The Law Office of Kurt H King

October 18, 2012

When Sole Custody is Really Joint Physical Child Custody in Missouri

Filed under: Custody,Family Law,Paternity — kurthking @ 4:11 pm
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On September 18, 2012, the Western District of the Missouri Court of Appeals changed the trial court’s award of sole child custody to one of joint physical child custody.  The case is Clark v. Ingram, WD Slip Opinion 74554, appealed out of Clay County, Missouri.

The key facts behind the court of appeal’s decision to change the judgment to one of joint physical custody is that while the trial court labeled the custody awarded to the child’s mother as “sole custody,” the lower court also ordered “significant” parenting time for the father.  Specifically, the trial court initially granted the father one or two week days with the child staying  with him overnight, split the holidays between father and mother, and awarded father five consecutive days with the child during the summer.  Once the child started kindergarten, the court’s parenting plan changed somewhat to grant father alternate weekends from Friday at 4 p.m. until start of school on Monday, and from 4 p.m. on Wednesday until school began on Thursday each week.

Given this significant amount of visitation with the child, the court of appeals ruled that father has joint physical custody, not sole custody.

The “joint” custody label is important as it gives each parent impact and access to school and health information, as well as joint decision-making as to the child in those areas and others.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri; 816.781.6000

http://www.kurthking.com

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

Personal Injury, Workers’ Compensation, Litigation, Chapter 7 Bankruptcy

September 20, 2012

Seven Woes In Settling Permanent Total Work Comp Cases in Missouri

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation — kurthking @ 4:15 pm
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Recent thoughts and experiences from the injured employee’s side of Permanent Total Disability claim settlement:

1.  The big stick in the hands of the defense is that the employer/insurer does NOT have to pay a lump sum to settle PTD cases.  A key option the employer/insurer has is to simply pay the weekly amount until the employee dies (with very limited exceptions).  Along with the weekly compensation check, the defense also has to pay future medical along the way.  However, the injured employee can expect the defense to drag their feet and balk before continuing to pay future medical bills.   To resolve disputes over non-payment of future medicals, the employee racks up more attorney fees to hire counsel to sue in a circuit court (not the Division of Workers’ Compensation), and waits months for a hearing/trial date.  Not many PTD employees have any money for court costs and attorneys fees as they are living from week to week on the meager weekly compensation checks running about 2/3 of their former weekly wage.  The defense knows the last thing the employee wants is to never have any money again and to have to fight forever to get their medicals paid.  This puts the employee in such a bind that is is difficult to put real pressure on the defense over the total compensation the employer/insurer face paying over the life expectancy of the employee.  The end result is that the employee is under serious pressure to get as much of a lump sum settlement as the defense will offer and get the hell out of Dodge.  The danger of taking the money and running is that is may well not be enough to pay the future medical expense, especially after the employee catches up the bills and tries to have a life again.  At the other end of the gauntlet sits Medicaid which has the right to refuse to pay for medical expense of a employee who received a work comp settlement that included money for future medical expenses.  After all, why should taxpayers pay medical bills that the injured employee was given settlement money to pay?

2.  While word on the street is that Medicaid lacks the time and staff to check  on smaller lump sum settlements (below $250k, we hear), that is uncertain and the risk remains that Medicaid may refuse to pay for future medical care, forcing the PTD employee to use his/her settlement money (if any remains) to pay health care providers.  And who knows how long the economy will support even present levels of Medicaid.  At some point in the future, Medicaid may not be around, at least not as we now know it.

3.  Medicaid Set-Aside Trusts–To buy out of the obligation to provide the PTD employee with future medical care at its expense, the defense sometimes looks into paying a chunk of money into a Medicaid Set-Aside Trust by which Medicaid agrees to pay the future medical care of the employee.  If Medicaid wants a relatively large funding from the defense, then this option may be rejected.  But sometimes the employer/insurer uses this tool and funds a Trust, leaving Medicaid to pay the future medicals.   Some concerns for the PTD employee from the Trust route are: 1) he/she gets no money for future medical treatment, reducing his settlement; 2) Medicaid may not last or continue to pay for the lifetime of the employee; 3) some doctors do not accept Medicaid, particularly some of the top-notch pain management physicians; 4) the employee’s attorney who fought for the defense to pay future medicals now has to fight again to receive  a contingency fee percentage that the attorney would have received had the future medical compensation been paid in settlement to the employee (example: if future medicals are $100,000 of the settlement, the attorney’s typical work comp 25% fee amounts to $25,000).

