KCLawyer

2005-01-25T09:29:00.000-06:00

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.

2005-01-11T22:55:00.000-06:00

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.

2004-11-21T10:35:00.000-06:00

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.

2004-11-09T13:33:00.000-06:00

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.

2004-11-02T14:20:00.000-06:00

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.

2004-10-28T21:48:00.000-05:00

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.

2004-10-04T11:37:00.000-05:00

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.

2004-06-21T12:58:00.000-05:00

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)

2004-03-29T14:50:00.000-06:00

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.

2004-03-22T10:44:00.000-06:00

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)

2004-03-22T10:42:00.000-06:00

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)

2004-02-10T14:20:00.000-06:00

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.

2004-01-28T16:20:00.000-06:00

Soup Claim

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.

2004-01-28T11:21:00.000-06:00

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.

2004-01-26T15:11:00.000-06:00

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).

2003-12-30T10:15:00.000-06:00

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.

2003-12-22T15:53:00.000-06:00

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).

2003-12-22T14:52:00.000-06:00

Welding Rods

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.

2003-12-18T18:00:00.000-06:00

Spam Litigation

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.

2003-12-17T14:12:00.000-06:00

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.

2003-12-17T13:32:00.000-06:00

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).

2003-12-15T12:58:00.000-06:00

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.

2003-12-11T21:06:00.000-06:00

Spam Law

The House has passed the CAN-SPAM Act. President Bush is expected to sign it into law before the end of the year.

2003-12-11T13:25:00.000-06:00

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.

2003-12-08T16:54:00.000-06:00

Windows 98

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.

2003-12-03T11:55:00.000-06:00

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.

2003-11-30T16:38:00.000-06:00

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.

2003-11-18T09:35:00.000-06:00

Same Sex Marriage

The Massachusetts high court ruled today that a ban on same-sex marriage is unconstitutional.

2003-11-14T13:13:00.000-06:00

Rocky Suite

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.

2003-10-24T13:45:00.000-05:00

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.

2003-09-29T15:16:00.000-05:00

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)

2003-09-18T12:24:00.000-05:00

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)

2003-09-14T19:22:00.000-05:00

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.

2003-09-05T14:07:00.000-05:00

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.

2003-09-02T14:47:00.000-05:00

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.

2003-08-28T22:30:00.000-05:00

Court Rules for 3M in Breast Implant Case

A group of insurance companies must reimburse 3M Co. for hundreds of millions of dollars related to silicone breast implant lawsuits, the states' highest court ruled. The Minnesota Supreme Court ruling
brings some closure to an eight-year squabble between 3M and 29 insurers.

2003-08-20T08:53:00.000-05:00

Insurance Agents Failure to Procure Coverage

An insured has no claim against his agent for agent’s alleged failure to procure underinsured motorist coverage. Similar to the holding by the Eastern District in Farmers Ins. Co., Inc. v. McCarthy, 871 S.W. 2d 82 (Mo.App. E.D. 1994), the Southern District held that an insurance agent does not have a duty to inform customers of the availability and advisability of optional coverage, including underinsured motorist coverage. John L. Jones, Appellant v. Debra Kennedy, Respondent, No. 25161, (Mo. App. S.D., June 26, 2003)

2003-08-18T10:16:00.000-05:00

Insurance Pollution Exclusion

A standard pollution exclusion clause in a comprehensive general liability insurance policy did not plainly and clearly exclude a landlord's ordinary acts of negligence involving toxic chemicals such as pesticides. MACKINNON v. TRUCK INS. EXCH. (08/14/03 - Calif. No. S104543)

2003-08-15T13:11:00.000-05:00

Mold Settlement Questioned

It is being reported that a state lawmaker who sponsored a lawsuit reform bill passed by the Legislature this year had a disputed mold claim on his Houston home settled and paid by Farmers Insurance Group. However, the settlement is being investigated by the Travis County District Attorney. The original claim paid by Farmers was more than $300,000. The disputed secondary claim of $13,000 was over damage to the driveway and landscaping that occurred while the house was being repaired. On April 30, more than a month after the lawmaker helped push the lawsuit legislation sought by Farmers through the House, a question arose as to whether non-covered loss had been paid in regard to the claim.

