The Law Office of Kurt H King

November 16, 2017

Are Damage Caps Constitutional in Missouri’s New MHRA Regarding Discrimination

Missouri’s amendments to the Missouri Human Rights Act (codified in Chapter 213 of the Revised Missouri Statutes) cap employer liability for damages beyond back pay with interest to a scale tied to the number of employees of the employer.  The maximum tier for employers with over 500 employees carries a $500,000 limit on such non-pecuniary damages–a category including punitive damages, pain and suffering, emotional distress, loss of enjoyment of life.  (Section 213.111, RSMo, at subsection 4.)

The question is whether those caps will stand.  Similar damage caps were struck down as to medical malpractice actions in Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Missouri Supreme Court 2012), as an unconstitutional restriction upon the common law right to trial by jury.

Kurt H. King

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

816.781.6000

Personal Injury & Other Litigation, Workers’ Compensation

 

 

November 15, 2017

Missouri’s New Whistleblower Law

As of August 28, 2017, Missouri’s new Whistleblower law–section 285.575, RSMo–took effect.  Most, if not all, would say it is a step back for whistleblowers.

The new law raises the bar in several respects:

1) The new threshold of proof required is that the whistleblowing have been “the motivating factor” behind the employer’s action adverse to the whistleblowing employee.

2) Subsection 4 states only that that it is an unlawful practice for an employer to “discharge” the whistleblower.  Other retaliatory acts are not declared to be unlawful.   So whistleblowers are only protected if they are fired/terminated/discharged?–apparently so.

3) Subsection 3 declares that no cause of action “shall exist” under section 285.575 if the claimant also has a–[similar?]–private right of action under another statutory or regulatory scheme by federal or state law.  Will whistleblower cases under this new law be dismissed if joined with alternative counts based on other whistleblower laws?  What if the application of the other statutory or regulatory scheme depends on disputed facts for jury?  What if the other private right of action allows only a lesser amount of damages to the claimant?  And, what if . . . what if . . .  what if . . .  ?

4) Subsection 5 also prohibits recovery of punitive damages.

5) Subsection 7 allows only (1) back pay, (2) reimbursement of directly related medical bills, and (3) double damages in cases of clear and convincing evidence of “outrageous” conduct by the employer.  No provision for an award of “front pay” damages appears in section 285.575.

6) Subsection 8 does allow court costs and reasonable attorney fees.

7) Subsection 3 states the whistleblower law of section 285.575, along with chapters 213 (employer-employee matters) and 287 (workers’ compensation) shall be “the exclusive remedy” for any and all claims of unlawful employment practices.  May Missouri claimants NOT also make claim under federal law?  Subsection 3 contemplates claimants making claim under federal law, clashing with this “exclusive remedy” provision.

8)  In subsection 2, the government that makes this new law takes care to exempt itself and a chosen few from its provisions by excluding from the definition of an “employer”: the “state of Missouri” and its agencies, “instrumentalities,” and political subdivisions; and, entities owned or operated by religious or sectarian organizations.  (Why are religious or sectarian organization entities preferred?  What basis justifies such preferential treatment in this law?)

In short, our new whistleblower law–section 285.575–leaves something to be desired in clarity and fairness.

Kurt H. King

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

816.781.6000

Litigation, General Practice

 

November 14, 2017

BASIC SOVEREIGN IMMUNITY IN MISSOURI-2017

Some current basics:

In general, Missouri law prohibits lawsuits against the State itself and its political subdivisions, municipalities/cities, and quasi-governmental bodies (to some extent).  In other words, you can’t sue the King or the government for negligence or other tort acts or omissions unless he/it lets you–a doctrine known as Sovereign Immunity.

Some of the Major Exceptions to Sovereign Immunity

2) Missouri statute 537.600 allows these TORT lawsuits REGARDLESS OF WHETHER THE PUBLIC ENTITY ACTED IN GOVERNMENTAL OR A PROPRIETARY CAPACITY, AND REGARDLESS OF WHETHER THE PUBLIC ENTITY IS COVERED BY LIABILITY INSURANCE IN TORT:

(a) negligent operation of motor vehicles by public employees; and,

(b) for injuries caused by dangerous conditions on property of the public entity.

