Denial to $125k
October 10, 2016
Slip and fall case and claims adjuster sends me a letter: "Our investigation does not indicate any negligence on the part of our insured and there does not appear to be any tripping hazard that would have contributed to your client's fall."
His next letter a couple months later: "I understand that you have had a chance to review the video of your client's fall. Will your client drop this claim or does she intend to proceed?" We proceeded.
Sally was injured while leaving the theater at the Centene building in Clayton. As she walked to the end of her row, her foot slipped into a gap between the stair and the step and she fell, badly fracturing her tibia and fibula above the ankle. She was escorted out of the Centene building and got immediate medical care. She had surgery with plates and screws to stabilize the break.
We filed a lawsuit and aggressively litigated the case, as usual. We took a corporate designee deposition of Centene and learned that they had no idea about the gap but the seats didn’t fit. Designers placed the gap at the end of the rows rather than in the middle between seats. Looking at other facilities we saw that no one puts gaps for safety reasons.
Sally also did a great job in her deposition explaining exactly what happened. Sally was a commercial building manager for 30 + years and clearly explained that you do not have gaps. You could imagine how adults, older people, and children could get injured in such a way.
In fact, because of this case Centene eliminated the dangerous gap – hiring a carpenter to fill the gaps between the seats and the stairs with wood and recarpeting. It was a good responsible thing to do on the part of Centene, and we are happy that our instance persuaded them to remedy the situation.
The amount paid to satisfy Sally’s medical bills was about $10,000. We took a denial of liability and an adjuster asking us if we were going to drop our case to a $125,000 settlement on little in special damages.
Do not be persuaded by claims adjusters dismissing your case. They use these and other tactics to do lower recoveries. I wrote a book about questions to ask claims adjusters or lawyers to avoid these pitfalls. Click here to download it.
RIP Officer Blake Shelton
Last week Officer Blake Snyder was killed in the line of duty responding to a domestic disturbance in St. Louis. He left behind a wife and a two-year old son. According to the department, this was the first incident of a St. Louis County Police Officer who was killed in the line of duty since the year 2000.
It is awful and tragic that this event has taken place, and it has deeply affected the St. Louis region. When events like this transpire it’s important to remember that actions speak louder than words. Join Burger Law in contributing to help his family. Click here for the Backstoppers page for the Shelton family.
Supreme Court Jury Decision
I’ve talked about juries in these emails before. Did you know if a juror Googles incidental info about a case (contrary to MAI 2.01), it isn’t necessarily grounds for a reversal? In a 4-3 decision last week, the Missouri Supreme Court in Smotherman v. Cass Regional Medical Center, held a juror who Googled the weather did not prejudice the outcome of the case. Namely, because the case was a slip and fall case in a bathroom.
BTW: Did you know that bathrooms are some of the most dangerous places? Be safe as you sing in the shower!
Responses:
“Awesome Gary!”
--Benjamin
Today Show
October 24, 2016
Hello John,
I am excited to share a commercial litigation success. We just finished recovering $105,000 on an old debt from a not very solvent defendant.
We sued on a personal guarantee of a loan on behalf of our client, who had gone into the restaurant business with two partners about 10 years ago. The partners lost money so our client kicked them out and ran the restaurant himself. He was able to turn it around and make it profitable.
Then he heard one of the old partners, Joe Sieve, had gotten back on his feet and was working. So, we filed a lawsuit to collect on the loan and try to recover losses Sieve caused. The case was vigorously defended and Sieve went through a number of big law firms. We took his deposition and made some unusual and creative moves.
Sieve said he was given a Release when he left years before so we couldn’t sue him. His copy of the Release had handwriting saying loans were released. But our client denied Sieve had ever signed the release.
So, we went and inspected the original releases and found the key changes were written in pencil. And, because we didn't think he really signed it till after the suit was brought, we went and found a great handwriting expert who was prepared to testify about when the documents were signed. This rare expert works with the CIA and is able to tell by the rate of evaporation in ink how long ago a document was signed. We obtained a Court Order producing the original release for semi-destructive testing.
We filed a Motion for Prejudgment Attachment of Sieve's assets which was granted by the Court. So we identified assets even before we won. We argued in briefing that you can't get out of a loan by pencil changes not countersigned by the lender - that would be crazy and we could all get out of our mortgages that way. The case had many other twists and turns and I will not detail them all here.
