Personal Injury From A to Z

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Personal Injury From A to Z

Authors

Marcos A. Barbosa Kutak Rock LLP Kansas City, MO

Chelsea E. Dickerson

Dickerson Oxton, LLC Kansas City, MO

Steven B. Garner

Strong-Garner-Bauer, P.C. Springfield, MO

John J. Gates

Baty, Holm, Numrich & Otto, PC Kansas City, MO

John L. Hayob

Brown & Ruprecht, PC Kansas City, MO

William K. Holland Holland Injury Law

Clayton, MO

Robert J. Kasieta Kasieta Legal Group, LLC

Madison, WI

Robert D. Kingsland Jr. Dempsey and Kingsland, P.C.

Kansas City, MO

Jane Ann Landrum Evans & Dixon L.L.C.

Kansas City, MO

Authors (Cont.)

Michael J. Mohlman Smith Mohlman Injury Law, LLC

Kansas City, MO

Lisa A Pake Haar & Woods LLP

St. Louis, MO

Eric S. Playter Playter Trial Lawyers

Lee's Summit, MO

Presenters

MARCOS A. BARBOSA is of counsel in the Kansas City office of Kutak Rock LLP. Mr. Barbosa has been involved in various areas of practice, with emphasis placed in the areas of product liability, general civil and commercial litigation, as well as toxic tort litigation. He is admitted to the Supreme Court of Missouri, U.S. District Court for the Western District of Missouri, Supreme Court of Kansas, U.S. District Court for the District of Kansas, U.S. District Court for the Southern District of Illinois, U.S. Court of Appeals for the Eighth Circuit, U.S. Court of Appeals for the Tenth Circuit, and U.S. Court of Federal Claims. Mr. Barbosa is a member of the American, National, Kansas, Jackson County and Kansas City Metropolitan bar associations; and the Missouri Organization of Defense Lawyers. He earned his B.A. degree from Mid-America Nazarene University and his J.D. degree from the University of Kansas School of Law. Mr. Barbosa is fluent in Portuguese and proficient in Spanish.

CHELSEA E. DICKERSON is a partner with Dickerson Oxton, LLC where she has represented numerous individuals in car accidents, slip and falls, product liability, medical malpractice, nursing home, and dog bite cases. Ms. Dickerson is admitted to practice in Missouri and Kansas and before the U.S. District Court, District of Kansas. She is a member of the Kansas, Johnson County, and Kansas City Metropolitan bar associations; The Missouri Bar; the Kansas Association for Justice; and the American Association for Justice. Ms. Dickerson earned her B.A. degree, magna cum laude, from Valparaiso University and her J.D. degree from Creighton University School of Law.

STEVEN B. GARNER is a shareholder and officer of Strong-Garner-Bauer, P.C. where he tries personal injury, wrongful death and product liability suits on behalf of injured parties all over the country. Mr. Garner is admitted to practice in Missouri and Arkansas, and before the U.S. District Court, Western District of Missouri; U.S. Court of Appeals, Eighth Circuit; and the U.S. Court of Federal Claims. He has served as president (2013-2014) and has been on the Board of Governors for more than 20 years of the Missouri Association of Trial Attorneys and the Springfield Metropolitan Bar Association (past Board of Directors, past president-elect, and Past President). Mr. Garner is also a member of the International Academy of Trial Attorneys, the American Board of Trial Advocates, the American College of Trial Lawyers, Trial Masters, The National Association of Distinguished Counsel, Missouri/Kansas Super Lawyers Top 100 (2005-present), Missouri/Kansas Super Lawyers Top 10 (2012-present), and the Medical Malpractice Trial Lawyers Association (2014-present). Mr. Garner is listed in Best Lawyers in America® (2013-present) and was named Best Lawyers' Lawyer of the Year, personal injury litigation - plaintiffs, Springfield, MO, 2011 and 2012 and 2015. He earned his B.A. degree from Baylor University, graduating with high honors. He graduated number one in his class from the University of Arkansas School of Law.

Presenters (Cont.)

JOHN J. GATES is a partner with Baty, Holm, Numrich & Otto, PC, where he practices in the areas of commercial and personal injury litigation, corporate law, and insurance litigation. He has tried several high-exposure jury trials in Missouri and Kansas, including two of the largest defense verdicts in Missouri. Mr. Gates has obtained dismissals in large-loss personal injury and commercial litigation cases, and he also prosecutes business tort, non-compete, and injunctive relief claims. In addition to his litigation practice, he represents several small businesses in routine corporate, employment and risk management matters. Mr. Gates routinely speaks at continuing legal education seminars on trial tactics and civil procedure. His article, "25 Questions Before Enforcing a Non-Compete," was recently published by US Law Magazine. He earned his B.A. degree from Vanderbilt University and his J.D. degree from the University of Kansas School of Law. Mr. Gates is a member of The Missouri Bar, and the Kansas and Kansas City Metropolitan bar associations.

JOHN L. HAYOB is a shareholder in the Kansas City law firm of Brown & Ruprecht, PC, where he practices in the areas of insurance and coverage litigation, civil litigation and torts. He was selected for inclusion in Missouri and Kansas Super Lawyers (2008-2011). Mr. Hayob regularly participates in seminars and presentations involving insurance related issues before professional and industry groups. He is a member of the Kansas City Metropolitan and American (Tort and Insurance Practice Section) bar associations, The Missouri Bar, and the Missouri Organization of Defense Lawyers. Mr. Hayob is a past president of the Kansas City Claims Association. He earned his A.B. degree from Rockhurst College and his J.D. degree from the University of Missouri at Kansas City. Mr. Hayob also has a mediation certification from the University of Missouri-Columbia School of Law.

ROBERT D. KINGSLAND JR. is a founding partner in the law firm of Dempsey and Kingsland, P.C., in Kansas City, Missouri. Mr. Kingsland's practice is limited to medical negligence, catastrophic injury, products liability, auto collision, and other serious personal injury cases. A frequent speaker on topics related to civil trial practice, Mr. Kingsland has also published various articles on trial advocacy. His peer-reviewed article, "Gallbladder Surgery Gone Wrong-Handling the Bowel Perforation Case" appeared in the October 2014 issue of the nationally-circulated magazine Trial. Mr. Kingsland is an associate member of the American Board of Trial Advocates. He has also been selected for membership in Superlawyers of Missouri and Kansas. He is a long-standing member of the Board of Governors of the Missouri Association of Trial Attorneys and a former board member of the Jackson County Law Library. Mr. Kingsland is licensed to practice in both Missouri and Kansas, and he is a member of the bar of the United States Supreme Court, among many others. Mr. Kingsland earned his B.A. and J.D. degrees from Georgetown University.

Presenters (Cont.)

JANE ANN LANDRUM is a member of Evans & Dixon L.L.C. where her emphasis is civil litigation, with jury trials and dispositive motions in both state and federal courts in Kansas and Missouri. Ms. Landrum's primary areas of practice are complex tort litigation, business liability, insurance coverage, HOA, construction defect and premises liability law. She is admitted to practice in Missouri and Kansas. Ms. Landrum is a member of The Missouri Bar, Kansas Bar Association, and the Kansas City Metropolitan Bar Association. She earned her B.A. degree from Graceland University, her J.D. degree from the University of Denver, and her L.L.M. degree from the University of Missouri.

MICHAEL J. MOHLMAN is an attorney with Smith Mohlman Injury Law, LLC, where he focuses his practice on the areas of plaintiff's personal injury, auto accidents/truck wrecks, and nursing home negligence. He has litigated in Missouri, Kansas, Colorado, Illinois, Texas, California, Massachusetts and Wisconsin. Mr. Mohlman is the former chair of the Kansas City Metropolitan Bar Association's Nursing Home Negligence Committee, and former president of Missouri Watch, a consumer rights organization dedicated to protecting the rights of individuals from wealthy special-interest lobbies. He is a member of the Kansas City Metropolitan Bar Association, The Missouri Bar, the Kansas Bar Association, the Missouri Association of Trial Attorneys, and the American Association for Justice. He wrote The Missouri Bar Civil Procedure Deskbook chapters on interrogatories and depositions, requests for production of documents, and requests for admission. Mr. Mohlman earned his B.A. degree from Harvard University and his J.D. degree from the University of Kansas Law School.

ERIC S. PLAYTER is an attorney with Playter Trial Lawyers, where he practices in all areas of civil litigation, with a focus on serious personal injury, wrongful death and employment discrimination. Mr. Playter earned his bachelor's degree from the University of Missouri at Columbia and his Juris Doctorate degree from the University of Missouri at Kansas City. Following law school, he began working at a large downtown Kansas City defense firm where he honed his talents and skills representing individuals, businesses and insurance companies in various matters, including contract disputes, professional negligence, employment discrimination, defamation, fraud, negligent misrepresentation, bad faith and other liability claims. This experience provides him with unique insight as to how companies operate, perceive those that have been injured, and try to avoid paying throughout the claim, lawsuit and trial processes. Mr. Playter's practice is now dedicated almost exclusively to representing individuals who have been injured - or experienced other catastrophic loss and damage - as a result of others' negligence. He is a member of The Missouri Bar and the Kansas City Metropolitan Bar Association.

Presenters (Cont.)

ELIZABETH RAINES is of counsel with Hughes Hubbard & Reed LLP where she focuses on complex litigation, trials and appeals. Ms. Raines applies her extensive experience in state and federal district and appellate courts to litigate, manage, resolve, and try commercial, employment, statutory, and tort claims of all types for clients in multiple industries. Much of her work over the years has involved challenging medical, scientific and technical issues, regulations and standards. She has prepared, presented and examined scores of witnesses with medical, scientific and technical expertise. Ms. Raines has served on national, regional and local defense and trial teams for multiple mass and class actions. She served as a law clerk to the Honorable Stephen N. Limbaugh, Jr. after law school. Ms. Raines also has several years of experience as a creative professional in the advertising industry, where she honed business, communication and presentation skills of great value to her work today. She is admitted to practice in Kansas, Missouri, and Texas; and before the United States District Court for the Western District of Missouri, Eastern District of Missouri, and District of Kansas; and the United States Court of Appeals for the Tenth Circuit. Ms. Raines earned her B.A. degree from Southern Methodist University and her J.D. degree from Southern Methodist University Dedman School of Law.

Table Of Contents

Fundamentals of Local Procedure

Submitted by Chelsea E. Dickerson

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Fundamentals of Local Procedure

I. Key Personal Injury Statutes

Below is a listing of some important statutes to keep in mind in working on personal injury cases. These include statutes that provide for rules in pursuing liability, and those that limit your client’s ability to pursue certain damages or that cap damages to a certain amount depending on the case type.1

a. Statutes Providing for Liability:

Some examples of statutes that provide for liability in different types of personal injury cases are:

1. Missouri and Kansas Rules of the Road

RSMo. § 304.001, et seq., and K.S.A. § 8-1501, et seq., set forth rules of the road drivers should follow in each respective state. Reviewing these can be good practice in preparing to file a petition, before deposing an at-fault driver/defendant, and before trial.

2. Dog Bite Liability Statutes a. MO Strict Liability Dog Bite Statute

RSMo. § 273.036 provides for strict liability in dog bite cases in Missouri where the defendant owns the dog at issue, and the bite occurred without provocation. This rule is applicable for bites that occur both on public and private property, the latter if the person bitten was lawfully on the property (i.e., not a trespasser).

Still remember and consider facts that can give rise to pursuing a separate negligence claim. This can be anything showing the owner failed to exercise reasonable care or failed to prevent foreseeable harm (exs: failure to properly restrain dog, keep on leash, dog at large, failure to keep a proper fence in the yard, failure to immunize the dog, etc.).

For dog bite cases that occur in Kansas, while there is no statute imposing strict liability on a dog owner for dog bites, strict liability is available under case law if it can be demonstrated that the dog owner knew or had reason to know the dog had dangerous propensities even if the owner exercised the utmost care to prevent it from doing the harm. See Carr v. Vannoster, 48 Kan. App.2d 19, 29 (Kan. Ct. App. 2012) (citing Restatement (Second) of Torts § 509(1)). This prior notice can certainly be proven when the owner is aware of a prior bite or attack. However, knowing of a dog’s prior vicious propensities is not limited to a prior attack or bite occurring. If an attack almost occurred, or complaints were made about the dog being vicious towards neighbors, these facts could impart liability. Kansas courts have also previously discussed the applicability of failure to prevent foreseeable harm in considering animal bite cases. In Gardner, the Kansas Supreme Court noted that an owner of a domestic animal should “realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances” and should

1 Statutes concerning pleadings, motion practice, and discovery are discussed on below on pages 7-8 of these materials.

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exercise reasonable care to prevent foreseeable harm. Gardner v. Koenig, 188 Kan. 135, 138 (citing the Restatement (Second) of Torts § 518, comment (g)).

b. Statutes Limiting Damages: 1. RSMo. § 303.390 – This statute prevents a claimant from being able to pursue

non-economic damages if he did not have car insurance for the vehicle he was driving at the time of the wreck.

a. Exceptions: i. If your client’s coverage was terminated or non-renewed for failure

to pay the premium within 6 mos. prior to the wreck; ii. If you can prove the other driver has a DUI in connection with

collision; or iii. If the other driver was convicted of involuntary manslaughter in

connection with collision. b. Also does not apply to passengers.

2. KS equivalent – K.S.A. § 40-3130 – This statute says a client cannot recover non-economic damages if he did not maintain PIP coverage on the vehicle he was driving and was, in effect, operating an uninsured vehicle at time of wreck.

a. Exceptions: i. If it can be proven by clear and convincing evidence the driver did

not knowingly drive an uninsured vehicle; or ii. If the claimant had coverage within 45 days of the wreck, and had

maintained continuous coverage for at least 1yr prior to failure to maintain coverage.

3. K.S.A. § 40-3117 - 2k medical bill threshold

a. Cannot pursue non-economic damages if medical treatment does not have a reasonable value of $2k or more

b. Some exceptions (permanent disfigurement, fracture to weight-bearing bone, loss of body part, death, etc.)

4. Caps on Damages:

Several statutes in Missouri and Kansas limit the amount of non-economic damages that can be obtained, depending on the type of case:

1. Missouri: No cap on non-economic damages for personal injury cases, other than Medical-Malpractice claims (including wrongful death medical malpractice claims).

a. For Med-Mal Claims in Missouri: RSMo. § 538.210 states that for claims arising on or after August 28, 2015:

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i. Cap of $700,000.00 for non-economic damages for claims resulting in death or “catastrophic” injury.2

ii. Cap of $400,000.00 for non-economic damages for all other med-mal claims (those not involving death or “catastrophic” injury).

1. The $400,000.00 and $700,000.00 caps will increase on January 1 of each year by one and seven-tenths percent.

2. Kansas: Non-Economic Damages in all Personal Injury cases are capped as follows, which is dependent upon the date the cause of action accrues:

a. Cause of action accrues on or after July 1, 2014 to June 30, 2018 - $300,000.00 Cap on Non-Economic Damages.

b. Cause of action accrues on or after July 1, 2018 to June 30, 2022 - $325,000.00 Cap on Non-Economic Damages.

c. Cause of action accrues on or after July 1, 2022 - $350,000.00 Cap on Non-Economic Damages.

K.S.A. § 60-19a02(b); see K.S.A. § 60-1903 (discussing damages caps in wrongful death cases in KS).

c. Other Key Statutes:

i. Medical Bill Issues: 1. MO Paid Med Statute – RSMo. § 490.715

This statute states that a party may introduce into evidence at trial the “actual cost of the medical care or treatment” rendered to a plaintiff. The “actual cost of the medical care or treatment” is defined as the amounts paid to a healthcare provider plus any remaining amount necessary to satisfy the financial obligation for medical care or treatment after adjustment for any contractual discounts, price reductions, or write-offs.

a. KS equivalent – Martinez v. Milburn, 290 Kan. 572 (Kan. 2010). Key questions is what is the reasonable value of medical services, which is a question of fact for the jury to decide.

2. MO Medical Bill Reductions – RSMo. § 430.225(3). 3. KS Hospital Lien Statute – K.S.A. § 65-406 – A hospital lien is fully

enforceable if the amount of the lien is $5,000.00 or less. If the amount is over $5,000.00, the lien is only enforceable to the extent that its enforcement constitutes an equitable distribution of a settlement or judgment under the circumstances.

2 “Catastrophic personal injury,” is defined as six different categories of injuries, summarized as follows: 1) quadriplegia, 2) paraplegia, 3) loss of two or more limbs, 4) brain injury resulting in permanent cognitive impairment affecting activities of daily life or ability to make decisions, 5) injury causing irreversible failure of one or more major organ systems, and 6) vision loss of more than 20/200 in the “better eye with the best correction.” RSMo. § 538.205.

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Declaratory Judgment Actions on Medical Bills: Consider declaratory judgment actions against medical providers, particularly in Kansas, to finalize large bills and obtain reductions where providers will not agree to reductions. This is especially useful in cases where medical bills are high, injuries are severe, and recoveries were not always high due to low policy limits.

ii. UM/UIM Statutes – Car Wreck Cases: 1. Vexatious Refusal to Pay:

a. RSMo. § 375.296 – i. Insurer refuses to pay for 30 days after demand deadline

ii. Refusal was vexatious and without reasonable cause iii. Can allow for additional damages under RSMo. § 375.420

1. Failure of insurer to appear and defend in lawsuit = prima facie evidence was vexatious w/o reasonable cause

b. RSMo. § 375.420 – i. If it appears from the evidence the ins. co. has refused to

pay the loss without reasonable cause or excuse ii. Provides for damages not to exceed 20% of the first

$1,500.00 of the loss, plus 10% of the amount of the loss in excess of the first $1,500.00.

iii. Plus reasonable attorney’s fees 1. Come out and say the ins. co. made an

intentionally-low offer out of court to force Plaintiff to file a lawsuit to recover full and fair damages

2. Can be more egregious in cases where coverage is denied (Exs – partial premium payments, backdating by the ins. co. on cancellations, representations of coverage then denial on the claim, etc.)

iii. Wrongful Death Cause of Action 1. Missouri Cases - see RSMo. §§ 537.080 – 537.095 – of note in these

statutes –

RSMo. § 537.090 discusses damages that may be pursued in a wrongful death case. The jury may award such damages it deems fair and just due to the death and loss sustained. This includes economic damages suffered by reason of the death (medical bills, funeral expenses), plus the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support those bringing the suit have been deprived of because of the death. For minor children decedents, there is a rebuttable presumption that the annual economic loss suffered by reason of the death is calculated based on the annual income of the decedent’s parents. If both parents made income, then the loss is calculated by averaging their two annual incomes.

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2. Kansas Cases – K.S.A. § 60-1901 – 60-1906 – of note in these statutes –

K.S.A. § 60-1904 sets forth the type of damages one can pursue in a wrongful death case. That list is not exhaustive. Any verdict in a wrongful death case must be itemized to show what was awarded for – 1) non-economic damages, 2) expenses for the care of the deceased caused by the injury, and 3) economic damages (other than those itemized for care of the deceased caused by the injury)). K.S.A. § 60-1903.

II. Case Intake, Evaluation and Investigation

Evaluating a potential client and his case from the moment he calls your office is critical in ensuring your office does not waste time in taking cases you normally would not accept or which have issues that make it impossible to obtain a recovery.

a. Evaluating the Client & the Case

A client or potential client should be evaluated on whether he will present well to a jury, whether there are basic facts to establish liability, and whether his potential case overall has a fundamentally good story that can be told to a jury that will allow him to obtain a recovery. Some areas to remember in evaluating a potential client:

i. Employment 1. Generally and also as it relates to claims for lost wages 2. Self-Employment – challenges in proving lost wages

ii. Age iii. Prior Medical History, Pre-Existing Conditions, Prior Injuries or injury

claims/lawsuits iv. Subsequent injuries v. Educational background

vi. Family – spouse, children, etc. 1. Remember damages witnesses

Case Intake Forms: Create standard forms, both for staff to use in gathering initial information at the time of the first call and for potential clients to use later to fill in key details prior to opening the case.

For staff who handle intake calls - have a basic form list of questions to ask and a basic form list for completing minimal contact information for potential clients. This helps maintain consistency, avoids missing critical information that is key in evaluating cases, and helps avoid future headaches such as not being able to get a hold of a potential client and case you wanted due to a simple failure in getting an email address in addition to a phone number, for example. Also consider putting together a short list for staff that sets forth the key details or things to keep in mind for accepting a motor vehicle collision case; a premises liability case; and a dog bite case. For example – put in writing to have staff ask for any known prior bites or attacks from a dog, particularly if the case occurs in Kansas.

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For potential clients to fill in, or for staff to fill in with the potential later, once a case is accepted – include sections that ask for key details on how an injury happened or that ask the potential client to circle parts of the body injured. This helps not only in reviewing a case but also in working on the case later (for example – in answering discovery).

b. Liability / Comparative Fault Issues

In evaluating the case, at the outset, train staff to be on the lookout for facts that may impact your ability to prove liability or that may impart fault on the potential client. You may establish rules that you will sign people up under an investigation basis and disengage later if there are potential liability issues, or that you always want to review cases further before signing, but either way – be on the same page with staff about what you expect when they encounter these types of potential client calls.

Some scenarios you want to keep in mind in evaluating potential cases (and potentially alert staff to as well):

i. Comparative fault overall – 1. MO – pure comparative fault – recovery even if client found 99% at fault,

damages reduced by percentage of fault found against client. 2. KS – modified comparative fault – no recovery if the client is deemed to

be 50% or more at fault. Damages reduced by percentage of fault reduced found against client if deemed 0-49% at fault. K.S.A. § 60-258a.

ii. Car wreck cases – 1. Disputed liability situations –

a. He-said-she-said on having a green light b. Facts brought up concerning property damage payouts or insurance

companies’ liability determinations c. Left-hand turn cases on a solid green light d. Tickets issued e. Disputed liability and not having an accident report or witnesses

2. Limitations on ability to pursue damages – a. Exs – failure to maintain car insurance coverage, KS $2,000

medical bill threshold rule (limitations on non-economic damages) iii. Alcohol consumption of the potential client iv. Premises liability cases –

1. Pictures taken of the dangerous condition? 2. Limitations on certain Premises Liability cases –

a. KS – winter storm doctrine – no duty to remove ice or precipitation which is actively accumulating or for a reasonable time thereafter (see Agnew v. Dillons, Inc., 16 Kan. App.2d 298, 305 (Kan. Ct. App. 1991).

b. KS – Slight defect rule – slight and inconsiderable defects in sidewalk is not a basis for negligence (see Ford v. City of Kinsley,

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141 Kan. 877 (Kan. 1935); Barnett-Holdgraf v. Mutual Life Ins. Co. of New York, 27 Kan. App.2d 267 (Kan. Ct. App. 2000).

c. MO – natural accumulation rule – general rule is that there is no duty to remove snow or ice where precipitation is accumulating naturally from general weather conditions in the community (see Willis v. Springfield General Osteopathic Hosp., 804 S.W.2d 416, 419 (Mo. Ct. App. S.D. 1991); Woodley v. Bush, 272 S.W.2d 833, 834-35 (Mo. Ct. App. 1954).

v. Dog bite cases – 1. Generally – asking about prior known bites or attacks of the dog, dog

running loose, known tickets or prior complaints by neighbors, obtaining the dog from a friend/relative who got rid of it/didn’t want it, etc.

a. More important in KS b. Strict liability in MO for dog bites, but still important to know

what information you can use to pursue a separate negligence claim in addition to that

III. Pleadings; Discovery; Motions

a. Statutes of Limitations (SOLs):

i. KS: 2 years for personal injury, medical malpractice, and wrongful death. K.S.A. § 60-513.

ii. MO: 5 years for personal injury. RSMo. §§ 516.120, 516.100. 1. 2 years for medical malpractice. RSMo. § 516.105. 2. 3 years for wrongful death. RSMo. § 537.100.

iii. UM/UIM Causes of Action:

Remember that lawsuits filed against a client’s uninsured motorist (UM) or underinsured motorist (UIM) carrier are claims that arise from contract (the car insurance policy). SOLs for filing these types of claims are based on SOLs for contract claims (5 years).

iv. SOLs pertaining to injuries to Minor Children:

The statutes of limitation is tolled until the minor’s status as a minor is removed:

1. K.S.A. § 60-5-15 – SOL tolled to one year after minor reaches 18 years of age. Cap, however – 8 years after injury.

2. RSMo. § 516.170 – MO predicates tolling on the minor reaching age 21.

b. Filing of Case:

Notice vs. Fact Pleading: Kansas is a notice pleading state, whereas Missouri is fact pleading. When filing a petition in Missouri, more details need to be included on negligence and injuries, including specifying the type of injuries sustained.

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Pleading certain damages –

Punitive damages: In Kansas, you cannot file a petition which immediately requests punitive damages. Instead, after the lawsuit is filed, a plaintiff must specially request the ability with the Court to pursue punitive damages. The procedure to do so involves filing a motion requesting leave to amend the petition to seek punitive damages. You must be able to plead sufficient facts showing the defendant engaged in reckless disregard for the safety of others, so the timing for pleading this should typically be done once enough discovery has been completed and particularly the deposition of the defendant.

Service: Key statutes on service are:

i. KS: Service must be obtained within 90 days of filing suit. K.S.A. § 60-203. K.S.A. § 60-205(b) sets forth how service may be made.

ii. MO: Service must be obtained within 90 days of filing suit. RSMo. § 506.150 sets forth how service may be made.

c. Discovery

Basic statutes and rules on discovery in KS and MO are:

i. Mo. Sup. Ct. R. 56.01 – General provisions governing discovery ii. RSMo. § 510.020 – Interrogatories to parties

iii. Mo. Sup. Ct. R. 57.01 – Interrogatories to parties iv. RSMo. § 510.030 – Production of documents, etc. v. Mo. Sup. Ct. R. 58.01 – Production of documents and things

vi. K.S.A. § 60-226 a. Particularly important – subsection (b)(5)-(6) which discusses Experts and

Expert disclosures required vii. K.S.A. § 60-233 – Interrogatories to parties

viii. K.S.A. § 60-234 – Production of documents and things

Certain Discovery issues relevant in personal injury cases –

Discoverability of the Insurance Claim File – In Missouri, there is an insurer-insured privilege recognized which limits the discoverability of the claim file. See State ex rel. Tillman v. Copeland, 271 S.W.3d 42, 46 (Mo. Ct. App. S.D. 2008). In Kansas, however, there is no insurer-insured privilege that prevents discovering the insurance claim file. It is fully discoverable, except for anything considered work product. As a general rule, anything from the claim file up to the time the lawsuit is filed may be obtained (anything after is considered work product). Appropriate redactions may be made of reserves settings.

Discoverability of Expert Communications – In Kansas, the only thing that is discoverable are things that serve as a basis for the expert’s opinions, and things that relate to compensation for the expert’s testimony. In Missouri, discoverability of communications with an expert is much more expansive.

