should no longer be followed. Section 490.065.3 requires that the facts and data on which an expert relies must be those reasonably relied on by experts in the relevant field.
State Bd. of Registration for Healing Arts v. McDonagh, 2003 WL 22999293, Mo., Dec. 23, 2003.
Monday, December 22, 2003
Claim Adjuster Liability
In a recent case by the Supreme Court of Appeals of West Virginia, the Court found that insurance adjusters might be individually liable for their alleged mis-handling of an insurance claim. Taylor v. Nationwide Mutual Insurance Company and Scarlett Tarley, 2003 WL 22762025 (W.Va. Nov.21, 2003).
A new stream of toxic tort cases is sure to arise from allegations that toxic fumes generated during the welding process can pose a serious threat to the welder and others in the immediate area. In recent litigation, it has been alleged that welding fumes when inhaled, can cause serious short-term and long-term health effects and often cause lung, heart, kidney, and central nervous system problems. It has also been alleged that rods made of cadmium produce fumes with potential cancer causing agents. Manufacturers and insurers have been relatively successful in defending such claims alleging that there is no causal link between exposure and injury. However, it is now being successfully alleged that exposure to manganese (which is found in stainless steels, carbon steels and in welding rods) during the welding process may be linked to Parkinsons disease.
Thursday, December 18, 2003
Microsoft is joining the state of New York to file suits against a man it alleges to be a major spammer, Scott Richter of OptInRealBig.com. Microsoft is peeved because Richter supposedly spoofed Hotmail and MSN mail addresses for his spam. NY is asking for $20 million, MS for $18.8 million.
Wednesday, December 17, 2003
Cost of Missouri Comp Insurance Should Drop
State regulators and the insurance industry's principal trade group have called for a reduction in Missouri workers' compensation insurance rates, providing financial relief for the state's business community, Gov. Bob Holden announced. The announcement follows an 18 percent reduction in workplace injuries over a two-year period. The National Council on Compensation Insurers (NCCI) — the private trade group — is advising companies that costs underlying workers' compensation rates should drop an average of 1.4 percent in 2004.
Missouri Premises Liability
Landlord is not liable to a tenant’s business invitees for injuries caused by defects on the premises unless the landlord exercises control over the premises. McKinney v. H.M.K.G. & C., Inc., No. 62222, (Mo. App. W.D., November 4, 2003).
Monday, December 15, 2003
Managed Care and Work Comp
A Missouri court has ruled against the Missouri Department of Insurance, enjoining the department from enforcing rules requiring workers' compensation insurers to pay for managed care organizations' services, even if the insurers had no contract with the MCO. In Alliance of American Insurers v. Missouri Department of Insurance, No. 02-CV-325517 (Cole County, Missouri Circuit Court), the Alliance argued that an employer's right to select a health care provider under Mo. Rev. Stat. § 287.140(10) does not equate to an employer's right to choose its MCO. Further, even if an employer has the right to choose its MCO, an insurer should not be required to reimburse the MCO for managed care fees for claims involving injured employees unless there is a contract between the MCO and the workers' compensation carrier. The Alliance also contended that the rules were an attempt to benefit some domestic MCOs.
Thursday, December 11, 2003
The House has passed the CAN-SPAM Act. President Bush is expected to sign it into law before the end of the year.
Missouri Med Mal Insurance Mayhem?
Severity of patient injuries reached an all-time high for medical malpractice payments in 2002, but victim awards have not kept pace with inflation and increasing disabilities, the Missouri Department of Insurance has reported.
In its 2002 annual medical malpractice report, MDI noted: For the first time, the typical medical malpractice claim payment involved at least permanently disabling injuries, based on insurers' own evaluations of paid claims. Successful claims against physicians involved even more damaging injuries, again reaching unprecedented severity levels.
Paid claims involved 205 patient deaths, a 49 percent increase from 2001 and 68 percent from 2000. Such deaths accounted for more than one-third of claims. Permanent injury or death was involved in two-thirds of claim payments.
Average payments in deaths rose from $194,067 to $254,944. Patients lived, but suffered permanent injuries in another 170 cases, which had average awards rise from $242,100 to $291,079. Nevertheless, the report showed average claim payments continued to increase at a slower rate than the combined effects of medical inflation (84 percent), wage inflation (55 percent) and injury severity (a full-step increase in physical disability), which are the principal factors in awards.
Before 2002, Missouri's data indicated no significant problems with the malpractice market that were not common to most lines of property and casualty insurance. But between August 2001 and May 2002, Missouri's malpractice insurance market lost 57 percent of its capacity to write new business because of two major insolvencies, the withdrawal of two other major carriers nationally and a moratorium on new business by the state's largest writer.
Monday, December 08, 2003
Microsoft is retiring Windows 98 on December 15, claiming it necessary for compliance with a 2001 court order in the dispute with Sun over Java. Other Java enabled products that will be pulled from the shelves include SQL Server 7, Office XP Developer, and a number of Office 2000-related tools and patches.
