Missouri Injury Lawyer Blog

A League City nursing home in Galveston County, Texas has been accused of wrongful death stemming from rampant neglect in the case of a 78 year old resident.

On March 4th of this year, Regal Care Center resident Rachel Mohr was heard shouting for help from her room. Staff found her on the floor of the room beside her bed, having apparently fallen. According to attorneys filing the suit, Mohr was alert and coherent, and very obviously and vocally in severe pain when she was discovered. She had struck, and was bleeding from, her head at the time of her discovery. Yet instead of sending her for medical care, orderlies placed her back in the bed and left her there. A later checkup found her unconscious and unresponsive. At this time, orderlies sent her for medical treatment to a nearby facility where she later died.

The facility where Mohr died is unclear, and attorneys filing the suit on behalf of Mohr's family were unsuccessful in getting this information. They mention this in the suit as part of the grievances against the Regal Care Center.

The suit maintains that a number of factors were the cumulative cause of Ms. Mohr's death. Mohr was classified as a high fall risk, yet the prescribed precautions for her were not taken. These would have included a low-level bed and floor mats, as well as a fall alarm that would alert staff to a predicament much sooner. None of these things were provided. The suit maintains that the staff at Regal Care Center were not adequately trained, nor properly educated as to Mohr's particular situation and needs.

Exacerbating the situation, the facility has refused to honor no less than ten requests by Mohr's family for her medical chart. They claim that the chart is with their attorney, and they further refuse to release the attorney's contact information, so the family is currently unable to retrieve her records. This has worried attorneys for the family, who are asking a judge for a restraining order to prevent the facility from attempting to destroy Mohr's records. A hearing on the matter was to be held earlier this month.

As a St. Louis car accident attorney, I sometimes handle cases in which just one half of a couple was injured, but both people make injury claims. This is possible because the law allows the non-injured person in a marriage to make a claim for loss of consortium — broadly, loss of the injured spouse’s services, companionship and more. Of course, such a claim cannot exist without an injury to the spouse, and it generally follows an injury claim of some kind by the spouse, so both are suing the same at-fault parties. That was the case in Voris v. Molinaro, a Connecticut Supreme Court case in which John Voris claimed loss of consortium after an injury to his wife, Joan Voris, by driver Peter Molinaro. The high court ruled that because Joan Voris settled her injury claim, a loss of consortium claim alone by John Voris could not stand.

The Vorises were together when Molinaro hit the passenger side of their vehicle, causing back and spine injuries to both people. The injuries to Joan Voris are more severe and painful, leaving her bedridden at times and unable to function normally. The couple sued Molinaro, each alleging a count for their own injuries and each alleging loss of consortium. Joan Voris settled both of her claims about four and a half years after the accident, and withdrew them from court as is standard in settlements. John Voris also withdrew his injury claim, but left the loss of consortium claim in place. Molinaro moved to strike that last count and the trial court granted it, relying on a 1979 Connecticut Supreme Court case, Hopson v. St. Mary’s Hospital, to conclude that John Voris could not pursue his claim after Joan Voris dismissed hers. John Voris appealed.

Before the Connecticut Supreme Court, Voris argued that loss of consortium is a separate cause of action that should stand on its own. Hopson is dicta and not binding, he argued, and suggested extrajurisdictional cases on which the court could rely. The high court was not impressed. In Hopson, it said, it had reversed a 1911 rule that disallowed any loss of consortium claim at all. The opinion considered but rejected the possibility that allowing loss of consortium would allow double recoveries, expressly saying loss of consortium is barred when the injured spouse’s case has been settled or lost. While this was dicta, the court said, numerous cases since have followed its guidance. It cited “strong policy” reasons for its holding, including the possibility of overlapping damages; the status of loss of consortium as a derivative claim; and the interests of efficiency. Thus, it upheld the trial court’s decision to strike.