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IV. Settlement Procedure

a. Reviewing the File, Preparing for Finalizing the Settlement Distribution

Whenever a case is settled, a review of the file should always be done to look for two important items that impact the settlement distribution: 1) Liens, and 2) Outstanding medical bills. If there are liens such as Medicare or Medicaid liens on a file, make sure staff is instructed to send a final settlement notice to these entities as soon as possible. Failure to do so can result in significant delays in the case. Any disputes of a Medicare or Medicaid lien in terms of amounts the entity is claiming should be ideally done in advance of the settlement and as soon as a conditional payment letter or initial log is received to avoid delays. If the client has ever obtained a settlement loan or advance, obtain letters from the loan company confirming what the final payout figure is, including interest, and when that payment will be good until / when you must make that particular payment by to avoid any additional accumulation of interest for the client.

Outstanding medical bills should be verified with providers in a timely fashion if there is any question on outstanding balances (such as when health insurance may have processed after obtaining records, thereby reducing a balance, or if the client had subsequently made payments towards a balance). Obtain client authority to seek any reductions of medical bills, and work on making calls and sending reduction letters as soon as settlement is obtained to avoid delays.

b. Settlement Approvals by the Court.

i. Wrongful death settlement approvals.

In any wrongful death case, the settlement and proposed distribution must be approved by the Court. RSMo. § 537.095; K.S.A. § 60-1905. This is important to establish that all heirs at law are properly notified of the proposed settlement and have an opportunity to be heard as to any distribution of the settlement going to them as an heir at law. The Judge will also review the plaintiff’s attorney’s fee and case expenses being requested as part of the distribution to ensure they are reasonable.

Attorneys should always follow these rules in ensuring any heirs at law other than their client are properly notified. Attorneys representing the adult child of a deceased, elderly plaintiff who had no surviving spouse, for example, should absolutely be prepared prior to any settlement hearing to ensure any other adult children of the decedent are reached and notified. Another example is notifying the other parent of a deceased minor child, even though such person is not your client and may not be in the picture, according to your client and the other parent of the deceased minor. A Judge at any settlement hearing will want to know about such persons, that they were properly notified, and if not, what steps were taken to get a hold of them.

Have a frank discussion with your client on these issues. Get a comprehensive list of all heirs at law and family members who apply, including names, phone numbers, addresses, and a

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general description (according to your client to start) of that person’s relationship with the decedent. Only then can an attorney accurately gauge the chances of a Judge ordering a portion of the settlement to such person. While a client may have strong feelings about a particular family member not getting a distribution, a Judge will look at the facts of any relationship and will be prepared to give that person or persons a portion of the settlement that is fair under the circumstances.

ii. Medical malpractice settlement approvals.

Any award of attorney’s fees must be approved by the Court in a medical malpractice case in Kansas. See K.S.A. § 7-121b. This involves a brief evidentiary hearing in front of the Judge in which any good plaintiff’s attorney will be sure to be prepared to show the Judge why his or her attorney fee and case expenses being requested as part of the settlement distribution are reasonable.

Review Rule 1.5 of the Kansas Rules of Professional Conduct which sets forth various factors used in determining whether an attorney fee is reasonable, such as the time spent on the matter and the customary fee charged in the same area. This is relevant in any case where Court approval is required, including wrongful death settlements and minor child settlements, also discussed in this section. For Missouri wrongful death and minor child settlement approvals, see the corresponding Rule 4-1.5 of the Missouri Rules of Professional Conduct.

iii. Minor Child settlement approvals.

Whenever a settlement is obtained for a minor child, the Court must approve the settlement, even if it was obtained before any lawsuit was filed. How the funds going to the minor child may be handled once a settlement is approved by the Court depends on the amount going to the minor child.

If the amount going to the minor child from the settlement is over $10,000.00, either a conservatorship or structured settlement plan must be established. A structured settlement or annuity allows settlement funds to grow until the structured settlement payments begin to be made once the child turns 18. Typically, most structured settlement companies will not open an account unless the funds going to the minor are at least $5,000.00 to $10,000.00.

If a structured settlement is not pursued but funds going to the minor are over $10,000.00, a conservatorship must be established. Most local courts have form pleadings for filing and providing the Court with proper assurances on the child’s information and any required notice to certain persons, such as grandparents or the parents if someone other than a parent is proposed as the conservator. Jackson County, MO, for example, has forms online that dictate the necessary pleadings for establishing a conservatorship. See https://www.16thcircuit.org/forms-5, section entitled, “Minor Guardian.”

If funds going to the minor are $10,000.00 or less and no structured settlement is established, a parent can hold funds on behalf of the minor as directed by the Court. Typically, a restricted savings account will need to be established with a bank to not allow for withdrawals until the minor reaches 18 years of age.

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Some statutes and rules relevant on minor settlements is provided below:

1. RSMo. § 475.330 – no conservatorship required, funds are $10,000.00 or less to the minor

2. RSMo. § 507.150 – when bonds required for funds for a minor 3. K.S.A. § 59-3059 – petition for appointment of guardian or conservator for a

minor

V. Sample Forms and Checklists

Pleadings: Creating a pleading directory with sample, basic forms used repeatedly in any personal injury office is critical to maintaining efficiency. Do not recreate the wheel. Any good pleading directory for a personal injury office should have the following:

1. Standard petitions for each basic case type – a. Motor vehicle collision lawsuit b. Premises liability matters. This case type can be split even further to

include petitions for – i. Slip and fall cases

ii. Trip and fall cases, including those based on the particular hazard (ex – trips relating to improperly placed or improper type of floor mat vs. defective sidewalks)

c. Dog bite cases 2. Standard discovery requests to defendants –

a. The best place to start for any form bank is with any local form discovery put out by that county. (Ex – Both Jackson County, MO and Johnson County, KS have form discovery requests specific to a motor vehicle collision case.)

3. Standard motions – a. Motions to Amend the Petition b. Motions requesting leave c. Certificates of Service draft, basic form d. Notice of Hearing draft, basic form

4. Standard Trial pleadings – a. Motions in limine – standard form with typical items requested in every

case b. Witness and exhibit list, standard form c. Examination schedules, standard form

Checklists: Having a case management software or simple, form checklist that is maintained in a client’s hard-copy file are very useful in ensuring key steps are taken on every client’s case and at the right time (for example – immediately requesting the accident report from police, sending letters of representation to the insurance companies involved, sending a demand once all medical records and bills are in, etc.). These checklists also keep staff on the same page about where a particular client’s case is at status-wise and what items need to be followed up on.

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14

Injury Demand Letters and Pre-Suit Negotiations

Submitted by Chelsea E. Dickerson

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Injury Demand Letters and Pre-Suit Negotiations

I. Demand Letter – Key Elements

Any good demand letter should include the following elements:

a. Adjuster & Claim Info, Date of Loss

It is a good idea to have a paralegal or staff member make a quick call to the adjuster to confirm the mailing address where the demand should be sent, and also that you have the correct claim number and adjuster listed. Some insurance companies change adjusters frequently; ensuring you have the right adjuster will avoid delays in getting a demand response back. Including an advisement at the beginning of the letter with this initial information which states the demand letter is for settlement purposes only is also good practice.

b. Client Information

Depending on your client, it is good to include a brief paragraph or at least a few sentences summarizing some key aspects of your client. This includes – referencing their title and position at their current employment and what employment they had at the time of the incident, if different; the city and state where the client resides; age; marital status; and whether the client is right or left-hand dominant if that is relevant to the injuries sustained. This information can be included in table or written format, or a combination of both.

This information provides relevant information on your client in determining settlement value and helps the adjuster review the case. Things such as the marital status also let the adjuster plug information into the system that becomes important later when checks are issued.

c. Facts of Incident i. Background Facts

1. The Story 2. Reference on property damage/impact (airbags deployed, cars

totaled, etc.), important witnesses

The next key section is giving the adjuster a summary of what happened in the incident. If the case is a simple car wreck case, this section can, and should, be brief. In a car wreck case, start by being clear on which party was driving which vehicle and provide the color, year, make, and model of each car. Make sure it is also clear on which direction each person was traveling when the crash occurred and who had to yield the right of way. For example, stating traffic traveling east and west on a particular street was controlled by a stop sign, whereas traffic traveling north and south did not have a stop sign.

You can include a few sections on property damage if you are including pictures with the demand package, or noting if airbags deployed or vehicles towed, if that applies to the case.

For premises liability case demands, key information to include in this section is: noting why the client was on the premises that day and for what purpose; names and relationship to your client if she was with anyone else when the incident occurred; a description of exactly

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where the client fell, enough so that the adjuster can tell by reading it and especially if photos you are including are not taken from far enough away to be able to tell; and describing what happened in the fall or incident.

For any case type, it is important to reference witnesses, particularly those who tie up liability for you if it is not clear. Also reference if you are enclosing any witness statements taken.

d. Summary of Liability i. Reference responding officer/accident report, citations received

ii. Reference key statutes, case law

Wrap up liability in a separate paragraph. For a clear liability car wreck case, for example, note first the clear rules-of-the-road violation the at-fault driver committed (e.g., failed to obey a traffic signal and ran a red light; wasn’t paying attention / was following too closely and rear-ended our client; failed to yield the right of way and turned left into our client on a solid green light, etc.). If the Accident Report completed supports your position of liability, mention that and how it supports your position (e.g., admission of at-fault driver, witness statement, etc.) and provide the responding officer and police department’s information.

Be sure to include a brief description of any citations that were issued to the at-fault driver. Do your research and look up those municipal court cases and provide case numbers and current status to the adjuster. This is especially important if the at-fault driver already pleaded guilty to any of those charges.

For other cases, such as premises liability matters, cite “rules of the road,” such as applicable industry standards that were not followed. A few examples to keep in mind could be – building code violations; ADA regulation violations; and OSHA regulations. If an expert report was obtained on any of these issues, summarize the findings of your experts and note the report included.

For dog bite cases in Missouri – cite to RSMo. § 273.036 which provides for strict liability if the insured/at-fault party owned the dog, and the bite occurred without provocation. However, on a dog bite case in Missouri, do not end there. If there are any other circumstances that would support an additional claim for negligence against the insured/at-fault dog owner, summarize why your client would be able to pursue that claim. Any prior notice the owner had of vicious behavior of the dog or prior attacks should be considered, as should any facts showing the dog owner acted unreasonably and did not use due care in handling the dog. Examples of the latter include failure to keep the dog on a leash / dog at large; letting the dog go in a crowded public area where the owner knew the dog would get agitated; failing to immunize the dog which then necessitated your client receiving a course of rabies vaccinations.

For dog bite cases in Kansas – point out any facts at all that show the owner had prior notice of vicious propensities of the dog, and thereby, strict liability on the part of the owner. See Carr v. Vannoster, 48 Kan. App.2d 19, 29 (Kan. Ct. App. 2012) (noting strict liability applies where dog owner knew or had reason to know the dog had dangerous propensities even if

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owner exercised utmost care to prevent it from doing the harm) (citing Restatement (Second) of Torts § 509(1)). Also point out any facts showing the owner acted unreasonably in failing to prevent the harm, which can also impose liability for negligence. Gardner v. Koenig, 188 Kan. 135, 138 (Kan. 1961) (citing Restatement of Torts § 518, comment (g)).

Punitive Damages: If punitive damages are warranted for reckless conduct, state that your client will be seeking punitive damages after outlining the key facts on liability that give rise to that claim. It is also always good practice to provide a copy of a jury verdict (the more recent, the better) on a case with similar facts where punitive damages were awarded, such as a DUI case.

e. Injuries Section i. Summary of Injuries

ii. Detailed Information / Treatment Key Points 1. The Story of Treatment – key facts you want to point out to the

adjuster that are good for the case. 2. E.g. – client had to be pulled from the car by paramedics, trapped;

client was hospitalized for extended period of time; multiple surgeries; complications from surgeries, etc.

iii. Summary Info – Tables on Treatment Details 1. Providers 2. Injury Diagnoses 3. ICD-9/ICD-10 Codes 4. Complaints 5. Surgeries / Treatments 6. CPT Treatment Codes 7. Testing done – dates and results

This section can be very helpful to adjusters in filling out key information used by insurance claims evaluation systems.

f. Other Key Damages Sections (as applicable to your case) i. Permanent Scarring / Disfigurement

1. Very important in dog bite cases – always provide pictures ii. Permanency of Injuries

1. Broken bone cases – arthritis concerns, continued pain and discomfort

iii. Future Medical Treatment 1. Future treatment letters, opinions 2. Life Care Plans

iv. Negative Effects on Quality of Life 1. Put in narrative form 2. Bullet-point key areas where they still experience pain, activities

they stopped doing for a period of time (or still cannot do), etc.

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v. “Duties Under Duress” – insurance company term vi. Other Out of Pocket Costs –

1. Mileage 2. Prescription costs 3. Medical devices, equipment (braces, wheelchairs, crutches, TENS

units) a. Include receipts for specialty mattresses, pillows, etc. –

anything used in relation to injuries to help alleviate symptoms

g. Total Economic Damages / Total Damages

h. Potential Additional Damages to Consider:

i. Loss of Consortium Claims –

Missouri: Injured person’s spouse may bring separate claim for damages suffered as a result of the loss of the injured person’s services, society, companionship, and sexual relations. See O’Neal v. Agee, 8 S.W.3d 238, 242 (Mo. Ct. App. E.D. 1999); Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. Ct. App. W.D. 2006); Novak v. Kansas City Transit, Inc., 365 S.W.2d 539, 543 (Mo. banc 1963).

Kansas: Claim for loss of consortium actually vests in the injured party for the benefit of the spouse, so the injured party directly makes the claim on behalf of the spouse (different from Missouri). Kansas case law notes a loss of consortium claim encompass not only acts of manual labor around the house, but also matrimonial and conjugal acts such as social aspects of the relationship, affection, and sexual relations. See K.S.A. § 23-2605, Farmers Ins. Co. v. Jokan, 30 Kan. App.2d 1213, 1219 (Kan. Ct. App. 2002); Clark v. Wong, 237 Kan. 410, 423 (Kan. 1985) (discussing “domestic duties” and “services” under K.S.A. § 23-2605).

i. Monetary Demand – Deadline to Respond

Be clear on the amount requested and the deadline to respond. If you are requesting policy limits, note the declarations page or verbal or other written notice the insurance company gave indicating those were the limits on the policy. Include a notice that if the limits are higher, the demand is null and void and you’re demanding the highest limits available.

Allowing 30 days to review a demand is fairly typical. That gives plenty of time for the adjuster to review the materials sent. However, be aware of some of the new issues posed by RSMo. § 537.058 –

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Policy Limits / Bad Faith Issues - Missouri (RSMo. §§ 537.058, 408.040):

RSMo. § 537.058 – Time-Limit Demands – The statute was amended in August 2017 and now requires several additional items to be sent with the demand in order to preserve the ability to claim bad faith in a subsequent action. Below is a summarized list of the requirements imposed by new version of the statute:

1. In writing 2. Sent by Certified Mail, Return Receipt Requested 3. Time period w/in which offer is to remain open for acceptance

i. Shall not be less than 90 days from date demand is received 4. Amount of payment requested or request for applicable policy limits 5. Date and location of loss 6. Claim # 7. Description of all known injuries 8. Party or parties to be released 9. Description of claims to be released 10. Offer of unconditional release for insureds for present and future liability

i. Good to include with the demand a proposed Release the client would be willing to sign if the policy limits offer is made. This avoids any issues later in arguing over release language.

11. List of names and addresses of healthcare providers 12. HIPAA-compliant written authorization 13. List of names and addresses of all employers from injury to demand date 14. Written authorization for employment records

Failure to comply with the above requirements of the new RSMo. § 537.058 means the time-limited demand is not considered “a reasonable opportunity to settle” for the insurance company and is not admissible in any suit against the insurance company in pursuing bad faith damages (“extra-contractual damages”) beyond the policy limit amount.

RSMo. § 408.040 – Pre-Judgment Interest – to get pre-judgment interest, also need to include with Demand:

1. Affidavit of Claimant describing – a. Nature of the claim b. Nature of injuries claimed c. General computation of any category of damages sought by claimant

i. (with supporting documentation) 2. Copies of all reasonably-available medical bills

- Also must file a lawsuit before 120 days passes after the demand or offer was received by the insurance company.

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II. Pre-Suit Negotiations a. Tips in Dealing with and Negotiating with Adjusters/Ins. Co.

The first step in dealing with adjusters is to be prepared and to know your own case. This starts at the outset. Doing a good reserves call with an adjuster is extremely important, particularly in cases that are larger or that may not seem readily apparent to an adjuster to entail long-term issues or large medical bills. Set a reminder to call an adjuster to discuss reserves a week or two after the case is opened in your office. This gives you enough time to send out the initial letter of representation, for it to be received by the adjuster, and also for you to review your case and have all the initial liability, treatment, and injury information from the client that you need. If any major status changes occur with a client’s treatment, such as a referral to pain management or an MRI showing demonstrable injuries, that is an immediate call to be made to the adjuster to make them aware and so they can update reserves.

If there are any special concerns on coverage or liability you think the insurance company will try to argue, be sure to discuss that with the adjuster at the outset, as soon as possible.

Also pertinent in knowing your case is being prepared before sending a demand and confident that you have ALL medical and billing records and any and all other supporting documentation needed. Lost wage documentation can be of a particular concern that may get missed. Insurance adjusters’ files are reviewed, and they are un-apt to pay lost wage damages if they are not documented via paystubs, timesheets, a letter from the employer, or work releases. Tax returns, 1099s, and work releases can be used for self-employed individuals.

Negotiations: Insurance companies train adjusters on negotiation techniques that have proven very successful for them. Below are some often-used tactics they employ and some tips on how to deal with them.

3. Delay Tactics a. Requesting more information – prior records, tax returns, etc. b. Complete denials, zero offers – causation issues, exclusions/coverage issues, etc. c. Internal evaluations d. Failing to respond

Request for Prior Records: An adjuster may drag his feet in responding to you, or immediately send a letter advising that more information/documentation is needed in order to respond to the demand. A frequent advisement is stating the adjuster needs three years’ prior medical records and/or tax returns in order to evaluate and respond to the demand. This often arises if there is any indication at all that your client has a pre-existing condition, injury, or health concerns that relate in any way to the injuries claimed in your demand.

The best way to deal with this is to, first, be prepared. You will be tipped off to pre-existing issues and concerns likely when the case first comes to you, or once you first start getting records in. If you’re aware of any prior issues, be ahead of the game and request prior records in advance. This also prepares you for litigation, where prior medical records would come into play during discovery anyway. If the prior records are clear on differentiating pain or

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a condition from prior to the wreck and after (e.g., prior pain was only in the neck or upper back and pain after wreck is in the lower back), you can be ahead of the adjuster and consider including prior records in your demand. Note the issue in the demand letter and separate out those prior records from records post-incident so it’s clear for the adjuster.

If the adjuster still will not budge off prior record concerns and offer an appropriate amount despite any pre-existing issues, be prepared to file suit. Do an internal sit-down review of the case and make sure you’re confident any pre-existing issues can be defeated or at least that a compromise can be made and a recovery still obtained despite those issues if it goes to litigation. Have a frank discussion with the client as well on those issues so their expectations are in line on what could occur later in the case.

Failure to Inform of a Denial, Zero Offers: Sometimes an adjuster may simply respond to a demand and say, we’re not extending an offer period. Adjusters may do this in reasoning that the property damage was not severe enough to cause injuries (i.e., not making an offer due to a causation denial); that some pre-existing issue is the cause of all the client’s problems, not the incident at issue; or because there is a denial of coverage based on an exclusion in the tortfeasor’s policy. Typically, the adjuster will notify you of an exclusion issue before you send a demand, but no matter when you learn of this – have a call with the adjuster and be clear on the reasons for the denial and what exactly they’re basing their position on. Ask for a copy of the policy and the exact exclusion language they are relying on as well. Review this and any case law on the subject to be clear on whether the insurance company’s case is good in relying on the exclusion. If it’s not, be prepared to file suit.

If the denial is for causation reasons on injuries (re: low property damage or pre-existing issues), take a hard look at the case internally at your office and be prepared to file suit. For pre-existing injuries, you can provide prior records and an explanation of why they do not affect your case (as discussed above), or simply move forward with the lawsuit off the bat. Filing suit is the best offense to dealing with the all-out denial approach, especially if the insurance adjuster demonstrates no willing to hear you out on your argument or change his position in the face of prior records that are good for your case. The insurance company may be calling your bluff to see if you’re willing to file suit on a smaller case with these issues. Fight back.

Delays due to Internal Evaluations: An adjuster may say he cannot respond to a demand until the client’s medical bills are reviewed. Make sure you clarify if he is talking about the adjuster himself reviewing the bills, or if the bills are being reviewed through an internal or external medical review process. Medical bills are more frequently going through an internal department or external evaluation that is out-sourced so that the insurance company can reduce the bills for “reasonable and customary” deductions for treatment obtained in the same geographical area. This is not a paid vs. billed medical issue, but rather, the insurance company’s system or the outside vendor’s system in evaluating bills and stating what the proposed reasonable value of the medical treatment should be. Keep this in mind when speaking with an adjuster. Be firm on your deadline; internal or external reviews do not take that long and allowing for 30 days to review the demand is plenty of time for that to be returned. If the review is on the adjuster, definitely be firm on the deadline and keep following up with him (within

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reason) to ensure you get a response back timely. Keep the case on the adjuster’s mind. Press the adjuster for a specific date which he expects the internal/external review to be done.

Failure to Respond: As an initial matter, there are some pre-emptive steps you can take in order to be sure you get a response timely. Frequent follow up with the adjuster is the key. First, as noted earlier in these materials, have your staff make calls to make sure the adjuster has not changed and that the mailing address for the demand is correct. That avoids delays off the bat. Next, make sure staff is trained and a checklist or reminder item is set to follow up on the demand one week after it is sent, and to keep following up until you receive a confirmation the demand is received. The attorney should then follow up a week before the demand deadline is up to remind the adjuster the demand is out there and to get on the evaluation if he hasn’t already. Keep following up until you get an answer. If calls are not returned, send an email. If there is no way to send an email, send a written letter (fax preferred so as to avoid delays with mailing). Many adjusters also have prompts on their voicemail to call a team member, supervisors, or other alternative contact if they are not available.

Be prepared to file suit if none of these steps work. You can always fax over a copy of the Petition you intend to file as well to help get the adjuster’s attention before you actually pull the trigger. You can always continue negotiations if you do file suit and the adjuster suddenly materializes. Keep in mind adjuster are busy, and that could simply be the reason for the delay.

4. Other Negotiation Tactics a. Unreasonably low offers b. Bullying c. Negotiating with yourself, getting you to cut your demand

Unreasonably low offers are very similar to the approach above of simply offering nothing on a case where the insurance company thinks it has a chance to get the attorney to drop the case and not file suit, or to win at trial. The most frequent offenders are smaller cases that have pre-existing injury concerns or low property damage concerns with car wreck cases. If this happens, call the adjuster and be clear by the end of the call on why the adjuster evaluated the case the way he did and why he has made the offer he has, what medical was included or denied, etc. If you are dealing with a reasonable adjuster who is willing to have a conversation with you about the case and not just follow the internal system, and if you believe pointing out some key points from prior and later records will get you somewhere, then provide them with a letter explaining your position. Follow up with the adjuster to discuss until you get some movement on the offer. If it is clear, however, after speaking with the adjuster that the unreasonably low offer is simply a tactic to call your bluff and see if you’ll file suit, follow the recommendations above on a zero offer – internally review your case, know the strengths and weaknesses, and be prepared to file suit and move forward.

Another tactic is bullying. This typically comes from a same, repeat-offender insurance companies who have made an internal decision to combat claims no matter what the specific facts are. Always be courteous and professional. Continue to update them as normal on your client’s treatment and any surgeries or significant changes. If they don’t respond to the demand

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or indicate a complete unwillingness to negotiate, be prepared to file suit. Keep in mind these insurance companies may be the most apt to commit bad faith if the case warrants it; they may engage in ignoring demands no matter what because they’ve pre-determined to not pay anything on a case.

The tactic of getting you to undercut your position or negotiate with yourself crops up when an adjuster calls you – usually in a friendly manner – and off the bat tries to get you to come down to your bottom line to get a case done. They say they don’t want to engage in the normal back-and-forth and cut to the chase. Don’t fall for this. This is a tactic to undercut your position and decrease your demand substantially without getting any movement from the other side. The adjuster may say you’re initial demand was unreasonable and that the two of you are so far apart, there’s no way anything could possibly get done.

If you believe your demand was reasonable, stand firm to your position. Explain why you believe the initial demand was reasonable. Point out the strengths of your case and point to key parts of the medical records or treatment course. Tell the adjuster you are certainly willing to consider a reasonable offer and take it to your client, but nothing can be finalized or moved forward until you get that initial offer back first. If you make an honest assessment and think you were a little too high, admit that and consider coming down in response to at least some initial offer from the other side. Make sure the adjuster knows though that you can’t and won’t negotiate with yourself. Keep in mind that undercutting your position presuit is also dangerous in that it negatively affects any settlement offers in litigation if you later decide to file suit. The insurance company will remember at mediation if you went down and made a low settlement demand previously in the case.

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26

Insurance 101

Submitted by John L. Hayob

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INSURANCE 101 John L. Hayob, Esq.

Brown & Ruprecht, PC May 23, 2018

Insurance policies are contracts and their interpretation is governed by principles

of contract law. Insurance contracts and insurance law is an integral part of almost all

personal injury claims. The breadth and variety of insurance products and the issues

created by the application of these products in the context of personal injury claims does

not permit a comprehensive discussion of the topic in this paper. The purpose here is to

provide an overview of the type of insurance products generally encountered in dealing

with personal injury claims, how the policies are structured, and some of the issues which

often arise in the application of these policies to particular claims.

I. FIRST PARTY INSURANCE POLICIES

The term “first party” means insurance providing coverage directly to the insured

for damages resulting from personal injury. This is distinguished from “third party”

insurance which protects the insured from legal liability to a third party for personal

injury which the third party sustains.

Following are types of “first party” insurance for personal injury to the insured:

Uninsured Motorist Coverage

Underinsured Motorist Coverage

Medical Payments Coverage

“No Fault” Insurance

Each of these categories of “first party” insurance is discussed below.

A. Uninsured Motorist Coverage

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Uninsured (UM) coverage is insurance provided to the insured to protect the

insured against personal injuries sustained in a motor vehicle accident in which the driver

who is at fault is not covered by bodily injury liability insurance to the same extent as if

the tortfeasor driver had complied with a state’s Financial Responsibility Law. This

insurance provides protection for the insured under an automobile policy, for personal

injury only, when an injury is caused by the driver who has not complied with the

Financial Responsibility Law of the state. The amount of UM coverage is not limited to

the minimums of the Financial Responsibility Law, but may be purchased in varying

amounts as specified in the policy. UM coverage does not cover property damage. That is

covered by the collision damage provisions of the automobile policy. Further, it provides

no protection to the uninsured motorist.

