Insurance Law Update
Brown & James, P.C.
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 IN THIS ISSUE
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ABOUT US
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Brown & James, P.C. is a Midwest regional law firm with over 100 trial lawyers practicing in a wide variety of corporate and insurance litigation practice areas.
St. Louis, MO
Kansas City, MO
Springfield, MO
Belleville, IL
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 Rams "Football"
With new rookie quarterback Sam Bradford signed for $78 million, Rams “football” has nowhere to go but up! (Yes, we still call it
“football” here in St. Louis; although some
dispute what the Rams have been playing can be called “football”.) |
 Additional Insured Status and Writing Requirement
An insured contractor entered into a one-page purchase order to do work on the owner’s premises. The purchase order had no reference to additional insured requirements. Per a separate document, the contractor’s manual that governed the parties’ duties during the work, the owner did require of the contractor a generic certificate of insurance showing proof of liability insurance coverage, but did not require additional insured status. However, the insurance certificate issued by the insured and its broker named the owner as an additional insured. In a lengthy unpublished opinion, the Missouri Court of Appeals in Brenda Sieckmann v. Crum & Forster Ins. Co., No. ED 93459 (Mo. App. E.D., July 13, 2010), ruled that the court must consider all of the written documents and the parties’ intent in determining additional insured status. Thus, as the certificate of insurance was part of the contract documents, and when these documents were read together, the certificate satisfied the manual’s requirement for a “written” contract providing additional insured status such that coverage was afforded to the owner.
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Medical Records of Drunk Defendant Protected
Following her father’s death in an auto accident with a drunk driver, the plaintiff brought a wrongful death action in which she sought discovery of the defendant’s medical records concerning his treatment for alcoholism and history of alcohol, drug and other substance abuse. The Missouri Supreme Court in State ex rel. Stinson v. House, No. SC90364 (Mo. banc, July 16, 2010), ruled for the defendant drunk driver, holding a defendant does not waive the physician-patient privilege simply by defending a lawsuit and that the requested medical records were absolutely protected from discovery under Missouri law. Therefore, the Supreme Court held the plaintiff was not entitled to obtain those records from the defendant or require the defendant to execute authorizations to permit her to obtain those records. |
Adjusters Beware!
In a case of first impression, the Missouri Court of Appeals in Grisamore v. State Farm Mut. Auto. Ins. Co., 306 S.W.3d 570 (Mo. App. W.D. 2010), recently held that an adjuster could be personally liable for misrepresenting settlement offers in a bodily injury claim. The Court of Appeals explained that a fraudulent misrepresentation claim could be asserted as a viable cause of action against an insurance adjuster when the plaintiff alleges he relied on the fact that the adjuster told him to go ahead and complete his medical treatment, and further indicated that when it was completed, the adjuster’s company would take care of the claimant’s bills and settle the claim. In Grisamore, the insurer later denied liability and refused to settle the claim short of suit. In turn, the plaintiff filed suit directly against the adjuster alleging misrepresentation. The Court of Appeals reversed the trial court’s summary judgment for the adjuster and allowed the suit to go forward ruling that, at least in the pleading stage, a cause of action could be maintained. |
Fifth Amendment vs. Cooperation Clause
An insured faced with possible criminal charges asserted his Fifth Amendment privilege against self-incrimination and refused to testify in a civil trial. In Medical Protective Co. v. Bubenik, 594 F.3d 1047 (8th Cir. 2010), the United States Court of Appeals for the Eight Circuit held the insured’s refusal to testify violated the cooperation clause of his insurance policy under Missouri law. Therefore, the Eighth Circuit held the insurer was relieved of its duty to provide the insured with coverage and a defense. This case was one of first impression interpreting Missouri law. |
Care, Custody and Control Exclusion Upheld
In Liberty Mut. Ins. Co. v. Zurich Ins. Co, No. 1-08-2927 (Ill. Ct. App., June 10, 2010), the Appellate Court of Illinois considered a case involving the theft of $1 million in jewelry from a hotel room safe. The hotel tendered the claim to its primary insurer, Zurich, and its excess carrier, Liberty Mutual. Zurich argued its policy’s “care, custody and control” exclusion barred coverage for the claim because the jewelry, although stored in a wall safe in a guest’s hotel room, was in the hotel’s care, custody and control. The Appellate Court of Illinois agreed, holding the jewelry was indeed in the hotel’s care, custody and control and, thus, the exclusion barred coverage for the stolen jewelry. |
In Other News
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Illinois Judicial Updates
The asbestos docket in Madison
County has been handled by the Hon. Daniel Stack since the fall of
2004. Judge Stack is retiring, and the rumors are that he will be joining a
plaintiff’s personal injury firm at the end of August (surprise!). In the
future, the asbestos docket will be handled by the Hon. Barbara Crowder.