4.  If the PTD employee decides not to take a lump sum settlement, the alternative is weekly compensation checks for life.  BUT if the employee’s disability improves and he/she can reenter the labor force in a meaningful way, the defense can simply move for orders converting the case to one of Partial Disability, thus ending its legal obligation to pay weekly compensation as long as the injured employee lives.  Put another way, a PTD case stays open for reassessment of the employee’s ability to work a job.

5.  Reaching a lump-sum settlement puts the injured employee in some control of his destiny.  He or she can now pick his doctors and course of treatment although at his/her expense (unless it can be panned off on Medicaid which runs off taxpayer money).  Conversely, NOT accepting a lump sum settlement leaves the employee at the mercy of the defense who picks the doctors it wants to get what may be a less expensive or beneficial treatment plan than what the injured employee wants.  And, if the employee refuses to follow the treatment plan of the defense doctors, then the defense cuts the employee loose to pay for his/her own treatment (the ideal outcome for the defense so beware).

6.  FYI–a typical present value rate in work comp is 4% compounded annually.

7.   The weekly workers compensation checks run about 2/3 of regular pay (up to caps set by law), which leaves many employees so destitute that they jump for any semi-reasonable lump sum settlement–letting the defense off the hook, so to speak.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Litigation, Personal Injury, Workers’ Compensation, Other Matters

http://www.kurthking.com

September 19, 2012

Mileage Reimbursement Under Missouri Workers’ Compensation Law

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation — kurthking @ 9:42 pm
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The question arises frequently as to whether and how much the employer owes the injured employee for mileage to and from doctors and other health care providers.

The answer lies in subsection 1 of Missouri statute 287.140.  That  law provides that IF the medical exam or treatment is “at a place OUTSIDE the local or metropolitan area from the employee’s principal place of employment,” the employer shall advance or reimburse the employee for all necessary and reasonable  expenses–BUT no transportation costs over 250 miles each way from the place of treatment.  (Query: do transportation costs include hotel/lodging costs at the Mayo Clinic, for example?)

As a general rule, what this means is that where the treatment or exam is INSIDE that local or metropolitan area of the employee’s principal place of employment, then the employee is NOT entitled to mileage or transportation expense reimbursement for travel to receive medical treatment for his/her injury or to undergo a medical exam requested by the employer/insurer.

But as a practical matter, the employer/insurer does pay for such mileage/transportation expense where the injury prevents the employee from being able to drive or otherwise reach the place of treatment or exam.  For example, the injury may have caused the employee to be physically unable to lawfully operate a vehicle to reach to the place of treatment.  Or, the prescribed pain medication may be so strong that to drive would constitute operating a vehicle under Under The Influence and thus be subject to a DUI charge.

So, there are exceptional cases but the injured employee most often bears the cost of going for medical treatment or exams in the local or metropolitan area of his principal place of employment.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty,  Clay County, Missouri 64068; 816.781.6000

Litigation, Personal Injury, Workers’ Compensation, Other Matters

How Serious Does the Previous Disability Have to Be to Hold the Second Injury Fund Liable In Missouri Workers’ Compensation Cases

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation — kurthking @ 5:39 pm
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On September 11, 2012, the Eastern District of the Missouri Court of Appeals handed down its decision in Salviccio v. Treasurer of the State of Missouri, As Custodian of the Second Injury Fund  (Slip Opinion ED97862), which holds that the injured employee may not stack/combine previous disabilities in order to reach the threshold which triggers possible Second Injury Fund (“SIF”) liability–except in limited situations.    The court of appeals then transferred this case to the Missouri Supreme Court due to the “general interest and importance of the issues.”  We will have to wait to see what happens at the Supreme Court, but here is a bit on where we are now on the question of whether an injured employee’s current or previous disabilities are serious enough to win against the Fund.