The insured may sue his or her carrier directly without having to shown an

unsatisfied judgment as a condition precedent to recovery. Schreiner v. Omaha Indem.

Co., 854 S.W.2d 542 (Mo. App. E.D. 1993). An action under the uninsured motorist

provisions is an action in contract, and therefore the ten year statute of limitations for

written contracts applies. Edwards v. State Farm Ins. Co., 574 S.W.2d 505 (Mo. App.

W.D. 1978). As a predicate to coverage, the insured under a UM policy must establish

liability on the part of the uninsured motorist and damages caused the liability producing

act. Hill v. Seaboard Fire & Marine Ins. Co., 374 S.W.2d 606 (Mo. App. W.D. 1963). In

other words, an insured making claim under the UM provisions of the policy must prove

all the elements of a tort claim against the uninsured motorist. It should be noted that an

intentional act by the uninsured motorist, such as ramming the insured’s vehicle, is

covered by UM insurance. Any attempt to exclude such acts is against public policy.

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Keeler v. Farmers & Merchs. Ins. Co., 724 S.W.2d 307 (Mo. App. S.D. 1987). As with

other policies of insurance, all conditions precedent to recovery under the UM provisions

must be satisfied. State ex. rel. MFA Ins. Co., v. Murphy, 606 S.W.2d 661 (Mo. 1980).

The basic requirements of the Missouri UM statute are set forth in Section

379.203 R.S.Mo. The statute sets forth the basic principles and requirements of UM

coverage, the solvency of an insurance company as a trigger for UM coverage, the UM

insurer’s subrogation rights to recover from the responsible, party and specifics that the

failure to file a report of financial responsibility with the Director of Revenue is prima

facie evidence of uninsured status.

The provisions of the statute enter into and form a part of the contract of

insurance as if these provisions were actually written into the contract. Ward v. Allstate

Insurance Co., 514 S.W.2d 576 (Mo. 1974).

Under Missouri law, UM cases combine tort liability and contract issues into one

action. The obligation of the uninsured motorist and uninsured motorist’s responsibility

for payment of damages are governed by tort rules. The obligation of the insurer is

governed by contract. Estate of Nixon v. Govt. Employers Ins. Co., 954 F.Supp.2d 894

(W.D. Mo. 2013).

UM policy provisions vary between companies, but a typical UM insuring

agreement reads as follows:

A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of “bodily injury”: 1. Sustained by an “insured”; and 2. Caused by an accident.

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The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “uninsured motor vehicle”. Any judgment for damages arising out of a suit brought without our written consent is not binding on us.

©, ISO Properties, Inc., 1998. The practitioner must always check the language of the particular policy as a first step in

proceeding with a UM claim.

Typical issues which are litigated in the UM area include who qualifies as an

insured, what constitutes an “uninsured motor vehicle”, whether the injuries were caused

by an accident, whether the damages arise out of the ownership, maintenance or use of

the uninsured motor vehicle, limits of liability and set-offs, and “stacking” of multiple

policies insuring different automobiles, which involves application of the “other

insurance” clauses.

Because UM coverage is mandatory, public policy often enters into resolution of

issues concerning application of UM policies, particularly with regard to policy

exclusions. The public policy of Missouri’s UM statute is to insure that every insured

under such coverage has available the full statutory amount of coverage to the same

extent had the tortfeasor complied with the requirements of the Motor Vehicle Financial

Responsibility Law. Gibbs v. National General Ins. Co., 938 S.W.2d 600 (Mo. App. S.D.

1997). Any attempt to restrict the mandate of the UM statute, which requires coverage for

insured persons legally entitled to recover damages from owners and operators of

uninsured motor vehicles, is void against public policy. Gibbs (supra). In the Gibbs case,

the Court held that excluding a vehicle available for regular use of the insured from the

definition of uninsured motor vehicle violates Missouri public policy.

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UM coverage has been extensively litigated in Missouri. A comprehensive

analysis of UM law in Missouri is beyond the scope of this paper. The results of the

decisions vary greatly depending on the policy language and factual circumstances. The

practitioner must focus on the language of the particular policy presented and research

the case law applicable to the terms at issue.

Kansas also mandates UM coverage in all automobile policies delivered or

insured for delivery in the State of Kansas. K.S.A. 40-284. While many of the same

issues concerning the applicability of UM coverage exists under Kansas law as in

Missouri, several significant differences exist between the Kansas and Missouri statutes.

For example, underinsured motorist coverage (UIM) is mandated in the UM statute as

well as UM coverage. (See discussion below). The policy limits for UM coverage are

specified by statute to be the same as the limits of liability under the liability coverages.

However, the named insured has the right to reject UM policy limits in excess of the

minimum statutory limits if done so in writing as required by the provisions of the statute.

The statute includes provisions prohibiting “stacking” and sets forth specific policy

exclusions from coverage which are allowed in a UM policy.

B. Underinsured Motorist Coverage

The purpose of underinsured motorist (UIM) coverage is to protect an insured

from motorists who carry insufficient coverage to fully insure themselves against

damages which are incurred in an accident. Marshall v. N. Assurance Co. of Am., 854

S.W.2d 608, 611 (Mo. App. W.D. 1993). As in the case of UM coverage, the application

of UIM coverage to a particular claim involves both tort and contract law. UIM coverage

pays legally collectible damages sustained by the insured for bodily injuries or death of

33

the insured or if a person riding in the insured’s car is injured or killed in a collision with

a vehicle whose driver does not have enough insurance to cover the full value of the

injury.

Unlike Kansas, there is no statutory requirement in Missouri that an automobile

policy include UIM coverage. Section 379.204 R.S.Mo. is the only Missouri statutory

provision addressing UIM coverage. It provides that any limits of underinsured motorist

coverage that are less than two times the limits for bodily injury or death pursuant to

Section 303.020 are only deemed to be excess of any applicable liability coverage. This is

to address a situation where underinsured coverage is $25,000 per person and $50,000

per occurrence, which are the minimum Missouri liability limits. Under these

circumstances, the insured would never collect the limits of their underinsured coverage.

Zemelman v. Equity Mut. Ins. Co., 935 S.W.2d 673 (Mo. App. W.D. 1996). This statute is

to protect the insured from paying premiums for underinsured coverage which are

illusory. Consequently, the statute provides that UIM limits less than $50,000/$100,000

are to be excess for any liability coverage. The statute does not create any similar

requirement with respect to other available UIM motorist coverage and there is nothing in

the statutory language prohibiting a set off from other available UIM coverage. See

Buhne v. State Farm Mut. Auto. Ins. Co., 232 S.W.3d 603 (Mo. App. E.D. 2007).

Other than Section 379.204 there are no other statutory or public policy

limitations on UIM coverage, and the application of the policy will be governed by the

policy language.

Careful reading of the applicable UIM policy by counsel is essential to determine

“who is an insured”.

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An example of the policy language is:

We will pay damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of “bodily injury,” … “Underinsured motor vehicle” means a … vehicle … to which a … policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this coverage.

See Rodriguez v. General Accident Ins. Co. of Am., 808 S.W.2d 379, 381 (Mo. Banc. 1991). Or it may read:

We will pay compensatory damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle.

Am. Family Mut. Ins. Co., v. Turner, 824 S.W.2d 19, 20 (Mo. App. E.D. 1991).

The language concerning the “limit for bodily injury liability is less than the limit of

liability for this coverage” will vary under a particular policy. This can greatly affect the

outcome of the case. The decisions in this area often depend on whether the policy

language is determined to be ambiguous.

The insured has the burden of proving that:

A valid contract for UIM coverage exists and that all conditions precedent have been fulfilled;

The other motorist is legally liable to the insured;

The insured’s coverage of the other motorist or tortfeasor has been exhausted or consent of the UIM carrier to take less than those limits has been given; and

The amount of damages exceeds the coverage provided under the

tortfeasor’s insurance policy.

35

It is not required that a judgment be obtained against the tortfeasor/underinsured motorist

to collect the UIM coverage. Again, this is a claim based on contract and not tort so that

the provisions of the contract govern when they are clear and unambiguous.

Following are important policy provisions which have been the subject of an

significant amount of litigation in Missouri:

The definition of who is an underinsured;

The definition of underinsured motor vehicle;

Policy exclusions;

Limits of liability provisions;

Anti-Stacking provisions which relate to the “other insurance” clauses

contained in the policies.

Again, a discussion of the voluminous case law on these issues is not within the scope of

this paper. Counsel is directed to the Mobar CLE, Insurance Practice, at Chapter 6 for a

detailed discussion of both UM and UIM coverage.

Contrary to Missouri, Kansas requires that UM coverage shall include UIM

coverage. K.S.A. 40-284(c). Since UIM motorist benefits are mandated by statute to be

included as part of UM coverage, unless authorized by statute, provisions of an insurance

policy which purport to condition, limit or dilute the broad, unqualified uninsured and

underinsured motorist coverage mandated by the Kansas statute are void and

unenforceable. Allied Mut. Ins. Co. v. Gordon, 811 P.2d 1121 (Kan. 1991). (holding that

a set off provision that attempts to limit the uninsured/underinsured motorist coverage by

deducting amounts received from another insured tortfeasor from the underinsured

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tortfeasor’s allocated fault is not authorized under the statute and is therefore void and

unenforceable).

C. Medical Payments Coverage

Generally, standard form automobile policies include Medical Payments

Coverage. This coverage provides that the insurer will pay reasonable expenses incurred

for necessary medical and funeral services because of bodily injury caused by an accident

and sustained by an insured. Typically, payments are limited to only those expenses

incurred for services rendered within a specified period before the date of the accident.

Who is an “insured” is specifically defined. For example, one form defines

“insured” as

D. “Insured” as used in this part means: 1. You or any “family member”:

a. While “occupying”, or b. As a pedestrian when struck by; a motor vehicle designed for use mainly on public roads or a trailer of any type.

2. Any other person while “occupying” “your covered auto”

© ISO Properties, Inc., 2003.

This coverage also includes numerous exclusions, which specify limits of liability

and provisions which address how the policy applies in conjunction with other applicable

medical payments coverage.

General rules of contract construction apply as with policies of insurance in

general. It should be noted that Medical Payments Coverage is separate and distinct from

uninsured motorist and underinsured motorist coverage. However, it is important to

carefully read the provisions of the particular Medical Payments Coverage provided by

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the policy to determine whether set offs are provided for amounts collected from third

parties or under the UM provisions of the policy.

E. No Fault Insurance (Personal Injury Protection Benefits)

Under the law of some U.S. states, an extension of coverage called Personal

Injury Protection (PIP) is required in automobile policies. Kansas is one of those states.

Missouri is not. This type of insurance is often referred to as “no-fault” coverage because

legal liability, or “fault”, does not affect payment of PIP benefits. PIP is specifically

designed to be paid without considering legal liability. When a person is injured in a

Kansas car wreck, he or she can get PIP benefits from his or her own insurance company,

whether the insured is at fault, someone else is at fault, or no one is at fault.

Typically PIP covers medical expense bills, lost wages, funeral expenses,

rehabilitation expenses and other damage. As noted, PIP is mandatory in every

automobile insurance policy in Kansas. In fact, if a person has an insurance policy from

another state and an accident occurs in Kansas, the PIP benefits automatically become

part of the insurance policy even if they are not part of the insurance contract.

If someone is injured in a Kansas automobile collision and that person’s insurance

company pays out PIP benefits, the insured has to pay those back if losses are recovered

from another driver who was at fault for causing the injuries. The statute allows for

subrogation rights permitting recovery of paid out under the PIP provisions of the policy.

K.S.A. 40-3107 sets forth the required contents of motor vehicle liability

insurance policies and authorized exclusions from coverage. Section (f) provides

Personal Injury Protection Benefits to the named insureds, relatives residing in the same

household, persons operating the insured motor vehicle, passengers in such motor vehicle

38

and other persons struck by such motor vehicle and suffering bodily injury while not an

occupant, subject to the limits prescribed in the policy for such benefits. The statute

provides that the owner of a motorcycle, who is the named insured, has the right to reject

in writing insurance coverage include PIP benefits for injuries which occur while the

named insured is operating or is a passenger on the motorcycle or motor-driven cycle. It

further provides that if the insured has rejected such coverage, it shall not make the

motorcycle an insured motor vehicle.

K.S.A. 40-3108 sets forth authorized exclusions to the payment of PIP benefits.

Other provisions relating to PIP coverages are included in Sections 40-3109 through 40-

3117.

It should be noted that K.S.A. 40-3117 provides that an action in tort against the

owner, operator or occupant of a motor vehicle or against any person legally responsible

for the acts or omissions of such owner, operator or occupant may be brought only in the

event the injury requires medical treatment of a kind described in the act as medical

benefits, having a reasonable value of $2,000 or more, or if the injury consists in whole

or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound,

comminuted, displaced or compressed fracture, loss of a body member, permanent injury

within reasonable medical probability, permanent loss of a bodily function or death. If

this admittedly low threshold is not met, than an injured person’s only source of recovery

is PIP benefits under his or her insurance policy.

II. THIRD PARTY POLICIES

As noted above, third party, or liability insurance, protects and indemnifies the

insured against damages sustained by third parties for bodily injury for which the insured

39

is legally liable. The following are types of liability insurance which cover damages for

bodily injury:

Automobile Liability Insurance

Commercial General Liability Insurance

Professional Liability Insurance

Excess/Umbrella Insurance

Each of these types of liability insurance will be discussed below. As indicated in the

discussion regarding first party coverage, the sheer number and types of liability

coverages available in the marketplace and the multiple issues which arise relating to the

applicability of these policies to bodily injury claims is beyond the scope of this paper.

Again, the purpose here is to provide an overview of the common types of policies

available and selected issues which arise in their application.

1. Automobile Liability Insurance

Personal automobile insurance policies should be distinguished from Commercial

Automobile Insurance policies, which contain provisions not usually found in personal

policies. Many of the coverage issues which arise regarding both personal and commercial

automobile coverages are the same. However, it is important to note that personal

automobile insurance is subject to the Motor Vehicle Financial Responsibility Law

(MVFRL), Chapter 303, R.S.Mo. at Section 303.190, et. seq. The statute prescribes what

must be included in the basic policy for it to satisfy Missouri’s financial responsibility

requirements. The language of Section 303.190.7 states:

Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy and such excess of additional

40

coverage shall not be subject to the provisions of this chapter.

Thus, insurance policy provisions that exceed the MVFRL’s mandate, or that are not

covered by it, are governed by contract law as applied to the language of the insurance

policy itself.

The statute includes a “rating” provision, Section 379.321, R.S.Mo., which

requires insurers to file the policies and forms used in connection with their rating plans

with the Missouri Director of Insurance. Because each insurer adopts its own policy

provisions, the language of the specific policies in question should always be consulted.

An organization called the Insurance Services Office (ISO), provides basic forms

for personal automobile insurance used by many companies in Missouri. ISO also

provides forms for use in commercial automobile liability policies and the other types of

liability policies discussed herein. While a great many policies of liability insurance

include these forms, which are sometimes referred to as “standard” policy language, this

is misleading because while standard language may be used, policies include

endorsements or other provisions changing the basic language. Consequently, each policy

should be read in detail in every case, and the language of any policy interpreted by

Missouri case law should be carefully compared to the language of the policy at issue.

What would appear to be slight differences in wording can lead to a major difference in

outcome. Caution should be exercised in interpreting any type of liability policy,

automobile, commercial, professional liability, excess/umbrella, or other types of liability

policies.

As in the case of all policies of insurance, the basic agreement is set forth in the

“insuring agreement”. While the insuring agreement is subject to exclusions and

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conditions contained in the policy, this is the provision which grants the basic coverage

that applies, which may be modified by these other provisions. An example of an

Insuring Agreement in a personal automobile policy is set out below.

We will pay on behalf of an insured all sums, within the limits of liability of these coverages, which such insured shall become legally obligated to pay as damages because of: (1) Bodily injury sustained by any person, and (2) Property damage sustained by any person, caused by accident resulting from the ownership, maintenance, or use of the described auto or a non-owned auto. We will defend any suit seeking damages which are payable under the terms of this policy, even if any of the claims in the suit are groundless, false or fraudulent. We may investigate, negotiate or settle any claim or suit. [The bolded words are defined in the policy.]

The MVFRL requires that the policies cover the operation of the automobile described in

the policy as well as non-owned automobiles by insureds who are designated in the

policy and permissive users. The MVFRL forbids the operation of a vehicle unless an

owner’s policy or an operator’s policy applies to such operation. Set forth below is a

typical definition of “Insured” in a personal automobile policy:

As used in this Part, Insured means: (1) With respect to the described auto,

(a) You, (b) Your relatives, (c) Any other person using the auto if its use is

within the scope of your permission, and (d) Any other person or organization liable for use

of the auto by one of the above persons. (2) With respect to a non-owned auto,

(a) You and your relatives, provided the actual use or operation is with the permission, or reasonably believed to be with the permission of the owner or person in lawful possession, and within the scope of such permission, and

42

(b) Any other person or organization which does not own or hire the auto but is liable for its use by one of the above persons.

Typically key terms in these definitions are defined in a separate definition section of the

policy. For example, the term “relative” is typically subject to definition and has been

subject to interpretation in Missouri case law.

A key provision is the Limit of Liability provided in the policy. These limits are

clearly set forth on the declaration page of the policy and are defined in a separate section

of the policy. Typically the policy will carry a separate limit for all damages, including

damages for care, loss of services or death, arising out of “bodily injury” sustained by

any one person in any one accident. There is also a limit of liability for all claims for

“bodily injury” resulting from any one accident. Every policy of automobile insurance is

subject to the MVFRL and must contain minimum limits of $25,000 for any one person

in any one accident and $50,000 for two or more persons in any one accident, exclusive

of interest and costs. Section 303.190(2) R.S.Mo.

The Missouri Court of Appeals Western District held that “bodily injury” includes

all “sickness and disease, including mental sickness and disease”. Lanigan v. Snowden,

938 S.W.2d 330 (Mo. App. W.D. 1997) (interpreting a hotel’s general liability policy).

The Eastern District looked at the same definition in a homeowner’s policy but refused to

follow Lanigan and declared that the same definition was not ambiguous and applied

only to injury to sickness and diseases of the body. Citizens Ins. Co. of Am. v.

Leiendecker, 962 S.W.2d 46 (Mo. App. E.D. 1998). In Derousse v. State Farm Mutual

Insurance Company, 298 S.W.3d 891 (Mo. App. 2009). The Supreme Court said that the

words “bodily injury, sickness or disease” set out in the uninsured motorist statute were

43

ambiguous and construed them to mean all sickness and disease, similar to the reasoning

in Lanigan v. Snowden (supra).

Another issue subject to extensive litigation is the meaning of the word “use” of

the automobile. In Brown v. Shelter Mutual Insurance Company, 838 S.W.2d 148 (Mo.

App. W.D. 1992) an accidental shooting that occurred in an automobile was not a “use”

of the automobile, while in State Farm Mutual Insurance Co. v. Whitehead, 711 S.W.2d

198 (Mo. App. S.D. 1986) it was. The test appears to be whether the automobile is

somehow an integral part of the accident or just the “situs” (location) of the accident.

Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13 (Mo. App. W.D. 1980). In Gibbs v.

National General Insurance Company, 938 S.W.2d 600 (Mo. App. S.D. 1997) it was held

that the passenger’s “grabbing” of the steering wheel was “use” of the vehicle so that

there was coverage under an uninsured motorist policy. In Harrison v. Tomes, 956

S.W.2d 268 (Mo. 1997) the court held that the passenger’s “grabbing” of the steering

wheel was not “use” of the vehicle so that there was coverage under a homeowner’s

policy. Case law can be extremely confusing in this area and the practitioner is cautioned

to look at the specific facts as compared to applicable case law.

As discussed more fully below, additional costs for defense, attorney’s fees and

interest on judgment is paid separately and do not reduce policy limits.

Personal automobile policies include a number of exclusions. Five exclusions are

authorized by the MVFRL:

1. Named driver exclusion, usually found in an endorsement to the policy.

2. The “worker’s compensation” exclusions.

3. The “maintenance or repair” exclusion.

44

4. The “property owned by rented to, in (the) charge of or transported by the

insured exclusion (relating to property damage claims).

It should be noted that exclusions not specifically authorized by statute can be enforced

for coverages in excess of the minimum limits required by the MVFRL Section

303.190.7, R.S.Mo. When coverage in excess of the minimum liability limits is

considered, interpretation of the policy exclusions are governed by the law of contracts.

The burden of proof as to exclusions from coverage is on the insurer. Walters v. State

Farm Mut. Ato, Ins. Co., 793 S.W.2d 217 (Mo. App. S.D. 1990). For a more

comprehensive review of case law concerning personal automobile policies see Chapter

5, Missouri Insurance Practice, Mobar CLE Publications.

2. Commercial General Liability Insurance

The Commercial General Liability (CGL) policy is now in general use and has

been for several decades. The “old” forms included comprehensive general liability

policies as well as various owner’s, landlord’s, and tenant’s policies, manufacturer’s and

contractor’s policies, and other commercial liability forms for use by businesses. These

older forms still can be involved in personal injury insurance litigation, such as “long-

tail” tort claims for exposure to toxic substances or toxic products. The CGL policy is and

will be the form most generally applicable to bodily injury claims arising out of business

activities.

As with automobile policies, the Insurance Services Office, Inc. (ISO) have

drafted policy forms which are filed in various states for approval. Most CGL policies are

written on what is called an “occurrence” form which provides coverage for claims

arising from occurrences which take place during the policy period. Thus, if a person is

45

injured on a business premises on May 1, 2017, the CGL policy in effect at that time

would provide coverage, even if the claim is filed three years later, which is still within

the Missouri statute of limitations. This approach becomes much more complicated in the

case of “long-tail” exposures, such as asbestos or exposure to other toxins. The issue then

becomes which policy is “triggered”. Depending on the case law and particular

jurisdiction, the potential exists for multiple insurance policies to be triggered based on

exposure over a number of years because injury continues to “occur” during each policy

year. Some courts have held that only the policy in place at the time the injury first

“manifests” is triggered. A discussion of “occurrence” and “trigger” issues is beyond the

scope of this paper. However, the practitioner should review the facts and policy

language closely when faced with a “long-tail” exposure personal injury case.

Under a claims made policy coverage is afforded for claims first asserted during

the policy period, which may have occurred earlier, as long as the occurrence was within

what is described as the “retroactive date”. Thus, when the claim is made against the

insured and tendered to the insurer determines whether the policy applies. Typically,

professional liability policies are written on a “claims made” basis.

A CGL occurrence form is typically broken down as follows:

I. – The Insuring Agreement and Coverages Provided.

II. – Who is an Insured

III. – Limits of Insurance

IV. – Policy Conditions

V. – Definitions

46

Coverages under Section I are subdivide into Coverage A for bodily injury and property

damage liability, Coverage B for personal and advertising injury liability and Coverage C

medical payments. “Personal” Injury under Coverage B is distinguished from “Bodily”

Injury under Coverage A. These terms are separately defined.

The policy includes under both coverage A and coverage B multiple exclusions

from coverage. While the inured has the burden of proving the claim falls within the

basic coverages of the policy, the insurer has the burden of proof that exclusions from

coverage apply.

Policies typically include endorsements which are added to the basic policy forms

to either provide additional coverage or additional exclusions from coverage. It can also

modify the form policy language. Bottom line, it is essential that the practitioner carefully

review each policy of insurance in the case of a bodily injury claim in determining how

the policies apply to the particular factual circumstances presented.

3. Professional Liability Insurance

Professional Liability policies are like other liability policies. The insurer agrees

to provide the insured (in this case a professional) with a defense and to satisfy judgments

against the insured arising out of their conduct as professionals. Typically Commercial

General Liability policies (CGL) will exclude damages arising out of the rendering of

professional services. Therefore, professionals such as doctors, lawyers, engineers, and

architects must obtain separate professional liability coverage. The type of professional

liability coverage most associated with bodily injuries is medical malpractice coverage.

However, errors in design of buildings or products often result in personal injury claims,

involving professional liability coverage for engineers and architects. Again, the

47

practitioner must look closely at the language of the particular policy as applied to the

particular facts and claim made.

Typically, as noted above, professional liability policies are written as claims-

made coverage. Professional liability claims often result in damages years after the

professional’s error or an omission or the claims can result from providing professional

services over an extended period of time. As noted above, because a policy is triggered

by the date the claim is made and tendered to the insurer, the “trigger” date is easily

identifiable as opposed to the case of long-tail claims under occurrence policies.

This form of coverage requires that all claims be reported to the insurance

company while the insured’s policy with the insurance company is still in effect. See

Insurance Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592 (Mo. App. E.D.

1996). Some policy language varies. For example, one policy may trigger coverage when

“a claim is made”; another policy may trigger coverage only when a “claim is made and

reported to the carrier”. Thus it is essential that whenever a professional receives notice

of a potential claim, that the claim be immediately reported to the professional liability

insurer.

Like all policies, a professional liability policy includes an insuring agreement,

which sets out the scope of coverage including the duty to defend, definitions, conditions,

and exclusions from coverage.

A claim is typically defined in the policy. Litigation sometimes results on the

issue of whether a “claim” is made which requires reporting by the insured. For example,

it has been held that mere threats do not rise to the level of a “claim” which could affect

the reporting requirements. Winkler v. National Union Fire Insurance Company of

48

Pittsburg, PA., 930 F.2d 1364 (9th Cir. 1991). (Involving a directors and officers

professional liability policy).

Another issue unique to claims made policies relates to claims reported during the

policy period where the actual occurrence giving rise to the claim occurred before the

commencement of the policy period. Again, the policy needs to be reviewed closely

regarding the existence of “prior acts” coverage which is generally referred to as the

“retroactive date” in the policy. A retroactive date will specifically state when the the act

or omission underlying the claim must occur in order to trigger coverage.

Professional liability policies also often offer “tail coverage”, which is extended

protection that is available to the insured under the terms of the policy. It allows the

insured the opportunity to acquire additional time to report claims under a claims made

policy after the policy expiration date and through the extension period. Again, the policy

must be closely examined with regard to both “prior acts” and “tail” coverage.

4. Excess/Umbrella Insurance

Excess and umbrella policies perform a common function in protecting insureds

against catastrophic losses. Excess and umbrella policies are to be distinguished from

primary policies. A primary policy provides a first layer of insurance coverage. Personal

automobile and homeowner’s policies and commercial general liability policies are

primary coverage, which attach immediately upon the happening of an “occurrence”. A

professional liability policy is also a primary policy which attaches as soon as a claim is

made. A primary insurer is responsible in the first instance for defending and

indemnifying the insured in the event of a covered or potentially covered occurrence or

claim. Because primary insurers generally have to defend their insureds and most losses

49

fall within primary limits, primary insurers bear a greater risk and therefore charge larger

premiums. In contrast, excess insurers charge relatively low premiums when compared to

the amount of risk insured. Many larger businesses self-insure to some limit and then

purchase excess or umbrella policies above the self-insured retention (SIR). This

substitutes for primary insurance.

