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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 Bleeding Blue
Coming off seven straight wins and one of the best records in the NHL, the St. Louis Blues are off to their best start ever!
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 Court Upholds Limitations on UIM Coverage
Finally, a favorable decision for an insurance carrier in a Missouri UIM coverage dispute!
In Lynch v. Shelter Mut. Ins. Co., No. SD30270 (Mo. App. S.D.) (October 7, 2010), the Missouri Court of Appeals upheld the anti-stacking and set-off provisions in a Shelter UIM policy. The Shelter UIM coverage part at issue had been revised to address and avoid the nullification of UIM anti-stacking and set-off provisions by the Missouri Supreme Court in its recent Jones and Ritchie decisions. The Lynch decision is not yet final. The policyholder has requested the Missouri Supreme Court to hear the case. Based on the Supreme Court’s interest in this issue, it is quite possible the Supreme Court may choose to hear this case. But, for the present, we recommend that you read the Lynch decision to see how one UIM carrier successfully revised its policy language to limit its exposure in UIM cases.
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Mold Exclusion Upheld
The Missouri Court of Appeals in Tate v. OneBeacon Ins. Co., No. ED94309 (Mo. App. E.D.) (September 28, 2010), held there was no coverage for an underlying $200,000 judgment returned against OneBeacon’s insured based on the mold and pollution exclusions in a commercial general liability insurance policy. The Court further held that the amendment of an insurance policy by endorsement during the policy term only amends that portion of the policy specifically described in the endorsement and does not create a “new” policy. |
Comparative Fault Assessed Against Plaintiff for Failing to Follow Physician’s Orders
When proper medical testimony is presented at trial that proves the plaintiff failed to follow his physician’s advice, the defendant is entitled to a comparative fault instruction on that issue. In Skinner v. Leggett & Platt, Inc., No. SD29869 (Mo. App. S.D.) (September 28, 2010), the Missouri Court of Appeals upheld a jury’s verdict that assessed substantial fault to a plaintiff who had failed to follow his doctor’s advice for follow-up treatment and medication. |
Non-Settling Defendant May Assert Sole Cause as a Defense in Illinois
The Illinois Supreme Court in Ready v. United/Goedecke Service, No. 108910 (Ill.) (October 21, 2010), has held that defendants now have right to argue that the sole cause of a plaintiff’s damages is the negligence of non-parties, i.e., parties that have previously settled the plaintiff’s claims against them. In announcing this new rule of law, the Illinois Supreme Court went so far as to mandate that if there is evidence of sole cause of a non-party, the trial court must submit a sole cause instruction to the jury on behalf of the non-settling defendant. |
No UM Claim if the Insured Joint Tortfeasor Satisfies the Judgment
If a claimant takes a case to trial against an insured tortfeasor and obtains a judgment and that judgment is satisfied by the tortfeasor’s carrier, then there is no remaining uninsured motorist claim that may be brought by the claimant against the claimant’s UM carrier. In Bryan v. Peppers, No. SD30068 (Mo. App. S.D.) (September 28, 2010), the Missouri Court of Appeals affirmed the trial court’s dismissal of a UM claim brought against State Farm, holding no further cause of action existed for UM benefits because the insured tortfeasor had completely satisfied the judgment. |
Adjusted Amount on Medical Bills goes to the Jury in Missouri
The Missouri Supreme Court, in a long-awaited decision, has answered one of the most contested issues in Missouri personal injury litigation arising from Missouri’s 2005 tort reform legislation – what does the jury hear about the plaintiff’s medical bills. Apparently, the answer is everything!
