The Law Office of Kurt H King

October 26, 2017


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


Personal Injury, Workers’ Compensation, Litigation, General Matters

February 24, 2016

Spoilation of Evidence Experience in Clay County, Missouri

Missouri history of sanctions for spoilation of evidence dates back to the 1882 case of Pomeroy v. Benton where the Court fashioned an adverse ruling against a defendant who concealed evidence of damages to his partner.  Many cases since address whether a court should grant an adverse inference or sanctions due to spoilation.

We argued this issue in a 2015 jury case in Clay County, Missouri, the Court ultimately denying request for an adverse inference based on what we believed to have been wrongful destruction of video of plaintiff’s fall captured by surveillance camera mounted on the exterior of the grocery store.  The store claimed to have mistakenly preserved video of the day after plaintiff’s fall, having taped over the day that plaintiff actually fell.  A risk manager for the chain store timely requested video of the fall–obtaining the “day after” video–but the store claimed it received no request for the correct video within the allotted 30 days after plaintiff’s fall.

The Circuit Court of Clay County, Missouri, apparently determined that the store did not intentionally destroy (by tape-over 30 days later) video of plaintiff’s fall, and/or that it did not do so with intent to defraud.

Note that months passed after the fall before the undersigned began representing plaintiff, and no letter issued shortly after plaintiff’s fall demanding the store preserve video and other evidence of the fall.  Such a preservation demand or other duty to preserve can be key.  We know not how the Court weighed our argument that: 1) the store immediately knew of the fall (its manager having assisted at the scene and reported the incident to superiors); 2) the video was in fact timely requested although that of the wrong date actually sent; and, 3) the store knew full well of a need to properly preserve video and other evidence of  customer injury known to it.  However, our impression is that the lack of an early demand for preservation of evidence was not decisive in this case to this judge.  Indeed, other courts indicate failure to have an adequate retention policy may constitute spoilation under certain circumstances.  But this store did have a preservation system in place, that being a 30 day tape over policy by  which previous video is simply taped over on the 31st day absent request to preserve made within 30 days.

P.S.–Weeks after this trial, a plaintiff’s attorney with a similar case against this defendant called for my thoughts.  He mentioned that the defendant store also lost/destroyed video of his client’s injury.  Wonder how often Hy-Vee fails to preserve and whether it is truly accidental?

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

Personal Injury, Workers’ Compensation, Litigation, General Matters

December 29, 2015

When Missouri Claim for Emotional Distress Should Be Stricken as Duplicative

Consider a case where plaintiff sues for trespass and includes a separate count for infliction of emotional distress, with both counts alleging the same trespass facts.

Know that an emotional distress claim cannot be maintained as a separate cause of action alongside the underlying tort claim for trespass (for instance) and recovery must be had under the traditional tort action.  K.B. v. R.T.R, 918 S.W.2d 795, 799 (Mo. 1996); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. 1993).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

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

Proving Emotional Distress Where There Is No Physical Impact

To recover for emotional distress where there is no physical impact, the injured person must plead and prove the purported act directly caused emotional distress that is “medically diagnosable and medically significant.” Miller v. Wackenhut Services, 808 F.Supp. 697 (W.D.Mo. 1992), citing Hendrix v. Wainwright Industries, 755 S.W.2d 411, 412 (Mo. Ct. App. E.D. 1988); Bass v. Nooney, 646 S.W.2d 765, 773 (Mo. 1983).  Expert medical testimony is generally required.

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Civil Litigation, Personal Injury, Missouri Workers’ Compensation, Family Law, & General Matters

August 19, 2014

History of Wrongful Death Actions in Missouri

Do yourself a big favor and read Daniel Sheffner’s article in the July-August 2014 edition of the Journal of the Missouri Bar (Google search will find it for you), entitled “Wrongful Death’s Common Law Antecedents in Missouri.” Well written with important information.

Sheffner traces the fallacy that began the need for states to pass wrongful death laws. And, he points out that James v. Christy, 18 Mo. 162 (1853), a case decided two years before Missouri’s first wrongful death law, indicates that Missouri COMMON LAW afforded recovery of damages for wrongful death.

Since Missouri common law granted recovery for wrongful death prior to the state’s first wrongful death act passed in 1855, the present damage caps should not apply for that reason as well as the fact that such caps were recently struck down where the victim survived the injury. Why should recovery be limited when the victim dies but not when he lives?

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

Personal Injury, Workers’ Compensation
Chapter 7 Bankruptcy for debtors, Family Law, General Matters

November 18, 2013

Error to Order Plaintiff to Authorize Ex Parte Communications with Treating Physician

Missouri courts clearly hold that it is error for a trial court to order the plaintiff to sign an authorization consenting to ex parte communications with his treating physician.

See Judge Van Amburg’s opinion in State of Missouri ex rel. John Joseph Camillo and Mignon Chismarich v. Honorable James Beck, Slip Opinion ED100427 (October 15, 2013).

Of note:  “An authorization compelled in the course of litigation must be narrowly tailored to protect against ‘the potential risks to the physician-patient relationship’ inherent in the disclosure of confidential medical information.  [Citation omitted.]  Vague, broad, or open-ended authorizations simply will not do.”

Kurt H. King

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


Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, Family Law

July 12, 2013

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

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


Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy, Family Law, General Matters

June 26, 2012

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

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

June 5, 2012

Suing the City & Sovereign Immunity

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


Personal Injury, Workers’ Compensation, General Litigation

Chaper 7 Bankruptcy for debtors, Family Law, General Practice Matters

December 22, 2011

Spinal Cement Surgery in Missouri Personal Injury and Workers’ Compensation Cases

Received a call last week from a guy with a Missouri Workers’ Compensation claim who went under the knife to have a vertebroplasty where cement is injected into a fracture to hold it together until the bone rebuilds.   The work comp insurance carrier already offered this person a settlement and the call was to find out if the offer was in the ball park, which it was not.  This person decided to try to renegotiate a higher settlement on his own after talking to me about number in hopes of having a decent net settlement without having to pay the 25% contingency fee to me and at least a $1,000 for another doctor to examine him and give the higher rating the injury deserved.  I don’t yet know how he fared on his negotiations.

After this phone call, I looked on-line at spinal surgery using cement and found that there are significant risks associated with this cement and allegations of improper and unapproved testing which may have resulted in patient deaths.  One risk is said to be that if the cement gets into the blood stream and reaches the heart, large drops in blood pressure occur.  Another concern is reported as that using cement to strengthen one fractured vertebrae could cause more fractures in weaker bones.  Maybe most strikingly, reports state that this cement surgery is no better than not having the surgery at all. 

All this raised the concern about what happens to the cement over time.  Is it absorbed into the body and how does that happen without it mixing with spinal fluid or the bloodstream which will eventually pass it though the heart?  And what damage results to the heart and its delicate valves due to the passage of rough foreign matter like cement?  Did the surgeon fully discuss all these risks and dangers with the patient as well as let the patient know of the studies that are said to indicate that the cement surgery may be no better than no surgery at all?   If not, the doctor may not have obtained the patient’s informed consent as required by law.

All in all, there seems to be considerable food for thought for anyone looking at cement surgery or such health problems afterwards.

Kurt H. King

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


Personal Inury, Missouri Workers’ Compensation, Family Law, Child Custody & Support, Divorce & Modification, Bankruptcy

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