Primary/excess issues also arise in the situations where multiple primary policies

apply or may apply to a single occurrence or claim. Primary policies typically include

“other insurance” clauses which must be looked at to see which of the primary policies

pays first and which pays after the first primary policy is exhausted. There is a significant

amount of case law in this area.

An excess policy provides specific coverage above an underlying limit of

primary insurance. A true excess policy does not broaden the coverage provided in the

underlying primary policy. Typically, an excess policy will “follow form” to the terms,

provisions, conditions and exclusions of the primary policy. In other words, if a bodily

injury claim is excluded by the terms of the primary policy, it would also be excluded by

the terms of the excess policy. Excess insurance is based on the assumption that primary

coverage exists and includes a provision that the insured maintain in force scheduled

limits of primary insurance. Excess coverage is generally not triggered until the

underlying primary limits are exhausted by payment of judgments or settlements.

Controversies have arisen to whether an excess insurer may have duties triggered

by a large loss that exceeds the limits of the insured’s primary policy even if the primary

insurer has not actually paid its limits because of a settlement or because of the particular

nature of the primary coverage. Again, the policy language is the key and resolution of

50

the issue depends on how the “exhaustion” language is phrased. Again, a detailed

discussion of these cases is beyond the scope of this paper.

As indicated, an excess policy can be written on a “following form” basis. There

are also “stand-alone” excess policies which include their own insuring agreements,

conditions, definitions and exclusions to grant or limit coverage. Also, some “following

form” excess policies include their own exclusions or endorsements which may vary the

coverage of the primary policy.

An “umbrella” policy differs from the excess policy in that it may insure certain

risks that the concurrent primary policy does not cover. An umbrella policy may have

broader definitions, offer expanded coverage, may insure additional persons or entities, or

provide additional forms of coverage.

Because what may be labeled an excess policy or an umbrella policy may not

actually be true excess or umbrella policies, it is important to analyze the language rather

than labels or headings. Again, there is no substitute for analyzing the specific language

of the policy in determining how it applies to a bodily injury claim.

5. Common Liability Coverage Issues

There are a number of issues which arise relating to the applicability of liability

coverage to bodily injury claims. A few of those issues are discussed below. These issues

arise in conjunction with all types of liability coverage whether it be personal or

commercial automobile insurance, commercial general liability insurance, homeowner’s

insurance, professional liability insurance, and, potentially, excess/umbrella insurance,

although the duty to defend most often comes up in the context of primary insurance.

a. Duty to Defend

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As noted, policies of primary liability insurance typically include two duties on

the part of the insurer. First, the insurer has the obligation to satisfy judgments or

settlements for all bodily injury claims that are covered by the policy. Secondly, the

primary insurer has the duty to defend the insured relating to such claims. The insurer’s

duty to defend is broader than its duty to indemnify. Royal Insurance Company of

America v. Kirksville College of Osteopathic Medicine, 191 F.3d 159 (8th Cir. 1999). If

based on the allegations of the complaint and the facts known, or reasonably available to

the insurer, there is at least the potential for coverage, an insurer’s duty to defend exists.

Royal Insurance Company (supra); Fostill Lake Builder, LLC v. Tudor Insurance

Company, 338 S.W.3d 336 (Mo. App. W.D. 2011). “An insurance company has the duty

to defend an insured when the insured is exposed to potential liability to pay based on the

facts known at the outset of the case, no matter how unlikely it is that the insured will be

found liable and whether or not the insured is ultimately found liable. Missouri Public

Entity Risk Management Fund v. American Casualty Insurance Company, 399 S.W.3d

68, 73 (Mo. App. E.D. 2013). Under Missouri law, a duty to defend arises even though

claims beyond the coverage are present with potentially insured claims. State Farm Fire

& Cas. Co. v. Nat’l Research Ctr. for College and University Admissions, 445 F.3d 1100

(8th Cir. 2006). An insurance company has the obligation to investigate a claim when

tendered to it. Thus, even if the allegations of the Petition set forth facts which appear to

be outside policy coverages, if additional facts are known to the insurer or are reasonably

ascertainable which would bring the claim within coverage, a duty to defend arises. This

is also the law in Kansas. In other words, the insurer has the obligation to look beyond

the allegations in the Complaint in determining whether a duty to defend exists. Spruil

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Motors, Inc. v. Universal Underwriters Insurance Company, 512 P.2d 403 (1973);

Williams v. Community Drive-In Theater, Inc., 595 P.2d 724 (1979). The breach of the

duty to defend can potentially subject an insurer to a bad faith claim, including liability

beyond its policy limits, as discussed further below.

b. Excess Liability/Bad Faith

i. First Party Claims

In “first party” claims under Missouri law, the legislature has specifically

provided for the recovery by an insured of additional damages, by way of a penalty,

against an insurer under a first party policy of insurance when the insurer has vexatiously

refused to pay for covered loss without reasonable cause or excuse. Sections 375.296

R.S.Mo.; 375.420 R.S.Mo. Section 375.420 specifically accepts from its application

automobile liability insurance, but for other insurers it provides for a penalty not to

exceed 20% of the first $1,500 and 10% of the amount of the loss in excess of $1,500 if it

appears from the evidence that the insurer has refused to pay a loss without reasonable

cause or excuse. Section 375.296 applies to any type of policy or insurance company. It

requires proof of “vexatious” and unreasonable behavior. The statutory language suggests

that it also applies to liability payments. The authorized penalties also include an award

of attorney’s fees and the trier of fact may properly award attorney’s fees for vexatious

refusal even if no percentage award or penalty is given. DeWitt v. American Family Mut.

Ins. Co., 667 S.W.2d 700 (Mo. 1984).

Missouri courts have held that the independent tort of bad faith is virtually

identical to the statutory cause of action provided by Sections 275.296 and 375.420,

R.S.Mo. Therefore, the independent tort of bad faith is precluded in Missouri by virtue of

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these statutory requirements. Duncan v. Andrew County Mut. Ins. Co., 665 S.W.2d 13

(Mo. App. W.D. 1983); Cateron v. Columbia Mut. Ins. Co., 723 S.W.2d 5 (Mo. 1987).

The Missouri “vexatious” statutes do not preempt all tort claims by insureds against

insurers. If the insured can prove the elements of an “independent tort”, then separate

“tort” damages, including punitive damages, may apply. Overcast v. Billings Mut. Ins.

Co., 11 S.W.3d 62 (Mo. 2000).

Kansas has enacted Kan. Section 40-256, which permits an insured to recover

extra contractual damages for first party claims under certain circumstances. Specifically,

the statue provides that if it appears from the evidence that an insurance company has

refused without just cause or excuse to pay the full amount of the loss, the court in

rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fees

for services in such action, including proceeding upon appeal, to be recovered and

collected as part of the cost. The statute notes that if tender is made by the insurance

company before the commencement of the action in which judgment is rendered and the

amount recovered is not in excess of the tender, no such costs are allowed. Essentially,

Kansas allows attorney’s fees as a penalty where the first party insurer refuses to pay the

full amount of the loss without just cause or excuse.

In refusing to pay a claim an insurance company has a duty to make a good faith

investigation of the facts surrounding the claim. Brown v. Combined Ins. Co. of America,

597 P.2d 1080 (Kan. 1979). If there is a bonified and reasonable factual ground for

contesting the insured’s claim, there is not failure to pay without just cause or excuse.

Koch, Administratrix v. Prudential Ins. Co., 470 P.2d 476 (1970). Whether the insurance

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company’s refusal to pay is without just cause or excuse is determined on the facts and

circumstances in each case. Smith v. Blackwell, 791 P.2d 1343 (Kan. App. 1989).

ii. Third Party Claims

Under Missouri law, the bad faith refusal by a liability insurer to settle a claim

against its insured gives rise to a cause of action in tort for the damages resulting

therefrom. Zumwalt v. Utilities Insurance Company, 228 S.W.2d 750 (Mo. 1950). In

Missouri, insurers are entrusted with a fiduciary obligation to look out for the best

interest of the insured. Young v. United States Fid. & Guar. Co., 588 S.W.2d 46, 47 (Mo.

App. S.D. 1979). Whenever the insurer assumes the defense and refuses to settle the

claim in bad faith, exposing the insured to liability in excess of the policy limits or if the

insurer denies coverage outright and refuses to defend without justification, the insurer is

liable for the damages to the insured resulting therefrom. Dyer v. Gen. Am. Life Ins. Co.,

541 S.W.2d 702 (Mo. App. 1976); Truck Ins. Exch. v. Prairie Farming, LLC, 162 S.W.3d

64 (Mo. App. 2005).

Historically, the elements of a bad faith claim under Missouri law have included:

1. The liability insurer has assumed control over negotiation, settlement and legal proceedings brought against the insured;

2. The insured has demanded that the insurer settle the claim brought against the insured;

3. The insurer refuses to settle the claim within the liability limits of the policy; and,

4. In so refusing, the insurer acts in bad faith, rather than negligently. Dyer v. Gen. Am. Life Ins. Co. (supra).

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In a recent case, the Missouri Supreme Court held that a demand is not a necessary

element of a bad faith, but is “highly relevant” in determining whether an insurer acted in

bad faith in refusing to settle. Scottsdale Ins. Co. v. Addison Ins. Co., 448 S.W.3d 818, at

page 827, note 5 (Mo. 2014). Additionally, the court held that a bad faith claim for

refusal to settle the action falls within the category of assignable tort claims. 448 S.W.3d

at page 830.

In another recent case, the Missouri Supreme Court suggested that in a situation

where the insured’s decision not to defend a case to provide coverage is simply in error,

the insurer may be liable for damages in excess of the policy limits as consequential

damages resulting from its breach of contract. Columbia Cas. Co. v. Hiar Holding, LLC,

411 S.W.3d 258 (Mo. 2013). (Extra contractual damages awarded where no separate “bad

faith” claim was made).

As noted, Missouri includes the element of “bad faith” in making a claim for

excess damages. Good faith implies honesty, fair dealing and adequate information.

Typically, more than an error in judgment is required to prove bad faith. On the other

hand, negligence contemplates a mistake—a breach of a duty owed—for which the party

may be held responsible even if it is made a good faith effort. The seminal case in Kansas

on the issue of third party insurance “bad faith” is Bollinger v. Nuss, 449 P.2d 502 (Kan.

1969). This decision is still cited today in almost all bad faith cases. In that decision, the

court attempted to clarify whether the proper standard for examining an insurer’s

handling of a claim is negligence or bad faith. The court stated “we read (prior cases) to

mean that liability may be imposed against the insurer on either theory. In other words,

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the insurer, in defending and settling claims against its insured, owes to the insured not

only the duty to act in good faith but also to act without negligence.” 202 Kan. at 333.

This theory was further refined in Glenn v. Fleming, 799 P.2d 79 (Kan. 1990). In

that case the court held under the facts and circumstances presented, there was no claim

for bad faith.

As noted by the court in Associated Wholesale Grocers v. Americold Corp., 943

P.2d 65 (Kan. 1997) insurance bad faith does not lend itself well to a finite definition:

In the final analysis, the question of liability depends upon the circumstances of the particular case and must be determined by taking into account the various factors present, rather than on the basis of any general statement or definition (quoting Bollinger v. Nuss (supra)).

Kansas appears to apply a hybrid bad faith/negligence standard. However, a

review of both Missouri and Kansas decisions indicate that the standard is at best fluid in

application. If the insurer fails to take reasonable steps to protect the interest of its

insured, exposing the insured to extra contractual damages, it faces exposure for bad faith

damages in excess of the policy limits and for other consequential damages to the insured

resulting therefrom.

iii. Missouri Statute 537.065

Under Section 537.065, R.S.Mo. one claiming damages for personal injury or

death and the tortfeasor can, in advance of a judgment against the tortfeasor, limit

satisfaction of the claim to specified assets of the tortfeasor as well as liability insurance

policies insuring the tortfeasor against the damages claimed. Numerous Missouri

appellate decisions in recent years have expanded bad faith liability and limited the

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insurer’s ability to prevent policy holders from pursuing extra contractual liability. Most

of these cases have centered on the use of Section 537.065, R.S.Mo.

Typically, the insured and tortfeasor enter into an agreement under the statute and

then proceed to conduct what is essentially an uncontested trial where the plaintiff puts

on evidence of liability and damages and the court makes a decision on liability and the

amount of damages to be awarded. Since typically no opposition is presented, the process

results in large damage awards, most of which are in excess of the applicable policy

limits. Missouri decisions have held that when that process is followed, the insurer cannot

collaterally attack the amount of the judgment and can only defend a subsequent

garnishment action based on the defense that there is no coverage.

In 2017, the Missouri General Assembly voted to repeal the exiting Section

537.065 and replace it with a modified version. These bills became law on August 28,

2017.

The most substantive changes in these bills require that the insurer or insurers be

provided written notice of the execution of a 537.065 agreement and shall have 30 days

after receipt of such notice to intervene as a matter of right in any pending lawsuit

involving a claim for damages. Previously, the insurer had no right to receive a copy of

such agreement and there was a substantial amount of case law which refused to allow

the insurer the right to intervene in the pending lawsuit before judgment was entered. The

right to intervene gives the insurer back some element of control over the “trial”

proceedings.

The new law also includes specific requirements for time related demands. It

provides that a time limit demand must remain open for at least 90 days and include a

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description of the injuries accompanied by a list of the medical providers as well as

medical authorizations and employment authorizations if the claimant seeks lost wages. It

also requires a description of the claims to be released and a release of the insured for

joint tortfeasor liability.

There are a number of open questions about how this new statute will ultimately

be applied, including the scope of the insurer’s rights once the insurer intervenes.

Undoubtedly, future case law will clarify these issues. Additional tort reform bills are

being proposed in the legislature which may have a further effect on Section 537.065.

III. DEFINING ALL SOURCES OF COVERAGE

Both the Plaintiff and Defendant in bodily injury litigation want to be sure that all

potential sources of coverage are explored and that all insurers who may be involved are

put on notice. For example, in a situation where a Defendant is the permissive user of a

vehicle owned by another party, the insurance on the vehicle itself will generally be

primary. However, insurance on the personal vehicles owned by the driver will likely

apply as excess coverage. If the vehicle is owned by a business and the tortfeasor is

operating within the course and scope of his or her employment, then the employer’s

automobile liability policy would probably provide primary coverage. Typically those

limits would be greater than the limits provided in personal automobile policies.

Additionally, either an individual or business may have excess or umbrella coverage that

would come into play.

Where a business is involved which has a commercial general liability policy, the

Defendant business may also be an additional insured under another liability policy. For

example, an individual who is injured on a construction site or as a result of construction

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operations would look to not only the coverage provided by the particular contractor

involved, but also any other coverages under which the contractor is an additional

insured. The same situation exists in a product liability case where the product vendor is

sued and has its own commercial liability coverage, but is also an insured under the

manufacturer’s coverage.

For these reasons, it is important that Plaintiffs request in interrogatories the

identity of all potential insurance policies that may apply to cover the Defendant in the

litigation and request a copy of those policies. A review of those policies may reveal

Additional Insured Endorsements which would bring additional coverage into play. This

is especially important in toxic tort or product liability cases involving exposure and

damages over an extended period of time, where the tortfeasor may have multiple

policies over these years which would be triggered and provide coverage.

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Medical Records and Bills in Case Law

Submitted by Marcos A. Barbosa

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Medical Records and Bills in Case Law

A. Obtaining (Authorizations, Request or Subpoena; Substance; Scope or What’s Discoverable)

a. Authorization

i. In personal injury cases, the defense will, almost without exception, seek to obtain the plaintiff’s medical treatment records. Ordinarily, the defense will ask the plaintiff to sign a stipulation and authorization for the release of his or her medical records. But what if the plaintiff refuses to sign? Can the defense seek relief from the trial court?

ii. The question is “whether a trial court has authority to compel personal injury plaintiffs to sign stipulations and authorizations allowing the defendant to obtain their medical records.” Most jurisdiction, in accordance with HIPAA as well as state law, answer this question in the affirmative. That seems to be the case in Missouri, and is certainly the case in Kansas.

iii. How about ex parte communications?

1. In Missouri, since State ex rel Proctor v. Messina, 320 S.W.3d 145, 154 (Mo. 2010), defense counsel is precluded from informally contacting treating physicians to request information regarding a patient/plaintiff and what, if any, opinions the physicians may render. As long as plaintiffs do not consent to such communication, it cannot occur. Trial courts in Missouri do not have authority to issue an order mandating that a treating physician engage in ex parte communications.

2. In Kansas, again, where the medical condition of a patient is at issue, “there is simply no privilege available to the patient.” Sample v. Zancanelli Mgmt. Corp, 2008 WL 508726 (D.Kan. Feb.21, 2008). Plaintiff has put her medical condition at issue. Therefore no physician-patient privilege exists in the action and ex parte communications would be allowed, and trail courts can issue orders permitting such communications.

iv. So, where does this leave personal injury defendants who seek plaintiff’s medical records?

b. Request or Subpoena

i. The defense, in Missouri, is authorized by Rule 58.02 to issue a subpoena, requiring the medical providers to produce the medical records. Parties may also seek the attendance of the medical providers’ records custodians at a deposition in which they must produce the medical records under Rule

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57.09(c). The provider may be excused from appearance, by producing the records.

ii. In Kansas, a defendant can seek the same records through a subpoena issued pursuant to Rule 60-245a. The provider may also be required to appear for a records deposition pursuant to 60-245a(c).

iii. Keep in mind that HIPAA provides an exception for disclosure in response to a subpoena, discovery request, or other lawful process if the discloser receives satisfactory assurance that reasonable efforts have been made to (1) ensure the patient has been given notice of the request, or (2) secure a protective order prohibiting use or disclosure of the protected health information for any purpose other than the litigation or proceeding, and requiring return or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. If you provide a written statement and accompanying documentation meeting the guidelines in 45 C.F.R. § 164.512 (e)(1)(iii) (to demonstrate notice) or 45 C.F.R. § 164.512 (e)(1)(iv) (to assert a protective order is pending), you will meet HIPAA's satisfactory assurance requirements.

iv. HIPAA also provides an exception permitting disclosure of protected health information in response to a court order, so if all else fails you may ask the court to intervene and issue an order. As always, be sure to exhaust all reasonable means available to obtain the information before requesting court intervention on a discovery matter.

v. Finally, Every request for the release of medical records must follow certain guidelines:

1. The request should be written on letterhead stationery if it is a request from an attorney, or it must contain the complete name and address of the patient if the request comes directly from the patient.

2. The request should include the patient’s signature; if the patient is deceased, incompetent, or a minor, a legally appropriate individual, such as the parent, estate administrator, or legal guardian, should sign.

3. The authorizing signature should be validated with the stamp of a current notary or commissioner of deeds. Although your HIPAA form may not require such notarization, in order to avoid having your request rejected, you may consider this extra step. Some states even require that the notary have a raised seal on the document.

4. The request should include a special release form (compliant with any state and federal requirements) for patients being treated for psychiatric illness or alcohol or drug abuse or for any patient whose medical records document any HIV- or AIDS-related information.

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Don’t limit your requests to hospitals. In many jurisdictions, doctors’ practices keep copies of medical records for as long as six years. Do not hesitate to send an appropriate request for medical records to the insurance carriers who paid for treatment.

c. Scope

In litigation, a medical records authorization can usually be provider specific and limited in time. Some jurisdictions place additional scope limitations. For example, Missouri courts, despite recognizing that a plaintiff waives his or her privileged by placing their physical condition at issue in a personal injury lawsuit, defendants are not entitled to any and all medical records, but only to those records that relate to the physical condition at issue under the pleadings. See State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo.banc.1995). The Court asserted that medical authorizations must be, therefore, tailored to the pleadings, on a case-by-case basis. Id. No similar limitation is recognized in Kansas. If an entity has acted as a health care provider to plaintiff, a defendant would be entitled to procure records from such entity concerning the plaintiff’s physical condition and health. Courts have found limitations to records relating to plaintiff’s physical condition at issue to be too narrow. Defendants are entitled to discovery of medical records relevant to her overall physical, mental, and emotional well-being, the amount of pain and suffering caused by the alleged tort or any other problems, and the extent of plaintiff’s anticipated physical and mental activity.

B. Analyzing

a. The best resource for getting medical records and evaluating them is an experienced nurse paralegal or nurse attorney.

b. For each health care provider, set up a folder to store a copy of your request for records and a copy of the previously executed HIPAA form. Organizing your documentation this way will make life a lot easier when the responses come back—most record responses will include medical records from other medical providers that became part of their own records.

c. When you receive a response, you must review the record for completeness. Pay particular attention to the presence or absence of certain items that may be relevant to your case, such as a typed operative report or a pertinent laboratory report. If anything essential is missing, contact the medical provider. It may be possible that some items have been misplaced or not yet found. In such cases you should determine whether the provider’s particular medical departments have maintained a log of tests performed and the results.

d. A typical medical record might have the following components (this is not an all-inclusive list): history and physical; physician’s progress notes; physician’s order sheets; nurse’s notes (general and special care unit); graphic and flow sheets (pulse, temperature, respiration [PTR], intake and outtake [I&O], activities at daily rhythm [ADL]); medication records; nursing care plan; laboratory transfusion and X-ray reports; surgery documents; consultations; emergency department records; records

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of special health care disciplines (e.g., physical therapy); consent forms; discharge summaries; and autopsy reports.

e. Many health care organizations do not consider certain clinical and miscellaneous documents to be part of the medical record, and you must specifically ask for them if they are important to your case. The clinical documents that are often not considered part of the medical record, unless specifically asked for, are listed below in alphabetical order:

i. Cardiac catheter laboratory technician records.

ii. Cardiothoracic surgery (bypass) pumps records.

iii. Dialysis flow sheets.

iv. Epidemiology logs.

v. Fetal monitoring strips.

vi. Hospital bylaws.

vii. Implantable devices.

viii. Incident/occurrence report forms. These reports contain details regarding the who, what, when, and where of an occurrence and are a valuable source of information.

ix. Needle and sponge count. These counts are performed by the scrub and circulating nurses. It is important to review the count when a case involves a retained foreign body.

x. Nursing administration’s report. This report contains information on patients who are very sick or who have special problems. Information from the nursing administration’s report sheet may supplement occurrence reports or the information contained in the patient’s medical record.

xi. Nursing assignment records. This information is useful in supplementing the nurse’s notes or progress notes to identify the nurses caring for a patient on a particular day.

xii. On-call schedules.

xiii. Operating room circulating slips. These forms contain the names of individuals present during a surgical procedure. Sometimes people are there who shouldn’t be present.

xiv. Other departments’ records. These other departments might include social services, occupational therapy, physical therapy, pharmacy, and anesthesia.

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xv. Patient data logs. Some departments maintain logs or computerized databases that include the names of all individuals whom they have treated. These departments usually are operating room, delivery room, emergency department, outpatient clinics, radiology department, cardiac catheterization department, laboratory, blood bank, and donor bank.

xvi. Private-duty nursing logs. These logs can help identify a private-duty nurse for an interview. They are often missed by the hospital when they do their investigation.

xvii. Psychiatry flow sheets. Most psychiatric units use some form of flow sheets to monitor patient activity throughout the day. Patients who are at risk for suicide or for going “absent without leave” are monitored frequently by the staff to verify their presence on the unit. Usually the staff performs these types of patient checks anywhere from every 15 minutes to once an hour. These flow sheets may not be kept for a long period of time; therefore, it is important that they be requested immediately.

f. When you have got what you believe to be complete copies of the medical record, read through the record in its entirety. At some point during your review, you may need to research an unfamiliar subject or contact the appropriate medical specialist. As an attorney, you should review the record for your own purposes and for your adversary’s purposes. Identify the people involved in the occurrence and make a list of questions to ask each person who might be interviewed. Scrutinize every word that describes the details of the occurrence; writing in the margins, identify inflammatory or angry notes and discrepancies in notes.

g. At some point in the litigation you will be entitled to look at the original documents; at this time look for any alterations or questionable entries, missing pages, scratching out, writing over, and the use of different-colored inks and correction fluid. Everyone has his or her own organizational system and preparation process. The following methods have been recommended by professional medical review investigators and are useful when an attorney or the nurse attorney/nurse paralegal is reviewing medical records.

i. Photocopy the records so notes can be written on the copy.

ii. Alternatively, use self-stick notes to make comments on individual pages; do not write on the record itself.

iii. Use paper clips to divide the records.

iv. Number the progress note pages on the copy if that has not already been done.

v. Pull the photocopied chart apart and put it into organized sections so that different sections can be easily cross-referenced (such as doctor orders and laboratory reports).

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vi. Mark pages with important names, dates, and any other information that would be referred to during interviews or depositions.

vii. Create a time line.

h. Now that you have reviewed the files and are ready to proceed to depositions, make sure to reorganize your medical records. With respect to hospital records, organize each hospitalization individually by date of admissions. For multiple admissions to different facilities, organize them by facility. Use a binder and medical records tabs. When you are dealing with records from a physician’s office, organize them similar to hospital records, if possible. Look at the new patient history form that each doctor should have filled out for each new patient.

i. Separate out the progress notes and the correspondence and medical records excerpts from other providers and billers. Often there are hints that something went wrong with the production of the records, requiring you to look at the originals. Look in particular for: notes written on the same date but with different ink or different slant to the handwriting; change or difference in the alignment of the notes; writing that is crowded around other entries; words that are written over, under, or around original entries; billings that don’t match the treatment records; records that don’t make sense chronologically.

C. Using Them in Motions, Depositions and Trial

a. Prepare an outline for what you want to do with the medical records. In the case of a medical malpractice or personal injury lawsuit, insist that the original records be provided at the actual deposition. Most jurisdictions only provide for the provisions of copies prior to the deposition. Alterations to the records are not always obvious in a photocopy. Be sure to compare your copies to the originals.

b. When conducting a deposition of medical providers, be sure to ask them if they believe the record to be complete and accurate. Also ask them what medical records they have reviewed in preparation for the deposition, as this often leads to a new line for investigation or perhaps a waiver of privilege. Don’t forget to ask medical practitioners whether they maintain copies of the medical records.

c. After you have conducted depositions and are ready to go to trial, you now must ensure that you can get these medical records admitted. Each jurisdiction has its own particular rules, but generally you must meet the following requirements to get a medical record or a portion of a medical record admitted:

i. The record must be an original copy or, if not, a certified copy of the original.

ii. The record must be a complete and accurate copy and must be certified as such.

