June 3, 2011

How To Help Joplin

If you would like to assist the victims of the Joplin tornadoes there is now a safe website available for you to do that. This website will ensure that your donations get to Joplin and not elsewhere. Below is a letter from local Congressmen describing the website and how it works:


Dear Friends,

In Joplin, we have felt your thoughts and prayers. Thank you for your compassion, your contributions and your willingness to help.

A Bright Futures team from Joplin has launched a website called RebuildJoplin.org. This website is a comprehensive resource for people affected by the storm AND for those who wish to help.
If you are able to help, please consider going to the website and get connected with verified agencies.

Also, please help us spread the word that RebuildJoplin.org is the primary website for sending help to Joplin. It's by Joplin, for Joplin.

These agencies and resources are screened and verified. RebuildJoplin.org is endorsed by the City of Joplin, Joplin Schools, Joplin Area Chamber of Commerce and United Way 2-1-1.

RebuildJoplin.org, an initiative launched by Bright Futures, will adjust to the changing needs of community relief efforts. Joplin Schools created Bright Futures as a grass roots, community based program that creates partnerships and utilizes community resources for the common goal of helping our kids and strengthening our families and community. In the wake of the destruction, Bright Futures is adapting a successful program to meet the needs of those impacted by the tornado.

Friends, I ask that you please disseminate this information to your contact list so we can spread the word as quickly as possible, as far as possible. Together we can rebuild Joplin.

A local contact person with Rebuildjoplin.org is Garen McMillian 417-483-5136

With all our thanks,

Senator Ron Richard
Representative Tom Flanigan
Representative Charlie Davis
Representative Mike Kelley
Representative Bill Lant
Representative Bill Reiboldt
Representative Bill White


May 27, 2011

FREE LEGAL ASSISTANCE FOR JOPLIN TORNADO VICTIMS

During this difficult time, our thoughts and prayers turn to the victims of last week's devastating disaster in Southwest Missouri. Not only do the victims of natural disaster have to deal with the loss of family members, injuries, and loss of property, those victims also have to somehow navigate a maze of legal issues related to their losses.

Lawyers from across the state are joining forces to assist in any way that we can. The Missouri bar has established a 24 hour help hotline: 1-800-829-4128. The Missouri Association of Trial Attorneys has an Emergency Response Team that has been mobilized to the Joplin area beginning Saturday, May 28th. The local Jasper County Bar has pushed aside its own sorrows, and is already giving free advice to others in distress. In addition, Legal Aid of Western Missouri is also sponsoring a free legal clinic which will be open this weekend.

Legal issues in this situation can run the gamut from insurance issues regarding homeowners or automobile coverage; health insurance or other aid to cover medical bills; life insurance; or end of life issues related to probate, wills, trusts, and powers of attorney.

If you have friends or family in the Joplin area that need legal assistance, please tell them about the legal resources available or direct them to organizations such as the Red Cross who are coordinating efforts of all of the legal volunteers. The partners and staff at Tatlow, Gump, Faiella & Wheelan, LLC, in Moberly extend our condolences to those who have suffered losses in this terrible disaster.

May 27, 2011

COLLECTING JUDGMENTS AGAINST INSURANCE COMPANIES

Do you have a judgment against an insurance company that is refusing to pay? You can obviously follow the general law and practices for executing on your judgment to collect the proceeds from the insurance company's assets. However, you should be aware of an alternate source of collection. Missouri Revised Statute Section 375.490 specifically provides that some or part of the judgment may be satisfied against funds held by the Missouri Department of Insurance. In the normal course of business insurers have to comply with the financial regulations and laws necessary to do business. Under these laws, depending upon the type of insurer, and the business they are engaged may have to deposit security in order to do business in Missouri. If a plaintiff has a partially or wholly unsatisfied execution, upon three days notice to the Director of Insurance, an execution may be served on the Director and the Director must dispose of said assets at the best price possible to satisfy said judgment. While this method is limited to any securities that are on deposit at the time, it is an often overlooked source for collecting funds against insurers. Almost every state in the union has a similar version of this statute which allows execution of a judgment against an insurer on funds held by the Department of Insurance as security for conducting business.

If you have an uncollected judgment against an insurance company you should be aware of these special provisions and how they can assist you in collecting what you are owed from the insurance company.

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May 20, 2011

Supreme Court of Missouri Clarifies Reasonable Standard on Section 537.065 Judgments

On April 26, 2011, the Missouri Supreme Court, in the case Schmitz v. Great American Assurance Company, -- (S.W.3d - 2011) (2011 W.L. 1565447), held that a trial court was not permitted to determine a reasonableness of an underlying judgment against an insured in an equitable garnishment proceeding when the underlying case was tried to the court.

