KCLawyer
Thursday, July 31, 2003
Watch those Burritos
An inmate accused of violating his work release program by having alcohol on his breath says it was all in the burritos. The judge wants to see the recipe. It is alleged that William Dolge, 45, had burrito meat soaked in beer, which resulted in his testing positive for a low amount of alcohol about two weeks ago when he returned to jail from his job. The prosecutor suspects that Dolge washed the burritos down with something more than water.
Wednesday, July 30, 2003
No Smoking Allowed
Smokers in St. Louis can no longer light up in city buildings under a bill signed into law by Mayor Francis Slay. Slay signed the bill Tuesday and it takes effect immediately. Violators will face fines up to $50.
Friday, July 25, 2003
Asbestos Litigation
A general contractor has been ordered by the Marion County Superior Court in Indianapolis to pay $15 million, in Bowers v. AC&S, Inc., for negligent removal of asbestos insulation at a manufacturing plant.
Slow Cooker Recall
The CPSC and Hamilton Beach and Proctor-Silex of Glen Allen, Virginia, are recalling slow cookers. The handles on the base of the slow cookers can break, posing a risk of burns from hot food spilling onto consumers.
Are Punitive Damages Insurable?
A Texas opinion is sure to spark even more debate about damage awards. The 2nd Court of Appeals ruled that insuring for punitive damages does not violate public policy. The Fort Worth court's 2-1 opinion in Westchester Fire Insurance Co. v. Admiral Insurance Co. involved a complicated dispute between two insurance companies over which one should cover the excess costs of a settlement in a nursing home neglect case, Cagle, et al. v. PeopleCare. In Cagle, the nursing home agreed to settle the case, paying about $2 million in actual and $2 million in punitive damages. Westchester, an excess insurer for PeopleCare, appealed to the 2nd Court, challenging the trial court's partial summary judgment ruling that limits the amount of money Westchester can recover from Admiral, the nursing home's primary insurer. The court agreed with Westchester, reversing the trial court's decision. The opinion, which may be appealed to Texas Supreme Court, will cause the Court to rule whether punitive damages should be borne strictly by the insured, and not by the insurance company, which would be the case if punitives are deemed insurable.
Tuesday, July 22, 2003
Defamation and the Tour de France
Italian rider Filippo Simeoni has demanded $113,500 in damages from four time Tour de France winner, Lance Armstrong, after accusing the American of making defamatory remarks. The Italian decided to take legal action after this year's Tour race leader Armstrong called him a "liar" in an interview in Le Monde in April. Armstrong attacked Simeoni after he gave evidence in the trial of Armstrong's personal coach Dr. Michele Ferrari, who is accused of sporting fraud and illegally acting as a pharmacist. Simeoni, who is not competing in the Tour de France, has been a professional since 1995 and currently rides for the Italian Domina Vacanze team.
Saturday, July 19, 2003
Insurance Policy - Duty to Defend
Kentucky courts would likely find that negligent hiring and retention of an employee constitutes an "occurrence" under the terms of an employer's insurance liability contract, thus an insurer was obligated to defend the employer in a negligence action arising from a murder committed by an employee. WESTFIELD INS. CO. v. TECH DRY, INC. (07/15/03 - No. 01-6390)
Friday, July 18, 2003
The Fed on Fat
If too many burgers and fries have left your waistline super-sized, your abilility to obtain damages in court may be limited if certain senators get their way. A recent bill would prevent people from suing restaurants and food manufacturers for making them fat. The proposed law would block lawsuits related to obesity or weight gain, but not suits charging other kinds of injury or fraud. A similar bill was introduced in the House. Sen. Mitch McConnell, R-Ky., was the sponsor of the bill. The Association of Trial Lawyers of America opposes the bill, while the food industry has lobbied for it.
Contribution under Missouri Law
St. Louis University ("SLU") paid a $16 million Missouri state court judgment to the family of a boy who became paralyzed after receiving Orimune, an oral polio vaccine, and SLU sought contribution from American Cyanamid Company, the parent company of the vaccine manufacturer. The district court granted summary judgment in favor of Cyanamid, and SLU appealed. The Court held that under Missouri law, because defendant has simply failed to present any competent evidence showing that the defect in a vaccine (excessive neurovirulence) proximately caused victim's injuries, defendant cannot receive judgment contribution from the plaintiff parent company of the vaccine manufacturer. AMERICAN CYANAMID CO. v. ST. LOUIS UNIV., No. 02-1351
(4th Circuit July 16, 2003)
Toxic Torts - Expert Testimony
Expert scientific testimony, offered at trial in a product liability and negligence claim against manufacturers of an agricultural fungicide, was admissible under Frye v. U.S., 293 F. 1013, in the State of Florida.