3)  And, Missouri Revised Statutes section 537.610 waives sovereign immunity as to the State of Missouri and its “political subdivisions” to a limited extent IF insured by liability insurance for tort claims.

4)  Missouri has a similar statute, section 71.185, which waives Sovereign Immunity so as to enable lawsuits against Missouri municipalities that carry liability insurance for tort claims, BUT ONLY in cases where the acts are those of governmental function (for the public good).

5)  If the municipality function which causes personal injury is proprietary–as a private business would act, for profit–then sovereign immunity does not apply.  City maintenance of a park has been held by Missouri appellate courts to be a proprietary function, as is a city’s provision of water to customers; however, airport security falls into the governmental function category.

6) The governmental-proprietary distinction does not apply to the State of Missouri and its political subdivisions–including the police departments of Kansas City and St. Louis  as they now exist under State law to avoid undue city influence and cuts in funding.

Kurt H. King

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

816.781.6000

Personal Injury, Missouri Workers’ Compensation, General Litigation

October 26, 2017

ERISA LIENS, MEDICARE SET ASIDES, ETC.

Marci Gordon of Synergy Settlements out of Orlando, Florida, did fine job at recent Clay County, Missouri, CLE on the subject of ERISA liens and some reduction strategies.   Her business card also lists Medicare set aside trusts, lien resolution, pooled trust services, and complex settlement planning and consulting.

Synergy offices at 911 Outer Road, Orlando, Florida 32814, with a Toll Free line 877.242.0022, Direct line 407.279.4812, Cell 407.620.7471.

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

August 11, 2017

Merger of Title in Same Owner Extinguishes Easement by Prescription and Defeats Adverse Possession

Take, for example, a fact set where two adjoining but separate tracts of land were bought from different owners by the same husband and wife to form a single farm.  Then the husband and wife sell the farm in the two parts to separate new owners.  One new owner wants to claim an implied easement by prescription over the other new owner.  But did easement by prescription survive the merger of title into the husband and wife who owned both tracts of the real estate?

Answer:  No, the doctrine of merger extinguished easement by prescription (which is closely akin to taking of title by adverse possession in Missouri over ten years).

Long-standing Missouri law holds:

“One who owns the fee can not acquire an easement over it.  The easement, if

one existed, is merged into the fee.”  Marshall v. Callahan, 229 S.W.2d 730, 734-35 (Mo. Ct. App. S.D. 1950).

 

“[A]n easement is in general extinguished when the dominant and servient

estates are owned and possessed by the same owner.”  Maune v. Beste, 356 S.W.3d

225, 230 (Mo. Ct. App. E.D. 2011).

 

This result makes common sense–it would fly in the face of logic for the law to enable a person who owns all of a tract of land to turn on himself and try to claim he has made hostile or adverse use of his own land against his own interests.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

Non-Adjoining Landowners Have No Automatic Right to Access A Roadway

Do landowners whose land does not reach the actual roadway itself have a right to access a roadway over another person’s land?  What if the boundary line reaches into the 60 foot (30 feet each side of middle or roadway) right-of-way but does not reach the roadway itself?

There seems to be a dearth of Missouri case law on this point, but there is inference that such a landowner has to find another way to obtain roadway access if his land does not reach the roadway itself.

In Fortenberry v. Bali, 668 S.W.2d 216 (Mo. Ct. App. E.D. 1984), a case where plaintiffs sought an easement by necessity, we find this inference that it is those plaintiffs whose property intersects or abuts a public roadway who have a right to drive from the public roadway directly onto their land:

“It was not disputed that plaintiffs’ property neither intersected nor abutted a public roadway. Therefore, the sole issue is whether plaintiffs have a legally enforceable right to use any alternative route. Hill v. Kennoy, Inc., 522 S.W.2d 775, 777 (Mo. banc 1975).”

Consequently, a easement over the owner of the land upon which the road lies appears to be necessary for non-abutting landowners to access the roadway.

(This may be an easement by necessity situation if no other means of roadway access is available, but note that inconvenience falls short of necessity.)