Wednesday, December 03, 2003
Nevada Insurance Fraud
Attorney General Brian Sandoval announced that District Judge Donald M. Mosley sentenced Purificacion Lobitos, age 56, to a maximum term of 32 months with a minimum term of 12 months in the Nevada Department of Corrections, for one count of felony conspiracy to commit insurance fraud. The term of incarceration was suspended and Lobitos placed on probation for three years. Lobitos was also ordered to reimburse the Insurance Fraud Unit (IFU) $1000.00 in investigative costs and $546.73 in extradition costs to the State of Nevada Extradition Unit. In Jan. 1998 and continuing through approximately July 27, 1998, in Clark County, Nevada, Purificacion Lobitos conspired with a co-defendant to submit false claims for life insurance benefits under Lobitos' term life insurance policies with Liberty Mutual and Prudential Insurance Companies, by maintaining that Lobitos had been killed in a vehicle -pedestrian accident in the Philippines. The policies were each worth $100,000.00.
Sunday, November 30, 2003
Chargers Sue City of San Diego
In a move sure to rekindle speculation that they want to relocate to Los Angeles, the Chargers filed suit against the City of San Diego on Nov. 25, arguing they have done what's necessary to be released from their Qualcomm Stadium lease, the Los Angeles Times has reported. The nine-page suit, filed in Los Angeles Superior Court, asks the court to decide whether the team has met the criteria necessary to trigger the renegotiation clause in its lease.
Tuesday, November 18, 2003
Same Sex Marriage
The Massachusetts high court ruled today that a ban on same-sex marriage is unconstitutional.
Friday, November 14, 2003
Former heavyweight boxer Chuck Wepner is suing actor Sylvester Stallone for a share of the profits from the "Rocky" movies, claiming the series was based on Wepner's career. Wepner, who went nearly 15 punishing
rounds in a 1975 loss to Muhammad Ali, claims in a lawsuit filed in state Superior Court in Jersey City that Stallone repeatedly credits that fight as the inspiration for the 1976
Oscar-winning film. Four sequels followed.
Friday, October 24, 2003
Track Meet Injury
A track and field official who was hit in the face with a javelin during a college meet was awarded $811,000 in damages from the event's sponsor, a student-athlete and a university. Ruben Thompson was struck next to his left eye by the spear-like javelin during a 1999 track meet in Palm Beach Gardens. He has had three surgeries to help correct damage to his tear duct.
Monday, September 29, 2003
Epilepsy & ADA - 8th Circuit
Plaintiff's epilepsy was not a disability for purposes of the Americans with Disabilities Act, thus grant of summary judgment dismissing disability discrimination claims against a former employer is affirmed.
BRUNKE v. THE GOODYEAR TIRE & RUBBER CO., No. 03-1373 (8th Cir. September 29, 2003)
Thursday, September 18, 2003
Missouri Workers´ Compensation - Occupational Disease Statute of Limitations
Claimant worked as a dental assistant for this employer for 28 years. The work required her to position herself in an awkward manner that eventually resulted in the claimant needing cervical surgery in 2000. Symptoms of pain and medical treatment began as early as 1984. In 1985, she told her employer she felt her cervical condition was related to her work. She was told in 1996 by her physician that her work leaning over patients was aggravating her condition. Claimant filed her claim for compensation in October 2000. The employer argued that the three year statute of limitations barred the claimant’s recovery. The ALJ and commission disagreed and this appeal followed.
The Missouri court of appeals ruled that by statute, the statute of limitations for an occupational disease didn’t begin to run until it became reasonably discoverable and apparent that a compensable injury had been sustained. It found that the claimant in this case didn’t sustain a “compensable” injury until she was medically advised that she would require surgery.
Joyce Rupard v John K. Kiesendahl, DDS, No. 62101 (Mo.App. W.D., August 5, 2003)
Sunday, September 14, 2003
Hot Coffee - Big Verdict
A man who said he suffered severe burns when a pot of hot coffee was spilled into his lap at a Disney restaurant two years ago was awarded $668,000 by a jury. Andrew Allocco, 33, had a 28-ounce pot of coffee spilled on him as he dined with his wife and daughter at the Disney Polynesian Resort in 2001. Allocco suffered extensive blistering, as well as pigmentation changes to his genitals and groin, according to court testimony.
Friday, September 05, 2003
Is a Speedo Indecent?
With the Ironman Triathlon only about one month away, triathletes need to be aware of this latest arrest. In Arkansas, a man's skimpy swimsuit was too much - or too little - for Taco Bell workers. Employees at Taco Bell called police when the man walked into the restaurant wearing only a tiny black Speedo swimsuit and a cut-off T-shirt during the Labor Day weekend. The Caddo Valley [AR] Police Chief said his attire was a little too revealing. The man faces a $750 fine and possible jail time if convicted of indecent exposure.
Tuesday, September 02, 2003
Mercury and Autism
Autism rates in Denmark do not appear to be linked to thimerosal, a mercury-containing preservative once added to some childhood vaccines, according to an analysis of three decades of data.Though the amount of mercury in vaccines was small, vaccine makers in the United States began phasing out thimerosal a few years ago as a precaution recommended by public health officials. Mercury can cause neurological damage in high doses. Many parents of autistic children think increases in the number of recommended childhood vaccines are to blame for the apparent autism surge. September 2004 issue of Pediatrics.