The Law Office of Kurt H King

August 20, 2013

Release Does Not Avoid Liability For Recklessness or Gross Negligence

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 10:26 pm
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A recent opinion by the Eastern District of the Missouri Court of Appeals shines more light on how exculpatory clauses do not prevent liability for gross negligence (a.k.a., “recklessness”).  Check out Decormier v. Harley Davidson Motor Company Group, Inc., et al., Slip Opinion ED99064, filed August 13, 2013.

There the Eastern District looked back to  Alack v. Vic Tanny Int’l of Mo., where the Missouri Supreme Court cast as “Black Letter Law” the maxim that–

“[E]xculpatory clauses in contracts releasing one from his/her own future negligence may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.  923 S.W.2d at 337.”  (Alack is the subject of another post in this blog.)

Seeing this hole in the armor of exculpatory clauses, plaintiff lawyers seek to plead and prove not only the usual ordinary negligence claim, but also a separate “recklessness claim” seeking damages for defendant’s gross negligence or recklessness.  Such a claim for recklessness was tried to a jury and its verdict for plaintiff upheld on appeal to this same Eastern District in Hatch v. V.P Fair Foundation, 990 S.W.2d 126 (Mo. Ct. App. E.D. 1999).

Before going on, one may ask how did the focus turn to “recklessness” when the Alack case speaks of “gross negligence.”  In Decormier, the defendant made it easy during oral argument on appeal by, in essence, answering “yes, our position is that recklessness is gross negligence.” (Footnote 3 on page 7)  Even without that verbal exchange, the Hatch opinion may well have provided fertile ground for the court to have equated recklessness with gross negligence.

In this new case–Decormier v. Harley Davidson–the plaintiff signed a broad release of Harley Davidson in order to ride the New Rider Course provided by HD.  Sadly, certified instructors sent this new rider out on a course that had turned icy and slippery.  The slick conditions caused plaintiff to lose control of her motorcycle and suffer serious injuries.  Nevertheless, the trial court showed no mercy and granted summary judgment in favor of defendants and against plaintiff based upon the release of liability signed by plaintiff before she rode the course.

However, plaintiff’s petition for damages saved her a day in court because in it her counsel asserted that: (1) defendants knew or should have known that the icy conditions of the [range] created an unreasonable risk of bodily harm; and, (2) defendants knew or should have known that an inexperienced rider on icy or slippery conditions created an unreasonable risk of bodily harm.  These assertions went beyond mere ordinary negligence.  In the Court’s words on page 13, “[t]his language reflects the definition of recklessness.”   And since recklessness/gross negligence is not waived by the exculpatory release of liability, the court of appeals reversed the trial court’s summary judgment for defendants, thereby putting the plaintiff’s case back on track in the trial court.

This appellate court set forth a full description of “recklessness” on page 8 of the opinion.  Boiled down, recklessness exists where there is an unreasonable risk of bodily harm that involves a high degree of probability that substantial harm will result.  To help us distinguish recklessness from ordinary negligence or intentional misconduct, the court gave these signposts:

1.  Ordinary negligence consists of intentionally doing an act with knowledge it contains a risk of harm to others.  Recklessness is a higher, more onerous species of negligence in that there is a high degree of probability that substantial harm will result.   (Page 9)

2.  Intentional conduct is that from which consequences are  “substantially certain” to result; with recklessness, there is just a “strong probability” of harm.  (Page 9)

3.  Put another way: “As the certainty of the consequence decreases, the characterization of the person’s mental state shifts to reckless, then to negligent.”  (Page 9)

The short of all this is that Missouri law now puts a fair sized dent into exculpatory clauses in releases, waivers, contracts, and elsewhere.  These infuriating broad waivers of liability that folks without clout often have to sign are becoming a bit more vulnerable.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Workers Compensation

Chapter 7 Bankruptcy for debtors, Family Law, General Trial and Other Matters

www.kurthkng.com

July 12, 2013

Can Hospital Reject Insurance Payment and Put Lien on Patient’s Personal Injury Case for Full Amount Charged by Hospital?

