ALERTS

 

 

Insurance Law Alert: A Closer Reading

In Aguilar v. Geico Casualty Company, Aguilar sustained serious injuries after a U-Haul truck driven by Hollandsworth ran into the motorcycle Aguilar was riding in Jackson County, Missouri. The claim was reported to Geico and the company disclaimed any liability. Geico had previously issued an auto liability policy to Mr. and Mrs. Clymens for their vehicle and during the coverage period, Clymens signed paperwork to rent the U-Haul truck involved in the accident so Hollandsworth could move her belongings from the Clymens residence to a new home.

 

Insurance Law Alert: Section 537.065 Revisited

In Britt v. Otto, Britt was injured in an accident involving her vehicle and a vehicle driven by Otto, who was insured by American Family Mutual Insurance Company (“AFI”). Britt extended a time limited demand to settle to AFI providing that Britt would unconditionally release Otto from all liability in exchange for all applicable policy limits and payments.

Insurance Law Alert: You Have Mail

In American Family Mutual Insurance Company v. Vein Centers for Excellence, Inc., et al, St. Louis Heart Center, Inc. (“St. Louis Heart”) filed a class action petition against Vein Centers for Excellence, Inc. (“Vein Centers”) claiming a violation of the Telephone Consumer Protection Act (“TCPA”). American Family Mutual Insurance Company (“American Family”) filed a complaint for declaratory judgment against its insured, Vein Centers, disputing American Family’s duty under various policy provisions to defend and indemnify Vein Centers in that class action suit. The issue on appeal is whether the insurance policies issued to Vein Centers obligated American Family to defend and indemnify its insured.

Insurance Law Alert: No Defense or Indemnity

In Mary Spencer, et al. v. Hartford Casualty, et al., Spencer and 13 of her classmates (Appellants) in the Applied Sciences of Practical Nursing Program at St. Louis College of Health Careers (“SLCHC”) sued SLCHC under the Missouri Merchandising Practices Act (“MMPA”), alleging unfair and deceptive practices in the representation of its program.

Insurance Law Alert: It Isn’t Over Until It’s Over

In Brancati v. Bi-State Development Agency, plaintiff Brancati was injured in 2015 when a metro bus struck her while she was riding her bicycle, breaking both legs and causing permanent pain. Plaintiff filed suit and the trial judge in St. Louis County Circuit Court allowed plaintiff to introduce both her “charged” medical bills of about $77,500 and the “paid or owed” amount of about $40,800. The jury returned a verdict in favor of plaintiff in the amount of $625,000 against Bi-State Development.

Insurance Law Alert: Binder Results in Ambiguity

In Loomis v. State Farm Fire & Casualty Company, Loomis appeals the trial court’s grant of State Farm’s motion for summary judgment, on appellant’s claim that he was entitled to motor vehicle insurance coverage under a temporary binder of insurance issued by State Farm. While residing in Wyoming, appellant submitted a motor vehicle insurance application for his motorcycle with State Farm in 2014, specifically requesting underinsured (UIM) motor vehicle coverage in the amount of $50,000 per person and $100,000 per accident. State Farm stipulated that it issued a temporary binder of insurance coverage subject to its review of the application. While the application was still under review by State Farm, appellant was injured in a motor vehicle accident in Wyoming when another vehicle struck appellant’s motorcycle, causing appellant to sustain injuries.

Insurance Law Alert: When Following Instructions Intersects with Warnings

In Brock v. Dunne, Defendant Ad Litem for Mark Edwards, Deceased, plaintiff filed a petition against his supervisor claiming that the supervisor’s actions of removing a safety guard from a laminating machine and ordering Brock to clean the machine while it was still running without the safety guard, constituted negligence injuring Brock. Brock filed suit but prior to trial, Edwards passed away and the Court substituted a defendant ad litem (“DAL”). A jury found in favor of Brock and an appeal was filed by the DAL.

