2020 Trials and Verdicts

January 16, 2020

Summary Judgment Entered in Employment Practices Exclusion Case

Russell Watters and John Cooney secured a significant victory for a major insurance client on the last day of the year. The Federal Court case involved a $20-million verdict arising out of a 537 arbitration award in favor of two employees against their employer, the insured. After battling with the plaintiffs for two years, the court rendered a 27-page decision in the client’s favor late on New Year’s Eve enforcing the employment practices exclusion and holding there is no coverage for the verdict. View the order here.

Summary Judgment Entered in Multimillion-Dollar Case

Justin Chapell, Teresa Young, and Kelly Brunie  prevailed on two Motions for Summary Judgment in the Circuit Court of Greene County bring the case against their client to conclusion. In an underlying action, plaintiffs secured a multimillion-dollar default judgment against the at-fault driver following a car accident. The insurer denied coverage for the accident because the insured’s policy had been canceled for non-payment before the accident occurred. The plaintiffs then filed an action alleging equitable garnishment, breach of contract, and bad faith claims against the insurer in an attempt to recover the multimillion-dollar default judgment.

The plaintiffs argued that the cancellation notices sent to the insured were ineffective under Missouri law, and therefore, the policy should be deemed to have been in effect at the time of the accident and that the insurer’s denial of coverage amounted to bad faith. The plaintiffs also alleged claims for misrepresentation against the insurer, arguing that the cancellation notices were confusing, leading the insured to believe that she continued to be insured despite her failure to pay the premiums.

The defendants argued that the cancellation notices, when reviewed as a whole, complied with Missouri law and sufficiently communicated that the policy was canceled for non-payment of the premiums. Defendants further argued that the notices presented clear instructions should the insured wish to reinstate the policy, noting that plaintiffs provided no evidence that the notices were confusing to the insured, or would be confusing under an objective standard.

The Court ruled in the insurer’s favor on both arguments, holding that the policy was effectively canceled before the accident, relieving the insurer of any obligation for the judgment, and finding that the plaintiffs had presented no evidence tending to show that the notices were confusing or contained any misrepresentations.

Missouri Supreme Court Agrees No Coverage

Earlier this year, Elaine Moss and Kelly Brunie prevailed in an appeal before the Court of Appeals for the Western District of Missouri when it upheld a Jackson County trial court’s dismissal of their client in an equitable garnishment action seeking to collect a $3 million judgment following a Section 537.065 agreement. The Missouri Supreme Court has now denied the request for transfer and entered a mandate dismissing the claim against the firm’s client. David McConnell v. West Bend Mutual Insurance Co., 2020 WL 2529019.

Missouri Eastern Appellate Court Overturns Jury Verdict of $1.5 Million

David Bub, Tyler Finnegan and Kelsey McLean successfully appealed a minor motor vehicle accident case that overturned a jury verdict of $1.5 million (total)/$1.2 million (to plaintiff after allocation of fault) based on witnesses called and comments made by Plaintiff’s counsel regarding Defendant’s liability insurer. Missouri Eastern Appellate Court reversed and remanded on this issue. Appellate court also rejected Plaintiff’s appeal regarding Defendant’s presentation of contributory negligence affirmative defense. Plaintiff’s counsel made multiple references throughout trial to Defendant’s liability insurance company, implying their involvement in the case, including calling an insurance adjuster as a witness, calling two private investigators as witnesses and questioning them on direct examination regarding their involvement with Defendant’s insurer. The jury returned a verdict of $1.5 million in total damages, with a $1.2 million verdict after allocation of fault applied (80% to Defendant, 20% to Plaintiff). Defendant appealed on issue of presentation of insurance information for purpose of biasing jury against defendant. Appellate Court agreed with Defendant that Plaintiff’s comments regarding Defendant’s liability insurer were inappropriate and established precedent that a Plaintiff cannot call an insurance adjuster or private investigator in their case in chief for the sole purpose of presenting insurance information or attempting to show the bias of the witness. Insurance bias in a private investigator can only be established if the Defense calls the witness first. The Court overturned the jury’s verdict and remanded the case back to the trial court for a new trial. Case published at Collier v. Steinbach, 597 S.W.3d 317 (Mo. App. 2019).

Success in Clear Liability Rear-End Auto Case

In February 2020, Jeff Lester successfully defended a clear liability rear-end auto case in the City of St. Louis. The plaintiff claimed a permanent disc herniation injury and requested an award of $3 million from the jury. Jeff argued other possible causes of the claimed injury and that the plaintiff’s pain, suffering, and lost enjoyment of life claims were inflated. The St. Louis City jury awarded plaintiff $15,000.

Missouri Supreme Court Overturns Toxic Exposure Case

Mike Ward and Elaine Moss prevailed on an appeal to the Missouri Supreme Court in Hegger v. Valley Farms Dairy. The court, in overturning the appellate court ruling, agreed with their argument that now-defunct employers facing claims for workers’ compensation benefits for mesothelioma caused by toxic exposure are not deemed to have elected to accept enhanced liability under section 287.200.4(3)(a) solely by virtue of having workers’ compensation coverage at the time of an employee’s last exposure to asbestos. Hegger v. Valley Farm Dairy Co., 596 S.W.3d 128, 133 (Mo. 2020).