2003-08-14T15:26:00.000-05:00

Dexatrim Litigation - Insurance Coverage

Chattem Inc. states that its insurer has sued to rescind liability insurance after consumer lawsuits claimed the company's Dexatrim diet aid contained a chemical that raised the risk of strokes. Chattem said Kemper Indemnity Insurance Co. accused the company of failing to disclose results of a study showing the dangers of the chemical phenylpropanolamine, known as PPA, which was used in Dexatrim products until 2000. The FDA eventually asked all makers of consumer products to remove the chemical. Chattem and others were exposed to potential liabilities because their products contained PPA.

2003-08-13T16:35:00.000-05:00

Kansas City Desegregation Plan Lifted

A federal judge lifted a 26-year-old court-ordered desegregation plan for Kansas City schools, saying the district had made enough progress in narrowing the achievement gap between black and white students. In issuing his decision, U.S. District Judge Dean Whipple said the district "is unlikely to discriminate against African-American children in the future" and that his decision would "allow the superintendent to make routine decisions'' without seeking court approval.

2003-08-13T14:04:00.000-05:00

Expert Testimony

In a negligence and strict liability action under Arkansas law, plaintiff's proposed expert's testimony regarding stand-uplift truck design was properly struck, as witness admitted he was not an expert in relevant design or engineering of stand-up lift trucks and was unfamiliar with the device at issue. ANDERSON v. RAYMOND CORP., No. 02-3393 (8th Cir. August 13, 2003)

2003-08-13T10:07:00.000-05:00

Watch Out for the Trojan Horse Virus

In the latest bout of computer mischief, hackers have developed the ability to make their victims look like criminals. The new "Trojan horse" viruses which are downloaded via seemingly harmless e-mail, shared files or links, allow a hacker to secretly take over someone's computer and then use it to send out more viruses, pornography or other illegal materials. Recent reports indicate that the virus,which is thought to have originated in Russia, has infected over 2,000 American computers and used them to shuttle pornography advertising around the world.

2003-08-11T21:31:00.000-05:00

Microsoft hit with Verdict

A federal jury in Chicago awarded the University of California and a browser technology company $520.6 million after finding that their patents were infringed by Microsoft Corp.

2003-08-11T08:36:00.000-05:00

Did the Royals Get Justice?

The man who led his son in an unprovoked attack on a Kansas City Royals baseball coach during a September game with the Chicago White Sox was ordered to undergo drug and alcohol counseling and received 30 months' probation. William Ligue, 35, who spent two months in jail before pleading guilty to two counts of battery, must also honor a nightly curfew for 90 days and undergo counseling, although Cook County Court Judge Leo Holt did not order him banned from baseball parks as prosecutors had requested.

2003-08-11T08:34:00.000-05:00

Mike Tyson v. Don King

A diamond necklace worth as much as some houses. More than $300,000 in limousine rides. Sixty thousand dollars worth of rugs. Mike Tyson's Manhattan bankruptcy filing lays out the surprising ease with which the former heavyweight champion burned through hundreds of millions of dollars during his career. Tyson, 37, now has pegged much of his hope for financial resurrection on a lawsuit against Don King.

2003-08-07T13:33:00.000-05:00

Proving Disability under the ADA

Plaintiff failed to make out a prima facie ADA case where there was no causal connection between the major life activity that is limited, (procreation) and the accommodation sought (changes in his duties as a cement truck driver). WOOD v. CROWN REDI-MIX, INC., No. 02-3506 (8th Cir. August 07, 2003)

2003-08-06T11:59:00.000-05:00

Mold Claims on the Rise

Lately mold has become the subject of expensive insurance claims and multimillion dollar lawsuits. Builders, insurance industry groups and other businesses have blamed overzealous lawyers and increased media attention for a threefold increase in mold-related lawsuits the past three years. There are 10,000 such cases pending today nationwide, the Insurance Information Institute estimates. The tiny fungi can trigger allergic reactions similar to hay fever, according to the Environmental Protection Agency. Many of the lawsuits contend that mold damage inside a home or building that wasn't cleaned up properly caused serious health problems like bleeding in the lungs or brain damage. The CDC and the National Academies of Science are both currently studying mold's effects on human health.