Insurance Law Alert: Applicability of UIM Coverage

In Seaton v. Shelter Mutual Ins. Co., plaintiffs’ daughter, Chelsea Seaton, was killed in an accident while riding as a passenger driven by Seaton. Plaintiffs settled a wrongful death claim with Seaton’s carrier, American Family Insurance, for policy limits and then sought underinsured motorist coverage from Shelter pursuant to three separate endorsements to her own auto insurance policies. Shelter paid the claim under one policy but denied coverage pursuant to the endorsements to the remaining two policies. Plaintiff filed for declaratory judgment.

Insurance Law Alert: Points on Appeal

In Holdeman, et al v. Stratman, et al, Defendant Stratman’s car died, causing him to come to a complete stop in the center lane of I-435 late at night. He did not turn on his hazard lights. Plaintiff Holdeman was driving behind Mr. Stratman and was able to come to a complete stop behind Stratman’s stalled car. Behind Mr. Holdeman was Defendant Brown, a commercial truck driver hauling a load for C&G Express. Brown saw the tail lights of the Holdeman and Stratman vehicles in front of him but thought that they were in normal traffic. Mr. Brown braked but was unable to stop and collided with Mr. Holdeman’s car causing him to suffer injuries to his spine and rendering him a paraplegic. Following a jury trial, Plaintiff Holdeman was found 1% at fault, Stratman 99% at fault, and Brown and C&G Express, where vicarious liability was claimed, 0% at fault. There were five issues on appeal to the Missouri Court of Appeals Western District.

Insurance Law Alert: Distinguishing “Use” and “Operation”

In Griffitts v. Old Republic Ins. Co., et al, Appellant Griffitts was rear-ended by Campbell, an employee of BNSF Railway Company (“BNSF”) in Springfield, Missouri. Campbell was driving a BNSF company vehicle and was intoxicated at the time of the collision. Numerous lawsuits followed, including one which is the focus of the Missouri Supreme Court’s en banc opinion. That particular case involved an equitable garnishment action that Griffitts filed against BNSF and its insurer, Old Republic, to collect an unsatisfied $1.4 million judgment entered against Campbell in an earlier action. Griffitts filed the equitable garnishment suit claiming Campbell to be a permissive user under the omnibus clause of the Old Republic policy issued to BNSF.

Insurance Law Alert: Insurer Intervention Under Section 537.065 Agreements

In 2014, Dr. Neil Desai alleged that he sustained personal injury while being escorted from a Garcia Empire establishment by a Garcia Empire employee. Seneca Specialty Insurance Company (“Seneca”) offered to defend the club’s operator, Garcia Empire, LLC (“Garcia”) but would not commit to paying any resulting judgment.

Insurance Law Alert – Poor Construction Does Not an Occurrence Make

In The View Homeowner’s Association v. The Burlington Ins. Co., The View, LLC (“View”) is an LLC, which owned a building in Kansas City, Missouri originally built for use as residential living during the 1960s but which had been vacant for many years. The View entered into a contract with Planned Industrial Expansion Authority of Kansas City (“PIEA”) to remedy the blighted condition of the property by developing it into condominium units. In 2005, the View filed declarations of restrictions under the provisions of the Missouri Uniform Condominium Act (“MUCA”), and began selling condominium units for residential use.

Insurance Law Alert: Choice of Laws Conundrum

In Forsman v. Burgess and Empire Fire & Marine Ins. Co., Forsman and Burgess appealed from a summary judgment entered in favor of Empire Fire & Marine Insurance Company (“Empire”), contending that the circuit court in Missouri erred in applying Kansas law to deny their claim under an auto insurance policy.

Insurance Law Alert: To Stack or Not to Stack – That is the Question

In Marrs v. American Family Mutual Ins. Company, plaintiff (Marrs) appealed from a summary judgment granted to American Family Mutual Insurance Company (“AFI”) that denied plaintiff’s request to stack underinsured motorist (“UIM”) coverage in five AFI policies. Plaintiff requested to stack the UIM coverages based on alleged ambiguities in the anti-stacking provisions and the definition of a UIM motor vehicle.

Insurance Law Alert: Examining the Nuts and Bolts of the Case

In Electric Power Systems International, Inc. v. Zurich American Ins. Co., Electric Powers Systems Int’l (“EPS”) appealed the district court’s grant of summary judgment to Zurich, asserting that the trial court erred in concluding that the CGL policy issued by Zurich did not provide coverage for damage EPS caused to an electrical transformer while working on it.