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iii. The use of the record must not be barred by privilege—in other words, you already should have obtained a waiver of this privilege.

d. Be sure to serve the custodian with a subpoena duces tecum. As a rule, courts don’t allow attorneys simply to walk in with their own set of medical records and offer them up for admission. This may happen should the attorneys, as a matter of courtesy, stipulate to the admissibility of records; don’t count on it, however. Even if you and the other attorney agree to it, the judge may not allow it. Procure therefore that affidavit or testimony authenticating the records.

e. In some jurisdictions, a subpoena that is served on a hospital must be so ordered by the court. The resulting records will be returned to court with the hospital’s certification that the records are admissible according to that particular State rules. Also keep in mind that many jurisdictions distinguish between the admissibility of medical records produced by a hospital and those produced by a private medical provider’s office.

f. Many jurisdictions require the custodian of the records of a doctor’s office to come in and testify that these records are kept in the ordinary course of business in order to get them in under the business record exception rule. Again, this particular rule is often done away with by stipulation of counsel that they will agree to the admission of medical records from a doctor’s office and that subpoena will not require the actual records keeper to appear. This professional courtesy with respect to doctors’ offices is generally encouraged by the trial judges.

D. Admission and Confidentiality Issues

a. Most jurisdictions require the following foundation for the admissibility of hospital records: The record must be a regular form of entry kept in the regular course of business of a hospital; the particular entry must be made in the usual course of business; the entry must be made close in time to the fact that it purports to record. Surprisingly, most hospital certifications are deficient in some respect.

b. Keep in mind that objections may be made to particular parts of a hospital record if the entry in a hospital record is not relevant to diagnosis and treatment. Because the following portions of hospital records are relevant to treatment, arguments can be made that they are admissible: dates of admission and discharge, symptoms, past medical history, present complaints, diagnosis, prognosis, treatment, history if relevant to the diagnosis and treatment, conclusions constituting the opinions of experts (e.g., a doctor’s statement that a patient is malingering), nurses’ notes, progress notes, lab reports, X-ray reports, and entries of observations or admissions indicating consumption of alcohol. Statements of non-expert opinions not based on observation are not admissible, nor are letters and data obtained from third persons admissible as part of hospital records.

c. Depending on the jurisdiction, you may also need to check whether or not a medical record is considered hearsay in itself or whether you have to establish a foundation

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for hearsay exceptions. In most jurisdictions, a statement made for the purpose of getting medical treatment is considered an exception to hearsay. This is the case both in Kansas and Missouri. In federal court under rule 803(4) and 803(3), even a statement made to persons other than those immediately able to render medical assistance will be admissible if it was made for the purposes of obtaining medical diagnosis and treatment.

d. However, be cautioned that when nursing notes or other medical records contain observations on the patient’s mental state, consciousness, or intoxication or admissions against interest by the patient, many jurisdictions require that the nurse or medical professional who entered the notes be available to testify in court as to the circumstances surrounding that entry. Therefore, when you want to use such an entry at trial, be prepared to identify and subpoena the person who made the entry.

e. X-rays, MRIs, CAT scans, and other diagnostic tests and films often have their own statutory rules for admission, and many hospitals will tell you they don’t consider them to be part of the medical chart or record. Check your local rules for the actual foundation requiring such materials to be admitted. For example, in some jurisdiction it is required that the X-ray or diagnostic films must have the names of the patient, the doctor, and the facility that conducted the test, as well as the date thereof on the actual film. Additionally, many local rules and the federal court permit you to have such films and such diagnostic tests admitted as evidence without bringing in the actual person who took the films or certification, provided you serve a copy of your intent to admit such films at trial on your adversary and permit him or her the statutory time to examine said films in your office.

Be aware of the “subject to connection” admonition, which many judges impose on medical records that you think have been admitted at trial. Despite your diligent efforts, you may find that many medical documents and many impressive narrative reports and diagnostic tools will not go to the jury because you have failed to introduce the proper testimony of a competent medical expert to explain them to a jury.

Plaintiffs’ counsel, when your case is over and the time for appeals has run, don’t forget to send letters to the providers revoking the HIPAA or other medical authorizations you gave on your client’s behalf. When your record retention requirements have been fulfilled, be sure to properly dispose of these records.

Ultimately, the use of medical records in your practice can be time consuming and expensive, but if done properly it will be worth the effort.

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Bad Faith and Punitive Damages:

Tactics to Maximize/Minimize

Submitted by Lisa A. Pake

          

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1. Pleading the Case to Recover Punitive Damages

As stated above, the insured must plead facts to show that the insurer refused to

settle due to evil motive or reckless indifference to the rights of the insured. These

allegations should be added to the more substantive bad faith elements, which are that the

insurer assumed control over the defense of the claim, that an offer to settle was made by

the underlying plaintiff within the policy limits and was brought to the attention of the

insurer, that the insurer wrongfully and in bad faith refused to settle within policy limits,

and that the insured was thereby damaged. Rinehart v. Shelter General Ins. Co., 261

S.W.3d 583, 594 (Mo.App. W.D. 2008).

2. Repeated Actions

Punitive damages are more likely to be awarded when the defendant engages in

repeated wrongful conduct rather than an isolated incident. See Lewellen v. Franklin, 441

S.W.3d 136 (Mo. banc 2014). An insured may prove bad faith by adducing evidence that

the insurer has repeatedly and wrongfully denied similar claims by other insureds. See

Rinehart, supra.

3. Intentional Malice, Trickery or Deceit

An insured may prove bad faith by adducing evidence that the insurer

intentionally disregarded the financial interests of the insured in the hope of escaping full

responsibility under the policy. See Rinehart, supra. Circumstances that demonstrate

this disregard may include not fully investigating and evaluating the claim, not timely

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responding to the insured, recognizing the severity of the underlying plaintiff’s injuries,

not fairly evaluating the claim and likelihood of an excess verdict, and refusing to

consider any settlement demand or not keeping the insured informed of settlement offers

or the risk of an excess judgment. See Allen v. Bryers, 2016 WL 7378560, *14 (Mo. banc

Dec. 20, 2016); Johnson v. Allstate Ins. Co., 262 S.W.3d 655, 662 (Mo. App. W.D.

2008). Certainly proof that the insurer’s employees and agents acted with malice or

deceit in their communications with the insured will go a long way to supporting an

award of punitive damages.

4. Physical v. Economic Harm

I am not aware of this issue being addressed by Missouri courts in the context of

an insurance coverage dispute. It is generally believed that courts are more likely to

award punitive damages against a defendant where the defendant has caused physical

harm to the plaintiff rather than simply economic harm. See Allen v. Bryers, 2016 WL

7378560, *14 (Mo. banc Dec. 20, 2016). The latter would be the type of harm an insurer

would cause to its insured. However, physical injury is not a mandatory prerequisite to

recover punitive damages.

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Maximizing Pain and Suffering Damages

in Auto Injury: New Spins on Old Techniques

Submitted by Robert J. Kasieta

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Auto Injury Litigation: Keeping Your Practice Up to Date Maximizing Pain and Suffering Damages in Auto Injury: New Spins on Old Techniques 

Robert J Kasieta 45 minutes 

 

  Most trial  lawyers would agree that juries have difficulty valuing pain and suffering. By 

comparison, it is quite easy to place a value on special damages. Medical expenses, after all, are 

whatever a doctor  testifies as being  reasonably  related  to  the  injuries. There might be  some 

dispute about  this, but  typically  the dispute centers on whether  the bills were  related  to  the 

crash. Once that determination  is made, there  is  little difficulty deciding how much should be 

awarded (again, assuming medical testimony supporting the bills). The same applies to wage loss. 

Loss of past earnings is a simple calculation that is the product of how much time one lost because 

of the crash multiplied by the rate of earning of the plaintiff. 

The challenge to plaintiff’s counsel is to make calculation of general damages as easy for 

the  jury as were special damages. Damages 3, by David Ball (Trial Guides, LLC), speaks to this 

issue in a very compelling way. It is a mandatory reading for those plaintiffs’ lawyers who want 

to take their level to greater recovery for their clients. At the start, there are a few concepts that 

must be  internalized.  First,  it  is never  appropriate  to  abandon  the  jury  to  its own  resources 

concerning this  important calculation. How many times have you heard  judges or  lawyers tell 

juries  regarding  general  damages:  “Members  of  the  jury,  nobody  can  help  you  with  this 

calculation. It is entirely up to you what you award for pain and suffering.” Why would anyone 

abandon the jury regarding what is the most difficult, and often the most important, decision the 

jury must make? The reason many lawyers have taken this position is that they lack the skill to 

help the jury to decide pain and suffering. You need suffer from this deficit no longer. 

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There  is an  important caveat before we discuss the procedure to assist the  jury  in this 

important area. Know what the law of your jurisdiction is regarding per diem arguments. Some 

jurisdictions strictly limit any suggestion that one can equate recovery of pain and suffering with 

some amount per minute, day, week, or year. (See, for example, Wilson v. Williams, 261 Kan. 

703: “a per diem or formula argument for placing value on pain and suffering occurs when time 

units of life are multiplied by a price of pain per unit.”) Be aware that in jurisdictions with strict 

limitations on per diem arguments, the strategy outlined in this section of the materials might 

not work. Where there is doubt, consider taking up the issue at a pretrial conference so that the 

court can advise whether this strategy violates any rule of the jurisdiction. Obviously, bringing 

this  strategy  to  the court’s attention prospectively  invites  the opposition of defense counsel. 

That, however, might be a better situation than blithely offering the evidence suggested in this 

section only to have the court instruct the jury at the close of your case that all that evidence is 

now irrelevant, or worse, that by introducing such evidence you have violated an important rule 

of your state. 

Step One: Promise the Jury Help with Pain and Suffering 

it is quite common to ask jurors regarding their thoughts about pain and suffering in voir 

dire. It is equally common to have some potential juror express reservations about quantifying 

pain and suffering. This is the crucial point of the trial where some attorneys (wrongly, I submit) 

tell the jury: “No one can help you in valuing pain and suffering. Not me, not opposing counsel, 

not even the judge.” This merely communicates to the jury that it is going to be charged with an 

impossible task, one that exceeds the substantial abilities of all the lawyers in the case and that 

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even  is  beyond  the  abilities  of  the  judge.  Imagine  that  you  are  a  lay  juror  hearing  in  this 

admonition. Perhaps it takes jury duty from a daunting task to an impossible task. 

Consider  instead, when some potential  juror expresses  reservations about quantifying 

pain  and  suffering,  offering  the  following  response:  “Thank  you  for  your  candor, Ms.  Juror, 

regarding your reservations about this area. It is very important. I promise that I will help you to 

calculate these damages before the case is over.” Rather than turning the jury loose to its own 

devices, this statement invites the jury to stay tuned for further explanation. It is imperative, of 

course, that such explanation follows when it is promised. 

The strategy outlined in this section is vital for one additional reason. In the tort reform 

era in which we live, when counsel does not help the jury to calculate pain and suffering, counsel 

likely permits the jury to revert to a tort reformed worldview, where a verdict of significant value 

serves no purpose and actually undermines the justice system. Please remember: much of what 

we do in the courtroom is, of necessity, an attempt to reverse the tort reform mantra to which 

so many jurors have been subjected. 

Step Two: Offer Evidence to Support the Calculation 

Once the promise has been made in voir dire that counsel will help the jury to calculate 

pain and suffering, that promise must be kept. Keeping this promise to the jury starts long before 

trial. From early interaction with the plaintiff, identify key witnesses in all aspects of the plaintiff’s 

life. There will likely be people from plaintiff’s work life. There will be family members. There will 

be those who participate (or participated) in recreational activities. There might be people from 

the faith community where the plaintiff worships. In short, all aspects of plaintiff’s life must be 

examined  to mine  from  them  the ways  in which  pain  and  suffering  have  affected  plaintiff’s 

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existence. At our office, we refer to this as the “360°” analysis. It is common to hear lawyers at 

Kasieta  Legal Group  ask  each other:  “Have we  completed  the  360  on  this plaintiff?”  That  is 

shorthand for, “Have we developed all lay testimony to support calculation of pain and suffering 

at trial?” 

This analysis  is  vital  to  identifying  individuals who  can  assist  at  trial. Where pain  and 

suffering is built only on plaintiff’s testimony, it is weaker than where comparatively disinterested 

witnesses offer testimony about pain and suffering. Where the plaintiff and the plaintiff alone 

offers evidence of pain and suffering, the jury is left with the impression that there is no one who 

could  vouch  for  the  plaintiff.  There  is  also  the  great  risk  that  the  plaintiff  becomes  the 

quintessential “whiner.” Juries are reluctant to accept such testimony offered by such a witness. 

Consider instead where you offer the testimony of multiple lay witnesses from different parts of 

the plaintiff’s world. Perhaps one witness comes into talk about difficulties the plaintiff has had 

at work. Another witness comes into talk about how the plaintiff struggles to play golf when she 

was previously a scratch golfer. Still another describes how the plaintiff no longer appears joyful 

at religious services. 

So how do you get these lay witnesses to share this vital information with the jury? The 

answer comes from another publication, which every skilled trial  lawyer should read. Winning 

with Stories: Using the Narrative to Persuade in Trials, Speeches, and Lectures, by Jim M. Perdue 

(Trial Guides), is a masterful work by a skilled trial attorney. Perdue uses stories to teach the jury 

about the key elements of proof in the case. He provides great guidance regarding how to craft 

an effective story. Everyone claiming to be a competent plaintiff’s attorney should have Perdue’s 

approach in his or her arsenal. 

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Each lay witness called by the plaintiff has a story to tell the jury. On direct examination, 

plaintiff’s  counsel  elicits  the  story  from  the  witness.  The  story  should  have  the  following 

elements:  it should evidence the way the plaintiff  is trying to overcome deficits related to the 

crash;  it should use  language that permits the  jury to picture the plaintiff performing the acts 

described in the story; it should be uplifting, not depressing; and it should contain some element 

of quantification. 

An example might help to explain. Here is a story from an actual case. Plaintiff was an 88‐

year‐old  grandmother.  She  injured  her  back  and  shoulders  in  the  car  crash. One  of  the  lay 

witnesses who came forward to tell stories was her granddaughter. Here’s the story she told: 

“One of the things I remember best growing up is Grandma making breakfast for our whole family 

on holidays. She had the big old family farmhouse that everyone would converge upon for the 

holidays and she would get up early and start cooking before anyone else arose. The house would 

fill with  the great  smell of hot  cross buns  that  she would bake,  scrumptious  cinnamon  rolls, 

wonderful special things! Maybe what  I remember best  is how Grandma’s face glowed as she 

watched the children and grandchildren enjoying breakfast, talking among themselves, getting 

reacquainted.”  

“Then  the accident happened. The  first holiday came after  the accident and we again 

converged on the old farmhouse, happy to be together. Grandma seemed weaker than she had 

before, but her spirit certainly wasn’t weak. She joined in the chatter with all the grandkids, even 

showed us her new iPad, bragging about how she was up to date on her technology so that we 

kids didn’t have anything over on her. The next morning came and I got up early for some reason. 

Maybe it was the banging in the kitchen I heard as Grandma preparing breakfast. Anyway, I went 

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downstairs to help her  in the kitchen. She was trying to make some batter for some breakfast 

rolls and as I came into the kitchen I could see that she was struggling just to stir the batter. She 

looked weak and her hands were shaking. She seemed embarrassed when she looked up and saw 

me. I asked her she was okay and she brushed off the question with a laugh, telling me that if we 

went outside and raced across the lower pasture, she would still win. I knew it wasn’t true. I knew 

she was hurting.”  

“The next holiday, we all went back to Grandma’s house. She insisted. We suggested that 

it might be  too much  for her, but  she was adamant. Before we  turned  in on  the  first night, 

Grandma said she had a surprise. She told us she was going to take us all to breakfast at a local 

restaurant the next morning. She tried to seem happy about this, but I sensed her sadness. I also 

knew that with her income, this might be a real hardship. The next morning, we all bundled into 

our cars and headed for breakfast. There were eighteen of us. She insisted on buying breakfast 

for everyone. I know that  it was more than $350 for the entire meal. She wouldn’t  let anyone 

help pay the bill. We all felt really guilty, but she was stubborn about it. I knew that she was taking 

us out to eat because she couldn’t manage baking for us anymore. It was great fun, but not the 

same as those big farm breakfasts with everyone banging around the house.”  

“The next holiday, we invited Grandma to my house. It’s not as big as hers, and everyone 

couldn’t come over and stay, but we still had some nice times together.” 

Note the qualities of the story. It is poignant, but not maudlin. There is sadness, but there 

is also nobility in the plaintiff’s desire to continue doing the things she did before. The plaintiff 

doesn’t quit in the story. In fact, she tries to overcome. In addition, the story builds in a number, 

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$350, that the jury can ultimately use in its calculation of pain and suffering. We will see how in 

the next section. 

Step Three: Do the Calculation in Summation 

During  trial,  each  lay witness  from  the  360°  analysis  should provide  a  story with  the 

elements outlined above. It is vital that the stories contain some damage figure from which the 

jury can calculate pain and suffering. The story immediately above contains such a figure. Other 

examples  include:  a  fellow  church member  who  describes  how  the  plaintiff  now makes  a 

monetary gift of $100 every quarter  instead of participating  in  fund  raising activities  for  the 

church like she used to, or a neighbor who testifies that the plaintiff hires a gardener from time 

to time, the same one that the neighbor uses, and that the gardener charges $1000 per summer 

for the work he does at the plaintiff’s house. These kinds of stories typically abound if only you 

look for them.  

Recount the highlights of the story in the closing argument of the plaintiff, suggesting, as 

David Ball does, that pain and suffering damages are the way that the law “fixes, helps, or makes 

up for”  losses suffered by the plaintiff. Begin this portion of the closing by reading the verdict 

question concerning pain and suffering. Then, use helpful language from the jury instruction to 

assist  the  jury  in understanding how  to calculate general damages. Finally, explain  in detail a 

PowerPoint slide that calculates the pain and suffering, like the slide below: 

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It is helpful to conclude the conversation regarding the slide by pointing out to the jury 

that the  jury might also have picked up on additional  items of pain and suffering that  it could 

include in the damage calculation. Also, don’t be bashful about pointing out to the jury that you 

promised them in voir dire that you would help them to calculate the pain and suffering damages 

and that now you are doing so. Be certain to make the timeframe of damages (10 years, 15 years, 

20 years) reasonable and consistent with medical testimony offered at trial. 

 

B. Quantifying Future Pain and Suffering 

Future pain and suffering is very difficult to quantify, especially because we are limited in 

our ability to make per diem arguments. It would be easier to be able to suggest to a jury that 

$10 per day for the life expectancy of the client would be fair compensation. That is prohibited, 

however, in the clear majority of jurisdictions. 

The real challenge to future pain and suffering damages is the issue of speculation. How 

could we possibly know what the future holds for the plaintiff? We certainly don’t know exactly 

what it holds for ourselves. So, juries are told that they are not supposed to speculate and then 

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we placed squarely before them the issue of future pain and suffering, asking them to perform 

the very speculation that they are warned against elsewhere in the standard jury instructions. 

So, what is the antidote? Medicine, uncontested facts, and common sense. Doctors use 

the term “prognosis” to describe their prediction of the future. Juries accept doctors’ prognoses 

on a regular basis. Starting in voir dire, get the jury to reflect upon the notion of prognosis as the 

best available information for predicting the future. Get potential jurors to think about the times 

in their lives when they have asked their doctors about what the future holds. Then, when the 

treating physician  is on the stand,  introduce the concept of prognosis, use the term “medical 

certainty,”  and  ask  the  physician  to  a  reasonable  degree  of medical  certainty  what  is  the 

prognosis for the plaintiff? If the doctor is prepared to say that the prognosis is that there will be 

some permanency, ask the doctor to explain the rationale  for that conclusion.  (I  like to avoid 

calling doctors’ statements “opinions,” because if I can make them “conclusions,” they seem to 

have more staying power. 

Couple doctors’ prognoses with objective  indicators that support the claim. Where, for 

example, an orthopedic surgeon performs active range of motion  testing on  the plaintiff,  the 

orthopedic surgeon will typically be able to testify with great certainty that the plaintiff has the 

pain about which she complains. The physician can often report that the complaints of pain are 

legitimate because the doctor has tested them through the active range of motion process. 

Regarding  psychological  claims,  often  psychologists  will  testify  that  there  is  no 

malingering  because  the  test  vehicles  used  by  psychologists  across  the  country  test  for 

malingering  and  that  in  the  instance  of  any  particular  plaintiff,  there  were  no  findings  of 

malingering. 

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Muscle spasms are another objective indicator of pain. Physicians will typically testify that 

patients cannot artificially create muscle spasms. Muscle spasms are an attempt by the body to 

use the muscles to bridge for week connective tissues. These spasms are an involuntary response 

to pain. Therefore, they indicate that the pain is real. 

These are  just a  few of  the examples of objective  indicators of pain  that give  the  jury 

confidence that the pain is real. These are objective indicators move us away from begging the 

jury to accept the subjective testimony of our clients. Instead, we can stand before the jury in 

closing and tell the jury that they don’t have to believe us that the injury is serious or permanent. 

They need only listen to a physician who has no stake in the outcome of the case. They need only 

listen to the bodies of our plaintiffs, which are  indicating  in ways that cannot be falsified, that 

these injuries are real and significant. 

Common sense is another ally in this battle. In voir dire, jurors will often recount times 

where they sustained an injury and they understood that if it did not heal in a certain timeframe, 

the injury would be permanent. This concept is not foreign to jurors, and so, they are more likely 

to be willing to accept it because it fits with what they already believe. Another example of this 

is painful treatment like interstitial injections. Where a plaintiff undergoes a painful treatment or 

surgery,  it begs for an argument  in closing that the plaintiff would most assuredly never have 

done that unless the pain was real. Even the most cynical juror will be reluctant to accept the 

notion  that  the  plaintiff  fused  her  spine  to  enhance  personal  injury  recovery.  So, make  the 

argument that ties to what the jury already accepts. Try it out on a focus group. You will find that 

people generally believe that painful procedures indicate that the injury is authentic. 

 

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C. Reasonable vs. Unreasonable Medical Costs and Treatment 

Sometimes,  defense  insurers  try  to  argue  that  the  medical  expenses  are  patently 

unreasonable. This is a relatively rare argument in my experience because it pits the defense not 

against plaintiff’s counsel but against the medical profession that tried to help the plaintiff. It can 

actually help plaintiff’s counsel to point out the cynicism of the defense. It can open the door to 

arguments. Has the defense paid any of the medical expenses, even those that they consider to 

be  reasonable? Has  the defense doctor  suggested any  treatments  that are  inconsistent with 

anything that the plaintiff received? Is the defense doctor willing to assert that it was malpractice 

or excessive treatment on the part of the physician that ordered the treatment that the defense 

tries to question? Did the defense obtain a defense doctor to opine on these issues at all? You 

can see how these issues play for the plaintiff. 

When  faced  with  an  issue  of  challenge  to  the  reasonableness  of medical  cost  and 

treatment, rely upon medical support. Doctors will aggressively defend their decisions. Get the 

physicians to defend why certain tests were run, medications prescribed, etc. Get the doctors to 

rule out  the questionable expenses  as experimental  treatment.  The  treatment must be  that 

which is quite ordinary for the physician involved. If it is truly experimental, have the doctor spent 

time explaining why it was justified in this case. Do not gloss over this issue. Juries are sometimes 

receptive to criticisms of the healthcare profession and you want to avoid anything that fuels that 

cynicism by suggesting that you’re hiding any aspect of the treatment. Choose the most effective 

physician among the treaters to carry the argument on this issue. 

Even though the defense does not bear the burden of proof, juries are generally willing 

to accept that where the defense raises an argument that goes to the heart of the integrity of 

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the plaintiff’s  claim,  the defense  should have  some evidence of  that.  So, where  the defense 

asserts that treatment has been excessive, ensure that the defense is held to provide proof. In 

closing, ask the jury whether the jury is satisfied that this extreme allegation of overtreatment or 

misrepresentation (call it “lying” when the defense overplays its position) was accompanied with 

sufficient proof to satisfy the jury that the defense was being honest. Shift the burden: phrase 

the argument in terms of the honesty of the defense. Too often, defense counsel advances the 

argument of overtreatment almost as an afterthought. We can’t let them get away with that. It 

is unfair to the process and to the plaintiffs we represent. 

 

D. Evidence Needed to Determine Severity 

Severity  is  a  difficult  issue  because  disabling  pain  to  one  plaintiff might  not  have  a 

profound effect on another. Each plaintiff responds to pain on a personal level. Yet, the plaintiff 

who is particularly sensitive to pain and who has an objectively modest injury, might suffer more 

than the plaintiff with a high pain tolerance who has a more serious objective injury. 

Evidence of severity comes from many sources. The plaintiff must have some ability to 

articulate the severity of the injury. It is vital, however, not to build the entire proof of severity 

around the plaintiff. Too often, plaintiffs interpret this role as an obligation to whine. Juries never 

respond well  to whiners.  Therefore,  other  lay witnesses  are  frequently  the  better  choice  to 

provide proof to the jury of the severity of the plaintiff’s suffering. Choose lay witnesses who can 

tell  stories  effectively.  Be  certain  that  the  stories  focus  on  the  plaintiff’s  valiant  effort  to 

overcome the severity of the injury. It is, perhaps, counterintuitive, but juries respond better to 

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stories that show the plaintiff overcoming the  limitations of the  injury than those stories that 

demonstrate how the plaintiff languishes in defeat. 

Doctors can also help with proof of severity. Be careful with this source, however, because 

doctors see so many terrible  injuries. For example, where an emergency room doctor testifies 

regarding  a  whiplash‐type  injury,  the  testimony  is  likely  to  be  uninspired.  After  all,  these 

physicians see the most catastrophic injuries imaginable. Someone arriving on a backboard who 

has  no  fracture  and  is  released with  a  soft  cervical  collar  is  not  going  to  generate  dramatic 

testimony from an emergency room physician even if that event was the most dramatic of the 

life of that plaintiff. So, choose witnesses who can bring the jury with them through the trauma 

that was the plaintiff’s injury. 

 

E. Proving Residual Earning Capacity (Diminution) 

Lost earning capacity often represents a significant percentage of the damage suffered by 

the plaintiff. Some plaintiffs’  lawyers have difficulty with this area.  It can be quite easy  if one 

relies upon certain basic steps. 

First, be certain that a physician has a strong permanency opinion for the plaintiff. There 

is no justification for pursuing a loss of earning capacity claim where there is no permanent injury. 

The nature of the proof of permanency is covered elsewhere in these materials. 

Often,  it  is  also helpful  to obtain  a  functional  capacities evaluation  from  the primary 

treating physician. This evaluation  identifies  the physical activities  from which  the plaintiff  is 

limited. Many  vocational  rehabilitation  consultants  will  not  complete  their  work  without  a 

functional capacities evaluation form. 

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The next step in the process, once one has obtained a permanency opinion and there is a 

functional capacities evaluation,  is a vocational consultant  interview.  It  is  important  to  find a 

vocational expert who has previously testified. These experts have a  level of comfort with the 

judicial  process.  They  are  also  frequently  quite  skillful  in  communicating  to  a  jury why  this 

evidence  is  so  vital  and  real.  Often,  vocational  consultants  conduct  pre‐and  post‐morbid 

comparisons. That is, these professionals compare the occupations for which the plaintiff had the 

capacity before the subject incident with those occupations for which the plaintiff is now suited 

after the subject incident. Often, the cornerstone of this analysis is the Dictionary of Occupational 

Titles.  