2003-08-06T11:21:00.000-05:00

Kobe Media Blitz

Are you ready to watch the media abuse the Kobe Bryant story? The legal action starts today and probably will not end for months. Motels in the town of 3,500 that straddles Interstate 70 about 30 miles from Vail have "No vacancy'' signs, and restaurants are doing booming business. A trial appears inevitable. Bryant is charged with felony sexual assault against a 19-year-old woman who worked at an exclusive resort hotel in nearby Edwards when Bryant stayed there June 30. He has said the sex was consensual. If convicted, he faces four years to life in prison or 20 years to life on probation, and a fine of up to $750,000. Do you think anyone will even notice that the Scott Peterson trial is still pending?

2003-08-06T08:40:00.000-05:00

Workers' Compensation Subrogation

Claimant sustained injury in an automobile accident that arose out of in the course of his employment. Liberty Mutual, Employer’s workers’ compensation carrier, paid over $300,000 in benefits. Employee hired attorneys to pursue a third party claim. The attorneys failed to file an action timely and thereafter a legal malpractice claim was pursued and was settled. ATS and Liberty sought a portion of the settlement proceeds asserting a subrogation interest in that action and filed a declaratory judgment action. In this case of first impression, the court declined to recognize that Liberty or ATS have a valid subrogation interest in the malpractice case. ATS Inc. and Liberty Mutual Insurance Company v. Kenneth Listenberger, No. 81955 (Mo. App. E.D., June 3, 2003).

2003-08-06T08:38:00.000-05:00

Sovereign Immunity

Under Missouri law, sovereign immunity does not protect a city from dangerous condition of intersection even if dangerous condition resulted from zoning. United Missouri Bank v. City of Grandview, No. 61111, (Mo. App. WD, May 30, 2003).

2003-08-06T08:24:00.000-05:00

Meat Recall

A Minnesota meatpacker is recalling 194,700 pounds of frozen ground beef products because they may be contaminated with harmful E. coli bacteria that sickened two people in Colorado, the Agriculture Department says. Howard Beef Processors of Pipestone, Minn., sold the meat bearing the establishment code, EST. 8934, under the name Ellison Farms to supermarkets and through door-to-door sales nationwide, officials at the department's Food Safety and Inspection Service said. The meat was processed sometime between May 30 and June 11.

2003-08-06T08:22:00.000-05:00

Toxic WTC Pollution?

Air pollution from the World Trade Center attacks may have resulted in smaller babies among pregnant mothers who were in or near the collapsing towers, preliminary research suggests. Exposed pregnant women in the study faced double the risk of delivering babies who were up to about a half-pound smaller than babies born to non-exposed women. The size differences among babies born to women exposed to dirt and soot from the attacks suggest a condition called intrauterine growth restriction, or IUGR, which has been linked with exposure to air pollution.

2003-07-31T00:04:00.000-05:00

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.

2003-07-30T14:20:00.000-05:00

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.

2003-07-25T15:19:00.000-05:00

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.

2003-07-25T15:17:00.000-05:00

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.

2003-07-25T15:14:00.000-05:00

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.

2003-07-22T12:06:00.000-05:00

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.

2003-07-19T09:10:00.000-05:00

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)

2003-07-18T13:40:00.000-05:00

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.

2003-07-18T10:58:00.000-05:00

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)

2003-07-18T10:54:00.000-05:00

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)

2003-07-16T15:31:00.000-05:00

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)

2003-07-14T14:15:00.000-05:00

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

2003-07-14T12:55:00.000-05:00

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.

2003-07-14T12:52:00.000-05:00

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)

2003-07-03T17:02:00.000-05:00

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."

2003-07-03T07:19:00.000-05:00

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.