Insurance Law Alert: Reverse Retroactive Date Exclusion Applied

In Hazelwood Logistics Center, LLC v. Illinois Union Insurance Company, Hazelwood appealed a decision on a claim under a premises pollution liability (PPL) policy with respondent Illinois Union for payment of remediation costs for methane contamination at a landfill site. The PPL policy had a “reverse retroactive date provision” contained in an endorsement to the policy which provided, in part, that respondent insurer’s agreement to pay for remediation costs arising out of pollution conditions only applies to pollution conditions that first commence on or before a certain date, June 7, 2006.

Insurance Law Alert: Supreme Court Clears the Air

In Doe Run Resources Corp. v. American Guarantee & Liability Ins. and Lexington Ins. Co., et al, the insured, Doe Run, was sued by several minors alleging injuries caused by toxic pollution released from Doe Run’s smelting facility in Peru. Doe Run sued its insurance company for reimbursement of defense costs incurred during the litigation of these claims. The insurer denied it had any duty to defend Doe Run, claiming coverage was barred under the insurance policy’s pollution exclusion. The trial court entered summary judgment in favor of Doe Run finding the exclusion to be ambiguous and unenforceable. The insurer appealed.

Insurance Law Alert: Documentation Held Lacking

In Aziz v. Allstate Insurance Company, a fire damaged the house of Azim and Kina Aziz (“Insureds” or “Plaintiffs”). Allstate denied their homeowner’s insurance claim and the Plaintiffs sued for coverage. The case was tried in federal district court in Missouri and at the close of Plaintiffs’ evidence, the district court granted Allstate’s Motion for Judgment as a matter of law.

Transportation Law Alert: FMCSA Expands its Drug Testing Panel Effective Jan. 1, 2018

Beginning on January 1, 2018, the Federal Motor Carrier Safety Administration will add opioids to its 5-panel drug test. This new rule comes during a U.S. Opioid Epidemic.

Insurance Law Alert: Water Woes

In Davies v. Barton Mutual Ins. Co., the homeowners purchased and moved into a new house. Shortly after moving in, they noticed water accumulating in the lower level.

Insurance Law Alert: Insurer Acts Reasonably & In Good Time

In Olga Despotis Trust v. The Cincinnati Insurance Company, a tornado destroyed a building leased as a medical imaging facility in Missouri, owned by the Trust and insured by The Cincinnati Insurance Company (CIC).

Insurance Law Alert: Football Practice

In Elias v. Davis & Edwards, Elias, a 16-year-old high school student in the North Kansas City Missouri School District played varsity football. Edwards and Davis were coaches. In October, 2010, the two coaches decided to have a full-grown adult dress out in full football gear including helmet and padding to engage in a full contact live scrimmage with the teenaged members of the high school football team.

Insurance Law Alert: Medical Malpractice Case of First Impression – Withdrawal Instruction

In Wilson v. P.B. Patel, MD., P. C., et al, Plaintiff Wilson brought a medical malpractice lawsuit a doctor and his practice group. Plaintiff appealed a verdict in favor of the Defendants alleging that the trial court abused its discretion by refusing to give a proposed withdrawal jury instruction regarding her alleged informed consent to the medical procedure.

Insurance Law Alert: “Acceptance” Means Exactly That

In Wilson v. Dura-Seal and Stripe, Inc., a school district hired Dura-Seal on an oral contract to construct an asphalt overlay of a drive lane near the auditorium of one of the district’s schools.

Insurance Law Alert: Ambiguous Terms Favor the Insured

In Maher Brothers, Inc. (Appellant) v. Quinn Pork, LLC (Quinn) and State Farm Insurance Company (State Farm), Appellant contracted with Quinn for daily care and management of Appellant’s pigs placed in Quinn’s facility.

Insurance Law Alert: Status Check

In Clayborne v. Enterprise Leasing Co. of St. Louis, et al, Carlus Parker (Appellant) rented a Ford Escape from Enterprise under a written rental agreement, declining to purchase insurance coverage from Enterprise and declining an option to purchase supplemental liability protection, which would have included excess insurance from a third party insurance company.

