The Law Office of Kurt H King

November 18, 2013

Worker’s Dependents Entitled to His Workers’ Compensation for Their Lifetimes

Filed under: Litigation,Missouri Personal Injury Law,Missouri Workers Compensation,Uncategorized — kurthking @ 5:31 pm
Tags: , , ,

This post dovetails prior posts regarding Missouri Workers’ Compensation law involving death by other causes of a Permanently Totally Disabled (PTD) worker and the “Schoemehl window.”

The Southern District of the Missouri Court of Appeals recently addressed an appeal by the Second Injury Fund in a case where the PTD employee with a claim within the Schoemehl window died from causes not related to the injury.   The case is Spradling v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Slip Opinion SD31907 (November 5, 2013), and holds specifically for cases within these parameters that the dependents of the deceased PTD worker whose claim was pending and not finally determined as of June 26, 2008 are entitled to the PTD compensation payments FOR THE LIFETIME OF THE DEPENDENT(S).

Note that the employee died from causes unrelated to his injury in November 2005 after having been injured in 1998 and having filed his claim in 1998.  On the date of injury, he was the non-custodial father of two young children who were “conclusively presumed” under 287.240(4) to be his dependents.

Note too that this case falls within the “Schoemehl Window” opened by the Missouri Supreme Court in Schoemehl on January 9, 2007, and continuing until June 26, 2008, when Missouri lawmakers closed the window by revising Missouri workers’ compensation law so that PTD in such a case terminates upon the death of the injured employee.

The bottom line is that in Schoemehl window cases the employer has to pay PTD so long as a dependent lives, but if the claim falls after that window closed the employer only has to pay only so long as the employee lives.

Kurt H. King

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

816.781.6000

Workers’ Compensation, Personal Injury

Chapter 7 Bankruptcy for Debtors, General Matters

Family Law–Dissolution of Marriage, Modification, Paternity, Child Custody, Support, & Visitation

HOW TO GET YOUR PROPERTY BACK AFTER DIVORCE AND IN OTHER CASES–Missouri’s 511.310

Filed under: Divorce,Family Law,Litigation,Uncategorized — kurthking @ 3:13 pm
Tags: , , , ,

Missouri law 511.310, RSMo 2013, seems to be a rarely used, straight forward way to recover for property that the ex-spouse fails to return as ordered in a divorce judgment.  However, the law does not limit itself to divorce judgments and applies generally. That statute provides:

“511.310. Damages in lieu of performance of judgment

When complete justice cannot otherwise be done, the court may, on the petition of the party entitled to the benefit of a final judgment, cause an inquiry to be made by a jury of the amount of damages which ought to be paid in lieu of the performance of the judgment, and may render a judgment for the damages so assessed, and award execution thereon.”

Perhaps an advisory jury would suffice instead of a full-blown jury trial.

In any event, 511.310 may be a viable and effective alternative to actions for contempt of court and conversion of property.

Kurt H. King

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

816.781.6000

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

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters

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
Tags: ,

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 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
Tags: ,

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
Tags: ,

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

January 29, 2013

Pre-impact Terror and Actual Knowledge for Punitive Damages in Aircraft Product Liability Case

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 6:09 pm
Tags: , , ,

The Eastern District of the Missouri Court of Appeals recently issued its opinion ED97375 in Delacroix v. Doncasters, Inc. (01.15.2013), an airplane product liability case.  That court affirmed $4 million of compensatory damages as to each of the five persons killed in the 07.29.2006 crash of a sky-diving plane, but denied plaintiffs $28 million of punitive damages also awarded by the Franklin County jury in a trial bifurcated as a sanction against Doncasters,Inc., for late production of 8000 documents to plaintiffs’ counsel.

Besides the bifurcation sanction, this case holds interest in at least three areas:

1.  Court agrees that plaintiffs are entitled to recover for pre-impact terror during the 52 seconds that it took the plane to hurtle to ground after a defectively coated compression turbine blade failed and destroyed the right engine.  Simply put, the court found the passengers killed by the crash began to suffer injury–terror, distress–when the engine failed and before the physical impact brought death.  Therefore, no error in submitting the case to the jury using MAI 5.01 with language allowing award of damages for the damages that the deceased persons suffered between the time of injury and death.

2.  Plaintiffs sought to offer evidence of twenty-six similar blade failures.  However, the court excluded all, finding cause of blade failure in those incidents did not match that of the blade at issue in this case–substandard coatings which allowed corrosion of the also substandard base metal of the blade.