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 4:55 pm
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The case of Iretta Morgan v. Saint Luke’s Hospital of Kansas City is the first in Missouri to address whether a hospital may reject payment of a claim by a health insurer in order to put a lien on the patient’s lawsuit for the full amount of the hospital’s charges.

The hospital in this case treated Ms. Morgan’s injuries from a motor vehicle accident before billing her health insurance company which then paid the hospital bill after applying the appropriate discount.  The new twist–after the hospital received payment from the insurer, St. Luke’s returned the check and put a lien on Ms. Morgan’s personal injury claim against the other driver–for the full amount of its bill without the discount given the health insurance company.  This effort by the hospital to increase its revenue caused Ms. Morgan to file a class action lawsuit against the hospital  in the Circuit Court of Jackson County.  Alas, she lost in that court as the judge granted the hospital the rare prize of judgment on the pleadings based on the rationale that the Missouri’s hospital lien statute (430.230) affords hospitals the right to file such a lien “without limitation.”

However, the court of appeals disagreed and reversed and remanded, enabling Ms. Morgan to continue her case against the hospital for violation of the Missouri Merchandising Practices Act (think attorneys fees for prevailing plaintiff), tortious interference with contract/business relationship, and unjust enrichment.  The appellate court’s opinion (WD75098, filed June 28, 2013) discusses the split on this issue in other states, noting that “most courts generally hold that a healthcare provider covered under the hospital lien statute may not assert a lien against the claim of a patient with health insurance for an amount beyond what the contract between the provider and the health insurance company dictates.”

In reversing against the hospital, the Western District found first and foremost that while the hospital’s right to assert a lien on the injured patient’s claim for personal injury is not limited by  the language of Missouri’s hospital lien law (section 430.230), “it is axiomatic that ‘a lien cannot exist in the absence of [a] debt, the payment of which it secures.'”  [Citations omitted.]  In other words, the health insurance company had paid the hospital the entire discounted amount due, leaving no debt on which to place a lien.

After all, why should a hospital make more off one patient who has a personal injury claim, that from a patient that does not?

And so this aggressive lien play by the hospital backfires as the hospital has now returned its payment from the health insurance company, and embroiled itself in defending a class action where it risks having to pay the plaintiffs’ attorney fees and more.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy, Family Law, General Matters

www.kurthking.com

June 14, 2013

Child Support In Missouri When Neither Parent Has Custody

Filed under: Custody,Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 2:01 pm
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When the child is a minor and neither parent has custody, a case for child support can be initiated for the child by a state agency, a guardian, or third person providing support as next friend for the minor child.

But what about an adult son or daughter over the age of 18 in college living with neither parent?  While child support generally continues until the the child reaches age 21 for those who go on to college or other certain other post-high school education, who can bring a case in court for support of the adult child not yet 21 who left both parents behind (or vice versa) for whatever reason and is taking the required class load and working part-time?

First, can a parent file for the other parent to pay support when the child lives on his/her own or with third persons?

Law:  Where an adult child not yet 21 years of age is not living with either parent–i.e., on their own or living with friends–and attending college or such, and neither parent is making a financial contribution to the child’s expenses, then neither parent is sufficiently affected by the non-payment of child support by the other so as to be able to sue for child support from the other parent.  See Higginbotham v. Higginbotham, 362 S.W.3d 34, 36-37 (Mo. Ct. App. S.D. 2012) (daughter could not sue for child support ordered paid by mother to the grandmother).

And see Denton v. Sims, 884 S.W.2d 86, 89 hn. 5 (Mo. Ct. App. E.D. 1994), where the court of appeals reversed the trial court by ruling that the mother was not entitled to retroactive child support for one of three children  “for a period of time when she was not supporting daughter and daughter was not living with her.”  The daughter lived with a third-party and mother then made “no financial contribution to her upbringing.”

Second, if the parents cannot sue, can such an adult child entitled to support sue one or both parents in those circumstances?

Despite a dearth of Missouri cases on this point, there seems to be no reason why the adult child could not sue in his or her own name for support just as an adult could bring other cases in court.  But, this does not appear to be happening as a practical matter.  Presumably, adult children having flown or been kicked out of  the family nest are not of the mindset to turn back and sue a parent for support.  Maybe it is pride, but certainly it is psychologically difficult to sue to your parents.  And so, while it can happen, it doesn’t.