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

Roadway exception language in Deeds refers to an Easement

Filed under: Litigation,Real Estate,Uncategorized — kurthking @ 4:11 pm
Tags: , , ,

The language in deeds often “excepts” the roadway.  What does that mean?–the land under the roadway is not conveyed?–an easement is created?  Did the fee title to the land stay with a previous landowner, was it never conveyed, or what?

At least one Missouri case says that such language creates an easement for the roadway with fee simple held by the person who owns the land under the road.

In Ogg v. Mediacom, 142 S.W.3d 801, section III (Mo. Ct. App. W.D. 2004), the court of appeals declared:

“Use of terms such as “right of way,” “road,” or “roadway” as a limitation on

land is a strong, almost conclusive, indication that the interest is an easement.”

 

Apparently, fee ownership belongs to the person who owns the land beneath the road or road right-of-way.

 

Kurt H. King

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Litigation, Personal Injury, General Matters

 

July 18, 2017

Bonuses Paid During Marriage based on Pre-marital Work

If, for example, you or your client earned a 2015 profit-sharing bonus  that Ford paid in April 2016, after a marriage earlier in 2016–i.e., after the bonus year but before receipt of the bonus–take comfort in this Missouri case, Sanders v. Sanders,  933 S.W.2d 898 (Mo. Ct. App. E.D. 1996).

The Sanders case applies Missouri’s “source of the funds” rule, and holds that bonuses resulting from pre-marital labor or contributions are non-marital property of the spouse whose labor or contributions warranted the bonus.

Kurt H. King, Attorney at Law

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

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

 

Kansas Under-Insured Motorist Coverage

Under Kansas statute K.S.A. 40-284(b), Under-Insured Motorist (“UIM”) automobile coverage pays only “to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” Kerns v. Alliance Indemnity Co., Slip Op. 79948 (Mo. Ct. App. W.D. April 25, 2017).

So, if you carry the minimum 25/50 (in thousands of dollars), your UIM coverage does not pay you a dime because the other driver will have at least the required minimum 25/50 of bodily injury coverage.  Since your $25k of UIM does not exceed the other driver’s $25k of bodily injury, you get zero from your UIM.

(Note: Kansas law prohibits “stacking” of UIM coverage.  K.S.A. 40-284(d))

Even if you buy more than the 25/50 minimum of UIM, it still pays you nada if the other driver has as much or more bodily injury coverage.  For example, if you carry $100k in UIM, and are hit by another driver with $100k in bodily injury coverage, your UIM pays nothing because your UIM of $100k is no greater than the other driver’s $100k of bodily injury coverage!

We wonder if insurance agents explain this to the people buying insurance from them.  If they are, one would expect the buyer to either waive UIM coverage or buy more than teh minimum 25/50 amount.

Kurt H. King, Attorney at Law

20 E. Franklin, Liberty, Clay County, Missouri

816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

June 27, 2017

Are Administrative Child Support Actions Too Prone to Error?

In my opinion, Administrative actions in Missouri that order a person to pay child support are ripe for error and constitutionally weak.

Too often, the father named on the birth certificate is not the child’s biological father.  He is the mother’s new guy or husband, and maybe she does not even know who is the father but names the one she thinks best under the circumstances.  The mother can point the finger at a guy she knows is not the child’s biological father and the Children’s Division run with it as though the gospel truth.

When the Children’s Division presumes the guy the mother names is the child’s father, a notice goes out to the presumed father advising him of his need to request a hearing if he disagrees with the child support amount proposed by the Division.

A poor, uneducated, or legally inept “father’ may not request a paternity test or other action to refute the Division’s child support proposal.

Or, the presumed father may have been supporting a child not his for years and believe he is the father of that child, thus seeing no need for paternity testing.  Or he may know that he is not the biological father but have cared and loved the child for years, leading him to consider the child as his own and not request paternity testing.

To avoid these mistakes, paternity testing should be required in all Children’s Division cases.  Cost of testing weighs far less than harm to presumed fathers who are not the actual biological father of the child.  Too, such mistakes cost the real, biological father an opportunity to know and be a part of the child’s life.  Perhaps the ultimate loser is a the child who grows up never knowing his real father.

Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Litigation, Other Matters

 

Next Page »

Blog at WordPress.com.