In Deck v. Teasley, No. SC90628 (Mo. banc) (October 26, 2010), the Missouri Supreme Court addressed Missouri’s 2005 tort reform legislation that sought to create a presumption that the lower adjusted amount on the claimant’s medical bills is the proper sum to go to the jury on the claimant’s damage claim. The Missouri Supreme Court held that it is the duty of the trial court to rule on the presumption. If the trial court rules for the claimant and finds the claimant has produced sufficient evidence to rebut the presumption, then the issue of the amount of the claimant’s medical bills becomes an issue for the jury. In such cases, the defense may offer evidence of the lower adjusted amount and the claimant may offer into evidence the higher billed amount, although this sum was never paid to the claimant’s health care provider, as set forth in the claimant’s explanation of benefits (“EOB”). The question then becomes an issue for the jury to decide what sum to award as damages, namely, the health care provider’s higher charge, per the EOB, or the actual sum paid to the claimant’s health care provider by the claimant’s health insurer. |
Negligent Misrepresentation in Sale of Home
Although a home buyer had an independent inspector inspect the home before the purchase, the fact that the seller had failed to disclose prior water and flood damage on the seller’s disclosure form provided a sufficient basis to uphold a judgment for the purchaser and against the seller for negligent misrepresentation. In Craycroft v. Carlton, No. SD30224 (Mo. App. S.D.) (September 23, 2010), the Missouri Court of Appeals held the seller was liable for the purchaser’s expenditures to make repairs and remedy water damage because the purchaser was not on an equal footing with the seller for learning the truth of the home’s condition as opposed to the seller who had lived in the property for twenty years, despite the fact that the purchaser had obtained a pre-closing inspection of the home. |
Stacking of Automobile Liability Policies Allowed
In a very controversial decision, the Missouri Court of Appeals in Durbin v. Deitrick, No. WD 71263 (Mo. App. W.D.) (October 26, 2010), has held in the context of non-owned vehicles covered by automobile liability insurance, that an automobile liability insurer’s “other insurance” clause was “ambiguous” and, therefore, entitled the insured driver, who was driving a non-owned vehicle to stack the four auto liability policies that covered four of his owned vehicles. The Missouri Court of Appeals, in so ruling, employed a very tortured and strained analysis to reach this conclusion. The Durbin decision is not yet final. The losing automobile liability insurer is seeking post-opinion review in the Missouri Supreme Court. |
In Other News
Judge Wolff Stepping Down
Missouri Supreme Court judge, the Honorable Michael A. Wolff, announced that he will retire after the conclusion of the Court’s 2010 term and return to Saint Louis University School of Law where he taught before he was appointed to the bench. The Governor of Missouri will likely appoint Judge Wolff’s replacement to the Missouri Supreme Court late next summer.
Lawyer's Home Searched in Pipe Bombing Investigation
The saga continues at a St. Louis defense attorney’s office. ATF agents and local police searched the home of defense lawyer Mark Bates as part of the criminal investigation into the recent pipe bombing of the home of defense lawyers, Beth and Thomas Boggs. Mystery still surrounds the murder of their partner, Ernie Brasier, and the pipe bombing of their home.
Click here to read the full article.
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Brown & James News
Super Lawyers Announced
Sixteen Brown & James lawyers have been named 2010 Super Lawyers or Rising Stars, as published in Missouri & Kansas Super Lawyers magazine. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Only five percent of lawyers are named to the overall Super Lawyers list.
Click here to see the list of Brown & James lawyers listed.
Brown & James Shareholder Joe Swift Elected to the ALFA Board of Directors
Joe Swift was recently elected to the board of directors of ALFA International, a global legal network of independent law firms. Nominated by ALFA International’s nominating committee in September, Joe and four other new board members were elected by the ALFA membership at ALFA’s annual business meeting held in Atlanta.
Click here for more information.
Brown & James 2011 Insurance Law Seminar
Don’t forget to mark your calendars for Brown & James’ Annual Insurance Law and General Litigation Symposium on January 27, 2011, in St. Louis. The program is now set and invitations will soon be issued.
Tim Wolf has been selected to present "Representing Insurers in the 21st Century" at the Council on Litigation Management’s 2011 Annual Conference, March 23-23, 2011, in New Orleans.
John McMullin spoke on the subject of "Evidence in Trial Practice" and "Testimonial Evidence" at Getting the Most Out of Your Evidence, a seminar sponsored by the National Business Institute on November 10, 2010, in Clayton, Missouri.
David Bub recently spoke at the Missouri Association of Mutual Insurance Companies Annual Conference as a Legal Forum panelist. David has also been selected to speak on “The Trial of the Complex Soft Tissue Injury Case” at the PLRB/LIRB 2011 Claims Conference on April 3-6, 2011, in Nashville, Tennessee.
Mike Ward is speaking at the Missouri Bar’s annual Insurance Coverage and Litigation Seminar on December 10, 2010, in Clayton, Missouri. Mike will speak on “Fundamental Issues in Insurance Policy Construction and Interpretation.”
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Recent Trial Results
After a four-day jury trial, David Bub obtained a defense verdict for our client, an electrical contractor, in an $800,000 property damage lawsuit. The plaintiff homeowner contended the contractor’s allegedly defective work caused a fire that damaged the home.
John McMullin received a defense verdict for our nursing home client in a lawsuit charging the nursing home with violating the Illinois Nursing Home Care Act, including allegations that the nursing home had failed to properly supervise and take care of a resident who had broken her hip.
James Craney received a favorable verdict in southern Illinois, defending our client in a clear liability auto crash in which the plaintiff demanded $45,000 following a $35,000 offer. At trial, the plaintiff’s attorney asked the jury for $120,000, and after a three-day trial, the jury came back with a verdict of only $22,000.
John Johnson successfully defended a workers’ compensation claim brought by a bus driver who claimed his back was injured in a minor auto accident. In the accident, no one else on the bus had claimed any injuries.
John Cunningham and Matt Young obtained summary judgment in a slip and fall lawsuit brought against a southern Illinois gas station. The trial court entered judgment as a matter of law for our gas station client based on the argument that the driveway’s condition was open and obvious under Illinois law.
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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.
Click here to contact the editor
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