Insurance Law Alert: New Law on Expert Witness Testimony in Missouri

Missouri Governor Eric Greitens signed into law in late March a bill which will take effect August 28th in Missouri state courts.

Insurance Law Alert: Read Carefully Before Applying

In Owners Insurance Company v. Parkinson, et al., a car dealership provided a Ford Taurus as a loner car to an individual for use as a temporary vehicle while his vehicle was undergoing repairs. Later, the son of the individual to whom the car was loaned was driving the Taurus and was involved in a wreck. Several people in the other vehicle were injured and one individual died as a result of injuries sustained. The driver of the loaner car was determined to be at fault. Two passengers in the Taurus were also injured.

Insurance Law Alert: Can Labor Costs be Depreciated? Round II

The issue in Riggins v. American Family Mutual Ins. Co. centered around the carrier’s decision to depreciate labor costs to a covered claim for storm damage to the insured’s residence.

Insurance Law Alert: Garnishment Under Analysis

In Franklin Allen v. Wayne Bryers, plaintiff Allen was injured in 2012 when defendant Bryers’ handgun discharged while removing Allen from an apartment complex. The gunshot severed Allen’s spinal cord, rendering him paraplegic. Bryers was never charged with any crime in connection with this incident. Allen sued Bryers and the apartment building for negligence in Circuit Court.

Insurance Law Alert: Did the Insureds Misrepresent the Claim?

In Neidenbach v. Amica Mutual Ins. Co., the Neidenbachs alleged that a fire caused significant damage to their house and personal property. They contend the insurance company refused to pay the claim whereas Amica concluded that the policy was void because of material misrepresentations made during the claim process.

Insurance Law Alert: Duty to Defend – Proceed with Caution

In the Doe Run Resources Corporation v. St. Paul Fire & Marine, et al., St. Paul appealed a trial court judgment which found that St. Paul had the duty to defend Doe Run in toxic tort lawsuits that underlie the appeal.

Insurance Law Alert: Prompt Notice of Loss

In the case of Church Mutual Insurance Company v. Pleasant Green Missionary Baptist Church, Pleasant Green owned a building located in St. Louis, and had an insurance policy on the building through Church Mutual which contained a cancellation and non-renewal clause as well as exclusions for concealment, misrepresentation or fraud. The policy also contained an exclusion for “wear and tear,” continuous or repeated seepage or leakage of water that occur over a period of 14 days or more, and exclusions for faulty, inadequate or defective design or construction.

Insurance Law Alert: Can Labor Costs Be Depreciated?

In Boss v. Traveler’s Home & Marine Insurance Co., the policy holder filed a claim with his homeowner’s insurance company for hail damage to the roof, gutters and deck of his house. Coverage was not in dispute.

FURTHER UPDATE: Major Changes to the Uniform Straight Bill of Lading under the NMFC

As we noted in our Transportation Law News Alerts on August 1 and 2, the National Motor Freight Traffic Association (NMFTA) made major changes to the Uniform Straight Bill of Lading (USBOL) terms and conditions as published in the National Motor Freight Classification (NMFC) and the related rules in NMFC Item 360-B. The changes are contained in Supplement 2 to NMFC 100-AP effective August 13, 2016.

Insurance Law Alert: Condominium Association Prevails in Suit for Breach of Contract and Negligence

In Hazelcrest III Condominium Association v. Bent, Hazelcrest obtained a judgment for breach of contract and negligence against the defendant in a case stemming from sewage backup that damaged two condominium units within the plaintiff’s complex.

UPDATE: Major Changes to the Uniform Straight Bill of Lading Effective Aug. 13, 2016

In addition to the changes to the NMFC Uniform Straight Bill of Lading noted in our Transportation Law News Alert on August 1, 2016, the NMFTA has also revised other provisions of the bill of lading terms and conditions.