The Missouri statute on liability of the SIF is section 287.220.1, which sets minimum limits an employee must meet.  Boiling down considerable verbage, those limits are that each current and previous disability  must separately amount to 50 weeks or more if a Body As A Whole disability, or 15% permanent partial disability if a major extremity only.

The employee in Salviccio injured his left knee and settled the claim for 20% Permanent Partial Disability (“PPD”) at that level.  He later took his accompanying claim against the Fund to trial and won 12.3 more weeks of compensation to be paid by the Fund on the theory that the combination of all the employee’s injuries was 12.3 weeks more than the simple total of the present knee injury added to the disability from his previous disabilities.   The previous disabilities here were a 50% disability (11 weeks) at the proximal joint/22 week level for a left little finger injury, two hernias of 16 and 14 weeks respectively, and 50 weeks for his diabetes with some symptoms of paresthesia.

The employee wanted to combine all these previous disabilities for to get the maximum possible from the Fund–and the Labor and Industrial Labor Relations Commission obliged.   However, the court of appeals sided with the Fund, measuring each disability separately, and concluded that only the diabetes disability met the 50 week requirement.  Consequently, the court reduced the award against the Fund to 8.2 weeks of compensation.

Of particular interest is the little finger injury because it was rated at 50%, which exceeds the 15% required of a major threshold injury to trigger Fund liability.  However, the court of appeals found that an 11 week injury to the proximal joint on the little finger of the non-dominant left hand is simply not a “major” extremity injury.

Compare, however, the decision in Palazzolo v. Joe’s Delivery Service, 98 S.W.3d 645, 648 (Mo. Ct. App. E.D. 2003), which upheld an award against the Fund on a 15% disability at the 110 week level of the foot (the distal third).  In that case, the Fund apparently admitted that the foot may be a major extremity.  By analogy, a hand at the 175 week level would also seem to be a major extremity for these purposes.

(One wonders what the court would do with a case where the previous disability was an operation on the left wrist which left the 4th finger non-responsive due to tendon damage.   The scar and surgery occurs at the 175 week hand/wrist level but the disability lies with use of the 4th finger.)

Finally, we read in Salviccio that there is a limited scenario in which separate disabilities to the same major extremity may be stacked to meet the 15% major extremity only threshold for Fund liability.  The court notes its 2003 decision in Shipp v. Treasurer of State of Missouri, 99 S.W.3d 44, 53 (Mo. Ct. App. E.D. 2003), finding it acceptable to combine previous disability to the right wrist and right shoulder which added up to 15% disability of the right arm in the Commission’s mind, thus meeting the threshold limit triggering Fund liability.

In sum, while it seems acceptable to combine disabilities at various levels of one major extremity to implicate the Fund, it is not permissible to combine separate Body as a Whole disabilities or to merge extremity only disability with Body as a Whole disability.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Litigation, Personal Injury, Workers’ Compensation

June 26, 2012

Forty-five Percent Possibility of Future Surgery Is Submitted To Jury

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 9:36 pm
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In trial of a motor vehicle personal injury case, an orthopedic doctor testified that there was a 45% possibility that the injured plaintiff would have neck surgery in the future due to the injury.  The defense claimed on appeal that the doctor’s testimony amounted to only speculation and the trial court erred in letting the jury hear and consider that evidence.  However, the Western District of the Court of Appeals, in Westerman v. Shogren, Slip Opinion WD74066 (filed June 19, 2012), disagreed with the defense and held that the trial court properly admitted the doctor’s testimony of a 45% possibility of future neck surgery.

The court of appeals noted that Missouri law clearly permits a jury to consider evidence that future surgery might be needed.  All that is necessary under Missouri Approved Jury Instruction 4.01 is that the evidence support the proposition that the injured plaintiff is reasonably certain to sustain the future medical treatment.

Perhaps the importance of this case is that it indicates that a 45% possibility is enough to be reasonably certain.

But one wonders where a court would draw a line?  What if the possibility of surgery was only 10%–20%–30%, and so on?

Kurt H. King

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

Personal Injury, Workers’ Compensation, General Litigation

Chapter 7 for debtors

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

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Permanent Total Disability Depends On Whether The Worker Can Compete In the Open Labor Market

Filed under: Litigation,Missouri Workers Compensation,Uncategorized — kurthking @ 7:58 pm
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When is an injured Missouri worker Permanently Totally Disabled?  While not breaking new ground, the June 14, 2012, decision of the Southern District of the Missouri Court of Appeals in Larry Underwood v. High Road Industries, LLC (Opinion SD31731), illustrates Missouri law on the test used to determine if the worker is Totally or just Partially disabled.

