2021 Trials and Verdicts

January 7, 2021

Summary Judgment Affirmed on Appeal in Case Involving Failure to Submit to EUO

Tim Wolf and Ben McIntosh achieved a successful result for their insurer client on an appeal in the U.S. Court of Appeals for the Eighth Circuit. This was a long-fought battle regarding a $500,000 uninsured motorist claim. After asking for the insured’s examination under oath, the plaintiff filed suit one week later in state court. The case was removed to the U.S. District Court for the Western District of Missouri, where we moved for summary judgment after completing party depositions. We won summary judgment, and the insured appealed to the Eighth Circuit. The opinion in favor of the client establishes failing to submit to an EUO is a material breach of the policy as a matter of law. The court also dispels several arguments used by plaintiff attorneys about waiver/estoppel and failing to accept time limited demands in UIM claims relieving the insured of cooperation.

Summary Judgment in First-Party Insurance Case

Robert Brady and Nicholas Gerth secured summary judgment for their insurance client in a case involving spoiled, ready-to-drink aronia berry juice. Plaintiff had several hundred gallons of juice aseptically processed at a plant in Wisconsin. The juice was then shipped from Wisconsin to a warehouse in Nevada, where it was stored for several months. The juice was then shipped to a processing facility in California, and upon arrival it was discovered that the juice had leaked from the totes it was hauled in. Defendant Travelers had issued inland marine and property policies of insurance to Plaintiff, which were in effect when the juice was shipped from Wisconsin to Nevada. However, the Travelers policies had expired while the juice was stored in Nevada, and Plaintiff has secured policies of insurance from co-Defendants Atlantic and Sentinel, which were in effect at the time of the manifestation of the loss. Plaintiff immediately put Atlantic and Sentinel on notice of the loss, but delayed notifying Travelers for several months. Experts hired by Atlantic and Sentinel, as well as other experts, had the opportunity to inspect the damaged product, which was subsequently destroyed before Plaintiff notified Travelers of the loss. Travelers denied Plaintiff’s first-party insurance claim because the discovery of the loss did not occur during the effective dates of its policies. Plaintiff sued Travelers for breach of contract, for declaratory judgment that there was coverage under the policies, and for vexatious refusal to pay penalties. Plaintiff claimed approximately $1.2 million in property damage and loss of business income, plus vexatious refusal to pay penalties. Plaintiff and Travelers filed cross motions for summary judgment. After reviewing the extensive written briefs and considering oral arguments, Judge John M. Torrence, of the Circuit Court of Jackson County, Missouri, granted summary judgment in favor of Travelers and against Plaintiff on all counts. The Court accepted the arguments made on Travelers’ behalf, and found there was no coverage for Plaintiff’s claim because 1) Plaintiff did not provide prompt notice to Travelers as required under the policies; and 2) the loss did not occur within the Travelers policy period. Plaintiff had argued that the proximate cause of the loss was improper packaging of the juice, which took place in Wisconsin during Travelers’ policy period, which implicated coverage under the plain language of Travelers’ policies because the “acts committed” that caused the loss occurred when the policies were in effect, and so the date of the discovery of loss did not matter. We argued on behalf of Travelers, that due to the “manifestation doctrine,” a loss is not said to “occur” until the loss manifests, which is that point in time when a reasonable insured would understand it had suffered a loss. They also argued that Travelers was prejudiced as a matter of law by Plaintiff’s delayed notice of the claim.

Successful Illinois Supreme Court Ruling

David Bub, Brandon Copeland and Kelsey McLean achieved a successful result for their client in a case in which a third-party plaintiff was seeking to have jury determination of fault against a settled third-party defendant re-allocated to their client, the remaining third-party defendant. The original plaintiffs (Roberts) filed suit against defendant/third-party plaintiff Alexandria Transportation alleging injuries caused by Alexandria’s driver when he rear-ended Thomas Roberts in a highway construction zone. Alexandria sought contribution from the construction contractor (Edwards-Kamalduski) and its Safety Coordinator (Safety International). Edwards settled directly with plaintiffs. Alexandria then settled with plaintiffs for $1.85 million and pursued contribution against Safety International in a case tried in the U.S. District Court for the Southern District of Illinois. The jury assessed fault as follows:  Edwards 75%; Alexandria 15%; Safety International 10%. Alexandria asked the district court to re-allocate Edwards’ portion of fault, claiming it was “uncollectable” under the Illinois Contribution Act, which would have resulted in an additional $551,000 owed by Safety International. The district court denied the request, and Alexandria appealed to the 7th Circuit Court of Appeals. The 7th Circuit Court of Appeals could find no Illinois case law addressing whether a settled joint tortfeasor was “uncollectable” under the Act. The question was then certified and sent to the Illinois Supreme Court for determination. The Illinois Supreme Court agreed to answer the certified question of law. The Illinois Supreme Court sided with Safety International and held that the obligation of a tortfeasor who settles is not “uncollectable” within the meaning of section 3 of the Contribution Act. In so holding, the Court noted that Alexandria established the common liability by choosing to settle with the original plaintiffs with no input from Safety International and so to require Safety to pay more than its pro rata share, assessed by the jury, would be inequitable.

Summary Judgment Entered in Premises Liability Case

Kristie Crawford obtained summary judgment for a major retail client in an alleged trip and fall case. The plaintiff sustained significant head injuries requiring two surgeries after allegedly tripping and falling on the lip of a sidewalk. The Missouri U.S. District Court found the plaintiff failed to provide evidence the lip created an unreasonably dangerous condition.