In Schmitz the insurer argued that the equitable garnishment trial court had to apply the reasonableness test from the Gulf Insurance case, 936 S.W.2d at 815. The Gulf Insurance test, as held by the supreme court applies only to settlements under Section 537.065, and does not apply where a underlying bench trial, determines both liability and damages. The insurer argued that the trial lacked any semblance of an adversarial proceeding because the insured did not present a defense. The Schmitz court made clear what the insurer was ignoring that the insurer had had an opportunity to present a defense, but because it had declined to do so by denying coverage, it was not entitled a second bite at the apple. The court made clear that there is a difference between a settlement, and a bench trial where no defense was presented, because the trial court did not have to find liability or damages in favor of the plaintiff. Thus, the plaintiff risked the possibility that the court would find against him. To hold otherwise would force the plaintiff in a garnishment action to relitigate the entire case before the equitable garnishment court so the court in that proceeding could determine whether or not the judgment was reasonable. The Supreme Court noted that the insurers proposed application of the Gulf Insurance test would effectively allow all insurers "two bites of the apple" - once when the trial court determines liability and damages and once when the equitable garnishment court determines reasonableness. The Supreme Court held that this application of the Gulf Insurance test in the underlying proceeding was in error.

The Schmitz decision by the Supreme Court makes clear that insurance companies who refuse to honor an insurance contract to their insured, do not get to relitigate the reasonableness of the underlying judgment and therefore have their cake and eat it too. Instead, if the trial court in the proceeding in which the insurer refused to defend enters a judgment against them on liability and damages, the insurer will be bound by the judgment. It should be noted that the insurers' position in the coverage case was unreasonable. The court noted that the insurer in coming up with its reasons for denial had actually ignored the insurance company's own policy language. Sadly this is too often the case in Missouri. Insurance companies often abandoned their insureds and deny coverage by misapplying the policy language or stretching or twisting its meaning. While this decision is favorable for insureds and strikes an appropriate balance between the insurer/insureds interest, it will likely have no detouring effect on insurers poor treatment by some insurers.

May 13, 2011

Interesting Article on Insurance Law

In the 2011 March and April edition of the Journal of the Missouri Bar, there appeared an interesting article entitled "Towards a Unified Theory of Insurance Law". The article was written by David C. Knieriem, of the Law Offices of David C. Knieriem.
The article can be found at the Missouri Bar website.

May 5, 2011

What are you really agreeing to?

On Wednesday, April 27, 2011 the Supreme Court ruled that consumers can be bound by arbitration clauses in cellular phone and/or other contractual agreements even if state law permits class action law suits for claims arising out of such agreements. AT&T Mobility LLC v. Concepcion et ux. What the Supreme Court's ruling means for consumers is that if you agree to the terms of a contract, whether you read the contract or not, and that contract contains an arbitration clause stating that arbitration rather than the court system can decide the outcome of any grievance you have against the corporation with which you have contracted, you must use arbitration as your only means to obtain any compensation for damages suffered.

Arbitration is a way to resolve disputes without using the court system. During arbitration an arbitrator, a neutral third party, will decide the outcome of a case. The determination made by the arbitrator may based partially on law, but is usually based on the agreement and what the arbitrator determines is fair for all the parties. If you have agreed to an arbitration clause in a contract, the decision made by the arbitrator is then binding upon the parties and cannot be modified by the court system.

When entering into a contract for a cellular telephone or entering into a contract on-line be aware that arbitration clauses can and do exist in those contracts. Based upon this Supreme Court decision, should you sign a contract with an arbitration clause included, any dispute you may have against another party to the contract will be determined by arbitration which is binding and precludes you from seeking a remedy in a court of law.

March 31, 2011

SUIT AGAINST AAA INSURANCE COMPANY FINDS THAT EXCLUSION CONFLICTS WITH MISSOURI'S MOTOR VEHICLE FINANCIAL RESPONSIBILITY LAW

The insured, Michael Blumer filed suit against his own insurance company, Automobile Club Inter-Insurance Exchange (d/b/a AAA Insurance) following a motorcycle accident in Boone County, Missouri. The driver of the other vehicle was never identified. At the time of the motorcycle incident, Blumer had two vehicles insured by AAA. The AAA policy provided uninsured motorist coverage with limits of $100,000 per person for each of two vehicles.

The AAA Policy contained an exclusion which provided "This coverage shall not apply to vehicles, including trailers, owned by you and not insured under this policy". It was not disputed that Blumer's motorcycle was owned by him and was not insured under the AAA policy, but was insured with another insurance company. That company, Progressive Northwestern Insurance Company, paid its uninsured motorist limits of $25,000.