One of the vulnerabilities of this area of damage is that it seeks to compensate the plaintiff 

for a loss of earning capacity. “Capacity” by its very nature is somewhat theoretical. A plaintiff 

might never have become an astronaut, even without  the  intervention of  the  crash, but  the 

plaintiff might have had the capacity to be an astronaut before the crash occurred. It is important 

that the vocational consultant have the capacity to explain to the jury why this is reasonable. It 

can appeal to the jury’s common sense if presented properly. 

 

 

 

 

   

90

Economic Damages

Submitted by William K. Holland

91

92

William Holland 

Goldblatt + Singer 

8182 Maryland, Ste. 801 

Clayton, MO 63105 

(314) 231‐4100 

 

V. ECONOMIC DAMAGES 

 

I. Factors That Impact Damages Calculations 

a. Permanency – Fractures, Surgery, Scarring 

b. Particularity – Sense of Taste, Smell, etc.  

c. Punitive – makes everything worse 

i. Plaintiff must establish by clear and convincing evidence that defendant’s 

conduct demonstrated complete indifference or conscious disregard for 

the safety of others 

ii. Intended to punish the defendant and deter similar conduct by the 

defendant and others, not to compensate the plaintiff  

iii. Jury selection: jury can be asked if there would be any prejudice or bias 

against awarding punitive damages; if so, instructed by the court 

(Ashcroft v. TAD Resources Intern., 972 S.W.2d 502 (Mo. Ct. App. W.D. 

1998)) 

 

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iv. Evidence 

1. Defendant’s net worth is admissible but not required (See M.P. 

Industries, Inc. v. Axelrod, 706 S.W.2d 589 (Mo. App. E.D. 1986)) 

2. Mitigating circumstances: defendant may present evidence 

showing his attempts to mitigate or actual mitigation of plaintiff’s 

loss and damage (Maugh v. Chrysler Corp., 818 S.W.2d 658 (Mo. 

App. W.D. 1991)) 

v. Factors to be considered in assessing punitive damages dollar amount:  

1. Nature of the tort 

2. Amount of actual damages 

3. Defendant’s financial position 

4. Legal expenses 

5. Degree of malice 

6. Nature, type and extent of injury  

7. Criminality, if any, of the acts meriting a punitive damage award 

8. Intelligence and standing of the defendant 

vi. Bifurcated Trial: RSMo. 510.263 requires a bifurcated trial on issue of 

punitive damages on request by either party 

1. Stage 1: jury determines liability for compensatory damages, 

amount of compensatory/nominal damages, and liability for 

punitive damages 

2. Stage 2: jury determines the amount of punitive damages 

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II. Expenses & Property Damage 

a. Actual Property Damage 

i. Plaintiff is entitled to recover the difference between the value of the 

property before the accident and its value afterward 

ii. Where a property owner is the victim of a tort that destroys his property, 

the law seeks to restore him for his “full actual loss” by awarding him the 

“monetary equivalent” of the destroyed property so as to place him in 

“as good a position as he would have enjoyed in the absence of the 

destruction.” Gateway Foam Insulators, Inc. v. Jokerst Paving & 

Contracting, Inc., 279 S.W.3d 179 (Mo. banc 2009). 

b. Loss of Use or Enjoyment 

i. In some cases, damages may be awarded for the loss of use of the 

plaintiff's vehicle or other property damaged in a collision. Such damages 

may include lost profits from business interruption, although in most 

cases of damage to a vehicle, the rule of mitigation would require the 

plaintiff to act within a reasonable time to reduce damages by replacing 

or repairing the vehicle.  

ii. The time period in which Plaintiff acted can be considered reasonable so 

long as Plaintiff “exercised reasonable diligence” or if the delay was 

“occasioned by [D]efendant.” Gateway Foam Insulators, Inc. v. Jokerst 

Paving & Contracting, Inc., 279 S.W.3d 179 (Mo. banc 2009). 

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iii. “Traditionally, a plaintiff whose property is damaged and can be repaired 

can recover either (1) the cost of renting a similar piece of property for 

the period of repairs or, (2) if a rental is not available, lost profits for that 

repair period.” Gateway Foam Insulators, Inc. v. Jokerst Paving & 

Contracting, Inc., 279 S.W.3d 179 (Mo. banc 2009). 

III. Lost Wages 

a. Verifying Lost Wages 

i. Letter from Employer 

1. On company letterhead 

2. Time missed from work due to injuries 

3. Normal wages/normal hours per week 

ii. Tax Returns 

iii. Independent Contractor 

1. Tax returns 

2. W2s 

3. Forensic Accountant 

IV. Future Lost Earnings & Earning Capacity 

a. Permanent Disability  

i. Vocational Rehabilitation Specialist: combines medical limitations with 

results of vocational testing and predicts highest paying job plaintiff 

would be able to hold 

ii. Economist: reduces future lost wages to current fair market value 

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b. Partial Lost Earning Capacity 

i. Vocational Rehabilitation Specialist 

c. Special Economic Damages for Loss of Minor Child 

i. RSMo. 537.090: there is a rebuttable presumption that the value of the 

annual economic loss because of the death shall be calculated based 

upon the annual income of the deceased child's parent, if only one 

parent works. If both parents work, then the loss is to be calculated 

based upon the average of both parents' income. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Missouri Revised Statutes

Chapter 537 Torts and Actions for Damages

←537.085 Section 537.090.1

537.095→

August 28, 2016

Damages to be determined by jury--factors to be considered.

537.090. In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable. If the deceased was not employed full time and was at least fifty percent responsible for the care of one or more minors or disabled persons, or persons over sixty-five years of age, there shall be a rebuttable presumption that the value of the care provided, regardless of the number of persons cared for, is equal to one hundred and ten percent of the state average weekly wage, as computed under section 287.250. If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased's parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.

(RSMo 1939 § 3654, A.L. 1945 p. 846, A.L. 1955 p. 778 § 537.080, A.L. 1967 p. 663, A.L. 1973 H.B. 173, A.L. 1979 S.B. 368, A.L. 2005 H.B. 393)

Prior revisions: 1929 § 3264; 1919 § 4219; 1909 § 5427

CROSS REFERENCE:

Applicability of statute changes to cases filed after August 28, 2005, 538.305

 

 

 

 

 

 

98

Liens and Subrogation Made Simple

Submitted by Michael J. Mohlman

99

100

LIEN INVESTIGATION AND RESOLUTION

Michael J. Mohlman Smith Mohlman Injury Law, LLC

4600 Madison Ave., Suite 711 Kansas City, Missouri 64112

Telephone: (816) 866-7711; Facsimile: (816) 866-7715 mike@accidentlawkc.com

http://www.accidentlawkc.com/

As a general rule, neither Kansas nor Missouri allow a third-party (e.g., an

insurance company) to make a subrogation claim against an injured party’s tort recovery.

In Missouri, as a matter of public policy, an insurer may not acquire part of the insured's

rights against a tortfeasor by reason of payment of medical expense, either by assignment

or by subrogation.” Waye v. Bankers Multiple Line Ins. Co., 796 S.W.2d 660, 661 (Mo.

App. W.D. 1990); Jones v. Aetna Casualty & Sur. Co., 497 S.W.2d 809, 812 (Mo. App.

W.D. 1973).

In Kansas, this anti-subrogation rule is governed by regulation. K.A.R. §40-1-20

provides that an insurance company shall not issue contracts of insurance in Kansas

containing a “subrogation” clause applicable to coverages providing for reimbursement

of medical, surgical, hospital or funeral expenses.

Accordingly, absent preemptive state or federal law, insurance subrogation is not

allowed in either Kansas or Missouri.

A. Medicare

a. Medicare Part A (Hospital Insurance) & Part B (Medical Insurance)

The federal government has a statutory lien for payments made under the

Medicare Secondary Payer Act (MSP). The Act provides that Medicare may not make

payments when, “payment has been made or can reasonably be expected to be made

under a workmen’s compensation law or plan of the United States or a State or under an

automobile or liability insurance policy or plan (including a self-insured plan) or under

no fault insurance,” unless payment is made as a conditional payment. Where there is a

“conditional payment,” the United States is making payment conditioned on being

reimbursed from any recovery from an insurance policy. To make that recovery, the

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United States may bring a direct action against any entity responsible for making

payments or any other person or entity that has received payment from a primary insurer.

If it is necessary for the Centers for Medicare and Medicaid Services (CMS) to take legal

action to recover from the primary payer, CMS may recover double damages.

Below are my firms “Instructions” for dealing with Medicare:

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MEDICARE/CMS INSTRUCTIONS

A. At the initial meeting with the client: a. The client will need to sign a Proof of Representation (form attached) b. Make a copy of the client’s Medicare card c. Ask about additional assistance (i.e. Medicaid, etc.).

B. Once signed you will need to complete the remainder of the Proof of

Representation a. Make sure printed name and card number read exactly as listed on the

client’s card. b. Attorney handling the claim will need to sign where appropriate.

C. Draft a Letter of Representation to send along with the forms. (example attached).

D. This is what you need to fax to MSPRC-NGHP (Medicare): a. SM Letter of Representation b. Proof of Representation form c. Client’s HIPAA (just to be safe)

E. Fax the documents listed in “D” to 405-869-3309

a. Other contact info: MSPRC-NGHP P.O. Box 138832 Oklahoma City, OK 73113

Phone: 866-677-7220

F. Once MSPRC has opened a claim (can take several weeks) you will receive a letter with a CASE ID.

a. Calendar a follow-up call for 3 weeks out if you do not receive a letter within that time.

i. Often, they can open the claim over the phone ONLY IF THEY HAVE RECIEVED THE AUTHORIZATION FORMS THAT WERE FAXED.

ii. You may have to re-fax the documents again (sometimes a 3rd time).

b. Once you have a CASE ID you can review the claim and do pretty much anything else on the CMS web portal (Medicare Secondary Payer Recovery Portal).

i. https://www.cob.cms.hhs.gov/MSPRP/ (see portal instructions below)

ii. Before you can access the portal, you will need to ask Marie to set you up as an account designee.

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1. Once she lists your information on the portal you will receive an email from the portal with further instructions on how to log in etc.

iii. IT IS VERY IMPORTANT THAT YOU DO NOT EVER LOCK YOURSELF OUT OF THE PORTAL (wrong user name/password) IT IS A MAJOR PAIN TO UNLOCK THE ACCOUNT.

G. At some point you will need to request the Medicare Conditional Payments

a. Do this once treatment is completed, or the attorney requests it, or 90 prior to mediation.

b. The request can now be easily made on the CMS portal (portal instructions below).

c. The Conditional Payment letter and payment log will come by mail anywhere from 10 days to 65 days later

i. Review the payment log for any unrelated claims. ii. If there are unrelated claims, you will need to dispute them so they

will no longer be considered part of the claim 1. This can now be easily done on the portal (portal

instructions below). 2. If you dispute claims, you will get the same “conditional

payments” letter with a new amount or reason for denial of the disputed claims.

H. Once you have reached a settlement you will need to request the Medicare FINAL

Demand Amount. a. This can easily be done on the portal (portal instructions below).

i. You will need to upload a copy of our expenses. ii. If you have to fax the demand form (see attached) for whatever

reason you also send a copy of the expenses and fax to: 1. 405-869-3309 (settlement info)

b. You will receive a letter anywhere from 10-65 days that has a “Demand Amount” on the front of the letter. This is the final amount owed to them.

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CMS/MEDICARE SECONDARY PAYER PORTAL INSTRUCTIONS

A. Website is: https://www.cob.cms.hhs.gov/MSPRP/ a. Scroll to the bottom and select “I Accept” b. Sign in with the user name and password you set up

i. IT IS VERY IMPORTANT THAT YOU DO NOT EVER LOCK YOURSELF OUT OF THE PORTAL (wrong user name/password) IT IS A MAJOR PAIN TO UNLOCK THE ACCOUNT.

B. Welcome Page a. Scroll to the bottom of page, left hand side where it says:

i. Request Case Access ii. Case Listing

b. If you are looking at a client’s claim for the 1st time on the portal you will need to select “Request Case Access”

i. All the requested information to fill in the blanks will be on the CMS/Medicare letter you received that has the Case ID.

ii. “Insurance type” 1. For our purposes MOST of our claims will be “No Fault”

iii. Select “Continue” (information and further instructions will be on next screen)

c. If you have previously viewed a client’s claim on the portal select “Case Listing”

i. This screen will list all of the clients that you have previously setup/viewed on the portal.

ii. To review a claim, select the numbers under “Case ID” d. Case

C. Case Information Page a. Here you can view information such as conditional payment amount, date

letters were sent to SM. b. You can also:

i. View/request authorizations ii. Request an updated conditional payment letter

iii. View/Dispute claims iv. Provide a final settlement information

D. View/Dispute a claim E. Provide Settlement information

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March 12, 2018 Via Fax: 405-869-3309 MSPRC-NGHP P.O. Box 138832 Oklahoma City, OK 73113 RE: Our Client: Lexie Oliver Date of Incident: 01/07/2018 Date of Birth: 05/31/1937 Medicare Card No: 511-30-4819-A Dear Sir or Madam: Our office represents Lexie Oliver in a claim relating to injuries she received in a fall on January 7, 2018. We are writing to inquire whether Medicare made any conditional payments on behalf of Mrs. Oliver. If such payments were made, we ask that you provide us an itemization of those payments. To facilitate our request, I have enclosed a Proof of Representation and a HIPAA-compliant Medical Authorization. We appreciate your help in this matter. If you have any questions or concerns, or need additional information, please feel free to contact us. Very truly yours, Michael J. Mohlman MJM/ms Enclosures

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b. Medicare Set-Asides

A Medicare Set-Aside is a trust or trust-like arrangement that is set up to hold

settlement proceeds for future medical expenses. A specialized company evaluates your

future medical needs, recommends an amount that should be set aside for future medical

care, and the government approves the amount. The funds are then either placed in the

Medicare Set-Aside account in one lump-sum or the account is funded with a "structured

settlement annuity" that will refill the account over time. In either case, the administrator

of the Medicare Set-Aside trust may use the funds only to pay for medical care related to

your personal injury, leaving Medicare or your private insurance free to provide coverage

for medical expenses that are not related to your injury.

Many people are under the impression that MSAs are now required in personal

injury litigation (they have been required in workers’ compensation cases for some time).

That is simply not true.

When you settle a claim in which Medicare may be implicated, your duty is not to

“protect” Medicare’s interest. It is to “consider” it. An MSA may do that. Other things

may also do that. One possibility is to get a letter from a treating doctor stating that no

future treatment is expected.

The trick is to fully advise your client regarding their options, risks and benefits. As a

side note, I understand that CMS has begun to get aggressive by refusing to pay for

patient’s future care that it believes the patient was compensated for by a past tort

settlement. This increases the practical and ethical considerations that must take place.

c. Self-Calculation/Fixed Percentage

The Self-Calculated Conditional Payment Amount enables the attorney to self-

calculate the demand amount before settlement in certain situations. The following

conditions must be met for Medicare to provide the demand amount before settlement is

reached:

The claim and settlement must be for an injury caused by physical trauma. The settlement cannot involve or relate to injuries caused by exposure, ingestion, or medical implant.

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Medical treatment for the injury must be completed with no further treatment expected. Treatment must have been completed at least 90 days before the proposed conditional payment amount is submitted to Medicare. These requirements are proven to Medicare by providing either: A physician’s written confirmation or Medicare beneficiary certification that he or she has not had care related to the case within the last 90 days and expects no further care.

The total settlement, judgment, award, or other payment cannot exceed

$25,000. The date of the incident must have occurred at least six months before

submitting the self-calculated final conditional payment amount to Medicare. The beneficiary will be asked to give up the right to appeal the amount or

existence of the debt. However, he or she will keep the right to pursue waiver of

recovery. Forms to complete self-calculation are on the CMS website.

If a settled case meets certain eligibility criteria, the beneficiary may request that

Medicare’s demand amount be calculated using the Fixed Percentage Option. The Fixed

Percentage Option offers a simple, straightforward process to obtain the amount due to

Medicare. It eliminates time and resources typically associated with the Medicare

Secondary Payer (MSP) recovery process since there is no wait for Medicare to

determine the conditional payment amount prior to settlement. The Fixed Percentage

Option may be used if the following eligibility criteria are met:

The liability insurance (including self-insurance) settlement, judgment, award or other payment is related to an alleged physical trauma- based incident and;

The total settlement is for $5,000 or less; The beneficiary elects the option within the required timeframe and Medicare

has not issued a demand letter or other request for reimbursement related to the incident.

The beneficiary has not received and does not expect to receive any other

settlements, judgments, awards, or other payments related to the incident. Again, forms to take the fixed percentage option are on the CMS website.

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d. Wrongful Death

The death of a Medicare beneficiary does not change or reduce Medicare’s

interest in recovering payments made on behalf of the beneficiary. Similarly, not

claiming medical bills does not change or reduce Medicare’s interest.

e. Medicare Part D/Medicare Advantage

Medicare Part D provides prescription drug coverage to eligible beneficiaries.

Medicare Part D is covered by the Prescription Drug Plans (PDP). PDP is similar to

Medicare Managed Care Plans known as Medicare Advantage.

Medicare Advantage plans, also referred to as Part C plans, are an alternative to

traditional Medicare. Part C is not a separate benefit. It is the part of Medicare that allows

private health insurance companies to provide Medicare benefits though health plans,

such as HMOs and PPOs. Medicare Advantage plans must offer at least the same benefits

as Original Medicare (those covered under Parts A and B) but can do so with different

rules, costs and coverage restrictions. These HMOs and PPOs contract with the Centers

for Medicare and Medicaid Services (“CMS”) to administer Medicare benefits. In turn,

the federal government pays the Part C plan a monthly per capita rate.

The secondary payer rights of Part C and D plans has been disputed for a number

of years and the debate is still ongoing. It can be argued that Part C and D do not have

any lien rights against personal injury settlements. Rather, their recovery rights would be

based in contract as opposed to the Secondary Payer statute.

Recently, however, the U.S. Supreme Court denied the petition for writ of

certiorari in In re Avandia Marketing, Sales Practices and Product Liability Litigation,

685 F.3d 353 (3d Cir. 2012), In Avandia, the Third Circuit held that the Medicare

Advantage Organization statute (42 U.S.C. §1395w-22(a)(4)) cross references the

Medicare Secondary Payer Act’s (“MSP”) language (42 U.S.C. § 1395y(b)(2)(A)) which

allows these plans to utilize the enforcement provision of the MSP (42 U.S.C.

1395y(b)(3)(A)). The fact that U.S. Supreme Court denied certiorari gave MAO plans the

argument that they now have the same rights for a private cause of action as traditional

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Medicare. In 2016, the Eleventh Circuit endorsed the Third Circuit’s view in Humana

Medical Plan, Inc. v. Western Heritage Ins. Co., 832 F.3d 1229 (11th Cir. 2016).

If a Medicare Advantage plan does have the same recovery rights as do Medicare

A & B, then they should also follow the waiver/compromise analysis that CMS follows.

B. Hospital and Doctor’s Liens

1. Missouri

Under RSMo. §§ 430.225 – 430.250, a healthcare provider will have a lien for the

amount of its services rendered against any recovery made by the patient. To attach,

proper notice must be given. In addition, if the amount of all healthcare provider liens

exceed 50% of the net proceeds due to the injured party, all lien holders must share 50%

of the net proceeds on a pro-rata basis:

If the liens of such health practitioners, hospitals, clinics or other

institutions exceed fifty percent of the amount due the patient, every health

care practitioner, hospital, clinic or other institution giving notice of its

lien, as aforesaid, shall share in up to fifty percent of the net proceeds due

the patient, in the proportion that each claim bears to the total amount of

all other liens of health care practitioners, hospitals, clinics or other

institutions. “Net proceeds”, as used in this section, means the amount

remaining after the payment of contractual attorney fees, if any, and other

expenses of recovery.

RSMo. § 430.225.3

A healthcare provider lien does not apply to the proceeds of a wrongful death

claim. The definition of a “claim” under the Missouri healthcare provider lien statute is

“a claim of a patient for: (a) damages from a tort-feasor; or (b) benefits from an insurance

carrier. RSMo. § 430.225.1. A “patient” is defined as “any person to whom a . . .

hospital . . . delivers treatment, care or maintenance for sickness or injury caused by a

tort-feasor from whom such person seeks damages or any insurance carrier which has

insured such tort-feasor.” Id. In a wrongful death claim, the “patient” is not seeking to

recover. Rather, the beneficiaries under the wrongful death statute are seeking to recover.

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Therefore, the lien statute does not apply. American Fam. Mut. Ins. Co. v. Ward, 774

S.W.3d 135 (Mo. banc 1989).

The same argument can be made that a healthcare provider lien does not apply to

any recovery under a UM policy. In a UM claim, the plaintiff is not seeking damages

from the tortfeasor or from the tortfeasor’s insurance company. If that were the case, the

UM coverage would not apply. Therefore, such a claimant is not a “patient” under the

lien statute.

2. Kansas

The Kansas hospital lien statutes are set forth in KSA 65-406, et seq. KSA 65-

406(a) gives hospitals a lien against any recovery, either by judgment or settlement, by a

patient against the party who caused such injuries. It states:

(a) Every hospital, which furnishes emergency, medical or other service to any patient injured by reason of an accident not covered by the workers compensation act, if such injured party asserts or maintains a claim against another for damages on account of such injuries, shall have a lien upon that part going or belonging to such patient of any recovery or sum had or collected or to be collected by such patient, or by such patient’s heirs, personal representatives or next of kin in the case of such patient’s death, whether by judgment or by settlement or compromise.

KSA 65-406(a).

KSA 65-406(c) limits the amount that a hospital can recover on its lien. Under

KSA 65-406(c), only the first $5,000.00 of a properly filed hospital lien is fully

enforceable. Any amount over $5,000.00 is enforceable only to the extent that such

enforcement is an equitable distribution of any settlement or judgment:

(c) In the event the claimed lien is for the sum of $5000 or less it shall be fully enforceable as contemplated by subsection (a) of this section. In the event the claimed lien is for a sum in excess of $5,000 the first $5,000 of the claimed lien shall be fully enforceable as contemplated by subsection (a) of this section, and that part of the claimed lien in excess of $5,000 shall only be enforceable to the extent that its enforcement constitutes an equitable distribution of any settlement or judgment under the circumstances. In the event the patient or such patient's heirs or personal representatives and the hospital or hospitals cannot stipulate to an equitable distribution of a proposed or actual settlement or a judgment, the matter shall be submitted to the court in which the claim is pending, or if

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no action is pending then to any court having jurisdiction and venue of the injury or death claim, for determination of an equitable distribution of the proposed or actual settlement or judgment under the circumstances.

KSA 65-406(c).

For a lien to be effective, a hospital must file its lien statement with the clerk of

the district court in the hospital’s county and send a copy of the lien statement to those

parties alleged to be liable to the patient, those parties’ liability insurers, and the patient:

No such lien shall be effective unless a written notice containing an itemized statement of all claims, the name and address of the injured person, the date of the accident, the name and location of the hospital, and the name of the person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries received, shall be filed in the office of the clerk of the district court of the county in which such hospital is located, prior to the payment of any moneys to such injured person, his attorneys or legal representatives, as compensation for such injuries; nor unless the hospital shall also send, by registered or certified mail, postage prepaid, a copy of such notice with a statement of the date of filing thereof to the person or persons, firm or firms, corporation or corporations alleged to be liable to the injured party for the injuries sustained prior to the payment of any moneys to such injured person, his attorneys or legal representative, as compensation for such injuries. Such hospital shall mail a copy of such notice to any insurance carrier which has insured such person, firm or corporation against such liability, if the name and address shall be known. Such hospital shall also send, by registered or certified mail a copy of such notice to such patient upon whom emergency medical or other service has been performed, if the name and address of such patient shall be known to the hospital or can with reasonable diligence be ascertained.

KSA 65-407.

KSA 65-408 provides a one-year limitation on actions against any person making

payment to a patient as compensation for the injuries sustained.

C. Medicaid Liens

1. Missouri

If it has paid benefits, Missouri Medicaid will have a viable lien on any recovery.

RSMo. § 208.215.9. Any Medicaid recipient, or person acting on their behalf, who

pursues an injury claim is required to notify the Department of Social Services that he or

she is pursuing legal action. RSMo. § 208.215.6. If a recovery is obtained, the recipient,

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or the recipient's agent, is required to notify the Department of Social Services of the

recovery and to reimburse the department from the proceeds of the settlement, judgment

or other recovery. RSMo. § 208.215.8. Medicaid will, however, reduce its lien by its pro

rata portion of attorneys’ fees and expenses. RSMo. § 208.215.11.

Because the Department of Social Services is often slow to respond to requests

regarding lien amounts, it is advisable to contact them as early as possible once a claim in

contemplated. A letter asking whether benefits have been paid should be sent to:

Third Party Liability Unit Missouri Department of Social Services Division of Medical Services P.O. Box 6500 Jefferson City, MO 65102-6500

The letter should include as much information regarding the claimant as possible,

including that person’s Medicaid number, date of birth and social security number.

Once the lien is asserted, the claimant may petition the court for a reduction of

that lien under RSMo. § 205.218.9. Such a petition will be defended by the Attorney

General’s office.

RSMo. § 208.215.9 lists six factors the court should consider with regard to

whether the lien should be reduced:

(1) The amount of the charge sought to be enforced against the recovery when expressed as a percentage of the gross amount of the recovery; the amount of the charge sought to be enforced against the recovery when expressed as a percentage of the amount obtained by subtracting from the gross amount of the recovery the total attorney's fees and other costs incurred by the recipient incident to the recovery; and whether the department should, as a matter of fairness and equity, bear its proportionate share of the fees and costs incurred to generate the recovery from which the charge is sought to be satisfied;

(2) The amount, if any, of the attorney's fees and other costs incurred by the recipient incident to the recovery and paid by the recipient up to the time of recovery, and the amount of such fees and costs remaining unpaid at the time of recovery;

(3) The total hospital, doctor and other medical expenses incurred for care and treatment of the injury to the date of recovery therefor, the

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portion of such expenses theretofore paid by the recipient, by insurance provided by the recipient, and by the department, and the amount of such previously incurred expenses which remain unpaid at the time of recovery and by whom such incurred, unpaid expenses are to be paid;

(4) Whether the recovery represents less than substantially full recompense for the injury and the hospital, doctor and other medical expenses incurred to the date of recovery for the care and treatment of the injury, so that reduction of the charge sought to be enforced against the recovery would not likely result in a double recovery or unjust enrichment to the recipient;

(5) The age of the recipient and of persons dependent for support upon the recipient, the nature and permanency of the recipient's injuries as they affect not only the future employability and education of the recipient but also the reasonably necessary and foreseeable future material, maintenance, medical rehabilitative and training needs of the recipient, the cost of such reasonably necessary and foreseeable future needs, and the resources available to meet such needs and pay such costs;

(6) The realistic ability of the recipient to repay in whole or in part the charge sought to be enforced against the recovery when judged in light of the factors enumerated above.