CASTILLO v. E.I. DUPONT DE NEMOURS & CO., INC., No. SC00-490 (Florida Supreme Court, July 10, 2003)
Wednesday, July 16, 2003
Premises Liability - Independent Contractor
Employees of an independent contractor, injured while performing repair work at defendant's plant, were precluded from recovering on their premises liability claim against defendant because they were covered by their own employer's workers' compensation plan.
MOUSER v. CATERPILLAR, INC., No. 02-1997 (8th Cir. July 15, 2003)
Monday, July 14, 2003
Vehicle Safery - Rollover
Vehicles with the highest rating of five stars on rollover propensity as reported by the National Highway Traffic Safety Administration:
Five-Star Rollover vehicles
- Audi TT two-door
- Buick LeSabre four-door
- Chrysler Concorde four-door
- Chrysler Sebring convertible
- Dodge Intrepid four-door
- Ford Mustang two-door
- Honda S2000 convertible
- Lexus IS300 four-door
- Lincoln Town Car four-door
- Mazda 6 four-door
- Mazda Miata convertible
- Mercedes-Benz E320 four-door
- Nissan 350Z two-door
- Pontiac Bonneville four-door
- Toyota Celica two-door
- Volvo S60 four-door
- Volvo S80 four-door
Source: National Highway Traffic Safety Administration
West Nile Virus in Kansas City
The Kansas City Health Department states that the West Nile Virus is probably present in all areas of the city. Dead birds picked up in the Clay County portion of Kansas City, the southeast part of Kansas City and in the midtown area have tested positive for the virus. The Missouri Department of Health and Senior Services reported that a bird found west of Kansas City in Platte County tested positive.
The Health Department urges residents to take the following preventative measures to reduce possible West Nile Virus exposure.
- Wear Clothing that protects you from mosquitos, including light-colored, long-sleeved shirts and pants.
- Carefully apply insect repellent containing DEET to clothing and exposed skin, following the instructions on the product.
- Have window and door screens installed or repaired to keep mosquitos out of the house.
- Stay indoors at dawn and dusk whenever possible.
- Clean up standing water outside. Dump bird baths, plant saucers, rain gauges, toys and other containers that may hold water every three to five days.
- Consider using larvicide in areas of standing water that cannot be cleaned up, changed or drained.
The Health Department urges residents to call in reports of dead crows and blue jays. The number to call is (816) 513-6140.
ERISA Remedies
A company's failure to inform an employee of an available and required internal remedy is a violation of ERISA and in such a situation, the employee is not required to exhaust the remedy before bringing suit.
BACK v. DANKA CORP., No. 02-2328 (8th Cir. July 14, 2003)
Thursday, July 03, 2003
Airline Economy Class Syndrome
Airlines that fail to warn travelers that cramped legroom could be dangerous to their health may face lawsuits, thanks to a U.S. federal court ruling in San Francisco. U.S. District Court Judge Vaughn Walker ruled that a California woman and an Arizona man could seek damages in separate lawsuits alleging three airlines did not warn them of dangers from deep vein thrombosis, a blood clot condition also called "economy class syndrome."
Unsolicited Faxes
The next time you get faxes you didn’t ask for, it might be worth holding onto them. One Missouri insurance agent did that, and he won $4,500, as the Missouri Supreme Court upheld a federal law that bans sending unsolicited faxes. David L. Harjoe received nine separate faxes, totaling 18 pages, from Herz Financial. So Harjoe sued the company using the federal Telephone Consumer Protection Act. The federal law bans unsolicited advertisements from being sent to a fax machine and allows victims to sue in state courts. Penalties can be $500 or more if the actual monetary loss is greater, and up to $1,500 if the unsolicited faxes were sent in knowing violation of the law.
Wednesday, July 02, 2003
Insurance: Vacant Property?
Plaintiff's property was vacant for purposes of his homeowner's policy, and the district court did not err in applying the policy's vacancy exclusion, as sporadic nighttime visits and daytime remodeling projects do not qualify as habitation. VENNEMANN v. BADGER MUT. INS. CO., No. 02-3677 (8th Cir. July 02, 2003)
Exculpatory Clauses
An exculpatory clause contained in a boat slip rental agreement was valid and enforceable, as the agreement clearly and unequivocally shifted the risk of loss to the boat owner and released the yacht club from all liability, including liability arising from its own negligence.
SANDER v. ALEXANDER RICHARDSON INVS., No. 02-1531 (8th Cir. July 01, 2003)