The court of appeals stated the test as follows on page 12 of its decision, quoting the Western District’s words in an older case:

     “The test for permanent total disability is whether the worker is able to compete in the open labor market.  The critical question is whether, in the ordinary

     course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.”

What this means is that the injured worker need not be 100% disabled to be found Permanently Totally Disabled (PTD).  In this case, the worker (Underwood) was rated at 40% disabled by his independent exam doctor, while the treating doctor selected by the employer found only 13% disability.  Both ratings seem low in view of the chronic back and right side pain from a fall on concrete due to ladder failure while installing a radiator in a truck as part of his job as a diesel mechanic.  The fall left Underwood in severe and chronic pain to the point where the employer/insurer paid for surgery to implant a spinal cord stimulator.  Even though the stimulator relieved 40% of the pain, Underwood still suffered constant throbbing pain and some numbness, such that sleep was difficult and he could only stand or sit for 30 minutes at a time.  And, he could only drive 10 miles at a time.  Even this amount of driving contradicted the advice of the stimulator company that he should not drive when the stimulator was active because it could send false signals down his right leg.  But with the stimulator off, the pain was nearly unbearable.   With the pain, the hydrocodone and Tramadol pain medication every 4-6 hours, his 10th grade education and below-average intelligence scores, Underwood would be unable to retrain academically or otherwise. 

Even the employer/insurer’s treating doctor restricted Underwood to no more than 1 hour sitting or standing at a time.  The employee’s vocational expert testified that this restriction demoted Underwood into a category of “less than sedentary work capacity.”  The expert explained that “anybody that can’t do sedentary work is unemployable.”   The court of appeals agreed and affirmed the Labor and Industrial Relations Commision’s award in favor of Underwood finding him to be Permanently Totally Disabled.

What may lie behind the scenes in this case is the employee’s refusal to accept a lump-sum settlement offer from the employer/insurer.  Apparently, the employer/insurer declined to offer Underwood the amount of money he thought he should receive.  Without settlement, the case proceeded to trial.  Unfortunately, even though Underwood won at trial, all the judge can award him under Missouri law is that the employer/insurer pay a small weekly sum to him for life, and also pay his medical expenses related to the injury.  The employer/insurer may in the future refuse to pay some medical expenses sought by Underwood which will result in more litigation to force payment.  Too, the small weekly compensation amount tends not to be a great burden upon the employer/insurer.  So while Underwood won his case for PTD,  the result may end up a draw or even a victory for the employer/insurer due to small weekly amounts of money they  will have to pay to Underwood.

Kurt H. King

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

816.781.6000

Workers’ Compensation, Personal Injury, Medical Malpractice, Wrongful Death

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

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June 14, 2012

No Work Comp for “Equally Exposed” Injury

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 5:38 pm
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Employee on the clock making coffee at the office kitchen.  Turns and twists her ankle, “causing her foot to fall off her shoe.”  The fall fractures her pelvis resulting in a trip to the Emergency Room and conservative treatment including physical therapy but no surgery.  Injury reported and Missouri Workers’ Compensation claim followed.  Claim denied at trial by ALJ, reversed and claim granted on appeal to the Labor and Industrial Relations Commission, and now the Supreme Court of Missouri reverses the Commission to again deny the claim.  These are the facts of the May 29, 2012, Opinion SC92113 by the Missouri Supreme Court in Johme v. St. John’s Mercy Healthcare.

This case turns on Missouri statute 287.020.3(2)(b)  which, in the words of the Court, “instructs that Johme’s injury ‘shall be deemed to arise out of and in the course of [her] employment only if . . . it [did] not come from a hazard or risk unrelated to [her] employment to which [she] would have been equally exposed outside of and unrelated to [her] employment in [her] normal employment life.‘ ”   More simply put, no compensation for job injuries due to causes to which the employee is equally exposed off the job AND which are unrelated to her employment.