Successful Trial Result in High-Speed Crash Case

Jackie Kinder and Brendon Sanders came in with a huge jury verdict for their defendant client who was driving a vehicle at high speeds jumping hills and crashed his car with his girlfriend as a passenger, killing his girlfriend. The mother of the girl filed a wrongful death action against the client. After four days of trial, the jury came back with only $40,000 and held the passenger girlfriend 30% at fault for participating in the event with the defendant driver for a net verdict of only $28,000. The plaintiff had asked the jury for $7 million.

Summary Judgment Entered in Trip and Fall Case

Steve Schwartz and Ed Zeidler prevailed on a Motion for Summary Judgment in favor of a major restaurant chain in a trip and fall case in the City of St. Louis. The plaintiff tripped and fell while walking on an uneven city sidewalk just outside the restaurant. The plaintiff argued that the restaurant, knowing that many of its customers traversed this sidewalk to move between the restaurant and a nearby parking lot, owed a duty to provide adequate lighting for the sidewalk. In granting summary judgment, the Court affirmed that a municipality’s duty to maintain its sidewalks includes a duty to adequately light those sidewalks. That the restaurant’s customers frequently used the sidewalk did not constitute a “special use” of the sidewalk by the restaurant and did not create a duty owed by the restaurant to maintain or light the sidewalk.

Summary Judgment Win in Wrongful Death Inmate Case

Ed Zeidler prevailed on a Motion for Summary Judgment in a wrongful death case filed against multiple law enforcement entities. The decedent was arrested by a sheriff’s deputy in New Madrid County on an outstanding warrant for domestic assault, and he was taken to the New Madrid County Sheriff’s Department for booking. Because New Madrid County does not have a jail, another deputy transported the decedent to the Pemiscot County jail. While in route, the decedent became belligerent. The transporting deputy requested assistance, and an officer from a nearby municipality responded, met the deputy on the highway, helped restrain the decedent, including the use of a taser, and then rode with the deputy to the Pemiscot County jail. Pemiscot County jailers took then took custody of the decedent and placed him in a restraint chair. Despite the decedent’s ongoing lack of cooperation, he was booked, showered and then placed in a recreation room for observation on video camera. After approximately 80 minutes, one of the jailers checked on the decedent and found him to be non-responsive. EMS were called, and the decedent was pronounced dead. The cause of death was determined to be acute methamphetamine intoxication.

Plaintiffs were the decedent’s surviving spouse and children. Against Mr. Zeidler’s clients (the municipal officer who assisted in transporting the decedent, that officer’s police chief, and the municipality that employed the officer and the police chief), plaintiffs alleged violations of 42 USC 1983 (based on alleged violation of the decedent’s 14th Amendment right to medical care as a pretrial detainee) and they also stated a claim under the Missouri Wrongful Death Statute (based on the theory that the defendants failed to adequately monitor the decedent, failed to obtain medical care for him when it was clear that such care was required, and improperly used a taser on him when it was clear that he was in a state of delirium and in need of medical assistance). Mr. Zeidler filed a Motion to Dismiss the 1983 claims, arguing that, under Missouri’s survival statutes, 1983 claims do not survive death and cannot be asserted by a decedent’s surviving family members. As such, plaintiffs had no standing to pursue a 1983 claim following the decedent’s death. The court agreed, finding plaintiffs’ 1983 claims impermissible and dismissing those claims. With respect to the wrongful death claim, once plaintiffs’ expert disclosure deadline passed, Mr. Zeidler filed a Motion for Summary Judgment arguing that plaintiffs, after an adequate time for discovery, had failed to present evidence to support the position that the decedent would have survived but for the alleged negligent acts of the defendants. Plaintiffs identified no medical experts other than the medical examiner, and plaintiff failed to timely disclose any causation opinions from the medical examiner. The court rejected plaintiffs’ argument that the jury should be allowed to deduce, in the absence of expert testimony, that the actions of the defendants caused the decedent’s death. Rather, the decedent’s death was a sophisticated injury that required expert testimony to establish a causal link between the alleged negligence and the decedent’s death.

Success in Clear Fault Auto Case

Jeff Lester obtained a favorable verdict for his client-defendant in a clear fault, construction zone auto accident. The plaintiff claimed permanent and progressive neck injuries, including a herniated disc, and demanded compensation for a future surgery. After a three-day jury trial, a Camden County jury returned a verdict for only $1,250.

Plaintiff Ordered to Pay Employer in Rare Workers’ Compensation Ruling

Robert Amsler achieved a successful result for his client in a case in which the Labor & Industrial Relations Commission reversed an award by an administrative law judge and determined that the nursing home employee had to pay temporary total disability benefits after the nursing home fired an employee for post-injury misconduct. The employee, a nurse, injured herself at work and fractured her foot. After filing a workers’ compensation claim, she violated numerous state laws by knowingly failing to secure medication on two occasions and violated policy by dispensing the wrong medications to residents. After the temporary hearing, the judge determined the willful decision of the employee to leave medication unsecured and her failure to abide by a policy that would have prevented the dispensing of the wrong medication to patients did not constitute misconduct. The nursing home had no right to appeal until after a hearing of the entire case. They then appealed to the Labor & Industrial Relations Commission. The commission determined the employee did engage in post-injury misconduct and and deducted the permanent partial disability benefits awarded ($24,353.33) from the temporary total disability amount, ($36,959.18).  The commission then ordered the claimant to pay the employer $12,605.85. The matter is subject to appeal for 30 days.