Lastly, if the lot of such an adult child not yet 21 trying to make it in the world and get a college or similar education, without support from the parents, seems unfair, REMEMBER: life is not fair, and Missouri law does not require parents still married to support their children after high school either.  For some reason, divorced parents can be ordered to pay support during college generally until the child turns 21, but married parents need not.  One of life’s little injustices?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers’ Compensation, General Matters

May 22, 2013

The General Rule on Maintenance in Missouri

Filed under: Divorce,Family Law,Litigation,Support — kurthking @ 9:38 pm
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The recent May 7, 2013, opinion ED98727 out of the Eastern District of the Missouri Court of Appeals in In re the Marriage of John P. McMillian and Susan I. McMillian, follows established Missouri law on  how maintenance (formerly called alimony) is to be awarded by Missouri courts in divorce cases.

Here the husband enjoyed a substantial income while the wife’s income had diminished with no real signs of improvement in the future.  Not having settled the issue of maintenance, the parties tried the case to the court in a bench trial.  The trial judge awarded maintenance but limited it to three years and declared it to be non-modifiable.

The Eastern District reversed as it found no or insufficient proof that the wife’s income would increase by three years time.  Accordingly, the court of appeals ordered that such maintenance shall be paid indefinitely but that the maintenance shall be modifiable so that the husband may move to modify the maintenance award should the financial circumstances of the parties change significantly in the future.

This case illustrates Missouri case law holding that to limit the duration of maintenance there must be adequate proof that the financial situation of the parties will definitely change at a certain point in the future.   Lacking such proof, trial courts are not to set a time limit, unless the parties agree on one.

So if you want to limit the time that you will have to pay maintenance, try to reach an agreement which may well mean that you will have to sweeten the pot by offering your spouse more maintenance than the judge may order so that he/she will agree to a cut-off date.  This is a dangerous issue to take to trial so try to settle it.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Divorce, Modifications, Child Custody, Support & Visitation, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy

New Opinion Affirming Award of Punitive Damages in Delacroix v. Doncasters

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 9:15 pm
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As of May 7, 2013, the Eastern District of the Missouri Court of Appeals handed down a revised opinion in appeal ED97375, a case captioned Delacroix v. Doncasters which addressed the level of proof necessary for an award of punitive damages in an aircraft product liability case in Missouri.

This court’s first slip opinion issued January 2013 in appeal ED97375 affirmed the trial court’s decision to disavow the jury’s award of $28 million in punitive damages to the plaintiffs who were killed in the crash of the sky diving plane fitted with defective blades sold on the market by a company later purchased by defendant Doncasters.

But the court’s second opinion dated May 7, 2013, turned about to fully uphold the jury’s award of punitive damages.

In reaching its final conclusion that the plaintiffs did in fact sufficiently prove their case for an award of punitive damages, the court stated that plaintiffs in a strict liability products case must present clear and convincing evidence that the defendant placed in commerce an unreasonably dangerous product with actual knowledge of the defect, and that by doing so acted with conscious indifference or reckless disregard for the safety of others.  The court defines “clear and convincing” as being evidence sufficient to permit a reasonable juror to conclude with convincing clarity the truth of the proposition sought to be proven.  These standards and definitions may seem a bit circular and hazy but it seems that the court “knows one when it sees it.”

Here the evidence presented by the plaintiffs to justify punitive damages included expert testimony based on documents produced by the defendant that the blades never passed the FAA tests for durability of the engine prop blades that failed to cause the crash that killed the sky divers, and that the manufacturer knew of the failure but nevertheless made and sold the blades anyway–a mind-boggling mistake.  The blades failed two durability tests and never passed the test in the engine for which they were manufactured.  This the manufacturer knew before the sale of the blades involved in this case.  Not only did the original manufacturer know the blades failed, but so did defendant Doncasters, the purchaser of the manufacturing company.  Despite admitted knowledge of the sale of defective blades, defendant Doncasters never recalled or issued warnings to purchasers of the defective blades.