I am not aware of any similar decision here in Missouri. But as a Missouri auto accident lawyer, I am aware of a recent Eighth Circuit case that linked the amount of the damages for the loss of consortium claim to those for the underlying claim. In that case, Kingman v. Dillard’s, the wife had been injured by a falling rack in a Dillard’s department store and permanently injured her shoulder. While the injury was not severe, it compromised her ability to care for her quadriplegic husband, who required help bathing, dressing and turning over to avoid bedsores. The Eighth Circuit ultimately found that Missouri law would not allow the husband to claim the money for a full-time caregiver because the wife’s injury award was much smaller. As a southern Illinois car wreck attorney, I wouldn’t be surprised to learn that Missouri will also not allow loss of consortium claims separated from the spouse’s underlying injury claim.

Continue reading "Loss of Consortium Claims Barred When Underlying Claim Is Settled, Court Rules – Voris v. Molinaro" »

The wife of Edward Packard of Cleves, Ohio filed a wrongful death suit in the state of Nebraska on behalf of her deceased husband. Her suit blames several people putting on a tractor pull, and a former police officer for the death of her spouse.

Mr. Packard was killed while riding his motorcycle when he struck the side of a truck which had been traveling in the opposite direction but then made a left turn directly in front of him. Packard, 64, was thrown from the motorcycle and died quickly from injuries sustained in the accident. The truck was driven by Steven Darveau Jr., a former police officer.

Darveau was driving to attend a tractor pull being put on by the local Jaycees. It is unknown if Darveau was still employed as a police officer at the time of the accident, as records appear to conflict at this time.

An accident report at the scene filed by a local county sheriff indicated that the police suspect alcohol intoxication played a role in the accident. However, the former officer, who worked for two separate police organizations, has not been charged with a crime. The local prosecuting attorney claims to be investigating the case to determine if charges are warranted.

Diane Packard, unsatisfied with this investigation, filed a wrongful death claim against not only Darveau, but also CJS Entertainment which owns the venue at which the tractor pull was to be held, and the Falls City Area Jaycees who were hosting the event. Packard's suit states that unlike previous events, despite knowing traffic to be heavier during such tractor pulls, neither the Jaycees nor local law enforcement were directing traffic in a manner to allow for the increased congestion. This was compounded by the fact that traffic was being diverted from another local road due to heavy flooding.

The suit also alleges that Darveau was negligent in not yielding to an oncoming vehicle, making an unsafe left turn, and for failing to take actions to avoid the accident.

One truism of my work as a Missouri injury lawyer is that most of the time, people injured at work may not sue their employers. Most workplaces are covered by workers’ compensation laws, which means the exclusive remedy for such people is to claim workers’ compensation payments. This can cause fights with insurance companies, but it may allow workers to get compensation without filing a lawsuit. However, when the workplace injury happened on the premises, or because of the actions, of a third party, workers may be able to sue instead of or in addition to claiming compensation. That was the situation in Howsden v. Roper’s Real Estate Co., in which Darlene Howsden was injured at her workplace. The premises were not owned by her employer, but a related entity, and the Nebraska Supreme Court ruled Howsden may sue that entity.

Howsden worked at a funeral home that was purchased by Roper & Sons Inc., another funeral home. For business and tax purposes, all real estate operated by Roper & Sons is owned by Roper’s Real Estate Company. Howsden’s workplace was in an older building, which had an old-fashioned elevator that connected two hallways on the same floor. The elevator was rarely used to travel between floors, but employees would use it to move between the two hallways. Howsden was seriously injured after she entered the elevator, expecting it to be on her floor, and fell through the empty shaft to the basement. She successfully claimed workers’ compensation benefits through the employer’s insurer, which covered her employer, Roper & Sons and Roper’s Real Estate. She then filed a lawsuit alleging that negligence by Roper’s Real Estate caused the injury. The trial court ultimately granted Roper’s motion for summary judgment, finding that Howsden’s exclusive remedy was workers’ compensation

On appeal, the Nebraska Supreme Court reversed that decision. Howsden’s cse presents an unusual situation because her employer was not Roper’s Real Estate, the defendant — it is Roper & Sons. Roper’s argued that the entities should be considered under the dual capacity or dual persona doctrines. Those doctrines are not applicable, the court said, because the two Roper entities are not the same company — they are separate legal entities that have the same board of directors. Indeed, it noted, courts in many other jurisdictions have declined to collapse this kind of separate legal entity format into one entity for workers’ compensation purposes. “One cannot claim the benefits of incorporation without the burdens,” the court noted. Furthermore, courts have generally declined to pierce the corporate veil except in cases of fraud, and the Nebraska Supreme Court agreed. Thus, it reversed the lower court and remanded the case.