The burden of producing evidence to convince the court to reduce the lien lies

with the party seeking the reduction. RSMo. § 208.215.10. The Medicaid recipient is not

required to prove each statutory factor, nor does the trial court have to enter findings on

each statutory factor. Gravier v. Missouri Dept. of Social Services, 968 S.W.2d 149, 154

(Mo. App. E.D. 1998). The party seeking the reduction, however, must provide sufficient

evidence to support the exercise of the trial court’s discretion. Id.

2. Kansas

KSA 39-719a gives Kansas Medicaid a viable lien against a personal injury

recovery for benefits it paid. Medicaid must pay its proportion of attorney fees up to 1/3

of any presuit recovery and 40% of any recovery at trial. KSA § 39-719a(b). Medicaid

must also reduce its recovery by any percentage of fault attributed to the injured party.

KSA 39-719a(c). Kansas does not have a statutory method to further reduce a Medicaid

lien, but it will generally reduce in the right circumstances.

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Kansas Medicaid can be contacted at the below phone number and email address:

Health Management Systems (HMS) Kansas Estate Recovery Contractor ksestaterecovery@hms.com phone: 800-817-8617 local phone: 785-271-9300 fax: 785-271-9318

Benjamin D. Sherber Attorney/Program Manager Kansas Estate Recovery & Medicaid Subrogation Contractor 6021 SW 29th St., Ste A, #373 Topeka, Ks 66614 785-271-9300, ext 2009 785-271-9318 fax bsherber@hms.com

Nikki Dillon, Team Lead Kansas Medicaid Subrogation 6021 SW 29th St., Ste A, #373 Topeka, Ks 66614 785-271-0033 785-271-9318 fax

C. Ahlborn

In 2006, the Supreme Court held that Medicaid’s anti-lien provision (42 U.S.C. §

1396p(a)(1)) prohibits a state from taking any part of a Medicaid beneficiary's tort

judgment or settlement that had not been designated as a payment for medical care.

Arkansas Dept. of Health and Human Servs. v. Ahlborn, 547 U.S. 268, 284 (2006).

Accordingly, a State had the power to attach a lien only to the portion of a recovery that

was designated as payment for medical care.

In 2013, the Bipartisan Budget Act reversed Ahlborn and reinstated a state’s

ability to recover costs from the full amount of a tort award, rather than only the portion

of the award allocated to the medical expenses. Fortunately, this language was repealed

in the Bipartisan Budget Act of 2018. Part of this new law narrowed the scope of state

Medicaid, essentially reinstating the 2006 Ahlborn decision. By repealing the scope of

state Medicaid lien expansion, this most recent act effectively limits Medicaid recovery

to the part of a settlement that represents only past medical expenses paid by state

Medicaid agencies.

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D. Medpay and Personal Injury Protection (PIP) Liens

1. Medpay

Some Missouri Automobile policies contain Medical Payments Coverage

(Medpay). Medpay coverage pays for reasonable medical expenses incurred as a result

of a wreck regardless of who is at fault.

Missouri’s general rule regarding subrogation is clear: “an insurer may not

acquire part of the insured's rights against a tort feasor (other than an uninsured motorist)

by reason of payment of medical expense, either by assignment or by subrogation.”

Jones v. Aetna Casualty & Sur. Co., 497 S.W.2d 809, 812 (Mo. App. W.D. 1973); Waye

v. Bankers Multiple Line Ins. Co., 796 S.W.2d 660, 661 (Mo. App. W.D. 1990). This

general rule precludes a Medpay carrier from obtaining reimbursement from an insured

when the insured receives payment from the tortfeasor under the tortfeasor’s liability

policy. Travelers Indem. Co. v. Chumbley, 394 S.W.2d 418, 424-24 (Mo. App. S.D.

1965).

A Medpay carrier may attempt to subrogate against any recovery an injured

individual makes under a UM or UIM policy. Alternatively, when the Medpay carrier

also provides the uninsured motorist coverage, it may attempt to obtain an offset for the

amounts of its Medpay coverage. At least up to the point of the minimum limits, such an

offset is invalid.

No Missouri cases could be found specifically addressing the issue of whether a

Medpay carrier can subrogate against an insured’s recovery under UM or UIM coverage.

The general rule regarding the subrogation of a tort claim, however, may not apply in the

UM/UIM context because the right to recover on an uninsured motorist claim is an action

in contract, not in tort. Cobb v. State Sec. Ins. Co., 576 S.W.2d 726, 736 (Mo. banc

1979); McKinney v. State Farm Mut. Ins., 123 S.W.3d 242, 246 (Mo. App. W.D. 2003).

Therefore, the Medpay carrier could argue that its subrogation claim does not involve

Missouri’s public policy prohibiting the assignment of personal injury claims. It is likely,

however, that any such attempt to subrogate would be invalid up to the minimum

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required UM limits because of Missouri’s strong policy precluding impairment of those

limits.

Similarly, when the same carrier provides both UM and Medpay coverage, any

attempt by that carrier to offset its Medpay coverage by amounts it has paid on a UM

claim is void up to the minimum UM limits. The Missouri Supreme Court held void a

policy provision purporting to reduce the amount due under the uninsured motorist

coverage by the amount received under the medical pay coverage of the same policy in

Kuda v. American Family Mut. Ins. Co., 790 S.W.2d 464, 467 (Mo. banc 1990). The

Court noted that the purpose of mandatory UM coverage is to establish a level of

protection equivalent to the liability coverage the insured would have received had the

insured been involved in an accident with an insured tortfeasor. The court held that the

Medpay offset defeated that purpose. Id; see also Webb v. State Farm Mutual

Automobile Ins. Co., 479 S.W.2d 148 (Mo. App. W.D. 1972) (voiding a Medpay offset

up to the minimum UM limits).

2. Personal Injury Protection Coverage

Personal Injury Protection coverage (PIP) is similar to Medpay coverage in that it

applies regardless of fault. Kansas has an extensive statutory scheme regulating PIP

coverage – KSA 40-3101, et seq. Those statutes do not allow a PIP carrier a set-off or a

right of subrogation for UM or UIM coverage. The Kansas No-Fault law, however,

provides that an insurer may exclude or limit UM and UIM coverage to the extent that

PIP benefits apply:

(e) Any insurer may provide for the exclusion or limitation of

coverage:

. . . .

(6) to the extent that personal injury protection benefits

apply.

KSA 40-284(e)(6).

This set-off is limited to duplicative PIP benefits. Rich v. Farm Bureau Mut. Ins.

Co., 250 Kan. 209, 824 P.2d 955 (1992). In Rich, plaintiff made a claim for $25,000.00

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in UIM benefits. The plaintiff had previously been paid over $40,000.00 in PIP benefits.

The UIM carrier attempted to offset its $25,000.00 in UIM liability by the amounts it

paid under PIP.

Looking at the liability policy and plaintiff’s UIM coverage, the parties agreed

that the maximum amount plaintiff could recover under Kansas law was $177,000.00.

They also agreed that plaintiff’s damages exceeded $177,000.00. In interpreting KSA

40-284(e)(6), the Kansas Supreme Court held that an injured party could recover UIM

benefits that were not duplicative of PIP benefits. Because of the stipulated value of the

claim, there was no duplication of benefits and no offset applied. Id. at 215-16, 824 P.2d

at 959.

E. Workers’ Compensation Liens

1. Missouri

A Missouri employer will have a subrogation right on any payment made to an

employee on behalf of a third party. RSMo. § 287.150. The employer, however, does

not have the right to a dollar for dollar repayment. Instead, the employer’s recovery will

be apportioned based on the amount of the recovery, the amount paid by the employer,

and the employees attorney’s fees and expenses. This method of apportionment is called

the “the Ruediger formula”, in reference to the case in which it was first propounded

Ruediger v. Kallmeyer Brothers Service, 501 S.W.2d 56 (Mo.1973). The Ruediger

formula may be expressed in a three-step process as follows:

(1) The expenses and attorney fees attributable to the recovery from the

tortfeasor are subtracted from the total amount of the recovery;

(2) A ratio of the employer's subrogation interest in the recovery is

determined by the generation of a fraction:

(a) The numerator of the fraction is the total amount of compensation

paid pursuant to The Workers' Compensation Law by or on behalf

of the employer;

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(b) the denominator of the fraction depends on whether or not the trier

of fact in the civil action assesses any fault to the employer's

injured or deceased employee. That figure is either:

(i) the total amount recovered from the tortfeasor, if no

comparative fault was assessed against the employee; or

(ii) when the trier of fact assesses fault to an employee, the

total damages assessed against the tortfeasor by the trier of

fact prior to the reduction of those damages due to the

employee's comparative fault;

(3) the net amount remaining after subtraction of the fee and expenses

from the recovery in the first step of the formula is multiplied by the

fraction generated in the second step of the formula in order to

determine the amount of the recovery to be allocated to the employer.

Id.

The employer’s right to subrogation is not effective against a recovery on a UM

policy. The Workers’ Compensation statutes state that an employer shall be subrogated

to the rights of an injured employee, “[w]here a third person is liable to the employee . . .

for [an] injury or death, the employer shall be subrogated to the right of the employee. §

287.150.1 Because a UM carrier is not a “third person” liable to the employee, no lien

attaches. Barker v. Palmarin, 799 S.W.2d 117, 118 (Mo. App. W.D 1990).

2. Kansas

A Kansas employer also has a right of subrogation for amounts paid to an injured

worker. KSA 44-504. The employer can intervene in an injured worker’s action or

simply allow the injured worker to prosecute the claim to a judgment or settlement. KSA

44‐504(b). The employer may also separately pursue reimbursement of workers’

compensation benefits paid and payable if the injured worker has not done so within 12

months of the accident or within 18 months of a death. KSA 44‐504. The injured worker

must notify the employer of a claim and no settlement or satisfaction of judgment is valid

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without the employer’s written consent. The employer must discount its lien by its

proportionate share of attorney fees and costs. KSA 44‐504.

A workers’ compensation lien will also be discounted for any fault assessed

against the employer or anyone acting on behalf of the employer. KSA 44‐504(d); Enfield

v. A.B. Chance Co. 228 F.32 1245 (10th Cir. 2000). A spouse’s loss of consortium and

loss of services damages are excluded from the employer’s lien. KSA 44-504. In

addition, and despite the plain language of KSA 44-504, the Court can restrict the

employer’s recovery to those damages that are duplicative of the workers’ compensation

benefits paid.

Finally, like Missouri, the employer has no right to recover workers’

compensation benefits paid and payable from an underinsured or uninsured motor vehicle

policy. Fisher v. State Farm Auto Ins. Co., 955 P.2d 622 (Kan. 1998).

F. VA, TRICARE, and Military Claims

Under the provisions of the Medical Care Recovery Act (42 U.S.C. §§2651-

2653), the federal government is entitled to subrogation in cases where the government is

authorized or required to provide medical care to persons injured by a third- party

tortfeasor. This statute allows the Veterans’ Administration and the military services to

recover for medical care provided to eligible personnel. Under the Medical Care

Recovery Act, the government is subrogated to the injured person’s right to seek and

recover the reasonable value of the medical care received. An injured person may be

required to assign his claim or cause of action to the government, the government can

intervene in any action brought for personal injury or death, or the government can file its

own independent action if no action is commenced within six months by the party or

parties entitled to file.

Recovery pursuant to the FMCRA is limited to “circumstances creating a tort

liability upon some third person.” Therefore, the FMCRA does not apply to contractual

theories, such as uninsured motorist coverage where neither the victim nor his insurer is

liable in tort. United Servs. Auto. Ass'n v. Perry, 102 F.3d 144, 150 (5th Cir. 1996);

Government Employees Ins. Co. v. Andujar, 773 F. Supp. 282, 286 (D. Kan. 1991).

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Although, there is no direct right to recover UM benefits under the FMCRA, the terms of

the insurance policy and state law may give the government that right. This must be

determined by evaluating the policy to see if the government can qualify as an “insured”

or a “third party beneficiary” under the contract.

The VA can be contacted at:

Department of Veteran Affairs Office of Regional Counsel 1 Jefferson Barracks Drive, Bldg 25 St. Louis, MO 63125 Phone: 314-845-5050 Facsimile: 314-845-5057

After you notify the VA, they may be willing to strike a deal. If you will amend

your petition to add certain language, they will offer their doctors and nurses for informal

meetings, depositions and trials, and provide certified copies of medical records. The

language they ask for generally looks something like:

As a result of said injuries, the Plaintiff has received and in the future may continue to receive medical and hospital care and treatment furnished by the United States of America The Plaintiff, for the sole use and benefit of the United States of America under the provisions of 42 USC § 2651 and/or 38 USC § 1729, and with its express consent, asserts a claim for the reasonable value of said past and future care and treatment.

Again, although the VA is not required to reduce its lien but is usually willing to do so.

TRICARE is the managed health program established by the Department of

Defense that provides health care services to active duty members, dependents of active

duty members, retired members, dependents of retired members, and survivors.

TRICARE’s rights come from the FMCRA. TRICARE expects the plaintiff include the

government’s interest in the plaintiff’s claim, per 32 C.F.R. § 757.18. If TRICARE is not

satisfied that its interest is being protected, the government may: 1) require assignment to

the extent of the recovery right; 2) intervene in plaintiff’s case; or 3) bring its own action.

Like the VA, TRICARE is not required to reduce its lien, but often will.

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G. ERISA

Under the Employees Retirement Security Act of 1974 (ERISA), 29 U.S.C. §

1001, et seq., an employer with a self-insurance plan that falls within the Act may obtain

recovery rights in a personal injury claim by an insured against a third party when the

plan documents explicitly grant such a right. McIntosh v. Pac. Holding Co., 992 F.2d

882, 883 (8th Cir. 1993). This exception is based upon specific language within the

ERISA code that expressly preempts state law in this area. FMC Corp. v. Holliday, 498

U.S. 52, 56-58, 112 L. Ed. 2d 356, 111 S. Ct. 403 (1990). The “deemer” clause of the

ERISA code exempts self-funded ERISA plans from state laws that regulate insurance.

This is because self-funded plans are not deemed insurance companies. If a plan is

insured, state law may regulate it. If it is not insured, the state may not.

An ERISA Plan’s right to subrogation can be especially difficult to deal with

because, unlike Medicare and Medicaid, the Plan may not have to take into account the

attorneys’ fees or expenses incurred when attempting to recover against the tortfeasor.

The Supreme Court has recently made an ERISA Plan’s rights painfully clear in US

Airways, Inc. v. McCutchen, 133 S.Ct. 1537 (2013).

The issue in McCutchen was whether a Plan participant could raise equitable

defenses such as the “make whole” doctrine or the “common fund” doctrine to reduce the

Plan’s right to reimbursement. Under the “make whole” doctrine, the Plan would not

have to be reimbursed unless the tort settlement made the injury victim whole. The

common-fund doctrine says that persons who obtain the benefit of a lawsuit without

contributing to its cost are unjustly enriched.

Unfortunately, the Court said that the Plan documents trump those equitable

doctrines. If the Plan’s reimbursement provisions clearly state that the Plan is entitled to

recoup every dollar it paid out in benefits, regardless of the amount of the alleged

damages, and that it does not have to bear any portion of the attorneys’ fees incurred in

obtaining the recovery, then those provisions will also be enforced as written. In

McCutchen, the Plan’s reimbursement provisions did not address the attorneys’ fee issue,

so the Court applied the "common-fund" doctrine and held that the Plan was required to

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share in the attorneys’ fees. But the Court made clear it was doing so only because the

Plan was silent on that issue.

Certain steps can be taken to avoid repaying the full amount of an ERISA claim.

First, you need to determine what rights the Plan documents give the Plan. To do this you

need both the Plan and the Summary Plan Description. The Supreme Court has held that,

although the SPD is important, it does not control. Cigna Corp. v. Amara, 131 S. Ct.

1866 (2011). So the language both granting a right of recovery and stripping away

equitable rights should be in both documents to be enforceable.

You should also contact the Plan and work to come to an agreement before

getting involved in the claim. If the Plan truly feels the injured member will walk away,

they have an incentive to reduce. If you contact them at the end of the case, however,

they have all the power.

Another step is to whittle away any amount owed to the Plan. Under 29 U.S.C.

1024 (b)(4), a Plan administrator is required to provide plan members certain plan

documents upon written request of any participant or beneficiary. If the administrator

fails to provide the requested information with 30 days, 29 U.S.C. 1132 (c)(1)(B)

imposes a fine of $100.00 per day. Therefore, a timely request by the plaintiff, coupled

with the administrator’s failure to respond, may allow the plaintiff to negotiate a lower

repayment to offset out any statutory penalties the plan has incurred.

A sample letter requesting this information is provided below. The identity of the

plan administrator may be found at www.freeerisa.com. This site lists many ERISA

plans and gives information on the administrator.

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August 27, 2013 Certified Mail/Return Receipt Requested (Administrator’s name), Plan Administrator (Address of Plan Administrator) (Address of Plan administrator)

Re: Plan: Member Name: Group No: Member No:

Dear [Administrator’s name]:

As a member of the (Name of ERISA Plan). I am requesting that copies of the following documents be sent to me within thirty days.

A complete copy of the Plan in effect for the years [year of injury to present].

All Summary Plan Descriptions for the Plan for the years [same as above].

Federal form 5500 for the Plan for the years [same as above].

A certification that the Plan is self-funded.

Copies of the Explanations of Benefits (EOBs) for all claims paid by the Plan for which the Plan seeks reimbursement.

Information as to whether the Plan has received or will receive any rebate, discount, or other financial benefit from any of the health care providers to whom payments have been made. In addition, please provide a description of any discounts available to the Plan that were not applied to my claim in calculating the sought-after reimbursement amount.

Please provide the name of any stop-loss or reinsurance carrier that insured or insures the Plan from [date of injury] to the present. We also request copies of all stop-loss policies in effect from [date of injury] to the present.

Please provide the amount of claims subject to your claim for reimbursement that were reimbursed (or that may be reimbursed in the future) to the Plan by a stop-loss carrier.

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In accordance with the Employee Retirement Income Security Act (ERISA), I have a right to ensure that assets do not inure of the benefit of the Company. In general, please describe the allocation of moneys recovered through the subrogation/reimbursement provision of the Plan.

Under ERISA, the Plan administrator must provide these documents within

30days of this letter and free of charge. In accordance with the attached participant authorizations, please contact me with any questions relating to above request. Sincerely, (Client’s Name) Member No.: (Client’s SSN) (Client’s Address)

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H. FEHBA

The Federal Employees Health Benefits Act (FEHBA) is a set of federal laws

enacted to provide federal civilian employees with health benefits. When a federal

employee is injured by someone else’s negligence, the FEHBA health plan will initially

pay the injured federal employee’s medical expenses. But the health plan expects to be

paid back if money is collected from the wrongdoer.

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Expert Examination – Daubert, Frye

and Other Challenges

Submitted by Steven B. Garner

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Personal Injury Settlements:

Plaintiff vs. Defense Perspectives

Submitted by Jane Ann Landrum and Robert D. Kingsland Jr.

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Personal Injury Settlements, Plaintiff’s v Defendant’s Perspectives

I. Overview

a. Get all the data.

b. Inoculate your client from creating problems/distractions.

i. Social media.

ii. Health care appointments.

c. Stay ahead of the curve. Be “the smartest guy in the room” when it comes

to the claim.

d. Maximize strengths, minimize weaknesses. Identify landmines. Eliminate

distractions.

e. Control the flow of information.

f. Establish a trust relationship with your client.

g. If the records are voluminous, consider summarizing them.

h. Careful selection of experts.

i. Get command of the technical subject matter, realizing that you have the

ultimate responsibility for the outcome in the case.

i. Read the literature.

ii. Youtube.

j. Be pro-active in developing the evidence.

i. Go to the scene.

ii. Obtain witness statements.

iii. Consider meeting with treating physicians for reports, requests for

depositions.

iv. Consider FCEs when the objective evidence is lacking.

v. Medical options offered to your client that will aid his/her

recovery.

k. In cases of substantial value:

i. Simplify the case.

ii. Find the heartbeat.

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iii. Develop themes and anchors.

i. Zealous advocacy, tempered by fairness and civility.

j. If suit is necessary, take advantage of opportunity to develop the case fully

before filing suit.

k. Consider focus groups to test jury appeal of subject matter, specific issues

bearing on liability and damages. Obtain themes or test themes.

l. Goal is to negotiate from a position of strength. If you are on the

plaintiff’s side you want to put them on the defensive and keep them on

the defensive.

II. Preparing the claim.

a. Immediately send a lien letter to ensure that the insurance company does

not directly contact your client for a recorded statement and also to protect

your attorney fee.

b. Contact the adjuster and give information to help adjuster set the reserve

and try to establish a cooperative working relationship. Help him/her help

you.

i. When you have especially powerful facts regarding liability or

damages, let the adjuster know that you are aware of this

information to get his/her attention and help justify setting a high

reserve.

ii. Obtain any statements your client has given to the insurance

company.

1. Develop any evidence that helps you on liability or

damages (e.g. photos of damaged cars or photos that depict

injuries).

2. Develop any facts that point to aggravated liability:

a. Defendant was intoxicated;

b. Defendant was using a cell phone;

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c. Defendant was driving on a suspended license;

d. Defendant was violating a restriction on his/her

driver’s license;

e. Defendant was issued a citation or citations for

violating traffic law(s).

3. Obtain copy of the defendant’s driving record. (In MO.

Rejis Private Access Network. Cost is $15 per month and

small fee per record. Access Kansas. Cost is $10 per month

and $1 per page. In KS, need defendant’s driver license

number.

iii. Allow your client to sign only restricted medical authorizations.

Do not allow your client to sign employment record authorizations

or authorizations for release of tax returns.

iv. Instruct client not to give recorded statements, unless you consent

and can be present for such statements.

c. Try to determine the applicable policy limits of the defendant’s insurance

coverage early on in discussions with the adjuster.

1. Submit evidence of the potential value of case, including

health care provider billing statement amounts, wage loss

information, and permanence of injuries.

2. Offer to exchange information.

d. Respond to letter inquiries from the insurance company regarding status of

the claim.

i. Give basic information on the client’s health status, work status,

and lost wages.

ii. Let the adjuster know that you will be sending a demand letter and

preview the adjuster as to your view regarding liability (always

mention the aggravated nature of liability, if applicable) and

damages.

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e. If the defendant’s insurance not adequate, make sure that you check

whether client has underinsured motorist coverage. Also check whether

client has an umbrella policy. Send lien letters to these carriers.

f. Comparative fault considerations

i. If insurance company is not paying full property damage, an

indication that comparative fault allegation(s) will be made

concerning the personal injury claim.

ii. Failure to use seatbelt.

iii. Witness statements.

iv. Reporting officer observations from accident report.

III. Demand letter

a. Should provide overview of liability and damages and be accompanied by

notebook containing supporting documentation.

i. Re Liability – supporting information to submit w/demand letter.

1. Police report.

2. Defendant’s driving record.

3. Photographs showing property damage and/perhaps the

scene of the collision.

4. Documents reflecting cost of repair to plaintiff’s vehicle.

5. Witness statements.

ii. Re Damages:

1. Medical records, organized and tabbed by health care

provider.

2. Medical bills, organized and tabbed by health care

provider.

A. It is important to submit all medical records and

bills, as often the insurance company will not make

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an offer until all medical records and bills are

received.

B. We will often get medical records of the client’s

primary care physician for the previous 10 years to

establish the client’s baseline and to help us assess

the general health of the client prior to the collision.

3. Lost wage documentation.

4. Witness statements.

5. Medical reports.

6. Life care plan.

7. Vocational evaluations .

IV. Client Considerations

a. Let the client know the policy limits to manage expectations of recovery.

b. Advise the client of your reasonable projection as to the ultimate

settlement amount, but not until the case has gelled.

c. Get the necessary authority from the client.

V. Bad Faith

a. Set deadline for payment of your demand.

b. Make sure you have provided all necessary documentation to establish the

value of the claim.

c. Document in correspondence the deadline for payment of demand.

VI. Establishing the value of the claim

a. Liability.

b. Damages.

c. Client’s jury appeal.

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d. Venue.

e. Verdict research.

VII. Handling of Liens and Hold Harmless Agreements

a. Provisions of Lien statute.

b. Attorney liens and other liens.

c. Negotiation of liens.

d.

VIII. Mediation

a. When to mediate and when not to mediate.

b. Selection of mediator is crucial.

c. Material that you should provide to mediator.

d. Exchanging material submitted to mediator with opposing counsel.

e. Presentation at mediation

i. Avoid opening statements.

ii. Preparation is vital. Know all aspects of liability and damages.

Know strengths/weaknesses of your case. Be prepared to rebut

defenses to case.

iii. Show mediator (and sometimes opposing counsel) exhibits that

will be used at trial.

IX. Arbitration

a. When to arbitrate – multiple competing claims and inadequate insurance

coverage.

b. Selection of arbitrator(s) is crucial.

c. Preparation

i. MO. Arbitration Act

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1. Document to Arbitrator and opposing counsel that

proceeding is governed by the rules of this statute.

2. Use Subpoenas.

ii. Exhibits, witnesses, and opening and closing statements.

d. Presentation of evidence. (Mini-trial)

i. Agreement with opposing counsel regarding identification of

witnesses and exhibits. Consider exchanging written discovery.

ii. Present clear and concise evidence.

X. Considerations concerning the release

a. Confidentiality.

b. Need to preserve other claims.

c. Explain terms of release to client.

i. Loss of consortium.

ii. Finality of release.

XI. When not to settle your client’s claim

a. Need discovery to determine insurance limits of defendant.

b. Need discovery to determine punitive potential of case.

c. Bad faith negotiation.

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Personal Injury Settlements, Plaintiff’s v Defendant’s Perspectives

I. Overview – pre-suit - many insurance carriers provide the matter to defense

counsel before suit and if they do:

a. write to Plaintiff’s attorney so he/she cannot contact your client.

b. Gather what evidence you can (claims file, police report, witness

statements)

c. Request authorizations from Plaintiff’s attorney.

d. Request statement from Plaintiff from Plaintiff’s attorney – record it.

e. Inoculate your client from creating problems/distractions.

i. Social media.

ii. Preserve documents.

iii. Obtain phone records.

iv. Contact criminal attorney, if you can, to discuss disposition of

ticket.

f. Stay ahead of the curve. Be “the smartest girl in the room” when it comes

to the claim.

g. Maximize strengths, minimize weaknesses. Identify landmines. Eliminate

distractions.

h. Control the flow of information.

i. Establish a trust relationship with your client.

j. Always summarize records. You’ll find Plaintiff’s landmines in them.

k. Always summarize bills, before and after reductions – R.S. Mo. §490.715.

l. Discuss matters with consultants/experts pre-suit.

m. Get command of the technical subject matter, realizing that you have the

ultimate responsibility for the outcome in the case.

i. Read the literature.

ii. Youtube.

n. Be pro-active in developing the evidence.

i. Go to the scene.