2003-07-02T19:22:00.000-05:00

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)

2003-07-02T19:20:00.000-05:00

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)

2003-06-30T13:27:00.000-05:00

Blogs and Free Speach

The Ninth Circuit Court of Appeals has ruled that web loggers, website operators and e-mail list editors can't be held responsible for libel for information they republish, extending crucial First Amendment protections to do-it-yourself online publishers. One implication is that bloggers cannot be sued as easily. The court based its decision on a section of the 1996 Communications Decency Act, or the CDA. That section states, "... no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Three cases since then, Zeran v. AOL, Gentry v. eBay and Schneider v. Amazon, have granted immunity to commercial online service providers. Batzel v. Smith

2003-06-30T10:52:00.000-05:00

Work Comp Insurance Soars

Across the country, the cost of workers' compensation insurance is soaring at the highest rate in nearly a decade, adding yet another heavy burden on businesses and the struggling national economy. The governors of Florida, West Virginia and Washington have called special sessions of their Legislatures this year to find ways to contain costs, and elsewhere, thousands of bills on workers' compensation have been introduced. In the mid-90's, expenses for workers' compensation insurers dipped and profits skyrocketed just as the stock and bond markets were at their most exuberant. Now, after dropping their prices below the cost of covering claims in a fierce battle for market share, and confronted with dismal investment returns, the insurers are hitting their customers with astounding price increases. The pace of the premium increases picked up after the insurance industry lost at least $40 billion in the terrorist attacks on Sept. 11.

Missouri companies in higher risk categories are facing workers' compensation premium increases higher than the Missouri average of nearly 15 percent for 2003. The premium increases are coming as the amount insurance companies are paying to cover workers' compensation claims has dropped for the second year in a row in the state, according to the Missouri Department of Insurance.

In frequency of claims, Missouri is higher than the national average but lower than Arkansas, Iowa, Nebraska and Oklahoma. Missouri experienced 6,496 claims per 100,000 workers compared to a regional high of 7,568 in Oklahoma and a low of 5,633 in Illinois. The national average is 6,474.

For complete story, search
Joseph B. Treaster, The New York Times, 06/23/2003
http://archives.nytimes.com/archives

2003-06-30T10:40:00.000-05:00

New Boating Law in Missouri

Starting in 2005, young people will have to pass a boating safety course before they can cruise Missouri's public lakes. The safety requirements will not apply to rivers. Supporters said the bill was aimed primarily at the Lake of the Ozarks. The safety course requirements will apply, beginning Jan. 1, 2005, to anyone born after Jan. 1, 1984. The bill prohibits any law officers from stopping boaters for the sole purpose of checking whether they have safety identification cards. The minimum age to legally drive a boat will remain 14.

2003-06-27T15:57:00.000-05:00

Bob Knight v. Indiana University

A hearing was scheduled for Sept. 8 to determine whether Bob Knight's wrongful dismissal lawsuit against Indiana University should proceed to trial. A judge set the hearing following the university's request to dismiss the lawsuit by its former basketball coach. Knight, who was at Indiana for 29 years and is now the coach at Texas Tech, sued for breach of contract. The lawsuit is one of four the university faces related to Knight's employment and subsequent dismissal.

2003-06-26T10:10:00.000-05:00

Sodomy Law Struck Down

The Supreme Court struck down a ban on gay sex, ruling that the law was an unconstitutional violation of privacy. The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex. The case is a major reexamination of the rights and acceptance of gay people in the United States. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not all of Kennedy's rationale. LAWRENCE v. TEXAS

2003-06-24T15:22:00.000-05:00

Asics v. Target

Japanese athletic shoemaker Asics Corp. is suing Target Corp. for trademark infringement, claiming the discounter is selling a style of ProSpirit-brand shoes with a stripe logo that is similar to Asics' design. The lawsuit, which was filed in U.S. District Court in Minneapolis, accuses Target of trying to pass off its lower-priced shoes as Asics shoes.

2003-06-24T12:53:00.000-05:00

In-House Counsel Inject Insurance into Case

Here is a good reason that you may not want an insurance company's in-house counsel representing an insured in a liablility lawsuit in Missouri. In Richter v. Kirkwood, the plaintiff in an auto accident case wanted to tell the jury in voir dire that the defendant was being represented by an in-house attorney employed by the defendant's insurance company. The defendant argued that this impermissibly injected the existence of insurance coverage into the case. But the Missouri Court of Appeals' Southern District disagreed.

"It was within the trial court's discretion to allow plaintiffs' attorney to show that defendant's attorney was an employee of Allstate to ascertain whether that circumstance would result in bias or prejudice on the part of prospective jurors," wrote Judge John E. Parrish for the court.