As a St. Louis personal injury attorney, I appreciate that the high court declined to protect the company from litigation in a situation that would offer zero protection to another separate entity. As the court noted, the benefits of incorporating separately come at the price of the responsibilities and liabilities of the separate entity. This situation may be more common than employees think, since it’s not uncommon to have different legal entities operating different parts of what looks on the outside like the same business. This offers more opportunities for relief to people who are injured on the job, since workers’ compensation can be difficult to claim when the employer or its insurer won’t play fair. Workplace injury lawsuits like Howsden’s are simpler to pursue with the help of an experienced southern Illinois accident lawyer, even if they are more time-consuming by design.

Continue reading "High Court Finds Worker May Sue Company Related to Her Employer After Injury – Howsden v. Roper’s Real Estate Co." »

The family of a man who died during an operation to remove a surgical sponge left inside him after a previous procedure has filed a wrongful death suit in district court in Iowa.

Aldrick Kneppe, 89, died three days after the first surgery in Waterloo, Iowa. The original procedure was for a heart bypass and heart valve replacement. After that procedure, when it was discovered that a sponge had been left inside him during the surgery, he was scheduled for a surgery to remove it. During this second surgery, severe bleeding and other complications led to his death.

The combination wrongful-death and medical malpractice suit names Dr. James Wright III, Allen Hospital and Cedar Valley Medical Specialists as defendants in the case. The defendants have stated for the record that they believe they are not to blame, and that Kneppe actually died from several pre-existing conditions rather than as a result of the sponge and the surgery to remove it.

Leaving foreign objects in a patient following a surgery is rare. Procedures exist to prevent such an occurrence. One such procedure is a sponge count, in which the number of sponges available for a procedure is prescribed ahead of time, and this number is supposed to be verified following the procedure. Other steps such as XRays and other screening methods can severely reduce the risk of such an occurrence happening. In the cases where such an event is missed, however, the consequences can be grave, up to and including the risk of severe infection that can itself cause death.

According to a 2003 study, approximately 1,500 cases of surgery a year in the United States result in a sponge left in the patient's body. Nearly 88% of such cases were determined to be the result of an improper sponge count following the procedure.

No dates have yet been set for the suit.

As a St. Louis car crash attorney, I like to warn my clients early and often that their insurance companies do not have their best interests in mind. Auto insurance is more profitable when insurers pay less in claims, and that means lowballing or denying claims whenever they believe they can. Sometimes, this is taken so far that it actually breaches the contract between the insurer and the insured, requiring a lawsuit to settle the claim. In Adams v. King et al, the lawsuit eventually created no fewer than three appellate court decisions, all filed by the insurance company seeking to avoid paying benefits. David, Landon and La Crysta Adams were hit by an at-fault driver and their insurer, Shelter Mutual Insurance Co., declined their uninsured motorist claim. In this decision, the appeals court reiterated that Shelter Mutual must pay the claim and denied it appeal of the “stacking” of insurance policies.

The opinion by the Missouri Appeals Court did not go into the facts of the crash, possibly because this was the third time the case had been before it. The first time, the appeals court reversed a grant of summary judgment to Shelter Mutual, finding that the at-fault driver had been driving an uninsured vehicle within the policy’s meaning. In the second appeal, the court reiterated that the Adams family was entitled to a declaratory judgment on the uninsured motorist claim, but sent the case back for resolution of breach of contract and vexatious refusal claims. In this appeal, the third, the appeals court declined to revisit the issue further, citing the law of the case doctrine without further comment.