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ii. Obtain witness statements.

o. In cases of substantial value:

i. Simplify the case.

ii. Find the heartbeat.

iii. Develop themes and anchors.

iv. Watch the policy limits – if medicals are close, have important

discussions with insurer and insured (tri-partite relationship in

Missouri).

v. Bad faith issues.

i. Zealous advocacy, tempered by fairness and civility.

j. Goal is to negotiate from a position of strength. If you are on the defense,

you want to find Plaintiff’s weaknesses and negotiate from the “reasonable

person” standard.

II. Preparing the defense.

a. Contact the adjuster and give information to help adjuster set the reserve

and establish a cooperative working relationship.

1. Develop any evidence that helps you on liability or

damages (e.g. photos of damaged cars or photos that depict

injuries) – Missouri is pure comparative fault state.

2. Gather medical records before and after accident – most

courts will allow five years prior to accident.

3. Determine whether Plaintiff was insured (Missouri’s “no

pay no play” rule)

4. Watch for evidence that may point to aggravated liability –

there is no insurance for this – you are INSURED’S

attorney first – tell client insured about no insurance for

punitives, but at the same time discuss aggravation

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(Plaintiffs don’t always ask for punitive damages) with

insurer as increasing value of case.

a. Defendant was intoxicated;

b. Defendant was driving on a suspended license;

c. Defendant was violating a restriction on his/her

driver’s license;

d. Defendant was issued a citation or citations for

violating traffic law(s). (defense can dispute this)

e. Defendant was using a cell phone; (defense can

dispute this)

5. Obtain copy of Plaintiff’s and Defendant’s driving record.

(In MO. Rejis Private Access Network. Cost is $15 per

month and small fee per record. Access Kansas. Cost is $10

per month and $1 per page. In KS, need defendant’s driver

license number.

ii. Missouri allows Plaintiffs to sign restricted medical authorizations

(time, subject matter – try for 10 years at first). If Plaintiff is

claiming wage loss or future lost income, a court will force him/her

to sign employment record authorizations or authorizations for

release of tax returns (once lawsuit is filed – tell Plaintiff’s

attorney this. It might help).

b. Find out applicable policy limits of the defendant’s insurance coverage

immediately to determine whether you believe it is a policy limits case –

talk to adjuster about concerns.

1. Submit evidence of the potential value of case, including

health care provider billing statement amounts, wage loss

information, and permanence of injuries.

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c. Respond promptly to letter inquiries from the insurance company

regarding status of the claim.

d. Comparative fault considerations

i. Missouri is pure comparative state.

ii. Failure to use seatbelt – mitigation of damages only

iii. Witness statements.

iv. Reporting officer observations from accident report.

III. Plaintiff’s Demand letter – watch for deadline!! RESPOND PROMPTLY – if

carrier has hired you at this point, you will be assisting them with the response

to this letter.

a. If you need additional medical records or bills, request it promptly –

especially records of prior treatment, pre-existing conditions.

b. Ask again for Plaintiff’s statement.

c. Send our medical records for medical consultant to review. This

preliminary opinion is not discoverable once suit is filed unless you name

him/her as expert.

d. Point out any missing documentation promptly (see Plaintiff’s list)

IV. Clients’ Considerations

a. Let the insured/client know the policy limits and whether there is a

potential punitive damages claim – ALWAYS give them the opportunity

to hire a personal attorney. You represent them, but you also represent the

insurer, so they need to understand this tri-partite relationship.

b. Advise the insurer/client of your reasonable projection as to the ultimate

settlement amount, including the potential for a policy limits claim.

c. Get the necessary authority from the client.

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V. Bad Faith

a. Pay close attention to Plaintiff’s deadline for payment of demand.

b. Make sure you have promptly requested additional documentation to

establish the value of the claim and discuss extensions to deadlines – get

clear agreements from Plaintiff’s counsel.

c. Document in correspondence the understood deadlines.

VI. Establishing the value of the claim

a. Liability.

b. Damages.

c. Client’s jury appeal.

d. Venue.

e. Verdict research.

VII. Handling of Liens and Hold Harmless Agreements

a. Provisions of Lien statute.

b. Attorney liens and other liens.

c. Negotiation of liens.

d. Make sure all offers include issues surrounding liens.

VIII. Mediation

a. When to mediate and when not to mediate.

b. Prepare your adjuster for mediation with a very clear evaluation and range

for settlement – most insurers have deadlines (two weeks prior to

mediation – so pay attention). Adjusters are usually out of town and

would rather not come to mediations – in State court ask opposing counsel

for this courtesy and explain to Plaintiff’s attorney advantages of adjuster

being able to work from his/her home office.

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c. Insured/client is allowed to come to mediations, but unless they are paying

out of their own pocket, it is best to discourage this.

d. Selection of mediator is crucial.

e. Material that you should provide to mediator.

f. Exchanging material submitted to mediator with opposing counsel.

g. Presentation at mediation

i. Avoid opening statements.

ii. Preparation is vital. Know all aspects of liability and damages.

Know strengths/weaknesses of your case. Be prepared to rebut

defenses to case.

iii. Show mediator (and sometimes opposing counsel) exhibits that

will be used at trial.

h. After settlement, make sure all terms, including liens, are part of written

mediation agreement.

IX. Arbitration

a. Review policies – all insurers are members of intra-insurer arbitration for

collision coverages, PIP, etc.

b. When to arbitrate – multiple competing claims and inadequate insurance

coverage.

c. Selection of arbitrator(s) is crucial.

d. Preparation

i. MO. Arbitration Act

1. Document to Arbitrator and opposing counsel that

proceeding is governed by the rules of this statute.

2. Use Subpoenas.

ii. Exhibits, witnesses, and opening and closing statements.

e. Presentation of evidence. (Mini-trial)

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i. Agreement with opposing counsel regarding identification of

witnesses and exhibits. Consider exchanging written discovery.

ii. Present clear and concise evidence.

X. Considerations concerning the release

a. Confidentiality.

b. Need to preserve other claims.

c. Liens – named in release.

d. Always obtain spouse’s name – loss of consortium derivative claim.

e. Explain terms of release to client.

XI. When not to settle your client’s claim

a. Demand is disproportionate to medicals and injury.

b. Comparative fault issues.

c. Plaintiff’s credibility at issue.

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Personal Injury Trials in a Nutshell

Submitted by Eric S. Playter

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PERSONAL INJURY TRIALS IN A NUTSHELL

A. Personal Injury Trial Themes That Work

1. You do not have a “case”

2. Why should the jurors care about your client? About your case?

3. Must present in a way that involves jurors directly

4. The easiest course of action is inaction (defendants count on juror indifference)

5. Overcome with storytelling

a. Point of view

b. Scene

c. Logical Sequence

6. Focus: defendant putting self-interest first

7. Truisms

a. An ounce of prevention is worth a pound of cure

b. Better safe than sorry

c. Safety first

d. When in doubt, check it out.

8. Rules of the Road (Friedman & Malone)

a. Characteristics

i. Easy to understand;

ii. A principle the defense cannot credibly dispute;

iii. Violated by the defendant, and

iv. Important enough in the context of the case that proof of its violation

will significantly increase the chance of a plaintiff’s verdict

b. Examples

i. “An insurance company should assist a policyholder with the claim.”

ii. “As the danger to the patient increases, a doctor should act more

carefully.”

iii. “The driver of a motor vehicle cannot rear-end other vehicles.”

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B. Jury Selection/Voir Dire

1. Many consider the most important part of the trial

2. Do not waste time

3. Encourage “brutal honesty”

4. Establish theme

5. Stress to the panel:

a. Importance of their role;

b. Permanence of their verdict;

c. Reasons why equity and justice require the verdict you want.

6. What you have to overcome

a. Availability Bias – the easier something is to recall, the more prevalent

jurors think it is

i. The case is about whatever case you put on (e.g., people think murder

is more common than suicide because suicide is underreported, and

murder is over-reported)

ii. Statistically, frivolous lawsuits are not common; the number of

“frivolous lawsuits” is insignificant; however, because of the attention

the concept gets, it is completely distorted in the public’s mind (i.e., it

is a problem because people think it’s common)

iii. Experiment

b. Belief Perseverance Bias (Confirmation Bias)

i. Once jurors start to believe something, they view the evidence through

their common-sense determination of what is true

ii. Once jurors form a story, they will filter the evidence

iii. They will defend their position

iv. They will even ignore evidence contrary to their position

c. Fundamental Attribution Error

i. When something good happens to you or a loved one, you attribute it to

something inside you/them; if it happens to someone else, you will

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attribute it to luck (i.e., if it happens to a positive love object, you will

assign causation for internal reasons; if to someone else, you will assign

causation for environmental or external reasons)

ii. When something bad happens to you or a loved one, you can

immediately see the cause as something external and unwarranted; if it

happens to someone else, you will see it as probably deserving

d. Defensive Attribution Error

i. People are frightened of a lawsuit being filed against them; in order to

protect themselves from the threat of that happening to them, they will

go back and say that this happened because of choices this person made

(however, they are not self-aware, so they do not know they are doing

this)

ii. Examples:

(a) Mothers blaming the mother in a child darting case (this makes the

world a safe place, so their child is safe)

(b) Rape case where women blame the other women (“I would never

get raped”)

7. Negatives and the Unconscious Mind

a. Unconscious mind cannot process negatives

b. All questions should be phrased as to call for a “yes” answer

8. Overcoming “Frivolous Lawsuits” Bias

9. For Cause Challenges: If you want to get a juror stricken for cause make

certain you have established the cause! Use the opportunity to sell the other

side to the other jurors while you are establishing the bias.

10. Get your client involved in striking the others with your strikes. It makes them

feel important, and they are sometimes more perceptive than you.

C. Approaching Damages With a Jury

1. Economic

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a. Medical (R.S.Mo. § 490.715)

i. If the specials are small, leave them out (but not in KS)

ii. No collateral source except as set forth in the statute

b. Property damage

c. Lost wage(s)

d. Durable Medical Equipment (i.e., equipment that allows one to complete

activities of daily living)

e. Modifications to the home

f. Cost to care for house

g. Cost for nurse

h. Life Care Planner

i. Wrongful Death (R.S.Mo. § 537.090)

j. Punitive Damages (R.S.Mo. § 510.265)

k. Pre-/post-judgment interest (R.S.Mo. § 408.040)

2. Non-economic

b. Pain and Suffering

i. In Missouri, non-economic damages include general damages,

compensation for past and future pain, suffering, effect on lifestyle,

embarrassment, humiliation, mental suffering, injured feelings, insult,

mortification, humiliation, disgrace, and dishonor.

c. Medical Malpractice Cap (R.S.Mo. § 538.210)

d. Important concepts:

i. What is life?

ii. Taken vs. Left With

iii. Whole Man

D. Approaching Damages With a Jury: Experts

1. Choose them wisely

2. Get everything you can on them

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3. Review social media

4. Prepare, prepare, prepare

5. Send your experts one-line letters (or as short as possible)

6. Have them educate you

7. Have them review the other side’s expert—depose and help cross-examine

8. Lay the foundation

9. Reasonable certainty (i.e., reasonable degree of medical/professional certainty)

10. No report unless you have to

11. Keep in mind discoverability

E. Personal Injury Case Opening Statements

1. Do not waste time

2. Confirmation bias – jurors typically will not have made up their minds, but they

will have established a groundwork for how they will take in the evidence

3. Focus on defendant’s behavior

4. Use Rules of the Road

5. Do not advocate too soon

6. Less is more. Do not give too much information.

7. Establish causation and damages

8. Undermine defenses

9. Explain to the jury what they can do about what has happened

F. Evidence and Witnesses: Structure of Proof and Tips

1. When to call the defendant as a witness

2. Structure of Case

a. Structure logical evidence and argument in a well-organized presentation so

that the conscious mind can effectively deal with it (narrow in scope, great

in detail)

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b. Structure emotional evidence and argument so as to deal positively with the

total experience (positive in nature, deal with big picture)

3. Position yourself in the courtroom

4. Meld your questions into “we” questions

5. Make sure your client looks at the jury

6. Make sure you cover all the elements of your case with your client

7. Make sure you get the opinions of your experts to a reasonable degree of

certainty

8. If you are trying an uninsured motorist case, make sure you get the proof of

uninsured before the court

9. File a Motion for Directed Verdict at the end of your case, if possible

G. Evidence and Witnesses: Cross Examining the Defense

1. Write out or outline your cross-examination

2. Ask leading questions

3. Keep it short and to the point

4. Consider the motivation(s) of the witness

5. Start soft, and get progressively more aggressive only if the witness deserves it

6. Listen to the witness’s answers!

7. Consider credibility attacks on the following topics:

a. Perception

b. Memory

c. Biases

d. Prejudices

e. Conflicting interests

f. Prior criminal convictions

g. Prior bad acts

h. Prior inconsistent statements

i. Expertise in wrong area

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j. Expertise in too many areas

k. Approach and conclusions (not enough to show always testifies for same

side; show always gives exact same testimony)

8. Be careful of accusing a witness of lying

9. Sponsorship Bias

a. Cross-examination is not just to destroy defendant’s case or to impeach

b. Jurors discount self-serving evidence a party offers voluntarily but places

greater weight on evidence the adversary develops through cross

examination (Klonoff and Colby, Sponsorship Strategy)

H. Closing Argument: Case Examples

1. Difficult/impossible to teach

2. Fight for your client

3. Tactic: throw out a question to your opponent that you know it cannot answer

4. Silence is your friend

a. Silence focuses the listener on what comes next

b. Use the tension of silence to your advantage

5. Do not forget to ask for the money and do it with confidence

a. Do not end on damages

b. End strong, but something does not sound right if the last thing the jury

hears is dollars

6. Do not forget to thank the jury

7. Examples

I. Parting Thoughts

1. Be Respectful/Righteousness

2. Read

3. Reach out

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Presentation of Evidence

Submitted by Steven B. Garner

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Standing on Ethical Ground

Submitted by John J. Gates

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ETHICS IN LEGAL ADVERTISING

John J. Gates

Baty, Holm, Numrich & Otto, PC

A. Law Firm Websites

1. Authority for Website

a. Missouri

Any means of general distribution, as long as it is not directed to persons

not known to need legal services of the kind provided by the lawyer in a

particular matter. 7.2(a)

b. Kansas

A lawyer may advertise through electronic communication, including

public media 7.2(a)

2. Rule in General

a. Missouri

A lawyer shall not make a false or misleading communication about the

lawyer or the lawyer’s services. 4-7.1

A communication is false or misleading if it contains a material

misrepresentation of fact or law. 4-7.1

b. Kansas

A lawyer shall not make a false or misleading communication about the

lawyer or the lawyer’s services. 7.1

A communication is false or misleading if it contains a material

misrepresentation of fact or law, or it omits a fact necessary not to be

misleading. 4-7.1(a)

3. Keeping Records of Advertisement

a. Missouri

A copy of an advertisement or communication shall be kept for two years

after its last dissemination along with a record of when and where it was

used. Must include the name of at least one lawyer responsible for the

content unless advertisement so states. 7.2(b)

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b. Kansas

A copy of an advertisement or communication shall be kept for two years

after its last dissemination along with a record of when and where it was

used. No rule regarding lawyer responsible for content. 7.2(b)

4. Reporting Past Results

a. Missouri

A communication is misleading if it proclaims results obtained on behalf

of clients, such as the amount of a damage award or the lawyer’s record in

obtaining favorable verdicts or settlements, without stating that past results

afford no guarantee of future results and that every case is different and

must be judged on its own merits. 4-7.1(c)

The disclaimer is not necessary of the lawyer gives a verifiable statement

regarding the number cases tried or handled in a particular area.

b. Kansas

A communication is misleading if it creates an unjustified expectation

about results the lawyer can achieve for other clients without specific facts

and law. 7.1(b)

“Ordinarily” don’t give award amounts, 7.1, cmt 1, but just use a

disclaimer, 7.1, cmt. 2

5. Comparing to Other Lawyers

a. Missouri

A communication is misleading if it compares the quality of a lawyer’s or

a law firm’s services with other lawyers' services, unless the comparison

can be factually substantiated. 4-7.1(e)

b. Kansas

A communication is misleading if it compares the lawyer's services with

other lawyer's services, unless the comparison can be factually

substantiated. 7.1(c)

6. Listing Clients

a. Missouri – No Rule

b. Kansas

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May list names of references and, “with their consent, names of clients

regularly represented,” 7.2, cmt. C

7. Satellite Offices

a. Missouri

A communication is misleading if it provides an office address for an

office staffed only part-time or by appointment only, without conspicuous

identification of such fact. 4-7.1(j)

b. Kansas

A lawyer or law firm shall not advertise the existence of any office other

than the principal office unless: (1) that other office is staffed by a lawyer

at least three days a week, or (2) the advertisement states: (A) the days and

times during which a lawyer will be present at that office, or (B) that

meetings with lawyers will be by appointment only. 7.2(e)

8. Rates and Prices

a. Missouri

"Price" advertising is acceptable as long as the characterization of rates or

fees chargeable by the lawyer or law firm such as "cut-rate," "lowest,"

"giveaway," "below cost," "discount," or "special,” unless the comparison

can be factually sustained. 4-7.1, cmt.

b. Kansas – No Rule

9. Disclaimer

a. Missouri

Any advertisement shall contain the following “conspicuous”

disclosure: “The choice of a lawyer is an important decision and should

not be based solely upon advertisements.” 7.2(f)

Unless the advertisement is limited to: (1) the name of the law firm and

the names of lawyers in the firm; (2) one or more fields of law in which

the lawyer or law firm practices; (3) the date and place of admission to the

bar of state and federal courts; and (4) the address, including e-mail and

web site address, telephone number, and office hours. 7.2(g)

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The disclosure required may, at the option of the advertiser, include the

following language: “This disclosure is required by rule of the Supreme

Court of Missouri.” This disclosure is only required for advertisements in

Missouri. 7.2, supp. cmt.

b. Kansas – No Rule

10. Paid Testimonials and Endorsements

a. Missouri

A lawyer may pay a person for making a testimonial or endorsement as

long as it conspicuously identifies the fact of payment for the testimonial

or endorsement. 4-7.1(h)

b. Kansas –

A lawyer may not pay for recommendations or for channeling work that

circumvents direct contact. 7.3, Cmt. [6]

11. Use of Actors

a. Missouri

A communication is misleading if it contains any simulated portrayal of a

lawyer, client, victim, scene, or event without conspicuous identification

of the fact that it is a simulation. 4-7.1(i)

b. Kansas – No Rule

B. Third-Party Webites, e.g. LinkedIn, AVVO, Martindale, etc.

1. Referral Fees

a. Missouri

A lawyer shall not give anything of value to a person for recommending the

lawyer's services or for channeling professional work, except that a lawyer

may pay for permitted advertising.

b. Kansas

A lawyer shall not give anything of value to a person for recommending the

lawyer's services or for channeling professional work, except that a lawyer

may pay for permitted advertising.

2. Exception to Referral Fees

a. Missouri

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A lawyer may pay the usual charges of a qualified lawyer referral service

registered under Rule 4-9.1 or other not-for-profit legal services organization.

7-7.2(c)(3)

b. Kansas

A lawyer may pay the usual charges of a not-for-profit lawyer referral service

or other legal service organization. 7.2(c)

3. Lawyer Generating Referrals for Others

a. Missouri

Advertisement must disclose the nature of the financial relationship between

the two lawyers. 4-7.2(d)

A communication is misleading if it indicates an area of practice in which the

lawyer routinely refers matters to other lawyers, without conspicuous

identification of such fact. 4-7.1(g)

A communication is misleading if it advertises for a specific type of case

concerning which the lawyer has neither experience nor competence. 4-7.1(f)

Nondisclosure of such a referral relationship in an advertisement is misleading

to the public. 4-7.2, suppl. cmt.

b. Kansas

“Lawyer referral services” are understood by the public to be consumer-

oriented organizations that provide unbiased referrals to lawyers with

appropriate experience in the subject matter of the representation and afford

other client protections, such as complaint procedures or malpractice

insurance requirements. Consequently, this Rule only permits a lawyer to pay

the usual charges of a not-for-profit or qualified lawyer referral service. 7.2,

cmt. [7]

A lawyer who accepts assignments or referrals from a legal service plan or

referrals from a lawyer referral service must act reasonably to assure that the

activities of the plan or service are compatible with the lawyer's professional

obligations. 7.2, cmt. [8]

4. Lead Generators

a. Missouri

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A lawyer may pay for advertising, but lawyers are not permitted to pay

another person for channeling professional work.

b. Kansas

A lawyer may use directory listings and business development employees and

firms. 7.3, Cmt. [6]

A lawyer may pay for lead generation, but the leads cannot recommend the

lawyer, and the lawyer cannot share fees with the generator. 7.3, Cmt. [6]

5. Legal Service Plan

a. Missouri

b. Kansas

A lawyer may pay the usual charges of a legal service plan. A legal service

plan is a prepaid or group legal service plan or a similar delivery system that

assists people who seek to secure legal representation. 7.2, cmt. [7]

A lawyer who accepts assignments or referrals from a legal service plan must

act reasonably to assure that the activities of the plan or service are compatible

with the lawyer's professional obligations. 7.2, cmt. [8]

6. Not-for-Profit Leads

a. Missouri

A lawyer may pay the usual charges of a not-for-profit legal services

organization. 4-7.2(c), cmt. [2]

b. Kansas

A lawyer may pay the usual charges of a not-for-profit lawyer referral service.

7. Qualified Lawyer Referral Service

a. Missouri

A lawyer may pay the usual charges of a qualified lawyer referral service. 4-

7.2(c)

b. Kansas

A lawyer may pay the usual charges of a qualified lawyer referral service. A

qualified lawyer referral service is one that is approved by an appropriate

regulatory authority as affording adequate protections for the public. See, e.g.,

the American Bar Association's Model Supreme Court Rules Governing

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Lawyer Referral Services and Model Lawyer Referral and Information

Service Quality Assurance Act (requiring that organizations that are identified

as lawyer referral services [i] permit the participation of all lawyers who are

licensed and eligible to practice in the jurisdiction and who meet reasonable

objective eligibility requirements as may be established by the referral service

for the protection of the public ; [ii] require each participating lawyer to carry

reasonably adequate malpractice insurance; [iii] act reasonably to assess client

satisfaction and address client complaints; and [iv] do not make referrals to

lawyers who own, operate or are employed by the referral service). 7.2, cmt.

[7]

8. Lawyers Appearing in Interviews

a. Missouri

A lawyer must disclose if a broadcaster receives remuneration from a lawyer

appearing on any television, radio, or other electronic program purporting to

give the public legal advice. 4-7.2(d)

b. Kansas – No Rule

9. Certification and Specialty

a. Missouri

A lawyer may communicate the fact that the lawyer does or does not practice

in particular fields of law. 4-7.4

A lawyer cannot imply that he or she is a specialist unless the communication

contains a disclaimer that neither the Missouri Supreme Court, nor The

Missouri Bar, reviews or approves such designations. 4-7.4

b. Kansas

A lawyer may communicate the fact that the lawyer does or does not practice

in particular fields of law. 7.4(a)

A lawyer shall not state or imply that a lawyer is certified as a specialist in a

particular field of law, unless: (1) the lawyer has been certified as a specialist

by an organization that has been approved by an appropriate state authority or

that has been accredited by the American Bar Association; and (2) the name

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of the certifying organization is clearly identified in the communication.

7.4(d)

A lawyer cannot simply state that he or she is a “specialist.” 7.4, cmt. [1]

KBA does not approve certifying organizations, only ABA

10. Endorsements

a. Missouri

A communication is misleading if it contains a paid endorsement without

identifying it as paid. 4-7.1(h)

b. Kansas

A lawyer shall not give anything of value for recommending the lawyer’s

services. 7.2(c)

A communication contains a recommendation if it endorses or vouchers for a

lawyer's credentials, abilities, competence, character, or other professional

qualities.

Questions from Kansas Office of the Disciplinary Administrator

1. Which of the following are true statements?

a. A lawyer charged with a felony crime must promptly notify the Disciplinary

Administrator.

b. A conviction of an attorney of a crime or a civil judgment against an attorney

based on clear and convincing evidence is conclusive evidence of that crime or civil wrong in

any disciplinary proceeding based upon the conviction or judgment.

c. Lawyer advertisements must be pre-approved by the Office of the Disciplinary

Administrator prior to publication.

d. All communications between a lawyer who contacts the Kansas Lawyer’s

Assistance Program (KALAP) or participates in its programs are privileged against disclosure to

the same extent and subject to the same conditions as attorney-client confidential

communications.

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2. John is a tech-savvy associate in a law firm and has been tasked with creating a website

for his firm. John suggests to Mary, the senior partner in charge of the project, that they put

client testimonials on the website. Mary tells him absolutely not. Mary says the advertising

provisions of the Kansas Rules of Professional Conduct prohibit client testimonials. John

disagrees and tells Mary that testimonials are permissible as long as the testimonials are truthful

and do not go into details about the results of the clients’ individual cases. Who is right, John or

Mary?

3. A friend recently told you that a local corporation is interested in finding outside counsel

to do collection work. May you ethically contact the corporation’s in-house counsel by phone

and solicit the collection business?

a. No. An attorney may not solicit professional employment by telephone.

b. No. To solicit the corporation’s business you must send a letter in an envelope

marked “Attorney Advertising Material.”

c. No. The best practice is to pay a fee to the friend to recommend your services.

d. Yes. An attorney is permitted to solicit professional employment from another

attorney by in-person contact, including telephone calls and real-time electronic contact.

4. The following advertisement appears on a Texas-based law firm’s website:

https://azalaw.com/goose-egg/

The “Goose Egg” ad has a link that invites viewers to “read more about the case.” The

link takes the viewer to an article that provides a detailed description of the litigation.

At the bottom of every page on the website, there is a link entitled, “Disclaimer.” That

link takes the viewer to a disclaimer that states, among other things:

“The information and material on this website may not reflect the most current

legal developments or rules, verdicts, results, or settlements, and they are not

guaranteed to be correct, complete, or up-to-date. In addition, prior results in one case

do not guarantee a similar outcome in another case.”

The “Goose Egg” ad:

a. Violates KRPC 7.1(b) because it is likely to create unjustified expectations about

the results the firm can achieve.

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b. Does not violate KRPC 7.1(b) because the website has a disclaimer that states

prior results do not guarantee a similar outcome.

c. May violate KRPC 7.1(b) if the disclaimer is considered insufficient to negate

any unjustified expectations the ad creates.

d. Does not violate KRPC 7.1(b) because it is an accurate representation of the

results the firm obtained in that case.

5. TRUE or FALSE

A lawyer may not practice under the lawyer’s name “and Associates” if the lawyer is

a solo practitioner.

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continuing education needs.

Please visit our website at www.nbi-sems.com for a complete list of

upcoming learning opportunities.

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