Prior to the 2005 amendment of section 287.020  to override previous case law, Missouri courts permitted just such claims as this by employee Johme.  Back then the injured employee was entitled to recover workers’ compensation even if  the act that caused the injury involved risks to which one would be equally exposed outside of work.  The rationale was that the act causing injury would not have occurred if the employee were not at work.  For example of law prior to the 2005 amendment, a worker succeeded on her workers’ compensation claim for injury that resulted as she  fell and injured her ankle while carrying her lunch in a break room at work while walking across a clear floor area, without apparent cause.  Drews v. TWA, 984 S.W.2d 512 (Mo. banc 1999).

This Supreme Court oponion in Johme v. St. John’s Mercy Healthcare illustrates a shift in law favoring the employer and workers’ compensation insurance companies. 

Kurt H. King

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

816.781.6000

www.kurthking.com

Workers’ Compensation, Personal Injury, Trial and Appellate Litigation

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June 6, 2012

Wrongful Discharge of Organ Donor Employee

Filed under: Litigation,Missouri Workers Compensation — kurthking @ 3:09 pm
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The recent Missouri appellate decision in Phyllis Delaney v. Signature Health Care Foundation, Opinion ED97419 filed May 22, 2012, handed down by Eastern District of Court of Appeals, sheds additional light on Missouri’s prohibition against firing employees contrary to public policy.  In this case, the employee asked for four weeks after surgery to donate a kidney to her brother.  The employer first gave the employee the green light, then said “no” three days before the surgery.  The employer refused to hold the employee’s position open and discharged the employee.

Ironically, the employer calls itself a health care foundation.  A foundation is often a body formed to serve charitable interests.  One would think a foundation of the health care variety would support its employee in being an organ donor, but apparently not so here.  Have to wonder!

The sole point on appeal is whether in donating a kidney the employee acted in a manner public policy would encourage.  The relatively obvious answer is “yes,” donating a kidney is something the public policy of the State of Missouri encourages.   The court of appeals therefore sent the case back down to the lower trial court so the employee may continue her case for wrongful discharge against the foundation that wrongfully discharged her from her job as a data entry clerk.

In its opinion, the court of appeals kindly listed these four categories of public policy exceptions to Missouri’s general rule that an employer may fire its at-will employees with or without cause: (1) refusing to perform an illegal act or an act contrary to strong public policy mandate; (2) reporting the employer or fellow employees to third parties for violations of law or public policy; (3) acting in a manner public policy would encourage; or, (4) filing a claim for workers’ compensation.  The third exception applied in this case and therefore the employer could not fire the employee for not being at work due to donating a kidney, an act encouraged by various Missouri laws discussed in the court’s opinion.

Kurt H. King

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

816.781.6000

www.kurthking.com

Litigation, Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy for Debtors, Family Law, General Matters

 

June 5, 2012

Suing the City & Sovereign Immunity

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 4:42 pm
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Tragically, a ten year old boy died on a rainy day in 2007 while walking along NE 52nd Street to Maplewood Elementary School in Clay County, Missouri.  Only a sharply sloping ditch separated the street from his school’s field; there was no sidewalk or curb.  The boy slipped into the ditch flooded with rainwater flowing towards a storm sewer drain where he was sucked to the single bar across the opening of the drain and drowned despite the efforts of volunteers and emergency responders.

The boy’s family sued the North Kansas City School District and the City of Kansas City, Missouri.  The school district settled.  The City prevailed on a motion to dismiss the case against it on the basis of sovereign immunity.  Family then appealed to the Court of Appeals for the Western District of Missouri, which reversed in favor of the family, holding that the Clay County trial judge erred in granting the City’s motion to dismiss.  The case is styled Angela Phelps, et. al., v. City of Kansas City, Missouri, Opinion WD74287 filed May 29, 2012.

A major issue in the case dealt with the fact that the school district owned the land on which the City’s storm sewer was built.  The City contended that it did not own the land and therefore could not be held liable for the boy’s death on school property.  Citing previous cases, the court rejected this argument by the City, finding that the City need only have possession or control over the premises to be held liable.  Here the City possessed rights to construct and maintain the storm sewer system and therefore had sufficient possession or control over the premises involved in the boy’s death.  The City also sufficiently controlled and possessed the adjoining street which lacked sidewalk or curb to provide a safe path to school for walking students.