The appellate court spent more time on the insurance company’s second point, which challenged the trial court’s decision to allow the family to stack its three insurance policies. Under “stacking,” insurance policy holders apply more than one policy to the same incident, allowing them to collect the maximum from each policy as long as all the policies apply to the situation. The facts of the case have been stipulated, the court noted; the dispute is a matter of law. Under Missouri caselaw, the court said, Missouri clearly allows stacking, and Shelter Mutual’s argument that caselaw creates a cap is erroneous. Shelter Mutual also argued that the policies’ language required the trial court to set off part of the payment to compensate for a payment by the negligent driver’s insurance company. The trial court ruled against the insurer on this, finding that the language of the policy was ambiguous as to what constitutes “damages.” Missouri law construes ambiguity in insurance contracts against the insurer, the court noted, and the victims’ “damages” were in any case well over the $200,000 limit of the stacked policies. Thus, the appeal was denied.

As a Missouri auto accident lawyer, I applaud the appeals court’s decision. Although I would have liked to understand the details of the case, it’s clear enough that Shelter Mutual was trying hard to avoid paying the uninsured motorist claim, even in the face of two different appellate decisions requiring it to pay. The court mentions offhand that the Adams family’s damages were well in excess of the $200,000 they will (hopefully) receive under the stacked policies, and presumably also the payment that the at-fault driver’s insurance company made. This likely means they suffered serious injuries and genuinely need that money to pay medical costs or replace lost income. It’s not unusual for people who suffered a serious car wreck to find themselves struggling financially as a result, with high medical bills rolling in and disabilities keeping them out of work. That’s often why accident victims seek out a southern Illinois car accident attorney, to help them pass the costs on to the negligent person who caused them.

Continue reading "Missouri Appeals Court Denies Insurers Third Attempt to Avoid Uninsured Motorist Claim – Adams v. King" »

On Monday, November 7, a second family filed a wrongful death lawsuit in the Seal Beach Shooting case. Last month a Huntington Beach resident entered a Seal Beach hair salon and opened fire. He ultimately hit nine people in his attack, eight of whom died as a result.

The suit was filed on behalf of the family of Christy Lynn Wilson, a 47 year old resident of Lakewood, CA. The primary plaintiff in the case is Wilson's husband, Paul Wilson. Christy Wilson was one of the 8 people killed by Scott Dekraai on his October 12th rampage. Authorities have said that the shooting was apparently the end result of a bitter custody battle between Dekraai and his wife over their son, Dominic, 8 years old. His wife, Michelle Fournier, was one of those killed. The first wrongful death suit filed in this case was filed by Fournier's parents. That suit also named Dominic as a plaintiff.

Paul and Christy Wilson's three children are also named as plaintiffs in the Wilsons' wrongful death case. "As a direct and proximate result of the negligence, carelessness, recklessness, wantonness and unlawfulness of (Dekraai) ... (Wilson's husband and children) have been deprived of the care, society and comfort of (the victim)," stated the Wilsons' filing.

The case brief also went on to say, "During the massacre, (Dekraai) shot and killed eight people. One of those people was Christy Lynn Wilson ... Ms. Wilson and plaintiff, Paul Wilson had been married for over twenty years and had three children together, Kielynn, Konner and Kaesen, ages 22, 20 and 17."

Both lawsuits are apparently seeking unspecified levels of damages, as well as the wrongful death judgment itself. The damages named, while not specified in amount, include funeral and burial costs, and will possibly include counseling costs for the surviving children.

Mass murder cases, where multiple victims are killed in a sudden attack, are often very traumatic to a great many individuals, and it can be expected that more such suits will be filed soon.

Insurance coverage disputes come up frequently in my work as a St. Louis car crash lawyer. Insurance companies exist to make money, like all businesses, and part of the way they do that is by limiting the amount of money they pay to their insureds after an accident creates an insurance claim. Sometimes, this even leads to the insurance company denying coverage it’s required to provide under its own policy. This is a form of breach of contract called insurance bad faith, and insurance clients can and should protect their rights with a lawsuit when they are unfairly denied coverage. Lero v. State Farm Fire and Casualty Co. was an insurance bad faith claim that found its way to the Missouri Court of Appeals. The Leros sought to collect for an uninsured motorist claim on an umbrella insurance policy, but the appeals court found no right to coverage.