While a dissenter  wrote against the decision on this appeal, the reasoning of the block of justices upholding the award of punitive damages to plaintiffs rests on solid ground.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

Litigation–Personal Injury, Workers’ Compensation, and General Matters

May 7, 2013

SSI For A Disabled Child Is NOT Credited Against Child Support

Filed under: Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 5:16 pm
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Previous posts speak of the non-custodial parent receiving a credit against that parent’s child support obligation in the amount of Social Security Disability paid for the child on account of the obligated parent’s disability.  And, that a credit for SS Disability is not granted the obligated parent when SS Disability is paid for the child on account of the CUSTODIAL parent’s disability.

BUT what about when the child is disabled and receiving Supplemental Security Income (SSI) payments from Social Security due to the child’s own disability and not that of either parent?

Both the Western and Eastern Districts of the Missouri Court of Appeals rule that the parent paying child support is not entitled to a credit against his or her child support obligation for SSI paid due to the child’s disability.  Lewis v. Dept. of Social Services, 61 S.W.3d 248, 258 (Mo. Ct. W.D. 2001); Malawey v. Malawey, 137 S.W.3d 518, 528 (Mo. Ct. App. E.D. 2004).

The courts reason that SSI paid on the child’s account due to the child’s disability merely supplements in order to defray the extraordinary cost of caring for a child with disability.  Too, such SSI  is paid on account of the child, disconnected from the Social Security account of the parent obligated to pay child support.

So, a credit against child support due to SSI on account of the child’s disability is not happening in Missouri.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

Family Law–Divorce, Modification, Paternity, and Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, and General Matters

April 15, 2013

Expunging A Criminal Arrest Record Under Missouri Statute 610.122

Filed under: Litigation,Uncategorized — kurthking @ 3:49 pm
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Here are the five elements that must be proven in order to expunge a criminal arrest record under Missouri statute 610.122, as to situations where the arrest was based on false information and the following conditions exist:

1.  No probable cause that the defendant did the crime;

2.  No charges will be pursued;

3.  Defendant has no misdemeanor or felony convictions;

4.  Defendant did not receive a Suspended Imposition of Sentence (SIS;

5.  No related civil action.

See Schollmeyer v. State of Missouri, (Mo. Ct. App. E.D. Slip Op. 98614, filed April 9, 2013), where the Eastern District of the court of appeals reversed the trial court’s expungement of the arrest record because: arrest based upon information admitted by defendant to be true; probable cause for arrest existed; criminal charges filed; and, defendant received a SIS.  In sum, plenty of good cause for reversal of the trial court.

Expungement of an arrest record is just not as easy as often thought.

Note that there are various minor exceptions to the above to permit expungement in limited circumstances.  Section 610.140.2 lists three categories of exceptions which include convictions of  some crimes–passing bad checks, use of fraudulent credit/debit devices, specific property crimes, disturbing the peace.  And other exceptions: Missouri statutes section 311.326 permits expungement of lesser driving under the influence records;  217.360 reversals of paternity orders . . . .

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

General Litigation and Practice, Personal Injury and Workers’ Compensation

Chapter 7 Bankruptcy, Family Law including Divorce, Paternity, and Modifications of Child Custody, Support, & Visitation

http://www.kurthking.com

March 19, 2013

50/50 Custody and Child Support in Missouri

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:44 pm
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Times have changed since my previous post on 50/50 custody.  It is now the rule and not the exception in Missouri.  Lawmakers have moved on since the former days of one parent having primary or residential custody, with the other parent having alternate weekends, holidays, and weeks during the summer.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

Missouri Grandparent Visitation Under 452.402

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:17 pm
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At a Clay County family law seminar last Friday (03.15.2013), Commissioner Roberts spoke on Grandparent Visitation in Missouri under much revised statute 452.404.   Our Commissioner apparently put a good deal of work into researching the background and status of this relatively involved law.  The gist of what I took from her presentation includes:

1.  Important to select the correct tool to proceed for grandparent visitation rights.  Use the wrong one at your extreme peril and likely defeat.  Choices include: 1) Motion to Intervene into a Dissolution of Marriage case; 2) Motion to Modify where this is already a judgment of dissolution; 3) separate action for grandparent visitation where, for example, one parent is deceased and the surviving parent denies visitation.