The Hon. Michael O’Malley, a circuit
judge in St. Clair County, announced his retirement from the
bench effective at the end of July to become a class-action plaintiff’s attorney
(another surprise!). No replacement has yet been named.
Healthcare Suit
Missouri’s
Lieutenant Governor, Peter Kinder, using privately donated money to fund legal
costs, has joined other states in filing a lawsuit challenging the National
Heath Care Law.
Chuck E. Cheese's Wandering Paws
Pizza, game tokens and more! The owner of a Chuck E. Cheese settled a lawsuit in St. Louis County this month with a woman who claimed the popular family restaurant's mascot, "a fun loving mouse," sexually harassed and "pawed" her.
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Brown & James News
The Missouri Bar will award Brad
Hansmann the prestigious Lon O. Hocker Award at the Bar's Annual Meeting on Oct. 1. The Missouri Bar gives this award annually to three of the “best
young trial lawyers” in Missouri. Congratulations
Brad!
James Craney was recently published in the Illinois Association
of Defense Trial Counsel’s “Defense Update” with the article, Causation in § 1983 Federal Actions Involving
Public Employees’ First Amendment Rights.
Steve Schwartz moderated “Strategies
for Avoiding Claims Against Officers & Directors and Related Coverage
Issues” at the 2010 ALFA International
Employment Practices Liability Insurance Seminar in New York, June 16-18, 2010.
David Bub was a featured speaker at
the 2010 National PLRB Conference in San Antonio, Texas, on the topic of “Complex Soft Tissue
Injury Cases.”
Bob Brady and David Bub were both
speakers at the Annual Springfield Claims Association Seminar where they
presented the Insurance Law Update.
Elaine Moss recently authored the 2010 updates of
Chapters 4 and 5, Analyzing Insurance Policies in the
New Appleman’s
Insurance Law and Practice Guide
, which was originally published in 2007.
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Recent Trial Results
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Dave Buchanan and Derek MacKay
brought a win in a tortious-interference-with-contract case for our firm’s client
after a week-long jury trial in the United States District Court for the
District of Kansas.
Larry Grebel received a defense
verdict in the Circuit Court of Jefferson County, Missouri, for our client, an
excavation contractor, in a construction-related dispute involving a claim
of unreasonable diversion of surface water.
Joe Swift and Josh Stegeman
obtained by summary judgment a declaration of no coverage for the firm's insurance client
in the U.S. District Court, Eastern District of Missouri. In a
coverage dispute arising over the demolition of the historic Switzer
Building in St.
Louis, the insureds sought $1.1 million in damages.
Tim Wolf won a $500,000 summary judgment
for our insurance client against another insurer in a dispute over which
insurer should have provided their mutual insured with defense and indemnity
for a construction defect claim.
In a severe dog bite case, David
Bub prevailed and obtained a defense verdict for the dog’s owner in an action
brought on behalf of a three-year-old girl who was severely bitten in the face and
who incurred over $67,000 in medical bills because of her injuries.
In a large subrogation fire case,
Brad Hansmann convinced a jury, after a week-long trial in St.
Charles County, Missouri, to
award our client $1.2 million where the defendant had refused to offer any
money short of trial.
John Cooney tried a rare trespass claim involving tree removal under a special Missouri statute that allows treble damages for trespass and removal of trees off property. John's client admitted the trespass and taking trees, but the plaintiff's unreasonable demand of $48,000 for the trees forced a trial. John held the plaintiff's verdict to only $21,000.
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The Insurance Law Update is a monthly publication and is offered as a service to the clients and friends of Brown & James, P.C. to provide an informal summary of cases, legislation, rulings, and other developments impacting insurance law in Missouri, Illinois, Kansas and Arkansas. We hope you find it useful. Please let us know what you would like to see in upcoming installments. We look forward to your feedback.
The Insurance Law Update does not constitute legal advice or a legal opinion and is not an adequate substitute for the advice of counsel.
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