2003-06-23T13:27:00.000-05:00

Porn in the Library

A divided Supreme Court ruled that Congress can force the nation's public libraries to equip computers with anti-pornography filters. The blocking technology, intended to keep smut from children, does not violate the First Amendment even though it may shut off some legitimate, informational Web sites. The court said because libraries can disable the filters for any patrons who ask, the system is not too burdensome. The 5-4 ruling reinstates a law that told libraries to install filters or surrender federal money. US v. Am. Library Ass'n, Inc.

2003-06-19T14:05:00.000-05:00

Unexpected Waste Falling from the Sky

A Santa Cruz, California man won $3236.00 in a suit against American Airlines alleging that one of the company's planes released two chunks of toilet waste, known euphemistically as "blue ice," onto the skylight of his boat. After the chunks came crashing down and damaged his boat, Ray Erickson tracked down the plane, American Airlines Flight 1950, and sued in small claims court.

2003-06-19T13:51:00.000-05:00

Harry Potter Suit

An $100 Million lawsuit has been filed by the "Harry Potter" author J.K. Rowling and the US Publisher against the New York Daily News for the alleged unauthorized disclosure of excerpts from the newest book prior to its release. The lawsuit alleges a violatiojn of Rowling's intellectual property rights and a copyright infringment.
J.K. ROWLING AND SCHOLASTIC, INC. v. NEW YORK DAILY NEWS CO.

2003-06-18T12:52:00.000-05:00

Jackson County Jury Finds for Tobacco Companies

A Jackson County jury has decided that Linda Welch from Springfield, Missouri could not hold cigarette companies to blame for her lung cancer. Welch had been seeking some $9 million in compensatory damages plus punitive damages from Philip Morris USA, R.J. Reynolds Tobacco Co. and Brown & Williamson Tobacco Corp. Welch alleged in her lawsuit that she had developed cancer as a result of 30 years of smoking and that the companies did not provide enough warning about the dangers of their products. The jury deliberated for six hours in the Independence courthouse before finding the tobacco companies not liable for the alleged damages.

2003-06-18T12:45:00.000-05:00

Alienation of Affections Claims Abolished in Missouri

The Missouri Supreme Court has abolished the tort of alienation of affections, ruling that it is "grounded in antiquated concepts of property interests in a spouse." In the case on point, Katherine Helsel, of St. Joseph, sued Dr. Sivi Noellsch in 2001 claiming alienation of affection, alleging that Dr. Noellsch intentionally interfered with Ms. Helsel’s marriage to David Helsel. A Buchanan County jury agreed with Ms. Helsel and awarded her a $75,000 judgment in her favor in March 2002. The found that by abolishing the tort of alienation of affection it was bringing Missouri in line with the overwhelming majority of jurisdictions that do not recognize the tort. It is premised on the antiquated concept that a husband has property rights in his wife, who was viewed as a valuable servant to her husband. It is not useful for preserving marriages and protecting families because alienation of affection suits usually are brought after a marriage is over, often are based on a motive of revenge rather than reconciliation, and publicly reveal intimate details of a marriage's breakdown. The ruling leaves only eight states that still allow alienation of affection claims to be filed. Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota and Utah still allow the claim.

Katherine Louise Helsel, Respondent v. Sivi Noellsch, D.C., Appellant.
Case Number: SC85053

2003-06-17T10:17:00.000-05:00

Multiple Lawsuits

In Missouri, Section 509.290(8), RSMo 2000, states that abatement of an action is proper when "there is another action pending between the same parties for the same cause in this state." Where two suits have been filed between the same parties in different states, the doctrine of abatement does not apply. Accordingly, the court of appeals found that the trial court erred in dismissing Shelter Insurance Company's petition for declaratory judgment on the grounds that a similar action was pending between the parties in Illinois.

Shelter Mutual Insurance Company, Appellant, v. William Marquis d/b/a Brakes N´ More, Respondent

2003-06-13T22:24:00.000-05:00

Insurance Settlement: Does an insurer need the insured's consent?