Turning to the immunity of the sovereign body–the City–the court repeated the ages old rule that sovereign immunity protects such public entities from being sued unless there is some express waiver by state lawmakers.  Basically, citizens can’t sue the government as a general rule.  A concept that dates back to Henry the VIII or so.

But you can sue a city for negligence and such under these four areas of exception carved out over time by courts and by Missouri statute 537.600: (1) for a public employee’s negligent operation of motor vehicle; (2) dangerous condition of city property; (3) the city is performing a proprietary function (one that generates revenue for the city)  as opposed to a governmental function for the public benefit; or, (4) the city has liability insurance which actually covers the acts involved as this constitutes a waiver of its sovereign immunity by the city.

In this case, two exceptions applied to enable the family to continue its case against the City.  First, the City charged residents and the school district a fee for storm sewer services and Missouri law already holds that so providing storm sewers is a proprietary function.   Second, the storm sewer in which this young boy drowned was in dangerous condition according to the allegations by the family in their amended petition against the City.  Note here the court’s determination that the City need not own full title to the land in order to be liable for dangerous conditions on the premises.  Control and possession of the property for purposes of constructing and maintaining the storm sewer suffices.

Since the above exceptions are sufficiently stated in the family’s petition, the court of appeals reversed the trial judge’s dismissal of the case due to incorrect application of the doctrine of sovereign immunity.  This case, now 5 years after the death of the young student, may again proceed.  Of course, if this case against only the City now does not settle but rather proceeds to trial, the family must present proof of all the necessary elements of these exceptions in order to win.  I would think, though, that the proof is there and a jury would award a substantial amount to the family.

Admire the tenacity of the family in taking this case up on appeal (twice now) to reverse the trial judge’s decisions.

Kurt H. King

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

816.781.6000

www.kurthking.com

Personal Injury, Workers’ Compensation, General Litigation

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May 8, 2012

Elements Of An Unfair Competition Case

Filed under: Litigation — kurthking @ 4:30 pm
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What can you do when one of your own starts up a company doing the same thing as yours and mimics your advertising and marketing practices?  Well, one thing you can do is sue them in state court in Missouri for Unfair Competition. 

But what do you have to prove?  There is currently no MAI jury instruction listing the required elements of proof–not even one close enough to modify.  Thankfully, a non-MAI verdict director was recently approved by the Eastern District of the Missouri Court of Appeals in American Equity Mortgage v. Vinson Mortgage Services, ED97103 (filed April 24, 2012). 

That case arose when an ex-husband started up Vinson Mortgage Services (VM) and basically copied the radio commercials and other advertising  of his former wife’s company–the plaintiff American Equity Mortgage.   VM’s deceptive marketing apparently caused customers to call American Equity asking for VM and Mr. Vinton (the ex-husband).  Copy by VM went beyond the use of certain phrases and slogans; rather, VM’s advertisements were “virtually identical.”

On these circumstances, the court of appeals affirmed the $300,000 jury verdict for plaintiff American Equity, rejecting VM’s argument that the key jury instruction–the verdit director listing the elements the jury must find to decide in favor of the plaintiff–was erroneous.  Thus, the elements of such unfair competition as approved by the court are:

1.  VM engaged in conduct likely to deceive or mislead prospective cusotmers; and,

2.  Such conduct caused the mistaken belief that: (i) VM’s business was that of American Equity, or (ii) VM is American Equity or an agent, affiliate or associate of American Equity, or

     (iii) VM’s mortgage services were produced, sponsored, or approved by American Equity; and,

3.  Such conduct by VM damaged American Equity.

 

(An instruction said to follow Restatement of Unfair Competition, Section 4.)

To conclude, while unfair competition cases may arise due to wrongful acts different from those in the case discussed here, and so may require a verdict director altered from that approved here, at least the court of appeals lends us a general road map on what a proper verdict director needs to say for the trial court to safely give it to the jury.

Kurt H. King

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

816.781.6000

www.kurthking.com

Personal Injury, Business & General Litigation, Workers’ Compensation

Family Law–Divorce & Modification, Child Custody & Support, Paternity

Chapter 7 Bankruptcy for debtors

 

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