2.  If the parents are legally married, and living together with the child (not having filed for divorce or legal separation), the grandparents CANNOT file for visitation under 452.404 even if unreasonably denied all visitation with the grandchildren.

3.  When a denial is “unreasonable,” and what visitation is “reasonable,” is undefined and far from clear.

4.  The Commissioner  reads 452.404 as requiring in all cases that unreasonable denial of visitation have run for 90 days or more.  Otherwise, the court lacks jurisdiction and the case may well be dismissed.  The statute is unclear but the Commissioner is probably right.  Simply put, if the denial is not unreasonable and has not run for at least 90 days, do not file for grandparent visitation.

5.  Step-grandparents have no right to use 452.404 but may try to proceed for visitation as a “third party” under 452.375.

6.  Older cases allowed grandparents of children born out of wedlock to obtain visitation rights.  Commissioner Roberts opines that the new version of 452.404 limits such grandparent visitation actions involving out of wedlock grandchildren to only cases where a parent dies and the grandparents of the deceased parent are unreasonably denied visitation with the grandchildren; OR, the grandchild lived with the grandparent the necessary time frames AND the grandparent is unreasonably denied visitation for 90 days or more.

7.   As a broad general rule, there is no room for grandparent visitation motions to intervene in a case to adopt the grandchildren.  Rare exception was once made where the grandparents had already been granted visitation rights (in a paternity case) which the court found were NOT terminated by the subsequent adoption case.  There is also the alternative route of seeking generic third party rights through a 452.375 action.

8.  In probate actions by a grandparent for guardianship of the grandchild, a settlement whereby the grandparents dismiss in exchange for an order of visitation rights runs considerable risk.  In Clay County, the court finds that it has NO equitable rights to order such grandparent visitation rights and 452.404 does not apply in probate settings.  Clay County would say that it cannot grant the petitioning grandparents visitation as all they can seek there is guardianship and to also be appointed conservator.    Thus, such a visitation order would be void ab initio in Clay County as was also the case in the case of In the Matter of DCO and AOD, 239 S.W.3d 714 (Mo. Ct. App. S.D. 2007).  Jackson County begs to differ, however, contending that it has the equitable power to order grandparent visitation in such an instance.

9.  Note that grandparent visitation is a creature of statute and cannot survive absent specific statutory authority.

10.  Again, 452.404 does NOT apply to probate proceedings.

11.  A mere 2 hours every 90 days has been found to be sufficient grandparent visitation.  Is a grandparent visitation case worth the time and trouble?

12.  Commissioner Roberts provided a good working outline on this subject and presumably would share it with interested counsel.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

February 25, 2013

Using A QDRO To Collect Back-due Child Support Or Maintenance Under Missouri Law

Filed under: Family Law,Support — kurthking @ 5:47 pm
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Missouri case law acknowledges the right of a former spouse to apply to the court for a Qualified Domestic Relations Order to collect past-due child support or maintenance.  See the Eastern District’s decision in Baird v. Baird, 843 S.W.2d 388 (1992), which without much ado simply recognizes that the federal ERISA authorizes such division of retirement accounts by QDRO in connection with child support and maintenance.  That court rejected the notion that allowing the use of a QDRO to collect a child support arrearage improperly redivides the marital property.

Collection of child support or maintenance by QDRO would seem to work best if the retirement asset is a 401(k) or equivalent from which a lump sum distribution may be made to pay off the child support or maintenance arrears.  If the retirement asset is a pension that pays “x” dollars of benefits each month after retirement, a lump sum distribution may not be possible and thus collection may not begin for years and have to run for many months or even years before the arrears is fully collected.

But in the right situation, an application for a QDRO may be the perfect tool to collect child support or maintenance.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolution of Marriage; Modifications; Child Custody, Support, Visitation; Paternity

General Litigation, Personal Injury, Workers’ Compensation

http://www.kurthking.com

 

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