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February 28, 2011

MO Legislature Considers Amending Work Comp Statutes Again

The Missouri legislature is again considering amending the current Missouri Workers' Compensation statutes. Just six years ago Missouri legislatures changed the statutes in an attempt to make it tougher to qualify for Workers' Compensation. The proposed changes, as set out in House Bill 162, make it easier for injured workers to qualify for compensation by adding occupational diseases and the acts of co-employees to the coverage designated by the statues. This alteration to the current statutes would prevent an injured employee from filing a claim against a co-employee in a Missouri Circuit Court.

On November 9, 2010, in Robinson v. Hooker, 323 S.W.3d 418, the Missouri Court of Appeals, Western District, ruled, based on the current Workers' Compensation statutes, that an injured employee who had a claim against an employer that did fall under the Workers' Compensation statutes could still recover damages against a co-employee in a subsequent tort claim. The ruling by the court in Robinson allowed an injured employee to sue a co-employee whose negligent actions resulted in injury. If House Bill 162 becomes law, injured employees will be limited to ONLY what they can recover through the Missouri Workers' Compensation statutes, no matter whether a co-employee's negligent actions were the cause of the injury.

In the Robinson case, Mr. Robinson's right eye was injured when Ms. Hooker used a high pressure hose negligently. As a result of the injury, Mr. Robinson is now blind in his right eye. Mr. Robinson's employer's Workers' Compensation insurance carrier settled Mr. Robinson's claim, and Mr. Robinson brought suit against Ms. Hooker for damages resulting from her negligence. If House Bill 162 becomes law, Mr. Robinson would have been barred from bringing suit against Ms. Hooker even though she may have acted negligently and caused him to lose sight in his right eye.

January 17, 2011

Missouri's Medicaid Program to Recieve $1,781,042

Missouri, along with other states and the federal government, have reached an agreement with the Elan Corporation. The Elan Corporation's subsidiary, Elan Pharmaceuticals, INC.(EPI), marketed its anti- epileptic drug, Zonegran, for uses that were not approved by the FDA. EPI paid health care professionals to prescribe Zonegran for other uses such as obesity and headaches. EPI agreed to plead guilty to a federal misdemeanor and is to pay a criminal fine of $102 million dollars to the federal government. EPI will now be closely monitored because of a Corporate Integrity Agreement by the United States Department of Health and Human Services.

January 10, 2011

Appellate Court Clarifies Worker's Compensation Laws

There has been much discussion and much litigation in the worker's compensation area since 2005, when the Missouri legislature, under the Blunt administration, made several changes to the Workers' Compensation Law. Those changes included narrowing the definitions of "injury", "accident", and "injury arising out of and in the course of"; and changing the Court's interpretation of the statutes from a liberal statutory construction to a strict statutory construction.

Recently, the Court of Appeals, Southern District, overturned a final award of the Labor and Industrial Relations Commission which had denied benefits to a registered nurse who suffered chronic tendonitis of the peroneal tendon, which was caused in part by calcifications in the tendons of her foot which required surgery. Pile v. Lake Regional Health System, 321 S.W.3d 463 (Mo. App. S.D. 2010). Her physician opined that her work at the hospital was the prevailing factor of her injury and was consistent with another doctor's determination that walking caused Claimant's tendonitis. The Commission had found that had the Claimant not been exposed to excess walking, as her job required, she would not have sustained injury. However, the Commission inappropriately found that because she was also exposed to walking outside of her employment that her injury was not compensable under workers' compensation law.
The Appellate Court held that under the "strict statutory construction" requirements, in situations such as this, where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment is it necessary to determine whether the claimant is equally exposed to the same hazard or risk outside of employment.

The risk or hazard to which the Claimant, Denise Pile, was exposed due to her employment was the development of brittle bones in her foot due to tendonitis, which in turn was caused by the prolonged walking required by her job duties as a nurse. Thus, there was a clear connection between the risk or hazard of injury, the injury itself and her employment. The Court explained that to hold that a claimant may not recover unless her employment exposed her to any risk that she was not exposed to in everyday life would eviscerate almost any claim for workers' compensation. The legislature could not have intended such an absurd result.

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December 17, 2010

MO Department of Insurance Offers Help During Medicare Open Enrollment

Medicare enrollment is currently open through December 31st. If you want to apply for Medicare benefits for yourself or help a loved one apply but don't know where to start, call the Missouri Department of Insurance or visit their website. They're offering free assistance to anyone who needs help with the enrollment process via the CLAIM Insurance Assistance project. You can also visit the CLAIM website for more information.