Where an insurance policy grants to the insurer the "right and duty" to defend any claim or suit for covered injury or damage, the insurer need not obtain the insured's consent prior to settling with a third party even though it leads to the loss of the insured's potential claim for malicious prosecution, injures their reputation, or impacts their future insurability. California Appellate Districts
HURVITZ v. ST. PAUL FIRE AND MARINE INS. CO. (06/12/03 - No. B158885)

2003-06-13T15:14:00.000-05:00

Anacure Medical Device

Guidant Corporation, one of the country's largest makers of medical devicesm has plead guilty to 10 felonies, admitting that it lied to the government and hid thousands of serious health problems, including 12 deaths, caused by one of its products. This has resulted in $92.4 million in criminal and civil penalties, the largest ever imposed against a maker of medical devices for failing to report problems. The problems with the device, which was used to treat a weakened blood vessel in the abdomen without surgery, centered on the system used to insert it. The equipment could become lodged, potentially requiring emergency surgery to remove it. Guidant hid results that its product failed to work properly about one of every three times it was used. If you received the Ancure Endograft System, call the Law Firm of Herron & Lewis (816-361-1300) to discuss your legal rights.

2003-06-12T14:05:00.000-05:00

Michael Jackson Settlement

Pop star Michael Jackson settled a $12 million breach of contract lawsuit by his former top adviser, avoiding a trial that threatened to spill details of his financial empire and personal life into open court. The legal fight was with Myung-Ho Lee and his firm Union Finance and Investment Corp.

2003-06-11T15:21:00.000-05:00

Coral Calcium Supreme

Claims that a calcium supplement made from dead marine coral can cure everything from heart disease to cancer are too good to be true, federal fraud fighters said Tuesday, announcing legal actions against marketers of the product. The Federal Trade Commission is asking a federal court in Chicago to shut down an operation that sells Coral Calcium Supreme, a product advertised with one of the most widely run infomercials on cable television this year. If you have purchased this product, call us at 816-361-1300.

2003-06-10T14:59:00.000-05:00

Paxil Alert

Children and adolescents should not be given the anti-depressant Paxil, British health regulators said today after new research indicated that the risk of suicidal thoughts and self harm is higher in youngsters taking the drug.

2003-06-10T12:22:00.000-05:00

Mold

It has rained quite a bit this Spring. Can water cause a problem in your home or business? Yes it can, especially if it causes mold. Stachybotrys chartarum (a.k.a. atra) to be specific. Mold related claims have recently resulted in an alarming number of lawsuits. Some blame mass hysteria for this sudden rush to litigate. However, mold remediation can be expensive and few homeowners are willing to shoulder the burden alone. Insurance companies have attempted to place limits on mold claims thus there may be no coverage to repair the problem. With an estimated 20% of all homes experiencing at least some mold-related problems, the larger perspective amounts to a multibillion dollar problem. And these values don't even include costs associated with personal injury, medical expenses, or commercial and public properties where cases of "Sick Building Syndrome" may run into the millions.

The ability to recover damages for a mold claim is largely dependent on the mechanisms responsible for mold contamination. Herein lies the need for detailed investigations involving contamination specialists, building engineers, and physicians. A number of juries have rendered substantial verdicts in cases in which it is alleged that mold has caused personal injury. In many cases involving toxic mold, family members often complain of some of the following health problems: Chronic colds, Flu-like symptoms, Chronic headaches, Bloody noses, Coughing, Arthritic-like aches, Sinus congestion, Equilibrium or balance loss, Upper respiratory distress, Irritation of the eyes, nose or throat, Skin rashes and Nausea. Most physicians are unfamiliar with mold claims and thus may fail to properly address the issue. In addition, most attorneys lack the experience in the toxic tort field to even be aware of the extensive issues involved in such cases. Furthermore, such cases often involve complex insurance coverage issues. A bad decision by any party in choosing legal counsel, will prove to be a costly mistake.

2003-06-09T15:01:00.000-05:00

GM Recalls 2002-03 Buick Rendezvous:

General Motors Corp. announced today that it is recalling about 107,000 model year 2002-03 Buick Rendezvous vehicles to repair the rear liftgate.
All 2002 and some 2003 models are involved, the world's No. 1 automaker said. Of the total, about 95,000 of the crossover sport utility vehicles are in the U.S. and 12,000 are in Canada.

In severe crashes, the liftgate structure may fracture and the liftgate may separate from the latch assembly and open. In one case, GM said, a person in a vehicle was injured after the liftgate tore away from the latch.