Successful Appeal Involving 537.065 Agreement

Elaine Moss and Kelly Brunie recently prevailed in an appeal before the Court of Appeals for the Western District of Missouri when it upheld a Jackson County trial court’s dismissal of their client in an equitable garnishment action seeking to collect a $3 million judgment following a Section 537.065 agreement. The court affirmed the trial court’s finding that the plaintiff and the alleged insured had failed to plead facts demonstrating that the policy provided coverage for the claim.  David McConnell v. West Bend Mutual Insurance Co., 2020 WL 2529019.

Defense Verdict in Dram Shop Case

Jackie Kinder and Brendon Sanders returned a defense verdict for their clients, the owners of a barbeque restaurant. The plaintiff attended a “jam night” at the restaurant with her boyfriend, who lost control of his vehicle and struck a tree on their way home. The boyfriend was killed in the accident, and plaintiff suffered significant injuries, including bilateral femur fractures and possibly traumatic brain injury, scarring, and other orthopedic injuries. Plaintiff brought a dram shop claim against the restaurant alleging her boyfriend was overserved where his table was served 54 drinks in two hours including 25 shots. Plaintiff alleges the crash was a result of the bar’s over service to him and his intoxication. His blood alcohol level was .188. Plaintiff claimed damages for her pain and suffering, $400,000 in medical bills and further claimed more than $1.1 million in future damages. Plaintiff asked the jury for between $4 million and $6 million. The jury returned a unanimous defense verdict.

Defense Verdict in Slip and Fall Case

John Cunningham secured a defense verdict in a slip and fall case, or a trip and fall, depending on who you believe. The 74-year-old plaintiff fell at a farmers’ market and sustained a fractured eye socket and broken finger. Plaintiff’s medical bills were $40,000. Plaintiff testified that she slipped and fell, hitting her face on the concrete parking block, but the EMT records indicated that plaintiff told them that she “tripped over” the concrete parking block. An independent witness testified she saw the plaintiff trip over the concrete parking block. Plaintiff’s counsel suggested that the jury award medical bills in the amount of $40,000 plus another $40,000 to $80,000 for pain and suffering and disability. The jury returned a defense verdict.

Favorable Result in Admitted Liability Rear-End Auto Case

John Cunningham achieved a successful outcome for his client in an admitted liability rear-end auto accident case. Plaintiff was a passenger in a stopped vehicle. Defendant was unable to stop before the collision on December 21, 2013. Plaintiff estimated the speed of defendant’s car at the time of impact at 40 mph, while defendant estimated her speed at 5 mph. Photos of the vehicles did not show significant damage. Plaintiff had some chiropractic treatment of her neck in the two months leading up to the accident. Plaintiff testified to the accident and how this accident caused significantly different pain than she suffered prior to the accident, including pain in her neck that went down her left arm. She testified to all of her medical treatment and the fact that she has not been able to work since January 2014. She had been earning $56,000 per year as an oncology nurse. On cross-examination, plaintiff claimed that her car was pushed forward a few feet as a result of the impact, contrary to her husband’s testimony. She also claimed that both she and her husband were having pain and reported that to the police officer, but that the police officer would not call an ambulance because they were not ejected from the vehicle and were not bleeding. This was also contrary to her husband’s testimony. Her surgeon testified that he performed four surgeries to plaintiff’s neck and that the surgeries neck were made necessary by the auto accident. Defendant’s medical expert reviewed the medical records and determined that plaintiff sustained no more than a strain and that the surgeries plaintiff underwent were not made necessary by the accident. The defense also called the police officer as a witness. He testified that he investigated the accident and that he wrote a “0” for injuries to each of the parties involved. He did that because each of the parties involved told him that they were not injured. He further testified that, if someone told him of an injury, they would be offered an ambulance. He would never tell someone that an ambulance is unavailable unless you are ejected from the vehicle or bleeding. In closing arguments, Plaintiff’s counsel suggested that the jury consider her medical bills of $520,000, her past and future lost wages of $1.5 million, the significant pain and suffering, and that the jury award plaintiff $6 million. The jury returned a verdict for $3,000.

Defense Verdict in Property Damage Case Alleging Negligence

John Cooney and Patrick Meyer secured a defense verdict for their client, a plumbing contractor, in City of St. Louis Circuit Court. Plaintiff filed suit for negligence against a general contractor and the plumbing contractor as a result of a pipe cap failure and resulting water loss that occurred in 2015. Plaintiff alleged the general contractor hired the plumbing contractor to install a pipe in the ceiling at plaintiff’s apartment complex that had an improper end cap on it. Defendants denied installing the pipe or the cap. After a three-day trial, the jury found in favor of defendants.