Paul and Carolyn Lero are the parents of Denise Greene, who died in October of 2008 when a drunk driver crossed a median and hit her car head-on. They successfully sued the owner of the driver’s car and received a $2 million judgment, but that insurance company denied coverage. The Leros then turned to Greene’s uninsured motorist coverage, which paid the policy limit of $50,000. They attempted to also collect on an umbrella policy Greene had, but State Farm denied that the policy covered accidents with uninsured motorists. The Leros sued State Farm for breach of contract, arguing that the umbrella policy was intended to provide excess coverage over Greene’s auto insurance and also that the uninsured motorist coverage was a prerequisite to the umbrella coverage. After striking several defenses State Farm raised as new defenses, the trial court granted summary judgment to the Leros, and State Farm appealed.

The Court of Appeals reversed, ruling that the stricken defenses were ultimately determinative of whether there was uninsured motorist coverage available. The trial court had found State Farm was estopped from arguing that its only coverage was that listed in a specific place, and that the Leros were impermissibly attempting to shift the burden of proof when they argued that uninsured motorist coverage was not excluded. On the first point, State Farm argued on appeal that estoppel was inappropriate; on the second, that striking the defense essentially created the coverage the Leros sought. The appeals court found that the Leros failed to establish true inconsistency between the initial denial and the later defenses, and therefore that State Farm should not have been estopped from using them. State Farm cited the policy in its denial letter and enclosed the relevant section of the policy. The company consistently asserted this later, it added. Because estopping this defense was inappropriate and created new coverage, the appeals court reversed the summary judgment for the Leros and entered it for State Farm.

As a southern Illinois auto accident attorney, I am disappointed by this ruling. When a family member dies through no fault of her own, families are understandably upset, and pursuing justice through the civil court system may be their only option. It’s disappointing that after the Leros pursued their case through at least three different courts, they were ultimately able to collect only a small part of their $2 million judgment. It would be interesting to know why the family did not pursue coverage from the insurance companies of the at-fault driver and that car’s owner (different people). As an experienced Missouri car wreck lawyer, I would not be surprised to discover that the at-fault driver, who was drunk, was not insured in the first place. This underscores why it’s so vital to buy uninsured motorist coverage — so in the event of a catastrophic crash, you have at least some compensation.

Continue reading "Missouri Court of Appeals Reverses Uninsured Motorist Decision in Fatal Auto Accident – Lero v. State Farm Fire and Casualty Co." »

Oral arguments have begun for both sides of a wrongful death suit in the Fifth District Appellate Court at the Southern Illinois University School of Law. In their arguments, counsel for the defendant, William R. Barham, made an appeal for the court to overturn a ruling granting the plaintiffs one million dollars for the family of Jeremy Isom. In 2010, a Saline county court made the award regarding a wreck that led to Isom's death.

The initial judgment was based on the assertion that Barham was driving the vehicle that struck Isom. Barham had received both aggravated DUI and reckless homicide convictions in 2001.

However, Barham argues that these charges were overturned in 2003, with a judge ruling that it was unclear that Barham was either driving his state-owned vehicle at the time, or that he was intoxicated. Further, Barham's defense team argued that certain statements Barham had made to officials and hospital workers following the accident were invalid, because at the time he had requested and not yet received an attorney. By allowing testimony from these statements into the record, the Saline county decision prejudiced the case against Barham.

The attorney representing the plaintiffs dismissed these claims as nonsense, asserting firmly that there was no error in the facts presented, and certainly no prejudice in bringing up the statements that Barham had made. The issue at stake is partially due to the fact that civil and criminal courts have very different standards of admissible evidence. Civil cases often accept more information into evidence than criminal trials, a circumstance that, for example, led to OJ Simpson's acquittal in his criminal case, but a judgment against him in the civil case regarding the same murder.

Judges at the circuit court listened to a total of 40 minutes of testimony from each side in the case. The court said it would retire to consider the matter under advisement, and did not give any timeline for themselves to reach a decision.