Transportation Law News Alert: Major Changes to the Uniform Straight Bill of Lading Effective Aug. 13, 2016

The National Motor Freight Traffic Association has just made substantial changes to the terms and conditions of the Uniform Straight Bill of Lading to be effective on August 13, 2016. On July 14, 2016 the NMFTA issued Supplement 2 to the National Motor Freight Classification NMFC 100-AP. The key changes directly affect claims against trucking companies for lost or damaged cargo.

Insurance Law Alert: Property Damage Occurred at Time of Purchase and Installation – Not When Damages Made Manifest

In Kretsinger Real Estate Co. et al. v. Amerisure Ins. Co., American Central Transport Inc. (ACT) planned to build a parking lot in Clay County, Missouri. Kretsinger and ACT hired Triad Construction to construct the parking lot. Triad subcontracted with City Cement to supply labor and material. City Cement purchased concrete from Fordyce Concrete. Construction was completed in February 2007. In May 2008, Kretsinger and ACT became aware that the parking lot was beginning to crumble, crack and deteriorate.

Insurance Law Alert: Misrepresentations Void Coverage

In Neidenbach v. Amica Mutual Insurance Company, Dale and Kim Neidenbach filed a claim with their insurance company arising out of a fire in 2012. They that alleged they sustained a total loss to their home and personal belongings. The claim sought damages of approximately $375,000.00 to the dwelling and garage and personal property losses of approximately $262,500.00. Following this fire, Amica advanced the insureds a prepaid Visa card with $10,000.00 credit and also a check for $5,000.00, both for emergency expenses. Amica also expended money and resources for the investigation, adjustment, and evaluation of the insureds’ claim.

Insurance Law Alert: No Renovation Equates To No Payment Due By Insurer

In Park Reserve, LLC vs. Peerless Insurance Company, Peerless filed a motion for partial summary judgment arguing that a builder’s risk insurance policy issued to plaintiff did not provide coverage based on its clear and unambiguous terms.

Insurance Law Alert: Spring Has Sprung (Almost)

In Great Plains Ventures, Inc. v. Liberty Mutual Insurance, the plaintiff owned several manufacturing companies. Liberty Mutual issued an insurance policy on Great Plains Ventures (GPV)’s covered buildings and other property located in Wichita, Kansas.

Insurance Law Alert: MO Court of Appeals Addresses Coverage in Multiple Policies in Death and Injury Claims

In Shelter Insurance Company v. Vasseur, et al, Shelter appealed from the trial court’s judgment against Shelter in a declaratory judgment matter, raising six points on appeal.

Insurance Law Alert: Declaratory Judgment Denying Coverage in Suicide Attempt Following Fire

In Roller v. American Modern Home Insurance Company, the insureds appealed the trial court’s declaratory judgment denying coverage for property damage to the Rollers’ garage caused by a fire started by Mr. Roller in a suicide attempt.

Insurance Law Alert: Duty to Defend in Missouri Regarding Negligent Supervision Allegations

In American Family Mutual Insurance Company v. Parnell, et al., the insurer appealed the Circuit Court’s grant of summary judgment in favor of M.S., a minor, by and through her next friend and mother. The trial court determined that two homeowner insurance policies issued to the Parnells provided coverage for M.S.’s claim of negligent supervision against the Parnells. On appeal, the insurer contended that the two exclusions applied to bar coverage and the concurrent proximate cause rule was not applicable.

Insurance Law Alert: Kansas Supreme Court Rules on Children’s Disinheritance, Suspicious Circumstances

Here is a case recently decided by the Kansas Supreme Court regarding two adult children’s disinheritance from their father’s will. They claimed that they were disinherited as a result of the inappropriate machinations of their stepmother and her daughter’s boyfriend, and that this meant they should keep their inheritance. The district court agreed, the Court of Appeals reversed that decision, and then the Supreme Court reversed the Court of Appeals.

Transportation Alert: SAFE HAUL

On Friday, July 19, 2013, Representative Matt Cartwright (D-Penn) introduced House Bill 2730 which would raise the required insurance minimum for motor carriers.

Transportation Alert: Flying J Class Action Settlement

Please be aware that if you purchased fuel from a Pilot Flying J Travel Center, you may be eligible to participate in a class action lawsuit.

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