October 21, 2010

Do You Really Need Renter's Insurance?

Many people assume that they don't need insurance if they don't own the building or house in which they live. But you should know that if you rent an apartment or home, your possessions are typically not covered by the building or home owner's insurance purchased by your landlord.

Most renter's insurance policies cover things like fire, theft, vandalism and other events that could damage your personal belongings. Like home owner's insurance, however, renter's insurance typically does not cover some natural disasters such as floods and earthquakes. It is important to read your renter's insurance policy carefully to determine what type of coverage you have.

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September 27, 2010

Fake Medical Insurance

It was reported on Tuesday, September 21st by the Missouri Department of Insurance that eight companies and individuals have been accused of selling fake health plans. The fines against these companies and individuals is more than one million dollars.
The companies sold plans that were disguised as medical insurance. The plans were marketed through unsolicited faxes which at least 150 Missouri Consumers bought. The faxes said things such as "Dependent Coverage" and "Group Health Plan."

$130,000 in fines were imposed by regulators. Cease and desist orders were also issued for the following individuals and buisnesses:Thomas J. Sullivan; Richard Bachman; James M. Doyle; Bart S. Posey Sr.; Christopher Ashiotes; and Obed Kirkpatrick; Smart Data Solutions; Affinity Group Benefits Association Inc. Discount- plan marketers caught violating the court orders will likely face criminal prosecution.

Individuals who have been cheated by insurance companies have the right to sue the insurance company for damages. Government agencies police business but don't get compensation for the damages the consumer suffered. If an insurance company cheated you, you should speak to an experienced attorney about your legal rights

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September 3, 2010

Health Insurance Scam Affects 26,000 People Across the U.S.

All 50 states have been affected by a Tennessee based entity called the American Trade Association (ATA) plus other affiliated firms, which was selling fake health insurance. The program was supposed to work by the ATA taking out money directly from consumer's accounts. Consumer's thought they were saving hundreds of dollars each month on premiums until an issue with their health came up and they found out they were not insured.

Some consumer's have shared their stories through Smart Data Solutions where one person stated, "I tried to get prescriptions through my card and it is not covered. They say they are getting a new plan, but did not inform anyone. Their phone goes unanswered, or it is busy. Their website; http://www.myatabenefits.com doesn't work either. This is either an incredibly poor run organization, or a scam."

After investigations were held consumers found out that their money had actually been used to pay for personal items such as cars, real estate, and loan payments. Some claims were paid, but only the small ones to maintain the appearance of legitimacy.

The state of Maine actually ordered the American Trade Association to pay a $1.2 million penalty because of the unlicensed products sold to consumers, the unlicensed agents, and for not adequately paying for consumer's medical bills.

Kathleen Sebelius, secretary of the U.S. Department of Health and Human Services describes how this is just the beginning. There will be more scammers out there because they know people are seeking cheaper insurance coverage.

Consumers who want to research a company can check with their State Department of Insurance. If you are scammed by insurance company or a company that promises to provide insurance and does not, you have legal rights. In Missouri an insurance company that does not honor its promise can be sued for breach of contract and in some circumstances for bad faith. If a company poses as an insurance company but is a fake, you can sue for damages for breach of contract, misrepresentation and fraud. If you have been scammed you should also report the company responsible to law enforcement.

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August 24, 2010

HEALTH INSURER CANNOT ASSERT LIEN UPON THE PROCEEDS OF THE PARTICIPANT'S TORT RECOVERY

In a case handed down August 6, 2010 by the Missouri Court of Appeals, Southern District, the court found that the proposed lien of a health insurer was an invalid attempt to require assignment of the Participant's personal injury claim and, as such, it was contrary to longstanding Missouri public policy. Scroggins v. Red Lobster, No. SD 30214.

In 2007, Pamela Scroggins was seriously injured in a trip and fall accident at a restaurant. Ms. Scroggins' medical expenses were covered by an employee contributory self-funded health plan that provided benefit coverage to her under her employer provided health care plan. As a result of her injuries, Ms. Scroggins sued the restaurant and the lawsuit resulted in a settlement.

One of the health insurance plan provisions purported to grant the health insurer a lien upon the proceeds of the Participant's tort recovery, and a right to payment from any recovery, to the extent of the sum that the Insurer paid for injuries Ms. Scroggins suffered. This is not unusual. Insurers paying benefits to insureds as a result of injuries caused by third persons often claim an interest in recovering those costs if the insured obtains a settlement or collects upon a judgment against the third party. To that end, insurers have repeatedly attempted to draft policy provisions or establish other requirements for the purposes of seeking reimbursement from the insured in such situations.

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