We also filed an extensive Motion for Summary Judgment. But, with all of these motions pending, we were able to get the Defendant to settle the case and pay a significant sum. We only settled because the Defendant was prepared to file for bankruptcy, was going to file before trial (and thereby stop the trial) and sent us bankruptcy schedules.
In all commercial litigation cases, we balance the debt size, attorney fees and collectability. We had been threatened by the Defendant with bankruptcy all along and refused to go away. In the end, we were able to get this good and significant recovery for our client. We take these cases hourly and by contingency.
Diving on the TODAY SHOW
My second job is as a divemaster at Bonne Terre Mine. I spent last weekend leading some great divers from all over the country. Bonne Terre is an amazing resource and a unique diving experience. Click here for a video by the TODAY SHOW on the mine. In the video, I'm the diver with the yellow hose, blue dry suit and gray fins.
One lesson I have learned from cave diving is that if you ever have a problem in a dive, you solve that problem before you proceed on. Failure to address problems before you go forward, lead to further complications and further task loading. A seemingly innocuous problem (like a tangled reel, small air leak, low battery on your light) can cascade into more and worse problems.
Apply this to life and law. Sit down and solve a problem before you move forward. I often tell younger lawyers to make your hardest phone call first—tackle the hardest (oldest) case first and solve the bigger problems. Then you can move forward. The problems in a case that you don't address and deal with will only get worse later on. If you think the other side won't figure it out or it won't affect you, you are usually wrong.
Drug Disbarments
I read recently about two disbarments of lawyers in Missouri - too bad they did not get help sooner. Jeffrey E. Bremer was disbarred after being caught sneaking heroin into a prison. Many, many ethics violations occur because lawyers get addicted to drugs or alcohol. Lawyers get addicted to drugs and alcohol at two or three times the rate of the general population. Missouri Rule of Civil Procedure 16 states:
Substance abuse causes or contributes to incompetence and malpractice of the law by lawyers and judges, which damages the public and the legal profession. Substance abusers neglect clients, violate rules of professional and judicial conduct and commit crimes.
Lawyer Sean Bryant was disbarred after he stole money from his trust account for drugs and alcohol. The St. Louis Post-Dispatch wrote that he took money for child support for a client and instead supported his habit. Click here for the article.
We encounter lawyers who are affected by drug addiction, and it is hard to know what to do about it. You don't have to: Call the Missouri Lawyers’ Assistance Program (MOLAP) at (800) 688-7859 or visit their website here. MOLAP is a service of the Missouri Bar and has great resources. MOLAP is confidential and free. It does not report to the Office of Chief Disciplinary Counsel and is not related to them.
The holidays are tougher for alcoholics and drug addicts. Have the courage to help impaired lawyers or other people you think might have a problem.
Thanks.
Responses:
“Nice going! As you know, these bankruptcy threats are phony sometimes. These people try to scare off plaintiffs with their bluster.”
--John
Marketing CLE
November 4, 2016
Richard,
My firm is presenting another CLE on December 15, 2016 for lawyers to market and operate their business better in 2017. This is truly a unique opportunity to mix law and business.
Three presentations:
- LEGAL MARKETING: Market yourself and your law business. Two great MARKETING EXPERTS, Jim Hacking and Tyson Mutrux, teach how to efficiently, efficaciously and inexpensively get good cases.
- SOCIAL MEDIA 2017: DRIVE SOCIAL NOW will teach Social Media and trends for 2017 - 2020. Transform your social media in this truly unique opportunity.
- RESOLVE TO BETTER YOUR LAW BUSINESS: Eleven 2017 resolutions to better run your law firm and work the great clients you will get by smart marketing by Burger Law.
We will again have two sessions, morning and afternoon. We will fill up – so register now. Three hours of MO CLE. Lawyers training lawyers to better serve clients.
Your Rights with Insurance Companies
Missouri and Illinois give claimants rights against insurance companies. And we need them to combat abusive adjusters. They have to:
- provide forms necessary to present claims with explanation of effective use of forms.
- make a bona fide effort to communicate with all insureds and claimants where liability is reasonably clear and maintain evidence of effort to communicate in the claim file.
- after affirmation of liability, tender payment for portions of the claim which are not in dispute and for which the payee is known.
- provide a reasonable and accurate explanation of the basis in the insurance policy or applicable law for such denial or compromise settlement.
- give third party claimants notice that the statute of limitations may expire and may affect claimants’ rights.