3.  The court of appeals took away the jury’s $28 million award of punitive damages, finding the testimony of plaintiffs’ experts failed to show the required actual knowledge by the defendant of the defective condition.  Plaintiffs’ experts testified that the company knew that the blades failed to pass–twice–FAA 150 hour endurance tests  in the subject engine type and therefore knew the blades were defective prior to 1986.  Indeed, the company’s representative testified that defendant Doncasters, Inc., knew the blades were defective but claimed to have only first so learned in 2001, some time after Doncasters bought the company that sold these defective blades in 1996.   Why were the blades not recalled and/or warnings sent out by Doncasters after purportedly discovering defects in 2001?

In any event, the dissenting judge opines that plaintiffs’ expert testimony certainly satisfied the burden of proof on actual knowledge of the company that its blades were defective due to inferior anti-corrosion coating and substandard base metals which never passed FAA endurance tests.  Indeed, the jury surely thought that Doncasters’ fault so serious as to be deserving of $28 million in punitive damages to punish it and deter others from such reckless disregard for the safety of others.   A strong point of the dissent is that the jury is free to disbelieve Doncasters’ claim it first learned of the defective condition in 2001, and plaintiffs’ experts testified to defendant’s actual knowledge as being prior to 1986.  [Keep in mind, that the purchaser of the stock of a company, as Doncasters presumably did in this case, generally renders the purchaser liable for the liabilities of the company it so purchased.]

Interesting case handled for the plaintiffs by good lawyers–Gary and Anita Robb of Kansas City.

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation, General Litigation

http://www.kurthking.com

January 8, 2013

Missouri’s Position on Statutory Damage Caps in Wrongful Death Cases Involving Medical Malpractice?

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 9:53 pm
Tags: , ,

Years ago, Missouri lawmakers did an end run to block juries from setting the final amount of non-economic damages due a  wrongfully injured person as a result of improper health care.  To do so, they passed what is now Missouri statute 538.210, which lets the jury determine fault and the amount of damages, but then requires the judge (unbeknownst to the jury) to cap the amount of non-economic damages at $350,000 as of this post.

This fix lasted until July 31, 2012, the date of the Missouri Supreme Court’s opinion SC91867 in Watts v. Lester E. Cox Medical Center, now found at 376 S.W.3d 633.  In that case, Missouri’s Supreme Court struck down damage caps  in a medical malpractice case involving a child born brain damaged, but who survived to need care for life.

In deciding Watts, the high court  found that the Missouri Constitution first adopted in 1820 mandates the right to jury trial as it previously existed at common law.  Since no such damage caps existed then in common law, the damage cap statute first implemented over a century later unconstitutionally curtailed the right to trial by jury in Missouri.  Therefore, the damage cap statute violates the Missouri Constitution and is consequently a nullity as to such common law causes of action.   Good-bye damage caps in medical practice cases?–not quite.

The question remains after Watts: do the caps still apply  where substandard care from a health care provider results in the patient’s death and suit is brought for damages as a wrongful death claim?  On this point, we find the same Missouri Supreme Court deciding in April 2012 (just three months before Watts) that such damage caps are alive and well–and lawfully applied  by the trial judge to reduce the amount of non-economic damages awarded by the jury in a wrongful death case where improper health care caused the patient’s death.  See Sanders v. Ahmed, at 364 S.W.3d 195 (see page 204).

This begs the question, why does the cap apply when the patient dies but not when he or she lives?  The rationale given in Sanders is that wrongful death actions did not exist in common law adopted by the State of Missouri through its Constitution of 1820.  Rather, the Missouri legislature later statutorily established wrongful death as a cause of action in Missouri, and that not until about 1855 according to the court in Sanders.   Thus, it seems that the high court holds that the right to an unrestricted jury verdict of damages due the plaintiff follows only if the cause of action existed in the common law of this state as of 1820.  As wrongful death actions did not then exist in common law, being cast by state statute years later,  the constitution is now read to permit application of damage caps in wrongful death cases based on medical negligence.

One could and should argue that this uneven and unfair application of damage caps runs afoul of the Equal Protection clauses in the Missouri and United States Constitutions and that question and others like it  may well fuel future appeals of such wrongful death cases to the Missouri Supreme Court.

Would it be too simple to remove damage caps entirely where the parties have a right to a jury trial?  Might we better focus on leaving the common law right to jury trial as free of damage caps and the like as it was originally in 1820 here in Missouri and grant all causes of action later adopted (that are entitled to jury trial) the same full right to trial by jury?  Why limit non-economic damages for a patient that dies but not for one who survives improper health care?  Is there really a rational basis for a distinction with that impact?  Or is this just man-made logic?

Kurt H. King

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

816.781.6000

Personal Injury, Workers’ Compensation, Trial and Appellate Practice

http://www.kurthking.com

December 3, 2012

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
Tags: , ,

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

www.kurthking.com

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
Tags: , ,

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

Chapter 7 Bankruptcy for debtors

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

www.kurthking.com

« Previous Page — Next Page »

Blog at WordPress.com.