2003-06-09T14:59:00.000-05:00

Monkeypox:

A virus similar to smallpox apparently jumped from an imported African rat to pet prairie dogs, infecting what are feared to be dozens of people in three states and marking the disease's first appearance in the Western Hemisphere.

Eighteen people in Wisconsin are suspected of suffering from the monkeypox virus and four are confirmed, said City of Milwaukee health commissioner Dr. Seth Foldy. At least 11 more cases in Indiana and three in Illinois are suspected.

The Centers for Disease Control and Prevention said Saturday the prairie dogs likely were infected with the virus by a giant Gambian rat, which is indigenous to African countries, at a suburban Chicago pet distributor.

2003-06-09T14:56:00.000-05:00

Toxic Torts - Agent Organge:

The Supreme Court deadlocked today on whether it's too late for sick Vietnam veterans to sue chemical companies over Agent Orange exposure, but allowed vets to continue lawsuits claiming they were wrongly shut out of a decades-old national settlement.

Business groups had feared a ruling that would threaten to reopen many class-action settlements at a cost of millions or possibly billions of dollars.

Instead, justices were divided 4-4. A ninth justice, Justice John Paul Stevens, did not participate in the case. He did not give a reason for his recusal, but his only son was a Vietnam veteran who apparently suffered from cancer before his death in 1996 at age 47.

The case raised an interesting question of how courts should handle claims from war veterans who got cancer and other diseases after the $180 million Agent Orange settlement was spent.
Dow Chemical Co. v. Stephenson

2003-06-09T14:00:00.000-05:00

Insurance: Is the claims file the private property of the insurance carrier?

Charles and Linda Grewell sought access to their insurance claims file, which was maintained by Respondent State Farm Mutual Automobile Insurance Company and State Farm’s Claims Specialist Neressa Wilkins. The claims file originated as a result of an automobile accident involving Mrs. Grewell and James Kephart, also a State Farm insured. A dispute arose concerning the percentage of fault that State Farm felt should be assessed against Mrs. Grewell, and Mrs. Grewell sought access to State Farm’s claim file that was created as a result of the claim Mr. Kephart asserted against Mr. Grewell. State Farm denied Mrs. Grewell access to the claims file, asserting that the claims file represented work product. Mrs. Grewell had also asserted a claim against Mr. Kephart, and she was dissatisfied with the percentage of fault that State Farm was assessing against her from the auto accident. Mr. and Mrs. Grewell brought a declaratory judgment action seeking the contents of the file, and the trial judge dismissed appellant’s cause of action with prejudice. The Supreme Court held that Mrs. Grewell was entitled to access to her claims file inasmuch as Mrs. Grewell’s relationship with State Farm involved an insurer/insured relationship which is similar to an attorney/client relationship. The Supreme Court held that appellant’s insurance claims file held by respondent is analogous to the file of a client held by an attorney. Therefore, Mrs. Grewell was entitled to full access to the file.
Charles Grewell, et al., Appellants v. State Farm Mutual Automobile Insurance Company, Inc., et al., Respondents, No. 84896, (Mo. S.C., April 22, 2003)

2003-06-09T13:50:00.000-05:00

Nursing Home Litigation:

Nursing home-acquired pneumonia (NHAP) is defined as pneumonia occurring in a resident of a chronic care facility or nursing home. NHAP is one of the most common infectious disease problems in chronic care facilities. NHAP also is a significant cause of mortality and morbidity among residents of nursing homes or chronic care facilities. NHAP more closely resembles community-acquired pneumonia (CAP) than nosocomial (hospital acquired) pneumonia (NP). Nursing assessment for pneumonia should include a full set of vital signs and measurement of oxygen saturation. Initial communication with the attending physician about a pneumonia case should occur within several hours of the onset of symptoms. If the nurse does not hear back from the attending physician within an hour or so, the medical director should be contacted with the help of the director of nursing. The medical director should be asked to assume care of the patient until the attending physician can be reached.

2003-06-09T13:47:00.000-05:00

Welcome to the Herron & Lewis blog page. Check back often as we discuss various legal topics. If you have a topic you would like for us to discuss, please e-mail us at LawKC@aol.com.