Two Car Crashes Within Days and an Underinsured Claim
What do you do? Join all cases in one lawsuit so the defendants cannot avoid responsibility. Then keep going. So blessed to help such a great person.
Thanks
November 21, 2016
Good morning Rita,
I am so thankful for Burger Law's first year of helping people with their legal claims. Specifically, I wanted to thank you for being a support of the firm. I hope you enjoy these emails I send a couple times a month sharing stories and lessons of my firm and the law.
Sometimes it can be hard to see all we have to be grateful for. We get caught up in our lives and are inundated with divisive political news. But take the time – the glass is (at least) half full.
Recently, I have had some great conversations with friends about the commonality and common issues that unite all us Americans. I am truly thankful for the great community we have. Too many times we focus on social media or sensationalizing news sources to demonize people with different political views than us.
But when we take the time to talk with friends or acquaintances with different political views we see we are more similar than we suppose. As we get older in life (I turned 50 last week) you learn that we are all the same. We may have different marginal beliefs, but we are all the same.
Happy Thanksgiving! Now to some legal news.
Great CLE – Register Now!
My firm is presenting another CLE on December 15, 2016 for lawyers to market and operate their business better in 2017. This is truly a unique opportunity to mix law and business.
Three presentations:
- LEGAL MARKETING: Market yourself and your law business. Two great MARKETING EXPERTS, Jim Hacking and Tyson Mutrux, teach how to efficiently, efficaciously and inexpensively get good cases.
- SOCIAL MEDIA 2017: DRIVE SOCIAL NOW will teach Social Media and trends for 2017 - 2020. Transform your social media in this truly unique opportunity.
- RESOLVE TO BETTER YOUR LAW BUSINESS: Eleven 2017 resolutions to better run your law firm and work the great clients you will get by smart marketing by Burger Law.
Three hours of MO CLE. Lawyers training lawyers to better serve clients.
Homeowners insurance recovery in $2 Million auto accident case
I work hard to be creative in finding insurance in all cases. We did "creative lawyering" relating to an old crash that left our client Connie Wills severely injured. In 2010, playground equipment fell from the back of a truck that was traveling ahead of her on Highway 270.
She swerved to avoid running into the playground equipment, but failed to do so. She hit the equipment, the median wall and then two other cars collided into her. She was severely injured.
We collected the insurance policy limits on the driver of the truck that dropped the playground equipment. But, we also collected the maximum allowable from the homeowners insurance.
We also obtained the policy limits from the homeowners and auto policy through the truck passenger, who was the driver's daughter. She was negligent because she was the one who had tied down the equipment in the back of the pickup truck and did a terrible job. The details of this settlement are here on our website and were featured in a Missouri Lawyers Weekly article.
Great Settlement last week!
I settled a case on Thursday November 17, 2016 at mediation. We had $5,000 in paid medical and settled the case for $26,000. We also had a significant settlement in medical payment benefits and were able to get our client a fantastic recovery. But what about med pay and health insurance liens? Click here for a little more.
CHANGES IN MED MAL CAPS COMING?
News sources are discussing coming legislative changes. Caps on damages for medical malpractice cases is a hot button issue- not only in Missouri, but other states as well. So if you have a valid medical malpractice claim in Missouri, what are the current limits on the damages which you are entitled to?
The 2015 bill SB 239 became law on August 28, 2015. The statute provides a limit of $400,000 in noneconomic damages for medical malpractice personal injury cases and a $700,000 limit on noneconomic damages for medical malpractice wrongful death cases. To view the law go here. However, the 1820 Missouri Constitution provides in Section 22(a) of Article I that "the right of trial by jury as heretofore enjoyed shall remain inviolate."
This proclamation has been interpreted by Missouri Courts as meaning that causes of action at common law are "not subject to legislative limits on damages." click here for the Supreme Court Watts opinion. Consequently, the caps which are established by statute do not apply to medical malpractice personal injury claims which are based on common law.
Because wrongful death claims did not exist at common law, it is safe to assume that the $700,000 cap on noneconomic damages for medical malpractice cases resulting in wrongful death is valid. A statutory cap placed on medical malpractice cases which are based on common law, however, likely violates the Missouri Constitutional right to a jury trial. To learn more about medical malpractice claims in Missouri we have extensive information available on our site here.
As caps on medical malpractice actions tend to fluctuate every now and then, whether we will see any politically driven changes from the incoming administration has yet to be decided.
Thanks.